Title of Regulation: 1VAC75-20. Virginia Security for Public Deposits Act Regulations (amending 1VAC75-20-10, 1VAC75-20-30, 1VAC75-20-50 through 1VAC75-20-160; repealing 1VAC75-20-20, 1VAC75-20-40).

Statutory Authority: § 2.1-364 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 15, 2022.

Agency Contact: Kristin A. Reiter, Director of Operations, Department of the Treasury, James Monroe Building, 101 North 14th Street, 3rd Floor, Richmond, VA 23219, telephone (804) 225-3240, FAX (804) 225-3187, or email kristin.reiter@trs.virginia.gov.

Basis: The Treasury Board's regulatory authority for this action can be found at §§ 2.2-4405 and 2.2-2416 of the Code of Virginia.

Purpose: The regulation is essential to protect the financial stability of the Commonwealth and citizens by ensuring public deposits of the Commonwealth of Virginia and its counties, cities, towns, and other public entities are adequately protected against economic consequences of a failure of a financial institution holding public funds. Certain changes are being made to improve the types, values, and ease of liquidation of required collateral and establish minimum requirements banks must meet to become and remain qualified public depositories (QPDs) and escrow agents, with the intent of strengthening the Security for Public Deposits Act (SPDA) program and better protecting Virginia public funds.

Substance: The proposed amendments revise the statutory authority; bring the regulatory language in line with the SPDA as amended in 2009 and 2010; make certain changes to the types of securities eligible to be pledged as collateral and their valuation; establish formal eligibility criteria for banks to become and remain QPDs and escrow agents; and make other changes determined to be necessary to better administer the SPDA to accommodate the needs of Virginia's banking community and public institutions while ensuring the protection of public funds.

Issues: The primary advantage to the public is the enhanced safety of public funds deposits. The primary disadvantage would be to pooled QPDs that pledge municipal securities as collateral, as the revision would subject these securities to a haircut. This means that some QPDs may have to pledge more or different collateral. The primary advantage to public agencies and the Commonwealth is the enhanced safety of public funds deposits; a possible disadvantage would be if a QPD decided to leave the SPDA program because of the new requirements, meaning public agencies banking at the QPD would need to close their accounts at that QPD and open new accounts at a different QPD.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. As the result of a 2018 periodic review,² the Treasury Board (Board) proposes to: 1) update the regulation to reflect legislative changes that occurred in 2009 and 2010, 2) increase the amount of collateral required for municipal securities in the pooled collateralization method, 3) exclude corporate notes from eligible collateral types in the pooled method, 4) add a requirement for public depositors to periodically verify their account balances through the Department of Treasury's (Treasury) website, and 5) formalize in the regulation minimum qualifications to become a Qualified Public Depository (QPD) and an escrow agent and update compliance requirements for continued eligibility.

Background. The Virginia Security for Public Deposits Act (Act), Code of Virginia §§ 2.2-4400 et seq, establishes a single body of law applicable to the pledge of collateral for public deposits in financial institutions. Consequently, the Treasury requires collateral that QPDs must pledge in order to secure public deposit balances in excess of the insurance coverage provided by the Federal Deposit Insurance Corporation. The purpose of collateral is to safeguard the financial stability of the Commonwealth by ensuring that public deposits of the Commonwealth and its counties, cities, towns, and other public entities are adequately protected against the economic consequences of a failure of a financial institution holding public funds.

According to the Treasury, significant changes were made to the Act in 2009 and 2010. These changes include Chapter 64 of the 2009 Acts of Assembly and Chapters 640 and 674 (identical) of the 2010 Acts of Assembly.³ However, the regulation has not been amended to reflect these changes. This action largely involves updating the regulatory text to reflect the legislative changes that took place in practice more than a decade ago. However, several proposed changes would depart from current practices as discussed below.

Estimated Benefits and Costs. The Treasury may require that certain securities (those that are difficult-to-value, subject to rapid declines in value, or otherwise represent a risk of decrease in value) be valued for collateral purposes at a rate that is less than 100% of their market value. This valuation approach is intended to minimize the risk that any securities used as collateral will diminish in value and thus no longer serve as adequate protection against financial loss. The percentage difference between an asset's market value and the amount that can be used as collateral is commonly referred to as the "haircut" in the context of this regulation. For example, if the Treasury counts only 80% of an asset's value as collateral, that translates to a 20% haircut on that security. Currently, there is a 20% haircut on mortgage-backed pass-through securities pledged as collateral by both dedicated and pooled QPDs,⁴ and a 10% and a 20% haircut on Virginia municipal securities and non-Virginia municipal securities respectively that are pledged by dedicated QPDs.

The Board proposes to introduce a 10% and a 20% haircut respectively for Virginia based and non-Virginia based municipal securities pledged by pooled QPDs. According to the Treasury, this change would provide consistency with the dedicated method and better protect public deposits at pooled QPDs by requiring them to either increase their pledged collateral, or pledge different security types that are more easily valued and liquidated in the event of a QPD failure. Using balances as of June 30, 2021, three pooled QPDs would either need to pledge approximately $45 million in additional securities combined (individually $35 million, $8 million, and $2 million), or substitute other security types with lower or no haircuts for municipal securities, in order to maintain sufficient collateral and improve protection of public funds.⁵

Similarly, the Board proposes to exclude corporate notes from eligible collateral types for pooled QPDs in order to achieve consistency with the collateral types accepted for dedicated QPDs. A corporate note is a short term loan agreement between a lending source and a company and as such is riskier relative to some other types of collateral. According to the Treasury, there is currently only one QPD that pledges two corporate notes with a combined market value of $1.9 million. However, that bank is currently over-collateralized by $13.6 million and would still be over-collateralized by $11.7 million without the corporate notes under this change. Thus, this change would not have an immediate impact. In the long-term, if the bank wants to maintain its deposit capacity at the current level it would have to replace its corporate notes with other types of collateral. This change would provide consistency between the pooled and dedicated methods as well as reduce public funds' exposure to risk in the long-term.

The Board also proposes to add a requirement for public depositors to verify their fund account balances after the end of each quarter, using the search feature presented on the Treasury's website for that purpose, to ensure their accounts are being properly reported to the Board by the QPDs. This requirement would help reveal any public fund accounts that were not reported or reported inaccurately so corrections can be made. According to the Treasury, many public depositors are already doing this voluntarily. Thus, the administrative cost to QPDs is expected to be modest.

Finally, the Board proposes to formalize in the regulation minimum qualifications to become a QPD and an escrow agent as well as update compliance requirements for continued eligibility. The Board would also make numerous changes to conform the regulatory language to the Code of Virginia. According to the Treasury, these changes are primarily housekeeping measures to reflect in the regulation the current standards that are already followed in practice. Thus, no significant economic impact is expected from these changes other than improving the accuracy of the regulatory text.

Businesses and Other Entities Affected. This regulation applies to 83 banks that hold public deposits. Of these, 57 are collateralized using the pooled method and 26 using the dedicated method.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted above, three pooled QPDs would be affected by the increased haircut requirements for municipal securities and would therefore be required to pledge additional collateral or pledge different collateral with lower or no haircuts. One pooled QPD would be affected by the exclusion of corporate notes from use as collateral and would therefore be required to pledge additional collateral if it wishes to maintain its current deposit capacity. Thus, an adverse impact is indicated on the four banks.

Small Businesses⁷ Affected.⁸ The proposed amendments appear to adversely affect banks that are small businesses.

Types and Estimated Number of Small Businesses Affected. The Treasury reports that two of the three banks affected by the increased haircut to municipal securities appear to be small businesses (employ fewer than 500 full-time employees) and thus an adverse impact on small businesses is indicated. More generally, of the current total of 57 pooled QPDs, approximately 20 to 25 appear to fit the criteria for a small business and could potentially be impacted at some time in the future.

Costs and Other Effects. The proposed amendments would require affected small banks to increase the amount of collateral provided to continue as QPDs or pledge different collateral with lower or no haircuts. Thus, an adverse economic impact on them is indicated.

Alternative Method that Minimizes Adverse Impact. There does not appear to be a clear alternative method that both reduce adverse impact and meet the intended policy goals. The affected banks could potentially decide to no longer hold public funds if the costs of doing so because of this regulation exceed the benefits. The Treasury notes, however, that this outcome would be unlikely.

Localities⁹ Affected.¹⁰ The proposed amendments primarily affect banks that hold deposits of public entities including towns, cities, and counties. However, the proposed changes do not appear to introduce costs for local governments and no localities appear to be disproportionately affected.

Projected Impact on Employment. The proposed amendments do not appear to directly affect total employment.

Effects on the Use and Value of Private Property. Having to provide additional collateral or pledge different collateral with lower or no haircuts may negatively affect the profitability and hence the asset values of banks using the pooled method. Otherwise, the proposed amendments do not appear to affect the use and value of private property or the real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²https://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1757

³https://leg1.state.va.us/cgi-bin/legp504.exe?ses=091&typ=bil&val=ch64

https://leg1.state.va.us/cgi-bin/legp504.exe?ses=101&typ=bil&val=ch640

https://leg1.state.va.us/cgi-bin/legp504.exe?ses=101&typ=bil&val=ch644

⁴Under the dedicated method, a depository collateralizes deposits made by a public depositor individually without contingent liability. Under the pooling method, however, the depositories secure all of their public deposits collectively by establishing a pool of collateral with contingent liability.

⁵Using balances three months earlier, March 31, 2021, there was a fourth QPD under-collateralized by $71,826.

⁶Pursuant to Code § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷Pursuant to § 2.2-4007.04a, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Treasury Board concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

The proposed amendments (i) bring the regulatory language in line with the Security for Public Deposits Act (SPDA); (ii) make certain changes to the types of securities eligible to be pledged as collateral and their valuation; (iii) establish formal eligibility criteria for banks to become and remain qualified public depositories and escrow agents; and (iv) make other changes determined to be necessary to better administer the regulation to accommodate the needs of Virginia's banking community and public institutions while ensuring the protection of public funds.

1VAC75-20-10. General.

A. The definitions provided by § 2.1-360 § 2.2-4401 of the Code of Virginia shall be used throughout this chapter unless the context requires otherwise.

B. The Treasury Board has designated the State Treasurer to be the chief administrative officer with respect to the provisions of the Virginia Security for Public Deposits Act (the "Act") (§ 2.1-359 § 2.2-4400 et seq. of the Code of Virginia) and the State Treasurer reserves the right to designate a representative to act on his behalf.

C. The primary responsibility for compliance with the Act rests upon the financial institutions that accept and hold public deposits. If the deposit is a "public deposit," the deposit must be secured pursuant to the Act. If a depositor or a depository is unable to ascertain whether a particular deposit is a "public deposit" for purposes of the Act, he they should obtain the essential details information about the purpose of the account, the custodian of the account, and under what authority the account was established and communicate with the State Treasurer's office by the use of a notice of election form. A final determination will be made by the State Treasurer's office with the assistance of the Office of the Attorney General, if needed.

1VAC75-20-20. Effective date. (Repealed.)

This chapter, as amended, shall be effective on and after November 18, 1993.

1VAC75-20-30. Required collateral for banks Collateral requirements for qualified public depositories.

The required collateral of a national or state chartered bank to secure public deposits shall be determined according to the following applicable criteria and shall consist of securities qualifying as eligible collateral pursuant to these regulations which have a value for collateralization purposes not less than:

1. Fifty percent. Fifty percent of the actual public deposits held at the close of business on the last banking day of the immediately preceding month, or 50% of the average balance of public deposits for the immediately preceding month, whichever is greater;

2. Seventy-five percent. A. The Treasury Board shall establish the required collateral that qualified public depositories must pledge to secure public deposit balances in excess of insurance coverage provided by the Federal Deposit Insurance Corporation based on resolutions and guidelines approved by the Treasury Board. These collateral requirements shall be made available for public access. Public depositors and qualified public depositories will be notified of changes to the requirements in advance of their effective dates.

B. In the event a bank's depository's average daily public deposits for the immediately preceding month exceed one-fifth of its average daily total deposits for that month, the required collateral will be 75% of the actual public deposits held at the close of business on the last banking day of the immediately preceding month, or 75% of the average balance of public deposits for the immediately preceding month, whichever is greater; 3. One hundred percent. in accordance with the Treasury Board's established collateral requirements with the added stipulation that no public deposit be collateralized at less than 75% of the actual public deposits held at the close of business on the last day of the immediately preceding month, or no public deposit be collateralized at less than 75% of the average balance of public deposits for the immediately preceding month, whichever is greater.

C. In the event a bank's depository's average daily public deposits for the immediately preceding month exceed one-fifth of its average daily total deposits and the bank depository has not been actively engaged in the commercial banking business for at least three years, or in the event that a bank's depository's average daily public deposits for the immediately preceding month exceed one-third of its average daily total deposits, or in the event that a bank depository has not been actively engaged in the commercial banking business for at least one year, the required collateral will be no less than 100% of the actual public deposits held at the close of business on the last banking day of the immediately preceding month, or no less than 100% of the average balance of public deposits for the immediately preceding month, whichever is greater.

D. In the event a bank depository has violated the pledging statutes and regulations Security for Public Deposits Act, this chapter, or for other reasons deemed sufficient prudent by the Treasury Board, such as the deteriorating financial condition of the bank depository or the reasons referred to in 1VAC75-20-130 the failure to meet compliance requirements established by the Treasury Board pursuant to 1VAC75-20-130, the Treasury Board may increase the bank's ratio of required collateral to 100% of its actual public deposits depository's collateral requirement.

1VAC75-20-40. Required collateral for savings institutions. (Repealed.)

The required collateral of a savings institution to secure public deposits shall consist of securities qualifying as eligible collateral pursuant to these regulations which have a value, for collateralization purposes, not less than a sum equal to 100% of the average daily balance of public deposits held by such savings institution for the immediately preceding month, but shall not be less than 100% of the public deposits held by such savings institution at the close of business on the last banking day of the immediately preceding month.

In the event that a savings institution has violated the pledging statutes and regulations, or for other reasons deemed sufficient, such as the financial condition of the savings institution or the reasons referred to in 1VAC75-20-130, the Treasury Board may increase such savings institution's ratio of required collateral above 100% of its actual public deposits.

1VAC75-20-50. Average daily balance computation.

A. The average daily balance for any month shall be derived by dividing the sum of the daily balances of any item being computed by the number of calendar days in the month.

B. In computing the amount of public deposits and the average balance of public deposits to be collateralized during any month, there shall be excluded the amount of each deposit which is insured by federal deposit insurance the Federal Deposit Insurance Corporation.

1VAC75-20-60. Eligible collateral.

A. Securities eligible for collateral are limited to:

1. Obligations of the Commonwealth. Bonds, notes and other evidences of indebtedness of the Commonwealth of Virginia, and securities unconditionally guaranteed as to the payment of principal and interest by the Commonwealth of Virginia.

2. Obligations of the United States. Bonds, notes and other obligations of the United States, and securities unconditionally guaranteed as to the payment of principal and interest by the United States, or any agency thereof.

3. Obligations of Virginia counties, cities, etc. and other public bodies. Bonds, notes and other evidences of indebtedness of any county, city, town, district, authority or other public body of the Commonwealth of Virginia upon which there is no default provided that such bonds, notes and other evidences of indebtedness of any county, city, town, district, authority or other public body are either direct legal obligations of, or unconditionally guaranteed as to the payment of principal and interest by, the county, city, town, district, authority or other public body in question and revenue bonds issued by agencies or authorities of the State of Virginia Commonwealth or its political subdivisions upon which there is no default and which are rated BBB Baa2 or better by Moody's Investors Service, Inc. or BBB or better by Fitch Ratings, Inc. or Standard & Poor's Corporation Financial Services LLC.

4. Obligations of the International Bank for Reconstruction and Development, African Development Bank, and Asian Development Bank. Bonds and other obligations issued, guaranteed, or assumed by the International Bank for Reconstruction and Development by the African Development Bank, or by the Asian Development Bank.

5. Obligations partially insured or guaranteed by any U.S. Government Agency.

6. Obligations (including revenue bonds) of states, other than Virginia, and their municipalities or political subdivisions rated A A2 or better by Moody's Investors Service, Inc. or A or better by Fitch Ratings, Inc. or Standard & Poor's Corporation Financial Services LLC.

7. Corporate Notes rated AA by both Moody's Investors Services, Inc. and Standard & Poor's Corporation with a maximum maturity of 10 years.

8. Any additional securities approved by the Treasury Board pursuant to § 2.1-364(d) of the Code of Virginia for which written notification to qualified public depositories from the State Treasurer will be provided.

7. Any additional securities approved by the Treasury Board pursuant to § 2.2-4405.4 of the Code of Virginia.

B. Federal Home Loan Bank letters of credit issued in accordance with the Security for Public Deposits Act are eligible as collateral.

C. No security which is in default as to principal or interest shall be acceptable as collateral.

C. D. No qualified public depository shall utilize securities issued by itself, its holding company, or any affiliate for purposes of collateralizing its public deposits.

D. E. Securities excluded by action of the Treasury Board pursuant to § 2.1-364(d) § 2.2-4405.4 of the Code of Virginia shall not be acceptable. Written notification of securities excluded will be provided to qualified public depositories by the State Treasurer.

1VAC75-20-70. Valuation of collateral.

A. Each qualified public depository shall value its securities for reporting purposes at current market value as of the close of business on the last banking day of the immediately preceding month. Weekly, qualified public depositories that have elected the dedicated method of collateralization must additionally report current market values as of the close of business on Friday of the immediately preceding week. At all times the current market value of collateral must be equal to or greater than a depository's required collateral as defined in 1VAC75-20-30, 1VAC75-20-40 and 1VAC75-20-80 of this chapter. Current market value is defined as the market value of a security priced on a same day basis or no older than one business day. Business day is defined as the close of a commercial business at 5 p.m. The State Treasurer, upon written notice to any or all qualified public depositories and eligible escrow agents, may require as deemed necessary for reporting purposes any day other than a Saturday, Sunday, a legal holiday, or a day in which banking institutions are authorized or required by law or other governmental action to be closed.

B. The Treasury Board may require that certain securities that are difficult-to-value or subject to rapid declines in value or otherwise represent a risk of decrease in value be valued at a rate less than 100% of their market value. Accordingly, this shall apply to all of the following security types: mortgage-backed securities (MBS) and collateralized mortgage obligations (CMO) issued by United States agencies or government-sponsored enterprises (GSE) shall be valued at 80% of their market value; obligations (bonds, notes and other evidences of indebtedness) of the Commonwealth of Virginia and any Virginia county, city, town, authority, or other public body shall be valued at 90% of their market value; and obligations (bonds, notes and other evidences of indebtedness) of other states and their municipalities and political subdivisions shall be valued at 80% of their market value. Qualified public depositories shall have six months from the date these regulations are effective to adjust their pledged collateral, if necessary.

1VAC75-20-80. Deposit of collateral.

A. No qualified public depository shall accept or retain any public deposit which is required to be secured unless it has previously executed a "Public Deposit Security Agreement," approved by the depository's Board of Directors or Loan Committee, with such approval reflected in the minutes of said board or committee. The depository shall maintain the security agreement as an official record continuously from the time of its execution. The depository must also have deposited eligible collateral, as defined in these regulations, equal to its required collateral, determined as herein provided, with an eligible escrow agent approved by the State Treasurer. Each depository is responsible for providing a written notification and executing new agreements upon its name change.

B. Whether or not a qualified public depository has eligible collateral deposited as heretofore provided at the time it receives a public deposit, if such deposit would result in an increase in the qualified public depository's required collateral computed as of the day on which the deposit is received, such qualified public depository shall immediately deposit sufficient securities to increase its collateral to an amount equal to that determined pursuant to 1VAC75-20-30 or 1VAC75-20-40, whichever is applicable, utilizing the qualified public depository's actual public deposits held at the close of business on the banking day such deposit is received in lieu of those held at the close of business on the last banking day in the immediately preceding month. Banking day is defined as the financial institution's close of business at 2 p.m. Written notice of deposit of collateral shall be submitted to the State Treasurer Treasury Board.

At the time of the deposit of registered securities, the qualified public depository owning the securities shall attach appropriate bond power forms as required to allow the State Treasurer to transfer ownership of such registered securities for the purpose of satisfying the qualified public depository's liabilities under the Act in the event the collateral needs to be liquidated.

1VAC75-20-90. Substitution of eligible collateral.

A. A substitution of eligible collateral may be made by the qualified public depository at any time provided that the current market value of the collateral substituted is equal to or greater than the current market value of the collateral withdrawn.

B. At the time of making a collateral substitution, the qualified public depository shall prepare a request for the substitution upon a form approved by the State Treasurer Treasury Board and deliver the original provide it to the escrow agent and a copy to the State Treasurer Treasury Board. The escrow agent shall not allow a collateral substitution unless the current market value of the collateral to be substituted is equal to or greater than the current market value of the collateral to be withdrawn. Current market value for the escrow agent in regards to a substitution is the market value of a security priced on a same day basis or no older than one business day prior to the date of the substitution. The escrow agent shall calculate adjustments to the current market value of collateral that the State Treasurer Treasury Board has identified as difficult-to-value or subject to rapid declines in value or otherwise represents a risk of decrease in value at the time of substitution to determine if the market value is equal to or greater than the value of the collateral to be withdrawn in accordance with 1VAC75-20-70.

C. In the event the current market value of the substituted collateral is not equal to or greater than the value of the collateral to be withdrawn as determined in accordance with 1VAC75-20-70, the qualified public depository shall obtain written approval of the State Treasurer Treasury Board to substitute the collateral.

1VAC75-20-100. Withdrawal of collateral.

A qualified public depository shall not be permitted to withdraw collateral previously pledged without the prior written approval of the State Treasurer Treasury Board. The State Treasurer Treasury Board may grant such approval only if the qualified public depository certifies in writing that such withdrawal will not reduce the current market value of its pledged collateral below its required collateral as defined by these regulations this chapter, and this certification is substantiated by a statement reporting the qualified public depository's current public deposits, which indicates that after withdrawal such deposits will continue to be secured to the full extent required by the law and regulations. Current public deposits are defined as for this purpose are the amount of public deposits held at the time of withdrawal of collateral. If a qualified public depository cannot determine the amount of current public deposits when collateral is to be withdrawn, the depository shall request an exception to this provision from the State Treasurer stating why the depository cannot comply and how it intends to determine the current public deposit balance under this provision. The request for exception must be in writing and formally approved by the State Treasurer. The escrow agent shall not permit the qualified public depository to withdraw collateral without the prior written approval of the State Treasurer Treasury Board.

1VAC75-20-110. Reports by qualified public depositories.

A. Within 10 business calendar days after the end of every the month, each qualified public depository shall submit to the State Treasurer a written report, under oath, signed by an authorized officer of the financial institution indicating Treasury Board an electronic report of such data required by the Treasury Board, certified as to its accuracy by an authorized official of the qualified public depository. The report shall include the total amount of public deposits held by it at the close of business on the last banking day in the immediately preceding month; the average daily balance for such month of all public deposits held by it during the immediately preceding month; the average daily balance of all bank deposits for the immediately preceding month; the total required collateral; the total par value and the total current market value of collateral for at the close of business on the last day in the immediately preceding month; and the average daily collateral balance. Included with this report shall be a detailed schedule of pledged collateral to include, but not limited to, the security description, coupon rate, CUSIP (Committee on Uniform Securities Identification Procedures) number, maturity date, debt rating by Moody's Investors Services, Inc., Fitch Ratings, Inc. or Standard & Poor's Corporation Financial Services LLC, par value amount, book or principal value amount, and current market value amount, determined pursuant to 1VAC75-20-70.

B. Qualified public depositories selecting the dedicated method to collateralize their public deposit balances shall also submit reports similar to those outlined in subsection A of this section each week for the immediately preceding week.

C. At the request of any a public depositor for which it a qualified public depository holds deposits, within 10 business calendar days after the end of any a month, the qualified public depository shall submit a statement indicating the total public deposits in each account to the credit of such depositor on the last banking day in the immediately preceding month and the total amount of all public deposits held by it upon such date.

D. Within the first 10 business calendar days of each calendar quarter, every qualified public depository depositories shall submit to the State Treasurer a Treasury Board an electronic report indicating the account number, type of account, amount of federal deposit insurance applied, total amount on deposit and total amount on deposit to be secured by its pledged collateral or a combined listing containing the same information as an attachment to the "Public Depository Monthly Report" as of the close of business on the last banking day of the calendar quarter being reported. At the same time every qualified public depository shall submit to each public depositor for whom it holds public deposits, a report indicating the account number, type of account, and total account amount to be secured by its pledged collateral by public deposit account to include the account number, type of account (demand or savings), full name of account, name of public entity, custodian name and title, federal tax identification number, amount on deposit in the account, amount on deposit secured by federal deposit insurance, and amount of deposit secured by pledged collateral. Qualified public depositories shall also within the first 10 calendar days of each quarter provide to each public depositor for whom it holds public deposits, a schedule detailing the public deposit accounts reported to the Treasury Board for that depositor, indicating the account name and number, type of account, amount on deposit secured by federal deposit insurance, and total account amount to be secured by its pledged collateral.

With the submission of the "Public Depository Monthly Report" to the State Treasurer for the month ending on June 30, E. By the 10th calendar day of July, qualified public depositories shall attach submit an annual certification from an independent certified public accountant or their internal audit department, attesting to the accuracy of the public deposit balances reported to the State Treasurer Treasury Board during their previous fiscal year in accordance with the instructions issued by the Treasury Board.

1VAC75-20-120. Reports by State Treasurer.

The State Treasurer shall report to the auditors of any public depositor, upon their written request, the status of any qualified public depository's collateral account and its compliance with the reporting requirements of the Act. The State Treasurer shall notify any public depositor that maintains accounts with any bank or savings institution of any irregularities, including, but not limited to, the late filing of the required monthly reports or deficiencies in the qualified public depository's eligible collateral at any time. make available to public depositors and their auditors reports of compliance irregularities of public depositories including undercollateralization and repeated late filings of required compliance reports. The Treasury Board shall be notified of the sending of any reports of irregularities required herein no later than at its next compliance irregularities during the board's regularly scheduled meeting meetings.

1VAC75-20-130. Compliance requirements Eligibility criteria and compliance requirements for qualified public depositories.

Pursuant to the power granted under § 2.1-364 § 2.2-4405 of the Code of Virginia, the Treasury Board may establish criteria for determining the continued eligibility of public depositories to accept public deposits. By formal request, any depository may receive a copy of the approved policy enacted by the Treasury Board. The State Treasurer shall notify public depositors of any policy irregularity regarding their depository to become a qualified public depository and compliance requirements for continued eligibility.

1. To become a qualified public depository, the minimum qualifications are that a bank:

a. Meet the requirements of a qualified public depository as defined in § 2.2-4401 of the Code of Virginia.

b. Have an average or above rating from the Treasury Board's designated rating service for the most recent eight calendar quarters.

c. Cannot be under a formal federal or state bank regulatory enforcement action that would impair its ability to serve as a qualified public depository, to be determined on a case by case basis. Banks will be required to disclose to the Treasury Board any such formal enforcement actions currently in force.

2. For continued eligibility, compliance requirements are:

a. Sufficient collateralization, pooled method. If a qualified public depository using the pooled method of collateralization is undercollateralized three months in a rolling 12-month period, the Treasury Board may take action, including the following, as it deems appropriate:

(1) Increase the depository's collateral requirement.

(2) Prohibit the depository from opening any new public deposit accounts.

(3) Restrict the types of securities the depository may pledge as collateral.

b. Sufficient collateralization, dedicated method. If a qualified public depository using the dedicated method of collateralization is undercollateralized for weekly reporting, it will be penalized accordingly.

c. Timely monitoring and collateralization of public deposit balances. Failing to monitor public deposit balances daily and pledge additional collateral when necessary may result in the Treasury Board taking action, including the actions outlined in subdivisions 2 a (1), 2 a (2), and 2 a (3) of this section.

d. Timely reporting. If a qualified public depository reports late or otherwise fails to report when required, the Treasury Board may take action as it deems necessary.

e. Rating from Treasury Board's designated rating service.

(1) Pooled method: If the depository's rating should fall below average, the collateral requirement will increase to at least 100% of public deposits, net of FDIC coverage, until the rating is again average or above for two consecutive quarters. If the depository's rating should fall into the rating service's lowest rating tier, the Treasury Board may restrict the types of securities the depository may pledge as eligible collateral, or require securities be valued at less than 100%, or both.

(2) Dedicated method: If the depository's rating should fall from one category to another, the collateral requirement will be increased accordingly.

1VAC75-20-140. Criteria for the selection of Eligibility criteria and compliance requirements for escrow agents.

Pursuant to the powers granted to the Treasury Board by § 2.1-362 of the Code of Virginia, the State Treasurer has determined that the selection of an escrow agent or agents is consistent with administration of the Act and the State Treasurer shall define all escrow agent criteria under an agreement labeled "Public Deposit Security Agreement" to be signed and sealed by an authorized officer for the escrow agent, depository and State Treasurer. All escrow agent requirements shall be outlined under a "Master Custodial Agreement" to be signed by an authorized officer for the escrow agent and the State Treasurer, acting on behalf of the Treasury Board. A depository may have no more than one escrow agreement for Virginia public deposits in effect at any given time period. Each depository and The escrow agent is responsible for providing a written notification and executing new agreements upon their its name change. Every qualified public depository shall comply with this section within 60 days of the effective date of this chapter. An escrow agent selected by a qualified public depository for the purpose of holding collateral pledged to the Treasury Board under the Virginia Security for Public Deposits Act (the Act) must meet the following requirements:

1. The escrow agent must sign a "Public Deposit Security Agreement," which shall also be signed by the depository and the State Treasurer, acting on behalf of the Treasury Board.

2. The escrow agent shall hold in a separate account for the Treasury Board eligible collateral pledged under the provisions of the Act and, if acting as escrow for more than one public depository, the collateral must be accounted for in a manner that will allow separate reporting by account and public depository. The escrow shall hold the eligible collateral in a section of the institution which is separate from daily activities performed by that institution such as its trust department and be held accountable for the regulatory requirements of such department.

3. The escrow agent shall be an independent entity in the performance of its duties on behalf of the Treasury Board. The escrow agent may not be the depository itself, its holding company, or any affiliate of the depository.

4. The escrow agent must be able to ascertain whether pledged collateral is eligible in accordance with 1VAC75-20-60. The escrow agent shall distribute all interest, dividends, or other income for the pledged securities to the depository and shall be payable thereto provided the escrow agent has not received written notice from the Treasury Board that the depository is in a condition of "default or insolvency" as defined in the Act, in which event the escrow agent shall hold such income subject to the order of the Treasury Board.

5. The escrow agent shall allow the Treasury Board to examine pledged securities held as collateral at any time, upon 24-hour notice, during the regular business hours of the escrow agent without cost to the Treasury Board. Upon notification from the Treasury Board of the "default or insolvency" of a depository, the escrow agent shall deliver the pledged securities to the Treasury Board for disposition as provided in the Act, and take a receipt thereof, which shall relieve the escrow agent from any further liability to the depository.

6. The escrow agent shall price securities held as collateral at a current market value no older than one business day from the date of a substitution of collateral and from the close of business on the last banking day of the month for monthly reporting purposes.

7. The escrow agent shall adhere to the reporting requirements as detailed in the "Public Deposit Security Agreement."

8. The escrow agent shall allow substitutions in accordance with 1VAC75-20-90.

9. The escrow agent shall ensure that withdrawals of collateral will be in accordance with 1VAC75-20-100.

1. To become an escrow agent, the minimum requirements are that an entity:

a. Be a bank or trust company organized under federal law, Virginia law, or under the laws of another state.

b. Be located in Virginia, meaning it has a main office or branch office in the Commonwealth where deposits are accepted, checks are paid, and money is lent, or where similar services required by an escrow agent under the SPDA Master Custodial Agreement are offered. Existing escrow agents not located in Virginia are grandfathered in.

c. Have an Average or above rating from the Treasury Board's designated rating service for the most recent eight calendar quarters.

d. Cannot be under a formal federal or state bank regulatory enforcement action that would impair its ability to serve as an escrow agent, to be determined on a case by case basis. Banks will be required to disclose to the Treasury Board any such formal enforcement actions currently in force.

e. Be an independent entity in the performance of its duties on behalf of the Treasury Board. The escrow agent may not be the depository itself, its holding company, or any affiliate of the depository.

2. For continued eligibility, compliance requirements are:

a. The escrow agent shall hold in a separate account for the Treasury Board eligible collateral pledged under the provisions of the Act and, if acting as escrow for more than one public depository, a separate account must be opened for each depository. The escrow shall hold the eligible collateral in a section of the institution which is separate from daily activities performed by that institution such as its trust department and be held accountable for the regulatory requirements of such department.

b. The escrow agent must be able to ascertain whether pledged collateral is eligible collateral in accordance with 1VAC75- 20-60.The escrow agent shall distribute all interest, dividends, or other income for the pledged securities to the depository and such income shall be payable thereto provided the escrow agent has not received written notice from the Treasury Board that the depository is in a condition of "default or insolvency" as defined in the Act, in which event the escrow agent shall hold such income subject to the order of the Treasury Board.

c. The escrow agent shall price securities held as collateral at a current market value no older than one business day from the date of a substitution of collateral, as of the close of business on the last day of the month for monthly reporting purposes, and as of the close of business Friday for weekly reporting purposes for depositories using the dedicated method.

d. The escrow agent shall adhere to the reporting requirements as detailed in the "Master Custodial Agreement" and the "Public Deposit Security Agreement."

e. The escrow agent shall allow substitutions in accordance with 1VAC75-20-90.

f. The escrow agent shall ensure that withdrawals of collateral will be in accordance with 1VAC75-20-100.

The State Treasurer, acting on behalf of the Treasury Board, will determine that an escrow agent can meet is eligible based upon the criteria established under this section prior to executing the "Master Custodial Agreement" and the "Public Deposit Security Agreement." The State Treasurer may request information from an escrow agent to substantiate its ability to meet the aforementioned criteria.

In the event an escrow agent violates the requirements of the "Master Custodial Agreement" or the "Public Deposit Security Agreement," the State Treasurer shall notify the escrow agent and applicable public depositories of the violation and require the escrow agent to comply with all terms of the agreement agreements. The escrow agent must provide the State Treasurer and public depositories a written statement, within 30 days of the notification, outlining how and when the violations will be remedied. This statement must be acceptable to the State Treasurer, who will monitor adherence to it. If the escrow agent fails to provide a statement or adhere to it or violates the agreement three times within a two-year period, the State Treasurer will classify such an escrow agent as "disqualified" as an escrow agent under the provisions of the Act and notify all parties its remediation plan or continues to violate the agreements, the Treasury Board may take disciplinary action, up to and including termination of the "Master Custodial Agreement". Qualified public depositories shall have 90 days to select a new escrow agent after such a disqualification in accordance with Treasury Board instructions.

In the event an escrow agent is classified as "disqualified," the term of suspension shall be for one year from the date of disqualification. After "disqualification," an escrow agent must request from the Treasury Board approval to be reinstated as an eligible escrow agent.

After "disqualification," an escrow agent may request approval from the Treasury Board to be reinstated as an eligible escrow agent if correction of prior deficiencies is demonstrated.

1VAC75-20-150. Suspension of authority to receive public deposits.

For failure to comply with or the regulations the Virginia Security for Public Deposits Act (the Act) or this chapter, the Treasury Board may rescind the authority of a qualified public depository to receive further public deposits open new public deposit accounts, or accept new deposits into existing public deposit accounts in accordance with 1VAC75- 20-130 1VAC75-20-130. A depository that continues to hold public deposits after its authority to do so has been rescinded remains fully subject to the provisions of the Act. This includes, without limitation, continuing to meet collateralization and reporting requirements and acting as a qualified public depository for purposes of §§ 2.1-363 2.2-4403 and 2.1-363.1 2.2-4404 of the Code of Virginia.

1VAC75-20-160. Exception reports reportings by public depositors..

Upon receipt of the quarterly public depositor report, as stated outlined in 1VAC75-20-110, public depositors shall notify the State Treasurer of any unresolved discrepancy between the information provided and the public depositors' records. Additionally, public depositors shall verify and confirm to Treasury their account balances as reported by the "Public Fund Accounts" search feature on the Department of the Treasury's website after the end of each quarter to ensure their public funds accounts are being properly reported to the Treasury Board by their qualified public depositories.

FORMS (1VAC75-20)

Public Deposit Security Agreement (and relevant exhibits), # 1001.

Notice of Election to Require Security for Public Deposit, # 1004.

Master Custodial Agreement (filed 1/2022)

Public Deposit Security Agreement (filed 1/2022)

Title of Regulation: 4VAC20-950. Pertaining to Black Sea Bass (amending 4VAC20-950-20, 4VAC20-950-45).

Statutory Authority: § 28.2-201of the Code of Virginia.

Effective Date: January 27, 2022.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23551, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments remove the February recreational black sea bass season.

4VAC20-950-20. Definitions.

The following words and terms when used in this chapter shall have the following meaning unless the context clearly indicates otherwise.

"Annual quota" means Virginia's 15.88% share of the annual coastwide commercial black sea bass quota managed by the Atlantic States Marine Fisheries Commission.

"Black sea bass" means any fish of the species Centropristis striata.

"Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans, or other marine seafood on board any boat or vessel; (ii) begin offloading finfish, shellfish, crustaceans, or other marine seafood; or (iii) offload finfish, shellfish, crustaceans, or other marine seafood.

"Recreational vessel" means any vessel, kayak, charter vessel, or headboat fishing recreationally.

"Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.

"Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, excluding the caudal fin filament, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.

"Virginia Saltwater Fisherman's Journal" means the online web-based resource provided by the Marine Resources Commission to report recreational harvest of seafood at https://www.vasaltwaterjournal.com.

4VAC20-950-45. Recreational possession limits and seasons.

A. It shall be unlawful for any person fishing with hook-and-line, rod and reel, spear, gig, or other recreational gear to possess more than 15 black sea bass. When fishing from a recreational vessel where the entire catch is held in a common hold or container, the possession limit shall be for that vessel and shall be equal to the number of persons on board legally licensed to fish, multiplied by 15. The captain or operator of the vessel shall be responsible for that vessel possession limit. Any black sea bass taken after the possession limit has been reached shall be returned to the water immediately.

B. Possession of any quantity of black sea bass that exceeds the possession limit described in subsection A of this section shall be presumed to be for commercial purposes.

C. The open recreational fishing season shall be from February 1 through the last day of February, May 15 through May 31, and June 16 through December 31.

D. It shall be unlawful for any person fishing recreationally to take, catch, or possess any black sea bass, except during an open recreational season.

E. From February 1 through the last day of February, it shall be unlawful for any person to possess or land any black sea bass harvested from a recreational vessel, unless the captain or operator of that recreational vessel has obtained a Recreational Black Sea Bass Permit from the Marine Resources Commission.

1. The captain or operator shall be responsible for reporting for all anglers on the recreational vessel and shall provide that captain's or that operator's Marine Resources Commission identification (MRC ID) number, the date of fishing, the number of persons on board, the mode of fishing, and the number of black sea bass kept or released. That report shall be submitted to the Marine Resources Commission (commission) on forms provided by the commission or through the Virginia Saltwater Fisherman's Journal.

a. It shall be unlawful for any permittee to fail to report each trip where black sea bass were targeted, whether black sea bass were harvested, released, or not caught, by March 15 of the current calendar year.

b. It shall be unlawful for any permittee who did not take any fishing trips to target black sea bass in the February recreational black sea bass season to fail to report lack of participation by March 15 of the current calendar year.

2. It shall be unlawful for any permittee to fail to contact the Law Enforcement Operations at 1-800-541-4646 before or immediately after the start of each fishing trip. The permittee shall provide the Law Enforcement Operations with the permittee's name, MRC ID number, the point of landing, a description of the vessel, estimated return to shore time, and a contact phone number.

3. Any permittee shall allow the commission to sample the vessel's catch to obtain biological information for scientific and management purposes.

Titles of Regulations: 4VAC25-11. Public Participation Guidelines (amending 4VAC25-11-10, 4VAC25-11-20, 4VAC25-11-120).

4VAC25-20. Board of Coal Mining Examiners Certification Requirements (amending 4VAC25-20-15, 4VAC25-20-50, 4VAC25-20-70, 4VAC25-20-90, 4VAC25-20-140, 4VAC25-20-180, 4VAC25-20-185, 4VAC25-20-190, 4VAC25-20-200, 4VAC25-20-210, 4VAC25-20-220, 4VAC25-20-360, 4VAC25-20-370, 4VAC25-20-410, 4VAC25-20-420).

4VAC25-31. Reclamation Regulations for Mineral Mining (amending 4VAC25-31-10, 4VAC25-31-30, 4VAC25-31-40, 4VAC25-31-120, 4VAC25-31-130, 4VAC25-31-150, 4VAC25-31-160, 4VAC25-31-170, 4VAC25-31-180, 4VAC25-31-200, 4VAC25-31-220 through 4VAC25-31-250, 4VAC25-31-280, 4VAC25-31-310, 4VAC25-31-320, 4VAC25-31-430, 4VAC25-31-500, 4VAC25-31-570).

4VAC25-35. Certification Requirements for Mineral Miners (amending 4VAC25-35-5, 4VAC25-35-30, 4VAC25-35-110, 4VAC25-35-120).

4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-10, 4VAC25-40-25, 4VAC25-40-270, 4VAC25-40-300, 4VAC25-40-5760).

4VAC25-70. Regulations Governing Disruption of Communications in Mines (amending 4VAC25-70-10).

4VAC25-90. Regulations Governing the Use of Diesel-Powered Equipment in Underground Coal Mines (amending 4VAC25-90-10, 4VAC25-90-70).

4VAC25-101. Regulations Governing Vertical Ventilation Holes and Mining Near Gas and Oil Wells (amending 4VAC25-101-10, 4VAC25-101-50, 4VAC25-101-150, 4VAC25-101-160, 4VAC25-101-190, 4VAC25-101-200).

4VAC25-110. Regulations Governing Blasting in Surface Mining Operations (amending 4VAC25-110-10, 4VAC25-110-210). 4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-130. Coal Surface Mining Reclamation Regulations (amending 4VAC25-130-700.1, 4VAC25-130-700.2, 4VAC25-130-700.3, 4VAC25-130-700.5, 4VAC25-130-700.11, 4VAC25-130-700.14, 4VAC25-130-701.11, 4VAC25-130-702.11, 4VAC25-130-702.17, 4VAC25-130-705.24, 4VAC25-130-740.15, 4VAC25-130-761.1, 4VAC25-130-761.3, 4VAC25-130-761.12, 4VAC25-130-761.16, 4VAC25-130-762.14, 4VAC25-130-764.13, 4VAC25-130-764.19, 4VAC25-130-773.13, 4VAC25-130-773.15, 4VAC25-130-774.12, 4VAC25-130-775.11, 4VAC25-130-775.13, 4VAC25-130-780.18, 4VAC25-130-784.13, 4VAC25-130-784.20, 4VAC25-130-789.1, 4VAC25-130-790.1, 4VAC25-130-790.11, 4VAC25-130-795.1, 4VAC25-130-800.16, 4VAC25-130-800.21, 4VAC25-130-800.40, 4VAC25-130-800.51, 4VAC25-130-800.52, 4VAC25-130-801.11, 4VAC25-130-801.17, 4VAC25-130-801.18, 4VAC25-130-816.76, 4VAC25-130-840.11, 4VAC25-130-840.14, 4VAC25-130-840.16, 4VAC25-130-842.12, 4VAC25-130-842.15, 4VAC25-130-843.11, 4VAC25-130-843.12, 4VAC25-130-843.13, 4VAC25-130-843.15, 4VAC25-130-843.16, 4VAC25-130-845.2, 4VAC25-130-845.15, 4VAC25-130-845.18, 4VAC25-130-845.19, 4VAC25-130-84614, 4VAC25-130-850.15, 4VAC25-130-882.13).

4VAC25-145. Regulations on the Eligibility of Certain Mining Operators to Perform Reclamation Projects (amending 4VAC25-145-10, 4VAC25-145-20, 4VAC25-145-30).

4VAC25-150. Virginia Gas and Oil Regulation (amending 4VAC25-150-10, 4VAC25-150-20, 4VAC25-150-40, 4VAC25-150-80, 4VAC25-150-90, 4VAC25-150-100, 4VAC25-150-110, 4VAC25-150-120, 4VAC25-150-130, 4VAC25-150-140 through 4VAC25-150-180, 4VAC25-150-220, 4VAC25-150-290, 4VAC25-150-365, 4VAC25-150-410, 4VAC25-150-435, 4VAC25-150-470, 4VAC25-150-480, 4VAC25-150-510, 4VAC25-150-560, 4VAC25-150-590, 4VAC25-150-620).

4VAC25-160. Virginia Gas and Oil Board Regulations (amending 4VAC25-160-10 through 4VAC25-160-80, 4VAC25-160-100, 4VAC25-160-120 through 4VAC25-160-150, 4VAC25-160-190, 4VAC25-160-200).

4VAC25-165. Regulations Governing the Use of Arbitration to Resolve Coalbed Methane Gas Ownership Disputes (amending 4VAC25-165-10, 4VAC25-165-30 through 4VAC25-165-60, 4VAC25-165-80, 4VAC25-165-90, 4VAC25-165-100, 4VAC25-165-120, 4VAC25-165-130).

4VAC25-170. Geothermal Energy Regulations (amending 4VAC25-170-10, 4VAC25-170-30, 4VAC25-170-40, 4VAC25-170-60).

Statutory Authority: § 45.2-103 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 16, 2022.

Effective Date: March 31, 2022.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TDD (800) 828-1120, or email mike.skiffington@energy.virginia.gov.

Basis: The Department of Energy's regulatory authority for this action can be found in § 45.2-103 of the Code of Virginia.

Purpose: The purpose of this regulatory action is to ensure all references to the agency name and citations of the Code of Virginia are up to date and accurate. It is in the best interest of the public's welfare for regulation and statute to conform.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because no substantive changes are proposed. The action merely updates regulations to conform to statute.

Substance: There are no substantive changes made to the regulations. The proposed changes conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and make other technical updates to conform to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodified Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia.

Issues: The primary advantage of this regulatory action is ensuring the agency's regulations are up to date and conform to statute. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to legislation from the 2021 Special Session I, the Department of Energy proposes to amend in its regulations: 1) the name of the agency and two of its divisions, and 2) citations to the Code of Virginia.

Background. Chapter 532 of the 2021 Special Session I Acts of Assembly² renamed the Department of Mines, Minerals and Energy as the Department of Energy (NRG). Within NRG, the legislation renamed the Division of Mined Land Reclamation as the Division of Mined Land Repurposing, and the Division of Energy as the Division of Renewable Energy and Energy Efficiency. NRG proposes to amend its regulations to reflect these name changes.

Chapter 387 of the 2021 Special Session I Acts of Assembly³ recodified Titles 45.1 and 67 of the Code of Virginia, which pertain to NRG, into the new Title 45.2. NRG proposes to update Code of Virginia citations in its regulations to reflect Title 45.2.

Estimated Benefits and Costs. The proposed amendments would have no impact on requirements in practice, but may be beneficial in that readers of the regulations would be better informed concerning the proper names of the agency and its divisions, and may more easily find relevant sections of the Code of Virginia.

Businesses and Other Entities Affected. The proposed amendments affect readers of the agency's regulations. It would particularly affect those seeking relevant sections of the Code of Virginia.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. No adverse impact is indicated for this proposal.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities and do not introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

________________________________________

¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0532

³See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0387

⁴Pursuant to Code § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶If the proposed regulatory action may have an adverse effect on small businesses, Code § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department of Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and (ii) correct citations to the Code of Virginia and other technical updates to conform regulations to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodifies Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia. No substantive amendments are made.

4VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Mines, Minerals and Energy. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Mines, Minerals and Energy, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

4VAC25-11-120. Agency secretary for purpose of appeal.

For appeals of regulatory or case decisions, pursuant to Rule 2A:2 of the Rules of the Supreme Court of Virginia, the agency herein names individuals to perform the function of agency secretary.

1. For appeals relating to Chapter 14.2 (§ 45.1-161.7 et seq.), 14.3 (§ 45.1-161.105 et seq.), 14.4 (§ 45.1-161.253 et seq.) or 18 (§ 45.1-221 et seq.) of Title 45.1 5 (§ 45.2-500 et seq.), 7 (§ 45.2-700 et seq.), 8 (§ 45.2-800 et seq.), or 9 (§ 45.2-900 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mines (Chief) shall perform the functions of agency secretary.

2. For appeals relating to Chapter 14.4:1 (§ 45.1-161.292:1 et seq.), 14.5 (§ 45.1-161.293 et seq.), 14.6 (§ 45.1-161.304 et seq.), 16 (§ 45.1-180 et seq.), 18.1 (§ 45.1-225.1 et seq.) or 21 (§ 45.1-272 et seq.) of Title 45.1 11 (§ 45.2-1100 et seq.), 12 (§ 45.2-1200 et seq.), 13 (§ 45.2-1300 et seq.), 14 (§ 45.2-1400 et seq.), or 15 (§ 45.2-1500 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary.

3. For appeals relating to Chapter 15.1 (§ 45.1-179.1 et seq.) or 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 16 (§ 45.2-1600 et seq.) or 20 (§ 45.2-2000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary.

4. For appeals relating to Chapters 17 (§ 45.1-198 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 Chapter 10 ( § 45.2-1000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mined Land Reclamation Repurposing (division director) shall perform the functions of agency secretary.

4VAC25-20-15. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise:

"Appropriately related work experience" means work experience which demonstrates the applicant's skill and level of responsibility in performing tasks and prepares and equips him to perform in the capacity of a certified person.

"BCME" means Board of Coal Mining Examiners.

"Chief" means the Chief of the Division of Mines.

"DMME Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines.

"DMLR" means Division of Mined Land Reclamation Repurposing.

"EMT" means emergency medical technician.

"GCM" means general coal miner.

"MSHA" means the Mine Safety and Health Administration.

"Virginia coal mine safety regulations" means 4VAC25-60 through 4VAC25-125.

4VAC25-20-50. Underground mine foreman.

A. Applicants shall possess five years mining experience, three of which shall be underground, and shall pass the underground mine foreman, map, and gas detection examinations.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college or two years credit for a degree in mining technology.

C. Applicants shall be at least 23 years of age.

D. Certified mine foremen shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

E. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete an underground mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

F. The underground mine foreman shall complete at least four hours of continuing education every two years.

G. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of underground mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia underground coal mines.

H. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

I. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

J. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-70. Surface mine foreman.

A. Applicants shall possess five years of surface coal mining experience.

B. Applicants shall pass the surface mine foreman, first aid, and gas detection examinations.

C. Certified persons shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

D. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete a surface mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

E. The surface mine foreman shall complete at least four hours of continuing education every two years.

F. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of surface mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia surface coal mines.

G. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

H. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

I. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-90. Underground shot firer.

A. Applicants shall possess two years coal mining experience underground, one year of the two years shall have included handling and using explosives underground under the direction of a certified underground shot firer, or appropriately related work experience approved by the chief.

B. Applicants shall pass the underground shot firer and gas detection examinations.

C. Beginning August 25, 2005, a certified underground shot firer must be recertified every five years by:

1. Presenting written proof that he has performed underground blasting duties in his work during two of the last three years immediately preceding the expiration date;

2. Retaking and passing the underground shot firer examination; or

3. Presenting verification of completion of underground mine foreman or other continuing education that included underground blasting safety training.

D. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-140. Hoisting engineer.

A. Applicants shall possess two years of practical mining experience and one year of hoisting experience under the direction of a certified hoisting engineer or appropriately related work experience approved by the chief. A certified hoisting engineer shall verify the hoisting experience.

B. The applicant shall pass the hoisting engineer and gas detection examinations.

C. After the examination has been successfully completed, the applicant shall obtain written permission from a mine official to have a representative from the division observe the applicant's operation of hoisting equipment at the mine. Permission shall be on company stationery, signed by the company official, and submitted to the division.

D. A certified hoisting engineer may act as an automatic elevator operator after completing the on-site demonstration required by 4VAC25-20-240 C.

E. A hoisting engineer must be recertified every five years by:

1. Presenting written proof that he has performed hoisting engineer duties in his work during two of the last three years immediately preceding the expiration date; or

2. Retaking and passing the practical demonstration section of the hoisting engineer examination and meeting requirements of subsection C of this section.

F. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-180. Underground mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Underground Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-50 for underground mine foreman.

E. Applicants shall pass the underground mine inspector examination.

F. A certificate will not be issued until an applicant is employed by the DMME department and shall only remain valid while the person is employed by the department.

4VAC25-20-185. Surface mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Surface Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-70 for surface mine foreman.

E. Applicants shall pass the surface mine inspector examination.

F. A certificate will not be issued until an applicant is employed by DMME the department and shall only remain valid while the person is employed by the department.

G. Applicants who already possess a valid underground mine inspector certification pursuant to 4VAC25-20-180 shall be deemed to have met the requirements of this section.

4VAC25-20-190. Underground diesel engine mechanic.

A. All maintenance work performed on diesel engines used to power equipment in underground coal mines shall be performed by, or under the direct supervision of, a person possessing a Diesel Engine Mechanic Certificate issued by the BCME. In addition, no operator of an underground coal mine in the Commonwealth of Virginia may use diesel-powered equipment in the mine without first employing a diesel engine mechanic who is certified by the BCME.

B. "Maintenance" shall include all of the tasks required to be performed routinely to ensure that the engine exhaust emissions conform with the requirements of the laws and regulations of Virginia and MSHA, and with the maintenance recommendations of the manufacturer of the engine.

C. Applicants shall possess six months experience as a diesel engine mechanic, complete a diesel engine mechanic course approved by the division, or possess appropriately related work experience approved by the chief. A one-year diesel engine mechanic program approved by the division may be substituted for the diesel engine mechanic experience.

D. Applicants shall pass the underground diesel engine mechanic, first aid, and gas detection examinations.

E. The initial training course for diesel engine mechanics shall include at least 32 hours of classroom instruction and be taught by a certified instructor.

F. To qualify for approval by the chief, the content of the initial training course for diesel engine mechanics shall include, but is not limited to:

1. Diesel engine principles;

2. Diesel fuel and fuel systems;

3. Engine exhaust systems;

4. State and federal diesel laws and regulations;

5. Safe use of equipment;

6. Emission controls, testing procedures and recordkeeping; and

7. Protection of health of workers exposed to diesel equipment.

G. The annual continuing education course for diesel engine mechanics shall include at least four hours of classroom instruction and be taught by a certified instructor.

H. The content of the continuing education course shall include, but not be limited to:

1. Diesel technology;

2. State and federal diesel laws and regulations;

3. Safe use of equipment;

4. Protection of the health of workers exposed to diesel equipment; and

5. Required emission test procedures and recordkeeping.

I. A Diesel Engine Mechanic Certificate shall remain valid until December 31 following the anniversary date of the initial training, providing the certification requirements are met, unless the certificate is revoked by the BCME.

J. The holder of the certificate shall renew the certificate by satisfactorily completing a diesel engine mechanic continuing education course approved by the chief and taught by a certified instructor.

K. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed before the expiration of the card.

L. Failure to complete the required education shall result in suspension of certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, then the certification shall be revoked by the BCME.

M. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-200. Diesel engine mechanic instructor.

A. Applicants shall have teaching experience and be a certified diesel engine mechanic or possess appropriately related work experience approved by the chief.

B. Applicants shall maintain the certificate by teaching at least one approved diesel engine mechanic course every two years or at least one approved diesel engine mechanic continuing education course every year.

C. Documentation shall be submitted to the division indicating the required teaching has been completed.

D. Failure to complete the required teaching shall result in suspension of the certification. Applicants may meet the teaching requirement by teaching under the supervision of a certified diesel mechanic engine instructor. If the teaching requirement is not met one year from suspension, then the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-210. Advanced first aid.

A. Applicants shall complete a 24-hour advanced first aid class, at minimum, taught by a certified advanced first aid instructor or possess appropriately related work experience approved by the chief and pass the advanced first aid examination.

B. Approved advanced first aid classes shall cover the following subjects:

1. Introduction to first aid;

2. Respiratory emergencies and cardiopulmonary resuscitation; i.e., heart saver or other four-hour equivalent;

3. Removal of foreign bodies from the throat (the Heimlich Maneuver);

4. Wounds;

5. Shock;

6. Specific injuries including head and chest;

7. Contamination, infection, and prevention;

8. Burns;

9. Cold exposure and frost bite;

10. Bone and joint injuries;

11. Dressings and bandages;

12. Sudden illness;

13. Emergency underground rescue and transfer;

14. Unusual rescue situations related to mining;

15. Poisoning, toxic and hazardous materials;

16. Transportation of victims; and

17. Heat exposure.

C. An advanced first aid certification in good standing with the BCME shall remain valid until the last day of the month following the anniversary date of the initial or continuing education training. Certified persons shall complete four hours continuing education annually, which is taught by a certified advanced first aid instructor, to maintain their advanced first aid card. This continuing education requirement shall include documented annual training in CPR and recertification every two years.

D. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed.

E. Applicants holding a valid EMT card or EMT first responder card, shall be deemed eligible to receive advanced first aid certification without having to complete the initial advanced first aid class or without passing the advanced first aid examination. All applicants shall complete eight hours of continuing education. The advanced first aid certification shall start on the day the applicant's EMT certification or EMT first responder certification expires.

F. Failure to complete required continuing education shall result in suspension of the certification pending completion of the continuing education. If the continuing education requirement is not met within one year from the suspension date, then the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-220. Advanced first aid instructor.

A. Applicants shall be certified as an advanced first aid instructor by the American Red Cross, National Safety Council, Virginia Office of Emergency Medical Services, or as otherwise approved by the chief. Applicants shall also be certified in cardiopulmonary resuscitation by the American Heart Association, the American Red Cross, or other training programs approved by the Virginia Office of Emergency Medical Services and approved by the chief. Advanced first aid instructors must use the materials and training aids necessary to deliver the skills and training associated with advanced first aid.

B. The holder of the certificate shall submit documentation to the division indicating that they have continued their certification as required by subsection A of this section or by teaching one initial or refresher first aid training course for DMME the department within a two-year period.

C. Failure to maintain a certified advanced first aid instructor's certification will result in suspension of the applicant's BCME certification. Applicants may meet the teaching requirement by teaching under the supervision of an advanced first aid instructor. If the certification is not renewed within one year from the suspension date, then the certification shall be revoked by the BCME.

D. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-360. Purpose and scope.

A. Section 45.1-161.35 A Section 45.2-528 of the Code of Virginia provides for on-site examination of an underground mine foreman by a mine inspector to determine that the foreman has a thorough understanding of the roof control plan and ventilation for the area of the mine for which he is responsible. The procedures followed by the inspector in conducting an on-site examination of an underground mine foreman must be consistent with requirements in Part IV (4VAC25-20-340 et seq.) of this chapter. This includes the use of questions approved by the board which are administered in accordance with this chapter.

B. The purpose of examining an underground mine foreman is to measure and evaluate his knowledge and understanding of mine roof control and ventilation for the areas of his responsibility. Underground mine foremen are required to demonstrate this and other elements of mine safety when they become certified to act as mine foremen in the Commonwealth of Virginia.

C. An on-site examination by the mine inspector will only be initiated when there is just cause that the underground mine foreman has failed to maintain safe roof control and ventilation for his area of responsibility at the mine. Just cause for an on-site examination of an underground mine foreman by a mine inspector must be based on issuance of an order of closure or violation related to a hazardous condition pertaining to roof control or ventilation.

4VAC25-20-370. Determination by the inspector to conduct an on-site examination.

A. An order of closure issued in accordance with § 45.1-161.91 § 45.2-569 of the Code of Virginia, or notice of violation issued in accordance with § 45.1-161.90 § 45.2-568 of the Code of Virginia that relate to roof control or ventilation hazards, shall be reviewed at the time it is issued for evidence of underground mine foreman negligence, which could require on-site examination of the mine foreman by the mine inspector. In making the determination whether or not to conduct an on-site examination, the mine inspector must establish the following:

1. The roof or ventilation hazards cited resulted from performing his duties with less than ordinary care. Ordinary care means the use of such care as a reasonably prudent and careful underground mine foreman could use under similar circumstances.

2. The underground mine foreman knew or should have known of the existence of the hazardous condition.

B. When these criteria have been established, the mine inspector will undertake an on-site examination of the underground mine foreman.

4VAC25-20-410. Prehearing procedures.

A. Any person wishing to bring any matter before the board shall use these procedures except for good cause shown before the board.

B. Petitions for action by the board shall be in writing, shall state the grounds for the petition before the board, shall state the relief sought, and shall include any applicable supporting material, as set out below:

1. For certification to be revoked in accordance with § 45.1-161.35 B § 45.2-528 of the Code of Virginia, the petitioner or petitioners shall submit specific charges, which set forth the reasons why the certification should be revoked.

2. To request a reexamination for a certificate revoked pursuant to § 45.1-161.35 § 45.2-528 of the Code of Virginia, the holder of the revoked certificate shall submit a request for reexamination with evidence that the cause for revocation of his certificate has ceased to exist.

3. For other petitions before the board, the petitioner shall submit a written petition explaining the request being made and the relief being sought.

C. The division shall assign a docket number to all petitions before the board. The division shall provide written notice to all parties to any proceeding in accordance with § 45.1-161.35 D § 45.2-528 of the Code of Virginia and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

D. Persons wishing to address the board, except those making a petition for board action, will be provided an opportunity at the conclusion of the board meeting.

E. Persons shall make any request for change to the board's regulations in accordance with the DMME department's and the board's Public Participation Guidelines, 4VAC25-10 4VAC25-11.

4VAC25-20-420. Conduct of formal hearings.

A. All hearings shall be heard during scheduled meetings of the board, on a case-by-case basis, in the order the petitions appear on the docket.

B. Hearings shall be held in the DMME, department's Big Stone Gap office, unless a different location is agreed to by mutual consent of the parties to the hearing and the Chairman of the BCME.

C. Hearings requiring case decisions shall be recorded.

D. Each party has the right to be represented by legal counsel.

E. The chairman, with the concurrence of the majority of the board present at a hearing, shall have the authority to limit evidence to that relevant to the issues. Any proofs, rebuttal, and cross examination which are immaterial, insubstantial, privileged, or repetitive may be excluded.

F. The chairman may continue, adjourn and reconvene the hearing as necessary.

G. Decisions of the board shall be made based on a preponderance of the evidence placed before it.

4VAC25-31-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acre-foot" means a unit of volume equal to 43,560 cubic feet or 325,853 gallons. One acre-foot of water is equivalent to one acre covered by water one foot deep.

"Berm" means a stable ridge of material used in reclamation for the control of sound and surface water, safety, aesthetics, or such other purpose as may be applicable.

"Critical areas" means problem areas such as those with steep slopes, easily erodible material, hostile growing conditions, concentration of drainage or other situations where revegetation or stabilization will be potentially difficult.

"Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his designee.

"Division" means the Division of Mineral Mining.

"Fifty-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as a probability that there is a 2.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 50-year, 24-hour storm occurs when the total 50-year storm rainfall occurs in a 24-hour period.

"Inert waste" means brick, concrete block, broken concrete, and uncontaminated minerals or soil.

"Intermittent stream" means a stream that contains flowing water for extended periods during a year, but does not carry flows at all times.

"Internal service roads" means roads that are to be used for internal movement of raw materials, soil, overburden, finished, or in-process materials within the permitted area, some of which may be temporary.

"Natural drainageway" means any natural or existing channel, stream bed, or watercourse that carries surface or ground water.

"One hundred-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as a probability that there is a 1.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 100-year, 24-hour storm occurs when the total 100-year storm rainfall occurs in a 24-hour period.

"On-site generated mine waste" means the following items generated by mineral mining or processing activities taking place on the permitted mine site:

Drill steel	Tree stumps/land clearing debris
Crusher liners	Large off-road tires
Conveyor belting	Scrap wood or metal
Steel cable	Steel reinforced air hoses
Screen cloth	Broken concrete or block
Punch plate	V-belts

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permitted area" means the area within the defined boundary shown on the application map including all disturbed land area, and areas used for access roads and other mining-related activities.

"Principal access roads" means roads that are well-defined roads leading from scales, sales offices, or loading points to a public road.

"Probable maximum flood (PMF)" means the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF is derived from the current probable maximum precipitation (PMP) available from the National Weather Service, National Oceanic and Atmospheric Administration. In some cases local topography or meteorological conditions will cause changes from the generalized PMP values; therefore, it is advisable to contact local, state, or federal agencies to obtain the prevailing practice in specific cases.

"Qualified person" means a person who is suited by training or experience for a given purpose or task.

"Regrade" or "grade" means to change the contour of any surface.

"Riparian buffer" means an area of trees, shrubs, or other vegetation that is managed to maintain the integrity of the stream channel and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.

"Sediment" means undissolved organic or inorganic material transported or deposited by water.

"Sediment basin" means a basin created by the construction of a barrier, embankment, or dam across a drainageway or by excavation for the purpose of removing sediment from the water.

"Spillway design flood (SDF)" means the largest flood that needs be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Where a range of SDF is indicated, the magnitude that most closely relates to the involved risk should be selected.

"Stabilize" means any method used to prevent movement of soil, spoil piles, or areas of disturbed earth. This includes increasing bearing capacity, increasing shear strength, draining, compacting, rip-rapping, vegetating or other approved method.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Ten-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as a probability that there is a 10% chance that the storm magnitude may be equaled or exceeded in any given year. A 10-year 24-hour storm occurs when the total 10-year storm rainfall amount occurs in a 24-hour period.

"Top soil" means the surface layer and its underlying materials that have properties capable of producing and sustaining vegetation.

4VAC25-31-30. Compliance.

The permittee shall comply fully with the requirements of Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and this regulation and shall further ensure compliance by all employees, contractors, or other persons performing mining or reclamation activities.

4VAC25-31-40. Modifications.

The division may approve modifications or amendments to any drainage, reclamation and operation plan required under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and provisions of these regulations. All modifications or amendments shall be valid only when approved in writing.

4VAC25-31-120. Permit fee and bond.

A. Permit fees for the initial permit application and permit renewal shall be submitted upon receipt of a billing notice from the director and before the permit is issued or renewed. Fees shall be paid in accordance with § 45.1-181 § 45.2-1205 of the Code of Virginia.

B. Permit fees for the transfer of a mine permit shall be submitted upon receipt of a billing notice from the director and before the transferred permit is issued. Fees shall be paid in accordance with § 45.1-184.2 § 45.2-1211 of the Code of Virginia.

C. All fees shall be in the form of cash, check, money order, or other form of payment acceptable to the director.

D. A bond is required as set forth in Part III of this regulation. Bonding shall be provided once the permit application is deemed complete.

4VAC25-31-130. Mineral mining plans.

Mineral mining plans shall be attached to the application and consist of the following:

1. The operation plan shall include a description of the proposed method of mining and processing; the location of top soil storage areas; overburden, refuse, and waste disposal areas; stockpiles, equipment storage, and maintenance areas; cut and fill slopes; and roadways. The operation plan shall address plans for the storage and disposal of scrap metal, scrap tires, used lubricants, coolants, and other equipment service products, batteries, process chemicals, trash, debris, and other hazardous materials. The operation plan shall also include all related design and construction data. The method of operation shall provide for the conducting of reclamation simultaneously where practicable with the mining operation. For the impoundments that meet the criteria of § 45.1-225.1 A § 45.2-1301 A of the Code of Virginia, plans shall be provided as required under 4VAC-25-31-180 and 4VAC25-31-500.

2. The drainage plan shall consist of a description of the drainage system to be constructed before, during, and after mining; a map or overlay showing the natural drainage system; and all sediment and drainage control structures to be installed along with all related design and construction data.

3. The reclamation plan shall include a statement of the planned land use to which the disturbed land will be returned through reclamation, the proposed actions to assure suitable reclamation, and a time schedule for reclamation. The method of grading; removal of metal, lumber, and debris, including processing equipment; buildings; and other equipment relative to the mining operation and revegetation of the disturbed area shall be specified. Reclamation plans for underground mines shall include plans for closing or securing all entrances to underground workings.

4. Adequate maps, plans and cross sections, and construction specifications shall be submitted to demonstrate compliance with the performance standards of Part IV (4VAC25-31-330 et seq.) of this chapter and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia. Designs, unless otherwise specified, shall be prepared by a qualified person, using accepted engineering design standards and specifications.

5. A copy of the Virginia Department of Transportation land use permit for roads that connect to public roads.

6. If mining below the water table is to take place, the following conditions apply:

a. The application shall contain an assessment of the potential for impact on the overall hydrologic balance from the proposed operations to be conducted within the permitted area for review and approval.

b. A plan for the minimization of adverse effects on water quality or quantity shall be prepared based on the assessment in subdivision 6 a of this section and included in the application.

c. Permanent lakes or ponds created by mining shall be equal to or greater than four feet deep or otherwise constructed in a manner acceptable to the director.

4VAC25-31-150. Maps.

A. Maps shall be supplied as described in §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia and in this chapter that show the total area to be permitted and the area to be affected in the next ensuing year (with acreage calculated).

B. Preparation of maps.

1. All application, renewal, and completion maps shall be prepared and certified under the direction of a professional engineer, licensed land surveyor, licensed geologist, issued by a standard mapping service, or prepared in such a manner as to be acceptable to the director.

2. If maps are not prepared by the applicant, the certification of the maps shall read as follows: "I hereby certify that this map is correct and shows to the best of my knowledge and belief, all the information required by the mineral mining laws and regulations of the DMME Department of Energy."

3. The applicant shall submit a general location map showing the location of the mine, such as a county highway map or equivalent, in the initial application.

4. Sensitive features within 500 feet of the permit boundary including state waters, cemeteries, oil and gas wells, underground mine workings, public utilities and utility lines, buildings, roads, schools, churches, and occupied dwellings shall be shown.

5. All properties, and their owners, within 1,000 feet of the permit boundary shall be identified in the initial application.

6. Wetlands that have been previously delineated shall be shown within the permit boundary.

7. Riparian buffers that have been previously delineated shall be shown within the permit boundary.

C. Map code and legend.

1. A color code as prescribed by the director shall be used in preparing the map.

2. Graphic symbols may be used to represent the different areas instead of a color-coded map.

3. The map shall include a legend that shows the graphic symbol or color code and the acreage for each of the different areas.

4VAC25-31-160. Legal right.

A. A statement of the source of the legal right of the applicant to enter and conduct operations on the land proposed to be covered by the permit as noted in § 45.1-181 § 45.2-1205 of the Code of Virginia shall be submitted to the division. In addition, the applicant shall submit proof of right of entry, which shall consist of a copy of the lease or deed, or names of parties to the lease or deed, date of execution, and recording information.

B. On the permit application, the applicant shall disclose any type of mining permit, revocations, security deposited in lieu of bond that has been revoked or forfeited, and bond forfeitures in Virginia or any other state with which he or any individual, corporation, trust, partnership, association, or other legal entity with which he has or has had control or common control.

4VAC25-31-170. Permit application notifications.

A. The applicant shall notify the following parties of a new permit application via certified mail:

1. Property owners within 1,000 feet of the permit boundary.

2. The Chief Administrative Official of the local political subdivision where the prospective mining operation would take place.

3. All public utilities on or within 500 feet of permit boundary.

B. All notifications shall contain:

1. The name of the permit applicant issuing notice and the date of notification;

2. The permit applicant's address, phone number, and other contact information as available;

3. The name and address of the property owner, chief administrative official, or utility receiving the notification;

4. A statement as required by § 45.1-184.1 § 45.2-1210 of the Code of Virginia to property owners that requires land owners within 1,000 feet of the permit boundary to be notified that the operator is seeking a mining and reclamation permit from the Department of Mines, Minerals and Energy. The statement shall also note that the mining permit must address department requirements for regrading, revegetation, and erosion controls of mineral mine sites;

5. The location of the proposed mine, the city or county in which it is located, the distance of the nearest town or other easily identified landmark, and the tax map identification number of the parcels to be permitted; and

6. A notice that informs property owners within 1,000 feet of the permit boundary that they have 10 days from receipt of the permit notification to specify written objections or request a hearing. This request shall be in writing and shall be sent to the division. The current address for the division shall be provided on the notification.

C. No permit will be issued until at least 15 days after receipt of the application by the division. If all persons required to receive notice have issued a statement of no objection, the permit may be issued in less than 15 days.

D. Copies of all permit notifications shall be submitted to the division at the time they are mailed to the parties identified in subsection A of this section.

E. Documentation of certified mail receipts of the notifications described in this section shall be included with the permit application.

4VAC25-31-180. Impoundments.

The design data and construction plans and specifications for impoundments meeting the criteria set forth in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia shall be submitted to the director prior to initiation of construction activities. Such a plan shall be certified as prepared by, or under the supervision of, a registered professional engineer and shall include:

1. Design and construction specifications;

2. Examination and monitoring;

3. Emergency procedures; and

4. Closure and abandonment plans.

4VAC25-31-200. Exemption for restricted mining.

Any operator engaging in mining and disturbing less than a total of one acre of land and removing less than a total of 500 tons of minerals, is exempt from all mining permit fees, renewal fees and bonding requirements in this chapter. The mining operator shall submit an application for a permit, a sketch of the mining site, and an operations plan, which shall be adhered to in accordance with §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia.

4VAC25-31-220. Requirements for bonding of mineral mines.

A. Once the permit application is deemed complete, the applicant shall submit a bond or bonds on a form meeting the requirements in 4VAC25-31-220 through 4VAC25-31-270, made payable to the department and conditioned upon the satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

B. The bond or bonds shall cover the entire area presently disturbed by mining plus the estimated number of acres to be disturbed in the upcoming year.

C. As additional areas outside the bonded acreage are to be disturbed to facilitate the mining operation, the permittee shall file a bond or bonds to cover the acreage with the division.

D. Bond shall be posted and accepted by the division prior to disturbing an area for mining-related activity.

E. Permitted operators shall certify annually with the permit renewal the type, current insurer or bank, and the amount of all reclamation bonds.

4VAC25-31-230. Period of liability.

A. The bond liability shall be for the duration of the mineral mining operation and for the period following reclamation, which is necessary to demonstrate the success of the final reclamation.

B. In lieu of the requirements of 4VAC25-31-240 through 4VAC25-31-270, a permittee accruing five years of satisfactory operation under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 of the Code of Virginia shall be required to enter the Minerals Reclamation Fund as established in Article 4 (§ 45.1-197.8 § 45.2-1234 et seq.) of Chapter 16 12 of Title 45.1 45.2 of the Code of Virginia and 4VAC25-31-320. All performance bonds will be released upon acceptance in the Minerals Reclamation Fund and payment of required fees.

4VAC25-31-240. Bond amount.

A. Bond shall be set in accordance with § 45.1-183 § 45.2-1208 of the Code of Virginia.

B. The minimum bond for a mineral mining permit shall be $3,000, except for restricted permits and Minerals Reclamation Fund participants.

4VAC25-31-250. General terms and conditions of bond.

A. The bond shall be of the form and amount as specified by the division.

B. The performance bond shall be payable to the department.

C. The performance bond shall be conditioned upon satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-280. Release of bond.

The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation covered by the bond or portion thereof has been accomplished in accordance with this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-310. Bond forfeiture.

A. If the permittee refuses or is unable to comply with an order by the director under § 45.1-186.1 § 45.2-1213 of the Code of Virginia, fails to comply with the terms of the permit, or defaults on the conditions under which the bond was accepted, the division shall take the following action to revoke the permit and forfeit the bond or bonds for the permit area or a portion of the permit area:

1. Send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond informing them of the decision to revoke the permit and forfeit all or part of the bond, and the reasons for this action.

2. Advise the permittee and surety of the conditions under which forfeiture may be avoided. Such conditions may include:

a. Agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule acceptable to the division, which meets the conditions of the permit and the reclamation plan, and demonstrates that such party has the ability to satisfy the conditions; or

b. The division may allow a surety to complete the reclamation plan if the surety can demonstrate an ability to complete the reclamation in accordance with the approved reclamation plan. Except where the division may approve partial release, no surety liability shall be released until successful completion of all reclamation under the terms of the permit.

B. In the event forfeiture of the bond is required, the division shall:

1. Proceed to collect the forfeited amount as provided by Virginia law for the collection of defaulted bonds or other debts if actions to avoid forfeiture have not been taken, if any rights of appeal have not been exercised within a time established by the division, or if such appeal is unsuccessful.

2. Use funds collected from bond forfeiture to complete the reclamation plan on the permit area.

C. Upon default the division may cause the forfeiture of any and all bonds deposited to complete reclamation for which the bonds were posted. Bond liability shall extend to the entire permit area under conditions of forfeiture.

D. Reclamation costs in excess of the forfeited bond amount will constitute a debt of the operator to the Commonwealth of Virginia and shall be collected in accordance with § 45.1-186.2 § 45.2-1214 of the Code of Virginia.

E. In the event the amount of performance bond forfeited was more than the amount necessary to complete reclamation, the unused funds shall be returned by the division to the party from whom they were collected.

F. Appeal of bond forfeiture decisions may be made by the operator by providing notice of appeal to the director in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. If the operator files a notice of appeal, then the director's orders revoking the permit and declaring forfeiture shall be held in abeyance until the appeal is determined.

4VAC25-31-320. Minerals Reclamation Fund (MRF).

A. Each operator who has had five years of satisfactory operation in the Commonwealth under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia shall become a member of the fund by making an initial payment to the fund of $50 for each acre currently disturbed and each acre estimated to be affected by mining operations during the next year. Thereafter the member shall make an annual payment of $12.50 for each acre currently disturbed plus each acre estimated to be affected during the next ensuing year. No annual Minerals Reclamation Fund deposits will be collected from members where the permit Minerals Reclamation Fund deposits divided by the number of bonded acres in the next ensuing year is equal to or greater than $500.

B. Entry into the Minerals Reclamation Fund shall be mandatory for all eligible permittees.

C. Operator deposits into the Minerals Reclamation Fund shall be released or retained under the following conditions:

1. When the operation and reclamation are complete and the reclaimed area is suitable for bond release, Minerals Reclamation Fund deposits for the reclaimed area shall be returned to the operator.

2. When the mining permit is transferred to another permittee and division approval is granted, Minerals Reclamation Fund deposits for the permit may be returned to the transferring permittee.

3. When a mining permit is completely relinquished to another operator, other than in a permit transfer, all of the Minerals Reclamation Fund deposits for the permit shall be returned to the relinquishing operator upon division approval of the relinquishment.

4. After bond release applications are approved by the division, Minerals Reclamation Fund deposits for the permit shall be held or retained according to the following formulas:

a. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is equal to or greater than $500, Minerals Reclamation Fund deposits for the permit will be released so that the remaining deposits equal $500 per acre for the acres remaining under bond.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $4,000;

Minerals Reclamation Fund balance ÷ remaining bonded acres = $500;

$4,000 ÷ (10-2) acres = $500.

b. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is less than $500, the bond release amount will be determined by dividing the permit Minerals Reclamation Fund deposit by the number of bonded acres including the acres to be released and then multiplying by the number of acres to be released.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $3,000;

Minerals Reclamation Fund balance ÷ total bonded acres = Release amount $ per acre;

$3,000 ÷ 10 acres = $300 per acre;

Release amount = $300 per acre x 2 acres = $600.

D. Moneys available in the Minerals Reclamation Fund may be less than the total of all operator deposits due to expenditures for bond forfeiture as required by § 45.1-197.12 § 45.2-1238 of the Code of Virginia. Minerals Reclamation Fund refunds are subject to availability of moneys in the Minerals Reclamation Fund and shall be suspended if the fund decreases below $250,000. Payments to the fund are then proportionately assessed until the fund returns to a minimum, $250,000 or bond or other securities are posted as required by the director in accordance with § 45.1-197.14 § 45.2-1240 of the Code of Virginia.

E. Minerals Reclamation Fund deposits will be transferred to the successor operator when a permit transfer occurs due to a change in organization status or restructuring that does not involve a complete change of ownership.

4VAC25-31-430. Completion of active mining.

A. Except as provided in subsection B of this section and with the director's approval, a mining operation where no mineral has been removed or overburden removed or regraded, or where no substantial mine-related activity has been conducted for a period of 12 consecutive months shall be declared complete, and total reclamation shall begin.

B. At the option of the operator and with the director's approval, an operation may remain under permit for an indefinite period during which no mineral or overburden is removed if the following conditions are met to the director's satisfaction:

1. All disturbed areas are reclaimed or adequately stabilized, or all erosion and sediment control systems are maintained in accordance with mining plans and proper engineering practices.

2. All drainage structures are constructed and maintained in accordance with mining plans and proper engineering practices.

3. All vegetation is maintained, including reseeding if necessary.

4. All improvements on site, including machinery and equipment, are maintained in a state of good repair and condition.

If the conditions listed in this subsection are not met, the permit may be revoked by the director in accordance with § 45.1-186.1 § 45.2-1213 of the Code of Virginia.

4VAC25-31-500. Water impoundments.

A. Structures that impound water or sediment to a height of five feet or more above the lowest natural ground area within the impoundment and have a storage volume of 50 acre-feet or more, or impound water or sediment to a height of 20 feet or more regardless of storage volume, shall meet the following criteria (noted in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia):

1. Impoundments meeting or exceeding the size criteria set forth in this section shall be designed utilizing a spillway flood and hazard potential classification as specified in the following table:

Class of Impoundment*	Spillway Design Flood (SDF)**	Minimum Threshold for Incremental Damage Analysis ***
High Hazard	PMF	0.50 PMF
Significant Hazard	0.50 PMF	100-year storm
Low Hazard	100-year storm	50-year storm
*Size and hazard potential classifications shall be proposed and justified by the operator and shall be subject to approval by the director. Present and projected development in the inundation zone downstream from the structure shall be used in determining the classification. **The complete definitions of hazard potential are those contained in 4VAC50-20-40. ***The establishment of rigid design flood criteria or standards is not intended. Safety must be evaluated in the light of peculiarities and local conditions for each impounding structure and in recognition of the many factors involved, some of which may not be precisely known. Such can only be done by competent, experienced engineering judgment, which the values in the table are intended to add to, not replace.

Reductions in the SDF may be evaluated by use of incremental damage analysis described in 4VAC50-20-52. Note that future development downstream may increase the required SDF.

2. Impounding structures shall be constructed, operated, and maintained such that they perform in accordance with their design and purpose throughout their life.

a. Impoundments shall be designed and constructed by or under the direction of a qualified professional engineer licensed in Virginia and experienced in the design and construction of impoundments.

b. The designs shall meet the requirements of this section and use current prudent engineering practices.

c. The plans and specifications for an impoundment shall consist of a detailed engineering design report that includes engineering drawings and specifications, with the following as a minimum:

(1) The name of the mine; the name of the owner; classification of the impounding structure as set forth in this regulation; designated access to the impoundment and the location with respect to highways, roads, streams and existing impounding structures and impoundments that would affect or be affected by the proposed impounding structure.

(2) Cross sections, profiles, logs of test borings, laboratory and in situ test data, drawings of principal and emergency spillways and other additional drawings in sufficient detail to indicate clearly the extent and complexity of the work to be performed.

(3) The technical provisions as may be required to describe the methods of the construction and construction quality control for the project.

(4) Special provisions as may be required to describe technical provisions needed to ensure that the impounding structure is constructed according to the approved plans and specifications.

d. Components of the impounding structure, the impoundment, the outlet works, drain system and appurtenances shall be durable in keeping with the design and planned life of the impounding structure.

e. All new impounding structures regardless of their hazard potential classification shall include a device to permit draining of the impoundment within a reasonable period of time, and at a minimum shall be able to lower the pool level six vertical inches per day, as determined by the owner's professional engineer, subject to approval by the director.

f. Impoundments meeting the size requirements and hazard potential of high, significant, or low shall have a minimum static safety factor of 1.5 for a normal pool with steady seepage saturation conditions and a seismic safety factor of 1.2.

g. Impoundments shall be inspected and maintained to ensure that all structures function to design specifications.

h. Impoundments shall be constructed, maintained and inspected to ensure protection of adjacent properties and preservation of public safety and shall meet proper design and engineering standards under Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia. Impoundments shall be inspected at least daily by a qualified person, designated by the licensed operator, who can provide prompt notice of any potentially hazardous or emergency situation as required under § 45.1-225.2 § 45.2-1302 of the Code of Virginia. Records of the inspections shall be kept and certified by the operator or his agent.

i. The operator will prepare an emergency action plan (EAP) that includes the following information:

(1) A notification chart of persons or organizations to be notified, the person or persons responsible for notification, and the priority in which notifications are issued. Notifications shall include at a minimum the division, the local government authority responsible for emergency response, and the Virginia Department of Emergency Management.

(2) A discussion of the procedures used for timely and reliable detection, evacuation, and classification of emergency situations considered to be relevant to the structure and its setting.

(3) Designation of responsibilities for EAP related tasks. Also, the EAP shall designate the responsible party for making a decision that an emergency situation no longer exists at the impounding structure. Finally, the EAP shall include the responsible party and the procedures for notifying to the extent possible any known local occupants, owners, or lessees of downstream properties potentially impacted by a failure of the impounding structure.

(4) A section describing actions to be taken in preparation for impoundment emergencies, both before and during the development of emergency conditions.

(5) Dam break inundation maps. Each sheet of such maps for high and significant potential hazard classification structures shall be prepared and sealed by a professional engineer. Where possible, inundation mapping in the EAP should be provided on sheets no larger than 11 inches by 17 inches to facilitate copying for emergency response.

(6) Appendices containing information that supports and supplements the material used in the development of the EAP, including plans for training, exercising, and updating the EAP.

(7) A section that identifies all parties with assigned responsibilities in the EAP and signed certification by all of those parties that a copy of the EAP has been received.

(8) Times periods for review or revision acceptable to the director.

3. Impoundments shall be closed and abandoned in a manner that ensures continued stability and compatibility with the post-mining land use.

4. The following are acceptable as design procedures and references:

a. The design procedures, manuals and criteria used by the United States Army Corps of Engineers;

b. The design procedures, manuals and criteria used by the United States Department of Agriculture, Natural Resources Conservation Service;

c. The design procedures, manuals and criteria used by the United States Department of Interior, Bureau of Reclamation;

d. The design procedures, manuals and criteria used by the United States Department of Commerce, National Weather Service;

e. The design procedures, manuals and criteria used by the United States Federal Energy Regulatory Commission;

f. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or as revised;

g. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods for Dams, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted April 2004; FEMA 94 or as revised; or

h. Other design procedures, manuals and criteria that are accepted as current, sound engineering practices, as approved by the director prior to the design of the impounding structure.

B. Impoundments that do not meet or exceed the size criteria of subsection A of this section shall meet the following criteria:

1. Be designed and constructed using current, prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Safely pass the runoff from a 50-year storm event for temporary (life of mine) structures and a 100-year storm event for permanent (to remain after mining is completed) structures.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

C. Impoundments with impounding capability created solely by excavation shall comply with the following criteria:

1. Be designed and constructed using prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Be designed and constructed with outlet facilities capable of:

a. Protecting public safety;

b. Maintaining water levels to meet the intended use; and

c. Being compatible with regional hydrologic practices.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

4VAC25-31-570. Formal review.

Orders of the director, which are final agency actions for which no further informal resolution is available, shall be appropriately identified and may be appealed in accordance with § 45.1-194 § 45.2-1226 of the Code of Virginia.

4VAC25-35-5. Definitions.

The following words and items when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Commencing work" means after employment but before beginning job duties.

"Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mineral Mining of the Department of Mines, Minerals and Energy.

"MSHA" means the federal Mine Safety and Health Administration.

4VAC25-35-30. Reciprocity requirements.

Reciprocity shall be available for certified persons in other states as provided for in § 45.1-161.292:24 § 45.2-1118 of the Code of Virginia. Applicants for reciprocity must submit proof of current certification, examination grades, and documentation of equivalent work experience for review and approval by the department.

4VAC25-35-110. Mineral mine inspector.

In addition to the requirements set forth in § 45.1-161.292:11 § 45.2-1109 of the Code of Virginia, mine inspector applicants shall demonstrate knowledge and competence in those areas specified in § 45.1-161.292:12 § 45.2-1110 of the Code of Virginia through the examination process. A certificate will not be issued until an applicant is employed by the department. Applicants who already possess a valid coal mine inspector certification pursuant to 4VAC25-20-180 or 4VAC25-20-185 shall be deemed to have met the requirements of this section.

4VAC25-35-120. General mineral miner.

A. As set forth in § 45.1-161.292:28 § 45.2-1122 of the Code of Virginia, miners commencing work after January 1, 1997, shall have a general mineral miner certification. Persons excluded from the general mineral miner certification are those involved in delivery, office work, maintenance, service and construction work, other than the extraction and processing of minerals, who are contracted by the mine operator. Hazard training as required by 30 CFR Part 46 or 30 CFR Part 48 shall be provided to these persons.

B. Applicants shall complete certification training in first aid and mineral mining regulations and law, which is conducted by a training instructor approved by the division, a certified MSHA instructor, or a certified mine foreman. Training shall include the following topics, subtopics and practical applications:

1. First aid training shall convey knowledge of first aid practices including identification of trauma symptoms, recognition and treatment of external and internal bleeding, shock, fractures, and exposure to extreme heat or cold. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

2. Law and regulation training shall convey highlights of the mineral mine safety laws of Virginia and the safety and health regulations of Virginia. Specifically, information shall be provided on miner responsibilities and accountability, certification requirements, violations, penalties, appeals and reporting violations to the division. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

C. The trainer will certify to the department that the training and demonstrations required by § 45.1-161.292:28 § 45.2-1122 B of the Code of Virginia and this section have occurred.

D. Applicants who hold a valid first aid certificate as noted in 4VAC25-35-10 shall be considered to have met the first aid requirements.

E. Applicants who have completed training may commence work and shall be considered provisionally certified for up to 60 days from the date the instructor completes the training.

F. The instructor shall submit verification of certification in a form acceptable to the division and the $10 fee for each applicant who completes the training, together with a class roster of all persons who complete the training, within 30 days of the training date.

G. The mine operator shall maintain the following records for those miners required to obtain a general mineral miner certification and those who qualify for exemption, starting January 1, 1997:

1. The employee name, address, and phone number.

2. The job title, employment date and general mineral miner number if applicable.

3. The date training was completed and the instructor providing it for nonexempt employees.

4. If the employee is exempt from the requirements, the date they began working in the mineral mining industry in Virginia.

H. Applicants who already possess a valid general coal miner surface certification pursuant to 4VAC25-20 shall be deemed to have met the requirements of this section.

4VAC25-40-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abandoned mine" means a mine in which all work has stopped on the mine premises and where an office with a responsible person in charge is no longer maintained at the mine.

"Abandoned workings" means deserted mine areas in which further work is not intended.

"Acceptable" means tested and found to be appropriate for a specific purpose by a nationally recognized agency.

"ACGIH" means the American Conference of Governmental Industrial Hygienists.

"Angle of repose" means the maximum slope or angle at which material remains stable.

"Auxiliary fan" means a fan used to deliver air to a working place off the main airstream, generally used with ventilation tubing.

"Barricaded" means physically obstructed to hinder or prevent the passage of persons or vehicles.

"Blast area" means the area of the mine in which concussion or flying material can reasonably be expected to cause injury during detonation.

"Blast site" means the 50-foot perimeter around boreholes being loaded, or 30 feet if demarcated by a barricade, and the 180° free-face area for a distance of at least four times the average depth of the boreholes being loaded.

"Bridle" means a cable or chain used to support a work platform in a raised position with more than three connection points.

"Burden" means the distance in feet between rows of boreholes or between the open face and boreholes.

"Company official" means a member of the company supervisory or technical staff.

"Competent person" means a person having abilities and experience that fully qualify him to perform the duty to which he is assigned.

"Confined space" means an enclosed area that is large enough for an employee to enter fully and perform his assigned work but is not designed for continuous occupancy by the employee and has a limited or restricted means of entry or exit. These spaces may include storage bins, hoppers, silos, tanks, vaults, and other similar areas.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Division of Mineral Mining.

"Distribution box" means an apparatus with an enclosure through which an electric circuit is carried to one or more cables from a single incoming feedline, each cable circuit being connected through individual overcurrent protective devices.

"Division" means the Division of Mineral Mining.

"Escapeway" means a passageway by which persons may leave if the ordinary exit is obstructed.

"Face" or "bank" means that part of any mine where excavating is progressing or was last done.

"Flash point" means the minimum temperature at which sufficient vapor is released to form a flammable vapor-air mixture.

"Free-face" means the face area of a quarry bench to be blasted.

"Flyrock" means any uncontrolled material generated by the effect of a blast that was hazardous to persons, or to property not owned or controlled by the operator.

"Heavy duty mobile equipment" means any equipment used for loading, hauling, or grading and not normally intended for highway use.

"Hoist" means a power-driven windlass or drum used for raising ore, rock, or other material from a mine, and for lowering or raising persons and material.

"Lay" means the distance parallel to the axis of the rope in which a strand makes one complete turn about the axis of the rope.

"Loaded" means containing explosives, blasting agents, or detonators.

"Main fan" means a fan that controls the entire airflow of the mine or the airflow of one of the major air circuits.

"Major electrical installation" means an assemblage of stationary electrical equipment for the generation, transmission, distribution, or conversion of electrical power.

"Mine opening" means any opening or entrance from the surface into a mine.

"Mine vehicle" means any vehicle on the mine site that is utilized by the mine operator or contractors performing excavation, maintenance, or construction at the mine.

"Misfire" means the partial or complete failure of a blast to detonate as planned.

"MSHA" means the Mine Safety and Health Administration.

"Occupational injury" means any injury to a miner which occurs at a mine for which medical treatment is administered, or which results in death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary assignment to other duties, or transfer to another job as specified in the 30 CFR Part 50.2.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a deposit of useful materials or ores that are to be mined.

"Potable" means fit for human consumption and, where required by the Code of Virginia, approved by the Virginia Department of Health.

"Powder chest" means a substantial, nonconductive portable container equipped with a lid and used at blasting sites for explosives other than blasting agents.

"Primer" means a cartridge or package of explosives which contains a detonator or detonating cord.

"Refuse" means mineral processing waste, tailings, silts, sediments, or slimes.

"Rollover protection" means a framework, safety canopy or similar protection for the operator when equipment overturns and which is acceptable for use on that particular type of equipment.

"Safety fuse" means a train of powder enclosed in cotton, jute yarn, and water-proofing compounds, which burns at a uniform rate, used for firing a cap containing the detonating compound which in turn sets off the explosive charge.

"Safety hazard" means any condition, function, or circumstance which may reasonably be expected to cause or assist an accident.

"Scaled distance (Ds)" means the actual distance (D) in feet divided by the square root of the maximum explosive weight (W) in pounds that is detonated per delay period for delay intervals of eight milliseconds or greater; or the total weight of explosive in pounds that is detonated within an interval less than eight milliseconds.

"Scaling" means removal of insecure material from a face or highwall.

"Shaft" means a vertical or inclined shaft, slope, incline, or winze.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

"Substantial construction" means construction of such strength, material, and workmanship that the object will withstand all reasonable shock, wear, and usage to which it will be subjected.

"Suitable" means that which fits and has the qualities or qualifications to meet a given purpose, occasion, condition, function, or circumstance.

"Switch" means a device used to complete or disconnect an electrical circuit.

"Travelway" means a passage, walk or way regularly used and designated for persons to go from one place to another.

"Wet drilling" means the continuous application of water through the control hole of hollow drill steel to the bottom of the drill hole.

4VAC25-40-25. Purpose and authority.

The purpose of this chapter is to provide for the protection of persons and property on and around mineral mines. The chapter works with the Virginia Mineral Mine Safety Act (§ 45.1-161.292:1 § 45.2-939 et seq.) of the Code of Virginia (as shown in Mineral Mine Safety Laws of Virginia, 2005 edition). Refer to the Act for other definitions and requirements related to this chapter.

4VAC25-40-270. Refuse piles, water and silt retaining dams.

A. Refuse piles, water and silt retaining dams that meet the size criteria of § 45.1-225.2 § 45.2-1302 of the Code of Virginia shall be designed, constructed, maintained, inspected and abandoned in accordance with §§ 45.1-225.2 through 45.1-225.5 Chapter 13 (§ 45.2-1300 et seq.) of Title 45.2 of the Code of Virginia.

B. Water and silt retaining dams that do not meet the size criteria of § 45.1-225.1 § 45.2-1301 of the Code of Virginia shall be designed, constructed and abandoned in accordance with the Minerals Other Than Coal Surface Mining Law (§ 45.1-180 § 45.2-1200 et seq. of the Code of Virginia).

C. Refuse shall be placed only in locations approved by the director.

4VAC25-40-300. Closure of roads or openings.

Upon abandonment of a mine, the operator shall effectively close or fence all roads, mine openings, and surface excavations where hazardous conditions exist and warning signs shall be posted. Upon temporary cessation of mining activities as provided for in § 45.1-181 § 45.2-1205 of the Code of Virginia, the operator shall effectively close or barricade access roads and hazardous areas.

4VAC25-40-5760. Application for mining near gas or oil wells.

A. Application may be made at any time to the director by the operator for an approval to conduct mining operations within 200 feet of any permitted gas or oil well, or gas or oil well being drilled, on forms furnished by the director and containing such information as the director may require.

B. The application shall be accompanied by a map or maps as specified in Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia showing all mining operations or workings projected within 200 feet of the well.

C. Notice of the application shall be sent by certified mail to the well operator and the gas and oil inspector. The notice shall inform the well operator of the right to object to the proposed mining activity. Objections must be filed with the director within 15 days after notice is received by the objecting person.

D. The director may, prior to considering the application, make or cause to be made any inspections or surveys which he deems necessary, and may, if no objection is filed by the well operator or the gas and oil inspector within 15 days after the notice is received, grant the request of the operator to conduct the mining operations as projected, or with such modifications as he may deem necessary.

E. If the well operator or gas and oil inspector files objections, a hearing will be held under the same procedures as set forth in § 9-6.14:11 § 2.2-4019 of the Code of Virginia.

F. If the applicant for an approval to mine within 200 feet of a gas or oil well submits proof in writing that none of the persons required to be notified under this section has any objection to the projected mining activity, then the director may waive the notice requirement under this section and grant the request of the operator to conduct the projected mining activity, provided all other conditions have been met.

4VAC25-70-10. General requirements.

A. Section 45.1-161.191 Section 45.2-811 of the Code of Virginia requires that telephone service or an equivalent two-way communication system be provided between the top and each landing of main shafts and slopes in the mines.

B. Corrective actions shall be taken when a disruption or failure of the required communication system occurs to any section or part of an underground mine where preparation for mining is being made or mining is in progress. Work to restore communications shall begin immediately.

C. Any disruption in communication which is not restored within one hour shall be recorded by the mine foreman in the on-shift report. The record shall reflect the corrective actions taken and time the communication was restored.

D. Whenever a representative of the miners, or a miner where there is no such representative, has reason to believe that conditions are such that continuing to work on a section without communication would constitute an imminent danger to safety or health, such miner or representative shall notify the Chief of the Division of Mines or mine inspector of his concern. Upon receipt of such notification, the Chief shall cause an inspection to be made as soon as possible. If the inspection determines that such danger exists, the workers, excluding those needed to correct the problem, shall be withdrawn to a place that has communication with the surface.

4VAC25-90-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"MSHA" means the Mine Safety and Health Administration.

"TLV" or "Threshold Limit Value" means the airborne concentration of a substance that represents conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect as recommended by the American Conference of Government Industrial Hygienists.

4VAC25-90-70. Air quality.

A. During on-shift examinations required by § 45.1-161.209 § 45.2-827 of the Code of Virginia, a mine foreman authorized by the operator shall determine the concentration of carbon monoxide (CO) and nitrogen dioxide (NO₂).

1. In the return of each working section where diesel equipment is used inby the loading point at a location which represents the contribution of all diesel equipment on such section.

2. At a point inby the last piece of diesel equipment on a longwall or shortwall when mining equipment is being installed or removed. This examination shall be made at a time which represents the contribution of all diesel equipment used for this activity including the diesel equipment used to transport longwall or shortwall equipment to and from the section.

3. In any other area designated by the chief where diesel equipment is operated in a manner which can result in significant concentrations of diesel exhaust emissions.

4. The concentrations of carbon monoxide (CO) and nitrogen dioxide (NO₂) shall not exceed the following threshold limit values:

Threshhold Limit Values (TLV)
Carbon Monoxide (CO)	25 ppm
Nitrogen Dioxide (NO2)	3 ppm

B. Samples of CO and NO₂ shall be collected and analyzed:

1. By appropriate instrumentation that has been maintained and calibrated in accordance with the manufacturer's recommendations;

2. In a manner that makes the results available immediately to the person collecting the samples; and

3. During periods that are representative of conditions during normal operations.

C. The results of these tests shall be:

1. Recorded in a secure book that is not susceptible to alteration, or recorded electronically in a computer system that is secure and not subject to alteration; and

2. Retained at a surface location at the mine for at least one year and made available for inspection by interested persons.

4VAC25-101-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Accurate map or plat" means a map or plat drawn of a scale of between one inch equals 100 feet (1:1,200) and one inch equals 400 feet (1:4,800) with the scale so stated on the map or plat and certified by a licensed professional engineer or licensed land surveyor.

"Approved" means a device, apparatus, equipment, condition, method, course or practice approved in writing by the chief. Approvals by federal agencies such as the Mine Safety and Health Administration (MSHA), or the Office of Surface Mining (OSM), shall also be considered "approved" for the purposes of this chapter.

"Bridge plug" means an obstruction intentionally placed in a vertical ventilation hole at a specified depth.

"Building" means a structure regularly occupied in whole or in part as a habitation for human beings, or where people are accustomed to live, work, or assemble.

"Casing" means all pipe set in wells or vertical ventilation holes except conductor pipe and tubing.

"Cement" means hydraulic cement properly mixed with water.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy, or his authorized agent.

"Coalbed methane gas" means occluded natural gas produced from coalbeds and rock strata associated therewith.

"Coalbed methane gas well" means a well capable of producing coalbed methane gas.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids and gas or gas pressure from the seam, except such as may be found in the coal seam itself.

"Coal seam" means any stratum of coal 20 inches or more in thickness, unless a stratum of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical and direction of points in the hole from the vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Form prescribed by the chief" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Code of Virginia or this chapter.

"Gas" or "natural gas" means all natural gas whether hydrocarbon or nonhydrocarbon or any combination or mixture thereof, including hydrocarbons, hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casing head gas, and all other fluids not defined as oil.

"Gas well operator" means any person who has been designated to operate or does operate a gas well.

"Gas and Oil Inspector" means the Director of the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Gas well" means any well that produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well which is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial or agricultural use or otherwise affects the public safety.

"Highway" means any public street, public alley, or public road.

"Inclination survey" means a survey taken inside a vertical ventilation hole that measures the degree of deviation of the point of the survey from the vertical.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Log" means the written record progressively describing all strata, water, or gas encountered in drilling, depth and thickness of each bed or seam of coal drilled through, volume of gas, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, cavings strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include electrical survey records or electrical survey logs.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Minable coal seam" means a coal seam being mined commercially, or that, in the judgment of the chief, can reasonably be expected to be mined, and which, when mined, will require protection if holes are drilled through it.

"Mining" means the activity of producing coal from any coal mine.

"Mud" means a mixture of materials which creates a weighted fluid to be circulated downhole during over-balance drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation fluids, oil, gas or gas pressure.

"Owner" means the person or persons listed as owner of record by the Clerk of the Circuit Court of the county in which the property is located.

"Pending" means an application for a vertical ventilation hole or gas well permit that has been submitted to the department, but where the decision to issue or refuse to issue the permit has not been made.

"Permanent point" means an established physical point of reference on the land surface, based on the applicant's coordinate system, used for a map or plat submitted with a permit application.

"Permitted" means a vertical ventilation hole or gas well that has been approved by the department.

"Person" means individual, corporation, partnership, association, company, business, trust, joint venture, unit of government, or other legal entity.

"Pillar" means a solid block of coal or ore or other material left unmined to support the overlying strata in a mine.

"Pipeline" means any pipe buried or on the surface used or to be used to transport gas.

"Plug" means the sealing of, or a device or material used for the sealing of, a vertical ventilation hole or casing to prevent the migration of formation fluids or gas from one stratum to another.

"Railroad" means any steam, electric or other powered transportation system operating on a track which carries passengers for hire, or over which loaded or empty equipment is transported.

"State plane coordinate system" means the Virginia Coordinate System of 1927 or the Virginia Coordinate System of 1983 as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a vertical ventilation hole. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Tubing" means the small diameter string set after the vertical ventilation hole has been drilled from the surface to the total depth and through which a substance is produced or injected.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used primarily for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

"Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction, injection or placement of any gaseous or liquid substance, or any shaft or hole sunk or used in conjunction with such extraction, injection or placement. The term shall not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural, or public use and shall not include water boreholes, vertical ventilation holes where methane is vented or flared rather than produced and saved, subsurface boreholes drilled from the mine face of an underground coal mine, any other boreholes necessary or convenient for the extraction of coal or drilled pursuant to a uranium exploratory program carried out pursuant to the laws of this Commonwealth, or any coal or non-fuel mineral corehole or borehole for the purpose of exploration.

4VAC25-101-50. Venting methane; bleeder system.

A. Nothing in this chapter shall prevent the operator of a permitted coalbed methane gas well from venting methane from the well in accordance with the requirements of the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia and the Virginia Gas and Oil Regulation, 4VAC25-150-10 et seq.

B. The mine bleeder system, when operated in conjunction with vertical ventilation holes or coalbed methane gas wells, shall be operated such that changes in the operation of the vertical ventilation holes or coalbed methane wells shall not create hazardous conditions for the miners working underground. If the operation of a vertical ventilation hole or coalbed methane gas well affects any mine's ventilation, the mine shall be adequately ventilated in accordance with the mine's bleeder plan approved under § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act. Any changes or adjustments to such VVH's or coalbed methane gas wells shall be recorded as required by the mine's approved bleeder plan.

4VAC25-101-150. Mining within 500 feet of a vertical ventilation hole or gas well.

A. Before removing any coal or other mineral, or extending any mine workings or operations within 500 horizontal feet of any permitted or pending vertical ventilation hole or gas well, the mine operator shall give notice by certified mail to the vertical ventilation hole operator and the chief or, in the case of a gas well, the mine operator shall give notice as provided for in §§ 45.1-161.121 45.2-707 A and 45.1-161.292 45.2-939 A of the Coal Mine Safety Act.

B. The mine operator shall send to the vertical ventilation hole operator and the chief an accurate map or plat. The map shall show the location of the hole and projected mine workings within 500 horizontal feet of the ventilation hole and shall be shown in accordance with the state plane coordinate system.

C. Once notice and the map have been provided, the mine operator may proceed with mining operations as shown on the map. However, the mine operator shall not remove any coal or other mineral, or conduct any mining operations nearer than 200 horizontal feet, as determined by survey, to any permitted or pending vertical ventilation hole or gas well without the approval of the chief.

D. This provision shall not apply to mining operations in the seam which the vertical ventilation hole or gas well is intended to ventilate if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through that seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-160. Mining within 200 feet of a vertical ventilation hole, gas well or pipeline.

A. A mine operator shall submit a plan to the chief for approval to conduct mining operations within 200 feet (horizontally or vertically) of any permitted or pending vertical ventilation hole or gas well or to conduct surface mining operations within 200 feet of pipelines.

B. The plan shall comply with requirements developed by the chief. It shall be accompanied by an accurate map or plat showing the location of the hole, well, or pipeline, mine workings within 500 feet of the hole, well, or pipeline, projected mine workings within 200 horizontal feet of the vertical ventilation hole, gas well, or pipeline in accordance with the state plane coordinate system.

C. The chief may, prior to considering the plan, make or cause to be made any inspections or surveys which he deems necessary.

D. Notice of intent, including a copy of the plan, shall be sent by certified mail to the operator of the vertical ventilation hole or pipeline, which may be affected by the proposed mining operations. Gas well operators, which may be affected by the proposed mining operations, shall be given notice as required in §§ 45.1-161.121.45.2-707 C and 45.1-161.292. 45.2-939 B of the Coal Mine Safety Act. The notice shall inform the operator of the right to object to the proposed mining activity. Objections shall be filed with the chief within 10 days of the date that the notice is received. If the operator files an objection, the chief shall schedule a hearing in accordance with the provisions in 4VAC25-101-70.

E. If the mine operator submits proof in writing that the operator of the vertical ventilation hole, gas well, or pipeline does not object to the projected mining activity, then the chief may waive the notice requirement and issue a permit, provided all other conditions for permit issuance have been met.

F. The chief may, if the operator of the vertical ventilation hole, or gas well, or pipeline does not file an objection within the specified period, approve the plan for the mining operations as projected, or with such modifications as the chief may deem necessary.

G. This section shall not apply to mining operations in the seam that the vertical ventilation hole or gas well is intended to ventilate, if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through the seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-190. Mining seams impacted by vertical ventilation holes and coalbed methane wells intended to degas the seams being mined.

Mining through vertical ventilation holes, coalbed methane wells, or gas wells intended to degas the seam being mined shall comply with safe mining procedures which have been incorporated in the approved Bleeder Plan required by § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act.

4VAC25-101-200. Plugging of vertical ventilation holes.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the chief. A permit modification is required if the vertical ventilation hole was not previously permitted for plugging.

2. Any person may file an application with the chief to re-plug a previously plugged vertical ventilation hole in any manner permissible under provisions of this section to facilitate the safe mining-through of the vertical ventilation hole at a later date.

3. The chief may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Coal Mine Safety Act:

a. The coal owner, operator, or lessee of record requests a special plugging program to facilitate mine safety or to obtain approval from another governmental agency for the safe mining-through of a vertical ventilation hole. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan, which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a vertical ventilation hole or section of a vertical ventilation hole without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

2. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

3. A cement plug of minimum length of 100 feet shall be placed across the bottom of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the vertical ventilation hole is without surface casing, a continuous cement plug shall be placed at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

4. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the hole by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each minable coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If there is uncemented annulus between an inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

c. If a fresh water aquifer is exposed to the hole in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

d. At a point no less than 50 feet below the bottom of the surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

e. From a point not less than 50 feet below the surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

f. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision 1 of this subsection.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal length inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the hole or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity, such as a cavern, mine void, blast stimulation zone, or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest stratum in the hole, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision 1 of this subsection.

4VAC25-110-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Actual distance" means the distance in feet from the blast location to the nearest dwelling house, public building, school, church, or commercial or institutional building neither owned nor leased by the person conducting the blast.

"DMLR" means the Division of Mined Land Reclamation Repurposing of the Department of Energy.

"Fly rock" means uncontrolled material generated by the blast traveling along the ground and shall not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the Division of Mined Land Reclamation Repurposing (DMLR) permit boundary.

"Inhabited building" means a building regularly occupied in whole or in part as a habitation for human beings, or any church, schoolhouse, railroad station, store, or other structure where people are accustomed to assemble, except any building or structure occupied in connection with the manufacture, transportation, storage or use of explosives.

"Mudcapping," also known as bulldozing, adobe blasting or dobying, means a method of blasting by placing a quantity of explosives in contact with a rock, boulder, or other object without confining the explosives in a drill hole.

"Person" means and includes individuals, firms, partnerships, associations, corporations, receivers, or any officer of the Commonwealth, or any agent or officer of the above-mentioned classes employing any person in this Commonwealth.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

4VAC25-110-210. Blasting safety.

A. When operating within 1,000 horizontal feet of a highway, traffic must be stopped at a safe distance and the blasting area shall be posted with warning signs.

B. Where a blasting operation is conducted in the vicinity of an active deep mine, the blaster shall observe all procedures necessary to secure the health and safety of the deep mine workers. The operator of the affected deep mine shall be notified of planned blasting activities to coordinate necessary precautions for underground workers.

C. When blasting operations, other than those conducted at a fixed site as a part of any industry or business operated at such site, are to be conducted within 200 feet of a pipe line or high voltage transmission line, the blaster or person in charge of the blasting operations shall take due precautionary measures for the protection of the line, and shall notify the owner of the line or his agent at least 48 hours in advance that such blasting operations are intended.

D. When an operator applies for a mine license, he shall indicate on the application the actual distance to the nearest inhabited building.

E. Before a blast is fired, a loud warning signal, audible within a range of ½ mile, shall be given by the blaster in charge, who has made certain that all surplus explosives are in a safe place and all employees, vehicles, and equipment are at a safe distance or under sufficient cover.

F. Fly rock as defined in 4VAC25-110-10 shall not be allowed.

G. Blasting operations shall be conducted during daylight hours (sunrise to sunset) unless authorized by the Chief or his authorized representative.

H. Misfires, hangfires, etc., shall be handled in accordance with § 45.1-161.285 § 45.2-932 of the Code of Virginia.

I. Mudcapping in blasting operations shall be permitted only where the driller would be in a hazardous position in attempting to drill the rock or material to be blasted.

4VAC25-125-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bin" means a container for storage of bulk material.

"Bunker" means a vessel for the bulk storage of material; the lowermost portion is usually constructed in the form of a hopper.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Hopper" means a vessel not primarily intended for storage into which materials are fed; usually constructed in the form of an inverted pyramid or cone terminating in an opening through which the material is discharged.

"Safety line" means a component consisting of a flexible line for connection to an anchorage at one end to hang vertically (vertical lifeline), or for connection to anchorages at both ends to stretch horizontally (horizontal lifeline), and which serves as a means for connecting other components of a personal fall arrest system to the anchorage.

"Silo" means a tall structure, usually cylindrical and of reinforced concrete construction, in which bulk material is stored and discharged through feeders that draw materials from the bottom.

"Stockpile" means any accumulation of material formed to create a reserve for loading or other purposes.

4VAC25-130-700.1. Scope.

These regulations, consisting of Parts 700 through 882, establishes the procedures and requirements through which the Department of Mines, Minerals, and Energy and its Division of Mined Land Reclamation Repurposing will implement the Virginia Coal Surface Mining Control and Reclamation Act of 1979 (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and the Federal Surface Mining Control and Reclamation Act of 1977, (P.L. 95-87, 91 Stat. 445 (30 USC §§ 1201 et seq.)), pursuant to the Virginia permanent regulatory program, as approved by the United States Secretary of the Interior.

This Chapter is divided into nine Subchapters.

(a) Subchapter VA contains introductory information intended to serve as a guide to the rest of the Chapter and to the regulatory requirements and definitions generally applicable to the programs and persons covered by the Act.

(b) Subchapter VD identifies the procedures that apply to surface coal mining and reclamation operations conducted on Federal lands rather than State or private lands and incorporates by reference the applicable requirements of the State regulatory program: Subchapters VG, VJ, VK, AND VL.

(c) Subchapter VF implements the requirements of the Act for--

(i) Designating lands which are unsuitable for all or certain types of surface coal mining operations;

(ii) Terminating designation no longer found to be appropriate; and

(iii) Prohibiting surface coal mining and reclamation operations on those lands or areas where the Act states that surface coal mining operations should not be permitted or should be permitted only after specified determinations are made.

(d) Subchapter VG governs applications for and decisions on permits for surface coal mining and reclamation operations within the Commonwealth. It also governs coal exploration and permit application and decisions on permits for special categories of coal mining in the Commonwealth. Regulations implementing the experimental practices provision of the Act are also included in Subchapter VG.

(e) Subchapter VJ sets forth requirements for performance bonds and public liability insurance for surface mining, underground mining and coal exploration permits.

(f) Subchapter VK sets forth the environmental and other performance standards which apply to coal exploration and to surface coal mining and reclamation operations, as well as to special mining situations involved with steep slope mining, mountaintop removal mining, auger mining and prime farmlands.

(g) Subchapter VL sets forth the inspection, enforcement, and civil penalty provisions.

(h) Subchapter VM sets forth the requirements for the training, examination, and certification of blasters.

(i) Subchapter VR sets forth the regulations for the Abandoned Mine Land Program.

4VAC25-130-700.2. Authority and citation to federal law.

These regulations are promulgated pursuant to Chapter 19, 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia (1950) as amended. In order for these regulations to receive approval by the United States Secretary of the Interior as part of the Commonwealth's permanent regulatory program, the Federal Surface Mining Control and Reclamation Act requires that these regulations be consistent with (as effective as) applicable regulations issued by the Secretary, contained in 30 CFR Chapter VII. The numbering system used for the Virginia regulations corresponds to the numbering system used for the applicable Federal regulations in 30 CFR Chapter VII, except that the numbering for the Virginia regulations contains the prefix "4VAC25-130-xxx.xxx." All references to Sections, Parts, or Subchapters are made to this chapter, unless otherwise noted.

4VAC25-130-700.3. Effective date.

(a) The regulations promulgated pursuant to Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia became effective on December 15, 1981, the date on which the Secretary of the Interior approved the Commonwealth's permanent regulatory program.

(b) The regulations in this chapter shall become effective when approved by the Secretary of the Interior, except, for existing operations permitted pursuant to Chapter 19, Title 45.1-

(1) All provisions except for those related to the contents of permit applications of Subchapter VG and the performance standards of Subchapter VK shall apply.

(2) The content of permit application requirements and the performance standards of the regulations approved on December 15, 1981, shall be complied with.

(3) All provisions of this chapter shall apply when the existing permit is significantly revised or renewed.

4VAC25-130-700.5. Definitions.

As used throughout this chapter, the following terms have the specified meanings except where otherwise indicated.

"Abatement plan" means an individual technique or combination of techniques, the implementation of which is designed to result in reduction of the baseline pollution load. Abatement techniques include but are not limited to: addition of alkaline material, special plans for managing toxic and acid forming material, regrading, revegetation, and daylighting.

"Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mining and reclamation operation or from an area affected by surface coal mining and reclamation operations.

"Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acid that may create acid drainage or leachate.

"Act" means the Virginia Coal Surface Mining Control and Reclamation Act of 1979 as amended (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia).

"Actual improvement" means the reduction of the baseline pollution load resulting from the implementation of the approved abatement plan: except that a reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement.

"Adjacent area" means the area outside the permit area where a resource or resources, determined according to the context in which adjacent area is used, are or reasonably could be expected to be adversely impacted by proposed mining operations, including probable impacts from underground workings.

"Administratively complete application" means an application for permit approval, or approval for coal exploration where required, which the division determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review.

"Adverse physical impact" means, with respect to a highwall created or impacted by remining, conditions such as sloughing of material, subsidence, instability, or increased erosion of highwalls, which occur or can reasonably be expected to occur as a result of remining and which pose threats to property, public health, safety, or the environment.

"Affected area" means any land or water surface area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands, the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings. The affected area shall include every road used for purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road is a public road.

"Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

"Anthracite" means coal classified as anthracite in ASTM Standard D 388-77. Coal classifications are published by the American Society of Testing and Materials under the title, "Standard Specification for Classification of Coals by Rank," ASTM D 388-77, on pages 220 through 224. Table 1 which classifies the coals by rank is presented on page 223. This publication is hereby incorporated by reference.

"Applicant" means any person seeking a permit, permit revision, renewal, and transfer, assignment, or sale of permit rights from the division to conduct surface coal mining and reclamation operations or, where required, seeking approval for coal exploration.

"Applicant violator system" or "AVS" means an automated information system of applicant, permittee, operator, violation, and related data the federal Office of Surface Mining Reclamation and Enforcement (OSM) maintains and the division utilizes in the permit review process.

"Application" means the documents and other information filed with the division under this chapter for the issuance of permits; revisions; renewals; and transfer, assignment, or sale of permit rights for surface coal mining and reclamation operations or, where required, for coal exploration.

"Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and coal refuse piles eliminated. Permanent water impoundments may be permitted where the division has determined that they comply with 4VAC25-130-816.49, 4VAC25-130-816.56, and 4VAC25-130-816.133 or 4VAC25-130-817.49, 4VAC25-130-817.56, and 4VAC25-130-817.133.

"Aquifer" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

"Auger mining" means a method of mining coal at a cliff or highwall by drilling or cutting holes into an exposed coal seam from the highwall and transporting the coal along the auger bit to the surface.

"Authorized officer" means any person authorized to take official action on behalf of a federal agency that has administrative jurisdiction over federal lands.

"Baseline pollution load" means the characterization of the pollution material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter, including seasonal variations and variations in response to precipitation events. The division will establish in each authorization the specific parameters it deems relevant for the baseline pollution load.

"Best professional judgment" means the highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the division under §§ 301 and 402 of the federal Water Pollution Control Act (33 USC §§ 1311 and 1342).

"Best technology" means measures and practices which are designed to abate or ameliorate to the maximum extent possible pollutional discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.

"Best technology currently available" means equipment, devices, systems, methods, or techniques which will:

(a) Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contribution of suspended solids in excess of requirements set by the applicable state or federal laws;

(b) Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, terms, methods, or techniques which are currently available anywhere as determined by the division even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with Parts 816 and 817 of this chapter. Within the constraints of the permanent program, the division shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter.

"Cemetery" means any area of land where human bodies are interred.

"Certification" when used in regards to construction certifications by qualified registered professional engineers, is not considered to be a warranty or guarantee.

"Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77, referred to and incorporated by reference in the definition of "anthracite."

"Coal exploration" means the field gathering of:

(a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or

(b) The gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of this chapter.

"Coal lease" means a federal coal lease or license issued by the Bureau of Land Management pursuant to the Mineral Leasing Act and the federal Acquired Lands Leasing Act of 1947 (30 USC § 351 et seq.).

"Coal mine waste" means coal processing waste and underground development waste.

"Coal mining operation" means, for the purposes of Part 705 of this chapter—Financial Interests of State Employees—the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur.

"Coal preparation" or "coal processing" means chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

"Coal preparation plant" means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including but not limited to the following: loading facilities; storage and stockpile facilities; sheds, shops, and other buildings; water-treatment and water storage facilities; settling basins and impoundments; and coal processing and other waste disposal areas.

"Coal processing waste" means earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

"Cognovit note" means an extraordinary note which authorizes an attorney to confess judgement against the person or persons signing it. It is written authority of a debtor and a direction by him for entry of a judgement against him if the obligation set forth in the note is not paid when due. Such judgement may be taken by any person holding the note, which cuts off every defense which makers of the note may otherwise have and it likewise cuts off all rights of appeal from any judgement taken on it. The note shall, at a minimum:

(a) Contain the date of execution.

(b) Be payable to the "Treasurer of Virginia."

(c) Be due and payable in the event of bond forfeiture of the permit.

(d) Be payable in a sum certain of money.

(e) Be signed by the makers.

"Collateral bond" means an indemnity agreement in a sum certain executed by the permittee and deposited with the division supported by one or more of the following:

(a) The deposit of cash in one or more federally insured accounts, payable only to the division upon demand;

(b) Negotiable bonds of the United States, the Commonwealth of Virginia, or a political subdivision thereof, endorsed to the order of, and placed in the possession of the division; the bond will only be acceptable if the issue is rated "A" or better by Moody's Investor Service, Inc., or Standard and Poor's, Inc.;

(c) Certificates of deposit issued by Virginia banks payable only to the division and placed in its possession. No security in default as to principal or interest shall be acceptable as collateral; or

(d) An irrevocable letter of credit of any bank organized or authorized to transact business in the United States, payable only to the department at sight prepared in accordance with the Uniform Customs and Practices for Documentary Credits (1993 revision) International Chamber of Commerce (Publication No. 500).

"Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

"Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

"Compaction" means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

"Complete and accurate application" means an application for permit approval or approval for coal exploration where required which the division determines to contain all information required under the Act and this chapter.

"Contamination" means, in reference to ground water or surface water supplies receiving ground water, any impairment of water quality which makes the water unsuitable for a specific use.

"Control" or "controller" when used in 4VAC25-130-773, 4VAC25-130-774, or 4VAC25-130-778 means:

(a) A permittee of a surface coal mining operation;

(b) An operator of a surface coal mining operation; or

(c) Any person who has the ability to determine the manner in which a surface coal mining operation is conducted.

"Cooperative agreement" means a cooperative agreement entered into in accordance with § 523(c) of the federal Act and 30 CFR Part 745.

"Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and ground water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(c) Any operation for which a permit application has been submitted to the division; and

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

"Department" means the Virginia Department of Mines, Minerals and Energy (DMME) of Virginia.

"Diminution" means, in reference to ground or surface water supplies receiving ground water, any impairment of water quantity which makes the water unsuitable for a specific use.

"Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

"Director" means the Director of the Department of Mines, Minerals, and Energy or his representative.

"Disturbed area" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance of performance required by Subchapter VJ is released.

"Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one area to another.

"Division" means the Division of Mined Land Reclamation Repurposing of the Department of Mines, Minerals, and Energy.

"Downslope" means the land surface between the projected outcrop of the lowest coal bed being mined along each highwall and a valley floor.

"Drinking, domestic or residential water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included, except to the extent the water supply is for direct human consumption or human sanitation or domestic use.

"Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

"Employee" means (a) any person employed by the department or other state or local government agency who performs any function or duty under the Act, and (b) consultants who perform any function or duty under the Act, if they perform decision-making functions for the department under the authority of the Act or regulations promulgated under the Act.

"Ephemeral stream" means a stream that flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and that has a channel bottom that is always above the local water table.

"Escrow account" means an account in a federally insured financial institution.

"Excess spoil" means spoil material disposed of in a location other than the mined-out area; provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain in accordance with 4VAC25-130-816.102(d) and 4VAC25-130-817.102(d) in nonsteep slope areas shall not be considered excess spoil.

"Existing structure" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction begins prior to the approval of the state program or a federal land program, whichever occurs first.

"Extraction of coal as an incidental part" means, for the purposes of Part 707 of this chapter, the extraction of coal which is necessary to enable the construction to be accomplished. For purposes of Part 707, only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and this chapter.

"Federal Act" means the federal Surface Mining Control and Reclamation Act of 1977, as amended (Pub. L. 95-87).

"Federal land management agency" means a federal agency having administrative jurisdiction over the surface of federal lands that are subject to this chapter.

"Federal lands" means any land, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands.

"Federal lands program" means a program established by the secretary pursuant to § 523 of the federal Act to regulate surface coal mining and reclamation operations on federal lands.

"Federal lease bond" means the bond or equivalent security required by 43 CFR Part 3400 to assure compliance with the terms and conditions of a federal coal lease.

"Federal lessee protection bond" means a bond payable to the United States or the state, whichever is applicable, for use and benefit of a permittee or lessee of the surface lands to secure payment of any damages to crops or tangible improvements on federal lands, pursuant to § 715 of the federal Act.

"Federal program" means a program established by the secretary pursuant to § 504 of the federal Act to regulate coal exploration and surface coal mining and reclamation operations on nonfederal and non-Indian lands within the state in accordance with the federal Act and 30 CFR Chapter VII.

"First water producing zone" means the first water zone encountered which can be monitored in a manner which indicates the effects of a surface mining operation on usable ground water.

"Fragile lands" means areas containing natural, ecologic, scientific or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, paleontological sites, National Natural Landmarks, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features and areas of recreational value due to high environmental quality.

"Fugitive dust" means that particulate matter which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed. Fugitive dust does not include particulate matter emitted from a duct or stack.

"Fund," as used in Subchapter VR, means the Abandoned Mine Reclamation Fund established pursuant to § 45.1-261 § 45.2-1032 of the Act.

"General area" means, with respect to hydrology, the topographic and ground water basin surrounding a permit area and adjacent areas to include one or more watersheds containing perennial streams or ground water zones which possess useable and/or managed zones or flows, to allow an assessment of the probable cumulative impacts on the hydrologic regime.

"Government-financed construction" means construction funded 50% or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50% may qualify if the construction is undertaken as an approved reclamation project under Title IV of the federal Act. Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments does not qualify as government-financed construction.

"Government financing agency" means any federal, state, regional, county, city or town unit of government, or a department, bureau, agency or office of a governmental unit or any combination of two or more governmental units or agencies, which, directly or through another unit of government, finances construction.

"Gravity discharge" means, with respect to underground coal mining activities, mine drainage that flows freely in an open channel downgradient. Mine drainage that occurs as a result of flooding a mine to the level of the discharge is not gravity discharge.

"Ground cover" means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of ground.

"Ground water" means subterranean water which exists within a totally saturated zone, stratum or group of strata.

"Growing season" means the period of year when climatic conditions are favorable for plant growth, common to a place or area. The period between April 15 and October 15 is the normal growing season.

"Half-shrub" means a perennial plant with a woody base whose annually produced stems die back each year.

"Head-of-hollow fill" means a fill structure consisting of any material, except organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow, measured at the steepest point, are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees. In head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill, draining into the fill area.

"Higher or better uses" means postmining land uses that have a higher value or benefit, either economic or noneconomic, to the landowner or the community than the premining land uses.

"Highwall" means the face of exposed overburden and coal in an open cut of a surface coal mining activity or for entry to underground mining activities.

"Highwall remnant" means that portion of highwall that remains after backfilling and grading of a remining permit area.

"Historically used for cropland" means (1) lands that have been used for cropland for any five years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations; (2) lands that the division determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or (3) lands that would likely have been used as cropland for any five out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

"Historic lands" means areas containing historic, cultural, or scientific resources. Examples of historic lands include archaeological sites, properties listed on or eligible for listing on the State or National Register of Historic Places, National Historic Landmarks, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending.

"Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

"Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transportation.

"Imminent danger to the health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirements of the Act in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement.

"Impounding structure" means a dam, embankment or other structure used to impound water, slurry, or other liquid or semi-liquid material.

"Impoundments" mean all water, sediment, slurry or other liquid or semi-liquid holding structures and depressions, either naturally formed or artificially built.

"Indemnity agreement" means an agreement between two persons in which one person agrees to pay the other person for a loss or damage. The persons involved can be individual people, or groups of people, or legal organizations, such as partnerships, corporations or government agencies, or any combination of these.

"Indirect financial interest" means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by the employee's spouse, minor child and other relatives, including in-laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

"In situ processes" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

"Intermittent stream" means:

(a) A stream or section of a stream that drains a watershed of at least one square mile, or

(b) A stream or section of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

"Irreparable damage to the environment" means any damage to the environment, in violation of the Act, or this chapter, that cannot be corrected by the permittee.

"Knowing" or "knowingly" means that a person who authorized, ordered, or carried out an act or omission knew or had reason to know that the act or omission would result in either a violation or failure to abate or correct a violation.

"Land use" means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal use occur and may include land used for support facilities that are an integral part of the use. Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the division.

(a) "Cropland." Land used for production of crops which can be grown for harvest alone or in a rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops.

(b) "Pastureland" or land occasionally cut for hay. Land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed.

(c) "Grazingland." Lands used for grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production.

(d) "Forestry." Land used or managed for long-term production of wood, wood fiber, or wood derived products.

(e) "Residential." Land used for single and/or multiple family housing, mobile home parks, or other residential lodgings.

(f) "Industrial/Commercial." Land used for:

(1) Extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities.

(2) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.

(g) "Recreation." Land used for public or private leisure-time activities, including developed recreation facilities such as parks, camps, amusement areas, as well as undeveloped areas for recreation such as hiking and canoeing.

(h) "Fish and wildlife habitat." Land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife.

(i) "Developed water resources." Land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

(j) "Undeveloped land or no current use or land management." Land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

"Lands eligible for remining" means those lands that would otherwise be eligible for expenditures under § 404 or under § 402(g)(4) of the federal Act.

"Leachate" means water percolating from a surface coal mining operation which contains dissolved and suspended matter.

"Leased federal coal" means coal leased by the United States pursuant to 43 CFR Part 3400, except mineral interests in coal on Indian lands.

"Lease terms, conditions and stipulations" means all of the standard provisions of a federal coal lease, including provisions relating to lease duration, fees, rentals, royalties, lease bond, production and recordkeeping requirements, and lessee rights of assignment, extension, renewal, termination and expiration, and site-specific requirements included in federal coal leases in addition to other terms and conditions which relate to protection of the environment and of human, natural and mineral resources.

"Material damage" in the context of 4VAC25-130-784.20 and 4VAC25-130-817.121 means:

(a) Any functional impairment of surface lands, features, structures, or facilities;

(b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

"Mineral Leasing Act" or "MLA" means the Mineral Leasing Act of 1920, as amended, 30 USC § 181 et seq.

"Mining plan" means the plan, for mining leased federal coal, required by the Mineral Leasing Act.

"Mining supervisor" means the Area Mining Supervisor, Conservation Division, U.S. Geological Survey, or District Mining Supervisor or other subordinate acting under their direction.

"Moist bulk density" means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105°C.

"MSHA" means the United States Mine Safety and Health Administration.

"Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, and provide micro-climatic conditions suitable for germination and growth.

"Natural hazard lands" means geographic areas in which natural conditions exist which pose or as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, and areas of unstable geology.

"Net worth" means total assets less total liabilities. Total liabilities include, but are not limited to, funds pledged or otherwise obligated to the Commonwealth of Virginia, or to any other person at any time during the permit term. Total liabilities also include, but are not limited to, contingent liabilities that might materially affect the Commonwealth's ability to collect the amount of bond required in the event of bond forfeiture.

"Noncommercial building" means any building other than an occupied residential dwelling that at the time subsidence occurs is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in this section. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

"Noxious plants" means living plants which are declared to be noxious weeds or noxious plants pursuant to the Virginia Noxious Weed Law, Chapter 17.2 8 (§ 3.1-296.11 § 3.2-800 et seq.) of Title 3.1 3.2 of the Code of Virginia.

"Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

"Occupied residential dwelling and structures related thereto" means, for purposes of 4VAC25-130-784.20 and 4VAC25-130-817.121, any building or other structures that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation. This term also includes any building, structure, or facility installed on, above or below, or a combination thereof, the land surface if that building structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to, garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems. Any structure used only for commercial agriculture, industrial, retail or other commercial purposes is excluded.

"Office" or "OSM" means the Office of Surface Mining Reclamation and Enforcement established under Title II of the federal Act.

"Operator" means any person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth or from coal refuse piles by mining within 12 consecutive calendar months in any one location.

"Other treatment facilities" means any facilities for chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and that are utilized:

(a) To prevent additional contribution of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(b) To comply with all applicable state and federal water quality laws and regulations.

"Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

"Own," "owner," or "ownership" as used in 4VAC25-130-773, 4VAC25-140-774, or 4VAC25-140-778 (except when used in the context of ownership of real property) means being a sole proprietor or owning of record in excess of 50% of the voting securities or other instruments of ownership of an entity.

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground-water discharge or surface runoff. The term does not include "intermittent stream" or "ephemeral stream."

"Performance bond" means a surety bond, collateral bond, or a combination thereof, by which a permittee assures faithful performance of all the requirements of the Act, this chapter, and the requirements of the permit and reclamation plan.

"Performing any function or duty under this Act" means decision or action, which if performed or not performed by an employee, affects the programs under the Act.

"Permanent diversion" means a diversion which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permanent impoundment" means an impoundment which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permit" means a permit to conduct surface coal mining and reclamation operations issued by the division pursuant to the Act and this chapter or by the secretary pursuant to a federal program. For the purposes of the federal lands program, permit means a permit issued by the division under a cooperative agreement or by the OSM where there is no cooperative agreement.

"Permit application package" means a proposal to conduct surface coal mining and reclamation operations on federal lands, including an application for a permit, permit revision or permit renewal, all the information required by the federal Act, 30 CFR Subchapter D, the Act and this chapter, any applicable cooperative agreement and all other applicable laws and regulations including, with respect to leased federal coal, the Mineral Leasing Act and its implementing regulations.

"Permit area" means the area of land indicated on the approved map submitted by the permittee with his application, required to be covered by the permittee's performance bond under Subchapter VJ and which shall include the area of land upon which the permittee proposes to conduct surface coal mining and reclamation operations under the permit. The permit area shall include all disturbed areas except that areas adequately bonded under another permit issued pursuant to this chapter may be excluded from the permit area.

"Permittee" means a person holding or required by the Act or this chapter to hold a permit to conduct coal exploration (more than 250 tons) or surface coal mining and reclamation operations issued (a) by the division, (b) by the director of the OSM pursuant to a federal lands program, or (c) by the OSM and the division, where a cooperative agreement pursuant to § 45.1-230 B of the Act has been executed.

"Person" means an individual, Indian tribe when conducting surface coal mining and reclamation operations on non-Indian lands, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agent, unit, or instrumentality of federal, state or local government including any publicly owned utility or publicly owned corporation of federal, state or local government.

"Person having an interest which is or may be adversely affected" or "person with a valid legal interest" shall include any person:

(a) Who uses any resources of economic, recreational, aesthetic, or environmental value that is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division; or

(b) Whose property is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division.

The term "adversely affected" is further defined as meaning perceptibly harmed. "Aesthetics" means the consideration of that which is widely regarded to be a visibly beautiful element of a community or area.

"Piezometer" means a vertical pipe that is established in material, which is closed at the bottom, perforated from the upper limits of the material to the lower limits of the material, and which permits static water level measurements and water sampling.

"Pollution abatement area" means the part of the permit area which is causing or contributing to the baseline pollution load, which shall include adjacent and nearby areas that must be affected to bring about significant improvement of the baseline pollution load, and which may include the immediate location of the discharges.

"Pool Bond fund" means the Coal Surface Mining Reclamation Fund established pursuant to § 45.1-270.1 § 45.2-1043 of the Act.

"Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. "Precipitation event" also includes that quantity of water coming from snow cover as snow melt in a limited period of time.

"Previously mined area" means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this chapter.

"Prime farmland" means those lands which are defined by the Secretary of Agriculture in 7 CFR Part 657 (Federal Register Vol. 4, No. 21) and which have historically been used for cropland.

"Principal shareholder" means any person who is the record or beneficial owner of 10% or more of any class of voting stock in a corporation.

"Professional geologist" means a person who is certified pursuant to Chapter 14 22 (§ 54.1-1400 § 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia.

"Prohibited financial interest" means any direct or indirect financial interest in any coal mining operation.

"Property to be mined" means both the surface property and mineral property within the permit area and the area covered by underground workings.

"Public building" means any structure that is owned or leased, and principally used, by a governmental agency for public business or meetings.

"Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

"Public park" means an area or portion of an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

"Public road" means a road (i) that has been designated as a public road pursuant to the laws of the jurisdiction in which it is located; (ii) that is maintained with public funds, and is constructed, in a manner similar to other public roads of the same classification within the jurisdiction; and (iii) for which there is substantial (more than incidental) public use.

"Publicly owned park" means a public park that is owned by a federal, state or local governmental entity.

"Qualified laboratory" means a designated public agency, private firm, institution, or analytical laboratory which can prepare the required determination of probable hydrologic consequences or statement of results of test borings or core samplings or other services as specified at 4VAC25-130-795.9 under the Small Operator Assistance Program (4VAC25-130-795.1 et seq.) and which meets the standards of 4VAC25-130-795.10.

"Reasonably available spoil" means spoil and suitable coal mine waste material generated by the remining operation or other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment.

"Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

"Reclamation" means those actions taken to restore mined land as required by this chapter to a postmining land use approved by the division.

"Recurrence interval" means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years.

"Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species diversity that are produced naturally or by crop production methods approved by the division. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

"Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semi-liquid material.

"Regulatory program" means the Virginia Coal Surface Mining Control and Reclamation program (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and rules and regulations approved by the secretary.

"Remining" means conducting surface coal mining and reclamation operations which affect previously mined areas.

"Renewable resource lands" means areas which contribute significantly to the long-range productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer recharge areas.

"Replacement of water supply" means, with respect to protected water supplies contaminated, diminished or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(a) Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

"Road" means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or surface coal mining and reclamation operations, including use by coal hauling vehicles to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

"Safety factor" means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

"Secretary" means the Secretary of the Interior or the secretary's representative.

"Sedimentation pond" means an impoundment used to remove solids or other pollutants from water in order to meet water quality standards or effluent limitations before the water leaves the permit area.

"Self-bond," as provided by Part 801 of this chapter, means:

(a) For an underground mining operation, a cognovit note in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant, and supported by a certification that the applicant participating in the Pool Bond Fund has a net worth, total assets minus total liabilities equivalent to $1 million. Such certification shall be by an independent certified public accountant in the form of an unqualified opinion.

(b) For a surface mining operation or associated facility, an indemnity agreement in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant.

"Significant forest cover" means an existing plant community consisting predominantly of trees and other woody vegetation.

"Significant, imminent environmental harm to land, air, or water resources" means:

(a) An environmental harm is an adverse impact on land, air, or water resources which resources include, but are not limited to, plants and animal life.

(b) An environmental harm is imminent, if a condition, practice, or violation exists which:

(1) Is causing such harm; or

(2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under § 45.1-245 B § 45.2-1020 of the Act.

(c) An environmental harm is significant if that harm is appreciable and not immediately reparable.

"Significant recreational, timber, economic, or other values incompatible with surface coal mining operations" means those values to be evaluated for their significance which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected areas. Those values to be evaluated for their importance include:

(a) Recreation, including hiking, boating, camping, skiing or other related outdoor activities;

(b) Timber management and silviculture;

(c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce;

(d) Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants or cultural interests.

"Siltation structure" means a sedimentation pond, a series of sedimentation ponds, or other treatment facility.

"Slope" means average inclination of a surface, measured from its horizontal, generally expressed as the ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g., 1v:5h). It may also be expressed as a percentage or in degrees.

"Soil horizons" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four master soil horizons are:

(a) "A horizon." The uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest;

(b) "E horizon." The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties;

(c) "B horizon." The layer that typically is immediately beneath the E horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A, E, or C horizons; and

(d) "C horizon." The deepest layer of the soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

"Soil survey" means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey as incorporated by reference in 4VAC25-130-785.17(c)(1).

"Spoil" means overburden that has been removed during surface coal mining operations.

"Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

"Steep slope" means any slope of more than 20 degrees or such lesser slope as may be designated by the division after consideration of soil, climate, and other characteristics of a region or the state.

"Substantial legal and financial commitments in a surface coal mining operation" means significant investments, prior to January 4, 1977, have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

"Substantially disturb" means, for purposes of coal exploration, to significantly impact land or water resources by blasting; by removal of vegetation, topsoil, or overburden; by construction of roads or other access routes; by placement of excavated earth or waste material on the natural land surface or by other such activities; or to remove more than 250 tons of coal.

"Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

"Surface coal mining and reclamation operations" means surface coal mining operations and all activities necessary or incidental to the reclamation of such operations. This term includes the term "surface coal mining operations."

"Surface coal mining operations" means:

(a) Activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of § 45.1-243 § 45.2-1018 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; and the cleaning, concentrating, or other processing or preparation of coal. Such activities also include the loading of coal for interstate commerce at or near the mine site. Provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16-2/3% of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to § 45.1-233 § 45.2-1008 of the Act; and, provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and

(b) The areas upon which the activities described in paragraph (a) of this definition occur or where such activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities.

"Surface coal mining operations which exist on the date of enactment" means all surface coal mining operations which were being conducted on August 3, 1977.

"Surface mining activities" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, by auger coal mining, or by recovery of coal from a deposit that is not in its original geologic location.

"Surface operations and impacts incident to an underground coal mine" means all activities involved in or related to underground coal mining which are either conducted on the surface of the land, produce changes in the land surface or disturb the surface, air or water resources of the area, including all activities listed in § 45.1-229 L § 45.2-1000 of the Act.

"Surety bond" means an indemnity agreement in a sum certain payable to the Commonwealth of Virginia, Director—Division of Mined Land Reclamation, Repurposing executed by the permittee as principal and which is supported by the performance guarantee of a corporation licensed to do business as a surety in Virginia.

"Suspended solids" or nonfilterable residue, expressed as milligrams per liter, means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR Part 136).

"Temporary diversion" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the division to remain after reclamation as part of the approved postmining land use.

"Temporary impoundment" means an impoundment used during surface coal mining and reclamation operations, but not approved by the division to remain as part of the approved postmining land use.

"Ton" means 2000 pounds avoirdupois (.90718 metric ton).

"Topsoil" means the A and E soil horizon layers of the four master soil horizons.

"Toxic-forming materials" means earth materials, or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

"Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair plant and animal life commonly present in the area that might be exposed to it.

"Transfer, assignment, or sale of permit rights" means a change of a permittee.

"Unanticipated event or condition," as used in 4VAC25-130-773.15, means an event or condition related to prior mining activity which arises from a surface coal mining and reclamation operation on lands eligible for remining that was not contemplated by the applicable permit.

"Underground development waste" means waste-rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of from underground workings in connection with underground mining activities.

"Underground mining activities" means a combination of:

(a) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of wastes, and areas on which materials incident to underground mining operations are placed; and

(b) Underground operations such as underground construction, operations, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting.

"Unwarranted failure to comply" means the failure of a permittee to prevent the occurrence of any violation of his permit or any requirement of the Act or this chapter due to indifference, lack of diligence, or lack of reasonable care, or failure to abate any violation of such permit, the Act, or this chapter due to indifference, lack of diligence, or lack of reasonable care.

"Usable ground water" or "ground water in use" means all ground water that is reasonably able to be used.

"Valid existing rights" means a set of circumstances under which a person may, subject to division approval, conduct surface coal mining operations on lands where § 45.1-252 D § 45.2-1028 of the Act and 4VAC25-130-761.11 would otherwise prohibit such operations. The possession of valid existing rights only confers an exception from the prohibitions of § 45.1-252 D § 45.2-1028 and 4VAC25-130-761.11. A person seeking to exercise valid existing rights must comply with all pertinent requirements of the Act and the regulations promulgated thereunder and would need to demonstrate:

(a) Except as provided in subdivision (c) of this definition, the legally binding conveyance, lease, deed, contract, or other document that vests the person or predecessor in interest with the right to conduct the type of surface coal mining operations intended. The right must exist at the time the land came under the protection of 4VAC25-130-761.11;

(b) Compliance with one of the following:

(1) That all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt to obtain all necessary permits and authorizations had been made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11.

(2) That the land needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt made to obtain such permits and authorizations occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. The person must demonstrate that prohibiting the expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 when the division approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the division may consider:

(i) The extent to which coal supply contracts or other legal and business commitments that occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 depend upon the use of the land for surface coal mining operations.

(ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon use of that land for surface coal mining operations.

(iii) The extent to which investments in the operation made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon the use of that land for surface coal mining operations.

(iv) Whether the land lies within the area identified on the life-of-mine map under 4VAC25-130-779.24 (c) that was submitted before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11;

(c) For haulroads, a person who claims valid existing rights to use or construct a road across the surface of lands protected by § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 must demonstrate that one or more of the following circumstances exist. The road:

(1) Existed when the land upon which it is located came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and the person has the legal right to use the road for surface coal mining operations;

(2) Was under a properly recorded right of way or easement for a road in that location at the time the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations; or

(3) Was used or contained in a valid permit that existed when the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11; and

(d) That an interpretation of the terms of the document relied upon to establish the valid existing rights shall be based either upon applicable Virginia statutory or case law concerning interpretation of documents conveying mineral rights or, where no applicable state law exists, upon the usage and custom at the time and place it came into existence.

"Valley fill" means a fill structure consisting of any material, other than organic material, that is placed in a valley where side slopes of the existing valley, measured at the steepest point, are greater than 20 degrees, or where the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees.

"Violation," when used in the context of the permit application information or permit eligibility requirements of §§ 45.1-235 45.2-1010 and 45.1-238 C 45.2-1013 of the Act and related regulations, means:

(a) A failure to comply with an applicable provision of a federal or state law or regulation pertaining to air or water environmental protection as evidenced by a written notification from a governmental entity to the responsible person; or

(b) A noncompliance for which the division has provided one or more of the following types of notice or OSM or a state regulatory authority has provided equivalent notice under corresponding provisions of a federal or state regulatory program:

(1) A notice of violation under 4VAC25-130-843.12;

(2) A cessation order under 4VAC25-130-843.11;

(3) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under 4VAC25-130-845 or 4VAC25-130-846;

(4) A bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR Part 870; or

(5) A notice of bond forfeiture under 4VAC25-130-800.50 when:

(i) One or more violations upon which the forfeiture was based have not been abated or corrected; or

(ii) The amount forfeited and collected is insufficient for full reclamation under 4VAC25-130-800.50 or 4VAC-25-130-801.19, the division orders reimbursement for additional reclamation costs and the person has not complied with the reimbursement order.

"Violation, failure, or refusal," for purposes of 4VAC25-130-846, means:

(a) A failure to comply with a condition of an issued permit or the regulations implementing those sections; or

(b) A failure or refusal to comply with any order issued under 4VAC25-130-843 or any order incorporated in a final decision issued by the director, except an order incorporated in a decision issued under § 45.1-246 § 45.2-1021 of the Act.

"Violation notice" means any written notification from a governmental entity of a violation of law or regulation, whether by letter, memorandum, legal or administrative pleading, or other written communication.

"Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

"Willful" or "willfully" means that a person who authorized, ordered, or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted:

(a) Intentionally, voluntarily, or consciously; and

(b) With intentional disregard or plain indifference to legal requirements.

4VAC25-130-700.11. Applicability.

(a) Except as provided in Paragraph (b) of this section, this chapter applies to all coal exploration and surface coal mining and reclamation operations, except--

(1) The extraction of coal by a landowner for his own non-commercial use from land owned or leased by him. Non-commercial use does not include the extraction of coal by one unit of an integrated company or other business or non-profit entity which uses the coal in its own manufacturing or power plants;

(2) The extraction of 250 tons of coal or less by a person conducting a surface coal mining and reclamation operation. A person who intends to remove more than 250 tons is not exempted;

(3) The extraction of coal as an incidental part of Federal, State or local government-financed highway or other construction in accordance with Part 707;

(4) The extraction of coal incidental to the extraction of other minerals where coal does not exceed 16-2/3 percent of the total tonnage of coal and other minerals removed for purposes of commercial use or sale in accordance with Part 702.

(b) The division may on its own initiative and shall, within a reasonable time of a request from any person who intends to conduct surface coal mining operations, make a written determination whether the operation is exempt under this section. The division shall give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the division shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption. If a written determination of exemption is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination, shall not be cited for violations which occurred prior to the date of the reversal.

(c)(1) The division may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, when: (i) The division determines in writing that under the initial program, all requirements imposed under Chapter 17 (§ 45.1-198 et seq.) of Title 45.1 of the Code of Virginia have been successfully completed; or (ii) The the division determines in writing that under the permanent program, all requirements imposed under Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia have been successfully completed or, where a performance bond was required, the division has made a final decision in accordance with Part 800 or 801 of this chapter to release the performance bond fully.

(2) Following a termination under Paragraph (d)(1) of this section, the division shall reassert jurisdiction under this chapter over a site if it is demonstrated that the bond release or written determination referred to in Paragraph (d)(1) of this section was based upon fraud, collusion, or misrepresentation of a material fact.

4VAC25-130-700.14. Availability of records.

(a) Records required by the Act to be made available to the public shall be retained at the division office in Big Stone Gap.

(b) Requests for other documents or records in the possession of the division should be made in accordance with the Virginia Freedom of Information Act, Chapter 21, Title 2.1, (§ 2.2-3700 et seq. of the Code of Virginia, (1950), as amended).

4VAC25-130-701.11. Applicability.

(a) Any person who conducts surface coal mining operations on non-Indian or non-Federal lands within the Commonwealth of Virginia shall have a permit issued pursuant to requirements of Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

(b) Any person who conducts surface coal mining operations on Federal lands located within the Commonwealth of Virginia shall have a permit issued pursuant to Part 740.

(c) The requirements of Subchapter VK shall be effective and shall apply to each surface coal mining and reclamation operation for which the surface coal mining operation is required to obtain a permit under the Act, on the earliest date upon which the Act and this chapter require a permit to be obtained, except as provided in Paragraph (d) of this section.

(d)(1) Each structure used in connection with or to facilitate a coal exploration or surface coal mining and reclamation operation shall comply with the performance standards and the design requirements of Subchapter VK, except that--

(i) An existing structure which meets the performance standards of Subchapter VK but does not meet the design requirements of Subchapter VK may be exempted from meeting those design requirements by the division. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-130-784.12 and after making the findings required in 4VAC25-130-773.15.

(ii) If the performance standard of Subchapter B of 30 CFR Chapter VII is at least as stringent as the comparable performance standard of Subchapter VK, an existing structure which meets the performance standards of Subchapter B of 30 CFR Chapter VII may be exempted by the division from meeting the design requirements of Subchapter VK. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-30-784.12 and after making the findings required in 4VAC25-130-773.15.

(iii) An existing structure which meets a performance standard of Subchapter B of 30 CFR Chapter VII which is less stringent than the comparable performance standards of Subchapter VK or which does not meet a performance standard of Subchapter VK, for which there was no equivalent performance standards in Subchapter B of 30 CFR Chapter VII, shall be modified or reconstructed to meet the performance and design standards of Subchapter VK pursuant to a compliance plan approved by the division only as part of the permit application as required in 4VAC25-130-780.12 or 4VAC25-130-784.12 and according to the findings required by 4VAC25-130-773.15.

(iv) An existing structure which does not meet the performance standards of Subchapter B of 30 CFR Chapter VII and which the applicant proposes to use in connection with or to facilitate the coal exploration or surface coal mining and reclamation operation shall be modified or reconstructed to meet the performance and design standards of Subchapter VK prior to issuance of the permit.

(2) The exemptions provided in Paragraphs (d)(1)(i) and (d)(1)(ii) of this section shall not apply to -

(i) The requirements for existing and new coal mine waste disposal facilities; and

(ii) The requirements to restore the approximate original contour of the land.

(e)(1) Any person conducting coal exploration on non-Federal and non-Indian lands shall either file a notice of intention to explore or obtain approval of the division, as required by Part 772.

(2) Coal exploration performance standards in Part 815 shall apply to coal exploration on non-Federal and non-Indian lands which substantially disturbs the natural land surface.

4VAC25-130-702.11. Application requirements and procedures.

(a)(1) Any person who plans to commence or continue coal extraction after the effective date of this Part, in reliance on the incidental mining exemption shall file a complete application for exemption with the division for each mining area.

(2) A person may not commence coal extraction based upon the exemption until the division approves such application, except as provided in Paragraph (e)(3) of this section.

(b) Existing operations. Any person who has commenced coal extraction at a mining area in reliance upon the incidental mining exemption prior to the effective date of the incidental mining provisions in this chapter may continue mining operations for 60 days after such effective date. Coal extraction may not continue after such 60-day period unless that person files an administratively complete application for exemption with the division. If an administratively complete application is filed within 60 days, the person may continue extracting coal in reliance on the exemption beyond the 60-day period until the division makes an administrative decision on such application.

(c) Additional information. The division shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.

(d) Public comment period. Following publication of the newspaper notice required by 4VAC25-130-702.12(g), the division shall provide a period of no less than 30 days during which time any person having an interest which is or may be adversely affected by a decision on the application may submit written comments or objections.

(e) Exemption determination.

(1) No later than 90 days after filing of an administratively complete application, the division shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this Part, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

(2) The determination of exemption shall be based upon information contained in the application and any other information available to the division at that time.

(3) If the division fails to provide an applicant with the determination as specified in Paragraph (e)(1) of the section, an applicant who has not begun may commence coal extraction pending a determination on the application unless the division issues an interim finding, together with reasons therefor, that the applicant may not begin coal extraction.

(f) Administrative review.

(1) Any adversely affected person may request administrative review of a determination under Paragraph (e) of this section within 30 days of the notification of such determination in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(2) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a determination under Paragraph (e) of this section.

4VAC25-130-702.17. Revocation and enforcement.

(a) The division shall conduct an annual compliance review of the mining area, utilizing the annual report submitted pursuant to 4VAC25-130-702.18, an on-site inspection and any other information available to the division.

(b) If the division has reason to believe that a specific mining area was not exempt under the provision of this Part at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the division shall notify the operator that the exemption may be revoked and the reason(s) therefore. The exemption will be revoked unless the operator demonstrates to the division within 30 days that the mining area in question should continue to be exempt.

(c)(1) If the division finds that an operator has not demonstrated that activities conducted in the mining area qualify for the exemption, the division shall revoke the exemption and immediately notify the operator and intervenors. If a decision is made not to revoke an exemption, the division shall immediately notify the operator and intervenors.

(2) Any adversely affected person may request administrative review of a decision whether to revoke an exemption within 30 days of the notification of such decision in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(3) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a decision whether to revoke an exemption.

(d)(1) An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of this chapter which occurred prior to the revocation of the exemption.

(2) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know such activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of this chapter which occur during the period of such activities.

(3) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of this chapter with regard to conditions, areas and activities existing at the time of revocation or denial.

4VAC25-130-705.24. Confidentiality and access to disclosure statements.

(a) The provisions of the Privacy Protection Act of 1976 Virginia Freedom of Information Act (Chapter 26 (§ 2.1-377 § 2.2-3700 et seq.) of Title 2.1 of the Code of Virginia) shall apply to statements and information obtained pursuant to these regulations.

(b) All statements of employment and financial interest which are filed pursuant to these regulations, and the information shown thereon, shall be maintained only for the purposes of determining whether there are any direct or indirect financial interests in violation of Section 45.1-231 § 45.2-1005 of the Act, and Section 517(g) of the Federal Act. No other use is authorized.

(c) Access to such statements and information shall be restricted to personnel of the Department and of the U.S. Department of the Interior, and State and Federal enforcement authorities (including the U.S. Justice Department) for the purposes for which the information was collected. Access among personnel of the Department shall be further restricted to only those persons specified by the Director as having regular access to the statements and information.

(d) All such statements and information shall be maintained separate and apart from personnel records and other records to which the public could have access.

(e) The filing and information system where such statements and information are stored shall be identified as restricted access and secured against unauthorized access. The Director shall designate a custodian for records maintained in the Division's Office in Big Stone Gap, and another custodian for records maintained in the Department's Offices in Richmond. The duties of these custodians shall be to maintain restricted access and security for their respective records.

(f) Whenever any employee ceases to occupy a listed position which requires the filing of a statement of employment and financial interest, all such statements then on file from such employee shall be returned to the employee and all information systems purged of the data provided by such statements upon request of the employee. In addition, the custodian of the records where such statements are maintained shall periodically update the records by purging them of statements and information pertaining to employees who no longer occupy listed positions.

4VAC25-130-740.15. Bonds on federal lands.

(a) Federal lease bonds.

(1) Each holder of a Federal coal lease that is covered by a Federal lease bond required under 43 CFR 3474 may apply to the authorized officer of the Federal agency that has administrative jurisdiction over the Federal lands for release of liability for that portion of the Federal lease bond that covers reclamation requirements.

(2) The authorized officer may release the liability for that portion of the Federal lease bond that covers reclamation requirements if:

(i) The lessee has secured a suitable performance bond covering the permit area under this Part;

(ii) There are no pending actions or unresolved claims against existing bonds; and

(iii) The authorized officer has received concurrence from the OSM and the Bureau of Land Management.

(b) Performance bonds. The performance bonds required for operations on Federal lands shall be made payable to the United States and the Commonwealth of Virginia: Director-Division of Mined Land Reclamation Repurposing.

(c) Federal lessee protection bonds.

(1) Where leased Federal coal is to be mined and the surface of the land is subject to a lease or permit issued by the United States for purposes other than surface coal mining, the applicant for a mining permit, if unable to obtain the written consent of the permittee or lessee of the surface to enter and commence surface coal mining operations, shall submit to the division with the application evidence of execution of a bond or undertaking which meets the requirements of this section. The Federal lessee protection bond is in addition to the performance bond required by Subchapter VJ. This section does not apply to permits or licenses for the use of the surface that do not convey to the permittee or licensee the right of transfer, sale or consent to other uses.

(2) The bond shall be payable to the United States for the use and benefit of the permittee or lessee of the surface lands involved.

(3) The bond shall secure payment to the surface estate for any damage which the surface coal mining and reclamation operation causes to the crops or tangible improvements of the permittee or lessee of the surface lands.

(4) The amount of the bond shall be determined either by the applicant and the Federal lessee or permittee, or if an agreement cannot be reached, as determined in an action brought against the person conducting surface coal mining and reclamation operations or upon the bond in a court of competent jurisdiction.

(d) Release of bonds.

(1) A Federal lease bond may be released by the OSM upon satisfactory compliance with all applicable requirements of 43 CFR 3480-3487 and 43 CFR 3400 and after the release is approved by the Bureau of Land Management.

(2) A Federal lessee protection bond shall be released by the OSM upon the written consent of the permittee or lessee.

(3) Where surface coal mining and reclamation operations are subject to an approved mining plan, a performance bond shall be released by the division after the release is approved by the OSM.

4VAC25-130-761.1. Scope.

This Part establishes the procedures and standards to be followed in determining whether a proposed surface coal mining and reclamation operation can be authorized in light of the prohibitions and limitations in Section 45.1-252 § 45.2-1028 of the Act for those types of operations on certain Federal, public and private lands in the Commonwealth.

4VAC25-130-761.3. Authority.

The Director is authorized by Section 45.1-252 § 45.2-1028 of the Act to prohibit or limit surface coal mining operations on or near certain private, Federal, and other public lands, subject to valid existing rights and except for those operations which existed on August 3, 1977.

4VAC25-130-761.12. 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 § 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.

4VAC25-130-761.16. Submission and processing of requests for valid existing rights determinations.

A. Basic framework for valid existing rights determinations. 30 CFR 761.16(a) identifies the agency responsible for making a valid existing rights determination and the definition that it must use based upon which subsection of 30 CFR 761.11 or 4VAC25-130-761.11 applies and whether the request includes federal lands.

B. A request for a valid existing rights determination must be submitted to the division if a person intends to conduct surface coal mining operations on the basis of valid existing rights under 4VAC25-130-761.11 or wishes to confirm the right to do so. The request may be submitted before the person prepares and submits an application for a permit or boundary revision for the land.

1. The person must provide a property rights demonstration under the definition of valid existing rights if the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in 4VAC25-130.700.5. For the land subject to the request, the demonstration must include:

a. A legal description of the land;

b. Complete documentation of the character and extent of the person's current interests in the surface and mineral estates of the land;

c. A complete chain of title for the surface and mineral estates of the land;

d. A description of the nature and effect of each titles instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

e. A description of the type and extent of surface coal mining operations that the person claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with Virginia property law;

f. Complete documentation of the nature and ownership, as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11, of all property rights for the surface and mineral estates;

g. Names and addresses of the current owners of the surface and mineral estates of the land;

h. If the coal interests have been severed from other property interests, documentation that the person has notified and provided reasonable opportunity for the owners of other property interests in the land to comment on the validity of the person's property rights claims; and

i. Any comments that the person receives in response to the notification provider under subdivision 1 h of this subsection.

2. If the request relies upon the good faith/all permits standard in subdivision (b)(1) of the valid existing rights definition in 4VAC25-130-700.5, the person must also submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land subject to the request that the person or predecessor in interest obtained, submitted, or made:

a. Approval and issuance dates and identification numbers for any permits, licenses, and authorizations obtained before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

b. Application dates and identification numbers for any permits, licenses, and authorizations submitted before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

c. An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

3. If the request relies upon the needed for and adjacent standard in subdivision (b)(2) of the valid existing rights definition in 4VAC25-130-700.5, the person must explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

4. If the request relies upon one of the standards for roads in subdivision (c) of the valid existing rights definition in 4VAC25-130-700.5, the person must submit satisfactory documentation that:

a. The road existed when the land upon which it is located came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and the person has a legal right to use the road for surface coal mining operations;

b. A properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and under the document creating the right of way or easement and under any subsequent conveyances, the person has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

c. A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

C. Initial review of request.

1. The division must conduct an initial review to determine whether the request includes all applicable components of the submission requirements of subsection B of this section. The review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

2. If the request does not include all applicable components of the submission requirements of subsection B of this section, the division must notify the person and establish a reasonable time for submission of the missing information. Should the person not provide the information requested by the division under this subdivision within the time specified or as subsequently extended, the division must issue a determination under subdivision E 4 of this section that the person has not demonstrated valid existing rights.

3. When the request includes all applicable components of the submission requirements of subsection B of this section, the division must implement the notice and comment requirements of subsection D of this section.

D. 1. When the division determines that the request satisfies the completeness requirements of subsection C of this section, it shall publish a notice in a newspaper of general circulation in the county in which the land is located inviting public comment on the merits of the request. OSM will publish a similar notice in the Federal Register if the request involves federal lands within an area listed in 4VAC25-130-761.11 (a) or (b). The public notice must include:

a. The location of the land to which the request pertains.

b. A description of the type of surface coal mining operations planned.

c. A reference to and brief description of the applicable standard or standards under the definition of valid existing rights in 4VAC25-130-700.5.

(1) If the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the property rights that the person claims and the basis for the claim.

(2) If the request relies upon the road standard set forth in subdivision (c) (1) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that the road existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that the person has a legal right to use that road for surface coal mining operations.

(3) If the request relies upon the standard in subdivision (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

d. If the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, a statement that the division will not make a decision on the merits of the request if, by the close of the comment period under the notice or the notice required by subdivision 3 of this subsection, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the valid existing rights claim.

e. A description of the procedures the division will follow in processing the request.

f. The closing date of the public comment period, which shall be a minimum of 30 days after the notice's publication date.

g. A statement that interested persons may request, in writing, from the division a 30-day extension of the public comment period. The extension request shall set forth with reasonable specificity the reasons the commenter needs the additional time to submit comments.

h. Include the division office's address where a copy of the valid existing rights request is available for public inspection and where comments and requests for extension of the comment period should be sent.

2. The division must promptly provide a copy of the notice required under subdivision 1 of this subsection to:

a. All reasonably locatable owners of surface and mineral estates in the land included in the valid existing rights request.

b. The owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and when applicable, the agencies with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of 4VAC25-130-761.11.

3. The notice required under subdivision 2 of this subsection must provide a 30-day comment period and specify that an additional 30 days may be granted for good cause shown at the discretion of the division or agency responsible for the valid existing rights determination.

E.1. The division or agency responsible for making the valid existing rights determination must review the materials submitted under subsection B of this section, comments received under subsection D of this section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the division must notify the person in writing explaining the inadequacy of the record and requesting submittal within a specified reasonable time of any additional information that the division deems necessary to remedy the inadequacy.

2. Once the record is complete and adequate, the division must make a determination as to whether valid existing rights have been demonstrated. The division's decision must explain how the person has or has not satisfied all applicable elements of the valid existing rights definition under 4VAC25-130-700.5, contain findings of fact and conclusions, and specify the reasons for the conclusions.

3. When the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (2) of the valid existing rights definition in 4VAC25-130-700.5, the division:

a. Must issue a determination that the person has not demonstrated valid existing rights if the property rights claim is the subject of pending litigation in a court or administrative body with the jurisdiction over the property rights in question. The division will make the determination without prejudice, meaning that the person may refile the request once the property rights dispute is finally adjudicated. This applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions D 1 and 3 of this section.

b. If the record indicates disagreement of the accuracy of the person's property rights claim, but the disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, must evaluate the merits of the information in the record and determine whether the person has demonstrated that the requisite property rights exist under subdivision (a), (c) (1) or (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, as appropriate. The division must then proceed with the decision process under subdivision 2 of this subsection.

4. The division must issue a determination that the person has not demonstrated valid existing rights if the person does not submit information that the division requests under subdivision C 2 of this section or subdivision 1 of this subsection within the time specified or as subsequently extended. The division will make the determination without prejudice, meaning the person may refile a revised request at any time.

5. After making a valid existing rights determination, the division shall:

a. Provide a copy of the determination with an explanation of appeal rights and procedures to the person seeking the determination, owner or owners of the land to which the determination applies, owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and, when applicable, 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.

b. Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) will publish the determination, together with an explanation of appeal rights and procedures in the Federal Register if the request includes federal lands within an area listed in 4VAC25-130-761.11 (a) or (b).

F. The division's valid existing rights determination shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.

G. The division must make a copy of the valid existing rights determination request available to the public as provided by 4VAC25-130-773.13 (d) and the records associated with that request, and any subsequent determination under subsection E of this section, available to the public in accordance with 4VAC25-130-840.14.

4VAC25-130-762.14. Exploration on land designated as unsuitable for surface coal mining operations.

Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to Section 45.1-252 § 45.2-1028 of the Act and this Subchapter does not prohibit coal exploration operations in the area, if conducted in accordance with the Act, this chapter, and other applicable requirements. Exploration operations on any lands designated unsuitable for surface coal mining operations must be approved by the division under Part 772 to ensure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining operations.

4VAC25-130-764.13. Petitions.

(a) Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Director to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. For the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he meets an "injury in fact" test by describing the injury to his specific affected interests and demonstrate how he is among the injured.

(b) Designation. A complete petition for designation shall include:

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) A statement of whether the petitioner is an individual, an association, sole proprietorship, partnership, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, and the resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size, and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area;

(4) An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and

(7) Allegations of fact and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for surface coal mining operations, pursuant to specific criteria of Subsections of Section 45.1-252 § 45.2-1028 of the Act, assuming that contemporary mining practices required under the Act would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned areas.

(8) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

(c) Termination. A complete petition for termination shall include--

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) Statement of whether the petitioner is an individual, an association, sole proprietorship, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, directors, and resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area to which the termination petition applies;

(4) An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) Allegations of fact covering all lands for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under the Act would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

(i) Nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in 4VAC25-130-762.11(b);

(ii) Reclamation now being technologically and economically feasible if the designation was based on the criteria found in 4VAC25-130-762.11(a); or

(iii) Resources or conditions not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on criteria found in 4VAC25-130-762.11(b).

(7) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

4VAC25-130-764.19. Decision.

(a) In reaching his decision, the Director shall use:

(1) The information contained in the data base and inventory system as required by 4VAC25-130-764.21;

(2) Information provided by other governmental agencies;

(3) The detailed statement when it is prepared under 4VAC25-130-764.17(e); and

(4) Any other relevant information submitted during the comment period.

(b) A final written decision shall be issued by the Director, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Director shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding.

(c) The decision of the Director with respect to a petition, or the failure of the Director to act within the time limits set forth in this section, shall be subject to judicial review by a court of competent jurisdiction in accordance with Section 45.1-251 § 45.2-1027 of the Act and 4VAC25-130-775.13. All relevant portions of the data base, inventory system, and public comments received during the public comment period set by the Director shall be considered and included in the record of the administrative proceeding.

4VAC25-130-773.13. Public participation in permit processing.

(a) Filing and public notice.

(1) Upon submission of an administratively complete application, an applicant for a permit, significant revision of a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, shall place an advertisement in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least once a week for four consecutive weeks. A copy of the advertisement as it will appear in the newspaper shall be submitted to the division. The advertisement shall contain, at a minimum, the following:

(i) The name and business address of the applicant.

(ii) A map or description which clearly shows or describes the precise location and boundaries of the proposed permit area and is sufficient to enable local residents to readily identify the proposed permit area. It may include towns, bodies of water, local landmarks, and any other information which would identify the location. The name of the U.S. Geological Survey 7.5 minute quadrangle map(s) which contains the area shown or described shall be stated; and if a map is used, it shall indicate the north direction.

(iii) The location where a copy of the application is available for public inspection.

(iv) The name and address of the division office where written comments, objections, or requests for informal conferences on the application may be submitted under Paragraphs (b) and (c) of this section.

(v) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, except where public notice and hearing have previously been provided for this particular part of the road in accordance with 4VAC25-130-761.12(d); a concise statement describing the public road, the particular part to be relocated or closed, and the approximate timing and duration of the relocation or closing.

(vi) If the application includes a request for an experimental practice under 4VAC25-130-785.13, a statement indicating that an experimental practice is requested and identifying the regulatory provisions for which a variance is requested.

(2) The applicant shall make an application for a permit, significant revision under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, available for the public to inspect and copy by filing a full copy of the application with the Clerk of the Circuit Court of the city or county where the mining is proposed to occur, or an accessible public office approved by the division. This copy of the application need not include confidential information exempt from disclosure under Paragraph (d) of this section. The application required by this Paragraph shall be filed by the first date of newspaper advertisement of the application. The applicant shall file any changes to the application with the public office at the same time the change is submitted to the division.

(3) Upon receipt of an administratively complete application for a permit, a significant revision to a permit under 4VAC25-130-774.13, or a renewal of a permit under 4VAC25-130-774.15, the division shall issue written notification indicating the applicant's intention to mine the described tract of land, the application number or other identifier, the location where the copy of the application may be inspected, and the location where comments on the application may be submitted. The notification shall be sent to--

(i) Local governmental agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to planning agencies, sewage and water treatment authorities, water companies; and

(ii) All Federal or State governmental agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and which are part of the permit coordinating process developed in accordance with 4VAC25-130-773.12; or those agencies with an interest in the proposed operation, including the U.S. Department of Agriculture, Natural Resources Conservation Service district office, the local U.S. Army Corps of Engineers district engineer, the National Park Service, State and Federal fish and wildlife agencies, and the historic preservation officer.

(b) Comments and objections on permit application.

(1) Within 30 days after notification, written comments or objections on an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by public entities notified under Paragraph (a)(3) of this section with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.

(2) Written objections to an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by any person having an interest which is or may be adversely affected by the decision on the application, or by an officer or head of any Federal, State, or local government agency or authority, within 30 days after the last publication of the newspaper notice required by Paragraph (a) of this section.

(3) The division shall upon receipt of such written comments or objections--

(i) Transmit a copy of the comments or objections to the applicant; and

(ii) File a copy for public inspection at the same public office where the application is filed.

(c) Informal conferences.

(1) Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the division hold an informal conference on the application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15. The request shall--

(i) Briefly summarize the issues to be raised by the requestor at the conference;

(ii) State whether the requestor desires to have the conference conducted in the locality of the proposed operation; and

(iii) Be filed with the division no later than 30 days after the last publication of the newspaper advertisement required under Paragraph (a) of this section.

(2) Except as provided in Paragraph (c)(3) of this section, if an informal conference is requested in accordance with Paragraph (c)(1) of this section, the division shall hold an informal conference within a reasonable time following the receipt of the request. The informal conference shall be conducted as follows:

(i) If requested under Paragraph (c)(1)(ii) of this section, it shall be held in the locality of the proposed surface coal mining and reclamation operation.

(ii) The date, time, and location of the informal conference shall be sent to the applicant and other parties to the conference and advertised by the division in a newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least 2 weeks before the scheduled conference.

(iii) If requested in writing by a conference requestor at a reasonable time before the conference, the division may arrange with the applicant to grant parties to the conference access to the proposed permit area and, to the extent that the applicant has the right to grant access to it, to the adjacent area prior to the date of the conference for the purpose of gathering information relevant to the conference.

(iv) The conference shall be conducted by a representative of the division, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond or other equivalent guarantee pursuant to Subchapter VJ.

(3) If all parties requesting the informal conference withdraw their request before the conference is held, the informal conference may be canceled.

(4) Informal conferences held in accordance with this section may be used by the division as the public hearing required under 4VAC25-130-761.12(d) on proposed relocation or closing of public roads.

(d) Public availability of permit applications.

(1) General availability. Except as provided in Paragraphs (d)(2) or (d)(3) of this section, all applications for permits; revisions; renewals; and transfers, assignments or sales of permit rights on file with the Division shall be available, at reasonable times, for public inspection and copying.

(2) Limited availability. Except as provided in Paragraph (d)(3)(i) of this section, information pertaining to coal seams, test borings, core samplings, or soil samples in an application shall be made available to any person with an interest which is or may be adversely affected. Information subject to this Paragraph shall be made available to the public when such information is required to be on public file pursuant to State law.

(3) Confidentiality. The division shall provide procedures, including notice and opportunity to be heard for persons both seeking and opposing disclosure, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to--

(i) Information that pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of such coal which are potentially toxic in the environment;

(ii) Information required under Section 45.1-236 § 45.2-1011 of the Act that is not on public file pursuant to State law and that the applicant has requested in writing to be held confidential;

(iii) Information on the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 721, 16 USC § 470).

4VAC25-130-773.15. Review of permit applications.

(a) General.

(1) The division shall review the application for a permit, revision, or renewal; written comments and objections submitted; information from the AVS; and records of any informal conference or hearing held on the application and issue a written decision, within a reasonable time, either granting, requiring modification of, or denying the application. If an informal conference is held under 4VAC25-130-773.13(c), the decision shall be made within 60 days of the close of the conference.

(2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.

(3) The division shall review the information submitted under 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's or operator's permit histories, business structure, and ownership and control relationships.

(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.

(b) Review of violations.

(1) Based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to § 518 of the federal Act and § 45.1-246 § 45.2-1021 of the Code of Virginia, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the division shall not issue the permit if any surface coal mining and reclamation operation directly owned or controlled by either the applicant or operator is currently in violation of the federal Act, this chapter, or any other law, rule or regulation referred to in this subdivision; or if a surface coal mining and reclamation operation indirectly owned or controlled by the applicant or operator has an unabated or uncorrected violation and the applicant's or operator's control was established or the violation was cited after November 2, 1988. In the absence of a failure-to-abate cessation order, the division may presume that a notice of violation issued pursuant to 4VAC25-130-843.12 or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or the AVS, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the division shall require the applicant or operator, before the issuance of the permit, to either

(i) Submit to the division proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

(ii) Establish for the division that the applicant, or operator, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority under 4VAC25-130-775.13 affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under subdivision (b)(1)(i) of this section.

(2) Any permit that is issued on the basis of proof submitted under subdivision (b)(1)(i) of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in subdivision (b)(1)(ii) of this section, shall be conditionally issued.

(3) If the division makes a finding that the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 4VAC25-130-775.11.

(4) (i) Subsequent to October 24, 1992, the prohibitions of subsection (b) of this section regarding the issuance of a new permit shall not apply to any violation that:

(A) Occurs after that date;

(B) Is unabated; and

(C) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit held by the person making application for the new permit.

(ii) For permits issued under 4VAC25-130-785.25 an event or condition shall be presumed to be unanticipated for the purposes of this subdivision if it:

(A) Arose after permit issuance;

(B) Was related to prior mining; and

(C) Was not identified in the permit.

(c) Written findings for permit application approval. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the division finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:

(1) The application is complete and accurate and the applicant has complied with all requirements of the Act and this chapter.

(2) The applicant has demonstrated that reclamation as required by the Act and this chapter can be accomplished under the reclamation plan contained in the permit application.

(3) The proposed permit area is:

(i) Not within an area under study or administrative proceedings under a petition, filed pursuant to Part 764 of this chapter and 30 CFR Part 769, to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he has made substantial legal and financial commitments in relation to the operation covered by the permit application; or

(ii) Not within an area designated as unsuitable for mining pursuant to Parts 762 and 764 of this chapter, or subject to the prohibitions or limitations of 4VAC25-130-761.11 and 4VAC25-130-761.12.

(4) For mining operations where the private mineral property to be mined has been severed from the private surface property, the applicant has submitted to the division the documentation required under 4VAC25-130-778.15(b).

(5) The division has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

(6) The applicant has demonstrated that any existing structure will comply with 4VAC25-130-701.11(d) and 4VAC25-130-773.16, and the applicable performance standards of the initial regulatory program or Subchapter VK.

(7) The applicant has paid all reclamation fees, civil penalty assessments, Pool Bond Fund fees, and anniversary fees, from previous and existing operations as required by this chapter.

(8) The applicant has satisfied the applicable requirements of Part 785 of this chapter.

(9) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural postmining land use, in accordance with the requirements of 4VAC25-130-816.111(d) or 4VAC25-130-817.111(d).

(10) The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 USC § 1531 et seq.).

(11) The division has taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the division has determined that no additional protection measures are necessary.

(12) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of 4VAC25-130-816.106 or 4VAC25-130-817.106, the site of the operation is a previously mined area as defined in 4VAC25-130-700.5.

(13) The applicant or the permittee specified in the application, has not owned or controlled a surface mining and reclamation operation for which the permit has been revoked and/or the bond forfeited pursuant to the Code of Virginia or any federal law, rule or regulation, or any law, rule or regulation enacted pursuant to federal or state law pertaining to air or water environmental protection and surface coal mining activities in any other state unless reinstated. Applicable Virginia reinstatement requirements may be found in 4VAC25-130-800.52.

(14) For permits to be issued under 4VAC25-130-785.25 the permit application must contain:

(i) Lands eligible for remining;

(ii) An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site; and

(iii) Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of this chapter can be accomplished.

(d) Performance bond submittal. If the division decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Subchapter VJ.

(e) Final compliance review. After an application is approved, but before the permit is issued, the division shall reconsider its decision to approve the application, based on the compliance review required by subdivision (b)(1) of this section in light of any new information submitted under 4VAC25-130-778.13 (j) or 4VAC25-130-778.14 (d).

4VAC25-130-774.12. Post-permit issuance requirements.

A. For purposes of future permit eligibility determinations and enforcement actions, the division will utilize the AVS to retrieve and enter appropriate data regarding ownership, control, and violation information. The division shall enter into the AVS:

Information	Within 30 days after
(1) Permit records	the permit is issued or subsequent changes made
(2) Unabated or uncorrected violations	the abatement or correction period for a violation expires
(3) Unpaid final civil penalties, charges, taxes, or fees	the required due payment date
(4) Changes in violation status	abatement, correction or termination of a violation or a final decision from an administrative or judicial review proceeding

B. In the event the permittee is issued enforcement action under 4VAC25-130-843.11 and fails to timely comply with the order's remedial measures, the division shall instruct the permittee to provide or update all the information required by 4VAC25-130-778.13. However, the permittee would not be required to submit this information if a court of competent jurisdiction has granted a stay of the cessation order and the stay remains in effect.

C. The permittee shall notify the division within 60 days of any addition, departure, or change in position of any person identified under 4VAC25-130-778.13. The permittee shall provide the date of such addition, departure, or change of such person.

D. Should the division discover that the permittee or a person listed in an ownership or control relationship with the permittee owns or controls an operation with an unabated or uncorrected violation, it will determine whether enforcement action is appropriate under 4VAC25-130-843 and 4VAC25-130-846 or other applicable provisions. The division may issue a preliminary finding of permit ineligibility under § 45.1-238 (c) § 45.2-1013 of the Act if it finds that the person had control relationships and violations that would have made the person ineligible for a permit under 4VAC25-130-773.15. The finding shall be in accordance with 4VAC25-130-773.20 (c) (3).

E. If a determination of permit ineligibility is rendered by the division, the person would have 30 days from service of the written finding to submit any information that would tend to demonstrate the person's lack of ownership or control of the surface coal mining operation. The division would issue a final determination regarding the permit eligibility within 30 days of receiving any information from the person or from the expiration date that the person could submit the information under this subsection. A person aggrieved by the division's eligibility finding would have the right to request review under 4VAC25-130-775.

4VAC25-130-775.11. Administrative review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900, 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-775.13. Judicial review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-780.18. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Section 45.1-242 § 45.2-1017 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-780.18 through 4VAC25-130-780.37.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross-sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-816.102 through 4VAC25-130-816.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-816.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-816.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosporous, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, and field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-816.111 through 4VAC25-130-816.116, including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-816.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-816.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-816.89 and 4VAC25-130-816.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-816.13 through 4VAC25-130-816.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-816.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.13. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Sections 45.1-242 and 45.1-243 §§ 45.2-1017 and 45.2-1018 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-784.13 through 4VAC25-130-784.29.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of the reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ, with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-817.102 through 4VAC25-130-817.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-817.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-817.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosphorus, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-817.111 through 4VAC25-130-817.116 including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-817.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-817.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-817.89 and 4VAC25-130-817.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-817.13 through 4VAC25-130-817.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-817.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.20. Subsidence control plan.

(a) Presubsidence survey. Each application must include:

(1) A map of the permit and adjacent areas at a scale of 1:12,000, or larger if determined necessary by the division, showing the location and type of structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence, and showing the location and type of drinking, domestic, and residential water supplies that could be contaminated, diminished, or interrupted by subsidence.

(2) A narrative indicating whether subsidence, if it occurred, could cause material damage to or diminish the value or reasonably foreseeable use of such structures or renewable resource lands or could contaminate, diminish, or interrupt drinking, domestic, or residential water supplies.

(3) A survey of the quantity and quality of all drinking, domestic and residential water supplies within the permit area and adjacent area that could be contaminated, diminished or interrupted by subsidence. If the applicant cannot make this survey because the owner will not allow access to the site, the applicant will notify the owner in writing of the effect that denial of access will have pursuant to § 45.1-258 D § 45.2-1030 of the Code of Virginia, as amended. The applicant must pay for any technical assessment or engineering evaluation used to determine the quantity and quality of drinking, domestic, or residential water supplies. The applicant must provide copies of the survey and any technical assessment or engineering evaluation to the property owner and the division.

(b) Subsidence control plan. If the survey conducted under subsection (a) of this section shows that no structures, or drinking, domestic, or residential water supplies, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of such structures or lands, and no contamination, diminution or interruption of such water supplies would occur as a result of mine subsidence, and if the division agrees with this conclusion, no further information need be provided under this section. If the survey shows that structures, renewable resource lands, or water supplies exist and that subsidence could cause material damage or diminution in value or reasonably foreseeable use, or contamination, diminution or interruption of protected water supplies, or if the division determines that damage, diminution, in value or foreseeable use, or contamination, diminution, or interruption could occur, the application must include a subsidence control plan that contains the following information:

(1) A description of the method of coal removal, such as longwall mining, room-and-pillar removal or hydraulic mining including the size, sequence and timing of the development of underground workings;

(2) A map of the underground workings that describes the location and extent of the areas in which planned subsidence mining methods will be used and that identifies all areas where the measures described in subdivisions (b) (4), (b) (5), and (b) (7) of this section will be taken to prevent or minimize subsidence and subsidence related damage; and, when applicable, to correct subsidence related material damage;

(3) A description of the physical conditions, such as depth of cover, seam thickness and lithology of overlaying strata, that affects the likelihood or extent of subsidence and subsidence related damage;

(4) A description of the monitoring, if any, needed to determine the commencement and degree of subsidence so that, when appropriate, other measures can be taken to prevent, reduce, or correct material damage in accordance with 4VAC25-130-817.121 (c).

(5) Except for those areas where planned subsidence is projected to be used, a detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence related damage, such as, but not limited to:

(i) Backstowing or backfilling of voids;

(ii) Leaving support pillars of coal;

(iii) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place; and

(iv) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.

(6) A description of the anticipated effects of planned subsidence, if any.

(7) For those areas where planned subsidence is projected to be used, a description of methods to be employed to minimize damage from planned subsidence to noncommercial buildings and occupied residential dwellings and structures related thereto; or the written consent of the owner of the structure or facility that minimization measures not be taken; or, unless the anticipated damage would constitute a threat to health or safety, a demonstration that the costs of minimizing damage exceed the anticipated costs or repair.

(8) A description of the measures to be taken in accordance with 4VAC25-130-817.41 (j) and 4VAC25-130-817.121 (c) to replace adversely affected protected water supplies or to mitigate or remedy any subsidence related material damage to the land and protected structures.

(9) Other information specified by the division as necessary to demonstrate that the operation will be conducted in accordance with 4VAC25-130-817.121.

4VAC25-130-789.1. Petition for award of costs and expenses under Section 45.1-249E § 45.2-1025 of the Act.

(a) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the Act which results in--

(1) A final order being issued by a Hearing Officer, or

(2) A final order being issued by the Director or division.

(b) The petition for an award of costs and expenses including attorneys' fees must be filed with the Hearing Officer who issued the final order, or if the final order was issued by the Director or division, with the Director or division, within 30 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(c) A petition, filed under this section, shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition--

(1) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of such costs and expenses; and

(3) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services. The person or agency to whom the petition is filed may consult with the division's legal counsel regarding claimed attorneys' fees.

(d) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

(e) Appropriate costs and expenses including attorneys' fees may be awarded--

(1) To any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Hearing Officer or Director or division determines that the person made a substantial contribution to the full and fair determination of the issues;

(2) To a permittee or permit applicant from any person where the permittee or permit applicant demonstrates that the person initiated an administrative proceeding under the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee or permit applicant.

(f) An award under these sections may include--

(1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under the Act; and

(2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

(g) Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under the Act may appeal such award to the division within 30 days, unless the Director or division has made the initial decision concerning such an award. Awards by the Director or division are final for the purposes of judicial review.

(h) For the purposes of this section, "person" shall include the Commonwealth, its agents, officers, or employees, and "permit applicant" shall include applicants for permit revisions, renewals, and transfer, assignment or sale of permit rights.

4VAC25-130-790.1. Purpose.

Section 45.1-246.1 45.2-1022 of the Act authorizes the commencement of civil actions by persons having an interest which is or may be adversely affected, in order to compel compliance with provisions of the Act. The purpose of this Part is to prescribe procedures governing the giving of notices required by Subsections (B) and (C) of section 45.1-246.1 § 45.2-1022 as a prerequisite to the commencement of such actions.

4VAC25-130-790.11. Service of notice.

(a) Notice to the Director. Service of notice given to the Director of an alleged violation or of an alleged failure of the Director to per form perform any act or duty under the Act which is not discretionary with the Director shall be accomplished by registered or certified mail addressed to the Director, Department of Mines, Minerals, and Energy, 202 North Ninth Street 1100 Bank Street, 8th Floor, Richmond, Virginia 23219. A copy of such notice shall be mailed to the Director, Division of Mined Land Reclamation Repurposing, P.O. Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(b) Notice to the Secretary of the Interior. Service of notice given to the Secretary of the Interior shall be accomplished by registered or certified mail addressed to the United States Secretary of the Interior, Office of the Secretary, Main Interior Building, Washington, D. C. 20240.

(c) Notice to alleged violator. Service of notice given to an alleged violator of the provisions of the Act or of any regulation in this chapter or of any permit or order issued pursuant thereto, shall be accomplished by registered or certified mail addressed to, or personal service upon, the permittee or managing agent of the coal surface mining operation alleged to be in violation. Where the alleged violator is a corporation, a copy of the notice will be sent by certified or registered mail to the registered agent of such corporation. Where the alleged violator is a government instrumentality or agency, the notice shall be sent by certified or registered mail to the head of such government instrumentality or agency.

(d) Notice served in accordance with the provisions of this Part shall be deemed given on the postmark date, if served by mail, or on the date of receipt, if personally served.

4VAC25-130-795.1. Scope and purpose.

This Part comprises the Small Operator Assistance Program (SOAP) and establishes the procedures for providing assistance to eligible operators by the division. It is an elective means for the division to satisfy the requirements of § 45.1-235 C § 45.2-1010 of the Act. The purpose of the program is to provide for eligible operators a determination of probable hydrologic consequences and a statement of results of test borings or core samplings which are required components of the permit application under Subchapter VG.

4VAC25-130-800.16. General terms and conditions of bond.

(a) The performance bond shall be in an amount determined by the division as provided in 4VAC25-130-800.14 or Part 801.

(b) The performance bond shall be payable to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing.

(c) The performance bond shall be conditioned upon faithful performance of all the requirements of the Act, this chapter, and the approved permit, including completion of the reclamation plan.

(d) The duration of the bond shall be for the time period provided in 4VAC25-130-800.13.

(e)(1) The bond shall provide a mechanism for a bank or surety company to give prompt notice to the division and the permittee of any action filed alleging the insolvency or bankruptcy of the surety company, the bank, or the permittee, or alleging any violations which would result in suspension or revocation of the surety or bank charter or license to do business.

(2) Upon the incapacity of a bank or surety company by reason of bankruptcy, insolvency, or suspension or revocation of a charter or license, the permittee shall be deemed to be without bond coverage and shall promptly notify the division. The division, upon notification received through procedures of Paragraph (e)(1) of this section or from the permittee, shall, in writing, notify the permittee who is without bond coverage and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and shall comply with the provisions of 4VAC25-130-816.132 or 4VAC25-130-817.132 and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations shall not resume until the division has determined that an acceptable bond has been posted.

4VAC25-130-800.21. Collateral bonds.

(a) Collateral bonds, except for letters of credit, shall be subject to the following conditions: The division shall—

(1) Keep custody of collateral deposited by the applicant until authorized for release or replacement as provided in this Subchapter.

(2) Value collateral at its current market value, not at face value.

(3) Require that certificates of deposit be made payable to or assigned to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing, both in writing and upon the records of the bank issuing the certificates. The division shall require the banks issuing these certificates to waive all rights of setoff or liens against those certificates and that such certificates be automatically renewable.

(4) Not accept an individual certificate of deposit in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(5) Require the applicant to deposit the certificates of deposit in a sufficient amount to assure that the division will be able to liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond required by this Subchapter.

(6) Require the applicant to designate, with the bond submitted, the person to whom—

(i) The collateral will be endorsed and returned upon release or replacement as provided in this Subchapter; and

(ii) Any interest or dividends paid on the collateral shall be paid.

(b) Cash accounts shall be subject to the following conditions:

(1) The division may authorize the permittee to supplement the bond through the establishment of a cash account in one or more federally- insured or equivalently protected accounts made payable upon demand to the division. The total bond including the cash account shall not be less than the amount required under terms of performance bonds including any adjustments, less amounts released in accordance with 4VAC25-130-800.40 or 4VAC25-130-801.18.

(2) Any interest paid on a cash account shall be paid to the permittee.

(3) Certificates of deposit may be substituted for a cash account with the approval of the division.

(4) The division shall not accept an individual cash account in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(c) Letters of credit shall be subject to the following conditions:

(1) The letter may be issued only by a bank organized or authorized to do business in the United States and must conform to the Uniform Customs and Practice for Documentary Credits (1993 Revision) International Chamber of Commerce (Publication No. 500);

(2) Letters of credit shall be irrevocable during their terms. A letter of credit used as security in areas requiring continuous bond coverage shall be forfeited and shall be collected by the division if not replaced by other suitable bond or letter of credit at least 30 days before its expiration date; and

(3) The letter of credit shall be payable to the department at sight, in part or in full, upon receipt from the division of a notice of forfeiture issued in accordance with 4VAC25-130-800.50.

(d) Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the division at the time collateral is offered.

4VAC25-130-800.40. Requirements to release performance bonds.

(a) Bond release application.

(1) The permittee may file an application with the division for the release of all or part of a performance bond. Applications may be filed only at times or during seasons authorized by the division in order to properly evaluate the completed reclamation operations. The times or seasons appropriate for the evaluation of certain types of reclamation shall be identified in the mining and reclamation plan required in Subchapter VG.

(2) Within 30 days after an application for bond release has been filed with the division, the permittee shall submit proof of publication of the advertisement placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. The advertisement shall be considered part of any bond release application and shall contain the applicant's name, the permit number, notification of the precise location of the land affected, the number of acres, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, a description of the results achieved as they relate to the permittee's approved reclamation plan, and the name and address of the division to which written comments, objections, or requests for public hearings and informal conferences on the specific bond release may be submitted pursuant to 4VAC25-130-800.40(f) and (h). In addition, as part of any bond release application, the permittee shall submit copies of letters which he has sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond.

(3) The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Act, the regulatory program, and the approved reclamation plan. Such certification shall be submitted for each application or phase of bond release.

(b) Inspection by the division.

(1) Upon receipt of the bond release application, the division shall, within 30 days, or as soon thereafter as weather conditions permit, conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other factors, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of future occurrence of such pollution, and the estimated cost of abating such pollution. The surface owner, agent, or lessee shall be given notice of such inspection and may participate with the division in making the bond release inspection. The division may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in the bond release, for the purpose of gathering information relevant to the proceeding.

(2) Within 60 days from the filing of the bond release application, if no public hearing is held pursuant to paragraph (f) of this section, or, within 30 days after a public hearing has been held pursuant to paragraph (f) of this section, the division shall notify in writing the permittee, the surety or other persons with an interest in the bond collateral who have requested notification under 4VAC25-130-800.21(c), and the persons who either filed objections in writing or objectors who were a party to the hearing proceedings, if any, of its decision to release or not to release all or part of the performance bond.

(c) The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation or a phase of the reclamation covered by the bond or portion thereof has been accomplished in accordance with the following schedules for reclamation of Phases I, II and III:

(1) At the completion of Phase I, after the permittee completes the backfilling, regrading (which may include the replacement of topsoil) and drainage control of a bonded area in accordance with the approved reclamation plan, 60% of the bond or collateral for the applicable area.

(2) At the completion of Phase II, after revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, an additional amount of bond. When determining the amount of bond to be released after successful revegetation has been established, the division shall retain that amount of bond for the revegetated area which would be sufficient to cover the cost of reestablishing revegetation if completed by a third party and for the period specified for permittee responsibility in § 45.1-241 § 45.2-1016 of the Act for reestablishing revegetation. No part of the bond or deposit shall be released under this paragraph so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by § 45.1-242 § 45.2-1017 of the Act and by Subchapter VK or until soil productivity for prime farmlands has returned to the equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to § 45.1-238(D) § 45.2-1013 of the Act and Part 823. Where a silt dam is to be retained as a permanent impoundment pursuant to Subchapter VK, the Phase II portion of the bond may be released under this paragraph so long as provisions for sound future maintenance by the permittee or the landowner have been made with the division.

(3) At the completion of Phase III, after the permittee has successfully completed all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for permittee responsibility in 4VAC25-130-816.116 or 4VAC25-130-817.116. However, no bond shall be fully released under provisions of this section until reclamation requirements of the Act and the permit are fully met.

(d) If the division disapproves the application for release of the bond or portion thereof, the division shall notify the permittee, the surety, and any person with an interest in collateral as provided for in 4VAC25-130-800.21(c), in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing an opportunity for a public hearing.

(e) When any application for total or partial bond release is filed with the division, the division shall notify the town, city or other municipality nearest the operation and the county in which the surface coal mining operation is located by certified mail at least 30 days prior to the release of all or a portion of the bond.

(f) Any person with a valid legal interest which might be adversely affected by release of the bond, or the responsible officer or head of any federal, state, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release from bond with the division within 30 days after the last publication of the notice required by 4VAC25-130-800.40(a)(2). If written objections are filed and a hearing is requested, the division shall inform all the interested parties of the time and place of the hearing, and shall hold a public hearing within 30 days after receipt of the request for the hearing. The date, time and location of the public hearing shall be advertised by the division in a newspaper of general circulation in the locality for two consecutive weeks. The public hearing shall be held in the locality of the surface coal mining operation from which bond release is sought, at the location of the division office, or at the State Capital, at the option of the objector. The decision of the Hearing Officer shall be made within 30 days from the close of the hearing.

(g) For the purpose of the hearing under paragraph (f) of this section, the division shall have the authority to administer oaths, subpoena witnesses or written or printed material, compel the attendance of witnesses or the production of materials, and take evidence including, but not limited to, inspection of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing shall be made, and a transcript shall be made available on the motion of any party or by order of the division.

(h) Without prejudice to the right of an objector or the applicant, the division may hold an informal conference as provided in § 45.1-239 § 45.2-1014 of the Act to resolve such written objections. The division shall make a record of the informal conference unless waived by all parties, which shall be accessible to all parties. The division shall also furnish all parties of the informal conference with a written finding of the division based on the informal conference, and the reasons for said finding.

4VAC25-130-800.51. Administrative review of performance bond forfeiture.

(a) The permittee or surety, if applicable, may request, in writing, a hearing on the division's determination to forfeit the performance bond within 30 days of receipt of the written determination from the division.

(b) A request for hearing shall not operate as a stay of the bond forfeiture decision. Unless the division decides to withhold forfeiture as provided by 4VAC25-130-800.50 (a) (2), it shall take immediate steps to collect the necessary performance bond amounts so that it, or its contractor, may complete the reclamation plan and any other regulatory requirements in the most expeditious manner possible, pending administrative and/or judicial review.

(c)(1) The division shall commence the hearing within 30 days of the hearing request. The hearing shall be conducted in accordance with § 2.2-4020 of the Code of Virginia by a Hearings Officer appointed by the director.

(2) The burden of proof at such hearing shall be on the party seeking to reverse the decision of the division.

(3) For the purpose of such hearing, the hearings officer may administer oaths and affirmations, subpoena witnesses, written or printed materials, compel attendance of witnesses or production of those materials, compel discovery, and take evidence, including but not limited to site inspections of the land affected.

(4) The hearings officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party who requests a copy of the record.

(5) Ex parte contacts between representatives of the parties to the hearing and the hearings officer shall be prohibited.

(6) Within 30 days after the close of the record, the division shall issue and furnish the permittee, surety (if applicable) and each person who participated in the hearing with the written findings of fact, conclusion of law, and order of the hearings officer with respect to the appeal. The decision of the hearings officer shall be final as of the date of issuance, subject to the review and reconsideration by the director or his designee, provided in subsection (d) of this section.

(d) Within 14 days after the issuance of the hearings officer's decision under subdivision (c) (6) of this section, the permittee, surety (if applicable), or any person who participated in the hearing and has an interest which is or may be adversely affected by the decision, may appeal to the director or his designee for review of the record and reconsideration of the hearings officer's decision. The director or his designee may also on his own motion, with notice to the parties, review the record and reconsider the hearings officer's decision within the same time period. No further evidence will be allowed in connection with such review and reconsideration, but the director or his designee may hear further arguments and may, after considering the record, remand the case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearings officer's decision and issue a final decision.

(e) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-800.52. Bond forfeiture reinstatement procedures.

(a) Any person who owns or controls or has owned or controlled any operation on which the bond has been forfeited or the permit revoked pursuant to this chapter or pursuant to Chapters 15 [repealed], 17 (§ 45.1-198 et seq.) or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia and who has not previously been reinstated by the director may petition the director for reinstatement. Reinstatement, if granted, shall be under such terms and conditions as set forth by the director or his designee. The director or his designee in determining the terms and conditions shall consider the particular facts and circumstances existing in each individual case. Reinstatement shall not be available to applicants for reinstatement where the division finds that the applicant controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, in accordance with 4VAC25-130-773.15(b)(3). As a minimum, the applicant for reinstatement shall satisfy the following requirements:

(1) Abatement of any outstanding violations existing on each site on which the bond has been forfeited or the permit revoked;

(2) Payment of any outstanding civil penalties (both state and federal), Reclamation fund taxes, and any outstanding fees, including Federal Abandoned Mine Land Reclamation taxes;

(3) Reclaim each site on which the bond was forfeited according to the applicable law, regulations and standards governing the site at the time of bond forfeiture;

(4) Payment to the director of any money expended by the Commonwealth in excess of the forfeited bond amount to accomplish the reclamation of the sites; and

(5) Pay to the director a reinstatement fee of $5,000 assessed by the director on each site forfeited. These fees shall be used by the director to accomplish reclamation on other forfeited or abandoned surface coal mining operations.

(b) Reinstatement by the director shall be a prerequisite to the filing by the person (applicant for reinstatement) of any new permit application or renewal under this chapter or Chapters 15 [repealed], 17 (§ 45.1-198 et seq.), or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, but shall not affect the person's need to comply with all other requirements of said statutes, regulations or both promulgated thereunder.

4VAC25-130-801.2. Scope.

The regulations of this Part establish the procedures and requirements for an alternative bonding system through which the division will implement and administer the Coal Surface Mining Reclamation Fund (Pool Bond Fund) as established under Article 5 (§ 45.1-270.1 § 45.2-1043 et seq.) of Chapter 19 10 of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-801.11. Participation in the pool bond fund.

(a) Participation in the Pool Bond Fund shall be at the option of any applicant for a permit under the Act and the regulations promulgated thereunder who can demonstrate to the division's satisfaction at least a consecutive three-year history of compliance under the Act or any other comparable State or Federal Act.

(b) All participants in the Pool Bond Fund shall:

(1) Pay all entrance fees to the Pool Bond Fund as required by 4VAC25-130-801.12(a); and

(2) Comply with the applicable parts of section 45.1-241 § 45.2-1016 of the Code of Virginia.

(c) Commencement of participation in the Pool Bond Fund shall constitute an irrevocable commitment by the permittee to participate therein as to the applicable permit and for the duration of the coal surface mining operations covered thereunder.

(d) All fees and taxes are nonrefundable.

(e) The division shall, as provided by section 45.1-270.5(B) § 45.2-1048 of the Code of Virginia, utilize those monies from the interest accrued to the fund which are required to properly administer the Pool Bond Fund. These monies shall be used to support one position for administration of the Pool Bond Fund; however, if it is apparent that such position is insufficient to ensure proper administration of the Pool Bond Fund, the division may upon proof of need, and upon concurrence with the Pool Bond Fund Advisory Board obtain additional assistance.

4VAC25-130-801.17. Bond release application.

The permittee participating in the Pool Bond Fund, or any person authorized to act upon his behalf, may file an application with the division for the Phase I, II or III release of the bond furnished in accordance with 4VAC25-130-801.12 (b) for the permit area or any applicable increment thereof. The bond release application, the procedural requirements and the released percentages shall be consistent with the release criteria of 4VAC25-130-800.40. However, in no event shall the total bond of the permit be less than the minimum amounts established pursuant to §§ 45.1-241 45.2-1016 and 45.1-270.3 B 45.2-1045 of the Virginia Coal Surface Mining Control and Reclamation Act prior to completion of Phase III reclamation of the entire permit area.

4VAC25-130-801.18. Criteria for release of bond.

(a) The division shall release bond furnished in accordance with §§ 45.1-241 45.2-1016 and 45.1-270.3 45.2-1043 of the Virginia Coal Surface Mining Control and Reclamation Act through the standards specified at 4VAC25-130-800.40 upon receipt of an application for Phase I, II or III release.

(b) The division shall terminate jurisdiction for the permit area, or any increment thereof upon approval of the Phase III bond release for that area.

(c) In the event a forfeiture occurs, the division may, after utilizing the available bond monies, utilize the Fund as necessary to complete reclamation liabilities for the permit area.

4VAC25-130-816.76. Disposal of excess spoil; incidental reclamation.

(a) The division, where environmental benefits will occur, may approve placement of spoil not needed to restore the approximate original contour of the land and reclaim land within the permit area in a manner consistent with the Act and this chapter on:

(1) Another area under a permit issued pursuant to the Act, or

(2) On abandoned mine lands under a contract for reclamation according to the AML Guidelines and approved by the Division of Mined Land Reclamation Repurposing.

4VAC25-130-840.11. Inspections by the division.

(a) The division shall conduct an average of at least one partial inspection per month of each active surface coal mining and reclamation operation under its jurisdiction, and shall conduct such partial inspections of each inactive surface coal mining and reclamation operation under its jurisdiction as are necessary to ensure effective enforcement of the Act and this chapter. A partial inspection is an on-site or aerial review of a permittee's compliance with some of the permit conditions and requirements imposed under the Act and this chapter.

(b) The division shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection is an on-site review of a permittee's compliance with all permit conditions and requirements imposed under the Act and this chapter, within the entire area disturbed or affected by the surface coal mining and reclamation operations.

(c) The division shall conduct such inspections of coal explorations as are necessary to ensure compliance with the Act and this chapter.

(d) (1) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected.

(2) Any potential violation observed during an aerial inspection shall be investigated on site within three days; provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation order under § 45.1-245 § 45.2-1020 of the Act shall be investigated on site immediately, and provided further, that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraphs (a) and (b) of this section.

(e) The inspections required under paragraphs (a), (b), (c) and (d) of this section shall:

(1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, weekends, or holidays;

(2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary on-site meetings; and

(3) Include the prompt filing of inspection reports adequate to enforce the requirements of the Act and this chapter.

(f) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which:

(1) The division has secured from the permittee the written notice provided for under 4VAC25-130-816.131(b) or 4VAC25-130-817.131(b); or

(2) Reclamation has been completed to the level established in 4VAC25-130-800.40 as Phase II.

(g) Abandoned site means a surface coal mining and reclamation operation for which the division has found in writing that:

(1) All surface and underground coal mining and reclamation activities at the site have ceased;

(2) The division has issued at least one notice of violation or the interim program equivalent, and either:

(i) Is unable to serve the notice despite diligent efforts to do so; or

(ii) The notice was served and has progressed to a failure-to-abate cessation order or the interim program equivalent;

(3) The division:

(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and

(ii) Is taking action pursuant to §§ 45.1-245 C, 45.1-245 E, 45.1-246 E, or § 45.1-246 F § 45.2-1020 or 45.2-1021 of the Act to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(4) Where the site is, or was, permitted or bonded:

(i) The permit has either expired or been revoked, or permit revocation proceedings have been initiated and are being pursued diligently; and

(ii) The division has initiated and is diligently pursuing forfeiture of, or has forfeited, the any available performance bond.

(h) In lieu of the inspection frequency established in paragraphs (a) and (b) of this section, the division shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

(1) In selecting an alternate inspection frequency authorized under the paragraph above, the division shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (h)(2) of this section. Following the inspection and public notice, the division shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:

(i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (g) of this section and thereby qualifies for a reduction in inspection frequency;

(ii) Whether, and to what extent, there exists on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present and functioning;

(v) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools and other public or commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

(vii) Based on a review of the complete and partial inspection report record for the site during at least two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

(2) The public notice and opportunity to comment required under paragraph (h)(1) of this section shall be provided as follows:

(i) The division shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned mine site providing the public with a 30-day period in which to submit written comments.

(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

4VAC25-130-840.14. Availability of records.

(a) The division shall make available to the OSM, upon request, copies of all documents relating to applications for and approvals of existing, new, or revised coal exploration approvals or surface coal mining and reclamation operation permits and all documents relating to inspection and enforcement actions.

(b) Copies of all records, reports, inspection materials, or information obtained by the division shall be made immediately and conveniently available to the public in the area of mining until at least five years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond, except-

(1) As otherwise provided by state law; and

(2) For information not required to be made available under 4VAC25-130-772.15 and 4VAC25-130-773.13(d) or subdivison (d) of this section.

(c) The division shall ensure compliance with subdivison (b) of this section by either:

(1) Making copies of all records, reports, inspection materials, and other subject information available for public inspection at a federal, state, or local government office in the county where the mining is occurring or proposed to occur; or,

(2) At the division's option in accordance with the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia), providing copies of subject information promptly by mail at the request of any resident of the area where the mining is occurring or is proposed to occur, provided, that the division shall maintain for public inspection, at a federal, state, or local government office in the county where the mining is occurring or proposed to occur, a description of the information available for mailing and the procedure for obtaining such information. A list of government offices where information may be inspected can be obtained on request by contacting the division's Big Stone Gap office.

(d) In order to protect preparation for hearings and enforcement proceedings, the OSM and the division may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other such materials.

4VAC25-130-840.16. Compliance conference.

(a) A permittee may request an on-site compliance conference with an authorized representative of the Director to review the compliance status of any condition or practice proposed at any coal exploration or surface coal mining and reclamation operation. Any such conference shall not constitute an inspection within the meaning of Section 45.1-244 § 45.2-1019 of the Act and 4VAC25-130-840.11.

(b) The division may accept or refuse any request to conduct a compliance conference under Paragraph (a).

(c) The authorized representative at any compliance conference shall review such proposed conditions and practices in order to advise whether any such condition or practice may become a violation of any requirement of the Act, this chapter, or any applicable permit or exploration approval.

(d) Neither the holding of a compliance conference under this section nor any opinion given by the authorized representative at such a conference shall affect:

(1) Any rights or obligations of the division or of the permittee with respect to any inspection, notice of violation or cessation order, whether prior or subsequent to such compliance conference; or

(2) The validity of any notice of violation or cessation order issued with respect to any condition or practice reviewed at the compliance conference.

4VAC25-130-842.12. Citizens' requests for inspections.

(a) A person may request an inspection under 4VAC25-130-842.11(a), by furnishing to an authorized representative of the Director a signed, written statement (or an oral report followed by a signed, written statement) giving the authorized representative reason to believe that a violation, condition or practice referred to in 4VAC25-130-842.11(a) exists and setting forth a phone number and address where the person can be contacted.

(b) The identity of any person supplying information to the division relating to a possible violation or imminent danger or harm shall remain confidential with the division, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required under the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia).

(c) If an inspection is conducted as a result of information provided to the division by a person as described in Paragraph (a) of this section, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative of the Director during the inspection. It shall be the responsibility of the person to provide any or all safety equipment needed to accompany the division's inspector during the mine site inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he supplied information, but only if he is in the presence of and is under the control, direction, and supervision of the authorized representative while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

(d) Within 10 days of the inspection or, if there is no inspection, within 15 days of receipt of the person's written statement, the division shall send the person the following:

(1) If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection, or an explanation of why no enforcement action was taken;

(2) If no inspection was conducted, an explanation of the reason why; and

(3) An explanation of the person's right, if any, to informal review of the action or inaction of the division under 4VAC25-130-842.15.

(e) The division shall give copies of all materials in Paragraphs (d)(1) and (d)(2) of this section within the time limits specified in those Paragraphs to the person alleged to be in violation, except that the name of the person supplying information shall be removed unless disclosure of the person's identity is permitted under Paragraph (b) of this section.

4VAC25-130-842.15. Review of decision not to inspect or enforce.

(a) Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation operation may ask the division to review informally an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection under 4VAC25-130-842.12. The request for review shall be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review.

(b) The division shall conduct the review and inform the person, in writing, of the results of the review within 30 days of receipt of the request. The person alleged to be in violation shall also be given a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality has been waived or disclosure is required under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

(c) Informal review under this section shall not affect any right to formal review under § 45.1-249 § 45.2-1025 of the Act or to a citizen's suit under § 45.1-246.1 § 45.2-1022 of the Act.

(d) Any person who requested a review of a decision not to inspect or enforce under this section and who is or may be adversely affected by any determination made under subsection (b) of this section may request review of that determination by filing within 30 days of the division's determination an application for formal review and request for hearing under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All requests for hearing or appeals for review and reconsideration made under this section shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-843.11. Cessation orders.

(a)(1) An authorized representative of the Director shall immediately order a cessation of a coal exploration or a surface coal mining and reclamation operation or of the relevant portion thereof, if the representative finds, on the basis of any inspection, any condition or practice, or any violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter which:

(i) Creates an imminent danger to the health or safety of the public; or

(ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(2) Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, unless such operations:

(i) Are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations; or

(ii) Were conducted lawfully without a permit under this chapter because no permit under this chapter has been required for such operations by the division.

(3) If the cessation ordered under Paragraph (a)(1) of this section will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the Director shall impose affirmative obligations on the permittee to abate the imminent danger or significant environmental harm. The order shall specify the time by which abatement shall be accomplished.

(b)(1) When a notice of violation has been issued under 4VAC25-130-843.12(a) and the permittee fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative, the authorized representative of the Director shall immediately order a cessation of coal exploration or surface coal mining and reclamation operations, or of the portion relevant to the violation.

(2) A cessation order issued under this Paragraph (b) shall require the permittee to take all steps the authorized representative of the Director deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.

(c) A cessation order issued under Paragraphs (a) or (b) of this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the condition, practice or violation; (2) the remedial action or affirmative obligation required, if any, including interim steps, if appropriate; (3) the time established for abatement, including a schedule for meeting any interim steps, if appropriate; and (4) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation resulting in the issuance of the cessation order has been abated or until vacated, modified or terminated in writing by an authorized representative of the Director, or until the order expires pursuant to Section 45.1-245(D) § 45.2-1020 of the Act and 4VAC25-130-843.15.

(d) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(e) An authorized representative of the Director may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by the permittee's lack of diligence.

(f) An authorized representative of the Director shall terminate a cessation order by written notice to the permittee when the representative determines that all conditions, practices or violations listed in the order have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 of this chapter for those violations.

(g) Within 60 days after issuing a cessation order, the division shall notify in writing any person who has been identified under 4VAC25-130-773.17(h) and 4VAC25-130-778.13(c) and (d) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

4VAC25-130-843.12. Notices of violation.

(a) An authorized representative of the director shall issue a notice of violation if, on the basis of an inspection pursuant to § 45.1-244 § 45.2-1019 of the Act, the representative finds a violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter, which does not create an imminent danger or harm for which a cessation order must be issued under 4VAC25-130-843.11.

(b) A notice of violation issued under this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity:

(1) The nature of the violation;

(2) The remedial action required, which may include interim steps;

(3) A reasonable time for abatement, which may include time for accomplishment of interim steps; and

(4) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies.

(c) An authorized representative of the director may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by the permittee's lack of diligence. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in subsection (f) of this section. An extended abatement date pursuant to this section shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

(d)(1) If the permittee fails to meet the time set for abatement, the authorized representative shall issue a cessation order under 4VAC25-130-843.11(b).

(2) If the permittee fails to meet the time set for accomplishment of any interim step the authorized representative may issue a cessation order under 4VAC25-130-843.11 (b).

(e) An authorized representative of the director shall terminate a notice of violation by written notice to the permittee when the representative determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 for those violations.

(f) Circumstances which may qualify a coal exploration or a surface coal mining operation for an abatement period of more than 90 days are:

(1) Where the permittee of an on-going permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(2) Where there is a valid judicial or administrative order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which the permittee has no other effective legal remedy;

(3) Where the permittee cannot abate within 90 days due to a labor strike;

(4) Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

(5) Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977.

(g) Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(h) If any of the conditions in subsection (f) of this section exists, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the director and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of 4VAC25-130-843.12 (c) and (f). In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his concurrence or disapproval in the file.

(i) No extension granted under subsection (h) of this section may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of subsection (h) of this section.

(j) Any determination made under subsection (h) of this section shall be subject to formal review pursuant to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-130-843.13. Suspension or revocation of permits; pattern of violations.

(a)(1) The director shall issue a show cause order to a permittee requiring justification as to why his permit and right to mine under the Act should not be suspended or revoked, if the director determines that a pattern of violations of any requirements of the Act, this chapter, or any permit condition required by the Act exists or has existed, and that the violations were caused by the permittee's willful or unwarranted failure to comply with those requirements or conditions, or if the permittee failed to pay the final civil penalty assessment as required by 4VAC25-130-845.20. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

(2) The director may determine that a pattern of violations exists or has existed based upon two or more inspections of the permit area within any 12-month period, after considering the circumstances, including:

(i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, this chapter, or the permit;

(ii) The number of violations, cited on more than one occasion, of different requirements of the Act, this chapter, or the permit; and

(iii) The extent to which the violations were isolated departures from lawful conduct.

(3) The director shall promptly review the history of violations of any permittee who has been cited for violations of the same or related requirements of the Act, this chapter, or the permit during three or more inspections of the permit area within any 12-month period. If, after such review, the director determines that a pattern of violations exists or has existed, he shall issue a show cause order as provided in subdivision (a) (1) of this section.

(4)(i) In determining the number of violations within any 12-month period, the director shall consider only violations issued as a result of an inspection carried out pursuant to 4VAC25-130-840.11, 4VAC25-130-842.11 and 4VAC25-130-842.12.

(ii) The director may not consider violations issued as a result of inspections other than those mentioned in subdivision (a) (4) (i) of this section in determining whether to exercise his discretion under subdivision (a) (2) of this section, except as evidence of the "willful" or "unwarranted" nature of the permittee's failure to comply.

(5) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the division shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue a show cause order as appropriate pursuant to 4VAC25-130-845.15(b)(2).

(b) The permittee shall have 15 days from receipt of the show cause order to file an answer and request a formal public hearing in writing. The director shall give 30 days written notice of the date, time and place of the hearing to the permittee, and any intervenor. The public hearing shall be conducted in accordance with § 2.2-4020 of the Virginia Administrative Process Act. The director shall publish the notice, if practicable, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations, and shall post it at the division's Big Stone Gap office.

(c) Within 30 days after the hearing, the hearing officer shall issue a written decision as to whether a pattern of violations exists, and, if appropriate, an order. The decision and order shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (e) of this section. If the decision and order revoke or suspend the permit and the permittee's right to mine under the Act, the permittee shall immediately cease surface coal mining operations on the permit area and shall:

(1) If the permit and right to mine under the Act are revoked, complete reclamation within the time specified in the order; or

(2) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

(d) Within 14 days after the issuance of a decision or order, the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision may appeal to the director, or his designee (who shall not be the same person who issued the show cause order) for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments, and may also after considering the record, remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(f) Any person who owns or controls or has owned or controlled any operations on which the permit has been revoked pursuant to this section may apply for reinstatement pursuant to 4VAC25-130-800.52.

4VAC25-130-843.15. Informal public hearing.

(a) A notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing is held or if the notice or order is terminated prior to the hearing. Expiration of a notice or order shall not affect the division's right to assess civil penalties for the violations as set forth in part 845. For purposes of this section, mining includes (1) extracting coal from the earth or coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a mine site.

(b) A person issued a notice of violation or cessation order pursuant to this part may request, in writing within 15 days from service of the notice or order, an informal public hearing to review the issuance of the notice or order. The written request must be submitted to the division's Big Stone Gap Office.

(c) The division shall conduct the informal hearing within 30 days from receipt of the hearing request pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The division shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to that notice or order.

(d) The division shall also post notice of the hearing at its Big Stone Gap office and, where practicable, publish it in a newspaper of general circulation in the area of the mine.

(e) An informal public hearing shall be conducted by a representative of the division, who may accept oral or written arguments and any other relevant information from any person attending.

(f) Within five days after the close of the informal public hearing, the division shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to-

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to the notice or order.

(g) The granting of an informal public hearing shall not affect the right of any person to formal review under § 45.1-249 § 45.2-1025 of the Act.

(h) The person conducting the hearing for the division shall determine whether or not the mine site should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

4VAC25-130-843.16. Formal review of citations.

(a) A person issued a notice of violation or cessation order under 4VAC25-130-843.11 or 4VAC25-130-843.12, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action by filing an application for formal review and request for hearing, under § 45.1-249 § 45.2-1025 of the Act, within 30 days after receiving notice of the action. A person may also request formal review of the decision rendered under 4VAC25-130-843.15, if the request is submitted within 15 days of receipt of the informal public hearing decision.

(b) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or of any modification, termination, or vacation of either.

(c) Hearings under subsection (a) of this section shall be conducted by a hearing officer appointed by the director. Within 30 days after the close of the record, the hearing officer shall issue a written decision affirming, modifying, terminating, or vacating the notice or order. The decision shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (d) of this section.

(d) Within 14 days after the issuance of a decision the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision, may appeal to the director or his designee for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments and may also, after considering the record remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision, or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-845.2. Objective.

Civil penalties are assessed under § 45.1-246 § 45.2-1021 of the Act and this Part to deter violations and to ensure maximum compliance with the terms and purposes of the Act on the part of the coal mining industry.

4VAC25-130-845.15. Assessment of separate violations for each day.

(a) The division may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the division shall consider the factors listed in 4VAC25-130-845.13 and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which has been assigned a penalty of $5,000 or more under 4VAC25-130-845.13, the division shall assess a penalty for a minimum of two separate days.

(b) In addition to the civil penalty provided for in subsection (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to § 45.1-245 B § 45.2-1020 of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that:

(1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under § 45.1-249 C § 45.2-1025 of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the director or his authorized representative issues a final order with respect to the violation in question; and

(ii) If the person to whom the notice or order was issued initiates review proceedings under § 45.1-251 B § 45.2-1027 of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to § 45.1-251 B § 45.2-1027 of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court;

(2) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30 day period, the division shall take appropriate action pursuant to §§ 45.1-245 45.2-1020 and 45.1-246 45.2-1021 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate.

4VAC25-130-845.18. Procedures for assessment conference.

(a) The division shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom notice or order was issued, if the request is received within 30 days from the date the proposed assessment or reassessment is served.

(b)(1) The division shall assign a conference officer to hold the assessment conference. The assessment conference shall be conducted as an informal proceeding in accordance with § 2.2-4019 of the Code of Virginia. The assessment conference shall be held within 60 days from the date the conference request is received or the end of the abatement period, whichever is later. Provided that a failure by the division to hold such conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

(2) The division shall post notice of the time and place of the conference at the division's office in Big Stone Gap or field office located closest to the mine at least five days before the conference. Any person shall have a right to attend and participate in the conference.

(3) The conference officer shall consider all relevant information on the violation. Within 30 days after the conference is held, the conference officer shall either:

(i) Settle the issue, in which case a settlement agreement shall be prepared and signed by the division and by the person assessed; or

(ii) Affirm, raise, lower, or vacate the penalty.

(4) An increase or reduction of a proposed civil penalty assessment of more than 25% and more than $500 shall not be final and binding on the division, until approved by the director or his designee.

(c) The division shall promptly serve the person assessed with a notice of the conference decision in the manner provided in 4VAC25-130-845.17 (b) and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file.

(d)(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect.

(2) If full payment of the amount specified in the settlement agreement is not received by the division within 30 days after that date of signing, the division may enforce the agreement or rescind it and proceed according to subdivision (b)(3)(ii) of this section within 30 days from the date of the rescission.

(e) The conference officer may terminate the conference if it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

(f) At any formal review proceedings under §§ 45.1-245 C, 45.1-246 and 45.1-249 45.2-1020, 45.2-1021, and 45.2-1025 of the Act, no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.

4VAC25-130-845.19. Request for hearing.

(a) The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or affirmed penalty to the division (to be held in escrow as provided in subsection (b) of this section) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the assessment conference decision, whichever is later. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under 4VAC25-130-843.16.

(b) The division shall transfer all funds submitted under subsection (a) of this section to the State Treasurer's Office which shall hold them in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in 4VAC25-130-845.20.

(c) The hearing requested pursuant to a petition filed under subsection (a) of this section shall be conducted as a formal hearing in accordance with the provisions of § 2.2-4020 of the Code of Virginia. The hearing officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party to the hearing who requests a copy of the record.

(d) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-846.14. Amount of the individual civil penalty.

(a) In determining the amount of an individual civil penalty, the division shall consider the criteria specified in § 45.1-246 A § 45.2-1021 of the Act, including:

(1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;

(2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and,

(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(b) The penalty shall not exceed $5,000 for each violation, except that if the violation resulted in a personal injury or fatality to any person, then the civil penalty determined under 4VAC25-130-845.13 (d) shall be multiplied by a factor of 20, not to exceed $70,000. Each day of a continuing violation may be deemed a separate violation and the division may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the director, until abatement or compliance is achieved.

4VAC25-130-850.15. Certification.

(a) The division shall issue the blaster's coal surface mining endorsement for a period of five years to those candidates examined and found to be competent and has met the requirements as described in 4VAC25-130-850.13 and 4VAC25-130-850.14.

(b) Suspension and revocation:

(1) The division, when practicable, following written notice and opportunity for a hearing may, and upon a finding of willful conduct by the DM Board of Coal Mine Examiners, shall suspend or revoke the blaster's coal surface mining endorsement certification during the term of the certification or take other necessary action for any of the following reasons:

(i) Non-compliance with any blasting related order issued by the division or DM;

(ii) Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs;

(iii) Violation of any provision of the State or Federal explosives laws or regulations;

(iv) Providing false information or a misrepresentation to obtain certification.

(2) If advance notice and opportunity for a hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action.

(c) Recertification. Any person certified as a blaster must be recertified every five years by:

(1) Presenting written proof that the individual has worked in a capacity which demonstrates the blaster's competency during two of the last three years immediately preceding the expiration date; or

(2) Retaking the division's endorsement exam and achieving the required score on the exam. Anyone who fails to achieve the required score on the exam must take or retake the training prior to retaking both the division's and DM's exam.

(d) Protection of certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be reported immediately to the division.

(e) Conditions:

(1) A blaster shall immediately exhibit upon request his or her certificate to any authorized representative of the division, DM, or the Office of Surface Mining.

(2) Blaster's certification shall not be assigned or transferred.

(3) Blasters shall not delegate their responsibility to any individual who is not a certified blaster.

(f) Petitions for recertification.

An individual whose certification has been revoked may petition the DMLR for recertification. The DMLR shall not accept a petition for recertification any sooner than one year from the effective date of revocation. Such petitions shall show valid reasons why the division should consider the request for recertification. The division may require retesting prior to recertification.

(g) Appeals procedures.

Appeals for review of certification including suspension and revocation decisions shall be made to the DMLR. Appeals not resolved by the DMLR may be heard pursuant to the provisions for administrative and judicial review under Chapter 19 10 (§ 45.1-2.26 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-882.13. Liens.

(a) The Director has the discretionary authority to place or waive a lien against land reclaimed if the reclamation results in a significant increase in the fair market value; except that-

(1) A lien shall not be placed against the property of a surface owner who acquired title prior to May 2, 1977, and who did not consent to, participate in, or exercise control over the mining operation which necessitated the reclamation work.

(2) The basis for making a determination of what constitutes a significant increase in market value or what factual situation constitutes a waiver of lien will be made by the Director pursuant to the Congressional intent expressed in Section 408 of the Federal Act and consistent with the laws of the Commonwealth governing liens.

(3) A lien may be waived if findings made prior to construction indicate that the reclamation work to be performed on private land shall primarily benefit the health, safety, or environmental values of the greater community or area in which the land is located; or if the reclamation is necessitated by an unforeseen occurrence, and the work performed to restore that land will not result in a significant increase in the market value of the land as it existed immediately before the unforeseen occurrence; and

(4) The Director may waive the lien if the cost of filing it, including indirect costs to the Commonwealth, exceeds the increase in fair market value as a result of reclamation activities.

(b) If a lien is to filed, the Director shall, within six months after the completion of the reclamation work, file a statement in the office having responsibility under applicable law for recording judgments and placing liens against land. Such statement shall consist of notarized copies of the appraisals obtained under 4VAC25-130-882.12 and may include an account of moneys expended for the reclamation work. The amount reported to be the increase in value of the property shall constitute the lien to be recorded in compliance with laws of the Commonwealth; Provided, however, That prior to the time of actual filing of the proposed lien, the landowner shall be notified of the amount of the proposed lien and shall be allowed a reasonable time to prepay that amount instead of allowing the lien to be filed against the property involved.

(c) Within 60 days after the lien is filed the landowner may petition under local law to determine the increase in market value of the land as a result of reclamation work. Any aggrieved party may appeal in the manner provided by section 45.1-268 § 45.2-1040 of the Code of Virginia.

4VAC25-145-10. Definitions.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mined Land Reclamation Repurposing.

"Net worth" means total assets less total liabilities including funds pledged or otherwise obligated to the Commonwealth or other in effect at any time during the contract period and any other contingent liabilities that might materially affect the Commonwealth's ability to realize the amount of bond required in the event of forfeiture.

"Operator" means any person engaging in coal surface mining operations whether or not such coal is sold within or without the Commonwealth.

"Reclamation project" means any work contracted out by or on behalf of the division for reclamation of eligible lands and waters, and defined in § 45.1-262 § 45.2-1034 of the Code of Virginia and funded by the Federal Office of Surface Mining or reclamation of mined lands where the operator who mined the land has had his bond covering the land forfeited to the division or otherwise defaulted on his reclamation obligation and the project is funded either by the forfeited bond or the Virginia Coal Surface Mining Reclamation Fund.

"Relevant mining experience" means at least three years of satisfactory mining and reclamation work in the Commonwealth under Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia. The operator shall have active reclamation work experience for two of the three years.

"State reclamation program" means Articles 4 and 5 of Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, as well as reclamation done by or for the Commonwealth and funded by the forfeited bond of an operator.

4VAC25-145-20. Operator requirements.

A. Operators must demonstrate relevant mining experience in order to bid on or be awarded contracts for any reclamation project in the Commonwealth. An operator may demonstrate satisfactory mining and reclamation work to the division by showing (i) that the operator has obtained partial or complete bond release on a coal surface mining permit obtained pursuant to Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia under his control, or that all reclamation work on any active permit operated or controlled by the operator is up to date; and (ii) that no coal surface mining permit under his control has any outstanding violations of any federal, state or local agency's laws, rules, regulations or ordinances unless the operator submits proof to the division that such violations have been corrected or are being corrected to the satisfaction of the agencies citing of such violations.

B. No operator shall be allowed to bid on or be awarded contracts for any reclamation project in the Commonwealth if:

1. The director, after opportunity for a hearing, finds that the operator controls or has controlled mining operations with a demonstrated pattern of willful violations of the Federal Act or State Reclamation Program of such nature and duration with such resulting environmental damage as to indicate an intent not to comply with the Federal Act, P.L. 95-87 or State Reclamation Program.

2. The operator has had a coal surface mining permit revoked or suspended and has not been re-instated by the director; has had his bond forfeited; or has received an order to show cause why his permit should not be revoked or suspended.

4VAC25-145-30. Compliance with other laws and obligations.

A. The operator bidding or seeking to bid on reclamation projects shall comply with all other applicable laws, ordinances, orders, rules and regulations of any federal, state or local agency with jurisdiction over the operator's mining or reclamation activities.

B. The operator shall comply with all applicable requirements of the division with regard to bidding on reclamation projects in the Commonwealth, excepting any requirements waived by § 45.1-161.1 § 45.2-100 of the Code of Virginia and this regulation.

4VAC25-150-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Adequate channel" means a watercourse that will convey the designated frequency storm event without overtopping its banks or causing erosive damage to the bed, banks and overbank sections.

"Applicant" means any person or business who files an application with the Division of Gas and Oil.

"Approved" means accepted as suitable for its intended purpose when included in a permit issued by the director or determined to be suitable in writing by the director.

"Berm" means a ridge of soil or other material constructed along an active earthen fill to divert runoff away from the unprotected slope of the fill to a stabilized outlet or sediment trapping facility.

"Board" means the Virginia Gas and Oil Board.

"Bridge plug" means an obstruction intentionally placed in a well at a specified depth.

"CAS number" means the unique number identifier for a chemical substance assigned by the Chemical Abstracts Service.

"Cased completion" means a technique used to make a well capable of production in which production casing is set through the productive zones.

"Cased/open hole completion" means a technique used to make a well capable of production in which at least one zone is completed through casing and at least one zone is completed open hole.

"Casing" means all pipe set in wells except conductor pipe and tubing.

"Causeway" means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage.

"Cement" means hydraulic cement properly mixed with water.

"Cement bond log" means an acoustic survey or sonic-logging method that records the quality or hardness of the cement used in the annulus to bond the casing and the formation.

"Centralizer" means a device secured around the casing at regular intervals to center it in the hole.

"Channel" means a natural stream or man-made waterway.

"Chemical Disclosure Registry" means the chemical registry website known as FracFocus.org developed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids, oil, gas, or gas pressure from the seam, except such as may be found in the coal seam itself.

"Cofferdam" means a temporary structure in a river, lake, or other waterway for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, pipelines, etc., may be constructed.

"Completion" means the process that results in a well being capable of producing gas or oil.

"Conductor pipe" means the short, large diameter string used primarily to control caving and washing out of unconsolidated surface formations.

"Corehole" means any hole drilled solely for the purpose of obtaining rock samples or other information to be used in the exploration for coal, gas, or oil. The term shall not include a borehole used solely for the placement of an explosive charge or other energy source for generating seismic waves.

"Days" means calendar days.

"Denuded area" means land that has been cleared of vegetative cover.

"Department" means the Department of Mines, Minerals and Energy.

"Detention basin" means a stormwater management facility which temporarily impounds and discharges runoff through an outlet to a downstream channel. Infiltration is negligible when compared to the outlet structure discharge rates. The facility is normally dry during periods of no rainfall.

"Dike" means an earthen embankment constructed to confine or control fluids.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical, and the distance and direction of points in the hole from vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Diversion" means a channel constructed for the purpose of intercepting surface runoff.

"Diverter" or "diverter system" means an assembly of valves and piping attached to a gas or oil well's casing for controlling flow and pressure from a well.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Emergency response plan" means the document that details the steps to prevent, control, and provide adequate countermeasures for a petroleum product discharge not covered by the spill prevention, control, and countermeasures plan or for a non-petroleum product discharge.

"Erosion and sediment control plan" means a document containing a description of materials and methods to be used for the conservation of soil and the protection of water resources in or on a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain a record of all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

"Expanding cement" means any cement approved by the director that expands during the hardening process, including but not limited to regular oil field cements with the proper additives.

"Firewall" means an earthen dike or fire resistant structure built around a tank or tank battery to contain the oil in the event a tank ruptures or catches fire.

"Flume" means a constructed device lined with erosion-resistant materials intended to convey water on steep grades.

"Flyrock" means any material propelled by a blast that would be actually or potentially hazardous to persons or property.

"Form prescribed by the director" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Act or this chapter.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well that is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial, or agricultural use or otherwise affects the public welfare.

"Highway" means any public street, public alley, or public road.

"Hydraulic fracturing" means the treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil or natural gas.

"Hydraulic fracturing fluid" means the fluid, including the applicable base fluid and all additives, used to perform hydraulic fracturing treatment.

"Inclination survey" means a survey taken inside a wellbore that measures the degree of deviation of the point of the survey from true vertical.

"Inhabited building" means a building, regularly occupied in whole or in part by human beings, including, but not limited to, a private residence, church, school, store, public building or other structure where people are accustomed to assemble except for a building being used on a temporary basis, on a permitted site, for gas, oil, or geophysical operations.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Live watercourse" means a definite channel with bed and banks within which water flows continuously.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mud" means a mixture of materials that creates a weighted fluid to be circulated downhole during drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation pressures and fluid.

"Natural channel" or "natural stream" means nontidal waterways that are part of the natural topography. They usually maintain a continuous or seasonal flow during the year and are characterized as being irregular in cross section with a meandering course.

"Nonerodible" means a material such as riprap, concrete, or plastic that will not experience surface wear due to natural forces.

"Oil well" means any well that produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Open hole completion" means a technique used to make a well capable of production in which no production casing is set through the productive zones.

"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.

"Plug" means the sealing of, or a device or material used for the sealing of, a gas or oil wellbore or casing to prevent the migration of water, gas, or oil from one stratum to another.

"Pre-development" means the land use and site conditions that exist at the time that the operations plan is submitted to the division.

"Produced waters" means water or fluids produced from a gas well, oil well, coalbed methane gas well, or gob well as a byproduct of producing gas, oil, or coalbed methane gas.

"Producer" means a permittee operating a well in Virginia that is producing or is capable of producing gas or oil.

"Production string" means a string of casing or tubing through which the well is completed and may be produced and controlled.

"Red shales" means the undifferentiated shaley portion of the Bluestone formation normally found above the Pride Shale Member of the formation, and extending upward to the base of the Pennsylvanian strata, which red shales are predominantly red and green in color but may occasionally be gray, grayish green, and grayish red.

"Red zone" is a zone in or contiguous to a permitted area that could have potential hazards to workers or to the public.

"Retention basin" means a stormwater management facility that, similar to a detention basin, temporarily impounds runoff and discharges its outflow through an outlet to a downstream channel. A retention basin is a permanent impoundment.

"Sediment basin" means a depression formed from the construction of a barrier or dam built to retain sediment and debris.

"Sheet flow" or "overland flow" means shallow, unconcentrated and irregular flow down a slope. The length of strip for sheet flow usually does not exceed 200 feet under natural conditions.

"Slope drain" means tubing or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope.

"Special diligence" means the activity and skill exercised by a good businessperson in a particular specialty, which must be commensurate with the duty to be performed and the individual circumstances of the case, not merely the diligence of an ordinary person or nonspecialist.

"Spill prevention, control, and countermeasure plan" or "SPCC plan" means the document that details the steps to prevent, control, and provide adequate countermeasures to certain petroleum product discharges.

"Stabilized" means able to withstand normal exposure to air and water flows without incurring erosion damage.

"Stemming" means the inert material placed in a borehole after an explosive charge for the purpose of confining the explosion gases in the borehole or the inert material used to separate the explosive charges (decks) in decked holes.

"Stimulate" means any action taken by a gas or oil operator to increase the inherent productivity of a gas or oil well, including, but not limited to, fracturing, shooting, or acidizing, but excluding (i) cleaning out, bailing, or workover operations and (ii) the use of surface-tension reducing agents, emulsion breakers, paraffin solvents, and other agents that affect the gas or oil being produced, as distinguished from the producing formation.

"Storm sewer inlet" means any structure through which stormwater is introduced into an underground conveyance system.

"Stormwater management facility" means a device that controls stormwater runoff and changes the characteristics of that runoff, including but not limited to, the quantity, quality, the period of release, or the velocity of flow.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a well. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Sulfide stress cracking" means embrittlement of the steel grain structure to reduce ductility and cause extreme brittleness or cracking by hydrogen sulfide.

"Surface mine" means an area containing an open pit excavation, surface operations incident to an underground mine, or associated activities adjacent to the excavation or surface operations, from which coal or other minerals are produced for sale, exchange, or commercial use and includes all buildings and equipment above the surface of the ground used in connection with such mining.

"Target formation" means the geologic gas or oil formation identified by the well operator in his application for a gas, oil or geophysical drilling permit.

"Temporary stream crossing" means a temporary span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes or pipe arches constructed on or through nonerodible material.

"Ten-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year.

"Tidewater Virginia" means the region defined in § 62.1-44.15:68 of the Code of Virginia.

"Trade secret" means the term defined in § 59.1-336 of the Code of Virginia.

"Tubing" means the small diameter string set after the well has been drilled from the surface to the total depth and through which the gas or oil or other substance is produced or injected.

"Two-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used only for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water bar" means a small obstruction constructed across the surface of a road, pipeline right-of-way, or other area of ground disturbance in order to interrupt and divert the flow of water on a grade for the purpose of controlling erosion and sediment migration.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-150-20. Basis and authority.

This chapter implements the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The Director of the Department of Mines, Minerals and Energy is authorized to promulgate this chapter pursuant to §§ 45.1-161.3 45.2-103 and 45.1-361.27 45.2-1629 of the Code of Virginia.

4VAC25-150-40. Registration.

A. Persons required to register under § 45.1-361.37 § 45.2-1639 of the Code of Virginia shall register with the division on a registration form prescribed by the director.

B. Registered persons shall notify the division within 30 days of any change in the information included on the registration form filed in accordance with subsection A of this section.

4VAC25-150-80. Application for a permit.

A. Applicability.

1. Persons required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia to obtain a permit or permit modification shall apply to the division on the forms prescribed by the director. All lands on which gas, oil, or geophysical operations are to be conducted shall be included in a permit application.

2. In addition to specific requirements for variances in other sections of this chapter, any applicant for a variance shall, in writing, document the need for the variance and describe the alternate measures or practices to be used.

3. Prior to accepting an application for a permit to drill for gas or oil in Tidewater Virginia, the department shall convene a pre-application meeting within the locality where the operation is proposed. The pre-application meeting shall ensure those who desire to submit an application are aware of the requirements established in § 62.1-195.1 of the Code of Virginia and 9VAC15-20. The department, in conjunction with the Department of Environmental Quality, shall conduct the meeting. The meeting shall be open to the public, and the department shall notify the locality in which the meeting is to take place and adjacent localities. No application for a permit to drill for gas or oil in Tidewater Virginia shall be accepted until the meeting is completed.

B. The application for a permit shall, as applicable, be accompanied by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia, the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia, and the fee for the Orphaned Well Fund in accordance with § 45.1-361.40 § 45.2-1642 of the Code of Virginia.

C. Each application for a permit shall include information on all activities, including those involving associated facilities, to be conducted on the permitted site. This shall include the following:

1. The name and address of:

a. The gas, oil, or geophysical applicant;

b. The agent required to be designated under § 45.1-361.37 § 45.2-1639 of the Code of Virginia; and

c. Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

2. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

3. Certification from the applicant that the proposed operation complies with all applicable local land use ordinances;

4. The proof of notice to affected parties required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, which shall be:

a. A copy of a signed receipt or electronic return receipt of delivery of notice by certified mail;

b. A copy of a signed receipt acknowledging delivery of notice by hand; or

c. If all copies of receipt of delivery of notice by certified mail have not been signed and returned within 15 days of mailing, a copy of the mailing log or other proof of the date the notice was sent by certified mail, return receipt requested;

5. If the application is for a permit modification, proof of notice to affected parties, as specified in subdivision C 4 of this section;

6. Identification of the type of well or other gas, oil, or geophysical operation being proposed;

7. A list of ingredients anticipated to be used in any hydraulic fracturing operations. The applicant should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection;

8. The groundwater baseline sampling, analysis, and monitoring plan in accordance with 4VAC25-150-95;

9. The plat in accordance with 4VAC25-150-90;

10. The operations plan in accordance with 4VAC25-150-100;

11. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350;

12. The spill prevention, control, and countermeasure (SPCC) plan, if one is required;

13. The emergency response plan;

14. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit on which a proposed gas, oil, or geophysical operation is to be located;

15. For an application for a conventional well, the information required in 4VAC25-150-500;

16. For an application for a coalbed methane gas well, the information required in 4VAC25-150-560;

17. For an application for a geophysical operation, the information required in 4VAC25-150-670; and

18. For an application for a permit to drill for gas or oil in Tidewater Virginia, the environmental impact assessment meeting the requirements of § 62.1-195.1 B of the Code of Virginia and 9VAC15-20.

D. All permit applications and plats submitted to the division shall be in electronic form or a format prescribed by the director.

4VAC25-150-90. Plats.

A. When filing an application for a permit for a well or corehole, the applicant also shall file an accurate plat certified by a licensed professional engineer or licensed land surveyor on a scale, to be stated thereon, of 1 inch equals 400 feet (1:4800). The scope of the plat shall be large enough to show the board approved unit and all areas within the greater of 750 feet or one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia from the proposed well or corehole. The plat shall be submitted on a form prescribed by the director.

B. The known courses and distances of all property lines and lines connecting the permanent points, landmarks or corners within the scope of the plat shall be shown thereon. All lines actually surveyed shall be shown as solid lines. Lines taken from deed or chain of title descriptions only shall be shown by broken lines. All property lines shown on a plat shall agree with any one of the following: surveys, deed descriptions, or acreages used in county records for tax assessment purposes.

C. A north and south line shall be given and shown on the plat, and point to the top of the plat.

D. Wells or coreholes shall be located on the plat as follows:

1. The proposed or actual surface elevation of the subject well or corehole shall be shown on the plat, within an accuracy of one vertical foot. The surface elevation shall be tied to either a government benchmark or other point of proven elevation by differential or aerial survey, by trigonometric leveling, or by global positioning system (GPS) survey. The location of the government benchmark or the point of proven elevation and the method used to determine the surface elevation of the subject well or corehole shall be noted and described on the plat.

2. The proposed or actual horizontal location of the subject well or corehole determined by survey shall be shown on the plat. The proposed or actual well or corehole location shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System.

3. The courses and distances of the well or corehole location from two permanent points or landmarks on the tract shall be shown; such landmarks shall be set stones, iron pipes, T-rails or other manufactured monuments, including mine coordinate monuments, and operating or abandoned wells which are platted to the accuracy standards of this section and on file with the division. If temporary points are to be used to locate the actual well or corehole location as provided for in 4VAC25-150-290, the courses and distances of the well or corehole location from the two temporary points shall be shown.

4. Any other well, permitted or drilled, within the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well shall be shown on the plat or located by notation. The type of each well shall be designated by the following symbols as described in the Federal Geographic Data Committee (FGDC) Digital Cartographic Standard for Geologic Map Symbolization:

Symbols for additional features as required in 4VAC25-150-510, 4VAC25-150-590, and 4VAC25-150-680 should be taken from the FDGC standard where applicable.

E. Plats shall also contain:

1. For a conventional gas and oil or injection well, the information required in 4VAC25-150-510;

2. For a coalbed methane gas well, the information required in 4VAC25-150-590; or

3. For a corehole, the information required in 4VAC25-150-680.

F. Any subsequent application for a new permit or permit modification shall include an accurate copy of the well plat, updated as necessary to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted. Any revised plat shall be certified as required in subsection A of this section.

4VAC25-150-100. Operations plans.

A. Each application for a permit or permit modification shall include an operations plan, in a format approved by or on a form prescribed by the director. The operations plan and accompanying maps or drawings shall become part of the terms and conditions of any permit which is issued.

B. The operations plan shall describe the specifications for the use of centralizers to ensure casing is centered in the hole. The specifications shall include, at a minimum, one centralizer within 50 feet of the water protection string seat and then in intervals no greater than every 150 feet above the first centralizer and are subject to the approval of the director.

C. The applicant shall indicate how risks to the public safety or to the site and adjacent lands are to be managed, consistent with the requirements of § 45.1-361.27 B § 45.2-1629 B of the Code of Virginia, and shall provide a short narrative, if pertinent. The operations plan shall identify red zone areas.

4VAC25-150-110. Permit supplements and permit modifications.

A. Permit supplements.

1. Standard permit supplements. A permittee shall be allowed to submit a permit supplement when work being performed:

a. Does not change the disturbance area as described in the original permit; and

b. Involves activities previously permitted.

The permittee shall submit written documentation of the changes made to the permitted area no later than 30 days after completing the change. All other changes to the permit shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Permit supplements for disclosure of ingredients used in hydraulic fracturing. Prior to completion of a well, the permittee shall submit a permit supplement when the ingredients expected to be used in the hydraulic fracturing process differ in any way from that which was submitted pursuant to subdivision C 7 of 4VAC25-150-80. The permittee should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection.

3. Emergency permit supplements. If a change must be implemented immediately for an area off the disturbance area as described in the original permit, or for an activity not previously permitted due to actual or threatened imminent danger to the public safety or to the environment, the permittee shall:

a. Take immediate action to minimize the danger to the public or to the environment;

b. Notify the director as soon as possible of actions taken to minimize the danger and, if the director determines an emergency still exists and grants oral approval, commence additional changes if necessary; and

c. Submit a supplement to the permit within seven working days of notifying the director with a written description of the emergency and action taken. An incident report may also be required as provided for in 4VAC25-150-380.

Any changes to the permit are to be temporary and restricted to those that are absolutely necessary to minimize danger. Any permanent changes to the permit shall require a permit modification as provided for in subsection B of this section.

B. Permit modifications.

1. Applicability. All changes to the permit which do not fit the description contained in subsection A of this section shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Notice and fees. Notice of a permit modification shall be given in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia. The application for a permit modification shall be accompanied, as applicable, by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia and the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia.

3. Waiver of right to object. Upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit modification. The department shall be entitled to rely upon the waiver to approve the permit modification.

4. Permit modification. The permittee shall submit a written application for a permit modification on a form prescribed by the director. The permittee may not undertake the proposed work until the permit modification has been issued. As appropriate, the application shall include, but not be limited to:

a. The name and address of:

(1) The permittee; and

(2) Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

b. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

c. The proof of notice required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, as provided for in 4VAC25-150-80 C 4;

d. Identification of the type of work for which a permit modification is requested;

e. The plat in accordance with 4VAC25-150-90;

f. All data, maps, plats and plans in accordance with 4VAC25-150-100 necessary to describe the activity proposed to be undertaken;

g. When the permit modification includes abandoning a gas or oil well as a water well, a description of the plugging to be completed up to the water-bearing formation and a copy of the permit issued for the water well by the Virginia Department of Health;

h. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350 if applicable to the proposed operations;

i. The spill prevention, control, and countermeasure (SPCC) plan, if one has been developed for the site of the proposed operations, or the emergency response plan;

j. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit; and

k. The information, as appropriate, required in 4VAC25-150-500, 4VAC25-150-560, 4VAC25-150-670, or 4VAC25-150-720.

5. Upon receipt of an application for a permit modification for a well in Tidewater Virginia, the director may require additional documentation to supplement information submitted to the department pursuant to subsection B of § 62.1-195.1 of the Code of Virginia. If additional documentation is required, the operator shall submit that documentation to the director and the Department of Environmental Quality.

4VAC25-150-120. Transfer of permit rights.

A. Applicability.

1. No transfer of rights granted by a permit shall be made without prior approval from the director.

2. Any approval granted by the director of a transfer of permit rights shall be conditioned upon the proposed new operator complying with all requirements of the Act, this chapter and the permit.

B. Application. Any person requesting a transfer of rights granted by a permit shall submit a written application on a form prescribed by the director. The application shall be accompanied by a fee of $75 and bond, in the name of the person requesting the transfer, in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia. The application shall contain, but is not limited to:

1. The name and address of the current permittee, the current permit number and the name of the current operation;

2. The name and address of the proposed new operator and the proposed new operations name;

3. Documentation of approval of the transfer by the current permittee;

4. If the permit was issued on or before September 25, 1991, an updated operations plan, in accordance with 4VAC25-150-100, showing how all permitted activities to be conducted by the proposed new permittee will comply with the standards of this chapter;

5. If the permit was issued on or before September 25, 1991, for a well, a plat meeting the requirements of 4VAC25-150-90 updated to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted, including the change in ownership of the well; and

6. If the permit was issued on or before September 25, 1991, if applicable, the docket number and date of recordation of any order issued by the board for a pooled unit, pertaining to the current permit.

C. Standards for approval. The director shall approve the transfer of permit rights when the proposed new permittee:

1. Has registered with the department in accordance with § 45.1-361.37 § 45.2-1639 of the Code of Virginia;

2. Has posted acceptable bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia; and

3. Has no outstanding debt pursuant to § 45.1-361.32 § 45.2-1634 of the Code of Virginia.

D. The new permittee shall be responsible for any violations of or penalties under the Act, this chapter, or conditions of the permit after the director has approved the transfer of permit rights.

4VAC25-150-130. Notice of permit applications and modifications.

A. Gas, oil or geophysical operators shall provide notice of an application for a permit or permit modification in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia, as identified on the "Technical Data Sheet for Permit Applications Under § 45.1-361.29," prescribed by the director.

B. If notice required under § 45.1-361.30 § 45.2-1632 of the Code of Virginia has been sent by certified mail, return receipt requested, and the notice has not been delivered within 15 days of mailing the notice, the director shall consider notice to be given as of the end of the 15-day period and the objection period specified in §§ 45.1-361.35 § 45.2-1637 of the Code of Virginia shall commence.

4VAC25-150-140. Objections to permit applications.

A. Objections shall be filed in writing, at the office of the division, in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia. The director shall notify affected parties of an objection as soon as practicable.

B. If after the director has considered notice to be given under 4VAC25-150-130 B of this chapter, a person submits an objection with proof of receipt of actual notice within 15 days prior to submitting the objection, then the director shall treat the objection as timely.

C. Objections to an application for a new or modified permit shall contain:

1. The name of the person objecting to the permit;

2. The date the person objecting to the permit received notice of the permit application;

3. Identification of the proposed activity being objected to;

4. A statement of the specific reason for the objection;

5. A request for a stay to the permit, if any, together with justification for granting a stay; and

6. Any other information the person objecting to the permit wishes to provide.

D. When deciding to convene a hearing pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia, the dir0ctor director shall consider the following:

1. Whether the person objecting to the permit has standing to object as provided in § 45.1-361.35 § 45.2-1632 of the Code of Virginia;

2. Whether the objection is timely; and

3. Whether the objection meets the applicable standards for objections as provided in § 45.1-361.35 § 45.2-1637 of the Code of Virginia.

E. If the director decides not to hear the objection, then he shall notify the person who objects and the permit applicant in writing, indicating his reasons for not hearing the objection, and shall advise the objecting person of his right to appeal the decision.

4VAC25-150-150. Hearing and decision on objections to permit applications.

A. In any hearing on objections to a permit application:

1. The hearing shall be an informal fact finding hearing in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia.

2. The permit applicant and any person with standing in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia may be heard.

3. Any valid issue in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia may be raised at the hearing. The director shall determine the validity of objections raised during the hearing.

B. The director shall, as soon after the hearing as practicable, issue his decision in writing and hand deliver or send the decision by certified mail to all parties to the hearing. The decision shall include:

1. The subject, date, time and location of the hearing;

2. The names of the persons objecting to the permit;

3. A summary of issues and objections raised at the hearing;

4. Findings of fact and conclusions of law;

5. The text of the decision, including any voluntary agreement; and

6. Appeal rights.

C. Should the director deny the permit issuance and allow the objection, a written notice of the decision shall be sent to any person receiving notice of the application.

4VAC25-150-160. Approval of permits and permit modifications.

A. Permits, permit modifications, permit renewals, and transfer of permit rights shall be granted in writing by the director.

B. The director may not issue a permit, permit renewal, or permit modification prior to the end of the time period for filing objections pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia unless, upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit application or permit modification application. The director shall be entitled to rely upon the waiver to approve the permit application or permit modification.

C. The director may not issue a permit to drill for gas or oil or approve a permit modification for a well where additional documentation is required pursuant to subdivision B 5 of 4VAC25-150-110 in Tidewater Virginia until he has collaborated with the Department of Environmental Quality to ensure permit conditions accurately reflect the results from the Department of Environmental Quality's coordinated review of the environmental impact assessment required pursuant to § 62.1-195.1 of the Code of Virginia.

D. The provisions of any order of the Virginia Gas and Oil Board that govern a gas or oil well permitted by the director shall become conditions of the permit.

4VAC25-150-170. Enforcement.

A. The director shall enforce the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or any condition of a permit, and may use the following methods:

1. Obtaining voluntary compliance through conference, warning or other means prior to issuing any enforcement notice or order;

2. Issuing notices of violation in accordance with 4VAC25-150-180;

3. Issuing closure orders in accordance with 4VAC25-150-190;

4. Issuing show cause orders in accordance with 4VAC25-150-200;

5. Issuing emergency orders in accordance with § 45.1-361.27 D § 45.2-1629 of the Code of Virginia; or

6. Any other action in accordance with the Code of Virginia.

B. The purpose of taking actions under this section is to obtain compliance with the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or conditions of a permit.

C. Reclamation operations and other activities intended to protect the public health and safety and the environment shall continue during the period of any notice or order unless otherwise provided in the notice or order.

D. Any person found to be conducting a gas, oil or geophysical operation without a permit from the director shall be subject to enforcement for operating without a permit and for not meeting any other standards of the Act or this chapter which would be required if the person was operating under a permit.

E. Decisions of the director may be appealed to the Virginia Gas and Oil Board pursuant to § 45.1-361.23 § 45.2-1625 of the Code of Virginia.

4VAC25-150-180. Notices of violation.

A. The director may issue a notice of violation if he finds a violation of any of the following:

1. Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. This chapter;

3. 4VAC25-160 entitled "Virginia Gas and Oil Board Regulation";

4. Any board order; or

5. Any condition of a permit, which does not create an imminent danger or harm for which a closure order must be issued under 4VAC5-150-190.

B. A notice of violation shall be in writing, signed, and set forth with reasonable specificity:

1. The nature of the violation, including a reference to the section or sections of the Act, applicable regulation, order or permit condition which has been violated;

2. A reasonable description of the portion of the operation to which the violation applies, including an explanation of the condition or circumstance that caused the portion of the operation to be in violation, if it is not self-evident in the type of violation itself;

3. The remedial action required, which may include interim steps; and

4. A reasonable deadline for abatement, which may include a deadline for accomplishment of interim steps.

C. The director may extend the deadline for abatement or for accomplishment of an interim step, if the failure to meet the deadline previously set was not caused by the permittee's lack of diligence. An extension of the deadline for abatement may not be granted when the permittee's failure to abate has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

D. If the permittee fails to meet the deadline for abatement or for completion of any interim steps, the director shall issue a closure order under 4VAC25-150-190.

E. The director shall terminate a notice of violation by written notice to the permittee when he determines that all violations listed in the notice of violation have been abated.

F. A permittee issued a notice of violation may request, in writing to the director, an informal fact-finding hearing to review the issuance of the notice. This written request shall be made within 10 days of receipt of the notice. The permittee may request, in writing to the director, an expedited hearing.

G. A permittee is not relieved of the duty to abate any violation under a notice of violation during an appeal of the notice. A permittee may apply for an extension of the deadline for abatement during an appeal of the notice.

H. The director shall issue a decision on any request for an extension of the deadline for abatement under a notice of violation within five days of receipt of such request. The director shall conduct an informal fact-finding hearing, in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia, no later than 10 days after receipt of the hearing request.

I. The director shall affirm, modify, or vacate the notice in writing to the permittee within five days of the date of the hearing.

4VAC25-150-220. Annual reports.

A. Each permittee shall submit a calendar-year annual report to the division by no later than March 31 of the next year.

B. The annual report shall include as appropriate:

1. A confirmation of the accuracy of the permittee's current registration filed with the division or a report of any change in the information;

2. The name, address and phone number or numbers of the persons to be contacted at any time in case of an emergency;

3. Production of gas or oil on a well-by-well and county-by-county or city-by-city basis for each permit or as prescribed by the director and the average price received for each Mcf of gas and barrel of oil;

4. Certification by the permittee that the permittee has paid all severance taxes for each permit;

5. When required, payment to the Gas and Oil Plugging and Restoration Fund as required in § 45.1-361.32 § 45.2-1634 of the Code of Virginia; and

6. Certification by the permittee that bonds on file with the director have not been changed.

4VAC25-150-290. Actual well or corehole location.

A. The actual horizontal surface location of the well shall be within three feet of the permitted location designated on the well plat, except where an operator has stated that the location may vary up to 10 feet in the notice as required in § 45.1-361.30 § 45.2-1632 of the Code of Virginia.

B. The permittee shall survey the actual location of the well which may be made from a minimum of two temporary points not disturbed during development of the well or site and shown on the plat submitted with the permit application. The permittee shall submit an updated plat, certified by a licensed land surveyor or licensed professional engineer, showing the actual well location certified to be within three feet of the permitted location, or within 10 feet as provided for in subsection A of this section. This updated plat shall be included with the drilling report submitted in accordance with 4VAC25-150-360.

4VAC25-150-365. Disclosure of well stimulation fluids.

A. In addition to other requirements that may be prescribed by the director, each completion report required in 4VAC25-150-360 shall also contain the following disclosures:

The operator of the well shall complete the Chemical Disclosure Registry form and upload the form on the Chemical Disclosure Registry, including:

a. The operator name;

b. The date of completion of the hydraulic fracturing treatment or treatments;

c. The county in which the well is located;

d. The American Petroleum Institute (API) number for the well;

e. The well name and number;

f. The longitude and latitude of the wellhead;

g. The total vertical depth of the well;

h. The total volume of water used in the hydraulic fracturing treatment or treatments of the well or the type and total volume of the base fluid used in the hydraulic fracturing treatment or treatments, if something other than water;

i. Each additive used in the hydraulic fracturing treatments and the trade name, supplier, and a brief description of the intended use or function of each additive in the hydraulic fracturing treatment or treatments;

j. Each chemical ingredient used in the hydraulic fracturing treatment or treatments of the well that is subject to the requirements of 29 CFR 1910.1200(g)(2), as provided by the chemical supplier or service company or by the operator, if the operator provides its own chemical ingredients;

k. The actual or maximum concentration of each chemical ingredient listed under subdivision j of this subsection in percent by mass;

l. The CAS number for each chemical ingredient listed, if applicable; and

m. A supplemental list of all chemicals, their respective CAS numbers, and the proportions thereof not subject to the requirements of 29 CFR 1910.1200(g)(2), that were intentionally included in and used for the purpose of creating the hydraulic fracturing treatments for the well.

B. The department shall obtain and maintain data submitted to the Chemical Disclosure Registry. If the Chemical Disclosure Registry is temporarily inoperable, the operator of a well on which hydraulic fracturing treatment or treatments were performed shall supply the department with the required information and upload the information on the registry when it is again operable. The information required shall also be filed as an attachment to the completion report for the well, which shall be posted, along with all attachments, on the department's website, except that information determined to be subject to trade secret protection shall not be posted.

C. All information related to the specific identity or CAS number or amount of any additive or chemical ingredient used in hydraulic fracturing shall be submitted to the department and shall be available to the public unless the department determines that information supplied by the operator and claimed to be a trade secret is entitled to such protection. All information claimed as a trade secret shall be identified as such at the time of submission of the appropriate report. The department shall treat as confidential in accordance with law, information that meets the criteria specified in law for a trade secret and is contained on such forms and filings as is required under this chapter. Such criteria shall include a demonstration by the claimant that the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Should the department determine that information is protected as a trade secret, the operator of the well shall indicate on the Chemical Disclosure Registry or the supplemental list that the additive or chemical ingredient or their amounts are entitled to trade secret protection. If a chemical ingredient name or CAS number is entitled to trade secret protection, the chemical family or other similar description associated with such chemical ingredient shall be provided. The operator of the well on which hydraulic fracturing was performed shall provide the contact information, including the name, authorized representative, mailing address, and phone number of the business organization for which trade secret protection exists. Unless the information is entitled to protection as a trade secret, information submitted to the department or uploaded on the Chemical Disclosure Registry is public information.

D. The operator understands that the director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical claimed to be a trade secret to additional department staff to the extent that such disclosure is necessary to assist the department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27 § 45.2-1629 of the Code of Virginia provided that such individuals shall not disseminate the information further. In addition, the director may disclose such information to any relevant state or local government official to assist in responding to the emergency. Any information so disclosed shall at all times be considered confidential and shall not be construed as publicly available. The director shall notify the trade secret claimant or holder of disclosures made to relevant state or local government officials as soon as practicable after such disclosure is made.

E. An operator may not withhold information related to chemical ingredients used in hydraulic fracturing, including information identified as a trade secret, from any health professional or emergency responder who needs the information for diagnostic, treatment, or other emergency response purposes subject to procedures set forth in 29 CFR 1910.1200(i). An operator shall provide directly to a health professional or emergency responder, all information in the person's possession that is required by the health professional or emergency responder, whether or not the information may qualify for trade secret protection under this section. The person disclosing information to a health professional or emergency responder shall include with the disclosure, as soon as circumstances permit, a statement of the health professional's confidentiality obligation. In an emergency situation, the operator shall provide the information immediately upon request to the person who determines that the information is necessary for emergency response or treatment. The disclosures required by this subsection shall be made in accordance with the procedures in 29 CFR 1910 with respect to a written statement of need and confidentiality agreements, as applicable.

4VAC25-150-410. Venting and flaring of gas; escape of oil.

A. It shall be unlawful for any permittee to allow crude oil or natural gas to escape from any well, gathering pipeline or storage tank except as provided for in this section or in an approved operations plan. The permittee shall take all reasonable steps to shut in the gas or oil in the well, or make the necessary repairs to the well, gathering pipeline or storage tank to prevent the escape. All actions shall be consistent with the requirements of an abatement plan, if any has been set, in a notice of violation or closure, emergency or other order issued by the director.

B. A permittee shall drill or repair a well with special diligence so that waste of gas or oil from the well shall not continue longer than reasonably necessary under the following circumstances:

1. When, during drilling, gas or oil is found in the well and the permittee desires to continue to search for gas or oil by drilling deeper; or

2. When making repairs to any well producing gas or oil, commonly known as cleaning out.

C. No gas shall be flared or vented from a well for more than seven days after completion of the well except in these circumstances:

1. When a well must be blown to remove accumulated formation fluid which has restricted efficient production, or the well must be otherwise cleaned out as provided for in subsection B of this section;

2. For the safety of mining operations;

3. For any activity excluded in the definition of "waste" under § 45.1-361.1 § 45.2-1600 of the Act; or

4. For any other operational reason approved in advance by the director.

D. In all cases where both gas and oil are found and produced from the same stratum, the permittee shall use special diligence to conserve and save as much of the gas as is reasonably possible.

E. Venting shall only be used when flaring is not safe or not feasible.

4VAC25-150-435. Plugging for abandonment or plug-back operations.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the director. A permit modification is required if the well was not previously permitted for plugging.

2. Any person may file an application with the director to replug a previously plugged well in any manner permissible under provisions of this section to facilitate the safe mining-through of the well at a later date. The application shall be treated in all respects like any other application for a permit under § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

3. The director may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of the Act:

a. The coal owner or operator requests a special plugging program to facilitate mine safety, mining through the well, or to obtain approval from another governmental agency for the safe mining-through of a well. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, a stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a well or section of a well without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At a point approximately 20 feet above each oil, gas or water-bearing stratum in open hole, a plug shall be placed so as to completely seal the wellbore. Whenever two or more gas or oil stratum are not widely separated, they may be treated as a single stratum and plugged accordingly. Cement plugs shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of open hole bridge plugs.

2. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly. This subsection applies only to coal seams which occur at a depth compatible with mining. Coal-bearing sections at greater depths may be plugged in accordance with subdivision B 1 of this section.

3. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

4. A cement plug of a minimum length of 100 feet shall be placed across the shoe of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the well is without surface casing, a continuous cement plug shall be placed from at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

5. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the wellbore by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each oil, gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill-up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If the well penetrates a minable coal-bearing section, and no coal-protection casing was used, and if surface (water-protection) casing is either absent or not properly placed and cemented to surface, the production casing shall be converted to a coal-protection string by perforating at least 50 feet below the base of the lowest coal stratum, and circulating cement in the annulus from that point to the surface.

c. At each coal seam in a minable coal-bearing section which is protected by a properly installed and cemented coal-protection string, a cement plug shall be placed in casing from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. If there is uncemented annulus between the inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

d. If a fresh water aquifer is exposed to the wellbore in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

e. At a point no less than 50 feet below the shoe of surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

f. From a point not less than 50 feet below surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

g. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision C 1 of this section.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal lengths inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the wellbore, or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity such as a cavern, mine void, blast stimulation zone or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest gas or oil stratum in the well, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest gas or oil stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision E 1 of this section.

4VAC25-150-470. Release of bond.

A. Application for bond release.

A permittee desiring to have a bond released by the director shall apply in writing identifying the operation, and documenting that the well or disturbed land meets the requirements for partial or full bond release. A bond may be reduced or released by the director only in writing.

B. Partial bond release.

The portion of a permittee's bond covering disturbed land may be released as follows:

1. A permittee with an individual bond under § 45.1-361.31 A § 45.2-1633 of the Code of Virginia shall be eligible for release of the portion of the bond covering disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

2. A permittee with a blanket bond under § 45.1-361.31 B § 45.2-1633 of the Code of Virginia shall be eligible for release of 75% of the portion of the bond calculated on acreage of disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

C. Full bond release.

A permittee's bond or coverage of a well and land under a blanket bond is eligible for full release when:

1. A well has been plugged, the plugging affidavit has been submitted to the director and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

2. The well is abandoned as a water well in accordance with 4VAC25-150-440 of this chapter and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

3. The well is abandoned as a vertical ventilation hole in accordance with 4VAC25-150-650 of this chapter and the land under the bond is permitted by the department's Division of Mined Land Reclamation Repurposing or has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter; or

4. Other bond has been accepted by the director.

4VAC25-150-480. Orphaned wells; right of entry.

A. Written consent from the owner of record or lessee, or their authorized agents, is the preferred means for obtaining agreements to enter lands in order to carry out plugging of orphaned wells and restoration of their sites. Nonconsensual entry under § 45.1- 361.27 § 45.2-1629 E of the Code of Virginia shall be undertaken only after reasonable efforts have been made to obtain written consent.

B. Consent and entry shall meet the following standards:

1. The director or authorized contractors may enter lands to perform plugging and restoration activities or to conduct studies or investigations of orphaned wells if consent from the owner is obtained.

2. If consent is not obtained, then, prior to entry under this section, the director shall find, in writing, with supporting reasons, that:

a. Citizens or the environment of the Commonwealth or persons involved in coal or mineral mining may be at risk from an orphaned well; and

b. The owner of the land where entry must be made to plug an orphaned well and restore the site is not known or readily available, or the owner will not give permission for the director or authorized contractors to enter to plug the orphaned well and reclaim the site.

C. If consent is not obtained, the director shall give notice of his intent to enter for the purposes of conducting plugging and restoration at least 30 days before entry into the property. The notice shall be in writing and shall be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one or more places on the property to be entered, where it is readily visible to the public. The notice posted on the property and the newspaper notice pursuant to § 45.1-361.40 § 45.2-1642 C of the Code of Virginia shall include a statement of where the findings required by this section may be inspected or obtained.

4VAC25-150-510. Plats, conventional wells or Class II injection wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a conventional gas or oil well shall show:

1. The boundaries of any drilling unit established by the board around the subject well;

2. The boundaries and acreage of the tract on which the well is located or is to be located;

3. The boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 500 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 500 feet of a proposed gas or oil well;

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well; and

9. If the plat is for an enhanced oil recovery injection well, any other well within 2,500 feet of the proposed or actual well location, which shall be presumed to embrace the entire area to be affected by an enhanced oil recovery injection well in the absence of a board order establishing units in the target pool of a different size or configuration.

B. If the well location is underlain by known coal seams, or if required by the director, the well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall in any event show all other wells, surface mines and mine openings within the scope of the plat.

4VAC25-150-560. Application for a permit, coalbed methane well operations.

In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a coalbed methane gas well shall contain:

1. An identification of the category of owner or operator, as listed in § 45.1-361.30 § 45.2-1632 A of the Code of Virginia, that each person notified of the application belongs to;

2. The signed consent required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia;

3. Proof of conformance with any mine development plan in the vicinity of the proposed coalbed methane gas well, when the Virginia Gas and Oil Board has ordered such conformance;

4. The approximate depth to which the well is proposed to be drilled or deepened, or the actual depth if the well has been drilled;

5. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the well is proposed to be drilled;

6. If casing or tubing is proposed to be or has been set, a description of the entire casing program, including the size of each string of pipe, the starting point and depth to which each string is to be or has been set, and the extent to which each string is to be or has been cemented together with any request for a variance under 4VAC25-150-580; and

7. The procedures to be followed to protect the safety of persons working in an underground coal mine for any coalbed methane well to be drilled within 200 feet of or into active workings. The permittee shall give notice of such drilling to the mine operator and the chief at least two working days prior to drilling.

4VAC25-150-590. Plats, coalbed methane wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a coalbed methane gas well shall show:

1. Boundaries and acreage of any drilling unit established by the board around the subject well;

2. Boundaries and acreage of the tract on which the well is located or is to be located;

3. Boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 750 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 750 feet of a proposed gas or oil well; and

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well.

B. The well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall show all other wells within the scope of the plat.

4VAC25-150-620. Coalbed methane gas wellhead equipment.

Wellhead equipment and facilities installed on any gob well or on any coalbed methane gas well subject to the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Code of Virginia addressing mining near or through a well shall include a safety precaution plan submitted to the director for approval. Such plans shall include, but shall not be limited to, flame arrestors, back-pressure systems, pressure-relief systems, vent systems and fire-fighting equipment. The director may require additional safety precautions or equipment to be installed on a case-by-case basis.

4VAC25-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Applicant" means a person or business who files an application, petition, appeal or other request with the Division of Gas and Oil.

"Board" means the Virginia Gas and Oil Board.

"Complete application" means all the materials required to be filed by the applicant under this chapter.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Directional survey" means a well survey that measures the degree of deviation of a hole, or distance, from the vertical and the direction of departure.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Division director" means the Director of the Division of Gas and Oil.

"Election" means the performance of an act within the time established or required by statute, order or regulation. An election required to be made by board order or regulation must be in writing and (i) be personally delivered to the person or agent of the person described in the order or regulation by the date established or required, or (ii) be mailed to the person or agent of the person described in the order or regulation at the address stated therein and be postmarked by the United States Postal Service before midnight on the date established or required.

"Field" means the general area underlain by one or more pools.

"Gas/oil ratio" means the product of the number of Mcf of natural gas produced from a well divided by the number of barrels of oil produced from the well as determined by a gas/oil ratio test.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Inclination survey" means a well survey to determine the deviation, using the surface location of the well as the apex, of a well bore from the true vertical beneath the apex on the same horizontal subsurface plane.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mine development plan" means a permit or license application filed with the Division of Mines or Mined Land Reclamation Repurposing for legal permission to engage in extraction of coal resources.

"Oil well" means any well which produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Petitioner" means any person or business who files a petition, appeal, or other request for action with the Division of Gas and Oil or the Virginia Gas and Oil Board.

"Pooling" means the combining of all interests or estates in a gas, oil or coalbed methane drilling unit for the development and operations thereof. Pooling may be accomplished either through voluntary agreement or through a compulsory order of the board.

"Respondent" means a person named in an application, petition, appeal or other request for board action and against whom relief is sought by the applicant, or a person who under the terms of a board order, is required to make an election.

"Unit operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-160-20. Authority and applicability.

A. This chapter is promulgated by the Virginia Gas and Oil board pursuant to § 45.1-361.15 § 45.2-1614 of the Code of Virginia.

B. As provided for in the Virginia Acts of Assembly, 1990, Chapter 92, all All field rules and orders issued pursuant to the provisions of the Oil and Gas Act of 1982, Chapter 22 (§ 45.1- 286 et seq.) of Title 45.1 of the Code of Virginia shall remain in force and effect until modified or revoked pursuant to the provisions of the Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The requirements of this chapter are in addition to requirements of field rules and orders.

4VAC25-160-30. Administrative provisions.

A. The Virginia Gas and Oil Board shall meet on the third Tuesday of each calendar month unless no action is required by the board or unless otherwise scheduled by the board. All hearings shall be scheduled in accordance with the requirements for notice by publication in § 45.1-361.19 § 45.2-1618 of the Code of Virginia. Except where otherwise established by the Act, the board may establish deadlines for filing materials for meetings or hearings scheduled on other than the third Tuesday of each month. Except where otherwise established by the Act, filings shall be in electronic form or a format prescribed by the board.

B. Applications to the board must be filed by the following deadlines:

1. All applications, petitions, appeals or other requests for board action must be received by the division at least 30 calendar days prior to the regularly scheduled meeting of the board. If the 30th day falls on a weekend or a legal holiday, the deadline shall be the prior business day.

2. When required, the following material must be filed with the division at least seven calendar days prior to the regularly scheduled meeting of the board in order for the application to be considered a complete application:

a. The affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

b. Proof of notice by publication in accordance with 4VAC25-160-40 D.

C. A complete application that is not filed by the deadlines of this subsection shall be carried over to the next scheduled meeting of the board. A submission that does not contain a complete application shall not be considered by the board until the application is complete.

D. The division shall assign a docket number to each application or petition at the time of payment receipt and filing. The division shall notify the applicant of the completed filing and assigned docket number. The docket number shall be referenced when submitting material regarding the application or petition.

E. In addition to the other requirements of this chapter, applications to the board shall meet the following standards:

1. Each application for a hearing before the board shall be headed by a caption, which shall contain a heading including:

a. "Before the Virginia Gas and Oil Board";

b. The name of the applicant;

c. The relief sought; and

d. The docket number assigned by the division.

2. Each application shall be signed by the applicant, an authorized agent of the applicant, or an attorney for the applicant, certifying that, "The foregoing application to the best of my knowledge, information, and belief is true and correct."

3. Exhibits shall be identified by the docket number and an exhibit number and may be introduced as part of a person's presentation.

4. Applicants shall submit a copy of each application and exhibits. Each person offering exhibits into evidence shall also have available a reasonably sufficient number of exhibits for other persons who are subject to the provisions of §§ 45.1-361.19 45.2-1618 and 45.1-361.23 45.2-1625 of the Code of Virginia, who have notified the division of their request for copies of exhibits, and are expected to be in attendance at the hearing.

F. Applications for the establishment and modification of a unit, spacing or pooling shall be accompanied by a $130 nonrefundable fee, payable to the Treasurer of Virginia.

G. All parties in any proceeding before the board are entitled to appear in person or be represented by counsel, as provided for in the Administrative Process Act, § 2.2-4000 et seq. of the Code of Virginia.

4VAC25-160-40. Notice of hearings.

A. Each applicant for a hearing to establish an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia shall provide notice by electronic mail, by certified mail, return receipt requested, or by another commercial carrier including Federal Express and United Parcel Service, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less. Each applicant for a hearing to establish an exception to a well location provided for in a drilling unit established by an order of the board shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying the unit where the exception is requested.

B. Each applicant shall include, in or with the mailed notice of the hearing required under § 45.1-361.19 § 45.2-1618 of the Code of Virginia, the following information:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or proposed order;

4. Citations of statutes, rules, orders and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. a. For a pooling order, the notice should include: a plat showing the size and shape of the proposed unit and boundaries of tracts within the unit. The location of the proposed unit shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. The plat shall include property lines taken from (i) deed descriptions and chain of title, (ii) county courthouse records, or (iii) a physical survey for each land track in the unit. The location of the well and the percentage of acreage in each tract in the unit shall be certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

b. For a field rule, the notice should include: a description of the pool or pools in the field, the boundaries of the field, information on the acreage and boundaries of the units proposed to be in the field and any proposed allowable production rates; or

c. For a location exception, the notice should include: a description of the proposed well location in relation to other wells within statewide spacing limits or in relation to the allowable area for drilling within a unit;

7. A description of the interest or claim of the respondent being notified;

8. A description of the formation or formations to be produced;

9. An estimate of the amount of reserves of the unit;

10. An estimate of the allowable costs in accordance with 4VAC25-160-100; and

11. How interested persons may obtain additional information or a complete copy of the application.

C. When after a diligent search the identity or location of any person to whom notice is required to be given in accordance with subsection A or B of this section is unknown at the time the applicant applies for a hearing before the board, the applicant for the hearing shall cause a notice to be published in a newspaper of general circulation in the county, counties, city, or cities where the land or the major portion thereof which is the subject of the application is located. The notice shall include:

1. The name and address of the applicant;

2. A description of the action to be considered by the board;

3. A map showing the general location of the area that would be affected by the proposed action or a description that clearly describes the location or boundaries of the area that would be affected by the proposed action sufficient to enable local residents to identify the area;

4. The date, time and location of the hearing at which the application is scheduled to be heard; and

5. How interested persons may obtain additional information or a complete copy of the application.

D. Notice of a hearing made in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia or this section shall be sufficient, and no additional notice is required to be made by the applicant upon a postponement or continuance of the hearing.

E. Each applicant for a hearing to modify an order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each person having an interest underlying the tract or tracts to be affected by the proposed modification.

F. An applicant filing a petition to modify a forced pooling order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia to change the unit operator based on a change in the corporate name of the unit operator; a change in the corporate structure of the unit operator; or a transfer of the unit operator's interests to any single subsidiary, parent or successor by merger or consolidation is not required to provide notice. Other applicants for a hearing to modify a forced pooling order shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each respondent named in the order to be modified whose interest may be affected by the proposed modification.

4VAC25-160-50. Applications for field rules.

Each application filed under § 45.1-361.20 § 45.2-1619 of the Code of Virginia to establish or modify a field rule, a drilling unit or drilling units shall contain:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and the proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. In the case where a field rule is proposed to be established or modified:

a. A statement of the type of field (gas, oil or coalbed methane gas);

b. A description of the proposed formation or formations subject to the petition; and

c. A description of the pool or pools included in the field, based on geological and technical data, including the boundaries of the pool or pools and field, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System;

6. In the case where a drilling unit or units are proposed to be established or modified:

a. A statement of the acreage to be embraced within each drilling unit;

b. A description of the formation or formations to be produced by the well or wells in the unit or units; and

c. The boundaries of the drilling unit or units shown in accordance with subdivision 5 c of this section;

7. A statement of the amount of acreage to be included in the order;

8. A statement of the proposed allowable production rate or rates and supporting documentation, if applicable;

9. Evidence that any proposal to establish or modify a unit or units for coalbed methane gas will meet the requirements of § 45.1-361.20 § 45.2-1619 of the Code of Virginia;

10. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

11. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-60. Applications for exceptions to minimum well spacing requirements.

Applications for an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia or under a field rule issued by the board shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application for an exception to spacing established in a field rule, identification of the order governing spacing in the field;

3. A statement of the proposed location of the well in relation to wells permitted or for which a permit application is pending before the Division of Gas and Oil at the time of filing within the distances prescribed in § 45.1-361.17 § 45.2-1616 of the Code of Virginia;

4. A description of the formation or formations to be produced by the well proposed for alternative spacing and the wells identified in subdivision 3 of this section;

5. A description of the conditions justifying the alternative spacing;

6. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with 4VAC25-160-40; and

7. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-70. Applications to pool interests in a drilling unit: conventional gas or oil or no conflicting claims to coalbed methane gas ownership.

A. Applications filed under § 45.1-361.21 § 45.2-1620 of the Code of Virginia to pool interests in a drilling unit for conventional gas or oil or for coalbed methane gas where there are no conflicting claims to ownership of the coalbed methane gas, except as provided for in subsection B of this section, shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. The permit number or numbers, if any have been issued;

7. A plat showing the size and shape of the proposed unit and boundaries of tracts within the unit, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. Also included shall be the names of owners of record of the tracts, and the percentage of acreage in each tract, certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

8. A description of the status of interests to be pooled in the unit at the time the application is filed;

9. For an application to pool a coalbed methane gas unit, a statement of the percentage of the total interest held by the applicant in the proposed unit at the time the application for the hearing is filed;

10. A statement of the names of owners and the percentage of interests to be escrowed under § 45.1-361.21 D § 45.2-1620 of the Code of Virginia for each owner whose location is unknown at the time the application for the hearing is filed;

11. A description of the formation or formations to be produced;

12. An estimate of production over the life of well or wells, and, if different, an estimate of the recoverable reserves of the unit;

13. An estimate of the allowable costs in accordance with 4VAC25-160-100;

14. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40 C; and

15. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

B. Applications to amend an order pooling interests in a drilling unit may be filed by written stipulation of all persons affected. The application is not required to contain the information specified in subsection A of this section, but shall contain the proposed amended language to the order, shown by interlineation.

C. Within 45 days after the time for election provided in any pooling order has expired, the unit operator shall file an affidavit with the board stating whether or not any elections were made. If any elections were made, the affidavit shall name each respondent making an election and describe the election made. The affidavit shall state if no elections were made or if any response was untimely. The affidavit shall be accompanied by a proposed supplemental order to be made and recorded to complete the record regarding elections. The affidavit and proposed supplemental order shall be filed by the unit operator within 45 days of the last day on which a timely election could have been delivered or mailed, or within 45 days of the last date for payment set forth in the pooling order, whichever occurs last. The applicant shall mail a true and correct copy of any supplemental order to all persons identified in the supplemental order.

4VAC25-160-80. Applications to pool interests in a drilling unit: conflicting claims to coalbed methane gas ownership.

In addition to the information required in 4VAC25-160-70 of this chapter, applications filed under § 45.1-361.22 § 45.2-1622 of the Code of Virginia to pool interests in a drilling unit for coalbed methane gas where there are conflicting claims to ownership of the coalbed methane gas shall contain a description of the conflicting ownership claims and the percentage of interests to be escrowed for the conflicting claims, and a plan for escrowing the costs of drilling and operating the well or wells and the proceeds from the well or wells attributable to the conflicting interests.

4VAC25-160-100. Allowable cost which may be shared in pooled gas or oil operations.

A. The unit operator of a pooled unit may share all reasonable costs of operating the unit, including a reasonable supervision fee, with other participating and nonparticipating operators, as provided for in § 45.1-361.21 § 45.2-1620 of the Code of Virginia, which may include:

1. Direct costs:

a. Ecological and environmental;

b. Rentals and royalties;

c. Labor;

d. Employee benefits;

e. Material;

f. Transportation;

g. Services;

h. Equipment and facilities furnished by the unit operator;

i. Damages and losses to joint property;

j. Legal expenses;

k. Taxes;

l. Insurance;

m. Abandonment and reclamation;

n. Communications; and

o. Other expenditures.

2. Indirect charges:

a. Drilling and production operations;

b. Major construction; and

c. Catastrophe.

B. Where there are conflicting royalty claims to coalbed methane gas, the unit operator of a forced pooled coalbed methane gas unit shall deposit proceeds in accordance with § 45.1-361.22 § 45.2-1622 of the Code of Virginia, to be determined at the wellhead.

C. Where there are conflicting claims and one or more persons have elected to become participating or nonparticipating operators, the unit operator of a forced pooled coalbed methane gas unit shall escrow net proceeds after deduction for royalty and other costs consistent with the terms of this chapter and the board's order regarding the unit.

D. In any dispute which may arise regarding a unit operator's costs, the unit operator shall be entitled to the benefit of a presumption of reasonableness where it is shown that the types of costs being disputed are, by custom and practice, customary and usual within the industry. The unit operator shall not be entitled to a presumption of reasonableness of the amount of the costs being disputed.

E. Unless one or more respondents elect to participate or elect to be a nonparticipating operator on a carried basis, the unit operator shall have no obligation to report costs after the expiration of the election period.

4VAC25-160-120. Applications to change the unit operator for a unit established by order of the board.

A. Transfer of the right to operate a unit established by the board must be approved by the board prior to the transfer of unit operations to a new operator.

1. For a voluntary transfer, the proposed new unit operator shall file written notification of the proposed transfer of operations.

2. An involuntary transfer may be requested by an applicant or considered by the board on its own motion if the unit operator has not continued gas or oil operations of the unit with due diligence, or the permit for any well in the unit has been revoked by the department.

B. The request for a transfer shall include:

1. The name and address of the existing unit operator;

2. The name and address of the proposed new unit operator;

3. Written approval from the existing unit operator, or a detailed statement of the facts supporting the removal of the existing operator; and

4. Identification of the order to be amended.

C. The notice of the board hearing shall be provided under § 45.1-361.19 B § 45.2-1618 of the Code of Virginia.

4VAC25-160-130. Appeals of the director's decisions.

A. Appeals of the division director's decisions shall be filed in writing, at the office of the division, in accordance with §§ 45.1-361.23 45.2-1625 and 45.1-361.36 45.2-1637 of the Code of Virginia.

B. A petition to appeal a decision of the division director shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. Identification of the decision being appealed, and the date the decision was issued;

3. A statement identifying the standing of the petitioner to appeal;

4. A statement setting forth the reasons for the appeal, including errors alleged in the director's decision and the reasons why the decision is deemed contrary to law or regulation;

5. A statement that the issues on appeal were in fact raised as required by § 45.1-361.36 B § 45.2-1637 of the Code of Virginia;

6. A statement setting forth the specific relief requested; and

7. When a stay to any proposed activity allowed as a result of the director's decision is desired, a request for the stay and the basis for granting the stay.

C. Upon receipt of an appeal containing a request for a stay, the division director shall decide on the request in accordance with § 45.1-361.23 D § 45.2-1625 of the Code of Virginia.

4VAC25-160-140. Miscellaneous petitions to the board.

A. Any petition to the board not otherwise provided for in this chapter shall be made in writing, and shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. The names and addresses of any persons who are named as respondents in the petition;

3. An affidavit that notice has been given to each respondent, if any, named in the petition;

4. A statement of the issues of the petition; and

5. A statement setting forth the specific relief requested.

B. If a petitioner for a unit under § 45.1-361.17 § 45.2-1616 or § 45.1-361.22 § 45.2-1622 fails to provide notification to an owner of interest of any part of a unit subject to a petition before the board, then such party may file a written objection to the proceedings in the form of a petition as set out in subsection A of this section. Such petition does not require the submission of an application fee as required in 4VAC25-160-30 F.

4VAC25-160-150. Effective dates for and enforcement of board orders.

A. All orders issued by the board under § 45.1-361.20 § 45.2-1619 of the Code of Virginia shall remain in effect until vacated or amended by the board on its own motion or on application from an owner or operator in the field or unit subject to the order.

B. Unless otherwise provided in the board order, all orders issued by the board under §§ 45.1-361.21 45.2-1620 and 45.1-361.22 45.2-1622 of the Code of Virginia shall remain in effect:

1. For a period of two years from the date of issuance of the board order;

2. If a permit has been issued for a well in a unit subject to the order, until the permit or permits have expired or been released on the well or wells; or

3. Until vacated or amended by the board on its own motion or on application.

C. In the event that an appeal is taken from any order of the board, the time between the filing of the petition for appeal and the final order of the circuit court shall be excluded in calculating the time period as contained in subsection B of this section.

D. All orders of the board shall be enforced by the director pursuant to the process set out in this chapter and § 45.1-361.24 § 45.2-1626 of the Code of Virginia.

4VAC25-160-190. Civil charges.

A. Civil charges shall be provided for in accordance with § 45.1-361.8 C § 45.2-1608 of the Code of Virginia.

B. The division director, after finding any violation of the Act, a regulation promulgated under the Act, or order of the director or board, or upon direction from the board, may recommend a civil charge against a gas, oil or geophysical operator and shall base the recommendation on the Civil Charge Calculation Procedure established by order of the board.

4VAC25-160-200. Surveys and tests.

A. Deviation tests.

1. An inclination survey shall be made on all rotary drilled wells located in accordance with a field rule established by the board. An inclination survey is not required for wells drilled in accordance with the distance limitations of § 45.1-361.17 § 45.2-1616 of the Code of Virginia.

2. The first shot point shall be at a depth not greater than the bottom of the surface casing or, for a well drilled through a coal seam, at a depth not greater than that of the bottom of the coal protection string. Succeeding shot points shall be no more than 1,000 feet apart, or as otherwise ordered by the director.

3. Inclination surveys conforming to these requirements may be made either during the normal course of drilling or after the well has reached total depth. Survey data shall be certified in writing as being true and correct by the designated agent or person in charge of a permittee's Virginia operations, or the drilling contractor, and shall indicate the resultant lateral deviation as the maximum calculated lateral displacement determined at any inclination survey point in a horizon approved for production, by an order of the board or a permit approved by the director, assuming that all displacement occurs in the direction of the nearest boundary of the unit. The resultant lateral deviation shall be recorded on the drilling or completion report filed by the permittee.

4. If a directional survey determining the location of the bottom of the hole is filed upon completion of the well, it shall not be necessary to file the inclination survey data.

5. A directional survey shall be made when:

a. A well is directionally controlled and is thereby intentionally deflected from vertical;

b. The resultant lateral deviation of any well, calculated from inclination survey data, is greater than the distance from the center of the surface location of the well bore to the nearest boundary of the area where drilling is allowed in a unit established by the board; or

c. A well is drilled as an exception location and a directional survey is ordered by the board.

6. The board or the director, on their own initiative or at the request of a gas or oil owner on a contiguous unit or tract, may require the permittee drilling any well to make a directional survey of the well if there is reasonable cause therefor. Whenever a survey is required by the board or the director at the request of a contiguous owner and the permittee of the well and contiguous owner are unable to agree as to the terms and conditions for making the directional survey, the permittee shall pay for the survey if the bottom hole location is found to be outside of the area approved for drilling, and the contiguous owner shall pay for the survey if the bottom hole location is found to be inside of the area approved for drilling.

7. Directional surveys shall be run from total depth to the base of the surface casing or coal protection string, unless otherwise approved by the board or the director. In the event that the proposed or final location of the producing interval or intervals of any well is not in accordance with this section or a board order, the unit operator shall apply to the board for an exception to spacing. However, directional surveys to total depth shall not be required in cases where the interval below the latest survey is less than 500 feet, and in such an instance, a projection of the latest survey shall be deemed to satisfy board requirements.

8. The results of each inclination or directional survey made in accordance with this section shall be filed by the permittee with the first drilling or completion report required by the division.

B. Flow potential and gas/oil ratio tests: conventional gas or oil wells.

1. If a gas or oil well appears capable of producing gas or oil, the permittee shall conduct a potential flow test and a gas/oil ratio test within 14 days after the well is completed and capable of producing gas or oil. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

2. If a permittee deepens or stimulates a well after the initial potential flow test and gas/oil ratio test have been conducted, when determined to be necessary by the permittee or when requested by the board, the permittee shall conduct another potential flow test and gas/oil ratio test and, within 30 days after completing the test, file the results, in writing, with the division.

3. A back-flow method of determining open flow shall be used, such as recommended by the Interstate Oil and Gas Compact Commission, "Manual of Back-Pressure Testing of Gas Wells," 2000. However, when a back-flow method is believed not to be feasible, the permittee shall obtain prior approval from the division, and test the well in accordance with, an alternate method approved by the director that does not entail excessive physical waste of gas.

C. Testing of coalbed methane gas wells. If a permittee cannot test the potential flow of a coalbed methane gas well by a back-flow method or complete the test within the time period required in subdivision B 1 of this section, the permittee may request approval from the director to perform a coalbed methane gas production test. Such a test shall only be made when the water production and the gas flow rates are stabilized for a period of not less than 14 days prior to the test. The test shall be conducted for a minimum of 24 hours in the manner approved by the director. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

D. The board may, by order and after notice and hearing, require a permittee to complete other tests on any well.

4VAC25-165-10. Definitions.

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise.

"Accrued interest" means funds accrued during the preceding 36 months on total proceeds held in the general escrow account. Accrued interest does not include escrow account fees or administrative costs of the board related to the general escrow account.

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Arbitrator" means a qualified individual appointed by a court to render a determination in an ownership dispute concerning coalbed methane gas.

"Board" means the Virginia Gas and Oil Board.

"Claimant" means a person or entity in a dispute over ownership of coalbed methane gas who has agreed to arbitration to resolve the dispute.

"Court" means a circuit court in the Commonwealth of Virginia wherein the majority of the subject tract of land is located.

"Department" means the Department of Mines, Minerals and Energy.

"Escrow account" means the account established by the board pursuant to § 45.1-361.21 § 45.2-1620 and subdivision 2 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

"Ex parte communication" means any form of communication between an arbitrator and a claimant without the presence of the opposing claimant.

"Operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-165-30. Qualification of arbitrators.

The department shall review all applications from potential arbitrators pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia. Applications shall be submitted on a form prescribed by the department. In order to qualify, applicants must demonstrate substantial expertise in mineral title examination. Substantial expertise shall be determined on an individual basis. The department shall notify applicants deemed to be qualified.

The department shall maintain a list of qualified arbitrators and update it annually. The list shall be supplied to the court when the board issues an order for arbitration. Pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia, the court has the discretion to appoint an individual not on the list of qualified arbitrators.

In order to maintain a current, accurate list, qualified arbitrators shall at least annually update their disclosures to the department.

4VAC25-165-40. Agreement to arbitrate.

Claimants shall submit their request of arbitration to the board on a form prescribed by the department. Claimants shall also provide an affidavit pursuant to § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia.

4VAC25-165-50. Conflicts of interest.

In addition to the limitations set forth in § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia, an arbitrator may not hear an arbitration if the arbitrator is related to one of the claimants, has a personal interest in the subject of the arbitration, or if other circumstances exist that might affect the arbitrator's ability to render a fair determination. If evidence of a conflict exists under this section, a claimant may petition the court to appoint a different arbitrator.

4VAC25-165-60. Location.

The arbitrator shall determine an appropriate time and place for the arbitration. The arbitration shall take place in the jurisdiction where the majority of the subject tract is located, unless all claimants agree to an alternate location. Notice to claimants shall be given pursuant to the requirements of § 45.1-361.22:1 D § 45.2-1623 of the Code of Virginia.

4VAC25-165-80. Discovery.

Pursuant to §§ 8.01-581.06 and 45.1-361.22:1 D 45.2-1623 of the Code of Virginia, the arbitrator may issue subpoenas, administer oaths, and take depositions. Additionally, any documents a claimant intends to introduce at the arbitration must be shared with the opposing claimant and the arbitrator not less than five days prior to the arbitration. If this provision is found not to be met, the arbitrator may elect to continue the arbitration.

4VAC25-165-90. Extension of arbitration.

If, pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the claimants agree that the arbitrator may take longer than six months from the date the board ordered the arbitration to render a determination, the arbitrator shall notify the board of this extension.

4VAC25-165-100. Determination of arbitrator.

Pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the determination of the arbitrator shall be in writing and sent to the board and each party to whom notice is required to be given. The determination shall include, at a minimum, a finding of facts and an explanation for the basis of the determination. A copy of the determination shall be placed on the department's website. The arbitrator shall record the determination with the clerk's office of the court.

4VAC25-165-120. Fees.

Arbitrators shall be paid at the rate of no more than $250 per hour. Expenses of the arbitrator incurred during the course of the arbitration shall be reimbursed in accordance with the State Travel Regulations prescribed by the Department of Accounts. Arbitrators shall submit a complete W-9 form to the department before payment is made.

Pursuant to § 45.1-361.22:1 F § 45.2-1623 of the Code of Virginia, payment of fees and expenses of the arbitration may be delayed if there are intervening disbursements from the general escrow account under subdivision 5 (i) or (iii) of § 45.1-361.22 § 45.2-1623 of the Code of Virginia that reduce the interest balance below the amount of fees and expenses requested.

4VAC25-165-130. Disbursement of proceeds.

Within 30 days of receipt of an affidavit from the claimants affirming the determination, the operator shall petition the board for disbursement pursuant to subdivision 5 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

4VAC25-170-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bottom hole temperature" means the highest temperature measured in the well or bore hole. It is normally attained directly adjacent to the producing zone, and commonly at or near the bottom of the borehole.

"Casing" means all pipe set in wells.

"Conservation" means the preservation of geothermal resources from loss, waste, or harm.

"Correlative rights" means the mutual right of each overlying owner in a geothermal area to produce without waste a just and equitable share of the geothermal resources. Just and equitable shares shall be apportioned according to a ratio of the overlying acreage in a tract to the total acreage included in the geothermal area.

"Department" means the Virginia Department of Mines, Minerals and Energy.

"Designated agent" means that person appointed by the owner or operator of any geothermal resource well to represent him.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division director" means the Director of the Division of Gas and Oil, also known as the Gas and Oil Inspector as defined in the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia or his authorized agent.

"Drilling log" means the written record progressively describing all strata, water, minerals, geothermal resources, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, caving strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include the downhole geophysical survey records or logs if any are made.

"Exploratory well" means an existing well or a well drilled solely for temperature observation purposes preliminary to filing an application for a production or injection well permit.

"Geothermal area" means the general land area that is underlaid or reasonably appears to be underlaid by geothermal resources in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the department.

"Geothermal energy" means the usable energy produced or that can be produced from geothermal resources.

"Geothermal reservoir" means the rock, strata, or fractures within the earth from which natural or injected geothermal fluids are obtained.

"Geothermal resource" means the natural heat of the earth at temperatures 70°F or above with volumetric rates of 100 gallons per minute or greater and the energy, in whatever form, present in, associated with, or created by, or that may be extracted from, that natural heat. This definition does not include ground heat or groundwater resources at lower temperatures and rates that may be used in association with heat pump installations.

"Geothermal waste" means any loss or escape of geothermal energy, including, but not limited to:

1. Underground loss resulting from the inefficient, excessive, or improper use or dissipation of geothermal energy; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner that results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in Virginia; provided, however, that unavoidable dissipation of geothermal energy resulting from oil and gas exploration and production shall not be construed to be geothermal waste.

2. The inefficient above-ground transportation and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy.

3. The escape into the open air of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.

"Geothermal well" means any well drilled for the discovery or production of geothermal resources, any well reasonably presumed to contain geothermal resources, or any special well, converted producing well, or reactivated or converted abandoned well employed for reinjecting geothermal resources.

"Injection well" means a well drilled or converted for the specific use of injecting waste geothermal fluids back into a geothermal production zone for disposal, reservoir pressure maintenance, or augmentation of reservoir fluids.

"Monitoring well" means a well used to measure the effects of geothermal production on the quantity and quality of a potable groundwater aquifer.

"Operator" means any person drilling, maintaining, operating, producing, or in control of any well, and shall include the owner when any well is operated or has been operated or is about to be operated by or under the direction of the owner.

"Owner" means the overlying property owner or lessee who has the right to drill into, produce, and appropriate from any geothermal area.

"Permit" means a document issued by the department pursuant to this chapter for the construction and operation of any geothermal exploration, production, or injection well.

"Person" means any individual natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state or the federal government, any municipal or quasi-municipal entity whether or not it is incorporated, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind.

"Production casing" means the main casing string which protects the sidewalls of the well against collapse and conducts geothermal fluid to the surface.

"Production record" means written accounts of a geothermal well's volumetric rate, pressure and temperature, and geothermal fluid quality.

"Sequential utilization" means application of the geothermal resource to a use with the highest heat need and the subsequent channeling of the resource to other uses with lower temperature requirements before injection or disposal of the geothermal fluid.

"Unitized drilling operation" means the management of separately owned tracts overlying a geothermal area as a single drilling unit.

"Water protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-170-30. Bonds, permits and fees.

A. 1. Before any person shall engage in drilling for geothermal resources or construction of a geothermal well in Virginia, such person shall give bond with surety acceptable to the division director and payable to the Commonwealth. At the election of the permit applicant, a cash bond may be given. The amount of bond required shall be sufficient to cover the costs of properly plugging the well and restoring the site, but in no case shall the amount of bond be less than $10,000 for each exploratory and injection well, and $25,000 for each production well. Blanket bonds of $100,000 may be granted at the discretion of the division director.

2. The return of such bonds shall be conditioned on the following requirements:

a. Compliance with all statutes, rules, and regulations relating to geothermal regulations and the permit.

b. Plugging and abandoning the well as approved by the division director in accordance with 4VAC25-170-80.

3. A land stabilization bond of $1,000 per acre of land disturbed shall be required. Such bond will be released once drilling is completed and the land is reclaimed in accordance with 4VAC25-170-40.

4. Liability under any bond may not be terminated without written approval of the division director.

B. Each exploration, production, and injection well permit application shall be accompanied by payment of a $600 application fee.

1. Applications will not be reviewed until the operator or designated agent submits proof of compliance with all pertinent local ordinances.

Before commencement of exploratory drilling operations on any tract of land, the operator or designated agent shall file an exploration permit application with the department. An accurate map of the proposed wells on an appropriate scale showing adjoining property lines and the proposed locations using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and the depths and surface elevations shall be filed with the application. The application also shall include an inventory of local water resources in the area of proposed development.

2. Before commencement of production or injection well drilling, an application to produce and inject geothermal fluids shall be filed in the form of a notice of intent to proceed in accordance with the provisions of 4VAC25-170-40.

3. New permit applications must be submitted if, either prior to or during drilling, the operator desires to change the location of a proposed well. If the new location is within the boundaries established by the permit or within an unitized drilling operation, the application may be made orally and the division director may orally authorize the commencement or continuance of drilling operations. Within 10 days after obtaining oral authorization, the operator shall file a new application to drill at the new location. A permit may be issued and the old permit canceled without payment of additional fee. If the new location is located outside the unitized drilling unit covered by the first permit, no drilling shall be commenced or continued until the new permit is issued.

4. All applications, requests, maps, reports, records, notices, filings, submissions, and other data (including report forms) required by or submitted to the department shall be in electronic form or a format prescribed by the director.

5. The department will act on all permit applications within 30 days of receipt of an application or as soon thereafter as practical.

4VAC25-170-40. Notification of intent to proceed.

The notification of intent to proceed with geothermal production or injection as required by 4VAC25-170-30 must be accompanied by (i) an operations plan, (ii) a geothermal fluid analysis, and (iii) a proposal for injection of spent fluids.

1. The operations plan shall become part of the terms and conditions of any permit that is issued, and the provisions of this plan shall be carried out where applicable in the drilling, production, and abandonment phase of the operation. The department may require any changes in the operations plan necessary to promote geothermal and water resource conservation and management, prevent waste, protect potable groundwater drinking supplies, or protect the environment, including a requirement for injection or unitization. The operations plan shall include the following information:

a. An accurate plat or map, on a scale not smaller than 400 feet to the inch, showing the proposed location using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and surface elevation of the production and injection wells as determined by survey, the courses and distances of such locations from two permanent points or landmarks on said tract, the well numbers, the name of the owner, the boundaries and acreage of the tract on which the wells are to be drilled, the location of water wells, surface bodies of water, actual or proposed access roads, other production and injection wells on adjoining tracts, the names of the owners of all adjoining tracts and of any other tract within 500 feet of the proposed location, and any building, highway, railroad, stream, oil or gas well, mine openings or workings, or quarry within 500 feet of the proposed location. The location must be surveyed and the plat certified by a professional engineer or registered surveyor and bear his certificate number.

b. A summary geologic report of the area, including depth to proposed reservoir; type of reservoir; anticipated thickness of reservoir; anticipated temperature of the geothermal resource; anticipated porosity, permeability and pressure; geologic structures; and description of overlying formations and aquifers.

c. The method of meeting the guidelines of the Erosion and Sediment Control Regulations as adopted by the State Water Control Board pursuant to § 62.1-44.15:52 of the Code of Virginia.

d. The method of disposing of all drilling muds and fluids, and all cement and other drilling materials from the well site; the proposed method of preventing such muds, fluids, drillings, or materials from seeping into springs, water wells, and surface waters during drilling operations.

e. The method of construction and maintenance of access roads, materials to be used, method to maintain the natural drainage area, and method of directing surface water runoff from disturbed areas around undisturbed areas.

f. The method of removing any rubbish or debris during the drilling, production, and abandonment phases of the project. All waste shall be handled in a manner that prevents fire hazards or the pollution of surface streams and groundwater.

g. The primary and alternative method of spent geothermal fluid disposal. All disposal methods shall be in accordance with state and federal laws for the protection of land and water resources.

h. The methods of monitoring fluid quality, fluid temperature, and volumetric rate of production and injection wells.

i. The method of monitoring potable drinking water aquifers close to production and injection zones.

j. The method of monitoring for land subsidence.

k. The method of plugging and abandoning wells and a plan for reclaiming production and injection well sites.

l. The method of cleaning scale and corrosion in geothermal casing.

m. A description of measures that will be used to minimize any adverse environmental impact of the proposed activities on the area's natural resources, aquatic life, or wildlife.

2. Geothermal fluid analysis.

a. A geothermal fluid analysis shall be submitted with the operations plan, and annually thereafter.

b. Acceptable chemical parameters and sampling methods are set forth in 4VAC25-170-70 B.

3. Proposal for injection of geothermal fluids.

a. Geothermal fluid shall be injected into the same geothermal area from which it was withdrawn in the Atlantic Coastal Plain. Plans for injection wells in this area shall include information on:

(1) Existing reservoir conditions.

(2) Method of injection.

(3) Source of injection fluid.

(4) Estimate of expected daily volume in gallons per minute per day.

(5) Geologic zones or formations affected.

(6) Chemical analyses of fluid to be injected.

(7) Treatment of spent geothermal fluids prior to injection.

b. Exemptions to the injection rule for geothermal fluid shall be approved by the department. Such requests shall be accompanied by a detailed statement of the proposed alternative method of geothermal fluid disposal; the effects of not injecting on such reservoir characteristics as pressure, temperature, and subsidence; and a copy of the operator's or designated agent's no-discharge permit.

4VAC25-170-60. Records, logs and general requirements.

A. 1. During the drilling and production phases of every well, the owner, operator, or designated agent responsible for the conduct of drilling operations shall keep at the well an accurate record of the well's operations as outlined in subsection C of this section. These records shall be accessible to the division director at all reasonable hours.

2. The refusal of the well operator or designated agent to furnish upon request such logs or records or to give information regarding the well to the department shall constitute sufficient cause to require the cessation or shutting down of all drilling or other operations at the well site until the request is honored.

3. Copies of all productions records required by this chapter shall be submitted to the division director.

4. Samples representative of all strata penetrated in each well shall be collected and furnished to the Commonwealth. Such samples shall be in the form of rock cuttings collected so as to represent the strata encountered in successive intervals no greater than 10 feet. If coring is done, however, the samples to be furnished shall consist, at a minimum, of one-quarter segments of core obtained. All samples shall be handled as follows:

a. Rock cuttings shall be dried and properly packaged in a manner that will protect the individual samples, each of which shall be identified by the well name, identification number, and interval penetrated.

b. Samples of core shall be boxed according to standard practice and identified as to well name and identification number and interval penetrated.

c. All samples shall be shipped or mailed, charges prepaid, to:

Department of Mines, Minerals and Energy Division of Geology and Mineral Resources Fontaine Research Park 900 Natural Resources Drive P.O. Box 3667 Charlottesville, VA 22903

B. Each well operator, owner, or designated agent, within 90 days after the completion of any well, shall submit to the division director a copy of the drilling log. Drilling logs shall list activities in chronological order and include the following information:

1. The well's location and identification number.

2. A record of casings set in wells.

3. Formations encountered.

4. Deviation tests for every one thousand feet drilled.

5. Cementing procedures.

6. A copy of the downhole geophysical logs.

C. The owner, operator, or designated agent of any production or injection well shall keep or cause to be kept a careful and accurate production record. The following information shall be reported to the division director on a monthly basis for the first six months and quarterly thereafter, or as required by permit, unless otherwise stated:

1. Pressure measurements as monitored by valves on production and injection wells.

2. The volumetric rate of production or injection measured in terms of the average flow of geothermal fluids in gallons per minute per day of operation.

3. Temperature measurements of the geothermal fluid being produced or injected, including the maximum temperature measured in the bore-hole and its corresponding depth, and the temperature of the fluid as measured at the discharge point at the beginning and conclusion of a timed production test.

4. Hydraulic head as measured by the piezometric method.

Titles of Regulations: 4VAC25-11. Public Participation Guidelines (amending 4VAC25-11-10, 4VAC25-11-20, 4VAC25-11-120).

4VAC25-20. Board of Coal Mining Examiners Certification Requirements (amending 4VAC25-20-15, 4VAC25-20-50, 4VAC25-20-70, 4VAC25-20-90, 4VAC25-20-140, 4VAC25-20-180, 4VAC25-20-185, 4VAC25-20-190, 4VAC25-20-200, 4VAC25-20-210, 4VAC25-20-220, 4VAC25-20-360, 4VAC25-20-370, 4VAC25-20-410, 4VAC25-20-420).

4VAC25-31. Reclamation Regulations for Mineral Mining (amending 4VAC25-31-10, 4VAC25-31-30, 4VAC25-31-40, 4VAC25-31-120, 4VAC25-31-130, 4VAC25-31-150, 4VAC25-31-160, 4VAC25-31-170, 4VAC25-31-180, 4VAC25-31-200, 4VAC25-31-220 through 4VAC25-31-250, 4VAC25-31-280, 4VAC25-31-310, 4VAC25-31-320, 4VAC25-31-430, 4VAC25-31-500, 4VAC25-31-570).

4VAC25-35. Certification Requirements for Mineral Miners (amending 4VAC25-35-5, 4VAC25-35-30, 4VAC25-35-110, 4VAC25-35-120).

4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-10, 4VAC25-40-25, 4VAC25-40-270, 4VAC25-40-300, 4VAC25-40-5760).

4VAC25-70. Regulations Governing Disruption of Communications in Mines (amending 4VAC25-70-10).

4VAC25-90. Regulations Governing the Use of Diesel-Powered Equipment in Underground Coal Mines (amending 4VAC25-90-10, 4VAC25-90-70).

4VAC25-101. Regulations Governing Vertical Ventilation Holes and Mining Near Gas and Oil Wells (amending 4VAC25-101-10, 4VAC25-101-50, 4VAC25-101-150, 4VAC25-101-160, 4VAC25-101-190, 4VAC25-101-200).

4VAC25-110. Regulations Governing Blasting in Surface Mining Operations (amending 4VAC25-110-10, 4VAC25-110-210). 4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-130. Coal Surface Mining Reclamation Regulations (amending 4VAC25-130-700.1, 4VAC25-130-700.2, 4VAC25-130-700.3, 4VAC25-130-700.5, 4VAC25-130-700.11, 4VAC25-130-700.14, 4VAC25-130-701.11, 4VAC25-130-702.11, 4VAC25-130-702.17, 4VAC25-130-705.24, 4VAC25-130-740.15, 4VAC25-130-761.1, 4VAC25-130-761.3, 4VAC25-130-761.12, 4VAC25-130-761.16, 4VAC25-130-762.14, 4VAC25-130-764.13, 4VAC25-130-764.19, 4VAC25-130-773.13, 4VAC25-130-773.15, 4VAC25-130-774.12, 4VAC25-130-775.11, 4VAC25-130-775.13, 4VAC25-130-780.18, 4VAC25-130-784.13, 4VAC25-130-784.20, 4VAC25-130-789.1, 4VAC25-130-790.1, 4VAC25-130-790.11, 4VAC25-130-795.1, 4VAC25-130-800.16, 4VAC25-130-800.21, 4VAC25-130-800.40, 4VAC25-130-800.51, 4VAC25-130-800.52, 4VAC25-130-801.11, 4VAC25-130-801.17, 4VAC25-130-801.18, 4VAC25-130-816.76, 4VAC25-130-840.11, 4VAC25-130-840.14, 4VAC25-130-840.16, 4VAC25-130-842.12, 4VAC25-130-842.15, 4VAC25-130-843.11, 4VAC25-130-843.12, 4VAC25-130-843.13, 4VAC25-130-843.15, 4VAC25-130-843.16, 4VAC25-130-845.2, 4VAC25-130-845.15, 4VAC25-130-845.18, 4VAC25-130-845.19, 4VAC25-130-84614, 4VAC25-130-850.15, 4VAC25-130-882.13).

4VAC25-145. Regulations on the Eligibility of Certain Mining Operators to Perform Reclamation Projects (amending 4VAC25-145-10, 4VAC25-145-20, 4VAC25-145-30).

4VAC25-150. Virginia Gas and Oil Regulation (amending 4VAC25-150-10, 4VAC25-150-20, 4VAC25-150-40, 4VAC25-150-80, 4VAC25-150-90, 4VAC25-150-100, 4VAC25-150-110, 4VAC25-150-120, 4VAC25-150-130, 4VAC25-150-140 through 4VAC25-150-180, 4VAC25-150-220, 4VAC25-150-290, 4VAC25-150-365, 4VAC25-150-410, 4VAC25-150-435, 4VAC25-150-470, 4VAC25-150-480, 4VAC25-150-510, 4VAC25-150-560, 4VAC25-150-590, 4VAC25-150-620).

4VAC25-160. Virginia Gas and Oil Board Regulations (amending 4VAC25-160-10 through 4VAC25-160-80, 4VAC25-160-100, 4VAC25-160-120 through 4VAC25-160-150, 4VAC25-160-190, 4VAC25-160-200).

4VAC25-165. Regulations Governing the Use of Arbitration to Resolve Coalbed Methane Gas Ownership Disputes (amending 4VAC25-165-10, 4VAC25-165-30 through 4VAC25-165-60, 4VAC25-165-80, 4VAC25-165-90, 4VAC25-165-100, 4VAC25-165-120, 4VAC25-165-130).

4VAC25-170. Geothermal Energy Regulations (amending 4VAC25-170-10, 4VAC25-170-30, 4VAC25-170-40, 4VAC25-170-60).

Statutory Authority: § 45.2-103 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 16, 2022.

Effective Date: March 31, 2022.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TDD (800) 828-1120, or email mike.skiffington@energy.virginia.gov.

Basis: The Department of Energy's regulatory authority for this action can be found in § 45.2-103 of the Code of Virginia.

Purpose: The purpose of this regulatory action is to ensure all references to the agency name and citations of the Code of Virginia are up to date and accurate. It is in the best interest of the public's welfare for regulation and statute to conform.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because no substantive changes are proposed. The action merely updates regulations to conform to statute.

Substance: There are no substantive changes made to the regulations. The proposed changes conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and make other technical updates to conform to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodified Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia.

Issues: The primary advantage of this regulatory action is ensuring the agency's regulations are up to date and conform to statute. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to legislation from the 2021 Special Session I, the Department of Energy proposes to amend in its regulations: 1) the name of the agency and two of its divisions, and 2) citations to the Code of Virginia.

Background. Chapter 532 of the 2021 Special Session I Acts of Assembly² renamed the Department of Mines, Minerals and Energy as the Department of Energy (NRG). Within NRG, the legislation renamed the Division of Mined Land Reclamation as the Division of Mined Land Repurposing, and the Division of Energy as the Division of Renewable Energy and Energy Efficiency. NRG proposes to amend its regulations to reflect these name changes.

Chapter 387 of the 2021 Special Session I Acts of Assembly³ recodified Titles 45.1 and 67 of the Code of Virginia, which pertain to NRG, into the new Title 45.2. NRG proposes to update Code of Virginia citations in its regulations to reflect Title 45.2.

Estimated Benefits and Costs. The proposed amendments would have no impact on requirements in practice, but may be beneficial in that readers of the regulations would be better informed concerning the proper names of the agency and its divisions, and may more easily find relevant sections of the Code of Virginia.

Businesses and Other Entities Affected. The proposed amendments affect readers of the agency's regulations. It would particularly affect those seeking relevant sections of the Code of Virginia.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. No adverse impact is indicated for this proposal.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities and do not introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

________________________________________

¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0532

³See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0387

⁴Pursuant to Code § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶If the proposed regulatory action may have an adverse effect on small businesses, Code § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department of Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and (ii) correct citations to the Code of Virginia and other technical updates to conform regulations to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodifies Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia. No substantive amendments are made.

4VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Mines, Minerals and Energy. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Mines, Minerals and Energy, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

4VAC25-11-120. Agency secretary for purpose of appeal.

For appeals of regulatory or case decisions, pursuant to Rule 2A:2 of the Rules of the Supreme Court of Virginia, the agency herein names individuals to perform the function of agency secretary.

1. For appeals relating to Chapter 14.2 (§ 45.1-161.7 et seq.), 14.3 (§ 45.1-161.105 et seq.), 14.4 (§ 45.1-161.253 et seq.) or 18 (§ 45.1-221 et seq.) of Title 45.1 5 (§ 45.2-500 et seq.), 7 (§ 45.2-700 et seq.), 8 (§ 45.2-800 et seq.), or 9 (§ 45.2-900 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mines (Chief) shall perform the functions of agency secretary.

2. For appeals relating to Chapter 14.4:1 (§ 45.1-161.292:1 et seq.), 14.5 (§ 45.1-161.293 et seq.), 14.6 (§ 45.1-161.304 et seq.), 16 (§ 45.1-180 et seq.), 18.1 (§ 45.1-225.1 et seq.) or 21 (§ 45.1-272 et seq.) of Title 45.1 11 (§ 45.2-1100 et seq.), 12 (§ 45.2-1200 et seq.), 13 (§ 45.2-1300 et seq.), 14 (§ 45.2-1400 et seq.), or 15 (§ 45.2-1500 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary.

3. For appeals relating to Chapter 15.1 (§ 45.1-179.1 et seq.) or 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 16 (§ 45.2-1600 et seq.) or 20 (§ 45.2-2000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary.

4. For appeals relating to Chapters 17 (§ 45.1-198 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 Chapter 10 ( § 45.2-1000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mined Land Reclamation Repurposing (division director) shall perform the functions of agency secretary.

4VAC25-20-15. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise:

"Appropriately related work experience" means work experience which demonstrates the applicant's skill and level of responsibility in performing tasks and prepares and equips him to perform in the capacity of a certified person.

"BCME" means Board of Coal Mining Examiners.

"Chief" means the Chief of the Division of Mines.

"DMME Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines.

"DMLR" means Division of Mined Land Reclamation Repurposing.

"EMT" means emergency medical technician.

"GCM" means general coal miner.

"MSHA" means the Mine Safety and Health Administration.

"Virginia coal mine safety regulations" means 4VAC25-60 through 4VAC25-125.

4VAC25-20-50. Underground mine foreman.

A. Applicants shall possess five years mining experience, three of which shall be underground, and shall pass the underground mine foreman, map, and gas detection examinations.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college or two years credit for a degree in mining technology.

C. Applicants shall be at least 23 years of age.

D. Certified mine foremen shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

E. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete an underground mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

F. The underground mine foreman shall complete at least four hours of continuing education every two years.

G. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of underground mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia underground coal mines.

H. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

I. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

J. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-70. Surface mine foreman.

A. Applicants shall possess five years of surface coal mining experience.

B. Applicants shall pass the surface mine foreman, first aid, and gas detection examinations.

C. Certified persons shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

D. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete a surface mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

E. The surface mine foreman shall complete at least four hours of continuing education every two years.

F. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of surface mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia surface coal mines.

G. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

H. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

I. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-90. Underground shot firer.

A. Applicants shall possess two years coal mining experience underground, one year of the two years shall have included handling and using explosives underground under the direction of a certified underground shot firer, or appropriately related work experience approved by the chief.

B. Applicants shall pass the underground shot firer and gas detection examinations.

C. Beginning August 25, 2005, a certified underground shot firer must be recertified every five years by:

1. Presenting written proof that he has performed underground blasting duties in his work during two of the last three years immediately preceding the expiration date;

2. Retaking and passing the underground shot firer examination; or

3. Presenting verification of completion of underground mine foreman or other continuing education that included underground blasting safety training.

D. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-140. Hoisting engineer.

A. Applicants shall possess two years of practical mining experience and one year of hoisting experience under the direction of a certified hoisting engineer or appropriately related work experience approved by the chief. A certified hoisting engineer shall verify the hoisting experience.

B. The applicant shall pass the hoisting engineer and gas detection examinations.

C. After the examination has been successfully completed, the applicant shall obtain written permission from a mine official to have a representative from the division observe the applicant's operation of hoisting equipment at the mine. Permission shall be on company stationery, signed by the company official, and submitted to the division.

D. A certified hoisting engineer may act as an automatic elevator operator after completing the on-site demonstration required by 4VAC25-20-240 C.

E. A hoisting engineer must be recertified every five years by:

1. Presenting written proof that he has performed hoisting engineer duties in his work during two of the last three years immediately preceding the expiration date; or

2. Retaking and passing the practical demonstration section of the hoisting engineer examination and meeting requirements of subsection C of this section.

F. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-180. Underground mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Underground Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-50 for underground mine foreman.

E. Applicants shall pass the underground mine inspector examination.

F. A certificate will not be issued until an applicant is employed by the DMME department and shall only remain valid while the person is employed by the department.

4VAC25-20-185. Surface mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Surface Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-70 for surface mine foreman.

E. Applicants shall pass the surface mine inspector examination.

F. A certificate will not be issued until an applicant is employed by DMME the department and shall only remain valid while the person is employed by the department.

G. Applicants who already possess a valid underground mine inspector certification pursuant to 4VAC25-20-180 shall be deemed to have met the requirements of this section.

4VAC25-20-190. Underground diesel engine mechanic.

A. All maintenance work performed on diesel engines used to power equipment in underground coal mines shall be performed by, or under the direct supervision of, a person possessing a Diesel Engine Mechanic Certificate issued by the BCME. In addition, no operator of an underground coal mine in the Commonwealth of Virginia may use diesel-powered equipment in the mine without first employing a diesel engine mechanic who is certified by the BCME.

B. "Maintenance" shall include all of the tasks required to be performed routinely to ensure that the engine exhaust emissions conform with the requirements of the laws and regulations of Virginia and MSHA, and with the maintenance recommendations of the manufacturer of the engine.

C. Applicants shall possess six months experience as a diesel engine mechanic, complete a diesel engine mechanic course approved by the division, or possess appropriately related work experience approved by the chief. A one-year diesel engine mechanic program approved by the division may be substituted for the diesel engine mechanic experience.

D. Applicants shall pass the underground diesel engine mechanic, first aid, and gas detection examinations.

E. The initial training course for diesel engine mechanics shall include at least 32 hours of classroom instruction and be taught by a certified instructor.

F. To qualify for approval by the chief, the content of the initial training course for diesel engine mechanics shall include, but is not limited to:

1. Diesel engine principles;

2. Diesel fuel and fuel systems;

3. Engine exhaust systems;

4. State and federal diesel laws and regulations;

5. Safe use of equipment;

6. Emission controls, testing procedures and recordkeeping; and

7. Protection of health of workers exposed to diesel equipment.

G. The annual continuing education course for diesel engine mechanics shall include at least four hours of classroom instruction and be taught by a certified instructor.

H. The content of the continuing education course shall include, but not be limited to:

1. Diesel technology;

2. State and federal diesel laws and regulations;

3. Safe use of equipment;

4. Protection of the health of workers exposed to diesel equipment; and

5. Required emission test procedures and recordkeeping.

I. A Diesel Engine Mechanic Certificate shall remain valid until December 31 following the anniversary date of the initial training, providing the certification requirements are met, unless the certificate is revoked by the BCME.

J. The holder of the certificate shall renew the certificate by satisfactorily completing a diesel engine mechanic continuing education course approved by the chief and taught by a certified instructor.

K. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed before the expiration of the card.

L. Failure to complete the required education shall result in suspension of certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, then the certification shall be revoked by the BCME.

M. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-200. Diesel engine mechanic instructor.

A. Applicants shall have teaching experience and be a certified diesel engine mechanic or possess appropriately related work experience approved by the chief.

B. Applicants shall maintain the certificate by teaching at least one approved diesel engine mechanic course every two years or at least one approved diesel engine mechanic continuing education course every year.

C. Documentation shall be submitted to the division indicating the required teaching has been completed.

D. Failure to complete the required teaching shall result in suspension of the certification. Applicants may meet the teaching requirement by teaching under the supervision of a certified diesel mechanic engine instructor. If the teaching requirement is not met one year from suspension, then the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-210. Advanced first aid.

A. Applicants shall complete a 24-hour advanced first aid class, at minimum, taught by a certified advanced first aid instructor or possess appropriately related work experience approved by the chief and pass the advanced first aid examination.

B. Approved advanced first aid classes shall cover the following subjects:

1. Introduction to first aid;

2. Respiratory emergencies and cardiopulmonary resuscitation; i.e., heart saver or other four-hour equivalent;

3. Removal of foreign bodies from the throat (the Heimlich Maneuver);

4. Wounds;

5. Shock;

6. Specific injuries including head and chest;

7. Contamination, infection, and prevention;

8. Burns;

9. Cold exposure and frost bite;

10. Bone and joint injuries;

11. Dressings and bandages;

12. Sudden illness;

13. Emergency underground rescue and transfer;

14. Unusual rescue situations related to mining;

15. Poisoning, toxic and hazardous materials;

16. Transportation of victims; and

17. Heat exposure.

C. An advanced first aid certification in good standing with the BCME shall remain valid until the last day of the month following the anniversary date of the initial or continuing education training. Certified persons shall complete four hours continuing education annually, which is taught by a certified advanced first aid instructor, to maintain their advanced first aid card. This continuing education requirement shall include documented annual training in CPR and recertification every two years.

D. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed.

E. Applicants holding a valid EMT card or EMT first responder card, shall be deemed eligible to receive advanced first aid certification without having to complete the initial advanced first aid class or without passing the advanced first aid examination. All applicants shall complete eight hours of continuing education. The advanced first aid certification shall start on the day the applicant's EMT certification or EMT first responder certification expires.

F. Failure to complete required continuing education shall result in suspension of the certification pending completion of the continuing education. If the continuing education requirement is not met within one year from the suspension date, then the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-220. Advanced first aid instructor.

A. Applicants shall be certified as an advanced first aid instructor by the American Red Cross, National Safety Council, Virginia Office of Emergency Medical Services, or as otherwise approved by the chief. Applicants shall also be certified in cardiopulmonary resuscitation by the American Heart Association, the American Red Cross, or other training programs approved by the Virginia Office of Emergency Medical Services and approved by the chief. Advanced first aid instructors must use the materials and training aids necessary to deliver the skills and training associated with advanced first aid.

B. The holder of the certificate shall submit documentation to the division indicating that they have continued their certification as required by subsection A of this section or by teaching one initial or refresher first aid training course for DMME the department within a two-year period.

C. Failure to maintain a certified advanced first aid instructor's certification will result in suspension of the applicant's BCME certification. Applicants may meet the teaching requirement by teaching under the supervision of an advanced first aid instructor. If the certification is not renewed within one year from the suspension date, then the certification shall be revoked by the BCME.

D. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-360. Purpose and scope.

A. Section 45.1-161.35 A Section 45.2-528 of the Code of Virginia provides for on-site examination of an underground mine foreman by a mine inspector to determine that the foreman has a thorough understanding of the roof control plan and ventilation for the area of the mine for which he is responsible. The procedures followed by the inspector in conducting an on-site examination of an underground mine foreman must be consistent with requirements in Part IV (4VAC25-20-340 et seq.) of this chapter. This includes the use of questions approved by the board which are administered in accordance with this chapter.

B. The purpose of examining an underground mine foreman is to measure and evaluate his knowledge and understanding of mine roof control and ventilation for the areas of his responsibility. Underground mine foremen are required to demonstrate this and other elements of mine safety when they become certified to act as mine foremen in the Commonwealth of Virginia.

C. An on-site examination by the mine inspector will only be initiated when there is just cause that the underground mine foreman has failed to maintain safe roof control and ventilation for his area of responsibility at the mine. Just cause for an on-site examination of an underground mine foreman by a mine inspector must be based on issuance of an order of closure or violation related to a hazardous condition pertaining to roof control or ventilation.

4VAC25-20-370. Determination by the inspector to conduct an on-site examination.

A. An order of closure issued in accordance with § 45.1-161.91 § 45.2-569 of the Code of Virginia, or notice of violation issued in accordance with § 45.1-161.90 § 45.2-568 of the Code of Virginia that relate to roof control or ventilation hazards, shall be reviewed at the time it is issued for evidence of underground mine foreman negligence, which could require on-site examination of the mine foreman by the mine inspector. In making the determination whether or not to conduct an on-site examination, the mine inspector must establish the following:

1. The roof or ventilation hazards cited resulted from performing his duties with less than ordinary care. Ordinary care means the use of such care as a reasonably prudent and careful underground mine foreman could use under similar circumstances.

2. The underground mine foreman knew or should have known of the existence of the hazardous condition.

B. When these criteria have been established, the mine inspector will undertake an on-site examination of the underground mine foreman.

4VAC25-20-410. Prehearing procedures.

A. Any person wishing to bring any matter before the board shall use these procedures except for good cause shown before the board.

B. Petitions for action by the board shall be in writing, shall state the grounds for the petition before the board, shall state the relief sought, and shall include any applicable supporting material, as set out below:

1. For certification to be revoked in accordance with § 45.1-161.35 B § 45.2-528 of the Code of Virginia, the petitioner or petitioners shall submit specific charges, which set forth the reasons why the certification should be revoked.

2. To request a reexamination for a certificate revoked pursuant to § 45.1-161.35 § 45.2-528 of the Code of Virginia, the holder of the revoked certificate shall submit a request for reexamination with evidence that the cause for revocation of his certificate has ceased to exist.

3. For other petitions before the board, the petitioner shall submit a written petition explaining the request being made and the relief being sought.

C. The division shall assign a docket number to all petitions before the board. The division shall provide written notice to all parties to any proceeding in accordance with § 45.1-161.35 D § 45.2-528 of the Code of Virginia and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

D. Persons wishing to address the board, except those making a petition for board action, will be provided an opportunity at the conclusion of the board meeting.

E. Persons shall make any request for change to the board's regulations in accordance with the DMME department's and the board's Public Participation Guidelines, 4VAC25-10 4VAC25-11.

4VAC25-20-420. Conduct of formal hearings.

A. All hearings shall be heard during scheduled meetings of the board, on a case-by-case basis, in the order the petitions appear on the docket.

B. Hearings shall be held in the DMME, department's Big Stone Gap office, unless a different location is agreed to by mutual consent of the parties to the hearing and the Chairman of the BCME.

C. Hearings requiring case decisions shall be recorded.

D. Each party has the right to be represented by legal counsel.

E. The chairman, with the concurrence of the majority of the board present at a hearing, shall have the authority to limit evidence to that relevant to the issues. Any proofs, rebuttal, and cross examination which are immaterial, insubstantial, privileged, or repetitive may be excluded.

F. The chairman may continue, adjourn and reconvene the hearing as necessary.

G. Decisions of the board shall be made based on a preponderance of the evidence placed before it.

4VAC25-31-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acre-foot" means a unit of volume equal to 43,560 cubic feet or 325,853 gallons. One acre-foot of water is equivalent to one acre covered by water one foot deep.

"Berm" means a stable ridge of material used in reclamation for the control of sound and surface water, safety, aesthetics, or such other purpose as may be applicable.

"Critical areas" means problem areas such as those with steep slopes, easily erodible material, hostile growing conditions, concentration of drainage or other situations where revegetation or stabilization will be potentially difficult.

"Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his designee.

"Division" means the Division of Mineral Mining.

"Fifty-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as a probability that there is a 2.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 50-year, 24-hour storm occurs when the total 50-year storm rainfall occurs in a 24-hour period.

"Inert waste" means brick, concrete block, broken concrete, and uncontaminated minerals or soil.

"Intermittent stream" means a stream that contains flowing water for extended periods during a year, but does not carry flows at all times.

"Internal service roads" means roads that are to be used for internal movement of raw materials, soil, overburden, finished, or in-process materials within the permitted area, some of which may be temporary.

"Natural drainageway" means any natural or existing channel, stream bed, or watercourse that carries surface or ground water.

"One hundred-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as a probability that there is a 1.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 100-year, 24-hour storm occurs when the total 100-year storm rainfall occurs in a 24-hour period.

"On-site generated mine waste" means the following items generated by mineral mining or processing activities taking place on the permitted mine site:

Drill steel	Tree stumps/land clearing debris
Crusher liners	Large off-road tires
Conveyor belting	Scrap wood or metal
Steel cable	Steel reinforced air hoses
Screen cloth	Broken concrete or block
Punch plate	V-belts

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permitted area" means the area within the defined boundary shown on the application map including all disturbed land area, and areas used for access roads and other mining-related activities.

"Principal access roads" means roads that are well-defined roads leading from scales, sales offices, or loading points to a public road.

"Probable maximum flood (PMF)" means the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF is derived from the current probable maximum precipitation (PMP) available from the National Weather Service, National Oceanic and Atmospheric Administration. In some cases local topography or meteorological conditions will cause changes from the generalized PMP values; therefore, it is advisable to contact local, state, or federal agencies to obtain the prevailing practice in specific cases.

"Qualified person" means a person who is suited by training or experience for a given purpose or task.

"Regrade" or "grade" means to change the contour of any surface.

"Riparian buffer" means an area of trees, shrubs, or other vegetation that is managed to maintain the integrity of the stream channel and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.

"Sediment" means undissolved organic or inorganic material transported or deposited by water.

"Sediment basin" means a basin created by the construction of a barrier, embankment, or dam across a drainageway or by excavation for the purpose of removing sediment from the water.

"Spillway design flood (SDF)" means the largest flood that needs be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Where a range of SDF is indicated, the magnitude that most closely relates to the involved risk should be selected.

"Stabilize" means any method used to prevent movement of soil, spoil piles, or areas of disturbed earth. This includes increasing bearing capacity, increasing shear strength, draining, compacting, rip-rapping, vegetating or other approved method.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Ten-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as a probability that there is a 10% chance that the storm magnitude may be equaled or exceeded in any given year. A 10-year 24-hour storm occurs when the total 10-year storm rainfall amount occurs in a 24-hour period.

"Top soil" means the surface layer and its underlying materials that have properties capable of producing and sustaining vegetation.

4VAC25-31-30. Compliance.

The permittee shall comply fully with the requirements of Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and this regulation and shall further ensure compliance by all employees, contractors, or other persons performing mining or reclamation activities.

4VAC25-31-40. Modifications.

The division may approve modifications or amendments to any drainage, reclamation and operation plan required under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and provisions of these regulations. All modifications or amendments shall be valid only when approved in writing.

4VAC25-31-120. Permit fee and bond.

A. Permit fees for the initial permit application and permit renewal shall be submitted upon receipt of a billing notice from the director and before the permit is issued or renewed. Fees shall be paid in accordance with § 45.1-181 § 45.2-1205 of the Code of Virginia.

B. Permit fees for the transfer of a mine permit shall be submitted upon receipt of a billing notice from the director and before the transferred permit is issued. Fees shall be paid in accordance with § 45.1-184.2 § 45.2-1211 of the Code of Virginia.

C. All fees shall be in the form of cash, check, money order, or other form of payment acceptable to the director.

D. A bond is required as set forth in Part III of this regulation. Bonding shall be provided once the permit application is deemed complete.

4VAC25-31-130. Mineral mining plans.

Mineral mining plans shall be attached to the application and consist of the following:

1. The operation plan shall include a description of the proposed method of mining and processing; the location of top soil storage areas; overburden, refuse, and waste disposal areas; stockpiles, equipment storage, and maintenance areas; cut and fill slopes; and roadways. The operation plan shall address plans for the storage and disposal of scrap metal, scrap tires, used lubricants, coolants, and other equipment service products, batteries, process chemicals, trash, debris, and other hazardous materials. The operation plan shall also include all related design and construction data. The method of operation shall provide for the conducting of reclamation simultaneously where practicable with the mining operation. For the impoundments that meet the criteria of § 45.1-225.1 A § 45.2-1301 A of the Code of Virginia, plans shall be provided as required under 4VAC-25-31-180 and 4VAC25-31-500.

2. The drainage plan shall consist of a description of the drainage system to be constructed before, during, and after mining; a map or overlay showing the natural drainage system; and all sediment and drainage control structures to be installed along with all related design and construction data.

3. The reclamation plan shall include a statement of the planned land use to which the disturbed land will be returned through reclamation, the proposed actions to assure suitable reclamation, and a time schedule for reclamation. The method of grading; removal of metal, lumber, and debris, including processing equipment; buildings; and other equipment relative to the mining operation and revegetation of the disturbed area shall be specified. Reclamation plans for underground mines shall include plans for closing or securing all entrances to underground workings.

4. Adequate maps, plans and cross sections, and construction specifications shall be submitted to demonstrate compliance with the performance standards of Part IV (4VAC25-31-330 et seq.) of this chapter and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia. Designs, unless otherwise specified, shall be prepared by a qualified person, using accepted engineering design standards and specifications.

5. A copy of the Virginia Department of Transportation land use permit for roads that connect to public roads.

6. If mining below the water table is to take place, the following conditions apply:

a. The application shall contain an assessment of the potential for impact on the overall hydrologic balance from the proposed operations to be conducted within the permitted area for review and approval.

b. A plan for the minimization of adverse effects on water quality or quantity shall be prepared based on the assessment in subdivision 6 a of this section and included in the application.

c. Permanent lakes or ponds created by mining shall be equal to or greater than four feet deep or otherwise constructed in a manner acceptable to the director.

4VAC25-31-150. Maps.

A. Maps shall be supplied as described in §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia and in this chapter that show the total area to be permitted and the area to be affected in the next ensuing year (with acreage calculated).

B. Preparation of maps.

1. All application, renewal, and completion maps shall be prepared and certified under the direction of a professional engineer, licensed land surveyor, licensed geologist, issued by a standard mapping service, or prepared in such a manner as to be acceptable to the director.

2. If maps are not prepared by the applicant, the certification of the maps shall read as follows: "I hereby certify that this map is correct and shows to the best of my knowledge and belief, all the information required by the mineral mining laws and regulations of the DMME Department of Energy."

3. The applicant shall submit a general location map showing the location of the mine, such as a county highway map or equivalent, in the initial application.

4. Sensitive features within 500 feet of the permit boundary including state waters, cemeteries, oil and gas wells, underground mine workings, public utilities and utility lines, buildings, roads, schools, churches, and occupied dwellings shall be shown.

5. All properties, and their owners, within 1,000 feet of the permit boundary shall be identified in the initial application.

6. Wetlands that have been previously delineated shall be shown within the permit boundary.

7. Riparian buffers that have been previously delineated shall be shown within the permit boundary.

C. Map code and legend.

1. A color code as prescribed by the director shall be used in preparing the map.

2. Graphic symbols may be used to represent the different areas instead of a color-coded map.

3. The map shall include a legend that shows the graphic symbol or color code and the acreage for each of the different areas.

4VAC25-31-160. Legal right.

A. A statement of the source of the legal right of the applicant to enter and conduct operations on the land proposed to be covered by the permit as noted in § 45.1-181 § 45.2-1205 of the Code of Virginia shall be submitted to the division. In addition, the applicant shall submit proof of right of entry, which shall consist of a copy of the lease or deed, or names of parties to the lease or deed, date of execution, and recording information.

B. On the permit application, the applicant shall disclose any type of mining permit, revocations, security deposited in lieu of bond that has been revoked or forfeited, and bond forfeitures in Virginia or any other state with which he or any individual, corporation, trust, partnership, association, or other legal entity with which he has or has had control or common control.

4VAC25-31-170. Permit application notifications.

A. The applicant shall notify the following parties of a new permit application via certified mail:

1. Property owners within 1,000 feet of the permit boundary.

2. The Chief Administrative Official of the local political subdivision where the prospective mining operation would take place.

3. All public utilities on or within 500 feet of permit boundary.

B. All notifications shall contain:

1. The name of the permit applicant issuing notice and the date of notification;

2. The permit applicant's address, phone number, and other contact information as available;

3. The name and address of the property owner, chief administrative official, or utility receiving the notification;

4. A statement as required by § 45.1-184.1 § 45.2-1210 of the Code of Virginia to property owners that requires land owners within 1,000 feet of the permit boundary to be notified that the operator is seeking a mining and reclamation permit from the Department of Mines, Minerals and Energy. The statement shall also note that the mining permit must address department requirements for regrading, revegetation, and erosion controls of mineral mine sites;

5. The location of the proposed mine, the city or county in which it is located, the distance of the nearest town or other easily identified landmark, and the tax map identification number of the parcels to be permitted; and

6. A notice that informs property owners within 1,000 feet of the permit boundary that they have 10 days from receipt of the permit notification to specify written objections or request a hearing. This request shall be in writing and shall be sent to the division. The current address for the division shall be provided on the notification.

C. No permit will be issued until at least 15 days after receipt of the application by the division. If all persons required to receive notice have issued a statement of no objection, the permit may be issued in less than 15 days.

D. Copies of all permit notifications shall be submitted to the division at the time they are mailed to the parties identified in subsection A of this section.

E. Documentation of certified mail receipts of the notifications described in this section shall be included with the permit application.

4VAC25-31-180. Impoundments.

The design data and construction plans and specifications for impoundments meeting the criteria set forth in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia shall be submitted to the director prior to initiation of construction activities. Such a plan shall be certified as prepared by, or under the supervision of, a registered professional engineer and shall include:

1. Design and construction specifications;

2. Examination and monitoring;

3. Emergency procedures; and

4. Closure and abandonment plans.

4VAC25-31-200. Exemption for restricted mining.

Any operator engaging in mining and disturbing less than a total of one acre of land and removing less than a total of 500 tons of minerals, is exempt from all mining permit fees, renewal fees and bonding requirements in this chapter. The mining operator shall submit an application for a permit, a sketch of the mining site, and an operations plan, which shall be adhered to in accordance with §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia.

4VAC25-31-220. Requirements for bonding of mineral mines.

A. Once the permit application is deemed complete, the applicant shall submit a bond or bonds on a form meeting the requirements in 4VAC25-31-220 through 4VAC25-31-270, made payable to the department and conditioned upon the satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

B. The bond or bonds shall cover the entire area presently disturbed by mining plus the estimated number of acres to be disturbed in the upcoming year.

C. As additional areas outside the bonded acreage are to be disturbed to facilitate the mining operation, the permittee shall file a bond or bonds to cover the acreage with the division.

D. Bond shall be posted and accepted by the division prior to disturbing an area for mining-related activity.

E. Permitted operators shall certify annually with the permit renewal the type, current insurer or bank, and the amount of all reclamation bonds.

4VAC25-31-230. Period of liability.

A. The bond liability shall be for the duration of the mineral mining operation and for the period following reclamation, which is necessary to demonstrate the success of the final reclamation.

B. In lieu of the requirements of 4VAC25-31-240 through 4VAC25-31-270, a permittee accruing five years of satisfactory operation under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 of the Code of Virginia shall be required to enter the Minerals Reclamation Fund as established in Article 4 (§ 45.1-197.8 § 45.2-1234 et seq.) of Chapter 16 12 of Title 45.1 45.2 of the Code of Virginia and 4VAC25-31-320. All performance bonds will be released upon acceptance in the Minerals Reclamation Fund and payment of required fees.

4VAC25-31-240. Bond amount.

A. Bond shall be set in accordance with § 45.1-183 § 45.2-1208 of the Code of Virginia.

B. The minimum bond for a mineral mining permit shall be $3,000, except for restricted permits and Minerals Reclamation Fund participants.

4VAC25-31-250. General terms and conditions of bond.

A. The bond shall be of the form and amount as specified by the division.

B. The performance bond shall be payable to the department.

C. The performance bond shall be conditioned upon satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-280. Release of bond.

The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation covered by the bond or portion thereof has been accomplished in accordance with this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-310. Bond forfeiture.

A. If the permittee refuses or is unable to comply with an order by the director under § 45.1-186.1 § 45.2-1213 of the Code of Virginia, fails to comply with the terms of the permit, or defaults on the conditions under which the bond was accepted, the division shall take the following action to revoke the permit and forfeit the bond or bonds for the permit area or a portion of the permit area:

1. Send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond informing them of the decision to revoke the permit and forfeit all or part of the bond, and the reasons for this action.

2. Advise the permittee and surety of the conditions under which forfeiture may be avoided. Such conditions may include:

a. Agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule acceptable to the division, which meets the conditions of the permit and the reclamation plan, and demonstrates that such party has the ability to satisfy the conditions; or

b. The division may allow a surety to complete the reclamation plan if the surety can demonstrate an ability to complete the reclamation in accordance with the approved reclamation plan. Except where the division may approve partial release, no surety liability shall be released until successful completion of all reclamation under the terms of the permit.

B. In the event forfeiture of the bond is required, the division shall:

1. Proceed to collect the forfeited amount as provided by Virginia law for the collection of defaulted bonds or other debts if actions to avoid forfeiture have not been taken, if any rights of appeal have not been exercised within a time established by the division, or if such appeal is unsuccessful.

2. Use funds collected from bond forfeiture to complete the reclamation plan on the permit area.

C. Upon default the division may cause the forfeiture of any and all bonds deposited to complete reclamation for which the bonds were posted. Bond liability shall extend to the entire permit area under conditions of forfeiture.

D. Reclamation costs in excess of the forfeited bond amount will constitute a debt of the operator to the Commonwealth of Virginia and shall be collected in accordance with § 45.1-186.2 § 45.2-1214 of the Code of Virginia.

E. In the event the amount of performance bond forfeited was more than the amount necessary to complete reclamation, the unused funds shall be returned by the division to the party from whom they were collected.

F. Appeal of bond forfeiture decisions may be made by the operator by providing notice of appeal to the director in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. If the operator files a notice of appeal, then the director's orders revoking the permit and declaring forfeiture shall be held in abeyance until the appeal is determined.

4VAC25-31-320. Minerals Reclamation Fund (MRF).

A. Each operator who has had five years of satisfactory operation in the Commonwealth under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia shall become a member of the fund by making an initial payment to the fund of $50 for each acre currently disturbed and each acre estimated to be affected by mining operations during the next year. Thereafter the member shall make an annual payment of $12.50 for each acre currently disturbed plus each acre estimated to be affected during the next ensuing year. No annual Minerals Reclamation Fund deposits will be collected from members where the permit Minerals Reclamation Fund deposits divided by the number of bonded acres in the next ensuing year is equal to or greater than $500.

B. Entry into the Minerals Reclamation Fund shall be mandatory for all eligible permittees.

C. Operator deposits into the Minerals Reclamation Fund shall be released or retained under the following conditions:

1. When the operation and reclamation are complete and the reclaimed area is suitable for bond release, Minerals Reclamation Fund deposits for the reclaimed area shall be returned to the operator.

2. When the mining permit is transferred to another permittee and division approval is granted, Minerals Reclamation Fund deposits for the permit may be returned to the transferring permittee.

3. When a mining permit is completely relinquished to another operator, other than in a permit transfer, all of the Minerals Reclamation Fund deposits for the permit shall be returned to the relinquishing operator upon division approval of the relinquishment.

4. After bond release applications are approved by the division, Minerals Reclamation Fund deposits for the permit shall be held or retained according to the following formulas:

a. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is equal to or greater than $500, Minerals Reclamation Fund deposits for the permit will be released so that the remaining deposits equal $500 per acre for the acres remaining under bond.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $4,000;

Minerals Reclamation Fund balance ÷ remaining bonded acres = $500;

$4,000 ÷ (10-2) acres = $500.

b. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is less than $500, the bond release amount will be determined by dividing the permit Minerals Reclamation Fund deposit by the number of bonded acres including the acres to be released and then multiplying by the number of acres to be released.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $3,000;

Minerals Reclamation Fund balance ÷ total bonded acres = Release amount $ per acre;

$3,000 ÷ 10 acres = $300 per acre;

Release amount = $300 per acre x 2 acres = $600.

D. Moneys available in the Minerals Reclamation Fund may be less than the total of all operator deposits due to expenditures for bond forfeiture as required by § 45.1-197.12 § 45.2-1238 of the Code of Virginia. Minerals Reclamation Fund refunds are subject to availability of moneys in the Minerals Reclamation Fund and shall be suspended if the fund decreases below $250,000. Payments to the fund are then proportionately assessed until the fund returns to a minimum, $250,000 or bond or other securities are posted as required by the director in accordance with § 45.1-197.14 § 45.2-1240 of the Code of Virginia.

E. Minerals Reclamation Fund deposits will be transferred to the successor operator when a permit transfer occurs due to a change in organization status or restructuring that does not involve a complete change of ownership.

4VAC25-31-430. Completion of active mining.

A. Except as provided in subsection B of this section and with the director's approval, a mining operation where no mineral has been removed or overburden removed or regraded, or where no substantial mine-related activity has been conducted for a period of 12 consecutive months shall be declared complete, and total reclamation shall begin.

B. At the option of the operator and with the director's approval, an operation may remain under permit for an indefinite period during which no mineral or overburden is removed if the following conditions are met to the director's satisfaction:

1. All disturbed areas are reclaimed or adequately stabilized, or all erosion and sediment control systems are maintained in accordance with mining plans and proper engineering practices.

2. All drainage structures are constructed and maintained in accordance with mining plans and proper engineering practices.

3. All vegetation is maintained, including reseeding if necessary.

4. All improvements on site, including machinery and equipment, are maintained in a state of good repair and condition.

If the conditions listed in this subsection are not met, the permit may be revoked by the director in accordance with § 45.1-186.1 § 45.2-1213 of the Code of Virginia.

4VAC25-31-500. Water impoundments.

A. Structures that impound water or sediment to a height of five feet or more above the lowest natural ground area within the impoundment and have a storage volume of 50 acre-feet or more, or impound water or sediment to a height of 20 feet or more regardless of storage volume, shall meet the following criteria (noted in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia):

1. Impoundments meeting or exceeding the size criteria set forth in this section shall be designed utilizing a spillway flood and hazard potential classification as specified in the following table:

Class of Impoundment*	Spillway Design Flood (SDF)**	Minimum Threshold for Incremental Damage Analysis ***
High Hazard	PMF	0.50 PMF
Significant Hazard	0.50 PMF	100-year storm
Low Hazard	100-year storm	50-year storm
*Size and hazard potential classifications shall be proposed and justified by the operator and shall be subject to approval by the director. Present and projected development in the inundation zone downstream from the structure shall be used in determining the classification. **The complete definitions of hazard potential are those contained in 4VAC50-20-40. ***The establishment of rigid design flood criteria or standards is not intended. Safety must be evaluated in the light of peculiarities and local conditions for each impounding structure and in recognition of the many factors involved, some of which may not be precisely known. Such can only be done by competent, experienced engineering judgment, which the values in the table are intended to add to, not replace.

Reductions in the SDF may be evaluated by use of incremental damage analysis described in 4VAC50-20-52. Note that future development downstream may increase the required SDF.

2. Impounding structures shall be constructed, operated, and maintained such that they perform in accordance with their design and purpose throughout their life.

a. Impoundments shall be designed and constructed by or under the direction of a qualified professional engineer licensed in Virginia and experienced in the design and construction of impoundments.

b. The designs shall meet the requirements of this section and use current prudent engineering practices.

c. The plans and specifications for an impoundment shall consist of a detailed engineering design report that includes engineering drawings and specifications, with the following as a minimum:

(1) The name of the mine; the name of the owner; classification of the impounding structure as set forth in this regulation; designated access to the impoundment and the location with respect to highways, roads, streams and existing impounding structures and impoundments that would affect or be affected by the proposed impounding structure.

(2) Cross sections, profiles, logs of test borings, laboratory and in situ test data, drawings of principal and emergency spillways and other additional drawings in sufficient detail to indicate clearly the extent and complexity of the work to be performed.

(3) The technical provisions as may be required to describe the methods of the construction and construction quality control for the project.

(4) Special provisions as may be required to describe technical provisions needed to ensure that the impounding structure is constructed according to the approved plans and specifications.

d. Components of the impounding structure, the impoundment, the outlet works, drain system and appurtenances shall be durable in keeping with the design and planned life of the impounding structure.

e. All new impounding structures regardless of their hazard potential classification shall include a device to permit draining of the impoundment within a reasonable period of time, and at a minimum shall be able to lower the pool level six vertical inches per day, as determined by the owner's professional engineer, subject to approval by the director.

f. Impoundments meeting the size requirements and hazard potential of high, significant, or low shall have a minimum static safety factor of 1.5 for a normal pool with steady seepage saturation conditions and a seismic safety factor of 1.2.

g. Impoundments shall be inspected and maintained to ensure that all structures function to design specifications.

h. Impoundments shall be constructed, maintained and inspected to ensure protection of adjacent properties and preservation of public safety and shall meet proper design and engineering standards under Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia. Impoundments shall be inspected at least daily by a qualified person, designated by the licensed operator, who can provide prompt notice of any potentially hazardous or emergency situation as required under § 45.1-225.2 § 45.2-1302 of the Code of Virginia. Records of the inspections shall be kept and certified by the operator or his agent.

i. The operator will prepare an emergency action plan (EAP) that includes the following information:

(1) A notification chart of persons or organizations to be notified, the person or persons responsible for notification, and the priority in which notifications are issued. Notifications shall include at a minimum the division, the local government authority responsible for emergency response, and the Virginia Department of Emergency Management.

(2) A discussion of the procedures used for timely and reliable detection, evacuation, and classification of emergency situations considered to be relevant to the structure and its setting.

(3) Designation of responsibilities for EAP related tasks. Also, the EAP shall designate the responsible party for making a decision that an emergency situation no longer exists at the impounding structure. Finally, the EAP shall include the responsible party and the procedures for notifying to the extent possible any known local occupants, owners, or lessees of downstream properties potentially impacted by a failure of the impounding structure.

(4) A section describing actions to be taken in preparation for impoundment emergencies, both before and during the development of emergency conditions.

(5) Dam break inundation maps. Each sheet of such maps for high and significant potential hazard classification structures shall be prepared and sealed by a professional engineer. Where possible, inundation mapping in the EAP should be provided on sheets no larger than 11 inches by 17 inches to facilitate copying for emergency response.

(6) Appendices containing information that supports and supplements the material used in the development of the EAP, including plans for training, exercising, and updating the EAP.

(7) A section that identifies all parties with assigned responsibilities in the EAP and signed certification by all of those parties that a copy of the EAP has been received.

(8) Times periods for review or revision acceptable to the director.

3. Impoundments shall be closed and abandoned in a manner that ensures continued stability and compatibility with the post-mining land use.

4. The following are acceptable as design procedures and references:

a. The design procedures, manuals and criteria used by the United States Army Corps of Engineers;

b. The design procedures, manuals and criteria used by the United States Department of Agriculture, Natural Resources Conservation Service;

c. The design procedures, manuals and criteria used by the United States Department of Interior, Bureau of Reclamation;

d. The design procedures, manuals and criteria used by the United States Department of Commerce, National Weather Service;

e. The design procedures, manuals and criteria used by the United States Federal Energy Regulatory Commission;

f. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or as revised;

g. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods for Dams, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted April 2004; FEMA 94 or as revised; or

h. Other design procedures, manuals and criteria that are accepted as current, sound engineering practices, as approved by the director prior to the design of the impounding structure.

B. Impoundments that do not meet or exceed the size criteria of subsection A of this section shall meet the following criteria:

1. Be designed and constructed using current, prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Safely pass the runoff from a 50-year storm event for temporary (life of mine) structures and a 100-year storm event for permanent (to remain after mining is completed) structures.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

C. Impoundments with impounding capability created solely by excavation shall comply with the following criteria:

1. Be designed and constructed using prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Be designed and constructed with outlet facilities capable of:

a. Protecting public safety;

b. Maintaining water levels to meet the intended use; and

c. Being compatible with regional hydrologic practices.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

4VAC25-31-570. Formal review.

Orders of the director, which are final agency actions for which no further informal resolution is available, shall be appropriately identified and may be appealed in accordance with § 45.1-194 § 45.2-1226 of the Code of Virginia.

4VAC25-35-5. Definitions.

The following words and items when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Commencing work" means after employment but before beginning job duties.

"Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mineral Mining of the Department of Mines, Minerals and Energy.

"MSHA" means the federal Mine Safety and Health Administration.

4VAC25-35-30. Reciprocity requirements.

Reciprocity shall be available for certified persons in other states as provided for in § 45.1-161.292:24 § 45.2-1118 of the Code of Virginia. Applicants for reciprocity must submit proof of current certification, examination grades, and documentation of equivalent work experience for review and approval by the department.

4VAC25-35-110. Mineral mine inspector.

In addition to the requirements set forth in § 45.1-161.292:11 § 45.2-1109 of the Code of Virginia, mine inspector applicants shall demonstrate knowledge and competence in those areas specified in § 45.1-161.292:12 § 45.2-1110 of the Code of Virginia through the examination process. A certificate will not be issued until an applicant is employed by the department. Applicants who already possess a valid coal mine inspector certification pursuant to 4VAC25-20-180 or 4VAC25-20-185 shall be deemed to have met the requirements of this section.

4VAC25-35-120. General mineral miner.

A. As set forth in § 45.1-161.292:28 § 45.2-1122 of the Code of Virginia, miners commencing work after January 1, 1997, shall have a general mineral miner certification. Persons excluded from the general mineral miner certification are those involved in delivery, office work, maintenance, service and construction work, other than the extraction and processing of minerals, who are contracted by the mine operator. Hazard training as required by 30 CFR Part 46 or 30 CFR Part 48 shall be provided to these persons.

B. Applicants shall complete certification training in first aid and mineral mining regulations and law, which is conducted by a training instructor approved by the division, a certified MSHA instructor, or a certified mine foreman. Training shall include the following topics, subtopics and practical applications:

1. First aid training shall convey knowledge of first aid practices including identification of trauma symptoms, recognition and treatment of external and internal bleeding, shock, fractures, and exposure to extreme heat or cold. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

2. Law and regulation training shall convey highlights of the mineral mine safety laws of Virginia and the safety and health regulations of Virginia. Specifically, information shall be provided on miner responsibilities and accountability, certification requirements, violations, penalties, appeals and reporting violations to the division. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

C. The trainer will certify to the department that the training and demonstrations required by § 45.1-161.292:28 § 45.2-1122 B of the Code of Virginia and this section have occurred.

D. Applicants who hold a valid first aid certificate as noted in 4VAC25-35-10 shall be considered to have met the first aid requirements.

E. Applicants who have completed training may commence work and shall be considered provisionally certified for up to 60 days from the date the instructor completes the training.

F. The instructor shall submit verification of certification in a form acceptable to the division and the $10 fee for each applicant who completes the training, together with a class roster of all persons who complete the training, within 30 days of the training date.

G. The mine operator shall maintain the following records for those miners required to obtain a general mineral miner certification and those who qualify for exemption, starting January 1, 1997:

1. The employee name, address, and phone number.

2. The job title, employment date and general mineral miner number if applicable.

3. The date training was completed and the instructor providing it for nonexempt employees.

4. If the employee is exempt from the requirements, the date they began working in the mineral mining industry in Virginia.

H. Applicants who already possess a valid general coal miner surface certification pursuant to 4VAC25-20 shall be deemed to have met the requirements of this section.

4VAC25-40-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abandoned mine" means a mine in which all work has stopped on the mine premises and where an office with a responsible person in charge is no longer maintained at the mine.

"Abandoned workings" means deserted mine areas in which further work is not intended.

"Acceptable" means tested and found to be appropriate for a specific purpose by a nationally recognized agency.

"ACGIH" means the American Conference of Governmental Industrial Hygienists.

"Angle of repose" means the maximum slope or angle at which material remains stable.

"Auxiliary fan" means a fan used to deliver air to a working place off the main airstream, generally used with ventilation tubing.

"Barricaded" means physically obstructed to hinder or prevent the passage of persons or vehicles.

"Blast area" means the area of the mine in which concussion or flying material can reasonably be expected to cause injury during detonation.

"Blast site" means the 50-foot perimeter around boreholes being loaded, or 30 feet if demarcated by a barricade, and the 180° free-face area for a distance of at least four times the average depth of the boreholes being loaded.

"Bridle" means a cable or chain used to support a work platform in a raised position with more than three connection points.

"Burden" means the distance in feet between rows of boreholes or between the open face and boreholes.

"Company official" means a member of the company supervisory or technical staff.

"Competent person" means a person having abilities and experience that fully qualify him to perform the duty to which he is assigned.

"Confined space" means an enclosed area that is large enough for an employee to enter fully and perform his assigned work but is not designed for continuous occupancy by the employee and has a limited or restricted means of entry or exit. These spaces may include storage bins, hoppers, silos, tanks, vaults, and other similar areas.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Division of Mineral Mining.

"Distribution box" means an apparatus with an enclosure through which an electric circuit is carried to one or more cables from a single incoming feedline, each cable circuit being connected through individual overcurrent protective devices.

"Division" means the Division of Mineral Mining.

"Escapeway" means a passageway by which persons may leave if the ordinary exit is obstructed.

"Face" or "bank" means that part of any mine where excavating is progressing or was last done.

"Flash point" means the minimum temperature at which sufficient vapor is released to form a flammable vapor-air mixture.

"Free-face" means the face area of a quarry bench to be blasted.

"Flyrock" means any uncontrolled material generated by the effect of a blast that was hazardous to persons, or to property not owned or controlled by the operator.

"Heavy duty mobile equipment" means any equipment used for loading, hauling, or grading and not normally intended for highway use.

"Hoist" means a power-driven windlass or drum used for raising ore, rock, or other material from a mine, and for lowering or raising persons and material.

"Lay" means the distance parallel to the axis of the rope in which a strand makes one complete turn about the axis of the rope.

"Loaded" means containing explosives, blasting agents, or detonators.

"Main fan" means a fan that controls the entire airflow of the mine or the airflow of one of the major air circuits.

"Major electrical installation" means an assemblage of stationary electrical equipment for the generation, transmission, distribution, or conversion of electrical power.

"Mine opening" means any opening or entrance from the surface into a mine.

"Mine vehicle" means any vehicle on the mine site that is utilized by the mine operator or contractors performing excavation, maintenance, or construction at the mine.

"Misfire" means the partial or complete failure of a blast to detonate as planned.

"MSHA" means the Mine Safety and Health Administration.

"Occupational injury" means any injury to a miner which occurs at a mine for which medical treatment is administered, or which results in death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary assignment to other duties, or transfer to another job as specified in the 30 CFR Part 50.2.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a deposit of useful materials or ores that are to be mined.

"Potable" means fit for human consumption and, where required by the Code of Virginia, approved by the Virginia Department of Health.

"Powder chest" means a substantial, nonconductive portable container equipped with a lid and used at blasting sites for explosives other than blasting agents.

"Primer" means a cartridge or package of explosives which contains a detonator or detonating cord.

"Refuse" means mineral processing waste, tailings, silts, sediments, or slimes.

"Rollover protection" means a framework, safety canopy or similar protection for the operator when equipment overturns and which is acceptable for use on that particular type of equipment.

"Safety fuse" means a train of powder enclosed in cotton, jute yarn, and water-proofing compounds, which burns at a uniform rate, used for firing a cap containing the detonating compound which in turn sets off the explosive charge.

"Safety hazard" means any condition, function, or circumstance which may reasonably be expected to cause or assist an accident.

"Scaled distance (Ds)" means the actual distance (D) in feet divided by the square root of the maximum explosive weight (W) in pounds that is detonated per delay period for delay intervals of eight milliseconds or greater; or the total weight of explosive in pounds that is detonated within an interval less than eight milliseconds.

"Scaling" means removal of insecure material from a face or highwall.

"Shaft" means a vertical or inclined shaft, slope, incline, or winze.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

"Substantial construction" means construction of such strength, material, and workmanship that the object will withstand all reasonable shock, wear, and usage to which it will be subjected.

"Suitable" means that which fits and has the qualities or qualifications to meet a given purpose, occasion, condition, function, or circumstance.

"Switch" means a device used to complete or disconnect an electrical circuit.

"Travelway" means a passage, walk or way regularly used and designated for persons to go from one place to another.

"Wet drilling" means the continuous application of water through the control hole of hollow drill steel to the bottom of the drill hole.

4VAC25-40-25. Purpose and authority.

The purpose of this chapter is to provide for the protection of persons and property on and around mineral mines. The chapter works with the Virginia Mineral Mine Safety Act (§ 45.1-161.292:1 § 45.2-939 et seq.) of the Code of Virginia (as shown in Mineral Mine Safety Laws of Virginia, 2005 edition). Refer to the Act for other definitions and requirements related to this chapter.

4VAC25-40-270. Refuse piles, water and silt retaining dams.

A. Refuse piles, water and silt retaining dams that meet the size criteria of § 45.1-225.2 § 45.2-1302 of the Code of Virginia shall be designed, constructed, maintained, inspected and abandoned in accordance with §§ 45.1-225.2 through 45.1-225.5 Chapter 13 (§ 45.2-1300 et seq.) of Title 45.2 of the Code of Virginia.

B. Water and silt retaining dams that do not meet the size criteria of § 45.1-225.1 § 45.2-1301 of the Code of Virginia shall be designed, constructed and abandoned in accordance with the Minerals Other Than Coal Surface Mining Law (§ 45.1-180 § 45.2-1200 et seq. of the Code of Virginia).

C. Refuse shall be placed only in locations approved by the director.

4VAC25-40-300. Closure of roads or openings.

Upon abandonment of a mine, the operator shall effectively close or fence all roads, mine openings, and surface excavations where hazardous conditions exist and warning signs shall be posted. Upon temporary cessation of mining activities as provided for in § 45.1-181 § 45.2-1205 of the Code of Virginia, the operator shall effectively close or barricade access roads and hazardous areas.

4VAC25-40-5760. Application for mining near gas or oil wells.

A. Application may be made at any time to the director by the operator for an approval to conduct mining operations within 200 feet of any permitted gas or oil well, or gas or oil well being drilled, on forms furnished by the director and containing such information as the director may require.

B. The application shall be accompanied by a map or maps as specified in Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia showing all mining operations or workings projected within 200 feet of the well.

C. Notice of the application shall be sent by certified mail to the well operator and the gas and oil inspector. The notice shall inform the well operator of the right to object to the proposed mining activity. Objections must be filed with the director within 15 days after notice is received by the objecting person.

D. The director may, prior to considering the application, make or cause to be made any inspections or surveys which he deems necessary, and may, if no objection is filed by the well operator or the gas and oil inspector within 15 days after the notice is received, grant the request of the operator to conduct the mining operations as projected, or with such modifications as he may deem necessary.

E. If the well operator or gas and oil inspector files objections, a hearing will be held under the same procedures as set forth in § 9-6.14:11 § 2.2-4019 of the Code of Virginia.

F. If the applicant for an approval to mine within 200 feet of a gas or oil well submits proof in writing that none of the persons required to be notified under this section has any objection to the projected mining activity, then the director may waive the notice requirement under this section and grant the request of the operator to conduct the projected mining activity, provided all other conditions have been met.

4VAC25-70-10. General requirements.

A. Section 45.1-161.191 Section 45.2-811 of the Code of Virginia requires that telephone service or an equivalent two-way communication system be provided between the top and each landing of main shafts and slopes in the mines.

B. Corrective actions shall be taken when a disruption or failure of the required communication system occurs to any section or part of an underground mine where preparation for mining is being made or mining is in progress. Work to restore communications shall begin immediately.

C. Any disruption in communication which is not restored within one hour shall be recorded by the mine foreman in the on-shift report. The record shall reflect the corrective actions taken and time the communication was restored.

D. Whenever a representative of the miners, or a miner where there is no such representative, has reason to believe that conditions are such that continuing to work on a section without communication would constitute an imminent danger to safety or health, such miner or representative shall notify the Chief of the Division of Mines or mine inspector of his concern. Upon receipt of such notification, the Chief shall cause an inspection to be made as soon as possible. If the inspection determines that such danger exists, the workers, excluding those needed to correct the problem, shall be withdrawn to a place that has communication with the surface.

4VAC25-90-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"MSHA" means the Mine Safety and Health Administration.

"TLV" or "Threshold Limit Value" means the airborne concentration of a substance that represents conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect as recommended by the American Conference of Government Industrial Hygienists.

4VAC25-90-70. Air quality.

A. During on-shift examinations required by § 45.1-161.209 § 45.2-827 of the Code of Virginia, a mine foreman authorized by the operator shall determine the concentration of carbon monoxide (CO) and nitrogen dioxide (NO₂).

1. In the return of each working section where diesel equipment is used inby the loading point at a location which represents the contribution of all diesel equipment on such section.

2. At a point inby the last piece of diesel equipment on a longwall or shortwall when mining equipment is being installed or removed. This examination shall be made at a time which represents the contribution of all diesel equipment used for this activity including the diesel equipment used to transport longwall or shortwall equipment to and from the section.

3. In any other area designated by the chief where diesel equipment is operated in a manner which can result in significant concentrations of diesel exhaust emissions.

4. The concentrations of carbon monoxide (CO) and nitrogen dioxide (NO₂) shall not exceed the following threshold limit values:

Threshhold Limit Values (TLV)
Carbon Monoxide (CO)	25 ppm
Nitrogen Dioxide (NO2)	3 ppm

B. Samples of CO and NO₂ shall be collected and analyzed:

1. By appropriate instrumentation that has been maintained and calibrated in accordance with the manufacturer's recommendations;

2. In a manner that makes the results available immediately to the person collecting the samples; and

3. During periods that are representative of conditions during normal operations.

C. The results of these tests shall be:

1. Recorded in a secure book that is not susceptible to alteration, or recorded electronically in a computer system that is secure and not subject to alteration; and

2. Retained at a surface location at the mine for at least one year and made available for inspection by interested persons.

4VAC25-101-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Accurate map or plat" means a map or plat drawn of a scale of between one inch equals 100 feet (1:1,200) and one inch equals 400 feet (1:4,800) with the scale so stated on the map or plat and certified by a licensed professional engineer or licensed land surveyor.

"Approved" means a device, apparatus, equipment, condition, method, course or practice approved in writing by the chief. Approvals by federal agencies such as the Mine Safety and Health Administration (MSHA), or the Office of Surface Mining (OSM), shall also be considered "approved" for the purposes of this chapter.

"Bridge plug" means an obstruction intentionally placed in a vertical ventilation hole at a specified depth.

"Building" means a structure regularly occupied in whole or in part as a habitation for human beings, or where people are accustomed to live, work, or assemble.

"Casing" means all pipe set in wells or vertical ventilation holes except conductor pipe and tubing.

"Cement" means hydraulic cement properly mixed with water.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy, or his authorized agent.

"Coalbed methane gas" means occluded natural gas produced from coalbeds and rock strata associated therewith.

"Coalbed methane gas well" means a well capable of producing coalbed methane gas.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids and gas or gas pressure from the seam, except such as may be found in the coal seam itself.

"Coal seam" means any stratum of coal 20 inches or more in thickness, unless a stratum of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical and direction of points in the hole from the vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Form prescribed by the chief" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Code of Virginia or this chapter.

"Gas" or "natural gas" means all natural gas whether hydrocarbon or nonhydrocarbon or any combination or mixture thereof, including hydrocarbons, hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casing head gas, and all other fluids not defined as oil.

"Gas well operator" means any person who has been designated to operate or does operate a gas well.

"Gas and Oil Inspector" means the Director of the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Gas well" means any well that produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well which is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial or agricultural use or otherwise affects the public safety.

"Highway" means any public street, public alley, or public road.

"Inclination survey" means a survey taken inside a vertical ventilation hole that measures the degree of deviation of the point of the survey from the vertical.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Log" means the written record progressively describing all strata, water, or gas encountered in drilling, depth and thickness of each bed or seam of coal drilled through, volume of gas, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, cavings strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include electrical survey records or electrical survey logs.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Minable coal seam" means a coal seam being mined commercially, or that, in the judgment of the chief, can reasonably be expected to be mined, and which, when mined, will require protection if holes are drilled through it.

"Mining" means the activity of producing coal from any coal mine.

"Mud" means a mixture of materials which creates a weighted fluid to be circulated downhole during over-balance drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation fluids, oil, gas or gas pressure.

"Owner" means the person or persons listed as owner of record by the Clerk of the Circuit Court of the county in which the property is located.

"Pending" means an application for a vertical ventilation hole or gas well permit that has been submitted to the department, but where the decision to issue or refuse to issue the permit has not been made.

"Permanent point" means an established physical point of reference on the land surface, based on the applicant's coordinate system, used for a map or plat submitted with a permit application.

"Permitted" means a vertical ventilation hole or gas well that has been approved by the department.

"Person" means individual, corporation, partnership, association, company, business, trust, joint venture, unit of government, or other legal entity.

"Pillar" means a solid block of coal or ore or other material left unmined to support the overlying strata in a mine.

"Pipeline" means any pipe buried or on the surface used or to be used to transport gas.

"Plug" means the sealing of, or a device or material used for the sealing of, a vertical ventilation hole or casing to prevent the migration of formation fluids or gas from one stratum to another.

"Railroad" means any steam, electric or other powered transportation system operating on a track which carries passengers for hire, or over which loaded or empty equipment is transported.

"State plane coordinate system" means the Virginia Coordinate System of 1927 or the Virginia Coordinate System of 1983 as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a vertical ventilation hole. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Tubing" means the small diameter string set after the vertical ventilation hole has been drilled from the surface to the total depth and through which a substance is produced or injected.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used primarily for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

"Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction, injection or placement of any gaseous or liquid substance, or any shaft or hole sunk or used in conjunction with such extraction, injection or placement. The term shall not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural, or public use and shall not include water boreholes, vertical ventilation holes where methane is vented or flared rather than produced and saved, subsurface boreholes drilled from the mine face of an underground coal mine, any other boreholes necessary or convenient for the extraction of coal or drilled pursuant to a uranium exploratory program carried out pursuant to the laws of this Commonwealth, or any coal or non-fuel mineral corehole or borehole for the purpose of exploration.

4VAC25-101-50. Venting methane; bleeder system.

A. Nothing in this chapter shall prevent the operator of a permitted coalbed methane gas well from venting methane from the well in accordance with the requirements of the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia and the Virginia Gas and Oil Regulation, 4VAC25-150-10 et seq.

B. The mine bleeder system, when operated in conjunction with vertical ventilation holes or coalbed methane gas wells, shall be operated such that changes in the operation of the vertical ventilation holes or coalbed methane wells shall not create hazardous conditions for the miners working underground. If the operation of a vertical ventilation hole or coalbed methane gas well affects any mine's ventilation, the mine shall be adequately ventilated in accordance with the mine's bleeder plan approved under § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act. Any changes or adjustments to such VVH's or coalbed methane gas wells shall be recorded as required by the mine's approved bleeder plan.

4VAC25-101-150. Mining within 500 feet of a vertical ventilation hole or gas well.

A. Before removing any coal or other mineral, or extending any mine workings or operations within 500 horizontal feet of any permitted or pending vertical ventilation hole or gas well, the mine operator shall give notice by certified mail to the vertical ventilation hole operator and the chief or, in the case of a gas well, the mine operator shall give notice as provided for in §§ 45.1-161.121 45.2-707 A and 45.1-161.292 45.2-939 A of the Coal Mine Safety Act.

B. The mine operator shall send to the vertical ventilation hole operator and the chief an accurate map or plat. The map shall show the location of the hole and projected mine workings within 500 horizontal feet of the ventilation hole and shall be shown in accordance with the state plane coordinate system.

C. Once notice and the map have been provided, the mine operator may proceed with mining operations as shown on the map. However, the mine operator shall not remove any coal or other mineral, or conduct any mining operations nearer than 200 horizontal feet, as determined by survey, to any permitted or pending vertical ventilation hole or gas well without the approval of the chief.

D. This provision shall not apply to mining operations in the seam which the vertical ventilation hole or gas well is intended to ventilate if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through that seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-160. Mining within 200 feet of a vertical ventilation hole, gas well or pipeline.

A. A mine operator shall submit a plan to the chief for approval to conduct mining operations within 200 feet (horizontally or vertically) of any permitted or pending vertical ventilation hole or gas well or to conduct surface mining operations within 200 feet of pipelines.

B. The plan shall comply with requirements developed by the chief. It shall be accompanied by an accurate map or plat showing the location of the hole, well, or pipeline, mine workings within 500 feet of the hole, well, or pipeline, projected mine workings within 200 horizontal feet of the vertical ventilation hole, gas well, or pipeline in accordance with the state plane coordinate system.

C. The chief may, prior to considering the plan, make or cause to be made any inspections or surveys which he deems necessary.

D. Notice of intent, including a copy of the plan, shall be sent by certified mail to the operator of the vertical ventilation hole or pipeline, which may be affected by the proposed mining operations. Gas well operators, which may be affected by the proposed mining operations, shall be given notice as required in §§ 45.1-161.121.45.2-707 C and 45.1-161.292. 45.2-939 B of the Coal Mine Safety Act. The notice shall inform the operator of the right to object to the proposed mining activity. Objections shall be filed with the chief within 10 days of the date that the notice is received. If the operator files an objection, the chief shall schedule a hearing in accordance with the provisions in 4VAC25-101-70.

E. If the mine operator submits proof in writing that the operator of the vertical ventilation hole, gas well, or pipeline does not object to the projected mining activity, then the chief may waive the notice requirement and issue a permit, provided all other conditions for permit issuance have been met.

F. The chief may, if the operator of the vertical ventilation hole, or gas well, or pipeline does not file an objection within the specified period, approve the plan for the mining operations as projected, or with such modifications as the chief may deem necessary.

G. This section shall not apply to mining operations in the seam that the vertical ventilation hole or gas well is intended to ventilate, if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through the seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-190. Mining seams impacted by vertical ventilation holes and coalbed methane wells intended to degas the seams being mined.

Mining through vertical ventilation holes, coalbed methane wells, or gas wells intended to degas the seam being mined shall comply with safe mining procedures which have been incorporated in the approved Bleeder Plan required by § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act.

4VAC25-101-200. Plugging of vertical ventilation holes.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the chief. A permit modification is required if the vertical ventilation hole was not previously permitted for plugging.

2. Any person may file an application with the chief to re-plug a previously plugged vertical ventilation hole in any manner permissible under provisions of this section to facilitate the safe mining-through of the vertical ventilation hole at a later date.

3. The chief may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Coal Mine Safety Act:

a. The coal owner, operator, or lessee of record requests a special plugging program to facilitate mine safety or to obtain approval from another governmental agency for the safe mining-through of a vertical ventilation hole. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan, which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a vertical ventilation hole or section of a vertical ventilation hole without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

2. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

3. A cement plug of minimum length of 100 feet shall be placed across the bottom of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the vertical ventilation hole is without surface casing, a continuous cement plug shall be placed at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

4. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the hole by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each minable coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If there is uncemented annulus between an inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

c. If a fresh water aquifer is exposed to the hole in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

d. At a point no less than 50 feet below the bottom of the surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

e. From a point not less than 50 feet below the surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

f. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision 1 of this subsection.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal length inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the hole or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity, such as a cavern, mine void, blast stimulation zone, or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest stratum in the hole, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision 1 of this subsection.

4VAC25-110-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Actual distance" means the distance in feet from the blast location to the nearest dwelling house, public building, school, church, or commercial or institutional building neither owned nor leased by the person conducting the blast.

"DMLR" means the Division of Mined Land Reclamation Repurposing of the Department of Energy.

"Fly rock" means uncontrolled material generated by the blast traveling along the ground and shall not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the Division of Mined Land Reclamation Repurposing (DMLR) permit boundary.

"Inhabited building" means a building regularly occupied in whole or in part as a habitation for human beings, or any church, schoolhouse, railroad station, store, or other structure where people are accustomed to assemble, except any building or structure occupied in connection with the manufacture, transportation, storage or use of explosives.

"Mudcapping," also known as bulldozing, adobe blasting or dobying, means a method of blasting by placing a quantity of explosives in contact with a rock, boulder, or other object without confining the explosives in a drill hole.

"Person" means and includes individuals, firms, partnerships, associations, corporations, receivers, or any officer of the Commonwealth, or any agent or officer of the above-mentioned classes employing any person in this Commonwealth.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

4VAC25-110-210. Blasting safety.

A. When operating within 1,000 horizontal feet of a highway, traffic must be stopped at a safe distance and the blasting area shall be posted with warning signs.

B. Where a blasting operation is conducted in the vicinity of an active deep mine, the blaster shall observe all procedures necessary to secure the health and safety of the deep mine workers. The operator of the affected deep mine shall be notified of planned blasting activities to coordinate necessary precautions for underground workers.

C. When blasting operations, other than those conducted at a fixed site as a part of any industry or business operated at such site, are to be conducted within 200 feet of a pipe line or high voltage transmission line, the blaster or person in charge of the blasting operations shall take due precautionary measures for the protection of the line, and shall notify the owner of the line or his agent at least 48 hours in advance that such blasting operations are intended.

D. When an operator applies for a mine license, he shall indicate on the application the actual distance to the nearest inhabited building.

E. Before a blast is fired, a loud warning signal, audible within a range of ½ mile, shall be given by the blaster in charge, who has made certain that all surplus explosives are in a safe place and all employees, vehicles, and equipment are at a safe distance or under sufficient cover.

F. Fly rock as defined in 4VAC25-110-10 shall not be allowed.

G. Blasting operations shall be conducted during daylight hours (sunrise to sunset) unless authorized by the Chief or his authorized representative.

H. Misfires, hangfires, etc., shall be handled in accordance with § 45.1-161.285 § 45.2-932 of the Code of Virginia.

I. Mudcapping in blasting operations shall be permitted only where the driller would be in a hazardous position in attempting to drill the rock or material to be blasted.

4VAC25-125-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bin" means a container for storage of bulk material.

"Bunker" means a vessel for the bulk storage of material; the lowermost portion is usually constructed in the form of a hopper.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Hopper" means a vessel not primarily intended for storage into which materials are fed; usually constructed in the form of an inverted pyramid or cone terminating in an opening through which the material is discharged.

"Safety line" means a component consisting of a flexible line for connection to an anchorage at one end to hang vertically (vertical lifeline), or for connection to anchorages at both ends to stretch horizontally (horizontal lifeline), and which serves as a means for connecting other components of a personal fall arrest system to the anchorage.

"Silo" means a tall structure, usually cylindrical and of reinforced concrete construction, in which bulk material is stored and discharged through feeders that draw materials from the bottom.

"Stockpile" means any accumulation of material formed to create a reserve for loading or other purposes.

4VAC25-130-700.1. Scope.

These regulations, consisting of Parts 700 through 882, establishes the procedures and requirements through which the Department of Mines, Minerals, and Energy and its Division of Mined Land Reclamation Repurposing will implement the Virginia Coal Surface Mining Control and Reclamation Act of 1979 (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and the Federal Surface Mining Control and Reclamation Act of 1977, (P.L. 95-87, 91 Stat. 445 (30 USC §§ 1201 et seq.)), pursuant to the Virginia permanent regulatory program, as approved by the United States Secretary of the Interior.

This Chapter is divided into nine Subchapters.

(a) Subchapter VA contains introductory information intended to serve as a guide to the rest of the Chapter and to the regulatory requirements and definitions generally applicable to the programs and persons covered by the Act.

(b) Subchapter VD identifies the procedures that apply to surface coal mining and reclamation operations conducted on Federal lands rather than State or private lands and incorporates by reference the applicable requirements of the State regulatory program: Subchapters VG, VJ, VK, AND VL.

(c) Subchapter VF implements the requirements of the Act for--

(i) Designating lands which are unsuitable for all or certain types of surface coal mining operations;

(ii) Terminating designation no longer found to be appropriate; and

(iii) Prohibiting surface coal mining and reclamation operations on those lands or areas where the Act states that surface coal mining operations should not be permitted or should be permitted only after specified determinations are made.

(d) Subchapter VG governs applications for and decisions on permits for surface coal mining and reclamation operations within the Commonwealth. It also governs coal exploration and permit application and decisions on permits for special categories of coal mining in the Commonwealth. Regulations implementing the experimental practices provision of the Act are also included in Subchapter VG.

(e) Subchapter VJ sets forth requirements for performance bonds and public liability insurance for surface mining, underground mining and coal exploration permits.

(f) Subchapter VK sets forth the environmental and other performance standards which apply to coal exploration and to surface coal mining and reclamation operations, as well as to special mining situations involved with steep slope mining, mountaintop removal mining, auger mining and prime farmlands.

(g) Subchapter VL sets forth the inspection, enforcement, and civil penalty provisions.

(h) Subchapter VM sets forth the requirements for the training, examination, and certification of blasters.

(i) Subchapter VR sets forth the regulations for the Abandoned Mine Land Program.

4VAC25-130-700.2. Authority and citation to federal law.

These regulations are promulgated pursuant to Chapter 19, 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia (1950) as amended. In order for these regulations to receive approval by the United States Secretary of the Interior as part of the Commonwealth's permanent regulatory program, the Federal Surface Mining Control and Reclamation Act requires that these regulations be consistent with (as effective as) applicable regulations issued by the Secretary, contained in 30 CFR Chapter VII. The numbering system used for the Virginia regulations corresponds to the numbering system used for the applicable Federal regulations in 30 CFR Chapter VII, except that the numbering for the Virginia regulations contains the prefix "4VAC25-130-xxx.xxx." All references to Sections, Parts, or Subchapters are made to this chapter, unless otherwise noted.

4VAC25-130-700.3. Effective date.

(a) The regulations promulgated pursuant to Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia became effective on December 15, 1981, the date on which the Secretary of the Interior approved the Commonwealth's permanent regulatory program.

(b) The regulations in this chapter shall become effective when approved by the Secretary of the Interior, except, for existing operations permitted pursuant to Chapter 19, Title 45.1-

(1) All provisions except for those related to the contents of permit applications of Subchapter VG and the performance standards of Subchapter VK shall apply.

(2) The content of permit application requirements and the performance standards of the regulations approved on December 15, 1981, shall be complied with.

(3) All provisions of this chapter shall apply when the existing permit is significantly revised or renewed.

4VAC25-130-700.5. Definitions.

As used throughout this chapter, the following terms have the specified meanings except where otherwise indicated.

"Abatement plan" means an individual technique or combination of techniques, the implementation of which is designed to result in reduction of the baseline pollution load. Abatement techniques include but are not limited to: addition of alkaline material, special plans for managing toxic and acid forming material, regrading, revegetation, and daylighting.

"Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mining and reclamation operation or from an area affected by surface coal mining and reclamation operations.

"Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acid that may create acid drainage or leachate.

"Act" means the Virginia Coal Surface Mining Control and Reclamation Act of 1979 as amended (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia).

"Actual improvement" means the reduction of the baseline pollution load resulting from the implementation of the approved abatement plan: except that a reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement.

"Adjacent area" means the area outside the permit area where a resource or resources, determined according to the context in which adjacent area is used, are or reasonably could be expected to be adversely impacted by proposed mining operations, including probable impacts from underground workings.

"Administratively complete application" means an application for permit approval, or approval for coal exploration where required, which the division determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review.

"Adverse physical impact" means, with respect to a highwall created or impacted by remining, conditions such as sloughing of material, subsidence, instability, or increased erosion of highwalls, which occur or can reasonably be expected to occur as a result of remining and which pose threats to property, public health, safety, or the environment.

"Affected area" means any land or water surface area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands, the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings. The affected area shall include every road used for purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road is a public road.

"Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

"Anthracite" means coal classified as anthracite in ASTM Standard D 388-77. Coal classifications are published by the American Society of Testing and Materials under the title, "Standard Specification for Classification of Coals by Rank," ASTM D 388-77, on pages 220 through 224. Table 1 which classifies the coals by rank is presented on page 223. This publication is hereby incorporated by reference.

"Applicant" means any person seeking a permit, permit revision, renewal, and transfer, assignment, or sale of permit rights from the division to conduct surface coal mining and reclamation operations or, where required, seeking approval for coal exploration.

"Applicant violator system" or "AVS" means an automated information system of applicant, permittee, operator, violation, and related data the federal Office of Surface Mining Reclamation and Enforcement (OSM) maintains and the division utilizes in the permit review process.

"Application" means the documents and other information filed with the division under this chapter for the issuance of permits; revisions; renewals; and transfer, assignment, or sale of permit rights for surface coal mining and reclamation operations or, where required, for coal exploration.

"Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and coal refuse piles eliminated. Permanent water impoundments may be permitted where the division has determined that they comply with 4VAC25-130-816.49, 4VAC25-130-816.56, and 4VAC25-130-816.133 or 4VAC25-130-817.49, 4VAC25-130-817.56, and 4VAC25-130-817.133.

"Aquifer" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

"Auger mining" means a method of mining coal at a cliff or highwall by drilling or cutting holes into an exposed coal seam from the highwall and transporting the coal along the auger bit to the surface.

"Authorized officer" means any person authorized to take official action on behalf of a federal agency that has administrative jurisdiction over federal lands.

"Baseline pollution load" means the characterization of the pollution material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter, including seasonal variations and variations in response to precipitation events. The division will establish in each authorization the specific parameters it deems relevant for the baseline pollution load.

"Best professional judgment" means the highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the division under §§ 301 and 402 of the federal Water Pollution Control Act (33 USC §§ 1311 and 1342).

"Best technology" means measures and practices which are designed to abate or ameliorate to the maximum extent possible pollutional discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.

"Best technology currently available" means equipment, devices, systems, methods, or techniques which will:

(a) Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contribution of suspended solids in excess of requirements set by the applicable state or federal laws;

(b) Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, terms, methods, or techniques which are currently available anywhere as determined by the division even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with Parts 816 and 817 of this chapter. Within the constraints of the permanent program, the division shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter.

"Cemetery" means any area of land where human bodies are interred.

"Certification" when used in regards to construction certifications by qualified registered professional engineers, is not considered to be a warranty or guarantee.

"Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77, referred to and incorporated by reference in the definition of "anthracite."

"Coal exploration" means the field gathering of:

(a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or

(b) The gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of this chapter.

"Coal lease" means a federal coal lease or license issued by the Bureau of Land Management pursuant to the Mineral Leasing Act and the federal Acquired Lands Leasing Act of 1947 (30 USC § 351 et seq.).

"Coal mine waste" means coal processing waste and underground development waste.

"Coal mining operation" means, for the purposes of Part 705 of this chapter—Financial Interests of State Employees—the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur.

"Coal preparation" or "coal processing" means chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

"Coal preparation plant" means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including but not limited to the following: loading facilities; storage and stockpile facilities; sheds, shops, and other buildings; water-treatment and water storage facilities; settling basins and impoundments; and coal processing and other waste disposal areas.

"Coal processing waste" means earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

"Cognovit note" means an extraordinary note which authorizes an attorney to confess judgement against the person or persons signing it. It is written authority of a debtor and a direction by him for entry of a judgement against him if the obligation set forth in the note is not paid when due. Such judgement may be taken by any person holding the note, which cuts off every defense which makers of the note may otherwise have and it likewise cuts off all rights of appeal from any judgement taken on it. The note shall, at a minimum:

(a) Contain the date of execution.

(b) Be payable to the "Treasurer of Virginia."

(c) Be due and payable in the event of bond forfeiture of the permit.

(d) Be payable in a sum certain of money.

(e) Be signed by the makers.

"Collateral bond" means an indemnity agreement in a sum certain executed by the permittee and deposited with the division supported by one or more of the following:

(a) The deposit of cash in one or more federally insured accounts, payable only to the division upon demand;

(b) Negotiable bonds of the United States, the Commonwealth of Virginia, or a political subdivision thereof, endorsed to the order of, and placed in the possession of the division; the bond will only be acceptable if the issue is rated "A" or better by Moody's Investor Service, Inc., or Standard and Poor's, Inc.;

(c) Certificates of deposit issued by Virginia banks payable only to the division and placed in its possession. No security in default as to principal or interest shall be acceptable as collateral; or

(d) An irrevocable letter of credit of any bank organized or authorized to transact business in the United States, payable only to the department at sight prepared in accordance with the Uniform Customs and Practices for Documentary Credits (1993 revision) International Chamber of Commerce (Publication No. 500).

"Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

"Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

"Compaction" means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

"Complete and accurate application" means an application for permit approval or approval for coal exploration where required which the division determines to contain all information required under the Act and this chapter.

"Contamination" means, in reference to ground water or surface water supplies receiving ground water, any impairment of water quality which makes the water unsuitable for a specific use.

"Control" or "controller" when used in 4VAC25-130-773, 4VAC25-130-774, or 4VAC25-130-778 means:

(a) A permittee of a surface coal mining operation;

(b) An operator of a surface coal mining operation; or

(c) Any person who has the ability to determine the manner in which a surface coal mining operation is conducted.

"Cooperative agreement" means a cooperative agreement entered into in accordance with § 523(c) of the federal Act and 30 CFR Part 745.

"Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and ground water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(c) Any operation for which a permit application has been submitted to the division; and

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

"Department" means the Virginia Department of Mines, Minerals and Energy (DMME) of Virginia.

"Diminution" means, in reference to ground or surface water supplies receiving ground water, any impairment of water quantity which makes the water unsuitable for a specific use.

"Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

"Director" means the Director of the Department of Mines, Minerals, and Energy or his representative.

"Disturbed area" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance of performance required by Subchapter VJ is released.

"Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one area to another.

"Division" means the Division of Mined Land Reclamation Repurposing of the Department of Mines, Minerals, and Energy.

"Downslope" means the land surface between the projected outcrop of the lowest coal bed being mined along each highwall and a valley floor.

"Drinking, domestic or residential water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included, except to the extent the water supply is for direct human consumption or human sanitation or domestic use.

"Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

"Employee" means (a) any person employed by the department or other state or local government agency who performs any function or duty under the Act, and (b) consultants who perform any function or duty under the Act, if they perform decision-making functions for the department under the authority of the Act or regulations promulgated under the Act.

"Ephemeral stream" means a stream that flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and that has a channel bottom that is always above the local water table.

"Escrow account" means an account in a federally insured financial institution.

"Excess spoil" means spoil material disposed of in a location other than the mined-out area; provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain in accordance with 4VAC25-130-816.102(d) and 4VAC25-130-817.102(d) in nonsteep slope areas shall not be considered excess spoil.

"Existing structure" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction begins prior to the approval of the state program or a federal land program, whichever occurs first.

"Extraction of coal as an incidental part" means, for the purposes of Part 707 of this chapter, the extraction of coal which is necessary to enable the construction to be accomplished. For purposes of Part 707, only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and this chapter.

"Federal Act" means the federal Surface Mining Control and Reclamation Act of 1977, as amended (Pub. L. 95-87).

"Federal land management agency" means a federal agency having administrative jurisdiction over the surface of federal lands that are subject to this chapter.

"Federal lands" means any land, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands.

"Federal lands program" means a program established by the secretary pursuant to § 523 of the federal Act to regulate surface coal mining and reclamation operations on federal lands.

"Federal lease bond" means the bond or equivalent security required by 43 CFR Part 3400 to assure compliance with the terms and conditions of a federal coal lease.

"Federal lessee protection bond" means a bond payable to the United States or the state, whichever is applicable, for use and benefit of a permittee or lessee of the surface lands to secure payment of any damages to crops or tangible improvements on federal lands, pursuant to § 715 of the federal Act.

"Federal program" means a program established by the secretary pursuant to § 504 of the federal Act to regulate coal exploration and surface coal mining and reclamation operations on nonfederal and non-Indian lands within the state in accordance with the federal Act and 30 CFR Chapter VII.

"First water producing zone" means the first water zone encountered which can be monitored in a manner which indicates the effects of a surface mining operation on usable ground water.

"Fragile lands" means areas containing natural, ecologic, scientific or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, paleontological sites, National Natural Landmarks, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features and areas of recreational value due to high environmental quality.

"Fugitive dust" means that particulate matter which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed. Fugitive dust does not include particulate matter emitted from a duct or stack.

"Fund," as used in Subchapter VR, means the Abandoned Mine Reclamation Fund established pursuant to § 45.1-261 § 45.2-1032 of the Act.

"General area" means, with respect to hydrology, the topographic and ground water basin surrounding a permit area and adjacent areas to include one or more watersheds containing perennial streams or ground water zones which possess useable and/or managed zones or flows, to allow an assessment of the probable cumulative impacts on the hydrologic regime.

"Government-financed construction" means construction funded 50% or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50% may qualify if the construction is undertaken as an approved reclamation project under Title IV of the federal Act. Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments does not qualify as government-financed construction.

"Government financing agency" means any federal, state, regional, county, city or town unit of government, or a department, bureau, agency or office of a governmental unit or any combination of two or more governmental units or agencies, which, directly or through another unit of government, finances construction.

"Gravity discharge" means, with respect to underground coal mining activities, mine drainage that flows freely in an open channel downgradient. Mine drainage that occurs as a result of flooding a mine to the level of the discharge is not gravity discharge.

"Ground cover" means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of ground.

"Ground water" means subterranean water which exists within a totally saturated zone, stratum or group of strata.

"Growing season" means the period of year when climatic conditions are favorable for plant growth, common to a place or area. The period between April 15 and October 15 is the normal growing season.

"Half-shrub" means a perennial plant with a woody base whose annually produced stems die back each year.

"Head-of-hollow fill" means a fill structure consisting of any material, except organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow, measured at the steepest point, are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees. In head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill, draining into the fill area.

"Higher or better uses" means postmining land uses that have a higher value or benefit, either economic or noneconomic, to the landowner or the community than the premining land uses.

"Highwall" means the face of exposed overburden and coal in an open cut of a surface coal mining activity or for entry to underground mining activities.

"Highwall remnant" means that portion of highwall that remains after backfilling and grading of a remining permit area.

"Historically used for cropland" means (1) lands that have been used for cropland for any five years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations; (2) lands that the division determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or (3) lands that would likely have been used as cropland for any five out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

"Historic lands" means areas containing historic, cultural, or scientific resources. Examples of historic lands include archaeological sites, properties listed on or eligible for listing on the State or National Register of Historic Places, National Historic Landmarks, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending.

"Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

"Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transportation.

"Imminent danger to the health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirements of the Act in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement.

"Impounding structure" means a dam, embankment or other structure used to impound water, slurry, or other liquid or semi-liquid material.

"Impoundments" mean all water, sediment, slurry or other liquid or semi-liquid holding structures and depressions, either naturally formed or artificially built.

"Indemnity agreement" means an agreement between two persons in which one person agrees to pay the other person for a loss or damage. The persons involved can be individual people, or groups of people, or legal organizations, such as partnerships, corporations or government agencies, or any combination of these.

"Indirect financial interest" means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by the employee's spouse, minor child and other relatives, including in-laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

"In situ processes" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

"Intermittent stream" means:

(a) A stream or section of a stream that drains a watershed of at least one square mile, or

(b) A stream or section of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

"Irreparable damage to the environment" means any damage to the environment, in violation of the Act, or this chapter, that cannot be corrected by the permittee.

"Knowing" or "knowingly" means that a person who authorized, ordered, or carried out an act or omission knew or had reason to know that the act or omission would result in either a violation or failure to abate or correct a violation.

"Land use" means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal use occur and may include land used for support facilities that are an integral part of the use. Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the division.

(a) "Cropland." Land used for production of crops which can be grown for harvest alone or in a rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops.

(b) "Pastureland" or land occasionally cut for hay. Land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed.

(c) "Grazingland." Lands used for grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production.

(d) "Forestry." Land used or managed for long-term production of wood, wood fiber, or wood derived products.

(e) "Residential." Land used for single and/or multiple family housing, mobile home parks, or other residential lodgings.

(f) "Industrial/Commercial." Land used for:

(1) Extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities.

(2) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.

(g) "Recreation." Land used for public or private leisure-time activities, including developed recreation facilities such as parks, camps, amusement areas, as well as undeveloped areas for recreation such as hiking and canoeing.

(h) "Fish and wildlife habitat." Land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife.

(i) "Developed water resources." Land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

(j) "Undeveloped land or no current use or land management." Land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

"Lands eligible for remining" means those lands that would otherwise be eligible for expenditures under § 404 or under § 402(g)(4) of the federal Act.

"Leachate" means water percolating from a surface coal mining operation which contains dissolved and suspended matter.

"Leased federal coal" means coal leased by the United States pursuant to 43 CFR Part 3400, except mineral interests in coal on Indian lands.

"Lease terms, conditions and stipulations" means all of the standard provisions of a federal coal lease, including provisions relating to lease duration, fees, rentals, royalties, lease bond, production and recordkeeping requirements, and lessee rights of assignment, extension, renewal, termination and expiration, and site-specific requirements included in federal coal leases in addition to other terms and conditions which relate to protection of the environment and of human, natural and mineral resources.

"Material damage" in the context of 4VAC25-130-784.20 and 4VAC25-130-817.121 means:

(a) Any functional impairment of surface lands, features, structures, or facilities;

(b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

"Mineral Leasing Act" or "MLA" means the Mineral Leasing Act of 1920, as amended, 30 USC § 181 et seq.

"Mining plan" means the plan, for mining leased federal coal, required by the Mineral Leasing Act.

"Mining supervisor" means the Area Mining Supervisor, Conservation Division, U.S. Geological Survey, or District Mining Supervisor or other subordinate acting under their direction.

"Moist bulk density" means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105°C.

"MSHA" means the United States Mine Safety and Health Administration.

"Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, and provide micro-climatic conditions suitable for germination and growth.

"Natural hazard lands" means geographic areas in which natural conditions exist which pose or as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, and areas of unstable geology.

"Net worth" means total assets less total liabilities. Total liabilities include, but are not limited to, funds pledged or otherwise obligated to the Commonwealth of Virginia, or to any other person at any time during the permit term. Total liabilities also include, but are not limited to, contingent liabilities that might materially affect the Commonwealth's ability to collect the amount of bond required in the event of bond forfeiture.

"Noncommercial building" means any building other than an occupied residential dwelling that at the time subsidence occurs is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in this section. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

"Noxious plants" means living plants which are declared to be noxious weeds or noxious plants pursuant to the Virginia Noxious Weed Law, Chapter 17.2 8 (§ 3.1-296.11 § 3.2-800 et seq.) of Title 3.1 3.2 of the Code of Virginia.

"Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

"Occupied residential dwelling and structures related thereto" means, for purposes of 4VAC25-130-784.20 and 4VAC25-130-817.121, any building or other structures that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation. This term also includes any building, structure, or facility installed on, above or below, or a combination thereof, the land surface if that building structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to, garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems. Any structure used only for commercial agriculture, industrial, retail or other commercial purposes is excluded.

"Office" or "OSM" means the Office of Surface Mining Reclamation and Enforcement established under Title II of the federal Act.

"Operator" means any person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth or from coal refuse piles by mining within 12 consecutive calendar months in any one location.

"Other treatment facilities" means any facilities for chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and that are utilized:

(a) To prevent additional contribution of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(b) To comply with all applicable state and federal water quality laws and regulations.

"Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

"Own," "owner," or "ownership" as used in 4VAC25-130-773, 4VAC25-140-774, or 4VAC25-140-778 (except when used in the context of ownership of real property) means being a sole proprietor or owning of record in excess of 50% of the voting securities or other instruments of ownership of an entity.

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground-water discharge or surface runoff. The term does not include "intermittent stream" or "ephemeral stream."

"Performance bond" means a surety bond, collateral bond, or a combination thereof, by which a permittee assures faithful performance of all the requirements of the Act, this chapter, and the requirements of the permit and reclamation plan.

"Performing any function or duty under this Act" means decision or action, which if performed or not performed by an employee, affects the programs under the Act.

"Permanent diversion" means a diversion which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permanent impoundment" means an impoundment which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permit" means a permit to conduct surface coal mining and reclamation operations issued by the division pursuant to the Act and this chapter or by the secretary pursuant to a federal program. For the purposes of the federal lands program, permit means a permit issued by the division under a cooperative agreement or by the OSM where there is no cooperative agreement.

"Permit application package" means a proposal to conduct surface coal mining and reclamation operations on federal lands, including an application for a permit, permit revision or permit renewal, all the information required by the federal Act, 30 CFR Subchapter D, the Act and this chapter, any applicable cooperative agreement and all other applicable laws and regulations including, with respect to leased federal coal, the Mineral Leasing Act and its implementing regulations.

"Permit area" means the area of land indicated on the approved map submitted by the permittee with his application, required to be covered by the permittee's performance bond under Subchapter VJ and which shall include the area of land upon which the permittee proposes to conduct surface coal mining and reclamation operations under the permit. The permit area shall include all disturbed areas except that areas adequately bonded under another permit issued pursuant to this chapter may be excluded from the permit area.

"Permittee" means a person holding or required by the Act or this chapter to hold a permit to conduct coal exploration (more than 250 tons) or surface coal mining and reclamation operations issued (a) by the division, (b) by the director of the OSM pursuant to a federal lands program, or (c) by the OSM and the division, where a cooperative agreement pursuant to § 45.1-230 B of the Act has been executed.

"Person" means an individual, Indian tribe when conducting surface coal mining and reclamation operations on non-Indian lands, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agent, unit, or instrumentality of federal, state or local government including any publicly owned utility or publicly owned corporation of federal, state or local government.

"Person having an interest which is or may be adversely affected" or "person with a valid legal interest" shall include any person:

(a) Who uses any resources of economic, recreational, aesthetic, or environmental value that is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division; or

(b) Whose property is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division.

The term "adversely affected" is further defined as meaning perceptibly harmed. "Aesthetics" means the consideration of that which is widely regarded to be a visibly beautiful element of a community or area.

"Piezometer" means a vertical pipe that is established in material, which is closed at the bottom, perforated from the upper limits of the material to the lower limits of the material, and which permits static water level measurements and water sampling.

"Pollution abatement area" means the part of the permit area which is causing or contributing to the baseline pollution load, which shall include adjacent and nearby areas that must be affected to bring about significant improvement of the baseline pollution load, and which may include the immediate location of the discharges.

"Pool Bond fund" means the Coal Surface Mining Reclamation Fund established pursuant to § 45.1-270.1 § 45.2-1043 of the Act.

"Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. "Precipitation event" also includes that quantity of water coming from snow cover as snow melt in a limited period of time.

"Previously mined area" means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this chapter.

"Prime farmland" means those lands which are defined by the Secretary of Agriculture in 7 CFR Part 657 (Federal Register Vol. 4, No. 21) and which have historically been used for cropland.

"Principal shareholder" means any person who is the record or beneficial owner of 10% or more of any class of voting stock in a corporation.

"Professional geologist" means a person who is certified pursuant to Chapter 14 22 (§ 54.1-1400 § 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia.

"Prohibited financial interest" means any direct or indirect financial interest in any coal mining operation.

"Property to be mined" means both the surface property and mineral property within the permit area and the area covered by underground workings.

"Public building" means any structure that is owned or leased, and principally used, by a governmental agency for public business or meetings.

"Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

"Public park" means an area or portion of an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

"Public road" means a road (i) that has been designated as a public road pursuant to the laws of the jurisdiction in which it is located; (ii) that is maintained with public funds, and is constructed, in a manner similar to other public roads of the same classification within the jurisdiction; and (iii) for which there is substantial (more than incidental) public use.

"Publicly owned park" means a public park that is owned by a federal, state or local governmental entity.

"Qualified laboratory" means a designated public agency, private firm, institution, or analytical laboratory which can prepare the required determination of probable hydrologic consequences or statement of results of test borings or core samplings or other services as specified at 4VAC25-130-795.9 under the Small Operator Assistance Program (4VAC25-130-795.1 et seq.) and which meets the standards of 4VAC25-130-795.10.

"Reasonably available spoil" means spoil and suitable coal mine waste material generated by the remining operation or other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment.

"Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

"Reclamation" means those actions taken to restore mined land as required by this chapter to a postmining land use approved by the division.

"Recurrence interval" means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years.

"Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species diversity that are produced naturally or by crop production methods approved by the division. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

"Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semi-liquid material.

"Regulatory program" means the Virginia Coal Surface Mining Control and Reclamation program (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and rules and regulations approved by the secretary.

"Remining" means conducting surface coal mining and reclamation operations which affect previously mined areas.

"Renewable resource lands" means areas which contribute significantly to the long-range productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer recharge areas.

"Replacement of water supply" means, with respect to protected water supplies contaminated, diminished or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(a) Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

"Road" means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or surface coal mining and reclamation operations, including use by coal hauling vehicles to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

"Safety factor" means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

"Secretary" means the Secretary of the Interior or the secretary's representative.

"Sedimentation pond" means an impoundment used to remove solids or other pollutants from water in order to meet water quality standards or effluent limitations before the water leaves the permit area.

"Self-bond," as provided by Part 801 of this chapter, means:

(a) For an underground mining operation, a cognovit note in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant, and supported by a certification that the applicant participating in the Pool Bond Fund has a net worth, total assets minus total liabilities equivalent to $1 million. Such certification shall be by an independent certified public accountant in the form of an unqualified opinion.

(b) For a surface mining operation or associated facility, an indemnity agreement in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant.

"Significant forest cover" means an existing plant community consisting predominantly of trees and other woody vegetation.

"Significant, imminent environmental harm to land, air, or water resources" means:

(a) An environmental harm is an adverse impact on land, air, or water resources which resources include, but are not limited to, plants and animal life.

(b) An environmental harm is imminent, if a condition, practice, or violation exists which:

(1) Is causing such harm; or

(2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under § 45.1-245 B § 45.2-1020 of the Act.

(c) An environmental harm is significant if that harm is appreciable and not immediately reparable.

"Significant recreational, timber, economic, or other values incompatible with surface coal mining operations" means those values to be evaluated for their significance which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected areas. Those values to be evaluated for their importance include:

(a) Recreation, including hiking, boating, camping, skiing or other related outdoor activities;

(b) Timber management and silviculture;

(c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce;

(d) Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants or cultural interests.

"Siltation structure" means a sedimentation pond, a series of sedimentation ponds, or other treatment facility.

"Slope" means average inclination of a surface, measured from its horizontal, generally expressed as the ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g., 1v:5h). It may also be expressed as a percentage or in degrees.

"Soil horizons" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four master soil horizons are:

(a) "A horizon." The uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest;

(b) "E horizon." The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties;

(c) "B horizon." The layer that typically is immediately beneath the E horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A, E, or C horizons; and

(d) "C horizon." The deepest layer of the soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

"Soil survey" means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey as incorporated by reference in 4VAC25-130-785.17(c)(1).

"Spoil" means overburden that has been removed during surface coal mining operations.

"Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

"Steep slope" means any slope of more than 20 degrees or such lesser slope as may be designated by the division after consideration of soil, climate, and other characteristics of a region or the state.

"Substantial legal and financial commitments in a surface coal mining operation" means significant investments, prior to January 4, 1977, have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

"Substantially disturb" means, for purposes of coal exploration, to significantly impact land or water resources by blasting; by removal of vegetation, topsoil, or overburden; by construction of roads or other access routes; by placement of excavated earth or waste material on the natural land surface or by other such activities; or to remove more than 250 tons of coal.

"Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

"Surface coal mining and reclamation operations" means surface coal mining operations and all activities necessary or incidental to the reclamation of such operations. This term includes the term "surface coal mining operations."

"Surface coal mining operations" means:

(a) Activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of § 45.1-243 § 45.2-1018 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; and the cleaning, concentrating, or other processing or preparation of coal. Such activities also include the loading of coal for interstate commerce at or near the mine site. Provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16-2/3% of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to § 45.1-233 § 45.2-1008 of the Act; and, provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and

(b) The areas upon which the activities described in paragraph (a) of this definition occur or where such activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities.

"Surface coal mining operations which exist on the date of enactment" means all surface coal mining operations which were being conducted on August 3, 1977.

"Surface mining activities" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, by auger coal mining, or by recovery of coal from a deposit that is not in its original geologic location.

"Surface operations and impacts incident to an underground coal mine" means all activities involved in or related to underground coal mining which are either conducted on the surface of the land, produce changes in the land surface or disturb the surface, air or water resources of the area, including all activities listed in § 45.1-229 L § 45.2-1000 of the Act.

"Surety bond" means an indemnity agreement in a sum certain payable to the Commonwealth of Virginia, Director—Division of Mined Land Reclamation, Repurposing executed by the permittee as principal and which is supported by the performance guarantee of a corporation licensed to do business as a surety in Virginia.

"Suspended solids" or nonfilterable residue, expressed as milligrams per liter, means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR Part 136).

"Temporary diversion" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the division to remain after reclamation as part of the approved postmining land use.

"Temporary impoundment" means an impoundment used during surface coal mining and reclamation operations, but not approved by the division to remain as part of the approved postmining land use.

"Ton" means 2000 pounds avoirdupois (.90718 metric ton).

"Topsoil" means the A and E soil horizon layers of the four master soil horizons.

"Toxic-forming materials" means earth materials, or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

"Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair plant and animal life commonly present in the area that might be exposed to it.

"Transfer, assignment, or sale of permit rights" means a change of a permittee.

"Unanticipated event or condition," as used in 4VAC25-130-773.15, means an event or condition related to prior mining activity which arises from a surface coal mining and reclamation operation on lands eligible for remining that was not contemplated by the applicable permit.

"Underground development waste" means waste-rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of from underground workings in connection with underground mining activities.

"Underground mining activities" means a combination of:

(a) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of wastes, and areas on which materials incident to underground mining operations are placed; and

(b) Underground operations such as underground construction, operations, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting.

"Unwarranted failure to comply" means the failure of a permittee to prevent the occurrence of any violation of his permit or any requirement of the Act or this chapter due to indifference, lack of diligence, or lack of reasonable care, or failure to abate any violation of such permit, the Act, or this chapter due to indifference, lack of diligence, or lack of reasonable care.

"Usable ground water" or "ground water in use" means all ground water that is reasonably able to be used.

"Valid existing rights" means a set of circumstances under which a person may, subject to division approval, conduct surface coal mining operations on lands where § 45.1-252 D § 45.2-1028 of the Act and 4VAC25-130-761.11 would otherwise prohibit such operations. The possession of valid existing rights only confers an exception from the prohibitions of § 45.1-252 D § 45.2-1028 and 4VAC25-130-761.11. A person seeking to exercise valid existing rights must comply with all pertinent requirements of the Act and the regulations promulgated thereunder and would need to demonstrate:

(a) Except as provided in subdivision (c) of this definition, the legally binding conveyance, lease, deed, contract, or other document that vests the person or predecessor in interest with the right to conduct the type of surface coal mining operations intended. The right must exist at the time the land came under the protection of 4VAC25-130-761.11;

(b) Compliance with one of the following:

(1) That all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt to obtain all necessary permits and authorizations had been made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11.

(2) That the land needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt made to obtain such permits and authorizations occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. The person must demonstrate that prohibiting the expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 when the division approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the division may consider:

(i) The extent to which coal supply contracts or other legal and business commitments that occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 depend upon the use of the land for surface coal mining operations.

(ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon use of that land for surface coal mining operations.

(iii) The extent to which investments in the operation made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon the use of that land for surface coal mining operations.

(iv) Whether the land lies within the area identified on the life-of-mine map under 4VAC25-130-779.24 (c) that was submitted before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11;

(c) For haulroads, a person who claims valid existing rights to use or construct a road across the surface of lands protected by § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 must demonstrate that one or more of the following circumstances exist. The road:

(1) Existed when the land upon which it is located came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and the person has the legal right to use the road for surface coal mining operations;

(2) Was under a properly recorded right of way or easement for a road in that location at the time the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations; or

(3) Was used or contained in a valid permit that existed when the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11; and

(d) That an interpretation of the terms of the document relied upon to establish the valid existing rights shall be based either upon applicable Virginia statutory or case law concerning interpretation of documents conveying mineral rights or, where no applicable state law exists, upon the usage and custom at the time and place it came into existence.

"Valley fill" means a fill structure consisting of any material, other than organic material, that is placed in a valley where side slopes of the existing valley, measured at the steepest point, are greater than 20 degrees, or where the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees.

"Violation," when used in the context of the permit application information or permit eligibility requirements of §§ 45.1-235 45.2-1010 and 45.1-238 C 45.2-1013 of the Act and related regulations, means:

(a) A failure to comply with an applicable provision of a federal or state law or regulation pertaining to air or water environmental protection as evidenced by a written notification from a governmental entity to the responsible person; or

(b) A noncompliance for which the division has provided one or more of the following types of notice or OSM or a state regulatory authority has provided equivalent notice under corresponding provisions of a federal or state regulatory program:

(1) A notice of violation under 4VAC25-130-843.12;

(2) A cessation order under 4VAC25-130-843.11;

(3) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under 4VAC25-130-845 or 4VAC25-130-846;

(4) A bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR Part 870; or

(5) A notice of bond forfeiture under 4VAC25-130-800.50 when:

(i) One or more violations upon which the forfeiture was based have not been abated or corrected; or

(ii) The amount forfeited and collected is insufficient for full reclamation under 4VAC25-130-800.50 or 4VAC-25-130-801.19, the division orders reimbursement for additional reclamation costs and the person has not complied with the reimbursement order.

"Violation, failure, or refusal," for purposes of 4VAC25-130-846, means:

(a) A failure to comply with a condition of an issued permit or the regulations implementing those sections; or

(b) A failure or refusal to comply with any order issued under 4VAC25-130-843 or any order incorporated in a final decision issued by the director, except an order incorporated in a decision issued under § 45.1-246 § 45.2-1021 of the Act.

"Violation notice" means any written notification from a governmental entity of a violation of law or regulation, whether by letter, memorandum, legal or administrative pleading, or other written communication.

"Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

"Willful" or "willfully" means that a person who authorized, ordered, or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted:

(a) Intentionally, voluntarily, or consciously; and

(b) With intentional disregard or plain indifference to legal requirements.

4VAC25-130-700.11. Applicability.

(a) Except as provided in Paragraph (b) of this section, this chapter applies to all coal exploration and surface coal mining and reclamation operations, except--

(1) The extraction of coal by a landowner for his own non-commercial use from land owned or leased by him. Non-commercial use does not include the extraction of coal by one unit of an integrated company or other business or non-profit entity which uses the coal in its own manufacturing or power plants;

(2) The extraction of 250 tons of coal or less by a person conducting a surface coal mining and reclamation operation. A person who intends to remove more than 250 tons is not exempted;

(3) The extraction of coal as an incidental part of Federal, State or local government-financed highway or other construction in accordance with Part 707;

(4) The extraction of coal incidental to the extraction of other minerals where coal does not exceed 16-2/3 percent of the total tonnage of coal and other minerals removed for purposes of commercial use or sale in accordance with Part 702.

(b) The division may on its own initiative and shall, within a reasonable time of a request from any person who intends to conduct surface coal mining operations, make a written determination whether the operation is exempt under this section. The division shall give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the division shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption. If a written determination of exemption is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination, shall not be cited for violations which occurred prior to the date of the reversal.

(c)(1) The division may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, when: (i) The division determines in writing that under the initial program, all requirements imposed under Chapter 17 (§ 45.1-198 et seq.) of Title 45.1 of the Code of Virginia have been successfully completed; or (ii) The the division determines in writing that under the permanent program, all requirements imposed under Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia have been successfully completed or, where a performance bond was required, the division has made a final decision in accordance with Part 800 or 801 of this chapter to release the performance bond fully.

(2) Following a termination under Paragraph (d)(1) of this section, the division shall reassert jurisdiction under this chapter over a site if it is demonstrated that the bond release or written determination referred to in Paragraph (d)(1) of this section was based upon fraud, collusion, or misrepresentation of a material fact.

4VAC25-130-700.14. Availability of records.

(a) Records required by the Act to be made available to the public shall be retained at the division office in Big Stone Gap.

(b) Requests for other documents or records in the possession of the division should be made in accordance with the Virginia Freedom of Information Act, Chapter 21, Title 2.1, (§ 2.2-3700 et seq. of the Code of Virginia, (1950), as amended).

4VAC25-130-701.11. Applicability.

(a) Any person who conducts surface coal mining operations on non-Indian or non-Federal lands within the Commonwealth of Virginia shall have a permit issued pursuant to requirements of Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

(b) Any person who conducts surface coal mining operations on Federal lands located within the Commonwealth of Virginia shall have a permit issued pursuant to Part 740.

(c) The requirements of Subchapter VK shall be effective and shall apply to each surface coal mining and reclamation operation for which the surface coal mining operation is required to obtain a permit under the Act, on the earliest date upon which the Act and this chapter require a permit to be obtained, except as provided in Paragraph (d) of this section.

(d)(1) Each structure used in connection with or to facilitate a coal exploration or surface coal mining and reclamation operation shall comply with the performance standards and the design requirements of Subchapter VK, except that--

(i) An existing structure which meets the performance standards of Subchapter VK but does not meet the design requirements of Subchapter VK may be exempted from meeting those design requirements by the division. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-130-784.12 and after making the findings required in 4VAC25-130-773.15.

(ii) If the performance standard of Subchapter B of 30 CFR Chapter VII is at least as stringent as the comparable performance standard of Subchapter VK, an existing structure which meets the performance standards of Subchapter B of 30 CFR Chapter VII may be exempted by the division from meeting the design requirements of Subchapter VK. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-30-784.12 and after making the findings required in 4VAC25-130-773.15.

(iii) An existing structure which meets a performance standard of Subchapter B of 30 CFR Chapter VII which is less stringent than the comparable performance standards of Subchapter VK or which does not meet a performance standard of Subchapter VK, for which there was no equivalent performance standards in Subchapter B of 30 CFR Chapter VII, shall be modified or reconstructed to meet the performance and design standards of Subchapter VK pursuant to a compliance plan approved by the division only as part of the permit application as required in 4VAC25-130-780.12 or 4VAC25-130-784.12 and according to the findings required by 4VAC25-130-773.15.

(iv) An existing structure which does not meet the performance standards of Subchapter B of 30 CFR Chapter VII and which the applicant proposes to use in connection with or to facilitate the coal exploration or surface coal mining and reclamation operation shall be modified or reconstructed to meet the performance and design standards of Subchapter VK prior to issuance of the permit.

(2) The exemptions provided in Paragraphs (d)(1)(i) and (d)(1)(ii) of this section shall not apply to -

(i) The requirements for existing and new coal mine waste disposal facilities; and

(ii) The requirements to restore the approximate original contour of the land.

(e)(1) Any person conducting coal exploration on non-Federal and non-Indian lands shall either file a notice of intention to explore or obtain approval of the division, as required by Part 772.

(2) Coal exploration performance standards in Part 815 shall apply to coal exploration on non-Federal and non-Indian lands which substantially disturbs the natural land surface.

4VAC25-130-702.11. Application requirements and procedures.

(a)(1) Any person who plans to commence or continue coal extraction after the effective date of this Part, in reliance on the incidental mining exemption shall file a complete application for exemption with the division for each mining area.

(2) A person may not commence coal extraction based upon the exemption until the division approves such application, except as provided in Paragraph (e)(3) of this section.

(b) Existing operations. Any person who has commenced coal extraction at a mining area in reliance upon the incidental mining exemption prior to the effective date of the incidental mining provisions in this chapter may continue mining operations for 60 days after such effective date. Coal extraction may not continue after such 60-day period unless that person files an administratively complete application for exemption with the division. If an administratively complete application is filed within 60 days, the person may continue extracting coal in reliance on the exemption beyond the 60-day period until the division makes an administrative decision on such application.

(c) Additional information. The division shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.

(d) Public comment period. Following publication of the newspaper notice required by 4VAC25-130-702.12(g), the division shall provide a period of no less than 30 days during which time any person having an interest which is or may be adversely affected by a decision on the application may submit written comments or objections.

(e) Exemption determination.

(1) No later than 90 days after filing of an administratively complete application, the division shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this Part, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

(2) The determination of exemption shall be based upon information contained in the application and any other information available to the division at that time.

(3) If the division fails to provide an applicant with the determination as specified in Paragraph (e)(1) of the section, an applicant who has not begun may commence coal extraction pending a determination on the application unless the division issues an interim finding, together with reasons therefor, that the applicant may not begin coal extraction.

(f) Administrative review.

(1) Any adversely affected person may request administrative review of a determination under Paragraph (e) of this section within 30 days of the notification of such determination in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(2) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a determination under Paragraph (e) of this section.

4VAC25-130-702.17. Revocation and enforcement.

(a) The division shall conduct an annual compliance review of the mining area, utilizing the annual report submitted pursuant to 4VAC25-130-702.18, an on-site inspection and any other information available to the division.

(b) If the division has reason to believe that a specific mining area was not exempt under the provision of this Part at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the division shall notify the operator that the exemption may be revoked and the reason(s) therefore. The exemption will be revoked unless the operator demonstrates to the division within 30 days that the mining area in question should continue to be exempt.

(c)(1) If the division finds that an operator has not demonstrated that activities conducted in the mining area qualify for the exemption, the division shall revoke the exemption and immediately notify the operator and intervenors. If a decision is made not to revoke an exemption, the division shall immediately notify the operator and intervenors.

(2) Any adversely affected person may request administrative review of a decision whether to revoke an exemption within 30 days of the notification of such decision in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(3) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a decision whether to revoke an exemption.

(d)(1) An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of this chapter which occurred prior to the revocation of the exemption.

(2) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know such activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of this chapter which occur during the period of such activities.

(3) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of this chapter with regard to conditions, areas and activities existing at the time of revocation or denial.

4VAC25-130-705.24. Confidentiality and access to disclosure statements.

(a) The provisions of the Privacy Protection Act of 1976 Virginia Freedom of Information Act (Chapter 26 (§ 2.1-377 § 2.2-3700 et seq.) of Title 2.1 of the Code of Virginia) shall apply to statements and information obtained pursuant to these regulations.

(b) All statements of employment and financial interest which are filed pursuant to these regulations, and the information shown thereon, shall be maintained only for the purposes of determining whether there are any direct or indirect financial interests in violation of Section 45.1-231 § 45.2-1005 of the Act, and Section 517(g) of the Federal Act. No other use is authorized.

(c) Access to such statements and information shall be restricted to personnel of the Department and of the U.S. Department of the Interior, and State and Federal enforcement authorities (including the U.S. Justice Department) for the purposes for which the information was collected. Access among personnel of the Department shall be further restricted to only those persons specified by the Director as having regular access to the statements and information.

(d) All such statements and information shall be maintained separate and apart from personnel records and other records to which the public could have access.

(e) The filing and information system where such statements and information are stored shall be identified as restricted access and secured against unauthorized access. The Director shall designate a custodian for records maintained in the Division's Office in Big Stone Gap, and another custodian for records maintained in the Department's Offices in Richmond. The duties of these custodians shall be to maintain restricted access and security for their respective records.

(f) Whenever any employee ceases to occupy a listed position which requires the filing of a statement of employment and financial interest, all such statements then on file from such employee shall be returned to the employee and all information systems purged of the data provided by such statements upon request of the employee. In addition, the custodian of the records where such statements are maintained shall periodically update the records by purging them of statements and information pertaining to employees who no longer occupy listed positions.

4VAC25-130-740.15. Bonds on federal lands.

(a) Federal lease bonds.

(1) Each holder of a Federal coal lease that is covered by a Federal lease bond required under 43 CFR 3474 may apply to the authorized officer of the Federal agency that has administrative jurisdiction over the Federal lands for release of liability for that portion of the Federal lease bond that covers reclamation requirements.

(2) The authorized officer may release the liability for that portion of the Federal lease bond that covers reclamation requirements if:

(i) The lessee has secured a suitable performance bond covering the permit area under this Part;

(ii) There are no pending actions or unresolved claims against existing bonds; and

(iii) The authorized officer has received concurrence from the OSM and the Bureau of Land Management.

(b) Performance bonds. The performance bonds required for operations on Federal lands shall be made payable to the United States and the Commonwealth of Virginia: Director-Division of Mined Land Reclamation Repurposing.

(c) Federal lessee protection bonds.

(1) Where leased Federal coal is to be mined and the surface of the land is subject to a lease or permit issued by the United States for purposes other than surface coal mining, the applicant for a mining permit, if unable to obtain the written consent of the permittee or lessee of the surface to enter and commence surface coal mining operations, shall submit to the division with the application evidence of execution of a bond or undertaking which meets the requirements of this section. The Federal lessee protection bond is in addition to the performance bond required by Subchapter VJ. This section does not apply to permits or licenses for the use of the surface that do not convey to the permittee or licensee the right of transfer, sale or consent to other uses.

(2) The bond shall be payable to the United States for the use and benefit of the permittee or lessee of the surface lands involved.

(3) The bond shall secure payment to the surface estate for any damage which the surface coal mining and reclamation operation causes to the crops or tangible improvements of the permittee or lessee of the surface lands.

(4) The amount of the bond shall be determined either by the applicant and the Federal lessee or permittee, or if an agreement cannot be reached, as determined in an action brought against the person conducting surface coal mining and reclamation operations or upon the bond in a court of competent jurisdiction.

(d) Release of bonds.

(1) A Federal lease bond may be released by the OSM upon satisfactory compliance with all applicable requirements of 43 CFR 3480-3487 and 43 CFR 3400 and after the release is approved by the Bureau of Land Management.

(2) A Federal lessee protection bond shall be released by the OSM upon the written consent of the permittee or lessee.

(3) Where surface coal mining and reclamation operations are subject to an approved mining plan, a performance bond shall be released by the division after the release is approved by the OSM.

4VAC25-130-761.1. Scope.

This Part establishes the procedures and standards to be followed in determining whether a proposed surface coal mining and reclamation operation can be authorized in light of the prohibitions and limitations in Section 45.1-252 § 45.2-1028 of the Act for those types of operations on certain Federal, public and private lands in the Commonwealth.

4VAC25-130-761.3. Authority.

The Director is authorized by Section 45.1-252 § 45.2-1028 of the Act to prohibit or limit surface coal mining operations on or near certain private, Federal, and other public lands, subject to valid existing rights and except for those operations which existed on August 3, 1977.

4VAC25-130-761.12. 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 § 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.

4VAC25-130-761.16. Submission and processing of requests for valid existing rights determinations.

A. Basic framework for valid existing rights determinations. 30 CFR 761.16(a) identifies the agency responsible for making a valid existing rights determination and the definition that it must use based upon which subsection of 30 CFR 761.11 or 4VAC25-130-761.11 applies and whether the request includes federal lands.

B. A request for a valid existing rights determination must be submitted to the division if a person intends to conduct surface coal mining operations on the basis of valid existing rights under 4VAC25-130-761.11 or wishes to confirm the right to do so. The request may be submitted before the person prepares and submits an application for a permit or boundary revision for the land.

1. The person must provide a property rights demonstration under the definition of valid existing rights if the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in 4VAC25-130.700.5. For the land subject to the request, the demonstration must include:

a. A legal description of the land;

b. Complete documentation of the character and extent of the person's current interests in the surface and mineral estates of the land;

c. A complete chain of title for the surface and mineral estates of the land;

d. A description of the nature and effect of each titles instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

e. A description of the type and extent of surface coal mining operations that the person claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with Virginia property law;

f. Complete documentation of the nature and ownership, as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11, of all property rights for the surface and mineral estates;

g. Names and addresses of the current owners of the surface and mineral estates of the land;

h. If the coal interests have been severed from other property interests, documentation that the person has notified and provided reasonable opportunity for the owners of other property interests in the land to comment on the validity of the person's property rights claims; and

i. Any comments that the person receives in response to the notification provider under subdivision 1 h of this subsection.

2. If the request relies upon the good faith/all permits standard in subdivision (b)(1) of the valid existing rights definition in 4VAC25-130-700.5, the person must also submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land subject to the request that the person or predecessor in interest obtained, submitted, or made:

a. Approval and issuance dates and identification numbers for any permits, licenses, and authorizations obtained before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

b. Application dates and identification numbers for any permits, licenses, and authorizations submitted before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

c. An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

3. If the request relies upon the needed for and adjacent standard in subdivision (b)(2) of the valid existing rights definition in 4VAC25-130-700.5, the person must explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

4. If the request relies upon one of the standards for roads in subdivision (c) of the valid existing rights definition in 4VAC25-130-700.5, the person must submit satisfactory documentation that:

a. The road existed when the land upon which it is located came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and the person has a legal right to use the road for surface coal mining operations;

b. A properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and under the document creating the right of way or easement and under any subsequent conveyances, the person has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

c. A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

C. Initial review of request.

1. The division must conduct an initial review to determine whether the request includes all applicable components of the submission requirements of subsection B of this section. The review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

2. If the request does not include all applicable components of the submission requirements of subsection B of this section, the division must notify the person and establish a reasonable time for submission of the missing information. Should the person not provide the information requested by the division under this subdivision within the time specified or as subsequently extended, the division must issue a determination under subdivision E 4 of this section that the person has not demonstrated valid existing rights.

3. When the request includes all applicable components of the submission requirements of subsection B of this section, the division must implement the notice and comment requirements of subsection D of this section.

D. 1. When the division determines that the request satisfies the completeness requirements of subsection C of this section, it shall publish a notice in a newspaper of general circulation in the county in which the land is located inviting public comment on the merits of the request. OSM will publish a similar notice in the Federal Register if the request involves federal lands within an area listed in 4VAC25-130-761.11 (a) or (b). The public notice must include:

a. The location of the land to which the request pertains.

b. A description of the type of surface coal mining operations planned.

c. A reference to and brief description of the applicable standard or standards under the definition of valid existing rights in 4VAC25-130-700.5.

(1) If the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the property rights that the person claims and the basis for the claim.

(2) If the request relies upon the road standard set forth in subdivision (c) (1) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that the road existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that the person has a legal right to use that road for surface coal mining operations.

(3) If the request relies upon the standard in subdivision (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

d. If the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, a statement that the division will not make a decision on the merits of the request if, by the close of the comment period under the notice or the notice required by subdivision 3 of this subsection, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the valid existing rights claim.

e. A description of the procedures the division will follow in processing the request.

f. The closing date of the public comment period, which shall be a minimum of 30 days after the notice's publication date.

g. A statement that interested persons may request, in writing, from the division a 30-day extension of the public comment period. The extension request shall set forth with reasonable specificity the reasons the commenter needs the additional time to submit comments.

h. Include the division office's address where a copy of the valid existing rights request is available for public inspection and where comments and requests for extension of the comment period should be sent.

2. The division must promptly provide a copy of the notice required under subdivision 1 of this subsection to:

a. All reasonably locatable owners of surface and mineral estates in the land included in the valid existing rights request.

b. The owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and when applicable, the agencies with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of 4VAC25-130-761.11.

3. The notice required under subdivision 2 of this subsection must provide a 30-day comment period and specify that an additional 30 days may be granted for good cause shown at the discretion of the division or agency responsible for the valid existing rights determination.

E.1. The division or agency responsible for making the valid existing rights determination must review the materials submitted under subsection B of this section, comments received under subsection D of this section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the division must notify the person in writing explaining the inadequacy of the record and requesting submittal within a specified reasonable time of any additional information that the division deems necessary to remedy the inadequacy.

2. Once the record is complete and adequate, the division must make a determination as to whether valid existing rights have been demonstrated. The division's decision must explain how the person has or has not satisfied all applicable elements of the valid existing rights definition under 4VAC25-130-700.5, contain findings of fact and conclusions, and specify the reasons for the conclusions.

3. When the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (2) of the valid existing rights definition in 4VAC25-130-700.5, the division:

a. Must issue a determination that the person has not demonstrated valid existing rights if the property rights claim is the subject of pending litigation in a court or administrative body with the jurisdiction over the property rights in question. The division will make the determination without prejudice, meaning that the person may refile the request once the property rights dispute is finally adjudicated. This applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions D 1 and 3 of this section.

b. If the record indicates disagreement of the accuracy of the person's property rights claim, but the disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, must evaluate the merits of the information in the record and determine whether the person has demonstrated that the requisite property rights exist under subdivision (a), (c) (1) or (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, as appropriate. The division must then proceed with the decision process under subdivision 2 of this subsection.

4. The division must issue a determination that the person has not demonstrated valid existing rights if the person does not submit information that the division requests under subdivision C 2 of this section or subdivision 1 of this subsection within the time specified or as subsequently extended. The division will make the determination without prejudice, meaning the person may refile a revised request at any time.

5. After making a valid existing rights determination, the division shall:

a. Provide a copy of the determination with an explanation of appeal rights and procedures to the person seeking the determination, owner or owners of the land to which the determination applies, owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and, when applicable, 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.

b. Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) will publish the determination, together with an explanation of appeal rights and procedures in the Federal Register if the request includes federal lands within an area listed in 4VAC25-130-761.11 (a) or (b).

F. The division's valid existing rights determination shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.

G. The division must make a copy of the valid existing rights determination request available to the public as provided by 4VAC25-130-773.13 (d) and the records associated with that request, and any subsequent determination under subsection E of this section, available to the public in accordance with 4VAC25-130-840.14.

4VAC25-130-762.14. Exploration on land designated as unsuitable for surface coal mining operations.

Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to Section 45.1-252 § 45.2-1028 of the Act and this Subchapter does not prohibit coal exploration operations in the area, if conducted in accordance with the Act, this chapter, and other applicable requirements. Exploration operations on any lands designated unsuitable for surface coal mining operations must be approved by the division under Part 772 to ensure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining operations.

4VAC25-130-764.13. Petitions.

(a) Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Director to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. For the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he meets an "injury in fact" test by describing the injury to his specific affected interests and demonstrate how he is among the injured.

(b) Designation. A complete petition for designation shall include:

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) A statement of whether the petitioner is an individual, an association, sole proprietorship, partnership, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, and the resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size, and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area;

(4) An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and

(7) Allegations of fact and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for surface coal mining operations, pursuant to specific criteria of Subsections of Section 45.1-252 § 45.2-1028 of the Act, assuming that contemporary mining practices required under the Act would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned areas.

(8) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

(c) Termination. A complete petition for termination shall include--

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) Statement of whether the petitioner is an individual, an association, sole proprietorship, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, directors, and resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area to which the termination petition applies;

(4) An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) Allegations of fact covering all lands for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under the Act would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

(i) Nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in 4VAC25-130-762.11(b);

(ii) Reclamation now being technologically and economically feasible if the designation was based on the criteria found in 4VAC25-130-762.11(a); or

(iii) Resources or conditions not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on criteria found in 4VAC25-130-762.11(b).

(7) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

4VAC25-130-764.19. Decision.

(a) In reaching his decision, the Director shall use:

(1) The information contained in the data base and inventory system as required by 4VAC25-130-764.21;

(2) Information provided by other governmental agencies;

(3) The detailed statement when it is prepared under 4VAC25-130-764.17(e); and

(4) Any other relevant information submitted during the comment period.

(b) A final written decision shall be issued by the Director, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Director shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding.

(c) The decision of the Director with respect to a petition, or the failure of the Director to act within the time limits set forth in this section, shall be subject to judicial review by a court of competent jurisdiction in accordance with Section 45.1-251 § 45.2-1027 of the Act and 4VAC25-130-775.13. All relevant portions of the data base, inventory system, and public comments received during the public comment period set by the Director shall be considered and included in the record of the administrative proceeding.

4VAC25-130-773.13. Public participation in permit processing.

(a) Filing and public notice.

(1) Upon submission of an administratively complete application, an applicant for a permit, significant revision of a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, shall place an advertisement in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least once a week for four consecutive weeks. A copy of the advertisement as it will appear in the newspaper shall be submitted to the division. The advertisement shall contain, at a minimum, the following:

(i) The name and business address of the applicant.

(ii) A map or description which clearly shows or describes the precise location and boundaries of the proposed permit area and is sufficient to enable local residents to readily identify the proposed permit area. It may include towns, bodies of water, local landmarks, and any other information which would identify the location. The name of the U.S. Geological Survey 7.5 minute quadrangle map(s) which contains the area shown or described shall be stated; and if a map is used, it shall indicate the north direction.

(iii) The location where a copy of the application is available for public inspection.

(iv) The name and address of the division office where written comments, objections, or requests for informal conferences on the application may be submitted under Paragraphs (b) and (c) of this section.

(v) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, except where public notice and hearing have previously been provided for this particular part of the road in accordance with 4VAC25-130-761.12(d); a concise statement describing the public road, the particular part to be relocated or closed, and the approximate timing and duration of the relocation or closing.

(vi) If the application includes a request for an experimental practice under 4VAC25-130-785.13, a statement indicating that an experimental practice is requested and identifying the regulatory provisions for which a variance is requested.

(2) The applicant shall make an application for a permit, significant revision under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, available for the public to inspect and copy by filing a full copy of the application with the Clerk of the Circuit Court of the city or county where the mining is proposed to occur, or an accessible public office approved by the division. This copy of the application need not include confidential information exempt from disclosure under Paragraph (d) of this section. The application required by this Paragraph shall be filed by the first date of newspaper advertisement of the application. The applicant shall file any changes to the application with the public office at the same time the change is submitted to the division.

(3) Upon receipt of an administratively complete application for a permit, a significant revision to a permit under 4VAC25-130-774.13, or a renewal of a permit under 4VAC25-130-774.15, the division shall issue written notification indicating the applicant's intention to mine the described tract of land, the application number or other identifier, the location where the copy of the application may be inspected, and the location where comments on the application may be submitted. The notification shall be sent to--

(i) Local governmental agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to planning agencies, sewage and water treatment authorities, water companies; and

(ii) All Federal or State governmental agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and which are part of the permit coordinating process developed in accordance with 4VAC25-130-773.12; or those agencies with an interest in the proposed operation, including the U.S. Department of Agriculture, Natural Resources Conservation Service district office, the local U.S. Army Corps of Engineers district engineer, the National Park Service, State and Federal fish and wildlife agencies, and the historic preservation officer.

(b) Comments and objections on permit application.

(1) Within 30 days after notification, written comments or objections on an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by public entities notified under Paragraph (a)(3) of this section with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.

(2) Written objections to an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by any person having an interest which is or may be adversely affected by the decision on the application, or by an officer or head of any Federal, State, or local government agency or authority, within 30 days after the last publication of the newspaper notice required by Paragraph (a) of this section.

(3) The division shall upon receipt of such written comments or objections--

(i) Transmit a copy of the comments or objections to the applicant; and

(ii) File a copy for public inspection at the same public office where the application is filed.

(c) Informal conferences.

(1) Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the division hold an informal conference on the application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15. The request shall--

(i) Briefly summarize the issues to be raised by the requestor at the conference;

(ii) State whether the requestor desires to have the conference conducted in the locality of the proposed operation; and

(iii) Be filed with the division no later than 30 days after the last publication of the newspaper advertisement required under Paragraph (a) of this section.

(2) Except as provided in Paragraph (c)(3) of this section, if an informal conference is requested in accordance with Paragraph (c)(1) of this section, the division shall hold an informal conference within a reasonable time following the receipt of the request. The informal conference shall be conducted as follows:

(i) If requested under Paragraph (c)(1)(ii) of this section, it shall be held in the locality of the proposed surface coal mining and reclamation operation.

(ii) The date, time, and location of the informal conference shall be sent to the applicant and other parties to the conference and advertised by the division in a newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least 2 weeks before the scheduled conference.

(iii) If requested in writing by a conference requestor at a reasonable time before the conference, the division may arrange with the applicant to grant parties to the conference access to the proposed permit area and, to the extent that the applicant has the right to grant access to it, to the adjacent area prior to the date of the conference for the purpose of gathering information relevant to the conference.

(iv) The conference shall be conducted by a representative of the division, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond or other equivalent guarantee pursuant to Subchapter VJ.

(3) If all parties requesting the informal conference withdraw their request before the conference is held, the informal conference may be canceled.

(4) Informal conferences held in accordance with this section may be used by the division as the public hearing required under 4VAC25-130-761.12(d) on proposed relocation or closing of public roads.

(d) Public availability of permit applications.

(1) General availability. Except as provided in Paragraphs (d)(2) or (d)(3) of this section, all applications for permits; revisions; renewals; and transfers, assignments or sales of permit rights on file with the Division shall be available, at reasonable times, for public inspection and copying.

(2) Limited availability. Except as provided in Paragraph (d)(3)(i) of this section, information pertaining to coal seams, test borings, core samplings, or soil samples in an application shall be made available to any person with an interest which is or may be adversely affected. Information subject to this Paragraph shall be made available to the public when such information is required to be on public file pursuant to State law.

(3) Confidentiality. The division shall provide procedures, including notice and opportunity to be heard for persons both seeking and opposing disclosure, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to--

(i) Information that pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of such coal which are potentially toxic in the environment;

(ii) Information required under Section 45.1-236 § 45.2-1011 of the Act that is not on public file pursuant to State law and that the applicant has requested in writing to be held confidential;

(iii) Information on the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 721, 16 USC § 470).

4VAC25-130-773.15. Review of permit applications.

(a) General.

(1) The division shall review the application for a permit, revision, or renewal; written comments and objections submitted; information from the AVS; and records of any informal conference or hearing held on the application and issue a written decision, within a reasonable time, either granting, requiring modification of, or denying the application. If an informal conference is held under 4VAC25-130-773.13(c), the decision shall be made within 60 days of the close of the conference.

(2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.

(3) The division shall review the information submitted under 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's or operator's permit histories, business structure, and ownership and control relationships.

(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.

(b) Review of violations.

(1) Based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to § 518 of the federal Act and § 45.1-246 § 45.2-1021 of the Code of Virginia, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the division shall not issue the permit if any surface coal mining and reclamation operation directly owned or controlled by either the applicant or operator is currently in violation of the federal Act, this chapter, or any other law, rule or regulation referred to in this subdivision; or if a surface coal mining and reclamation operation indirectly owned or controlled by the applicant or operator has an unabated or uncorrected violation and the applicant's or operator's control was established or the violation was cited after November 2, 1988. In the absence of a failure-to-abate cessation order, the division may presume that a notice of violation issued pursuant to 4VAC25-130-843.12 or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or the AVS, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the division shall require the applicant or operator, before the issuance of the permit, to either

(i) Submit to the division proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

(ii) Establish for the division that the applicant, or operator, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority under 4VAC25-130-775.13 affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under subdivision (b)(1)(i) of this section.

(2) Any permit that is issued on the basis of proof submitted under subdivision (b)(1)(i) of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in subdivision (b)(1)(ii) of this section, shall be conditionally issued.

(3) If the division makes a finding that the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 4VAC25-130-775.11.

(4) (i) Subsequent to October 24, 1992, the prohibitions of subsection (b) of this section regarding the issuance of a new permit shall not apply to any violation that:

(A) Occurs after that date;

(B) Is unabated; and

(C) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit held by the person making application for the new permit.

(ii) For permits issued under 4VAC25-130-785.25 an event or condition shall be presumed to be unanticipated for the purposes of this subdivision if it:

(A) Arose after permit issuance;

(B) Was related to prior mining; and

(C) Was not identified in the permit.

(c) Written findings for permit application approval. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the division finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:

(1) The application is complete and accurate and the applicant has complied with all requirements of the Act and this chapter.

(2) The applicant has demonstrated that reclamation as required by the Act and this chapter can be accomplished under the reclamation plan contained in the permit application.

(3) The proposed permit area is:

(i) Not within an area under study or administrative proceedings under a petition, filed pursuant to Part 764 of this chapter and 30 CFR Part 769, to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he has made substantial legal and financial commitments in relation to the operation covered by the permit application; or

(ii) Not within an area designated as unsuitable for mining pursuant to Parts 762 and 764 of this chapter, or subject to the prohibitions or limitations of 4VAC25-130-761.11 and 4VAC25-130-761.12.

(4) For mining operations where the private mineral property to be mined has been severed from the private surface property, the applicant has submitted to the division the documentation required under 4VAC25-130-778.15(b).

(5) The division has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

(6) The applicant has demonstrated that any existing structure will comply with 4VAC25-130-701.11(d) and 4VAC25-130-773.16, and the applicable performance standards of the initial regulatory program or Subchapter VK.

(7) The applicant has paid all reclamation fees, civil penalty assessments, Pool Bond Fund fees, and anniversary fees, from previous and existing operations as required by this chapter.

(8) The applicant has satisfied the applicable requirements of Part 785 of this chapter.

(9) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural postmining land use, in accordance with the requirements of 4VAC25-130-816.111(d) or 4VAC25-130-817.111(d).

(10) The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 USC § 1531 et seq.).

(11) The division has taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the division has determined that no additional protection measures are necessary.

(12) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of 4VAC25-130-816.106 or 4VAC25-130-817.106, the site of the operation is a previously mined area as defined in 4VAC25-130-700.5.

(13) The applicant or the permittee specified in the application, has not owned or controlled a surface mining and reclamation operation for which the permit has been revoked and/or the bond forfeited pursuant to the Code of Virginia or any federal law, rule or regulation, or any law, rule or regulation enacted pursuant to federal or state law pertaining to air or water environmental protection and surface coal mining activities in any other state unless reinstated. Applicable Virginia reinstatement requirements may be found in 4VAC25-130-800.52.

(14) For permits to be issued under 4VAC25-130-785.25 the permit application must contain:

(i) Lands eligible for remining;

(ii) An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site; and

(iii) Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of this chapter can be accomplished.

(d) Performance bond submittal. If the division decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Subchapter VJ.

(e) Final compliance review. After an application is approved, but before the permit is issued, the division shall reconsider its decision to approve the application, based on the compliance review required by subdivision (b)(1) of this section in light of any new information submitted under 4VAC25-130-778.13 (j) or 4VAC25-130-778.14 (d).

4VAC25-130-774.12. Post-permit issuance requirements.

A. For purposes of future permit eligibility determinations and enforcement actions, the division will utilize the AVS to retrieve and enter appropriate data regarding ownership, control, and violation information. The division shall enter into the AVS:

Information	Within 30 days after
(1) Permit records	the permit is issued or subsequent changes made
(2) Unabated or uncorrected violations	the abatement or correction period for a violation expires
(3) Unpaid final civil penalties, charges, taxes, or fees	the required due payment date
(4) Changes in violation status	abatement, correction or termination of a violation or a final decision from an administrative or judicial review proceeding

B. In the event the permittee is issued enforcement action under 4VAC25-130-843.11 and fails to timely comply with the order's remedial measures, the division shall instruct the permittee to provide or update all the information required by 4VAC25-130-778.13. However, the permittee would not be required to submit this information if a court of competent jurisdiction has granted a stay of the cessation order and the stay remains in effect.

C. The permittee shall notify the division within 60 days of any addition, departure, or change in position of any person identified under 4VAC25-130-778.13. The permittee shall provide the date of such addition, departure, or change of such person.

D. Should the division discover that the permittee or a person listed in an ownership or control relationship with the permittee owns or controls an operation with an unabated or uncorrected violation, it will determine whether enforcement action is appropriate under 4VAC25-130-843 and 4VAC25-130-846 or other applicable provisions. The division may issue a preliminary finding of permit ineligibility under § 45.1-238 (c) § 45.2-1013 of the Act if it finds that the person had control relationships and violations that would have made the person ineligible for a permit under 4VAC25-130-773.15. The finding shall be in accordance with 4VAC25-130-773.20 (c) (3).

E. If a determination of permit ineligibility is rendered by the division, the person would have 30 days from service of the written finding to submit any information that would tend to demonstrate the person's lack of ownership or control of the surface coal mining operation. The division would issue a final determination regarding the permit eligibility within 30 days of receiving any information from the person or from the expiration date that the person could submit the information under this subsection. A person aggrieved by the division's eligibility finding would have the right to request review under 4VAC25-130-775.

4VAC25-130-775.11. Administrative review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900, 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-775.13. Judicial review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-780.18. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Section 45.1-242 § 45.2-1017 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-780.18 through 4VAC25-130-780.37.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross-sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-816.102 through 4VAC25-130-816.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-816.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-816.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosporous, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, and field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-816.111 through 4VAC25-130-816.116, including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-816.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-816.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-816.89 and 4VAC25-130-816.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-816.13 through 4VAC25-130-816.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-816.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.13. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Sections 45.1-242 and 45.1-243 §§ 45.2-1017 and 45.2-1018 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-784.13 through 4VAC25-130-784.29.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of the reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ, with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-817.102 through 4VAC25-130-817.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-817.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-817.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosphorus, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-817.111 through 4VAC25-130-817.116 including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-817.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-817.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-817.89 and 4VAC25-130-817.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-817.13 through 4VAC25-130-817.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-817.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.20. Subsidence control plan.

(a) Presubsidence survey. Each application must include:

(1) A map of the permit and adjacent areas at a scale of 1:12,000, or larger if determined necessary by the division, showing the location and type of structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence, and showing the location and type of drinking, domestic, and residential water supplies that could be contaminated, diminished, or interrupted by subsidence.

(2) A narrative indicating whether subsidence, if it occurred, could cause material damage to or diminish the value or reasonably foreseeable use of such structures or renewable resource lands or could contaminate, diminish, or interrupt drinking, domestic, or residential water supplies.

(3) A survey of the quantity and quality of all drinking, domestic and residential water supplies within the permit area and adjacent area that could be contaminated, diminished or interrupted by subsidence. If the applicant cannot make this survey because the owner will not allow access to the site, the applicant will notify the owner in writing of the effect that denial of access will have pursuant to § 45.1-258 D § 45.2-1030 of the Code of Virginia, as amended. The applicant must pay for any technical assessment or engineering evaluation used to determine the quantity and quality of drinking, domestic, or residential water supplies. The applicant must provide copies of the survey and any technical assessment or engineering evaluation to the property owner and the division.

(b) Subsidence control plan. If the survey conducted under subsection (a) of this section shows that no structures, or drinking, domestic, or residential water supplies, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of such structures or lands, and no contamination, diminution or interruption of such water supplies would occur as a result of mine subsidence, and if the division agrees with this conclusion, no further information need be provided under this section. If the survey shows that structures, renewable resource lands, or water supplies exist and that subsidence could cause material damage or diminution in value or reasonably foreseeable use, or contamination, diminution or interruption of protected water supplies, or if the division determines that damage, diminution, in value or foreseeable use, or contamination, diminution, or interruption could occur, the application must include a subsidence control plan that contains the following information:

(1) A description of the method of coal removal, such as longwall mining, room-and-pillar removal or hydraulic mining including the size, sequence and timing of the development of underground workings;

(2) A map of the underground workings that describes the location and extent of the areas in which planned subsidence mining methods will be used and that identifies all areas where the measures described in subdivisions (b) (4), (b) (5), and (b) (7) of this section will be taken to prevent or minimize subsidence and subsidence related damage; and, when applicable, to correct subsidence related material damage;

(3) A description of the physical conditions, such as depth of cover, seam thickness and lithology of overlaying strata, that affects the likelihood or extent of subsidence and subsidence related damage;

(4) A description of the monitoring, if any, needed to determine the commencement and degree of subsidence so that, when appropriate, other measures can be taken to prevent, reduce, or correct material damage in accordance with 4VAC25-130-817.121 (c).

(5) Except for those areas where planned subsidence is projected to be used, a detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence related damage, such as, but not limited to:

(i) Backstowing or backfilling of voids;

(ii) Leaving support pillars of coal;

(iii) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place; and

(iv) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.

(6) A description of the anticipated effects of planned subsidence, if any.

(7) For those areas where planned subsidence is projected to be used, a description of methods to be employed to minimize damage from planned subsidence to noncommercial buildings and occupied residential dwellings and structures related thereto; or the written consent of the owner of the structure or facility that minimization measures not be taken; or, unless the anticipated damage would constitute a threat to health or safety, a demonstration that the costs of minimizing damage exceed the anticipated costs or repair.

(8) A description of the measures to be taken in accordance with 4VAC25-130-817.41 (j) and 4VAC25-130-817.121 (c) to replace adversely affected protected water supplies or to mitigate or remedy any subsidence related material damage to the land and protected structures.

(9) Other information specified by the division as necessary to demonstrate that the operation will be conducted in accordance with 4VAC25-130-817.121.

4VAC25-130-789.1. Petition for award of costs and expenses under Section 45.1-249E § 45.2-1025 of the Act.

(a) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the Act which results in--

(1) A final order being issued by a Hearing Officer, or

(2) A final order being issued by the Director or division.

(b) The petition for an award of costs and expenses including attorneys' fees must be filed with the Hearing Officer who issued the final order, or if the final order was issued by the Director or division, with the Director or division, within 30 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(c) A petition, filed under this section, shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition--

(1) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of such costs and expenses; and

(3) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services. The person or agency to whom the petition is filed may consult with the division's legal counsel regarding claimed attorneys' fees.

(d) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

(e) Appropriate costs and expenses including attorneys' fees may be awarded--

(1) To any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Hearing Officer or Director or division determines that the person made a substantial contribution to the full and fair determination of the issues;

(2) To a permittee or permit applicant from any person where the permittee or permit applicant demonstrates that the person initiated an administrative proceeding under the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee or permit applicant.

(f) An award under these sections may include--

(1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under the Act; and

(2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

(g) Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under the Act may appeal such award to the division within 30 days, unless the Director or division has made the initial decision concerning such an award. Awards by the Director or division are final for the purposes of judicial review.

(h) For the purposes of this section, "person" shall include the Commonwealth, its agents, officers, or employees, and "permit applicant" shall include applicants for permit revisions, renewals, and transfer, assignment or sale of permit rights.

4VAC25-130-790.1. Purpose.

Section 45.1-246.1 45.2-1022 of the Act authorizes the commencement of civil actions by persons having an interest which is or may be adversely affected, in order to compel compliance with provisions of the Act. The purpose of this Part is to prescribe procedures governing the giving of notices required by Subsections (B) and (C) of section 45.1-246.1 § 45.2-1022 as a prerequisite to the commencement of such actions.

4VAC25-130-790.11. Service of notice.

(a) Notice to the Director. Service of notice given to the Director of an alleged violation or of an alleged failure of the Director to per form perform any act or duty under the Act which is not discretionary with the Director shall be accomplished by registered or certified mail addressed to the Director, Department of Mines, Minerals, and Energy, 202 North Ninth Street 1100 Bank Street, 8th Floor, Richmond, Virginia 23219. A copy of such notice shall be mailed to the Director, Division of Mined Land Reclamation Repurposing, P.O. Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(b) Notice to the Secretary of the Interior. Service of notice given to the Secretary of the Interior shall be accomplished by registered or certified mail addressed to the United States Secretary of the Interior, Office of the Secretary, Main Interior Building, Washington, D. C. 20240.

(c) Notice to alleged violator. Service of notice given to an alleged violator of the provisions of the Act or of any regulation in this chapter or of any permit or order issued pursuant thereto, shall be accomplished by registered or certified mail addressed to, or personal service upon, the permittee or managing agent of the coal surface mining operation alleged to be in violation. Where the alleged violator is a corporation, a copy of the notice will be sent by certified or registered mail to the registered agent of such corporation. Where the alleged violator is a government instrumentality or agency, the notice shall be sent by certified or registered mail to the head of such government instrumentality or agency.

(d) Notice served in accordance with the provisions of this Part shall be deemed given on the postmark date, if served by mail, or on the date of receipt, if personally served.

4VAC25-130-795.1. Scope and purpose.

This Part comprises the Small Operator Assistance Program (SOAP) and establishes the procedures for providing assistance to eligible operators by the division. It is an elective means for the division to satisfy the requirements of § 45.1-235 C § 45.2-1010 of the Act. The purpose of the program is to provide for eligible operators a determination of probable hydrologic consequences and a statement of results of test borings or core samplings which are required components of the permit application under Subchapter VG.

4VAC25-130-800.16. General terms and conditions of bond.

(a) The performance bond shall be in an amount determined by the division as provided in 4VAC25-130-800.14 or Part 801.

(b) The performance bond shall be payable to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing.

(c) The performance bond shall be conditioned upon faithful performance of all the requirements of the Act, this chapter, and the approved permit, including completion of the reclamation plan.

(d) The duration of the bond shall be for the time period provided in 4VAC25-130-800.13.

(e)(1) The bond shall provide a mechanism for a bank or surety company to give prompt notice to the division and the permittee of any action filed alleging the insolvency or bankruptcy of the surety company, the bank, or the permittee, or alleging any violations which would result in suspension or revocation of the surety or bank charter or license to do business.

(2) Upon the incapacity of a bank or surety company by reason of bankruptcy, insolvency, or suspension or revocation of a charter or license, the permittee shall be deemed to be without bond coverage and shall promptly notify the division. The division, upon notification received through procedures of Paragraph (e)(1) of this section or from the permittee, shall, in writing, notify the permittee who is without bond coverage and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and shall comply with the provisions of 4VAC25-130-816.132 or 4VAC25-130-817.132 and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations shall not resume until the division has determined that an acceptable bond has been posted.

4VAC25-130-800.21. Collateral bonds.

(a) Collateral bonds, except for letters of credit, shall be subject to the following conditions: The division shall—

(1) Keep custody of collateral deposited by the applicant until authorized for release or replacement as provided in this Subchapter.

(2) Value collateral at its current market value, not at face value.

(3) Require that certificates of deposit be made payable to or assigned to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing, both in writing and upon the records of the bank issuing the certificates. The division shall require the banks issuing these certificates to waive all rights of setoff or liens against those certificates and that such certificates be automatically renewable.

(4) Not accept an individual certificate of deposit in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(5) Require the applicant to deposit the certificates of deposit in a sufficient amount to assure that the division will be able to liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond required by this Subchapter.

(6) Require the applicant to designate, with the bond submitted, the person to whom—

(i) The collateral will be endorsed and returned upon release or replacement as provided in this Subchapter; and

(ii) Any interest or dividends paid on the collateral shall be paid.

(b) Cash accounts shall be subject to the following conditions:

(1) The division may authorize the permittee to supplement the bond through the establishment of a cash account in one or more federally- insured or equivalently protected accounts made payable upon demand to the division. The total bond including the cash account shall not be less than the amount required under terms of performance bonds including any adjustments, less amounts released in accordance with 4VAC25-130-800.40 or 4VAC25-130-801.18.

(2) Any interest paid on a cash account shall be paid to the permittee.

(3) Certificates of deposit may be substituted for a cash account with the approval of the division.

(4) The division shall not accept an individual cash account in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(c) Letters of credit shall be subject to the following conditions:

(1) The letter may be issued only by a bank organized or authorized to do business in the United States and must conform to the Uniform Customs and Practice for Documentary Credits (1993 Revision) International Chamber of Commerce (Publication No. 500);

(2) Letters of credit shall be irrevocable during their terms. A letter of credit used as security in areas requiring continuous bond coverage shall be forfeited and shall be collected by the division if not replaced by other suitable bond or letter of credit at least 30 days before its expiration date; and

(3) The letter of credit shall be payable to the department at sight, in part or in full, upon receipt from the division of a notice of forfeiture issued in accordance with 4VAC25-130-800.50.

(d) Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the division at the time collateral is offered.

4VAC25-130-800.40. Requirements to release performance bonds.

(a) Bond release application.

(1) The permittee may file an application with the division for the release of all or part of a performance bond. Applications may be filed only at times or during seasons authorized by the division in order to properly evaluate the completed reclamation operations. The times or seasons appropriate for the evaluation of certain types of reclamation shall be identified in the mining and reclamation plan required in Subchapter VG.

(2) Within 30 days after an application for bond release has been filed with the division, the permittee shall submit proof of publication of the advertisement placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. The advertisement shall be considered part of any bond release application and shall contain the applicant's name, the permit number, notification of the precise location of the land affected, the number of acres, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, a description of the results achieved as they relate to the permittee's approved reclamation plan, and the name and address of the division to which written comments, objections, or requests for public hearings and informal conferences on the specific bond release may be submitted pursuant to 4VAC25-130-800.40(f) and (h). In addition, as part of any bond release application, the permittee shall submit copies of letters which he has sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond.

(3) The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Act, the regulatory program, and the approved reclamation plan. Such certification shall be submitted for each application or phase of bond release.

(b) Inspection by the division.

(1) Upon receipt of the bond release application, the division shall, within 30 days, or as soon thereafter as weather conditions permit, conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other factors, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of future occurrence of such pollution, and the estimated cost of abating such pollution. The surface owner, agent, or lessee shall be given notice of such inspection and may participate with the division in making the bond release inspection. The division may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in the bond release, for the purpose of gathering information relevant to the proceeding.

(2) Within 60 days from the filing of the bond release application, if no public hearing is held pursuant to paragraph (f) of this section, or, within 30 days after a public hearing has been held pursuant to paragraph (f) of this section, the division shall notify in writing the permittee, the surety or other persons with an interest in the bond collateral who have requested notification under 4VAC25-130-800.21(c), and the persons who either filed objections in writing or objectors who were a party to the hearing proceedings, if any, of its decision to release or not to release all or part of the performance bond.

(c) The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation or a phase of the reclamation covered by the bond or portion thereof has been accomplished in accordance with the following schedules for reclamation of Phases I, II and III:

(1) At the completion of Phase I, after the permittee completes the backfilling, regrading (which may include the replacement of topsoil) and drainage control of a bonded area in accordance with the approved reclamation plan, 60% of the bond or collateral for the applicable area.

(2) At the completion of Phase II, after revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, an additional amount of bond. When determining the amount of bond to be released after successful revegetation has been established, the division shall retain that amount of bond for the revegetated area which would be sufficient to cover the cost of reestablishing revegetation if completed by a third party and for the period specified for permittee responsibility in § 45.1-241 § 45.2-1016 of the Act for reestablishing revegetation. No part of the bond or deposit shall be released under this paragraph so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by § 45.1-242 § 45.2-1017 of the Act and by Subchapter VK or until soil productivity for prime farmlands has returned to the equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to § 45.1-238(D) § 45.2-1013 of the Act and Part 823. Where a silt dam is to be retained as a permanent impoundment pursuant to Subchapter VK, the Phase II portion of the bond may be released under this paragraph so long as provisions for sound future maintenance by the permittee or the landowner have been made with the division.

(3) At the completion of Phase III, after the permittee has successfully completed all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for permittee responsibility in 4VAC25-130-816.116 or 4VAC25-130-817.116. However, no bond shall be fully released under provisions of this section until reclamation requirements of the Act and the permit are fully met.

(d) If the division disapproves the application for release of the bond or portion thereof, the division shall notify the permittee, the surety, and any person with an interest in collateral as provided for in 4VAC25-130-800.21(c), in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing an opportunity for a public hearing.

(e) When any application for total or partial bond release is filed with the division, the division shall notify the town, city or other municipality nearest the operation and the county in which the surface coal mining operation is located by certified mail at least 30 days prior to the release of all or a portion of the bond.

(f) Any person with a valid legal interest which might be adversely affected by release of the bond, or the responsible officer or head of any federal, state, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release from bond with the division within 30 days after the last publication of the notice required by 4VAC25-130-800.40(a)(2). If written objections are filed and a hearing is requested, the division shall inform all the interested parties of the time and place of the hearing, and shall hold a public hearing within 30 days after receipt of the request for the hearing. The date, time and location of the public hearing shall be advertised by the division in a newspaper of general circulation in the locality for two consecutive weeks. The public hearing shall be held in the locality of the surface coal mining operation from which bond release is sought, at the location of the division office, or at the State Capital, at the option of the objector. The decision of the Hearing Officer shall be made within 30 days from the close of the hearing.

(g) For the purpose of the hearing under paragraph (f) of this section, the division shall have the authority to administer oaths, subpoena witnesses or written or printed material, compel the attendance of witnesses or the production of materials, and take evidence including, but not limited to, inspection of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing shall be made, and a transcript shall be made available on the motion of any party or by order of the division.

(h) Without prejudice to the right of an objector or the applicant, the division may hold an informal conference as provided in § 45.1-239 § 45.2-1014 of the Act to resolve such written objections. The division shall make a record of the informal conference unless waived by all parties, which shall be accessible to all parties. The division shall also furnish all parties of the informal conference with a written finding of the division based on the informal conference, and the reasons for said finding.

4VAC25-130-800.51. Administrative review of performance bond forfeiture.

(a) The permittee or surety, if applicable, may request, in writing, a hearing on the division's determination to forfeit the performance bond within 30 days of receipt of the written determination from the division.

(b) A request for hearing shall not operate as a stay of the bond forfeiture decision. Unless the division decides to withhold forfeiture as provided by 4VAC25-130-800.50 (a) (2), it shall take immediate steps to collect the necessary performance bond amounts so that it, or its contractor, may complete the reclamation plan and any other regulatory requirements in the most expeditious manner possible, pending administrative and/or judicial review.

(c)(1) The division shall commence the hearing within 30 days of the hearing request. The hearing shall be conducted in accordance with § 2.2-4020 of the Code of Virginia by a Hearings Officer appointed by the director.

(2) The burden of proof at such hearing shall be on the party seeking to reverse the decision of the division.

(3) For the purpose of such hearing, the hearings officer may administer oaths and affirmations, subpoena witnesses, written or printed materials, compel attendance of witnesses or production of those materials, compel discovery, and take evidence, including but not limited to site inspections of the land affected.

(4) The hearings officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party who requests a copy of the record.

(5) Ex parte contacts between representatives of the parties to the hearing and the hearings officer shall be prohibited.

(6) Within 30 days after the close of the record, the division shall issue and furnish the permittee, surety (if applicable) and each person who participated in the hearing with the written findings of fact, conclusion of law, and order of the hearings officer with respect to the appeal. The decision of the hearings officer shall be final as of the date of issuance, subject to the review and reconsideration by the director or his designee, provided in subsection (d) of this section.

(d) Within 14 days after the issuance of the hearings officer's decision under subdivision (c) (6) of this section, the permittee, surety (if applicable), or any person who participated in the hearing and has an interest which is or may be adversely affected by the decision, may appeal to the director or his designee for review of the record and reconsideration of the hearings officer's decision. The director or his designee may also on his own motion, with notice to the parties, review the record and reconsider the hearings officer's decision within the same time period. No further evidence will be allowed in connection with such review and reconsideration, but the director or his designee may hear further arguments and may, after considering the record, remand the case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearings officer's decision and issue a final decision.

(e) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-800.52. Bond forfeiture reinstatement procedures.

(a) Any person who owns or controls or has owned or controlled any operation on which the bond has been forfeited or the permit revoked pursuant to this chapter or pursuant to Chapters 15 [repealed], 17 (§ 45.1-198 et seq.) or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia and who has not previously been reinstated by the director may petition the director for reinstatement. Reinstatement, if granted, shall be under such terms and conditions as set forth by the director or his designee. The director or his designee in determining the terms and conditions shall consider the particular facts and circumstances existing in each individual case. Reinstatement shall not be available to applicants for reinstatement where the division finds that the applicant controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, in accordance with 4VAC25-130-773.15(b)(3). As a minimum, the applicant for reinstatement shall satisfy the following requirements:

(1) Abatement of any outstanding violations existing on each site on which the bond has been forfeited or the permit revoked;

(2) Payment of any outstanding civil penalties (both state and federal), Reclamation fund taxes, and any outstanding fees, including Federal Abandoned Mine Land Reclamation taxes;

(3) Reclaim each site on which the bond was forfeited according to the applicable law, regulations and standards governing the site at the time of bond forfeiture;

(4) Payment to the director of any money expended by the Commonwealth in excess of the forfeited bond amount to accomplish the reclamation of the sites; and

(5) Pay to the director a reinstatement fee of $5,000 assessed by the director on each site forfeited. These fees shall be used by the director to accomplish reclamation on other forfeited or abandoned surface coal mining operations.

(b) Reinstatement by the director shall be a prerequisite to the filing by the person (applicant for reinstatement) of any new permit application or renewal under this chapter or Chapters 15 [repealed], 17 (§ 45.1-198 et seq.), or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, but shall not affect the person's need to comply with all other requirements of said statutes, regulations or both promulgated thereunder.

4VAC25-130-801.2. Scope.

The regulations of this Part establish the procedures and requirements for an alternative bonding system through which the division will implement and administer the Coal Surface Mining Reclamation Fund (Pool Bond Fund) as established under Article 5 (§ 45.1-270.1 § 45.2-1043 et seq.) of Chapter 19 10 of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-801.11. Participation in the pool bond fund.

(a) Participation in the Pool Bond Fund shall be at the option of any applicant for a permit under the Act and the regulations promulgated thereunder who can demonstrate to the division's satisfaction at least a consecutive three-year history of compliance under the Act or any other comparable State or Federal Act.

(b) All participants in the Pool Bond Fund shall:

(1) Pay all entrance fees to the Pool Bond Fund as required by 4VAC25-130-801.12(a); and

(2) Comply with the applicable parts of section 45.1-241 § 45.2-1016 of the Code of Virginia.

(c) Commencement of participation in the Pool Bond Fund shall constitute an irrevocable commitment by the permittee to participate therein as to the applicable permit and for the duration of the coal surface mining operations covered thereunder.

(d) All fees and taxes are nonrefundable.

(e) The division shall, as provided by section 45.1-270.5(B) § 45.2-1048 of the Code of Virginia, utilize those monies from the interest accrued to the fund which are required to properly administer the Pool Bond Fund. These monies shall be used to support one position for administration of the Pool Bond Fund; however, if it is apparent that such position is insufficient to ensure proper administration of the Pool Bond Fund, the division may upon proof of need, and upon concurrence with the Pool Bond Fund Advisory Board obtain additional assistance.

4VAC25-130-801.17. Bond release application.

The permittee participating in the Pool Bond Fund, or any person authorized to act upon his behalf, may file an application with the division for the Phase I, II or III release of the bond furnished in accordance with 4VAC25-130-801.12 (b) for the permit area or any applicable increment thereof. The bond release application, the procedural requirements and the released percentages shall be consistent with the release criteria of 4VAC25-130-800.40. However, in no event shall the total bond of the permit be less than the minimum amounts established pursuant to §§ 45.1-241 45.2-1016 and 45.1-270.3 B 45.2-1045 of the Virginia Coal Surface Mining Control and Reclamation Act prior to completion of Phase III reclamation of the entire permit area.

4VAC25-130-801.18. Criteria for release of bond.

(a) The division shall release bond furnished in accordance with §§ 45.1-241 45.2-1016 and 45.1-270.3 45.2-1043 of the Virginia Coal Surface Mining Control and Reclamation Act through the standards specified at 4VAC25-130-800.40 upon receipt of an application for Phase I, II or III release.

(b) The division shall terminate jurisdiction for the permit area, or any increment thereof upon approval of the Phase III bond release for that area.

(c) In the event a forfeiture occurs, the division may, after utilizing the available bond monies, utilize the Fund as necessary to complete reclamation liabilities for the permit area.

4VAC25-130-816.76. Disposal of excess spoil; incidental reclamation.

(a) The division, where environmental benefits will occur, may approve placement of spoil not needed to restore the approximate original contour of the land and reclaim land within the permit area in a manner consistent with the Act and this chapter on:

(1) Another area under a permit issued pursuant to the Act, or

(2) On abandoned mine lands under a contract for reclamation according to the AML Guidelines and approved by the Division of Mined Land Reclamation Repurposing.

4VAC25-130-840.11. Inspections by the division.

(a) The division shall conduct an average of at least one partial inspection per month of each active surface coal mining and reclamation operation under its jurisdiction, and shall conduct such partial inspections of each inactive surface coal mining and reclamation operation under its jurisdiction as are necessary to ensure effective enforcement of the Act and this chapter. A partial inspection is an on-site or aerial review of a permittee's compliance with some of the permit conditions and requirements imposed under the Act and this chapter.

(b) The division shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection is an on-site review of a permittee's compliance with all permit conditions and requirements imposed under the Act and this chapter, within the entire area disturbed or affected by the surface coal mining and reclamation operations.

(c) The division shall conduct such inspections of coal explorations as are necessary to ensure compliance with the Act and this chapter.

(d) (1) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected.

(2) Any potential violation observed during an aerial inspection shall be investigated on site within three days; provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation order under § 45.1-245 § 45.2-1020 of the Act shall be investigated on site immediately, and provided further, that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraphs (a) and (b) of this section.

(e) The inspections required under paragraphs (a), (b), (c) and (d) of this section shall:

(1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, weekends, or holidays;

(2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary on-site meetings; and

(3) Include the prompt filing of inspection reports adequate to enforce the requirements of the Act and this chapter.

(f) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which:

(1) The division has secured from the permittee the written notice provided for under 4VAC25-130-816.131(b) or 4VAC25-130-817.131(b); or

(2) Reclamation has been completed to the level established in 4VAC25-130-800.40 as Phase II.

(g) Abandoned site means a surface coal mining and reclamation operation for which the division has found in writing that:

(1) All surface and underground coal mining and reclamation activities at the site have ceased;

(2) The division has issued at least one notice of violation or the interim program equivalent, and either:

(i) Is unable to serve the notice despite diligent efforts to do so; or

(ii) The notice was served and has progressed to a failure-to-abate cessation order or the interim program equivalent;

(3) The division:

(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and

(ii) Is taking action pursuant to §§ 45.1-245 C, 45.1-245 E, 45.1-246 E, or § 45.1-246 F § 45.2-1020 or 45.2-1021 of the Act to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(4) Where the site is, or was, permitted or bonded:

(i) The permit has either expired or been revoked, or permit revocation proceedings have been initiated and are being pursued diligently; and

(ii) The division has initiated and is diligently pursuing forfeiture of, or has forfeited, the any available performance bond.

(h) In lieu of the inspection frequency established in paragraphs (a) and (b) of this section, the division shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

(1) In selecting an alternate inspection frequency authorized under the paragraph above, the division shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (h)(2) of this section. Following the inspection and public notice, the division shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:

(i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (g) of this section and thereby qualifies for a reduction in inspection frequency;

(ii) Whether, and to what extent, there exists on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present and functioning;

(v) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools and other public or commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

(vii) Based on a review of the complete and partial inspection report record for the site during at least two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

(2) The public notice and opportunity to comment required under paragraph (h)(1) of this section shall be provided as follows:

(i) The division shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned mine site providing the public with a 30-day period in which to submit written comments.

(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

4VAC25-130-840.14. Availability of records.

(a) The division shall make available to the OSM, upon request, copies of all documents relating to applications for and approvals of existing, new, or revised coal exploration approvals or surface coal mining and reclamation operation permits and all documents relating to inspection and enforcement actions.

(b) Copies of all records, reports, inspection materials, or information obtained by the division shall be made immediately and conveniently available to the public in the area of mining until at least five years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond, except-

(1) As otherwise provided by state law; and

(2) For information not required to be made available under 4VAC25-130-772.15 and 4VAC25-130-773.13(d) or subdivison (d) of this section.

(c) The division shall ensure compliance with subdivison (b) of this section by either:

(1) Making copies of all records, reports, inspection materials, and other subject information available for public inspection at a federal, state, or local government office in the county where the mining is occurring or proposed to occur; or,

(2) At the division's option in accordance with the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia), providing copies of subject information promptly by mail at the request of any resident of the area where the mining is occurring or is proposed to occur, provided, that the division shall maintain for public inspection, at a federal, state, or local government office in the county where the mining is occurring or proposed to occur, a description of the information available for mailing and the procedure for obtaining such information. A list of government offices where information may be inspected can be obtained on request by contacting the division's Big Stone Gap office.

(d) In order to protect preparation for hearings and enforcement proceedings, the OSM and the division may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other such materials.

4VAC25-130-840.16. Compliance conference.

(a) A permittee may request an on-site compliance conference with an authorized representative of the Director to review the compliance status of any condition or practice proposed at any coal exploration or surface coal mining and reclamation operation. Any such conference shall not constitute an inspection within the meaning of Section 45.1-244 § 45.2-1019 of the Act and 4VAC25-130-840.11.

(b) The division may accept or refuse any request to conduct a compliance conference under Paragraph (a).

(c) The authorized representative at any compliance conference shall review such proposed conditions and practices in order to advise whether any such condition or practice may become a violation of any requirement of the Act, this chapter, or any applicable permit or exploration approval.

(d) Neither the holding of a compliance conference under this section nor any opinion given by the authorized representative at such a conference shall affect:

(1) Any rights or obligations of the division or of the permittee with respect to any inspection, notice of violation or cessation order, whether prior or subsequent to such compliance conference; or

(2) The validity of any notice of violation or cessation order issued with respect to any condition or practice reviewed at the compliance conference.

4VAC25-130-842.12. Citizens' requests for inspections.

(a) A person may request an inspection under 4VAC25-130-842.11(a), by furnishing to an authorized representative of the Director a signed, written statement (or an oral report followed by a signed, written statement) giving the authorized representative reason to believe that a violation, condition or practice referred to in 4VAC25-130-842.11(a) exists and setting forth a phone number and address where the person can be contacted.

(b) The identity of any person supplying information to the division relating to a possible violation or imminent danger or harm shall remain confidential with the division, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required under the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia).

(c) If an inspection is conducted as a result of information provided to the division by a person as described in Paragraph (a) of this section, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative of the Director during the inspection. It shall be the responsibility of the person to provide any or all safety equipment needed to accompany the division's inspector during the mine site inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he supplied information, but only if he is in the presence of and is under the control, direction, and supervision of the authorized representative while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

(d) Within 10 days of the inspection or, if there is no inspection, within 15 days of receipt of the person's written statement, the division shall send the person the following:

(1) If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection, or an explanation of why no enforcement action was taken;

(2) If no inspection was conducted, an explanation of the reason why; and

(3) An explanation of the person's right, if any, to informal review of the action or inaction of the division under 4VAC25-130-842.15.

(e) The division shall give copies of all materials in Paragraphs (d)(1) and (d)(2) of this section within the time limits specified in those Paragraphs to the person alleged to be in violation, except that the name of the person supplying information shall be removed unless disclosure of the person's identity is permitted under Paragraph (b) of this section.

4VAC25-130-842.15. Review of decision not to inspect or enforce.

(a) Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation operation may ask the division to review informally an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection under 4VAC25-130-842.12. The request for review shall be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review.

(b) The division shall conduct the review and inform the person, in writing, of the results of the review within 30 days of receipt of the request. The person alleged to be in violation shall also be given a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality has been waived or disclosure is required under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

(c) Informal review under this section shall not affect any right to formal review under § 45.1-249 § 45.2-1025 of the Act or to a citizen's suit under § 45.1-246.1 § 45.2-1022 of the Act.

(d) Any person who requested a review of a decision not to inspect or enforce under this section and who is or may be adversely affected by any determination made under subsection (b) of this section may request review of that determination by filing within 30 days of the division's determination an application for formal review and request for hearing under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All requests for hearing or appeals for review and reconsideration made under this section shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-843.11. Cessation orders.

(a)(1) An authorized representative of the Director shall immediately order a cessation of a coal exploration or a surface coal mining and reclamation operation or of the relevant portion thereof, if the representative finds, on the basis of any inspection, any condition or practice, or any violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter which:

(i) Creates an imminent danger to the health or safety of the public; or

(ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(2) Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, unless such operations:

(i) Are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations; or

(ii) Were conducted lawfully without a permit under this chapter because no permit under this chapter has been required for such operations by the division.

(3) If the cessation ordered under Paragraph (a)(1) of this section will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the Director shall impose affirmative obligations on the permittee to abate the imminent danger or significant environmental harm. The order shall specify the time by which abatement shall be accomplished.

(b)(1) When a notice of violation has been issued under 4VAC25-130-843.12(a) and the permittee fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative, the authorized representative of the Director shall immediately order a cessation of coal exploration or surface coal mining and reclamation operations, or of the portion relevant to the violation.

(2) A cessation order issued under this Paragraph (b) shall require the permittee to take all steps the authorized representative of the Director deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.

(c) A cessation order issued under Paragraphs (a) or (b) of this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the condition, practice or violation; (2) the remedial action or affirmative obligation required, if any, including interim steps, if appropriate; (3) the time established for abatement, including a schedule for meeting any interim steps, if appropriate; and (4) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation resulting in the issuance of the cessation order has been abated or until vacated, modified or terminated in writing by an authorized representative of the Director, or until the order expires pursuant to Section 45.1-245(D) § 45.2-1020 of the Act and 4VAC25-130-843.15.

(d) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(e) An authorized representative of the Director may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by the permittee's lack of diligence.

(f) An authorized representative of the Director shall terminate a cessation order by written notice to the permittee when the representative determines that all conditions, practices or violations listed in the order have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 of this chapter for those violations.

(g) Within 60 days after issuing a cessation order, the division shall notify in writing any person who has been identified under 4VAC25-130-773.17(h) and 4VAC25-130-778.13(c) and (d) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

4VAC25-130-843.12. Notices of violation.

(a) An authorized representative of the director shall issue a notice of violation if, on the basis of an inspection pursuant to § 45.1-244 § 45.2-1019 of the Act, the representative finds a violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter, which does not create an imminent danger or harm for which a cessation order must be issued under 4VAC25-130-843.11.

(b) A notice of violation issued under this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity:

(1) The nature of the violation;

(2) The remedial action required, which may include interim steps;

(3) A reasonable time for abatement, which may include time for accomplishment of interim steps; and

(4) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies.

(c) An authorized representative of the director may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by the permittee's lack of diligence. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in subsection (f) of this section. An extended abatement date pursuant to this section shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

(d)(1) If the permittee fails to meet the time set for abatement, the authorized representative shall issue a cessation order under 4VAC25-130-843.11(b).

(2) If the permittee fails to meet the time set for accomplishment of any interim step the authorized representative may issue a cessation order under 4VAC25-130-843.11 (b).

(e) An authorized representative of the director shall terminate a notice of violation by written notice to the permittee when the representative determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 for those violations.

(f) Circumstances which may qualify a coal exploration or a surface coal mining operation for an abatement period of more than 90 days are:

(1) Where the permittee of an on-going permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(2) Where there is a valid judicial or administrative order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which the permittee has no other effective legal remedy;

(3) Where the permittee cannot abate within 90 days due to a labor strike;

(4) Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

(5) Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977.

(g) Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(h) If any of the conditions in subsection (f) of this section exists, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the director and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of 4VAC25-130-843.12 (c) and (f). In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his concurrence or disapproval in the file.

(i) No extension granted under subsection (h) of this section may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of subsection (h) of this section.

(j) Any determination made under subsection (h) of this section shall be subject to formal review pursuant to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-130-843.13. Suspension or revocation of permits; pattern of violations.

(a)(1) The director shall issue a show cause order to a permittee requiring justification as to why his permit and right to mine under the Act should not be suspended or revoked, if the director determines that a pattern of violations of any requirements of the Act, this chapter, or any permit condition required by the Act exists or has existed, and that the violations were caused by the permittee's willful or unwarranted failure to comply with those requirements or conditions, or if the permittee failed to pay the final civil penalty assessment as required by 4VAC25-130-845.20. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

(2) The director may determine that a pattern of violations exists or has existed based upon two or more inspections of the permit area within any 12-month period, after considering the circumstances, including:

(i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, this chapter, or the permit;

(ii) The number of violations, cited on more than one occasion, of different requirements of the Act, this chapter, or the permit; and

(iii) The extent to which the violations were isolated departures from lawful conduct.

(3) The director shall promptly review the history of violations of any permittee who has been cited for violations of the same or related requirements of the Act, this chapter, or the permit during three or more inspections of the permit area within any 12-month period. If, after such review, the director determines that a pattern of violations exists or has existed, he shall issue a show cause order as provided in subdivision (a) (1) of this section.

(4)(i) In determining the number of violations within any 12-month period, the director shall consider only violations issued as a result of an inspection carried out pursuant to 4VAC25-130-840.11, 4VAC25-130-842.11 and 4VAC25-130-842.12.

(ii) The director may not consider violations issued as a result of inspections other than those mentioned in subdivision (a) (4) (i) of this section in determining whether to exercise his discretion under subdivision (a) (2) of this section, except as evidence of the "willful" or "unwarranted" nature of the permittee's failure to comply.

(5) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the division shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue a show cause order as appropriate pursuant to 4VAC25-130-845.15(b)(2).

(b) The permittee shall have 15 days from receipt of the show cause order to file an answer and request a formal public hearing in writing. The director shall give 30 days written notice of the date, time and place of the hearing to the permittee, and any intervenor. The public hearing shall be conducted in accordance with § 2.2-4020 of the Virginia Administrative Process Act. The director shall publish the notice, if practicable, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations, and shall post it at the division's Big Stone Gap office.

(c) Within 30 days after the hearing, the hearing officer shall issue a written decision as to whether a pattern of violations exists, and, if appropriate, an order. The decision and order shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (e) of this section. If the decision and order revoke or suspend the permit and the permittee's right to mine under the Act, the permittee shall immediately cease surface coal mining operations on the permit area and shall:

(1) If the permit and right to mine under the Act are revoked, complete reclamation within the time specified in the order; or

(2) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

(d) Within 14 days after the issuance of a decision or order, the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision may appeal to the director, or his designee (who shall not be the same person who issued the show cause order) for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments, and may also after considering the record, remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(f) Any person who owns or controls or has owned or controlled any operations on which the permit has been revoked pursuant to this section may apply for reinstatement pursuant to 4VAC25-130-800.52.

4VAC25-130-843.15. Informal public hearing.

(a) A notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing is held or if the notice or order is terminated prior to the hearing. Expiration of a notice or order shall not affect the division's right to assess civil penalties for the violations as set forth in part 845. For purposes of this section, mining includes (1) extracting coal from the earth or coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a mine site.

(b) A person issued a notice of violation or cessation order pursuant to this part may request, in writing within 15 days from service of the notice or order, an informal public hearing to review the issuance of the notice or order. The written request must be submitted to the division's Big Stone Gap Office.

(c) The division shall conduct the informal hearing within 30 days from receipt of the hearing request pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The division shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to that notice or order.

(d) The division shall also post notice of the hearing at its Big Stone Gap office and, where practicable, publish it in a newspaper of general circulation in the area of the mine.

(e) An informal public hearing shall be conducted by a representative of the division, who may accept oral or written arguments and any other relevant information from any person attending.

(f) Within five days after the close of the informal public hearing, the division shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to-

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to the notice or order.

(g) The granting of an informal public hearing shall not affect the right of any person to formal review under § 45.1-249 § 45.2-1025 of the Act.

(h) The person conducting the hearing for the division shall determine whether or not the mine site should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

4VAC25-130-843.16. Formal review of citations.

(a) A person issued a notice of violation or cessation order under 4VAC25-130-843.11 or 4VAC25-130-843.12, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action by filing an application for formal review and request for hearing, under § 45.1-249 § 45.2-1025 of the Act, within 30 days after receiving notice of the action. A person may also request formal review of the decision rendered under 4VAC25-130-843.15, if the request is submitted within 15 days of receipt of the informal public hearing decision.

(b) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or of any modification, termination, or vacation of either.

(c) Hearings under subsection (a) of this section shall be conducted by a hearing officer appointed by the director. Within 30 days after the close of the record, the hearing officer shall issue a written decision affirming, modifying, terminating, or vacating the notice or order. The decision shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (d) of this section.

(d) Within 14 days after the issuance of a decision the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision, may appeal to the director or his designee for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments and may also, after considering the record remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision, or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-845.2. Objective.

Civil penalties are assessed under § 45.1-246 § 45.2-1021 of the Act and this Part to deter violations and to ensure maximum compliance with the terms and purposes of the Act on the part of the coal mining industry.

4VAC25-130-845.15. Assessment of separate violations for each day.

(a) The division may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the division shall consider the factors listed in 4VAC25-130-845.13 and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which has been assigned a penalty of $5,000 or more under 4VAC25-130-845.13, the division shall assess a penalty for a minimum of two separate days.

(b) In addition to the civil penalty provided for in subsection (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to § 45.1-245 B § 45.2-1020 of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that:

(1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under § 45.1-249 C § 45.2-1025 of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the director or his authorized representative issues a final order with respect to the violation in question; and

(ii) If the person to whom the notice or order was issued initiates review proceedings under § 45.1-251 B § 45.2-1027 of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to § 45.1-251 B § 45.2-1027 of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court;

(2) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30 day period, the division shall take appropriate action pursuant to §§ 45.1-245 45.2-1020 and 45.1-246 45.2-1021 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate.

4VAC25-130-845.18. Procedures for assessment conference.

(a) The division shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom notice or order was issued, if the request is received within 30 days from the date the proposed assessment or reassessment is served.

(b)(1) The division shall assign a conference officer to hold the assessment conference. The assessment conference shall be conducted as an informal proceeding in accordance with § 2.2-4019 of the Code of Virginia. The assessment conference shall be held within 60 days from the date the conference request is received or the end of the abatement period, whichever is later. Provided that a failure by the division to hold such conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

(2) The division shall post notice of the time and place of the conference at the division's office in Big Stone Gap or field office located closest to the mine at least five days before the conference. Any person shall have a right to attend and participate in the conference.

(3) The conference officer shall consider all relevant information on the violation. Within 30 days after the conference is held, the conference officer shall either:

(i) Settle the issue, in which case a settlement agreement shall be prepared and signed by the division and by the person assessed; or

(ii) Affirm, raise, lower, or vacate the penalty.

(4) An increase or reduction of a proposed civil penalty assessment of more than 25% and more than $500 shall not be final and binding on the division, until approved by the director or his designee.

(c) The division shall promptly serve the person assessed with a notice of the conference decision in the manner provided in 4VAC25-130-845.17 (b) and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file.

(d)(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect.

(2) If full payment of the amount specified in the settlement agreement is not received by the division within 30 days after that date of signing, the division may enforce the agreement or rescind it and proceed according to subdivision (b)(3)(ii) of this section within 30 days from the date of the rescission.

(e) The conference officer may terminate the conference if it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

(f) At any formal review proceedings under §§ 45.1-245 C, 45.1-246 and 45.1-249 45.2-1020, 45.2-1021, and 45.2-1025 of the Act, no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.

4VAC25-130-845.19. Request for hearing.

(a) The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or affirmed penalty to the division (to be held in escrow as provided in subsection (b) of this section) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the assessment conference decision, whichever is later. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under 4VAC25-130-843.16.

(b) The division shall transfer all funds submitted under subsection (a) of this section to the State Treasurer's Office which shall hold them in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in 4VAC25-130-845.20.

(c) The hearing requested pursuant to a petition filed under subsection (a) of this section shall be conducted as a formal hearing in accordance with the provisions of § 2.2-4020 of the Code of Virginia. The hearing officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party to the hearing who requests a copy of the record.

(d) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-846.14. Amount of the individual civil penalty.

(a) In determining the amount of an individual civil penalty, the division shall consider the criteria specified in § 45.1-246 A § 45.2-1021 of the Act, including:

(1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;

(2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and,

(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(b) The penalty shall not exceed $5,000 for each violation, except that if the violation resulted in a personal injury or fatality to any person, then the civil penalty determined under 4VAC25-130-845.13 (d) shall be multiplied by a factor of 20, not to exceed $70,000. Each day of a continuing violation may be deemed a separate violation and the division may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the director, until abatement or compliance is achieved.

4VAC25-130-850.15. Certification.

(a) The division shall issue the blaster's coal surface mining endorsement for a period of five years to those candidates examined and found to be competent and has met the requirements as described in 4VAC25-130-850.13 and 4VAC25-130-850.14.

(b) Suspension and revocation:

(1) The division, when practicable, following written notice and opportunity for a hearing may, and upon a finding of willful conduct by the DM Board of Coal Mine Examiners, shall suspend or revoke the blaster's coal surface mining endorsement certification during the term of the certification or take other necessary action for any of the following reasons:

(i) Non-compliance with any blasting related order issued by the division or DM;

(ii) Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs;

(iii) Violation of any provision of the State or Federal explosives laws or regulations;

(iv) Providing false information or a misrepresentation to obtain certification.

(2) If advance notice and opportunity for a hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action.

(c) Recertification. Any person certified as a blaster must be recertified every five years by:

(1) Presenting written proof that the individual has worked in a capacity which demonstrates the blaster's competency during two of the last three years immediately preceding the expiration date; or

(2) Retaking the division's endorsement exam and achieving the required score on the exam. Anyone who fails to achieve the required score on the exam must take or retake the training prior to retaking both the division's and DM's exam.

(d) Protection of certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be reported immediately to the division.

(e) Conditions:

(1) A blaster shall immediately exhibit upon request his or her certificate to any authorized representative of the division, DM, or the Office of Surface Mining.

(2) Blaster's certification shall not be assigned or transferred.

(3) Blasters shall not delegate their responsibility to any individual who is not a certified blaster.

(f) Petitions for recertification.

An individual whose certification has been revoked may petition the DMLR for recertification. The DMLR shall not accept a petition for recertification any sooner than one year from the effective date of revocation. Such petitions shall show valid reasons why the division should consider the request for recertification. The division may require retesting prior to recertification.

(g) Appeals procedures.

Appeals for review of certification including suspension and revocation decisions shall be made to the DMLR. Appeals not resolved by the DMLR may be heard pursuant to the provisions for administrative and judicial review under Chapter 19 10 (§ 45.1-2.26 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-882.13. Liens.

(a) The Director has the discretionary authority to place or waive a lien against land reclaimed if the reclamation results in a significant increase in the fair market value; except that-

(1) A lien shall not be placed against the property of a surface owner who acquired title prior to May 2, 1977, and who did not consent to, participate in, or exercise control over the mining operation which necessitated the reclamation work.

(2) The basis for making a determination of what constitutes a significant increase in market value or what factual situation constitutes a waiver of lien will be made by the Director pursuant to the Congressional intent expressed in Section 408 of the Federal Act and consistent with the laws of the Commonwealth governing liens.

(3) A lien may be waived if findings made prior to construction indicate that the reclamation work to be performed on private land shall primarily benefit the health, safety, or environmental values of the greater community or area in which the land is located; or if the reclamation is necessitated by an unforeseen occurrence, and the work performed to restore that land will not result in a significant increase in the market value of the land as it existed immediately before the unforeseen occurrence; and

(4) The Director may waive the lien if the cost of filing it, including indirect costs to the Commonwealth, exceeds the increase in fair market value as a result of reclamation activities.

(b) If a lien is to filed, the Director shall, within six months after the completion of the reclamation work, file a statement in the office having responsibility under applicable law for recording judgments and placing liens against land. Such statement shall consist of notarized copies of the appraisals obtained under 4VAC25-130-882.12 and may include an account of moneys expended for the reclamation work. The amount reported to be the increase in value of the property shall constitute the lien to be recorded in compliance with laws of the Commonwealth; Provided, however, That prior to the time of actual filing of the proposed lien, the landowner shall be notified of the amount of the proposed lien and shall be allowed a reasonable time to prepay that amount instead of allowing the lien to be filed against the property involved.

(c) Within 60 days after the lien is filed the landowner may petition under local law to determine the increase in market value of the land as a result of reclamation work. Any aggrieved party may appeal in the manner provided by section 45.1-268 § 45.2-1040 of the Code of Virginia.

4VAC25-145-10. Definitions.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mined Land Reclamation Repurposing.

"Net worth" means total assets less total liabilities including funds pledged or otherwise obligated to the Commonwealth or other in effect at any time during the contract period and any other contingent liabilities that might materially affect the Commonwealth's ability to realize the amount of bond required in the event of forfeiture.

"Operator" means any person engaging in coal surface mining operations whether or not such coal is sold within or without the Commonwealth.

"Reclamation project" means any work contracted out by or on behalf of the division for reclamation of eligible lands and waters, and defined in § 45.1-262 § 45.2-1034 of the Code of Virginia and funded by the Federal Office of Surface Mining or reclamation of mined lands where the operator who mined the land has had his bond covering the land forfeited to the division or otherwise defaulted on his reclamation obligation and the project is funded either by the forfeited bond or the Virginia Coal Surface Mining Reclamation Fund.

"Relevant mining experience" means at least three years of satisfactory mining and reclamation work in the Commonwealth under Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia. The operator shall have active reclamation work experience for two of the three years.

"State reclamation program" means Articles 4 and 5 of Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, as well as reclamation done by or for the Commonwealth and funded by the forfeited bond of an operator.

4VAC25-145-20. Operator requirements.

A. Operators must demonstrate relevant mining experience in order to bid on or be awarded contracts for any reclamation project in the Commonwealth. An operator may demonstrate satisfactory mining and reclamation work to the division by showing (i) that the operator has obtained partial or complete bond release on a coal surface mining permit obtained pursuant to Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia under his control, or that all reclamation work on any active permit operated or controlled by the operator is up to date; and (ii) that no coal surface mining permit under his control has any outstanding violations of any federal, state or local agency's laws, rules, regulations or ordinances unless the operator submits proof to the division that such violations have been corrected or are being corrected to the satisfaction of the agencies citing of such violations.

B. No operator shall be allowed to bid on or be awarded contracts for any reclamation project in the Commonwealth if:

1. The director, after opportunity for a hearing, finds that the operator controls or has controlled mining operations with a demonstrated pattern of willful violations of the Federal Act or State Reclamation Program of such nature and duration with such resulting environmental damage as to indicate an intent not to comply with the Federal Act, P.L. 95-87 or State Reclamation Program.

2. The operator has had a coal surface mining permit revoked or suspended and has not been re-instated by the director; has had his bond forfeited; or has received an order to show cause why his permit should not be revoked or suspended.

4VAC25-145-30. Compliance with other laws and obligations.

A. The operator bidding or seeking to bid on reclamation projects shall comply with all other applicable laws, ordinances, orders, rules and regulations of any federal, state or local agency with jurisdiction over the operator's mining or reclamation activities.

B. The operator shall comply with all applicable requirements of the division with regard to bidding on reclamation projects in the Commonwealth, excepting any requirements waived by § 45.1-161.1 § 45.2-100 of the Code of Virginia and this regulation.

4VAC25-150-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Adequate channel" means a watercourse that will convey the designated frequency storm event without overtopping its banks or causing erosive damage to the bed, banks and overbank sections.

"Applicant" means any person or business who files an application with the Division of Gas and Oil.

"Approved" means accepted as suitable for its intended purpose when included in a permit issued by the director or determined to be suitable in writing by the director.

"Berm" means a ridge of soil or other material constructed along an active earthen fill to divert runoff away from the unprotected slope of the fill to a stabilized outlet or sediment trapping facility.

"Board" means the Virginia Gas and Oil Board.

"Bridge plug" means an obstruction intentionally placed in a well at a specified depth.

"CAS number" means the unique number identifier for a chemical substance assigned by the Chemical Abstracts Service.

"Cased completion" means a technique used to make a well capable of production in which production casing is set through the productive zones.

"Cased/open hole completion" means a technique used to make a well capable of production in which at least one zone is completed through casing and at least one zone is completed open hole.

"Casing" means all pipe set in wells except conductor pipe and tubing.

"Causeway" means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage.

"Cement" means hydraulic cement properly mixed with water.

"Cement bond log" means an acoustic survey or sonic-logging method that records the quality or hardness of the cement used in the annulus to bond the casing and the formation.

"Centralizer" means a device secured around the casing at regular intervals to center it in the hole.

"Channel" means a natural stream or man-made waterway.

"Chemical Disclosure Registry" means the chemical registry website known as FracFocus.org developed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids, oil, gas, or gas pressure from the seam, except such as may be found in the coal seam itself.

"Cofferdam" means a temporary structure in a river, lake, or other waterway for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, pipelines, etc., may be constructed.

"Completion" means the process that results in a well being capable of producing gas or oil.

"Conductor pipe" means the short, large diameter string used primarily to control caving and washing out of unconsolidated surface formations.

"Corehole" means any hole drilled solely for the purpose of obtaining rock samples or other information to be used in the exploration for coal, gas, or oil. The term shall not include a borehole used solely for the placement of an explosive charge or other energy source for generating seismic waves.

"Days" means calendar days.

"Denuded area" means land that has been cleared of vegetative cover.

"Department" means the Department of Mines, Minerals and Energy.

"Detention basin" means a stormwater management facility which temporarily impounds and discharges runoff through an outlet to a downstream channel. Infiltration is negligible when compared to the outlet structure discharge rates. The facility is normally dry during periods of no rainfall.

"Dike" means an earthen embankment constructed to confine or control fluids.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical, and the distance and direction of points in the hole from vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Diversion" means a channel constructed for the purpose of intercepting surface runoff.

"Diverter" or "diverter system" means an assembly of valves and piping attached to a gas or oil well's casing for controlling flow and pressure from a well.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Emergency response plan" means the document that details the steps to prevent, control, and provide adequate countermeasures for a petroleum product discharge not covered by the spill prevention, control, and countermeasures plan or for a non-petroleum product discharge.

"Erosion and sediment control plan" means a document containing a description of materials and methods to be used for the conservation of soil and the protection of water resources in or on a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain a record of all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

"Expanding cement" means any cement approved by the director that expands during the hardening process, including but not limited to regular oil field cements with the proper additives.

"Firewall" means an earthen dike or fire resistant structure built around a tank or tank battery to contain the oil in the event a tank ruptures or catches fire.

"Flume" means a constructed device lined with erosion-resistant materials intended to convey water on steep grades.

"Flyrock" means any material propelled by a blast that would be actually or potentially hazardous to persons or property.

"Form prescribed by the director" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Act or this chapter.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well that is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial, or agricultural use or otherwise affects the public welfare.

"Highway" means any public street, public alley, or public road.

"Hydraulic fracturing" means the treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil or natural gas.

"Hydraulic fracturing fluid" means the fluid, including the applicable base fluid and all additives, used to perform hydraulic fracturing treatment.

"Inclination survey" means a survey taken inside a wellbore that measures the degree of deviation of the point of the survey from true vertical.

"Inhabited building" means a building, regularly occupied in whole or in part by human beings, including, but not limited to, a private residence, church, school, store, public building or other structure where people are accustomed to assemble except for a building being used on a temporary basis, on a permitted site, for gas, oil, or geophysical operations.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Live watercourse" means a definite channel with bed and banks within which water flows continuously.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mud" means a mixture of materials that creates a weighted fluid to be circulated downhole during drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation pressures and fluid.

"Natural channel" or "natural stream" means nontidal waterways that are part of the natural topography. They usually maintain a continuous or seasonal flow during the year and are characterized as being irregular in cross section with a meandering course.

"Nonerodible" means a material such as riprap, concrete, or plastic that will not experience surface wear due to natural forces.

"Oil well" means any well that produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Open hole completion" means a technique used to make a well capable of production in which no production casing is set through the productive zones.

"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.

"Plug" means the sealing of, or a device or material used for the sealing of, a gas or oil wellbore or casing to prevent the migration of water, gas, or oil from one stratum to another.

"Pre-development" means the land use and site conditions that exist at the time that the operations plan is submitted to the division.

"Produced waters" means water or fluids produced from a gas well, oil well, coalbed methane gas well, or gob well as a byproduct of producing gas, oil, or coalbed methane gas.

"Producer" means a permittee operating a well in Virginia that is producing or is capable of producing gas or oil.

"Production string" means a string of casing or tubing through which the well is completed and may be produced and controlled.

"Red shales" means the undifferentiated shaley portion of the Bluestone formation normally found above the Pride Shale Member of the formation, and extending upward to the base of the Pennsylvanian strata, which red shales are predominantly red and green in color but may occasionally be gray, grayish green, and grayish red.

"Red zone" is a zone in or contiguous to a permitted area that could have potential hazards to workers or to the public.

"Retention basin" means a stormwater management facility that, similar to a detention basin, temporarily impounds runoff and discharges its outflow through an outlet to a downstream channel. A retention basin is a permanent impoundment.

"Sediment basin" means a depression formed from the construction of a barrier or dam built to retain sediment and debris.

"Sheet flow" or "overland flow" means shallow, unconcentrated and irregular flow down a slope. The length of strip for sheet flow usually does not exceed 200 feet under natural conditions.

"Slope drain" means tubing or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope.

"Special diligence" means the activity and skill exercised by a good businessperson in a particular specialty, which must be commensurate with the duty to be performed and the individual circumstances of the case, not merely the diligence of an ordinary person or nonspecialist.

"Spill prevention, control, and countermeasure plan" or "SPCC plan" means the document that details the steps to prevent, control, and provide adequate countermeasures to certain petroleum product discharges.

"Stabilized" means able to withstand normal exposure to air and water flows without incurring erosion damage.

"Stemming" means the inert material placed in a borehole after an explosive charge for the purpose of confining the explosion gases in the borehole or the inert material used to separate the explosive charges (decks) in decked holes.

"Stimulate" means any action taken by a gas or oil operator to increase the inherent productivity of a gas or oil well, including, but not limited to, fracturing, shooting, or acidizing, but excluding (i) cleaning out, bailing, or workover operations and (ii) the use of surface-tension reducing agents, emulsion breakers, paraffin solvents, and other agents that affect the gas or oil being produced, as distinguished from the producing formation.

"Storm sewer inlet" means any structure through which stormwater is introduced into an underground conveyance system.

"Stormwater management facility" means a device that controls stormwater runoff and changes the characteristics of that runoff, including but not limited to, the quantity, quality, the period of release, or the velocity of flow.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a well. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Sulfide stress cracking" means embrittlement of the steel grain structure to reduce ductility and cause extreme brittleness or cracking by hydrogen sulfide.

"Surface mine" means an area containing an open pit excavation, surface operations incident to an underground mine, or associated activities adjacent to the excavation or surface operations, from which coal or other minerals are produced for sale, exchange, or commercial use and includes all buildings and equipment above the surface of the ground used in connection with such mining.

"Target formation" means the geologic gas or oil formation identified by the well operator in his application for a gas, oil or geophysical drilling permit.

"Temporary stream crossing" means a temporary span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes or pipe arches constructed on or through nonerodible material.

"Ten-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year.

"Tidewater Virginia" means the region defined in § 62.1-44.15:68 of the Code of Virginia.

"Trade secret" means the term defined in § 59.1-336 of the Code of Virginia.

"Tubing" means the small diameter string set after the well has been drilled from the surface to the total depth and through which the gas or oil or other substance is produced or injected.

"Two-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used only for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water bar" means a small obstruction constructed across the surface of a road, pipeline right-of-way, or other area of ground disturbance in order to interrupt and divert the flow of water on a grade for the purpose of controlling erosion and sediment migration.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-150-20. Basis and authority.

This chapter implements the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The Director of the Department of Mines, Minerals and Energy is authorized to promulgate this chapter pursuant to §§ 45.1-161.3 45.2-103 and 45.1-361.27 45.2-1629 of the Code of Virginia.

4VAC25-150-40. Registration.

A. Persons required to register under § 45.1-361.37 § 45.2-1639 of the Code of Virginia shall register with the division on a registration form prescribed by the director.

B. Registered persons shall notify the division within 30 days of any change in the information included on the registration form filed in accordance with subsection A of this section.

4VAC25-150-80. Application for a permit.

A. Applicability.

1. Persons required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia to obtain a permit or permit modification shall apply to the division on the forms prescribed by the director. All lands on which gas, oil, or geophysical operations are to be conducted shall be included in a permit application.

2. In addition to specific requirements for variances in other sections of this chapter, any applicant for a variance shall, in writing, document the need for the variance and describe the alternate measures or practices to be used.

3. Prior to accepting an application for a permit to drill for gas or oil in Tidewater Virginia, the department shall convene a pre-application meeting within the locality where the operation is proposed. The pre-application meeting shall ensure those who desire to submit an application are aware of the requirements established in § 62.1-195.1 of the Code of Virginia and 9VAC15-20. The department, in conjunction with the Department of Environmental Quality, shall conduct the meeting. The meeting shall be open to the public, and the department shall notify the locality in which the meeting is to take place and adjacent localities. No application for a permit to drill for gas or oil in Tidewater Virginia shall be accepted until the meeting is completed.

B. The application for a permit shall, as applicable, be accompanied by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia, the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia, and the fee for the Orphaned Well Fund in accordance with § 45.1-361.40 § 45.2-1642 of the Code of Virginia.

C. Each application for a permit shall include information on all activities, including those involving associated facilities, to be conducted on the permitted site. This shall include the following:

1. The name and address of:

a. The gas, oil, or geophysical applicant;

b. The agent required to be designated under § 45.1-361.37 § 45.2-1639 of the Code of Virginia; and

c. Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

2. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

3. Certification from the applicant that the proposed operation complies with all applicable local land use ordinances;

4. The proof of notice to affected parties required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, which shall be:

a. A copy of a signed receipt or electronic return receipt of delivery of notice by certified mail;

b. A copy of a signed receipt acknowledging delivery of notice by hand; or

c. If all copies of receipt of delivery of notice by certified mail have not been signed and returned within 15 days of mailing, a copy of the mailing log or other proof of the date the notice was sent by certified mail, return receipt requested;

5. If the application is for a permit modification, proof of notice to affected parties, as specified in subdivision C 4 of this section;

6. Identification of the type of well or other gas, oil, or geophysical operation being proposed;

7. A list of ingredients anticipated to be used in any hydraulic fracturing operations. The applicant should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection;

8. The groundwater baseline sampling, analysis, and monitoring plan in accordance with 4VAC25-150-95;

9. The plat in accordance with 4VAC25-150-90;

10. The operations plan in accordance with 4VAC25-150-100;

11. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350;

12. The spill prevention, control, and countermeasure (SPCC) plan, if one is required;

13. The emergency response plan;

14. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit on which a proposed gas, oil, or geophysical operation is to be located;

15. For an application for a conventional well, the information required in 4VAC25-150-500;

16. For an application for a coalbed methane gas well, the information required in 4VAC25-150-560;

17. For an application for a geophysical operation, the information required in 4VAC25-150-670; and

18. For an application for a permit to drill for gas or oil in Tidewater Virginia, the environmental impact assessment meeting the requirements of § 62.1-195.1 B of the Code of Virginia and 9VAC15-20.

D. All permit applications and plats submitted to the division shall be in electronic form or a format prescribed by the director.

4VAC25-150-90. Plats.

A. When filing an application for a permit for a well or corehole, the applicant also shall file an accurate plat certified by a licensed professional engineer or licensed land surveyor on a scale, to be stated thereon, of 1 inch equals 400 feet (1:4800). The scope of the plat shall be large enough to show the board approved unit and all areas within the greater of 750 feet or one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia from the proposed well or corehole. The plat shall be submitted on a form prescribed by the director.

B. The known courses and distances of all property lines and lines connecting the permanent points, landmarks or corners within the scope of the plat shall be shown thereon. All lines actually surveyed shall be shown as solid lines. Lines taken from deed or chain of title descriptions only shall be shown by broken lines. All property lines shown on a plat shall agree with any one of the following: surveys, deed descriptions, or acreages used in county records for tax assessment purposes.

C. A north and south line shall be given and shown on the plat, and point to the top of the plat.

D. Wells or coreholes shall be located on the plat as follows:

1. The proposed or actual surface elevation of the subject well or corehole shall be shown on the plat, within an accuracy of one vertical foot. The surface elevation shall be tied to either a government benchmark or other point of proven elevation by differential or aerial survey, by trigonometric leveling, or by global positioning system (GPS) survey. The location of the government benchmark or the point of proven elevation and the method used to determine the surface elevation of the subject well or corehole shall be noted and described on the plat.

2. The proposed or actual horizontal location of the subject well or corehole determined by survey shall be shown on the plat. The proposed or actual well or corehole location shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System.

3. The courses and distances of the well or corehole location from two permanent points or landmarks on the tract shall be shown; such landmarks shall be set stones, iron pipes, T-rails or other manufactured monuments, including mine coordinate monuments, and operating or abandoned wells which are platted to the accuracy standards of this section and on file with the division. If temporary points are to be used to locate the actual well or corehole location as provided for in 4VAC25-150-290, the courses and distances of the well or corehole location from the two temporary points shall be shown.

4. Any other well, permitted or drilled, within the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well shall be shown on the plat or located by notation. The type of each well shall be designated by the following symbols as described in the Federal Geographic Data Committee (FGDC) Digital Cartographic Standard for Geologic Map Symbolization:

Symbols for additional features as required in 4VAC25-150-510, 4VAC25-150-590, and 4VAC25-150-680 should be taken from the FDGC standard where applicable.

E. Plats shall also contain:

1. For a conventional gas and oil or injection well, the information required in 4VAC25-150-510;

2. For a coalbed methane gas well, the information required in 4VAC25-150-590; or

3. For a corehole, the information required in 4VAC25-150-680.

F. Any subsequent application for a new permit or permit modification shall include an accurate copy of the well plat, updated as necessary to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted. Any revised plat shall be certified as required in subsection A of this section.

4VAC25-150-100. Operations plans.

A. Each application for a permit or permit modification shall include an operations plan, in a format approved by or on a form prescribed by the director. The operations plan and accompanying maps or drawings shall become part of the terms and conditions of any permit which is issued.

B. The operations plan shall describe the specifications for the use of centralizers to ensure casing is centered in the hole. The specifications shall include, at a minimum, one centralizer within 50 feet of the water protection string seat and then in intervals no greater than every 150 feet above the first centralizer and are subject to the approval of the director.

C. The applicant shall indicate how risks to the public safety or to the site and adjacent lands are to be managed, consistent with the requirements of § 45.1-361.27 B § 45.2-1629 B of the Code of Virginia, and shall provide a short narrative, if pertinent. The operations plan shall identify red zone areas.

4VAC25-150-110. Permit supplements and permit modifications.

A. Permit supplements.

1. Standard permit supplements. A permittee shall be allowed to submit a permit supplement when work being performed:

a. Does not change the disturbance area as described in the original permit; and

b. Involves activities previously permitted.

The permittee shall submit written documentation of the changes made to the permitted area no later than 30 days after completing the change. All other changes to the permit shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Permit supplements for disclosure of ingredients used in hydraulic fracturing. Prior to completion of a well, the permittee shall submit a permit supplement when the ingredients expected to be used in the hydraulic fracturing process differ in any way from that which was submitted pursuant to subdivision C 7 of 4VAC25-150-80. The permittee should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection.

3. Emergency permit supplements. If a change must be implemented immediately for an area off the disturbance area as described in the original permit, or for an activity not previously permitted due to actual or threatened imminent danger to the public safety or to the environment, the permittee shall:

a. Take immediate action to minimize the danger to the public or to the environment;

b. Notify the director as soon as possible of actions taken to minimize the danger and, if the director determines an emergency still exists and grants oral approval, commence additional changes if necessary; and

c. Submit a supplement to the permit within seven working days of notifying the director with a written description of the emergency and action taken. An incident report may also be required as provided for in 4VAC25-150-380.

Any changes to the permit are to be temporary and restricted to those that are absolutely necessary to minimize danger. Any permanent changes to the permit shall require a permit modification as provided for in subsection B of this section.

B. Permit modifications.

1. Applicability. All changes to the permit which do not fit the description contained in subsection A of this section shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Notice and fees. Notice of a permit modification shall be given in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia. The application for a permit modification shall be accompanied, as applicable, by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia and the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia.

3. Waiver of right to object. Upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit modification. The department shall be entitled to rely upon the waiver to approve the permit modification.

4. Permit modification. The permittee shall submit a written application for a permit modification on a form prescribed by the director. The permittee may not undertake the proposed work until the permit modification has been issued. As appropriate, the application shall include, but not be limited to:

a. The name and address of:

(1) The permittee; and

(2) Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

b. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

c. The proof of notice required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, as provided for in 4VAC25-150-80 C 4;

d. Identification of the type of work for which a permit modification is requested;

e. The plat in accordance with 4VAC25-150-90;

f. All data, maps, plats and plans in accordance with 4VAC25-150-100 necessary to describe the activity proposed to be undertaken;

g. When the permit modification includes abandoning a gas or oil well as a water well, a description of the plugging to be completed up to the water-bearing formation and a copy of the permit issued for the water well by the Virginia Department of Health;

h. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350 if applicable to the proposed operations;

i. The spill prevention, control, and countermeasure (SPCC) plan, if one has been developed for the site of the proposed operations, or the emergency response plan;

j. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit; and

k. The information, as appropriate, required in 4VAC25-150-500, 4VAC25-150-560, 4VAC25-150-670, or 4VAC25-150-720.

5. Upon receipt of an application for a permit modification for a well in Tidewater Virginia, the director may require additional documentation to supplement information submitted to the department pursuant to subsection B of § 62.1-195.1 of the Code of Virginia. If additional documentation is required, the operator shall submit that documentation to the director and the Department of Environmental Quality.

4VAC25-150-120. Transfer of permit rights.

A. Applicability.

1. No transfer of rights granted by a permit shall be made without prior approval from the director.

2. Any approval granted by the director of a transfer of permit rights shall be conditioned upon the proposed new operator complying with all requirements of the Act, this chapter and the permit.

B. Application. Any person requesting a transfer of rights granted by a permit shall submit a written application on a form prescribed by the director. The application shall be accompanied by a fee of $75 and bond, in the name of the person requesting the transfer, in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia. The application shall contain, but is not limited to:

1. The name and address of the current permittee, the current permit number and the name of the current operation;

2. The name and address of the proposed new operator and the proposed new operations name;

3. Documentation of approval of the transfer by the current permittee;

4. If the permit was issued on or before September 25, 1991, an updated operations plan, in accordance with 4VAC25-150-100, showing how all permitted activities to be conducted by the proposed new permittee will comply with the standards of this chapter;

5. If the permit was issued on or before September 25, 1991, for a well, a plat meeting the requirements of 4VAC25-150-90 updated to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted, including the change in ownership of the well; and

6. If the permit was issued on or before September 25, 1991, if applicable, the docket number and date of recordation of any order issued by the board for a pooled unit, pertaining to the current permit.

C. Standards for approval. The director shall approve the transfer of permit rights when the proposed new permittee:

1. Has registered with the department in accordance with § 45.1-361.37 § 45.2-1639 of the Code of Virginia;

2. Has posted acceptable bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia; and

3. Has no outstanding debt pursuant to § 45.1-361.32 § 45.2-1634 of the Code of Virginia.

D. The new permittee shall be responsible for any violations of or penalties under the Act, this chapter, or conditions of the permit after the director has approved the transfer of permit rights.

4VAC25-150-130. Notice of permit applications and modifications.

A. Gas, oil or geophysical operators shall provide notice of an application for a permit or permit modification in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia, as identified on the "Technical Data Sheet for Permit Applications Under § 45.1-361.29," prescribed by the director.

B. If notice required under § 45.1-361.30 § 45.2-1632 of the Code of Virginia has been sent by certified mail, return receipt requested, and the notice has not been delivered within 15 days of mailing the notice, the director shall consider notice to be given as of the end of the 15-day period and the objection period specified in §§ 45.1-361.35 § 45.2-1637 of the Code of Virginia shall commence.

4VAC25-150-140. Objections to permit applications.

A. Objections shall be filed in writing, at the office of the division, in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia. The director shall notify affected parties of an objection as soon as practicable.

B. If after the director has considered notice to be given under 4VAC25-150-130 B of this chapter, a person submits an objection with proof of receipt of actual notice within 15 days prior to submitting the objection, then the director shall treat the objection as timely.

C. Objections to an application for a new or modified permit shall contain:

1. The name of the person objecting to the permit;

2. The date the person objecting to the permit received notice of the permit application;

3. Identification of the proposed activity being objected to;

4. A statement of the specific reason for the objection;

5. A request for a stay to the permit, if any, together with justification for granting a stay; and

6. Any other information the person objecting to the permit wishes to provide.

D. When deciding to convene a hearing pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia, the dir0ctor director shall consider the following:

1. Whether the person objecting to the permit has standing to object as provided in § 45.1-361.35 § 45.2-1632 of the Code of Virginia;

2. Whether the objection is timely; and

3. Whether the objection meets the applicable standards for objections as provided in § 45.1-361.35 § 45.2-1637 of the Code of Virginia.

E. If the director decides not to hear the objection, then he shall notify the person who objects and the permit applicant in writing, indicating his reasons for not hearing the objection, and shall advise the objecting person of his right to appeal the decision.

4VAC25-150-150. Hearing and decision on objections to permit applications.

A. In any hearing on objections to a permit application:

1. The hearing shall be an informal fact finding hearing in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia.

2. The permit applicant and any person with standing in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia may be heard.

3. Any valid issue in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia may be raised at the hearing. The director shall determine the validity of objections raised during the hearing.

B. The director shall, as soon after the hearing as practicable, issue his decision in writing and hand deliver or send the decision by certified mail to all parties to the hearing. The decision shall include:

1. The subject, date, time and location of the hearing;

2. The names of the persons objecting to the permit;

3. A summary of issues and objections raised at the hearing;

4. Findings of fact and conclusions of law;

5. The text of the decision, including any voluntary agreement; and

6. Appeal rights.

C. Should the director deny the permit issuance and allow the objection, a written notice of the decision shall be sent to any person receiving notice of the application.

4VAC25-150-160. Approval of permits and permit modifications.

A. Permits, permit modifications, permit renewals, and transfer of permit rights shall be granted in writing by the director.

B. The director may not issue a permit, permit renewal, or permit modification prior to the end of the time period for filing objections pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia unless, upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit application or permit modification application. The director shall be entitled to rely upon the waiver to approve the permit application or permit modification.

C. The director may not issue a permit to drill for gas or oil or approve a permit modification for a well where additional documentation is required pursuant to subdivision B 5 of 4VAC25-150-110 in Tidewater Virginia until he has collaborated with the Department of Environmental Quality to ensure permit conditions accurately reflect the results from the Department of Environmental Quality's coordinated review of the environmental impact assessment required pursuant to § 62.1-195.1 of the Code of Virginia.

D. The provisions of any order of the Virginia Gas and Oil Board that govern a gas or oil well permitted by the director shall become conditions of the permit.

4VAC25-150-170. Enforcement.

A. The director shall enforce the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or any condition of a permit, and may use the following methods:

1. Obtaining voluntary compliance through conference, warning or other means prior to issuing any enforcement notice or order;

2. Issuing notices of violation in accordance with 4VAC25-150-180;

3. Issuing closure orders in accordance with 4VAC25-150-190;

4. Issuing show cause orders in accordance with 4VAC25-150-200;

5. Issuing emergency orders in accordance with § 45.1-361.27 D § 45.2-1629 of the Code of Virginia; or

6. Any other action in accordance with the Code of Virginia.

B. The purpose of taking actions under this section is to obtain compliance with the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or conditions of a permit.

C. Reclamation operations and other activities intended to protect the public health and safety and the environment shall continue during the period of any notice or order unless otherwise provided in the notice or order.

D. Any person found to be conducting a gas, oil or geophysical operation without a permit from the director shall be subject to enforcement for operating without a permit and for not meeting any other standards of the Act or this chapter which would be required if the person was operating under a permit.

E. Decisions of the director may be appealed to the Virginia Gas and Oil Board pursuant to § 45.1-361.23 § 45.2-1625 of the Code of Virginia.

4VAC25-150-180. Notices of violation.

A. The director may issue a notice of violation if he finds a violation of any of the following:

1. Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. This chapter;

3. 4VAC25-160 entitled "Virginia Gas and Oil Board Regulation";

4. Any board order; or

5. Any condition of a permit, which does not create an imminent danger or harm for which a closure order must be issued under 4VAC5-150-190.

B. A notice of violation shall be in writing, signed, and set forth with reasonable specificity:

1. The nature of the violation, including a reference to the section or sections of the Act, applicable regulation, order or permit condition which has been violated;

2. A reasonable description of the portion of the operation to which the violation applies, including an explanation of the condition or circumstance that caused the portion of the operation to be in violation, if it is not self-evident in the type of violation itself;

3. The remedial action required, which may include interim steps; and

4. A reasonable deadline for abatement, which may include a deadline for accomplishment of interim steps.

C. The director may extend the deadline for abatement or for accomplishment of an interim step, if the failure to meet the deadline previously set was not caused by the permittee's lack of diligence. An extension of the deadline for abatement may not be granted when the permittee's failure to abate has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

D. If the permittee fails to meet the deadline for abatement or for completion of any interim steps, the director shall issue a closure order under 4VAC25-150-190.

E. The director shall terminate a notice of violation by written notice to the permittee when he determines that all violations listed in the notice of violation have been abated.

F. A permittee issued a notice of violation may request, in writing to the director, an informal fact-finding hearing to review the issuance of the notice. This written request shall be made within 10 days of receipt of the notice. The permittee may request, in writing to the director, an expedited hearing.

G. A permittee is not relieved of the duty to abate any violation under a notice of violation during an appeal of the notice. A permittee may apply for an extension of the deadline for abatement during an appeal of the notice.

H. The director shall issue a decision on any request for an extension of the deadline for abatement under a notice of violation within five days of receipt of such request. The director shall conduct an informal fact-finding hearing, in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia, no later than 10 days after receipt of the hearing request.

I. The director shall affirm, modify, or vacate the notice in writing to the permittee within five days of the date of the hearing.

4VAC25-150-220. Annual reports.

A. Each permittee shall submit a calendar-year annual report to the division by no later than March 31 of the next year.

B. The annual report shall include as appropriate:

1. A confirmation of the accuracy of the permittee's current registration filed with the division or a report of any change in the information;

2. The name, address and phone number or numbers of the persons to be contacted at any time in case of an emergency;

3. Production of gas or oil on a well-by-well and county-by-county or city-by-city basis for each permit or as prescribed by the director and the average price received for each Mcf of gas and barrel of oil;

4. Certification by the permittee that the permittee has paid all severance taxes for each permit;

5. When required, payment to the Gas and Oil Plugging and Restoration Fund as required in § 45.1-361.32 § 45.2-1634 of the Code of Virginia; and

6. Certification by the permittee that bonds on file with the director have not been changed.

4VAC25-150-290. Actual well or corehole location.

A. The actual horizontal surface location of the well shall be within three feet of the permitted location designated on the well plat, except where an operator has stated that the location may vary up to 10 feet in the notice as required in § 45.1-361.30 § 45.2-1632 of the Code of Virginia.

B. The permittee shall survey the actual location of the well which may be made from a minimum of two temporary points not disturbed during development of the well or site and shown on the plat submitted with the permit application. The permittee shall submit an updated plat, certified by a licensed land surveyor or licensed professional engineer, showing the actual well location certified to be within three feet of the permitted location, or within 10 feet as provided for in subsection A of this section. This updated plat shall be included with the drilling report submitted in accordance with 4VAC25-150-360.

4VAC25-150-365. Disclosure of well stimulation fluids.

A. In addition to other requirements that may be prescribed by the director, each completion report required in 4VAC25-150-360 shall also contain the following disclosures:

The operator of the well shall complete the Chemical Disclosure Registry form and upload the form on the Chemical Disclosure Registry, including:

a. The operator name;

b. The date of completion of the hydraulic fracturing treatment or treatments;

c. The county in which the well is located;

d. The American Petroleum Institute (API) number for the well;

e. The well name and number;

f. The longitude and latitude of the wellhead;

g. The total vertical depth of the well;

h. The total volume of water used in the hydraulic fracturing treatment or treatments of the well or the type and total volume of the base fluid used in the hydraulic fracturing treatment or treatments, if something other than water;

i. Each additive used in the hydraulic fracturing treatments and the trade name, supplier, and a brief description of the intended use or function of each additive in the hydraulic fracturing treatment or treatments;

j. Each chemical ingredient used in the hydraulic fracturing treatment or treatments of the well that is subject to the requirements of 29 CFR 1910.1200(g)(2), as provided by the chemical supplier or service company or by the operator, if the operator provides its own chemical ingredients;

k. The actual or maximum concentration of each chemical ingredient listed under subdivision j of this subsection in percent by mass;

l. The CAS number for each chemical ingredient listed, if applicable; and

m. A supplemental list of all chemicals, their respective CAS numbers, and the proportions thereof not subject to the requirements of 29 CFR 1910.1200(g)(2), that were intentionally included in and used for the purpose of creating the hydraulic fracturing treatments for the well.

B. The department shall obtain and maintain data submitted to the Chemical Disclosure Registry. If the Chemical Disclosure Registry is temporarily inoperable, the operator of a well on which hydraulic fracturing treatment or treatments were performed shall supply the department with the required information and upload the information on the registry when it is again operable. The information required shall also be filed as an attachment to the completion report for the well, which shall be posted, along with all attachments, on the department's website, except that information determined to be subject to trade secret protection shall not be posted.

C. All information related to the specific identity or CAS number or amount of any additive or chemical ingredient used in hydraulic fracturing shall be submitted to the department and shall be available to the public unless the department determines that information supplied by the operator and claimed to be a trade secret is entitled to such protection. All information claimed as a trade secret shall be identified as such at the time of submission of the appropriate report. The department shall treat as confidential in accordance with law, information that meets the criteria specified in law for a trade secret and is contained on such forms and filings as is required under this chapter. Such criteria shall include a demonstration by the claimant that the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Should the department determine that information is protected as a trade secret, the operator of the well shall indicate on the Chemical Disclosure Registry or the supplemental list that the additive or chemical ingredient or their amounts are entitled to trade secret protection. If a chemical ingredient name or CAS number is entitled to trade secret protection, the chemical family or other similar description associated with such chemical ingredient shall be provided. The operator of the well on which hydraulic fracturing was performed shall provide the contact information, including the name, authorized representative, mailing address, and phone number of the business organization for which trade secret protection exists. Unless the information is entitled to protection as a trade secret, information submitted to the department or uploaded on the Chemical Disclosure Registry is public information.

D. The operator understands that the director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical claimed to be a trade secret to additional department staff to the extent that such disclosure is necessary to assist the department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27 § 45.2-1629 of the Code of Virginia provided that such individuals shall not disseminate the information further. In addition, the director may disclose such information to any relevant state or local government official to assist in responding to the emergency. Any information so disclosed shall at all times be considered confidential and shall not be construed as publicly available. The director shall notify the trade secret claimant or holder of disclosures made to relevant state or local government officials as soon as practicable after such disclosure is made.

E. An operator may not withhold information related to chemical ingredients used in hydraulic fracturing, including information identified as a trade secret, from any health professional or emergency responder who needs the information for diagnostic, treatment, or other emergency response purposes subject to procedures set forth in 29 CFR 1910.1200(i). An operator shall provide directly to a health professional or emergency responder, all information in the person's possession that is required by the health professional or emergency responder, whether or not the information may qualify for trade secret protection under this section. The person disclosing information to a health professional or emergency responder shall include with the disclosure, as soon as circumstances permit, a statement of the health professional's confidentiality obligation. In an emergency situation, the operator shall provide the information immediately upon request to the person who determines that the information is necessary for emergency response or treatment. The disclosures required by this subsection shall be made in accordance with the procedures in 29 CFR 1910 with respect to a written statement of need and confidentiality agreements, as applicable.

4VAC25-150-410. Venting and flaring of gas; escape of oil.

A. It shall be unlawful for any permittee to allow crude oil or natural gas to escape from any well, gathering pipeline or storage tank except as provided for in this section or in an approved operations plan. The permittee shall take all reasonable steps to shut in the gas or oil in the well, or make the necessary repairs to the well, gathering pipeline or storage tank to prevent the escape. All actions shall be consistent with the requirements of an abatement plan, if any has been set, in a notice of violation or closure, emergency or other order issued by the director.

B. A permittee shall drill or repair a well with special diligence so that waste of gas or oil from the well shall not continue longer than reasonably necessary under the following circumstances:

1. When, during drilling, gas or oil is found in the well and the permittee desires to continue to search for gas or oil by drilling deeper; or

2. When making repairs to any well producing gas or oil, commonly known as cleaning out.

C. No gas shall be flared or vented from a well for more than seven days after completion of the well except in these circumstances:

1. When a well must be blown to remove accumulated formation fluid which has restricted efficient production, or the well must be otherwise cleaned out as provided for in subsection B of this section;

2. For the safety of mining operations;

3. For any activity excluded in the definition of "waste" under § 45.1-361.1 § 45.2-1600 of the Act; or

4. For any other operational reason approved in advance by the director.

D. In all cases where both gas and oil are found and produced from the same stratum, the permittee shall use special diligence to conserve and save as much of the gas as is reasonably possible.

E. Venting shall only be used when flaring is not safe or not feasible.

4VAC25-150-435. Plugging for abandonment or plug-back operations.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the director. A permit modification is required if the well was not previously permitted for plugging.

2. Any person may file an application with the director to replug a previously plugged well in any manner permissible under provisions of this section to facilitate the safe mining-through of the well at a later date. The application shall be treated in all respects like any other application for a permit under § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

3. The director may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of the Act:

a. The coal owner or operator requests a special plugging program to facilitate mine safety, mining through the well, or to obtain approval from another governmental agency for the safe mining-through of a well. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, a stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a well or section of a well without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At a point approximately 20 feet above each oil, gas or water-bearing stratum in open hole, a plug shall be placed so as to completely seal the wellbore. Whenever two or more gas or oil stratum are not widely separated, they may be treated as a single stratum and plugged accordingly. Cement plugs shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of open hole bridge plugs.

2. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly. This subsection applies only to coal seams which occur at a depth compatible with mining. Coal-bearing sections at greater depths may be plugged in accordance with subdivision B 1 of this section.

3. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

4. A cement plug of a minimum length of 100 feet shall be placed across the shoe of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the well is without surface casing, a continuous cement plug shall be placed from at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

5. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the wellbore by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each oil, gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill-up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If the well penetrates a minable coal-bearing section, and no coal-protection casing was used, and if surface (water-protection) casing is either absent or not properly placed and cemented to surface, the production casing shall be converted to a coal-protection string by perforating at least 50 feet below the base of the lowest coal stratum, and circulating cement in the annulus from that point to the surface.

c. At each coal seam in a minable coal-bearing section which is protected by a properly installed and cemented coal-protection string, a cement plug shall be placed in casing from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. If there is uncemented annulus between the inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

d. If a fresh water aquifer is exposed to the wellbore in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

e. At a point no less than 50 feet below the shoe of surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

f. From a point not less than 50 feet below surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

g. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision C 1 of this section.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal lengths inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the wellbore, or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity such as a cavern, mine void, blast stimulation zone or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest gas or oil stratum in the well, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest gas or oil stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision E 1 of this section.

4VAC25-150-470. Release of bond.

A. Application for bond release.

A permittee desiring to have a bond released by the director shall apply in writing identifying the operation, and documenting that the well or disturbed land meets the requirements for partial or full bond release. A bond may be reduced or released by the director only in writing.

B. Partial bond release.

The portion of a permittee's bond covering disturbed land may be released as follows:

1. A permittee with an individual bond under § 45.1-361.31 A § 45.2-1633 of the Code of Virginia shall be eligible for release of the portion of the bond covering disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

2. A permittee with a blanket bond under § 45.1-361.31 B § 45.2-1633 of the Code of Virginia shall be eligible for release of 75% of the portion of the bond calculated on acreage of disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

C. Full bond release.

A permittee's bond or coverage of a well and land under a blanket bond is eligible for full release when:

1. A well has been plugged, the plugging affidavit has been submitted to the director and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

2. The well is abandoned as a water well in accordance with 4VAC25-150-440 of this chapter and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

3. The well is abandoned as a vertical ventilation hole in accordance with 4VAC25-150-650 of this chapter and the land under the bond is permitted by the department's Division of Mined Land Reclamation Repurposing or has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter; or

4. Other bond has been accepted by the director.

4VAC25-150-480. Orphaned wells; right of entry.

A. Written consent from the owner of record or lessee, or their authorized agents, is the preferred means for obtaining agreements to enter lands in order to carry out plugging of orphaned wells and restoration of their sites. Nonconsensual entry under § 45.1- 361.27 § 45.2-1629 E of the Code of Virginia shall be undertaken only after reasonable efforts have been made to obtain written consent.

B. Consent and entry shall meet the following standards:

1. The director or authorized contractors may enter lands to perform plugging and restoration activities or to conduct studies or investigations of orphaned wells if consent from the owner is obtained.

2. If consent is not obtained, then, prior to entry under this section, the director shall find, in writing, with supporting reasons, that:

a. Citizens or the environment of the Commonwealth or persons involved in coal or mineral mining may be at risk from an orphaned well; and

b. The owner of the land where entry must be made to plug an orphaned well and restore the site is not known or readily available, or the owner will not give permission for the director or authorized contractors to enter to plug the orphaned well and reclaim the site.

C. If consent is not obtained, the director shall give notice of his intent to enter for the purposes of conducting plugging and restoration at least 30 days before entry into the property. The notice shall be in writing and shall be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one or more places on the property to be entered, where it is readily visible to the public. The notice posted on the property and the newspaper notice pursuant to § 45.1-361.40 § 45.2-1642 C of the Code of Virginia shall include a statement of where the findings required by this section may be inspected or obtained.

4VAC25-150-510. Plats, conventional wells or Class II injection wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a conventional gas or oil well shall show:

1. The boundaries of any drilling unit established by the board around the subject well;

2. The boundaries and acreage of the tract on which the well is located or is to be located;

3. The boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 500 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 500 feet of a proposed gas or oil well;

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well; and

9. If the plat is for an enhanced oil recovery injection well, any other well within 2,500 feet of the proposed or actual well location, which shall be presumed to embrace the entire area to be affected by an enhanced oil recovery injection well in the absence of a board order establishing units in the target pool of a different size or configuration.

B. If the well location is underlain by known coal seams, or if required by the director, the well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall in any event show all other wells, surface mines and mine openings within the scope of the plat.

4VAC25-150-560. Application for a permit, coalbed methane well operations.

In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a coalbed methane gas well shall contain:

1. An identification of the category of owner or operator, as listed in § 45.1-361.30 § 45.2-1632 A of the Code of Virginia, that each person notified of the application belongs to;

2. The signed consent required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia;

3. Proof of conformance with any mine development plan in the vicinity of the proposed coalbed methane gas well, when the Virginia Gas and Oil Board has ordered such conformance;

4. The approximate depth to which the well is proposed to be drilled or deepened, or the actual depth if the well has been drilled;

5. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the well is proposed to be drilled;

6. If casing or tubing is proposed to be or has been set, a description of the entire casing program, including the size of each string of pipe, the starting point and depth to which each string is to be or has been set, and the extent to which each string is to be or has been cemented together with any request for a variance under 4VAC25-150-580; and

7. The procedures to be followed to protect the safety of persons working in an underground coal mine for any coalbed methane well to be drilled within 200 feet of or into active workings. The permittee shall give notice of such drilling to the mine operator and the chief at least two working days prior to drilling.

4VAC25-150-590. Plats, coalbed methane wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a coalbed methane gas well shall show:

1. Boundaries and acreage of any drilling unit established by the board around the subject well;

2. Boundaries and acreage of the tract on which the well is located or is to be located;

3. Boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 750 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 750 feet of a proposed gas or oil well; and

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well.

B. The well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall show all other wells within the scope of the plat.

4VAC25-150-620. Coalbed methane gas wellhead equipment.

Wellhead equipment and facilities installed on any gob well or on any coalbed methane gas well subject to the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Code of Virginia addressing mining near or through a well shall include a safety precaution plan submitted to the director for approval. Such plans shall include, but shall not be limited to, flame arrestors, back-pressure systems, pressure-relief systems, vent systems and fire-fighting equipment. The director may require additional safety precautions or equipment to be installed on a case-by-case basis.

4VAC25-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Applicant" means a person or business who files an application, petition, appeal or other request with the Division of Gas and Oil.

"Board" means the Virginia Gas and Oil Board.

"Complete application" means all the materials required to be filed by the applicant under this chapter.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Directional survey" means a well survey that measures the degree of deviation of a hole, or distance, from the vertical and the direction of departure.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Division director" means the Director of the Division of Gas and Oil.

"Election" means the performance of an act within the time established or required by statute, order or regulation. An election required to be made by board order or regulation must be in writing and (i) be personally delivered to the person or agent of the person described in the order or regulation by the date established or required, or (ii) be mailed to the person or agent of the person described in the order or regulation at the address stated therein and be postmarked by the United States Postal Service before midnight on the date established or required.

"Field" means the general area underlain by one or more pools.

"Gas/oil ratio" means the product of the number of Mcf of natural gas produced from a well divided by the number of barrels of oil produced from the well as determined by a gas/oil ratio test.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Inclination survey" means a well survey to determine the deviation, using the surface location of the well as the apex, of a well bore from the true vertical beneath the apex on the same horizontal subsurface plane.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mine development plan" means a permit or license application filed with the Division of Mines or Mined Land Reclamation Repurposing for legal permission to engage in extraction of coal resources.

"Oil well" means any well which produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Petitioner" means any person or business who files a petition, appeal, or other request for action with the Division of Gas and Oil or the Virginia Gas and Oil Board.

"Pooling" means the combining of all interests or estates in a gas, oil or coalbed methane drilling unit for the development and operations thereof. Pooling may be accomplished either through voluntary agreement or through a compulsory order of the board.

"Respondent" means a person named in an application, petition, appeal or other request for board action and against whom relief is sought by the applicant, or a person who under the terms of a board order, is required to make an election.

"Unit operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-160-20. Authority and applicability.

A. This chapter is promulgated by the Virginia Gas and Oil board pursuant to § 45.1-361.15 § 45.2-1614 of the Code of Virginia.

B. As provided for in the Virginia Acts of Assembly, 1990, Chapter 92, all All field rules and orders issued pursuant to the provisions of the Oil and Gas Act of 1982, Chapter 22 (§ 45.1- 286 et seq.) of Title 45.1 of the Code of Virginia shall remain in force and effect until modified or revoked pursuant to the provisions of the Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The requirements of this chapter are in addition to requirements of field rules and orders.

4VAC25-160-30. Administrative provisions.

A. The Virginia Gas and Oil Board shall meet on the third Tuesday of each calendar month unless no action is required by the board or unless otherwise scheduled by the board. All hearings shall be scheduled in accordance with the requirements for notice by publication in § 45.1-361.19 § 45.2-1618 of the Code of Virginia. Except where otherwise established by the Act, the board may establish deadlines for filing materials for meetings or hearings scheduled on other than the third Tuesday of each month. Except where otherwise established by the Act, filings shall be in electronic form or a format prescribed by the board.

B. Applications to the board must be filed by the following deadlines:

1. All applications, petitions, appeals or other requests for board action must be received by the division at least 30 calendar days prior to the regularly scheduled meeting of the board. If the 30th day falls on a weekend or a legal holiday, the deadline shall be the prior business day.

2. When required, the following material must be filed with the division at least seven calendar days prior to the regularly scheduled meeting of the board in order for the application to be considered a complete application:

a. The affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

b. Proof of notice by publication in accordance with 4VAC25-160-40 D.

C. A complete application that is not filed by the deadlines of this subsection shall be carried over to the next scheduled meeting of the board. A submission that does not contain a complete application shall not be considered by the board until the application is complete.

D. The division shall assign a docket number to each application or petition at the time of payment receipt and filing. The division shall notify the applicant of the completed filing and assigned docket number. The docket number shall be referenced when submitting material regarding the application or petition.

E. In addition to the other requirements of this chapter, applications to the board shall meet the following standards:

1. Each application for a hearing before the board shall be headed by a caption, which shall contain a heading including:

a. "Before the Virginia Gas and Oil Board";

b. The name of the applicant;

c. The relief sought; and

d. The docket number assigned by the division.

2. Each application shall be signed by the applicant, an authorized agent of the applicant, or an attorney for the applicant, certifying that, "The foregoing application to the best of my knowledge, information, and belief is true and correct."

3. Exhibits shall be identified by the docket number and an exhibit number and may be introduced as part of a person's presentation.

4. Applicants shall submit a copy of each application and exhibits. Each person offering exhibits into evidence shall also have available a reasonably sufficient number of exhibits for other persons who are subject to the provisions of §§ 45.1-361.19 45.2-1618 and 45.1-361.23 45.2-1625 of the Code of Virginia, who have notified the division of their request for copies of exhibits, and are expected to be in attendance at the hearing.

F. Applications for the establishment and modification of a unit, spacing or pooling shall be accompanied by a $130 nonrefundable fee, payable to the Treasurer of Virginia.

G. All parties in any proceeding before the board are entitled to appear in person or be represented by counsel, as provided for in the Administrative Process Act, § 2.2-4000 et seq. of the Code of Virginia.

4VAC25-160-40. Notice of hearings.

A. Each applicant for a hearing to establish an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia shall provide notice by electronic mail, by certified mail, return receipt requested, or by another commercial carrier including Federal Express and United Parcel Service, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less. Each applicant for a hearing to establish an exception to a well location provided for in a drilling unit established by an order of the board shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying the unit where the exception is requested.

B. Each applicant shall include, in or with the mailed notice of the hearing required under § 45.1-361.19 § 45.2-1618 of the Code of Virginia, the following information:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or proposed order;

4. Citations of statutes, rules, orders and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. a. For a pooling order, the notice should include: a plat showing the size and shape of the proposed unit and boundaries of tracts within the unit. The location of the proposed unit shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. The plat shall include property lines taken from (i) deed descriptions and chain of title, (ii) county courthouse records, or (iii) a physical survey for each land track in the unit. The location of the well and the percentage of acreage in each tract in the unit shall be certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

b. For a field rule, the notice should include: a description of the pool or pools in the field, the boundaries of the field, information on the acreage and boundaries of the units proposed to be in the field and any proposed allowable production rates; or

c. For a location exception, the notice should include: a description of the proposed well location in relation to other wells within statewide spacing limits or in relation to the allowable area for drilling within a unit;

7. A description of the interest or claim of the respondent being notified;

8. A description of the formation or formations to be produced;

9. An estimate of the amount of reserves of the unit;

10. An estimate of the allowable costs in accordance with 4VAC25-160-100; and

11. How interested persons may obtain additional information or a complete copy of the application.

C. When after a diligent search the identity or location of any person to whom notice is required to be given in accordance with subsection A or B of this section is unknown at the time the applicant applies for a hearing before the board, the applicant for the hearing shall cause a notice to be published in a newspaper of general circulation in the county, counties, city, or cities where the land or the major portion thereof which is the subject of the application is located. The notice shall include:

1. The name and address of the applicant;

2. A description of the action to be considered by the board;

3. A map showing the general location of the area that would be affected by the proposed action or a description that clearly describes the location or boundaries of the area that would be affected by the proposed action sufficient to enable local residents to identify the area;

4. The date, time and location of the hearing at which the application is scheduled to be heard; and

5. How interested persons may obtain additional information or a complete copy of the application.

D. Notice of a hearing made in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia or this section shall be sufficient, and no additional notice is required to be made by the applicant upon a postponement or continuance of the hearing.

E. Each applicant for a hearing to modify an order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each person having an interest underlying the tract or tracts to be affected by the proposed modification.

F. An applicant filing a petition to modify a forced pooling order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia to change the unit operator based on a change in the corporate name of the unit operator; a change in the corporate structure of the unit operator; or a transfer of the unit operator's interests to any single subsidiary, parent or successor by merger or consolidation is not required to provide notice. Other applicants for a hearing to modify a forced pooling order shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each respondent named in the order to be modified whose interest may be affected by the proposed modification.

4VAC25-160-50. Applications for field rules.

Each application filed under § 45.1-361.20 § 45.2-1619 of the Code of Virginia to establish or modify a field rule, a drilling unit or drilling units shall contain:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and the proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. In the case where a field rule is proposed to be established or modified:

a. A statement of the type of field (gas, oil or coalbed methane gas);

b. A description of the proposed formation or formations subject to the petition; and

c. A description of the pool or pools included in the field, based on geological and technical data, including the boundaries of the pool or pools and field, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System;

6. In the case where a drilling unit or units are proposed to be established or modified:

a. A statement of the acreage to be embraced within each drilling unit;

b. A description of the formation or formations to be produced by the well or wells in the unit or units; and

c. The boundaries of the drilling unit or units shown in accordance with subdivision 5 c of this section;

7. A statement of the amount of acreage to be included in the order;

8. A statement of the proposed allowable production rate or rates and supporting documentation, if applicable;

9. Evidence that any proposal to establish or modify a unit or units for coalbed methane gas will meet the requirements of § 45.1-361.20 § 45.2-1619 of the Code of Virginia;

10. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

11. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-60. Applications for exceptions to minimum well spacing requirements.

Applications for an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia or under a field rule issued by the board shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application for an exception to spacing established in a field rule, identification of the order governing spacing in the field;

3. A statement of the proposed location of the well in relation to wells permitted or for which a permit application is pending before the Division of Gas and Oil at the time of filing within the distances prescribed in § 45.1-361.17 § 45.2-1616 of the Code of Virginia;

4. A description of the formation or formations to be produced by the well proposed for alternative spacing and the wells identified in subdivision 3 of this section;

5. A description of the conditions justifying the alternative spacing;

6. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with 4VAC25-160-40; and

7. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-70. Applications to pool interests in a drilling unit: conventional gas or oil or no conflicting claims to coalbed methane gas ownership.

A. Applications filed under § 45.1-361.21 § 45.2-1620 of the Code of Virginia to pool interests in a drilling unit for conventional gas or oil or for coalbed methane gas where there are no conflicting claims to ownership of the coalbed methane gas, except as provided for in subsection B of this section, shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. The permit number or numbers, if any have been issued;

7. A plat showing the size and shape of the proposed unit and boundaries of tracts within the unit, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. Also included shall be the names of owners of record of the tracts, and the percentage of acreage in each tract, certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

8. A description of the status of interests to be pooled in the unit at the time the application is filed;

9. For an application to pool a coalbed methane gas unit, a statement of the percentage of the total interest held by the applicant in the proposed unit at the time the application for the hearing is filed;

10. A statement of the names of owners and the percentage of interests to be escrowed under § 45.1-361.21 D § 45.2-1620 of the Code of Virginia for each owner whose location is unknown at the time the application for the hearing is filed;

11. A description of the formation or formations to be produced;

12. An estimate of production over the life of well or wells, and, if different, an estimate of the recoverable reserves of the unit;

13. An estimate of the allowable costs in accordance with 4VAC25-160-100;

14. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40 C; and

15. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

B. Applications to amend an order pooling interests in a drilling unit may be filed by written stipulation of all persons affected. The application is not required to contain the information specified in subsection A of this section, but shall contain the proposed amended language to the order, shown by interlineation.

C. Within 45 days after the time for election provided in any pooling order has expired, the unit operator shall file an affidavit with the board stating whether or not any elections were made. If any elections were made, the affidavit shall name each respondent making an election and describe the election made. The affidavit shall state if no elections were made or if any response was untimely. The affidavit shall be accompanied by a proposed supplemental order to be made and recorded to complete the record regarding elections. The affidavit and proposed supplemental order shall be filed by the unit operator within 45 days of the last day on which a timely election could have been delivered or mailed, or within 45 days of the last date for payment set forth in the pooling order, whichever occurs last. The applicant shall mail a true and correct copy of any supplemental order to all persons identified in the supplemental order.

4VAC25-160-80. Applications to pool interests in a drilling unit: conflicting claims to coalbed methane gas ownership.

In addition to the information required in 4VAC25-160-70 of this chapter, applications filed under § 45.1-361.22 § 45.2-1622 of the Code of Virginia to pool interests in a drilling unit for coalbed methane gas where there are conflicting claims to ownership of the coalbed methane gas shall contain a description of the conflicting ownership claims and the percentage of interests to be escrowed for the conflicting claims, and a plan for escrowing the costs of drilling and operating the well or wells and the proceeds from the well or wells attributable to the conflicting interests.

4VAC25-160-100. Allowable cost which may be shared in pooled gas or oil operations.

A. The unit operator of a pooled unit may share all reasonable costs of operating the unit, including a reasonable supervision fee, with other participating and nonparticipating operators, as provided for in § 45.1-361.21 § 45.2-1620 of the Code of Virginia, which may include:

1. Direct costs:

a. Ecological and environmental;

b. Rentals and royalties;

c. Labor;

d. Employee benefits;

e. Material;

f. Transportation;

g. Services;

h. Equipment and facilities furnished by the unit operator;

i. Damages and losses to joint property;

j. Legal expenses;

k. Taxes;

l. Insurance;

m. Abandonment and reclamation;

n. Communications; and

o. Other expenditures.

2. Indirect charges:

a. Drilling and production operations;

b. Major construction; and

c. Catastrophe.

B. Where there are conflicting royalty claims to coalbed methane gas, the unit operator of a forced pooled coalbed methane gas unit shall deposit proceeds in accordance with § 45.1-361.22 § 45.2-1622 of the Code of Virginia, to be determined at the wellhead.

C. Where there are conflicting claims and one or more persons have elected to become participating or nonparticipating operators, the unit operator of a forced pooled coalbed methane gas unit shall escrow net proceeds after deduction for royalty and other costs consistent with the terms of this chapter and the board's order regarding the unit.

D. In any dispute which may arise regarding a unit operator's costs, the unit operator shall be entitled to the benefit of a presumption of reasonableness where it is shown that the types of costs being disputed are, by custom and practice, customary and usual within the industry. The unit operator shall not be entitled to a presumption of reasonableness of the amount of the costs being disputed.

E. Unless one or more respondents elect to participate or elect to be a nonparticipating operator on a carried basis, the unit operator shall have no obligation to report costs after the expiration of the election period.

4VAC25-160-120. Applications to change the unit operator for a unit established by order of the board.

A. Transfer of the right to operate a unit established by the board must be approved by the board prior to the transfer of unit operations to a new operator.

1. For a voluntary transfer, the proposed new unit operator shall file written notification of the proposed transfer of operations.

2. An involuntary transfer may be requested by an applicant or considered by the board on its own motion if the unit operator has not continued gas or oil operations of the unit with due diligence, or the permit for any well in the unit has been revoked by the department.

B. The request for a transfer shall include:

1. The name and address of the existing unit operator;

2. The name and address of the proposed new unit operator;

3. Written approval from the existing unit operator, or a detailed statement of the facts supporting the removal of the existing operator; and

4. Identification of the order to be amended.

C. The notice of the board hearing shall be provided under § 45.1-361.19 B § 45.2-1618 of the Code of Virginia.

4VAC25-160-130. Appeals of the director's decisions.

A. Appeals of the division director's decisions shall be filed in writing, at the office of the division, in accordance with §§ 45.1-361.23 45.2-1625 and 45.1-361.36 45.2-1637 of the Code of Virginia.

B. A petition to appeal a decision of the division director shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. Identification of the decision being appealed, and the date the decision was issued;

3. A statement identifying the standing of the petitioner to appeal;

4. A statement setting forth the reasons for the appeal, including errors alleged in the director's decision and the reasons why the decision is deemed contrary to law or regulation;

5. A statement that the issues on appeal were in fact raised as required by § 45.1-361.36 B § 45.2-1637 of the Code of Virginia;

6. A statement setting forth the specific relief requested; and

7. When a stay to any proposed activity allowed as a result of the director's decision is desired, a request for the stay and the basis for granting the stay.

C. Upon receipt of an appeal containing a request for a stay, the division director shall decide on the request in accordance with § 45.1-361.23 D § 45.2-1625 of the Code of Virginia.

4VAC25-160-140. Miscellaneous petitions to the board.

A. Any petition to the board not otherwise provided for in this chapter shall be made in writing, and shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. The names and addresses of any persons who are named as respondents in the petition;

3. An affidavit that notice has been given to each respondent, if any, named in the petition;

4. A statement of the issues of the petition; and

5. A statement setting forth the specific relief requested.

B. If a petitioner for a unit under § 45.1-361.17 § 45.2-1616 or § 45.1-361.22 § 45.2-1622 fails to provide notification to an owner of interest of any part of a unit subject to a petition before the board, then such party may file a written objection to the proceedings in the form of a petition as set out in subsection A of this section. Such petition does not require the submission of an application fee as required in 4VAC25-160-30 F.

4VAC25-160-150. Effective dates for and enforcement of board orders.

A. All orders issued by the board under § 45.1-361.20 § 45.2-1619 of the Code of Virginia shall remain in effect until vacated or amended by the board on its own motion or on application from an owner or operator in the field or unit subject to the order.

B. Unless otherwise provided in the board order, all orders issued by the board under §§ 45.1-361.21 45.2-1620 and 45.1-361.22 45.2-1622 of the Code of Virginia shall remain in effect:

1. For a period of two years from the date of issuance of the board order;

2. If a permit has been issued for a well in a unit subject to the order, until the permit or permits have expired or been released on the well or wells; or

3. Until vacated or amended by the board on its own motion or on application.

C. In the event that an appeal is taken from any order of the board, the time between the filing of the petition for appeal and the final order of the circuit court shall be excluded in calculating the time period as contained in subsection B of this section.

D. All orders of the board shall be enforced by the director pursuant to the process set out in this chapter and § 45.1-361.24 § 45.2-1626 of the Code of Virginia.

4VAC25-160-190. Civil charges.

A. Civil charges shall be provided for in accordance with § 45.1-361.8 C § 45.2-1608 of the Code of Virginia.

B. The division director, after finding any violation of the Act, a regulation promulgated under the Act, or order of the director or board, or upon direction from the board, may recommend a civil charge against a gas, oil or geophysical operator and shall base the recommendation on the Civil Charge Calculation Procedure established by order of the board.

4VAC25-160-200. Surveys and tests.

A. Deviation tests.

1. An inclination survey shall be made on all rotary drilled wells located in accordance with a field rule established by the board. An inclination survey is not required for wells drilled in accordance with the distance limitations of § 45.1-361.17 § 45.2-1616 of the Code of Virginia.

2. The first shot point shall be at a depth not greater than the bottom of the surface casing or, for a well drilled through a coal seam, at a depth not greater than that of the bottom of the coal protection string. Succeeding shot points shall be no more than 1,000 feet apart, or as otherwise ordered by the director.

3. Inclination surveys conforming to these requirements may be made either during the normal course of drilling or after the well has reached total depth. Survey data shall be certified in writing as being true and correct by the designated agent or person in charge of a permittee's Virginia operations, or the drilling contractor, and shall indicate the resultant lateral deviation as the maximum calculated lateral displacement determined at any inclination survey point in a horizon approved for production, by an order of the board or a permit approved by the director, assuming that all displacement occurs in the direction of the nearest boundary of the unit. The resultant lateral deviation shall be recorded on the drilling or completion report filed by the permittee.

4. If a directional survey determining the location of the bottom of the hole is filed upon completion of the well, it shall not be necessary to file the inclination survey data.

5. A directional survey shall be made when:

a. A well is directionally controlled and is thereby intentionally deflected from vertical;

b. The resultant lateral deviation of any well, calculated from inclination survey data, is greater than the distance from the center of the surface location of the well bore to the nearest boundary of the area where drilling is allowed in a unit established by the board; or

c. A well is drilled as an exception location and a directional survey is ordered by the board.

6. The board or the director, on their own initiative or at the request of a gas or oil owner on a contiguous unit or tract, may require the permittee drilling any well to make a directional survey of the well if there is reasonable cause therefor. Whenever a survey is required by the board or the director at the request of a contiguous owner and the permittee of the well and contiguous owner are unable to agree as to the terms and conditions for making the directional survey, the permittee shall pay for the survey if the bottom hole location is found to be outside of the area approved for drilling, and the contiguous owner shall pay for the survey if the bottom hole location is found to be inside of the area approved for drilling.

7. Directional surveys shall be run from total depth to the base of the surface casing or coal protection string, unless otherwise approved by the board or the director. In the event that the proposed or final location of the producing interval or intervals of any well is not in accordance with this section or a board order, the unit operator shall apply to the board for an exception to spacing. However, directional surveys to total depth shall not be required in cases where the interval below the latest survey is less than 500 feet, and in such an instance, a projection of the latest survey shall be deemed to satisfy board requirements.

8. The results of each inclination or directional survey made in accordance with this section shall be filed by the permittee with the first drilling or completion report required by the division.

B. Flow potential and gas/oil ratio tests: conventional gas or oil wells.

1. If a gas or oil well appears capable of producing gas or oil, the permittee shall conduct a potential flow test and a gas/oil ratio test within 14 days after the well is completed and capable of producing gas or oil. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

2. If a permittee deepens or stimulates a well after the initial potential flow test and gas/oil ratio test have been conducted, when determined to be necessary by the permittee or when requested by the board, the permittee shall conduct another potential flow test and gas/oil ratio test and, within 30 days after completing the test, file the results, in writing, with the division.

3. A back-flow method of determining open flow shall be used, such as recommended by the Interstate Oil and Gas Compact Commission, "Manual of Back-Pressure Testing of Gas Wells," 2000. However, when a back-flow method is believed not to be feasible, the permittee shall obtain prior approval from the division, and test the well in accordance with, an alternate method approved by the director that does not entail excessive physical waste of gas.

C. Testing of coalbed methane gas wells. If a permittee cannot test the potential flow of a coalbed methane gas well by a back-flow method or complete the test within the time period required in subdivision B 1 of this section, the permittee may request approval from the director to perform a coalbed methane gas production test. Such a test shall only be made when the water production and the gas flow rates are stabilized for a period of not less than 14 days prior to the test. The test shall be conducted for a minimum of 24 hours in the manner approved by the director. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

D. The board may, by order and after notice and hearing, require a permittee to complete other tests on any well.

4VAC25-165-10. Definitions.

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise.

"Accrued interest" means funds accrued during the preceding 36 months on total proceeds held in the general escrow account. Accrued interest does not include escrow account fees or administrative costs of the board related to the general escrow account.

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Arbitrator" means a qualified individual appointed by a court to render a determination in an ownership dispute concerning coalbed methane gas.

"Board" means the Virginia Gas and Oil Board.

"Claimant" means a person or entity in a dispute over ownership of coalbed methane gas who has agreed to arbitration to resolve the dispute.

"Court" means a circuit court in the Commonwealth of Virginia wherein the majority of the subject tract of land is located.

"Department" means the Department of Mines, Minerals and Energy.

"Escrow account" means the account established by the board pursuant to § 45.1-361.21 § 45.2-1620 and subdivision 2 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

"Ex parte communication" means any form of communication between an arbitrator and a claimant without the presence of the opposing claimant.

"Operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-165-30. Qualification of arbitrators.

The department shall review all applications from potential arbitrators pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia. Applications shall be submitted on a form prescribed by the department. In order to qualify, applicants must demonstrate substantial expertise in mineral title examination. Substantial expertise shall be determined on an individual basis. The department shall notify applicants deemed to be qualified.

The department shall maintain a list of qualified arbitrators and update it annually. The list shall be supplied to the court when the board issues an order for arbitration. Pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia, the court has the discretion to appoint an individual not on the list of qualified arbitrators.

In order to maintain a current, accurate list, qualified arbitrators shall at least annually update their disclosures to the department.

4VAC25-165-40. Agreement to arbitrate.

Claimants shall submit their request of arbitration to the board on a form prescribed by the department. Claimants shall also provide an affidavit pursuant to § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia.

4VAC25-165-50. Conflicts of interest.

In addition to the limitations set forth in § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia, an arbitrator may not hear an arbitration if the arbitrator is related to one of the claimants, has a personal interest in the subject of the arbitration, or if other circumstances exist that might affect the arbitrator's ability to render a fair determination. If evidence of a conflict exists under this section, a claimant may petition the court to appoint a different arbitrator.

4VAC25-165-60. Location.

The arbitrator shall determine an appropriate time and place for the arbitration. The arbitration shall take place in the jurisdiction where the majority of the subject tract is located, unless all claimants agree to an alternate location. Notice to claimants shall be given pursuant to the requirements of § 45.1-361.22:1 D § 45.2-1623 of the Code of Virginia.

4VAC25-165-80. Discovery.

Pursuant to §§ 8.01-581.06 and 45.1-361.22:1 D 45.2-1623 of the Code of Virginia, the arbitrator may issue subpoenas, administer oaths, and take depositions. Additionally, any documents a claimant intends to introduce at the arbitration must be shared with the opposing claimant and the arbitrator not less than five days prior to the arbitration. If this provision is found not to be met, the arbitrator may elect to continue the arbitration.

4VAC25-165-90. Extension of arbitration.

If, pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the claimants agree that the arbitrator may take longer than six months from the date the board ordered the arbitration to render a determination, the arbitrator shall notify the board of this extension.

4VAC25-165-100. Determination of arbitrator.

Pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the determination of the arbitrator shall be in writing and sent to the board and each party to whom notice is required to be given. The determination shall include, at a minimum, a finding of facts and an explanation for the basis of the determination. A copy of the determination shall be placed on the department's website. The arbitrator shall record the determination with the clerk's office of the court.

4VAC25-165-120. Fees.

Arbitrators shall be paid at the rate of no more than $250 per hour. Expenses of the arbitrator incurred during the course of the arbitration shall be reimbursed in accordance with the State Travel Regulations prescribed by the Department of Accounts. Arbitrators shall submit a complete W-9 form to the department before payment is made.

Pursuant to § 45.1-361.22:1 F § 45.2-1623 of the Code of Virginia, payment of fees and expenses of the arbitration may be delayed if there are intervening disbursements from the general escrow account under subdivision 5 (i) or (iii) of § 45.1-361.22 § 45.2-1623 of the Code of Virginia that reduce the interest balance below the amount of fees and expenses requested.

4VAC25-165-130. Disbursement of proceeds.

Within 30 days of receipt of an affidavit from the claimants affirming the determination, the operator shall petition the board for disbursement pursuant to subdivision 5 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

4VAC25-170-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bottom hole temperature" means the highest temperature measured in the well or bore hole. It is normally attained directly adjacent to the producing zone, and commonly at or near the bottom of the borehole.

"Casing" means all pipe set in wells.

"Conservation" means the preservation of geothermal resources from loss, waste, or harm.

"Correlative rights" means the mutual right of each overlying owner in a geothermal area to produce without waste a just and equitable share of the geothermal resources. Just and equitable shares shall be apportioned according to a ratio of the overlying acreage in a tract to the total acreage included in the geothermal area.

"Department" means the Virginia Department of Mines, Minerals and Energy.

"Designated agent" means that person appointed by the owner or operator of any geothermal resource well to represent him.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division director" means the Director of the Division of Gas and Oil, also known as the Gas and Oil Inspector as defined in the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia or his authorized agent.

"Drilling log" means the written record progressively describing all strata, water, minerals, geothermal resources, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, caving strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include the downhole geophysical survey records or logs if any are made.

"Exploratory well" means an existing well or a well drilled solely for temperature observation purposes preliminary to filing an application for a production or injection well permit.

"Geothermal area" means the general land area that is underlaid or reasonably appears to be underlaid by geothermal resources in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the department.

"Geothermal energy" means the usable energy produced or that can be produced from geothermal resources.

"Geothermal reservoir" means the rock, strata, or fractures within the earth from which natural or injected geothermal fluids are obtained.

"Geothermal resource" means the natural heat of the earth at temperatures 70°F or above with volumetric rates of 100 gallons per minute or greater and the energy, in whatever form, present in, associated with, or created by, or that may be extracted from, that natural heat. This definition does not include ground heat or groundwater resources at lower temperatures and rates that may be used in association with heat pump installations.

"Geothermal waste" means any loss or escape of geothermal energy, including, but not limited to:

1. Underground loss resulting from the inefficient, excessive, or improper use or dissipation of geothermal energy; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner that results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in Virginia; provided, however, that unavoidable dissipation of geothermal energy resulting from oil and gas exploration and production shall not be construed to be geothermal waste.

2. The inefficient above-ground transportation and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy.

3. The escape into the open air of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.

"Geothermal well" means any well drilled for the discovery or production of geothermal resources, any well reasonably presumed to contain geothermal resources, or any special well, converted producing well, or reactivated or converted abandoned well employed for reinjecting geothermal resources.

"Injection well" means a well drilled or converted for the specific use of injecting waste geothermal fluids back into a geothermal production zone for disposal, reservoir pressure maintenance, or augmentation of reservoir fluids.

"Monitoring well" means a well used to measure the effects of geothermal production on the quantity and quality of a potable groundwater aquifer.

"Operator" means any person drilling, maintaining, operating, producing, or in control of any well, and shall include the owner when any well is operated or has been operated or is about to be operated by or under the direction of the owner.

"Owner" means the overlying property owner or lessee who has the right to drill into, produce, and appropriate from any geothermal area.

"Permit" means a document issued by the department pursuant to this chapter for the construction and operation of any geothermal exploration, production, or injection well.

"Person" means any individual natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state or the federal government, any municipal or quasi-municipal entity whether or not it is incorporated, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind.

"Production casing" means the main casing string which protects the sidewalls of the well against collapse and conducts geothermal fluid to the surface.

"Production record" means written accounts of a geothermal well's volumetric rate, pressure and temperature, and geothermal fluid quality.

"Sequential utilization" means application of the geothermal resource to a use with the highest heat need and the subsequent channeling of the resource to other uses with lower temperature requirements before injection or disposal of the geothermal fluid.

"Unitized drilling operation" means the management of separately owned tracts overlying a geothermal area as a single drilling unit.

"Water protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-170-30. Bonds, permits and fees.

A. 1. Before any person shall engage in drilling for geothermal resources or construction of a geothermal well in Virginia, such person shall give bond with surety acceptable to the division director and payable to the Commonwealth. At the election of the permit applicant, a cash bond may be given. The amount of bond required shall be sufficient to cover the costs of properly plugging the well and restoring the site, but in no case shall the amount of bond be less than $10,000 for each exploratory and injection well, and $25,000 for each production well. Blanket bonds of $100,000 may be granted at the discretion of the division director.

2. The return of such bonds shall be conditioned on the following requirements:

a. Compliance with all statutes, rules, and regulations relating to geothermal regulations and the permit.

b. Plugging and abandoning the well as approved by the division director in accordance with 4VAC25-170-80.

3. A land stabilization bond of $1,000 per acre of land disturbed shall be required. Such bond will be released once drilling is completed and the land is reclaimed in accordance with 4VAC25-170-40.

4. Liability under any bond may not be terminated without written approval of the division director.

B. Each exploration, production, and injection well permit application shall be accompanied by payment of a $600 application fee.

1. Applications will not be reviewed until the operator or designated agent submits proof of compliance with all pertinent local ordinances.

Before commencement of exploratory drilling operations on any tract of land, the operator or designated agent shall file an exploration permit application with the department. An accurate map of the proposed wells on an appropriate scale showing adjoining property lines and the proposed locations using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and the depths and surface elevations shall be filed with the application. The application also shall include an inventory of local water resources in the area of proposed development.

2. Before commencement of production or injection well drilling, an application to produce and inject geothermal fluids shall be filed in the form of a notice of intent to proceed in accordance with the provisions of 4VAC25-170-40.

3. New permit applications must be submitted if, either prior to or during drilling, the operator desires to change the location of a proposed well. If the new location is within the boundaries established by the permit or within an unitized drilling operation, the application may be made orally and the division director may orally authorize the commencement or continuance of drilling operations. Within 10 days after obtaining oral authorization, the operator shall file a new application to drill at the new location. A permit may be issued and the old permit canceled without payment of additional fee. If the new location is located outside the unitized drilling unit covered by the first permit, no drilling shall be commenced or continued until the new permit is issued.

4. All applications, requests, maps, reports, records, notices, filings, submissions, and other data (including report forms) required by or submitted to the department shall be in electronic form or a format prescribed by the director.

5. The department will act on all permit applications within 30 days of receipt of an application or as soon thereafter as practical.

4VAC25-170-40. Notification of intent to proceed.

The notification of intent to proceed with geothermal production or injection as required by 4VAC25-170-30 must be accompanied by (i) an operations plan, (ii) a geothermal fluid analysis, and (iii) a proposal for injection of spent fluids.

1. The operations plan shall become part of the terms and conditions of any permit that is issued, and the provisions of this plan shall be carried out where applicable in the drilling, production, and abandonment phase of the operation. The department may require any changes in the operations plan necessary to promote geothermal and water resource conservation and management, prevent waste, protect potable groundwater drinking supplies, or protect the environment, including a requirement for injection or unitization. The operations plan shall include the following information:

a. An accurate plat or map, on a scale not smaller than 400 feet to the inch, showing the proposed location using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and surface elevation of the production and injection wells as determined by survey, the courses and distances of such locations from two permanent points or landmarks on said tract, the well numbers, the name of the owner, the boundaries and acreage of the tract on which the wells are to be drilled, the location of water wells, surface bodies of water, actual or proposed access roads, other production and injection wells on adjoining tracts, the names of the owners of all adjoining tracts and of any other tract within 500 feet of the proposed location, and any building, highway, railroad, stream, oil or gas well, mine openings or workings, or quarry within 500 feet of the proposed location. The location must be surveyed and the plat certified by a professional engineer or registered surveyor and bear his certificate number.

b. A summary geologic report of the area, including depth to proposed reservoir; type of reservoir; anticipated thickness of reservoir; anticipated temperature of the geothermal resource; anticipated porosity, permeability and pressure; geologic structures; and description of overlying formations and aquifers.

c. The method of meeting the guidelines of the Erosion and Sediment Control Regulations as adopted by the State Water Control Board pursuant to § 62.1-44.15:52 of the Code of Virginia.

d. The method of disposing of all drilling muds and fluids, and all cement and other drilling materials from the well site; the proposed method of preventing such muds, fluids, drillings, or materials from seeping into springs, water wells, and surface waters during drilling operations.

e. The method of construction and maintenance of access roads, materials to be used, method to maintain the natural drainage area, and method of directing surface water runoff from disturbed areas around undisturbed areas.

f. The method of removing any rubbish or debris during the drilling, production, and abandonment phases of the project. All waste shall be handled in a manner that prevents fire hazards or the pollution of surface streams and groundwater.

g. The primary and alternative method of spent geothermal fluid disposal. All disposal methods shall be in accordance with state and federal laws for the protection of land and water resources.

h. The methods of monitoring fluid quality, fluid temperature, and volumetric rate of production and injection wells.

i. The method of monitoring potable drinking water aquifers close to production and injection zones.

j. The method of monitoring for land subsidence.

k. The method of plugging and abandoning wells and a plan for reclaiming production and injection well sites.

l. The method of cleaning scale and corrosion in geothermal casing.

m. A description of measures that will be used to minimize any adverse environmental impact of the proposed activities on the area's natural resources, aquatic life, or wildlife.

2. Geothermal fluid analysis.

a. A geothermal fluid analysis shall be submitted with the operations plan, and annually thereafter.

b. Acceptable chemical parameters and sampling methods are set forth in 4VAC25-170-70 B.

3. Proposal for injection of geothermal fluids.

a. Geothermal fluid shall be injected into the same geothermal area from which it was withdrawn in the Atlantic Coastal Plain. Plans for injection wells in this area shall include information on:

(1) Existing reservoir conditions.

(2) Method of injection.

(3) Source of injection fluid.

(4) Estimate of expected daily volume in gallons per minute per day.

(5) Geologic zones or formations affected.

(6) Chemical analyses of fluid to be injected.

(7) Treatment of spent geothermal fluids prior to injection.

b. Exemptions to the injection rule for geothermal fluid shall be approved by the department. Such requests shall be accompanied by a detailed statement of the proposed alternative method of geothermal fluid disposal; the effects of not injecting on such reservoir characteristics as pressure, temperature, and subsidence; and a copy of the operator's or designated agent's no-discharge permit.

4VAC25-170-60. Records, logs and general requirements.

A. 1. During the drilling and production phases of every well, the owner, operator, or designated agent responsible for the conduct of drilling operations shall keep at the well an accurate record of the well's operations as outlined in subsection C of this section. These records shall be accessible to the division director at all reasonable hours.

2. The refusal of the well operator or designated agent to furnish upon request such logs or records or to give information regarding the well to the department shall constitute sufficient cause to require the cessation or shutting down of all drilling or other operations at the well site until the request is honored.

3. Copies of all productions records required by this chapter shall be submitted to the division director.

4. Samples representative of all strata penetrated in each well shall be collected and furnished to the Commonwealth. Such samples shall be in the form of rock cuttings collected so as to represent the strata encountered in successive intervals no greater than 10 feet. If coring is done, however, the samples to be furnished shall consist, at a minimum, of one-quarter segments of core obtained. All samples shall be handled as follows:

a. Rock cuttings shall be dried and properly packaged in a manner that will protect the individual samples, each of which shall be identified by the well name, identification number, and interval penetrated.

b. Samples of core shall be boxed according to standard practice and identified as to well name and identification number and interval penetrated.

c. All samples shall be shipped or mailed, charges prepaid, to:

Department of Mines, Minerals and Energy Division of Geology and Mineral Resources Fontaine Research Park 900 Natural Resources Drive P.O. Box 3667 Charlottesville, VA 22903

B. Each well operator, owner, or designated agent, within 90 days after the completion of any well, shall submit to the division director a copy of the drilling log. Drilling logs shall list activities in chronological order and include the following information:

1. The well's location and identification number.

2. A record of casings set in wells.

3. Formations encountered.

4. Deviation tests for every one thousand feet drilled.

5. Cementing procedures.

6. A copy of the downhole geophysical logs.

C. The owner, operator, or designated agent of any production or injection well shall keep or cause to be kept a careful and accurate production record. The following information shall be reported to the division director on a monthly basis for the first six months and quarterly thereafter, or as required by permit, unless otherwise stated:

1. Pressure measurements as monitored by valves on production and injection wells.

2. The volumetric rate of production or injection measured in terms of the average flow of geothermal fluids in gallons per minute per day of operation.

3. Temperature measurements of the geothermal fluid being produced or injected, including the maximum temperature measured in the bore-hole and its corresponding depth, and the temperature of the fluid as measured at the discharge point at the beginning and conclusion of a timed production test.

4. Hydraulic head as measured by the piezometric method.

Titles of Regulations: 4VAC25-11. Public Participation Guidelines (amending 4VAC25-11-10, 4VAC25-11-20, 4VAC25-11-120).

4VAC25-20. Board of Coal Mining Examiners Certification Requirements (amending 4VAC25-20-15, 4VAC25-20-50, 4VAC25-20-70, 4VAC25-20-90, 4VAC25-20-140, 4VAC25-20-180, 4VAC25-20-185, 4VAC25-20-190, 4VAC25-20-200, 4VAC25-20-210, 4VAC25-20-220, 4VAC25-20-360, 4VAC25-20-370, 4VAC25-20-410, 4VAC25-20-420).

4VAC25-31. Reclamation Regulations for Mineral Mining (amending 4VAC25-31-10, 4VAC25-31-30, 4VAC25-31-40, 4VAC25-31-120, 4VAC25-31-130, 4VAC25-31-150, 4VAC25-31-160, 4VAC25-31-170, 4VAC25-31-180, 4VAC25-31-200, 4VAC25-31-220 through 4VAC25-31-250, 4VAC25-31-280, 4VAC25-31-310, 4VAC25-31-320, 4VAC25-31-430, 4VAC25-31-500, 4VAC25-31-570).

4VAC25-35. Certification Requirements for Mineral Miners (amending 4VAC25-35-5, 4VAC25-35-30, 4VAC25-35-110, 4VAC25-35-120).

4VAC25-40. Safety and Health Regulations for Mineral Mining (amending 4VAC25-40-10, 4VAC25-40-25, 4VAC25-40-270, 4VAC25-40-300, 4VAC25-40-5760).

4VAC25-70. Regulations Governing Disruption of Communications in Mines (amending 4VAC25-70-10).

4VAC25-90. Regulations Governing the Use of Diesel-Powered Equipment in Underground Coal Mines (amending 4VAC25-90-10, 4VAC25-90-70).

4VAC25-101. Regulations Governing Vertical Ventilation Holes and Mining Near Gas and Oil Wells (amending 4VAC25-101-10, 4VAC25-101-50, 4VAC25-101-150, 4VAC25-101-160, 4VAC25-101-190, 4VAC25-101-200).

4VAC25-110. Regulations Governing Blasting in Surface Mining Operations (amending 4VAC25-110-10, 4VAC25-110-210). 4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-125. Regulations Governing Coal Stockpiles and Bulk Storage and Handling Facilities (amending 4VAC25-125-10).

4VAC25-130. Coal Surface Mining Reclamation Regulations (amending 4VAC25-130-700.1, 4VAC25-130-700.2, 4VAC25-130-700.3, 4VAC25-130-700.5, 4VAC25-130-700.11, 4VAC25-130-700.14, 4VAC25-130-701.11, 4VAC25-130-702.11, 4VAC25-130-702.17, 4VAC25-130-705.24, 4VAC25-130-740.15, 4VAC25-130-761.1, 4VAC25-130-761.3, 4VAC25-130-761.12, 4VAC25-130-761.16, 4VAC25-130-762.14, 4VAC25-130-764.13, 4VAC25-130-764.19, 4VAC25-130-773.13, 4VAC25-130-773.15, 4VAC25-130-774.12, 4VAC25-130-775.11, 4VAC25-130-775.13, 4VAC25-130-780.18, 4VAC25-130-784.13, 4VAC25-130-784.20, 4VAC25-130-789.1, 4VAC25-130-790.1, 4VAC25-130-790.11, 4VAC25-130-795.1, 4VAC25-130-800.16, 4VAC25-130-800.21, 4VAC25-130-800.40, 4VAC25-130-800.51, 4VAC25-130-800.52, 4VAC25-130-801.11, 4VAC25-130-801.17, 4VAC25-130-801.18, 4VAC25-130-816.76, 4VAC25-130-840.11, 4VAC25-130-840.14, 4VAC25-130-840.16, 4VAC25-130-842.12, 4VAC25-130-842.15, 4VAC25-130-843.11, 4VAC25-130-843.12, 4VAC25-130-843.13, 4VAC25-130-843.15, 4VAC25-130-843.16, 4VAC25-130-845.2, 4VAC25-130-845.15, 4VAC25-130-845.18, 4VAC25-130-845.19, 4VAC25-130-84614, 4VAC25-130-850.15, 4VAC25-130-882.13).

4VAC25-145. Regulations on the Eligibility of Certain Mining Operators to Perform Reclamation Projects (amending 4VAC25-145-10, 4VAC25-145-20, 4VAC25-145-30).

4VAC25-150. Virginia Gas and Oil Regulation (amending 4VAC25-150-10, 4VAC25-150-20, 4VAC25-150-40, 4VAC25-150-80, 4VAC25-150-90, 4VAC25-150-100, 4VAC25-150-110, 4VAC25-150-120, 4VAC25-150-130, 4VAC25-150-140 through 4VAC25-150-180, 4VAC25-150-220, 4VAC25-150-290, 4VAC25-150-365, 4VAC25-150-410, 4VAC25-150-435, 4VAC25-150-470, 4VAC25-150-480, 4VAC25-150-510, 4VAC25-150-560, 4VAC25-150-590, 4VAC25-150-620).

4VAC25-160. Virginia Gas and Oil Board Regulations (amending 4VAC25-160-10 through 4VAC25-160-80, 4VAC25-160-100, 4VAC25-160-120 through 4VAC25-160-150, 4VAC25-160-190, 4VAC25-160-200).

4VAC25-165. Regulations Governing the Use of Arbitration to Resolve Coalbed Methane Gas Ownership Disputes (amending 4VAC25-165-10, 4VAC25-165-30 through 4VAC25-165-60, 4VAC25-165-80, 4VAC25-165-90, 4VAC25-165-100, 4VAC25-165-120, 4VAC25-165-130).

4VAC25-170. Geothermal Energy Regulations (amending 4VAC25-170-10, 4VAC25-170-30, 4VAC25-170-40, 4VAC25-170-60).

Statutory Authority: § 45.2-103 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 16, 2022.

Effective Date: March 31, 2022.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TDD (800) 828-1120, or email mike.skiffington@energy.virginia.gov.

Basis: The Department of Energy's regulatory authority for this action can be found in § 45.2-103 of the Code of Virginia.

Purpose: The purpose of this regulatory action is to ensure all references to the agency name and citations of the Code of Virginia are up to date and accurate. It is in the best interest of the public's welfare for regulation and statute to conform.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because no substantive changes are proposed. The action merely updates regulations to conform to statute.

Substance: There are no substantive changes made to the regulations. The proposed changes conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and make other technical updates to conform to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodified Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia.

Issues: The primary advantage of this regulatory action is ensuring the agency's regulations are up to date and conform to statute. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 14 (as amended, July 16, 2018). The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. Pursuant to legislation from the 2021 Special Session I, the Department of Energy proposes to amend in its regulations: 1) the name of the agency and two of its divisions, and 2) citations to the Code of Virginia.

Background. Chapter 532 of the 2021 Special Session I Acts of Assembly² renamed the Department of Mines, Minerals and Energy as the Department of Energy (NRG). Within NRG, the legislation renamed the Division of Mined Land Reclamation as the Division of Mined Land Repurposing, and the Division of Energy as the Division of Renewable Energy and Energy Efficiency. NRG proposes to amend its regulations to reflect these name changes.

Chapter 387 of the 2021 Special Session I Acts of Assembly³ recodified Titles 45.1 and 67 of the Code of Virginia, which pertain to NRG, into the new Title 45.2. NRG proposes to update Code of Virginia citations in its regulations to reflect Title 45.2.

Estimated Benefits and Costs. The proposed amendments would have no impact on requirements in practice, but may be beneficial in that readers of the regulations would be better informed concerning the proper names of the agency and its divisions, and may more easily find relevant sections of the Code of Virginia.

Businesses and Other Entities Affected. The proposed amendments affect readers of the agency's regulations. It would particularly affect those seeking relevant sections of the Code of Virginia.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. No adverse impact is indicated for this proposal.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments do not disproportionately affect particular localities and do not introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantively affect the use and value of private property. The proposed amendments do not affect real estate development costs.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0532

³See https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0387

⁴Pursuant to Code § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶If the proposed regulatory action may have an adverse effect on small businesses, Code § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to Code § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Virginia Department of Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) conform regulations to the department name change in Chapter 532 of the 2021 Acts of Assembly, Special Session I, and (ii) correct citations to the Code of Virginia and other technical updates to conform regulations to Chapter 387 of the 2021 Acts of Assembly, Special Session I, which recodifies Titles 45.1 and 67 of the Code of Virginia into Title 45.2 of the Code of Virginia. No substantive amendments are made.

4VAC25-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment or repeal of the regulations of the Department of Mines, Minerals and Energy. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-11-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the Department of Mines, Minerals and Energy, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

4VAC25-11-120. Agency secretary for purpose of appeal.

For appeals of regulatory or case decisions, pursuant to Rule 2A:2 of the Rules of the Supreme Court of Virginia, the agency herein names individuals to perform the function of agency secretary.

1. For appeals relating to Chapter 14.2 (§ 45.1-161.7 et seq.), 14.3 (§ 45.1-161.105 et seq.), 14.4 (§ 45.1-161.253 et seq.) or 18 (§ 45.1-221 et seq.) of Title 45.1 5 (§ 45.2-500 et seq.), 7 (§ 45.2-700 et seq.), 8 (§ 45.2-800 et seq.), or 9 (§ 45.2-900 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mines (Chief) shall perform the functions of agency secretary.

2. For appeals relating to Chapter 14.4:1 (§ 45.1-161.292:1 et seq.), 14.5 (§ 45.1-161.293 et seq.), 14.6 (§ 45.1-161.304 et seq.), 16 (§ 45.1-180 et seq.), 18.1 (§ 45.1-225.1 et seq.) or 21 (§ 45.1-272 et seq.) of Title 45.1 11 (§ 45.2-1100 et seq.), 12 (§ 45.2-1200 et seq.), 13 (§ 45.2-1300 et seq.), 14 (§ 45.2-1400 et seq.), or 15 (§ 45.2-1500 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mineral Mining (Division Director) shall perform the functions of agency secretary.

3. For appeals relating to Chapter 15.1 (§ 45.1-179.1 et seq.) or 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 16 (§ 45.2-1600 et seq.) or 20 (§ 45.2-2000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Gas and Oil (Division Director) shall perform the functions of agency secretary.

4. For appeals relating to Chapters 17 (§ 45.1-198 et seq.) and 19 (§ 45.1-226 et seq.) of Title 45.1 Chapter 10 ( § 45.2-1000 et seq.) of Title 45.2 of the Code of Virginia, the division head of the Division of Mined Land Reclamation Repurposing (division director) shall perform the functions of agency secretary.

4VAC25-20-15. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise:

"Appropriately related work experience" means work experience which demonstrates the applicant's skill and level of responsibility in performing tasks and prepares and equips him to perform in the capacity of a certified person.

"BCME" means Board of Coal Mining Examiners.

"Chief" means the Chief of the Division of Mines.

"DMME Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines.

"DMLR" means Division of Mined Land Reclamation Repurposing.

"EMT" means emergency medical technician.

"GCM" means general coal miner.

"MSHA" means the Mine Safety and Health Administration.

"Virginia coal mine safety regulations" means 4VAC25-60 through 4VAC25-125.

4VAC25-20-50. Underground mine foreman.

A. Applicants shall possess five years mining experience, three of which shall be underground, and shall pass the underground mine foreman, map, and gas detection examinations.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college or two years credit for a degree in mining technology.

C. Applicants shall be at least 23 years of age.

D. Certified mine foremen shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

E. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete an underground mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

F. The underground mine foreman shall complete at least four hours of continuing education every two years.

G. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of underground mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia underground coal mines.

H. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

I. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

J. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-70. Surface mine foreman.

A. Applicants shall possess five years of surface coal mining experience.

B. Applicants shall pass the surface mine foreman, first aid, and gas detection examinations.

C. Certified persons shall complete the continuing education requirements in this section within two years from the date of their certification and every two years thereafter. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed prior to these deadlines.

D. The holder of the certificate, in order to receive continuing education credit, shall satisfactorily complete a surface mine foreman continuing education course approved by the chief and taught by a certified instructor or other instructor approved by the chief.

E. The surface mine foreman shall complete at least four hours of continuing education every two years.

F. The content of the continuing education course shall include the:

1. Coal Mine Safety Act, Chapter 14.2 5 (§ 45.1-161.7 § 45.2-500 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. Virginia coal mine safety regulations;

3. Responsibilities of surface mine foreman;

4. Virginia coal mine safety policies and division operators' memos; and

5. Review of fatalities and accident trends in Virginia surface coal mines.

G. A maximum of four hours in excess of the required hours may be carried over to the next continuing education period.

H. Failure to complete continuing education requirements shall result in suspension of a person's certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

I. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-90. Underground shot firer.

A. Applicants shall possess two years coal mining experience underground, one year of the two years shall have included handling and using explosives underground under the direction of a certified underground shot firer, or appropriately related work experience approved by the chief.

B. Applicants shall pass the underground shot firer and gas detection examinations.

C. Beginning August 25, 2005, a certified underground shot firer must be recertified every five years by:

1. Presenting written proof that he has performed underground blasting duties in his work during two of the last three years immediately preceding the expiration date;

2. Retaking and passing the underground shot firer examination; or

3. Presenting verification of completion of underground mine foreman or other continuing education that included underground blasting safety training.

D. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-140. Hoisting engineer.

A. Applicants shall possess two years of practical mining experience and one year of hoisting experience under the direction of a certified hoisting engineer or appropriately related work experience approved by the chief. A certified hoisting engineer shall verify the hoisting experience.

B. The applicant shall pass the hoisting engineer and gas detection examinations.

C. After the examination has been successfully completed, the applicant shall obtain written permission from a mine official to have a representative from the division observe the applicant's operation of hoisting equipment at the mine. Permission shall be on company stationery, signed by the company official, and submitted to the division.

D. A certified hoisting engineer may act as an automatic elevator operator after completing the on-site demonstration required by 4VAC25-20-240 C.

E. A hoisting engineer must be recertified every five years by:

1. Presenting written proof that he has performed hoisting engineer duties in his work during two of the last three years immediately preceding the expiration date; or

2. Retaking and passing the practical demonstration section of the hoisting engineer examination and meeting requirements of subsection C of this section.

F. Failure to maintain education or training requirements shall result in suspension of a person's certification pending completion of continuing education or training. If the continuing education or training requirement is not met within two years from the suspension date, the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last address the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-180. Underground mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Underground Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-50 for underground mine foreman.

E. Applicants shall pass the underground mine inspector examination.

F. A certificate will not be issued until an applicant is employed by the DMME department and shall only remain valid while the person is employed by the department.

4VAC25-20-185. Surface mine inspector.

A. Applicants shall possess mining experience as described in § 45.1-161.20 § 45.2-512 of the Code of Virginia.

B. Applicants shall be given three years credit for a degree in mining engineering from an approved four-year college.

C. Applicants shall hold a valid Surface Mine Foreman Certificate.

D. Applicants shall meet the continuing education requirements of 4VAC25-20-70 for surface mine foreman.

E. Applicants shall pass the surface mine inspector examination.

F. A certificate will not be issued until an applicant is employed by DMME the department and shall only remain valid while the person is employed by the department.

G. Applicants who already possess a valid underground mine inspector certification pursuant to 4VAC25-20-180 shall be deemed to have met the requirements of this section.

4VAC25-20-190. Underground diesel engine mechanic.

A. All maintenance work performed on diesel engines used to power equipment in underground coal mines shall be performed by, or under the direct supervision of, a person possessing a Diesel Engine Mechanic Certificate issued by the BCME. In addition, no operator of an underground coal mine in the Commonwealth of Virginia may use diesel-powered equipment in the mine without first employing a diesel engine mechanic who is certified by the BCME.

B. "Maintenance" shall include all of the tasks required to be performed routinely to ensure that the engine exhaust emissions conform with the requirements of the laws and regulations of Virginia and MSHA, and with the maintenance recommendations of the manufacturer of the engine.

C. Applicants shall possess six months experience as a diesel engine mechanic, complete a diesel engine mechanic course approved by the division, or possess appropriately related work experience approved by the chief. A one-year diesel engine mechanic program approved by the division may be substituted for the diesel engine mechanic experience.

D. Applicants shall pass the underground diesel engine mechanic, first aid, and gas detection examinations.

E. The initial training course for diesel engine mechanics shall include at least 32 hours of classroom instruction and be taught by a certified instructor.

F. To qualify for approval by the chief, the content of the initial training course for diesel engine mechanics shall include, but is not limited to:

1. Diesel engine principles;

2. Diesel fuel and fuel systems;

3. Engine exhaust systems;

4. State and federal diesel laws and regulations;

5. Safe use of equipment;

6. Emission controls, testing procedures and recordkeeping; and

7. Protection of health of workers exposed to diesel equipment.

G. The annual continuing education course for diesel engine mechanics shall include at least four hours of classroom instruction and be taught by a certified instructor.

H. The content of the continuing education course shall include, but not be limited to:

1. Diesel technology;

2. State and federal diesel laws and regulations;

3. Safe use of equipment;

4. Protection of the health of workers exposed to diesel equipment; and

5. Required emission test procedures and recordkeeping.

I. A Diesel Engine Mechanic Certificate shall remain valid until December 31 following the anniversary date of the initial training, providing the certification requirements are met, unless the certificate is revoked by the BCME.

J. The holder of the certificate shall renew the certificate by satisfactorily completing a diesel engine mechanic continuing education course approved by the chief and taught by a certified instructor.

K. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed before the expiration of the card.

L. Failure to complete the required education shall result in suspension of certification pending completion of continuing education. If the continuing education requirement is not met within two years from the suspension date, then the certification shall be revoked by the BCME.

M. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-200. Diesel engine mechanic instructor.

A. Applicants shall have teaching experience and be a certified diesel engine mechanic or possess appropriately related work experience approved by the chief.

B. Applicants shall maintain the certificate by teaching at least one approved diesel engine mechanic course every two years or at least one approved diesel engine mechanic continuing education course every year.

C. Documentation shall be submitted to the division indicating the required teaching has been completed.

D. Failure to complete the required teaching shall result in suspension of the certification. Applicants may meet the teaching requirement by teaching under the supervision of a certified diesel mechanic engine instructor. If the teaching requirement is not met one year from suspension, then the certification shall be revoked by the BCME.

E. The division shall send notice of any suspension to the last known address that the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-210. Advanced first aid.

A. Applicants shall complete a 24-hour advanced first aid class, at minimum, taught by a certified advanced first aid instructor or possess appropriately related work experience approved by the chief and pass the advanced first aid examination.

B. Approved advanced first aid classes shall cover the following subjects:

1. Introduction to first aid;

2. Respiratory emergencies and cardiopulmonary resuscitation; i.e., heart saver or other four-hour equivalent;

3. Removal of foreign bodies from the throat (the Heimlich Maneuver);

4. Wounds;

5. Shock;

6. Specific injuries including head and chest;

7. Contamination, infection, and prevention;

8. Burns;

9. Cold exposure and frost bite;

10. Bone and joint injuries;

11. Dressings and bandages;

12. Sudden illness;

13. Emergency underground rescue and transfer;

14. Unusual rescue situations related to mining;

15. Poisoning, toxic and hazardous materials;

16. Transportation of victims; and

17. Heat exposure.

C. An advanced first aid certification in good standing with the BCME shall remain valid until the last day of the month following the anniversary date of the initial or continuing education training. Certified persons shall complete four hours continuing education annually, which is taught by a certified advanced first aid instructor, to maintain their advanced first aid card. This continuing education requirement shall include documented annual training in CPR and recertification every two years.

D. The holder of the certificate shall submit documentation to the division indicating the required continuing education has been completed.

E. Applicants holding a valid EMT card or EMT first responder card, shall be deemed eligible to receive advanced first aid certification without having to complete the initial advanced first aid class or without passing the advanced first aid examination. All applicants shall complete eight hours of continuing education. The advanced first aid certification shall start on the day the applicant's EMT certification or EMT first responder certification expires.

F. Failure to complete required continuing education shall result in suspension of the certification pending completion of the continuing education. If the continuing education requirement is not met within one year from the suspension date, then the certification shall be revoked by the BCME.

G. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-220. Advanced first aid instructor.

A. Applicants shall be certified as an advanced first aid instructor by the American Red Cross, National Safety Council, Virginia Office of Emergency Medical Services, or as otherwise approved by the chief. Applicants shall also be certified in cardiopulmonary resuscitation by the American Heart Association, the American Red Cross, or other training programs approved by the Virginia Office of Emergency Medical Services and approved by the chief. Advanced first aid instructors must use the materials and training aids necessary to deliver the skills and training associated with advanced first aid.

B. The holder of the certificate shall submit documentation to the division indicating that they have continued their certification as required by subsection A of this section or by teaching one initial or refresher first aid training course for DMME the department within a two-year period.

C. Failure to maintain a certified advanced first aid instructor's certification will result in suspension of the applicant's BCME certification. Applicants may meet the teaching requirement by teaching under the supervision of an advanced first aid instructor. If the certification is not renewed within one year from the suspension date, then the certification shall be revoked by the BCME.

D. The division shall send notice of any suspension to the last known address of the certified person reported to the division in accordance with 4VAC25-20-20 I. Upon request, DMME the department will provide the mine operator and other interested parties with a list of individuals whose certification is in suspension or has been revoked.

4VAC25-20-360. Purpose and scope.

A. Section 45.1-161.35 A Section 45.2-528 of the Code of Virginia provides for on-site examination of an underground mine foreman by a mine inspector to determine that the foreman has a thorough understanding of the roof control plan and ventilation for the area of the mine for which he is responsible. The procedures followed by the inspector in conducting an on-site examination of an underground mine foreman must be consistent with requirements in Part IV (4VAC25-20-340 et seq.) of this chapter. This includes the use of questions approved by the board which are administered in accordance with this chapter.

B. The purpose of examining an underground mine foreman is to measure and evaluate his knowledge and understanding of mine roof control and ventilation for the areas of his responsibility. Underground mine foremen are required to demonstrate this and other elements of mine safety when they become certified to act as mine foremen in the Commonwealth of Virginia.

C. An on-site examination by the mine inspector will only be initiated when there is just cause that the underground mine foreman has failed to maintain safe roof control and ventilation for his area of responsibility at the mine. Just cause for an on-site examination of an underground mine foreman by a mine inspector must be based on issuance of an order of closure or violation related to a hazardous condition pertaining to roof control or ventilation.

4VAC25-20-370. Determination by the inspector to conduct an on-site examination.

A. An order of closure issued in accordance with § 45.1-161.91 § 45.2-569 of the Code of Virginia, or notice of violation issued in accordance with § 45.1-161.90 § 45.2-568 of the Code of Virginia that relate to roof control or ventilation hazards, shall be reviewed at the time it is issued for evidence of underground mine foreman negligence, which could require on-site examination of the mine foreman by the mine inspector. In making the determination whether or not to conduct an on-site examination, the mine inspector must establish the following:

1. The roof or ventilation hazards cited resulted from performing his duties with less than ordinary care. Ordinary care means the use of such care as a reasonably prudent and careful underground mine foreman could use under similar circumstances.

2. The underground mine foreman knew or should have known of the existence of the hazardous condition.

B. When these criteria have been established, the mine inspector will undertake an on-site examination of the underground mine foreman.

4VAC25-20-410. Prehearing procedures.

A. Any person wishing to bring any matter before the board shall use these procedures except for good cause shown before the board.

B. Petitions for action by the board shall be in writing, shall state the grounds for the petition before the board, shall state the relief sought, and shall include any applicable supporting material, as set out below:

1. For certification to be revoked in accordance with § 45.1-161.35 B § 45.2-528 of the Code of Virginia, the petitioner or petitioners shall submit specific charges, which set forth the reasons why the certification should be revoked.

2. To request a reexamination for a certificate revoked pursuant to § 45.1-161.35 § 45.2-528 of the Code of Virginia, the holder of the revoked certificate shall submit a request for reexamination with evidence that the cause for revocation of his certificate has ceased to exist.

3. For other petitions before the board, the petitioner shall submit a written petition explaining the request being made and the relief being sought.

C. The division shall assign a docket number to all petitions before the board. The division shall provide written notice to all parties to any proceeding in accordance with § 45.1-161.35 D § 45.2-528 of the Code of Virginia and the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

D. Persons wishing to address the board, except those making a petition for board action, will be provided an opportunity at the conclusion of the board meeting.

E. Persons shall make any request for change to the board's regulations in accordance with the DMME department's and the board's Public Participation Guidelines, 4VAC25-10 4VAC25-11.

4VAC25-20-420. Conduct of formal hearings.

A. All hearings shall be heard during scheduled meetings of the board, on a case-by-case basis, in the order the petitions appear on the docket.

B. Hearings shall be held in the DMME, department's Big Stone Gap office, unless a different location is agreed to by mutual consent of the parties to the hearing and the Chairman of the BCME.

C. Hearings requiring case decisions shall be recorded.

D. Each party has the right to be represented by legal counsel.

E. The chairman, with the concurrence of the majority of the board present at a hearing, shall have the authority to limit evidence to that relevant to the issues. Any proofs, rebuttal, and cross examination which are immaterial, insubstantial, privileged, or repetitive may be excluded.

F. The chairman may continue, adjourn and reconvene the hearing as necessary.

G. Decisions of the board shall be made based on a preponderance of the evidence placed before it.

4VAC25-31-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acre-foot" means a unit of volume equal to 43,560 cubic feet or 325,853 gallons. One acre-foot of water is equivalent to one acre covered by water one foot deep.

"Berm" means a stable ridge of material used in reclamation for the control of sound and surface water, safety, aesthetics, or such other purpose as may be applicable.

"Critical areas" means problem areas such as those with steep slopes, easily erodible material, hostile growing conditions, concentration of drainage or other situations where revegetation or stabilization will be potentially difficult.

"Dam break inundation zone" means the area downstream of a dam that would be inundated or otherwise directly affected by the failure of a dam.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his designee.

"Division" means the Division of Mineral Mining.

"Fifty-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 50 years. It may also be expressed as a probability that there is a 2.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 50-year, 24-hour storm occurs when the total 50-year storm rainfall occurs in a 24-hour period.

"Inert waste" means brick, concrete block, broken concrete, and uncontaminated minerals or soil.

"Intermittent stream" means a stream that contains flowing water for extended periods during a year, but does not carry flows at all times.

"Internal service roads" means roads that are to be used for internal movement of raw materials, soil, overburden, finished, or in-process materials within the permitted area, some of which may be temporary.

"Natural drainageway" means any natural or existing channel, stream bed, or watercourse that carries surface or ground water.

"One hundred-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 100 years. It may also be expressed as a probability that there is a 1.0% chance that the storm magnitude may be equaled or exceeded in any given year. A 100-year, 24-hour storm occurs when the total 100-year storm rainfall occurs in a 24-hour period.

"On-site generated mine waste" means the following items generated by mineral mining or processing activities taking place on the permitted mine site:

Drill steel	Tree stumps/land clearing debris
Crusher liners	Large off-road tires
Conveyor belting	Scrap wood or metal
Steel cable	Steel reinforced air hoses
Screen cloth	Broken concrete or block
Punch plate	V-belts

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permitted area" means the area within the defined boundary shown on the application map including all disturbed land area, and areas used for access roads and other mining-related activities.

"Principal access roads" means roads that are well-defined roads leading from scales, sales offices, or loading points to a public road.

"Probable maximum flood (PMF)" means the flood that might be expected from the most severe combination of critical meteorologic and hydrologic conditions that are reasonably possible in the region. The PMF is derived from the current probable maximum precipitation (PMP) available from the National Weather Service, National Oceanic and Atmospheric Administration. In some cases local topography or meteorological conditions will cause changes from the generalized PMP values; therefore, it is advisable to contact local, state, or federal agencies to obtain the prevailing practice in specific cases.

"Qualified person" means a person who is suited by training or experience for a given purpose or task.

"Regrade" or "grade" means to change the contour of any surface.

"Riparian buffer" means an area of trees, shrubs, or other vegetation that is managed to maintain the integrity of the stream channel and reduce the effects of upland sources of pollution by trapping, filtering, and converting sediments, nutrients, and other chemicals.

"Sediment" means undissolved organic or inorganic material transported or deposited by water.

"Sediment basin" means a basin created by the construction of a barrier, embankment, or dam across a drainageway or by excavation for the purpose of removing sediment from the water.

"Spillway design flood (SDF)" means the largest flood that needs be considered in the evaluation of the performance for a given project. The impounding structure shall perform so as to safely pass the appropriate SDF. Where a range of SDF is indicated, the magnitude that most closely relates to the involved risk should be selected.

"Stabilize" means any method used to prevent movement of soil, spoil piles, or areas of disturbed earth. This includes increasing bearing capacity, increasing shear strength, draining, compacting, rip-rapping, vegetating or other approved method.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

"Ten-year storm" means the storm magnitude expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as a probability that there is a 10% chance that the storm magnitude may be equaled or exceeded in any given year. A 10-year 24-hour storm occurs when the total 10-year storm rainfall amount occurs in a 24-hour period.

"Top soil" means the surface layer and its underlying materials that have properties capable of producing and sustaining vegetation.

4VAC25-31-30. Compliance.

The permittee shall comply fully with the requirements of Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and this regulation and shall further ensure compliance by all employees, contractors, or other persons performing mining or reclamation activities.

4VAC25-31-40. Modifications.

The division may approve modifications or amendments to any drainage, reclamation and operation plan required under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia and provisions of these regulations. All modifications or amendments shall be valid only when approved in writing.

4VAC25-31-120. Permit fee and bond.

A. Permit fees for the initial permit application and permit renewal shall be submitted upon receipt of a billing notice from the director and before the permit is issued or renewed. Fees shall be paid in accordance with § 45.1-181 § 45.2-1205 of the Code of Virginia.

B. Permit fees for the transfer of a mine permit shall be submitted upon receipt of a billing notice from the director and before the transferred permit is issued. Fees shall be paid in accordance with § 45.1-184.2 § 45.2-1211 of the Code of Virginia.

C. All fees shall be in the form of cash, check, money order, or other form of payment acceptable to the director.

D. A bond is required as set forth in Part III of this regulation. Bonding shall be provided once the permit application is deemed complete.

4VAC25-31-130. Mineral mining plans.

Mineral mining plans shall be attached to the application and consist of the following:

1. The operation plan shall include a description of the proposed method of mining and processing; the location of top soil storage areas; overburden, refuse, and waste disposal areas; stockpiles, equipment storage, and maintenance areas; cut and fill slopes; and roadways. The operation plan shall address plans for the storage and disposal of scrap metal, scrap tires, used lubricants, coolants, and other equipment service products, batteries, process chemicals, trash, debris, and other hazardous materials. The operation plan shall also include all related design and construction data. The method of operation shall provide for the conducting of reclamation simultaneously where practicable with the mining operation. For the impoundments that meet the criteria of § 45.1-225.1 A § 45.2-1301 A of the Code of Virginia, plans shall be provided as required under 4VAC-25-31-180 and 4VAC25-31-500.

2. The drainage plan shall consist of a description of the drainage system to be constructed before, during, and after mining; a map or overlay showing the natural drainage system; and all sediment and drainage control structures to be installed along with all related design and construction data.

3. The reclamation plan shall include a statement of the planned land use to which the disturbed land will be returned through reclamation, the proposed actions to assure suitable reclamation, and a time schedule for reclamation. The method of grading; removal of metal, lumber, and debris, including processing equipment; buildings; and other equipment relative to the mining operation and revegetation of the disturbed area shall be specified. Reclamation plans for underground mines shall include plans for closing or securing all entrances to underground workings.

4. Adequate maps, plans and cross sections, and construction specifications shall be submitted to demonstrate compliance with the performance standards of Part IV (4VAC25-31-330 et seq.) of this chapter and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia. Designs, unless otherwise specified, shall be prepared by a qualified person, using accepted engineering design standards and specifications.

5. A copy of the Virginia Department of Transportation land use permit for roads that connect to public roads.

6. If mining below the water table is to take place, the following conditions apply:

a. The application shall contain an assessment of the potential for impact on the overall hydrologic balance from the proposed operations to be conducted within the permitted area for review and approval.

b. A plan for the minimization of adverse effects on water quality or quantity shall be prepared based on the assessment in subdivision 6 a of this section and included in the application.

c. Permanent lakes or ponds created by mining shall be equal to or greater than four feet deep or otherwise constructed in a manner acceptable to the director.

4VAC25-31-150. Maps.

A. Maps shall be supplied as described in §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia and in this chapter that show the total area to be permitted and the area to be affected in the next ensuing year (with acreage calculated).

B. Preparation of maps.

1. All application, renewal, and completion maps shall be prepared and certified under the direction of a professional engineer, licensed land surveyor, licensed geologist, issued by a standard mapping service, or prepared in such a manner as to be acceptable to the director.

2. If maps are not prepared by the applicant, the certification of the maps shall read as follows: "I hereby certify that this map is correct and shows to the best of my knowledge and belief, all the information required by the mineral mining laws and regulations of the DMME Department of Energy."

3. The applicant shall submit a general location map showing the location of the mine, such as a county highway map or equivalent, in the initial application.

4. Sensitive features within 500 feet of the permit boundary including state waters, cemeteries, oil and gas wells, underground mine workings, public utilities and utility lines, buildings, roads, schools, churches, and occupied dwellings shall be shown.

5. All properties, and their owners, within 1,000 feet of the permit boundary shall be identified in the initial application.

6. Wetlands that have been previously delineated shall be shown within the permit boundary.

7. Riparian buffers that have been previously delineated shall be shown within the permit boundary.

C. Map code and legend.

1. A color code as prescribed by the director shall be used in preparing the map.

2. Graphic symbols may be used to represent the different areas instead of a color-coded map.

3. The map shall include a legend that shows the graphic symbol or color code and the acreage for each of the different areas.

4VAC25-31-160. Legal right.

A. A statement of the source of the legal right of the applicant to enter and conduct operations on the land proposed to be covered by the permit as noted in § 45.1-181 § 45.2-1205 of the Code of Virginia shall be submitted to the division. In addition, the applicant shall submit proof of right of entry, which shall consist of a copy of the lease or deed, or names of parties to the lease or deed, date of execution, and recording information.

B. On the permit application, the applicant shall disclose any type of mining permit, revocations, security deposited in lieu of bond that has been revoked or forfeited, and bond forfeitures in Virginia or any other state with which he or any individual, corporation, trust, partnership, association, or other legal entity with which he has or has had control or common control.

4VAC25-31-170. Permit application notifications.

A. The applicant shall notify the following parties of a new permit application via certified mail:

1. Property owners within 1,000 feet of the permit boundary.

2. The Chief Administrative Official of the local political subdivision where the prospective mining operation would take place.

3. All public utilities on or within 500 feet of permit boundary.

B. All notifications shall contain:

1. The name of the permit applicant issuing notice and the date of notification;

2. The permit applicant's address, phone number, and other contact information as available;

3. The name and address of the property owner, chief administrative official, or utility receiving the notification;

4. A statement as required by § 45.1-184.1 § 45.2-1210 of the Code of Virginia to property owners that requires land owners within 1,000 feet of the permit boundary to be notified that the operator is seeking a mining and reclamation permit from the Department of Mines, Minerals and Energy. The statement shall also note that the mining permit must address department requirements for regrading, revegetation, and erosion controls of mineral mine sites;

5. The location of the proposed mine, the city or county in which it is located, the distance of the nearest town or other easily identified landmark, and the tax map identification number of the parcels to be permitted; and

6. A notice that informs property owners within 1,000 feet of the permit boundary that they have 10 days from receipt of the permit notification to specify written objections or request a hearing. This request shall be in writing and shall be sent to the division. The current address for the division shall be provided on the notification.

C. No permit will be issued until at least 15 days after receipt of the application by the division. If all persons required to receive notice have issued a statement of no objection, the permit may be issued in less than 15 days.

D. Copies of all permit notifications shall be submitted to the division at the time they are mailed to the parties identified in subsection A of this section.

E. Documentation of certified mail receipts of the notifications described in this section shall be included with the permit application.

4VAC25-31-180. Impoundments.

The design data and construction plans and specifications for impoundments meeting the criteria set forth in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia shall be submitted to the director prior to initiation of construction activities. Such a plan shall be certified as prepared by, or under the supervision of, a registered professional engineer and shall include:

1. Design and construction specifications;

2. Examination and monitoring;

3. Emergency procedures; and

4. Closure and abandonment plans.

4VAC25-31-200. Exemption for restricted mining.

Any operator engaging in mining and disturbing less than a total of one acre of land and removing less than a total of 500 tons of minerals, is exempt from all mining permit fees, renewal fees and bonding requirements in this chapter. The mining operator shall submit an application for a permit, a sketch of the mining site, and an operations plan, which shall be adhered to in accordance with §§ 45.1-181 45.2-1205 and 45.1-182.1 45.2-1206 of the Code of Virginia.

4VAC25-31-220. Requirements for bonding of mineral mines.

A. Once the permit application is deemed complete, the applicant shall submit a bond or bonds on a form meeting the requirements in 4VAC25-31-220 through 4VAC25-31-270, made payable to the department and conditioned upon the satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

B. The bond or bonds shall cover the entire area presently disturbed by mining plus the estimated number of acres to be disturbed in the upcoming year.

C. As additional areas outside the bonded acreage are to be disturbed to facilitate the mining operation, the permittee shall file a bond or bonds to cover the acreage with the division.

D. Bond shall be posted and accepted by the division prior to disturbing an area for mining-related activity.

E. Permitted operators shall certify annually with the permit renewal the type, current insurer or bank, and the amount of all reclamation bonds.

4VAC25-31-230. Period of liability.

A. The bond liability shall be for the duration of the mineral mining operation and for the period following reclamation, which is necessary to demonstrate the success of the final reclamation.

B. In lieu of the requirements of 4VAC25-31-240 through 4VAC25-31-270, a permittee accruing five years of satisfactory operation under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 of the Code of Virginia shall be required to enter the Minerals Reclamation Fund as established in Article 4 (§ 45.1-197.8 § 45.2-1234 et seq.) of Chapter 16 12 of Title 45.1 45.2 of the Code of Virginia and 4VAC25-31-320. All performance bonds will be released upon acceptance in the Minerals Reclamation Fund and payment of required fees.

4VAC25-31-240. Bond amount.

A. Bond shall be set in accordance with § 45.1-183 § 45.2-1208 of the Code of Virginia.

B. The minimum bond for a mineral mining permit shall be $3,000, except for restricted permits and Minerals Reclamation Fund participants.

4VAC25-31-250. General terms and conditions of bond.

A. The bond shall be of the form and amount as specified by the division.

B. The performance bond shall be payable to the department.

C. The performance bond shall be conditioned upon satisfactory performance of all the requirements of this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-280. Release of bond.

The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation covered by the bond or portion thereof has been accomplished in accordance with this chapter, the approved permit, and Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia, including completion of the reclamation plan so that the land will be capable of supporting the approved post-mining land use.

4VAC25-31-310. Bond forfeiture.

A. If the permittee refuses or is unable to comply with an order by the director under § 45.1-186.1 § 45.2-1213 of the Code of Virginia, fails to comply with the terms of the permit, or defaults on the conditions under which the bond was accepted, the division shall take the following action to revoke the permit and forfeit the bond or bonds for the permit area or a portion of the permit area:

1. Send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond informing them of the decision to revoke the permit and forfeit all or part of the bond, and the reasons for this action.

2. Advise the permittee and surety of the conditions under which forfeiture may be avoided. Such conditions may include:

a. Agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule acceptable to the division, which meets the conditions of the permit and the reclamation plan, and demonstrates that such party has the ability to satisfy the conditions; or

b. The division may allow a surety to complete the reclamation plan if the surety can demonstrate an ability to complete the reclamation in accordance with the approved reclamation plan. Except where the division may approve partial release, no surety liability shall be released until successful completion of all reclamation under the terms of the permit.

B. In the event forfeiture of the bond is required, the division shall:

1. Proceed to collect the forfeited amount as provided by Virginia law for the collection of defaulted bonds or other debts if actions to avoid forfeiture have not been taken, if any rights of appeal have not been exercised within a time established by the division, or if such appeal is unsuccessful.

2. Use funds collected from bond forfeiture to complete the reclamation plan on the permit area.

C. Upon default the division may cause the forfeiture of any and all bonds deposited to complete reclamation for which the bonds were posted. Bond liability shall extend to the entire permit area under conditions of forfeiture.

D. Reclamation costs in excess of the forfeited bond amount will constitute a debt of the operator to the Commonwealth of Virginia and shall be collected in accordance with § 45.1-186.2 § 45.2-1214 of the Code of Virginia.

E. In the event the amount of performance bond forfeited was more than the amount necessary to complete reclamation, the unused funds shall be returned by the division to the party from whom they were collected.

F. Appeal of bond forfeiture decisions may be made by the operator by providing notice of appeal to the director in accordance with Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. If the operator files a notice of appeal, then the director's orders revoking the permit and declaring forfeiture shall be held in abeyance until the appeal is determined.

4VAC25-31-320. Minerals Reclamation Fund (MRF).

A. Each operator who has had five years of satisfactory operation in the Commonwealth under Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia shall become a member of the fund by making an initial payment to the fund of $50 for each acre currently disturbed and each acre estimated to be affected by mining operations during the next year. Thereafter the member shall make an annual payment of $12.50 for each acre currently disturbed plus each acre estimated to be affected during the next ensuing year. No annual Minerals Reclamation Fund deposits will be collected from members where the permit Minerals Reclamation Fund deposits divided by the number of bonded acres in the next ensuing year is equal to or greater than $500.

B. Entry into the Minerals Reclamation Fund shall be mandatory for all eligible permittees.

C. Operator deposits into the Minerals Reclamation Fund shall be released or retained under the following conditions:

1. When the operation and reclamation are complete and the reclaimed area is suitable for bond release, Minerals Reclamation Fund deposits for the reclaimed area shall be returned to the operator.

2. When the mining permit is transferred to another permittee and division approval is granted, Minerals Reclamation Fund deposits for the permit may be returned to the transferring permittee.

3. When a mining permit is completely relinquished to another operator, other than in a permit transfer, all of the Minerals Reclamation Fund deposits for the permit shall be returned to the relinquishing operator upon division approval of the relinquishment.

4. After bond release applications are approved by the division, Minerals Reclamation Fund deposits for the permit shall be held or retained according to the following formulas:

a. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is equal to or greater than $500, Minerals Reclamation Fund deposits for the permit will be released so that the remaining deposits equal $500 per acre for the acres remaining under bond.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $4,000;

Minerals Reclamation Fund balance ÷ remaining bonded acres = $500;

$4,000 ÷ (10-2) acres = $500.

b. If the permit Minerals Reclamation Fund balance divided by the number of acres remaining under bond is less than $500, the bond release amount will be determined by dividing the permit Minerals Reclamation Fund deposit by the number of bonded acres including the acres to be released and then multiplying by the number of acres to be released.

Example: 50 acres permitted; 10 acres bonded; 2 acres requested for release; Minerals Reclamation Fund deposits = $3,000;

Minerals Reclamation Fund balance ÷ total bonded acres = Release amount $ per acre;

$3,000 ÷ 10 acres = $300 per acre;

Release amount = $300 per acre x 2 acres = $600.

D. Moneys available in the Minerals Reclamation Fund may be less than the total of all operator deposits due to expenditures for bond forfeiture as required by § 45.1-197.12 § 45.2-1238 of the Code of Virginia. Minerals Reclamation Fund refunds are subject to availability of moneys in the Minerals Reclamation Fund and shall be suspended if the fund decreases below $250,000. Payments to the fund are then proportionately assessed until the fund returns to a minimum, $250,000 or bond or other securities are posted as required by the director in accordance with § 45.1-197.14 § 45.2-1240 of the Code of Virginia.

E. Minerals Reclamation Fund deposits will be transferred to the successor operator when a permit transfer occurs due to a change in organization status or restructuring that does not involve a complete change of ownership.

4VAC25-31-430. Completion of active mining.

A. Except as provided in subsection B of this section and with the director's approval, a mining operation where no mineral has been removed or overburden removed or regraded, or where no substantial mine-related activity has been conducted for a period of 12 consecutive months shall be declared complete, and total reclamation shall begin.

B. At the option of the operator and with the director's approval, an operation may remain under permit for an indefinite period during which no mineral or overburden is removed if the following conditions are met to the director's satisfaction:

1. All disturbed areas are reclaimed or adequately stabilized, or all erosion and sediment control systems are maintained in accordance with mining plans and proper engineering practices.

2. All drainage structures are constructed and maintained in accordance with mining plans and proper engineering practices.

3. All vegetation is maintained, including reseeding if necessary.

4. All improvements on site, including machinery and equipment, are maintained in a state of good repair and condition.

If the conditions listed in this subsection are not met, the permit may be revoked by the director in accordance with § 45.1-186.1 § 45.2-1213 of the Code of Virginia.

4VAC25-31-500. Water impoundments.

A. Structures that impound water or sediment to a height of five feet or more above the lowest natural ground area within the impoundment and have a storage volume of 50 acre-feet or more, or impound water or sediment to a height of 20 feet or more regardless of storage volume, shall meet the following criteria (noted in Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia):

1. Impoundments meeting or exceeding the size criteria set forth in this section shall be designed utilizing a spillway flood and hazard potential classification as specified in the following table:

Class of Impoundment*	Spillway Design Flood (SDF)**	Minimum Threshold for Incremental Damage Analysis ***
High Hazard	PMF	0.50 PMF
Significant Hazard	0.50 PMF	100-year storm
Low Hazard	100-year storm	50-year storm
*Size and hazard potential classifications shall be proposed and justified by the operator and shall be subject to approval by the director. Present and projected development in the inundation zone downstream from the structure shall be used in determining the classification. **The complete definitions of hazard potential are those contained in 4VAC50-20-40. ***The establishment of rigid design flood criteria or standards is not intended. Safety must be evaluated in the light of peculiarities and local conditions for each impounding structure and in recognition of the many factors involved, some of which may not be precisely known. Such can only be done by competent, experienced engineering judgment, which the values in the table are intended to add to, not replace.

Reductions in the SDF may be evaluated by use of incremental damage analysis described in 4VAC50-20-52. Note that future development downstream may increase the required SDF.

2. Impounding structures shall be constructed, operated, and maintained such that they perform in accordance with their design and purpose throughout their life.

a. Impoundments shall be designed and constructed by or under the direction of a qualified professional engineer licensed in Virginia and experienced in the design and construction of impoundments.

b. The designs shall meet the requirements of this section and use current prudent engineering practices.

c. The plans and specifications for an impoundment shall consist of a detailed engineering design report that includes engineering drawings and specifications, with the following as a minimum:

(1) The name of the mine; the name of the owner; classification of the impounding structure as set forth in this regulation; designated access to the impoundment and the location with respect to highways, roads, streams and existing impounding structures and impoundments that would affect or be affected by the proposed impounding structure.

(2) Cross sections, profiles, logs of test borings, laboratory and in situ test data, drawings of principal and emergency spillways and other additional drawings in sufficient detail to indicate clearly the extent and complexity of the work to be performed.

(3) The technical provisions as may be required to describe the methods of the construction and construction quality control for the project.

(4) Special provisions as may be required to describe technical provisions needed to ensure that the impounding structure is constructed according to the approved plans and specifications.

d. Components of the impounding structure, the impoundment, the outlet works, drain system and appurtenances shall be durable in keeping with the design and planned life of the impounding structure.

e. All new impounding structures regardless of their hazard potential classification shall include a device to permit draining of the impoundment within a reasonable period of time, and at a minimum shall be able to lower the pool level six vertical inches per day, as determined by the owner's professional engineer, subject to approval by the director.

f. Impoundments meeting the size requirements and hazard potential of high, significant, or low shall have a minimum static safety factor of 1.5 for a normal pool with steady seepage saturation conditions and a seismic safety factor of 1.2.

g. Impoundments shall be inspected and maintained to ensure that all structures function to design specifications.

h. Impoundments shall be constructed, maintained and inspected to ensure protection of adjacent properties and preservation of public safety and shall meet proper design and engineering standards under Chapter 18.1 13 (§ 45.1-225.1 § 45.2-1300 et seq.) of Title 45.1 45.2 of the Code of Virginia. Impoundments shall be inspected at least daily by a qualified person, designated by the licensed operator, who can provide prompt notice of any potentially hazardous or emergency situation as required under § 45.1-225.2 § 45.2-1302 of the Code of Virginia. Records of the inspections shall be kept and certified by the operator or his agent.

i. The operator will prepare an emergency action plan (EAP) that includes the following information:

(1) A notification chart of persons or organizations to be notified, the person or persons responsible for notification, and the priority in which notifications are issued. Notifications shall include at a minimum the division, the local government authority responsible for emergency response, and the Virginia Department of Emergency Management.

(2) A discussion of the procedures used for timely and reliable detection, evacuation, and classification of emergency situations considered to be relevant to the structure and its setting.

(3) Designation of responsibilities for EAP related tasks. Also, the EAP shall designate the responsible party for making a decision that an emergency situation no longer exists at the impounding structure. Finally, the EAP shall include the responsible party and the procedures for notifying to the extent possible any known local occupants, owners, or lessees of downstream properties potentially impacted by a failure of the impounding structure.

(4) A section describing actions to be taken in preparation for impoundment emergencies, both before and during the development of emergency conditions.

(5) Dam break inundation maps. Each sheet of such maps for high and significant potential hazard classification structures shall be prepared and sealed by a professional engineer. Where possible, inundation mapping in the EAP should be provided on sheets no larger than 11 inches by 17 inches to facilitate copying for emergency response.

(6) Appendices containing information that supports and supplements the material used in the development of the EAP, including plans for training, exercising, and updating the EAP.

(7) A section that identifies all parties with assigned responsibilities in the EAP and signed certification by all of those parties that a copy of the EAP has been received.

(8) Times periods for review or revision acceptable to the director.

3. Impoundments shall be closed and abandoned in a manner that ensures continued stability and compatibility with the post-mining land use.

4. The following are acceptable as design procedures and references:

a. The design procedures, manuals and criteria used by the United States Army Corps of Engineers;

b. The design procedures, manuals and criteria used by the United States Department of Agriculture, Natural Resources Conservation Service;

c. The design procedures, manuals and criteria used by the United States Department of Interior, Bureau of Reclamation;

d. The design procedures, manuals and criteria used by the United States Department of Commerce, National Weather Service;

e. The design procedures, manuals and criteria used by the United States Federal Energy Regulatory Commission;

f. Federal Guidelines for Dam Safety: Emergency Action Planning for Dam Owners, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted January 2004; FEMA 64 or as revised;

g. Federal Guidelines for Dam Safety: Selecting and Accommodating Inflow Design Floods for Dams, United States Department of Homeland Security, Federal Emergency Management Agency, October 1998, Reprinted April 2004; FEMA 94 or as revised; or

h. Other design procedures, manuals and criteria that are accepted as current, sound engineering practices, as approved by the director prior to the design of the impounding structure.

B. Impoundments that do not meet or exceed the size criteria of subsection A of this section shall meet the following criteria:

1. Be designed and constructed using current, prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Safely pass the runoff from a 50-year storm event for temporary (life of mine) structures and a 100-year storm event for permanent (to remain after mining is completed) structures.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

C. Impoundments with impounding capability created solely by excavation shall comply with the following criteria:

1. Be designed and constructed using prudent engineering practice to safely perform the intended function.

2. Be constructed with slopes no steeper than two-horizontal-to-one-vertical in predominantly clay soils or three-horizontal-to-one-vertical in predominantly sandy soils.

3. Be designed and constructed with outlet facilities capable of:

a. Protecting public safety;

b. Maintaining water levels to meet the intended use; and

c. Being compatible with regional hydrologic practices.

4. Be closed and abandoned to ensure continued stability and compatibility with the post-mining use.

5. Be inspected and maintained to ensure proper functioning.

6. Provide adequate protection for adjacent property owners and ensure public safety.

4VAC25-31-570. Formal review.

Orders of the director, which are final agency actions for which no further informal resolution is available, shall be appropriately identified and may be appealed in accordance with § 45.1-194 § 45.2-1226 of the Code of Virginia.

4VAC25-35-5. Definitions.

The following words and items when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Commencing work" means after employment but before beginning job duties.

"Department" means the Department of Mines, Minerals and Energy.

"Division" means the Division of Mineral Mining of the Department of Mines, Minerals and Energy.

"MSHA" means the federal Mine Safety and Health Administration.

4VAC25-35-30. Reciprocity requirements.

Reciprocity shall be available for certified persons in other states as provided for in § 45.1-161.292:24 § 45.2-1118 of the Code of Virginia. Applicants for reciprocity must submit proof of current certification, examination grades, and documentation of equivalent work experience for review and approval by the department.

4VAC25-35-110. Mineral mine inspector.

In addition to the requirements set forth in § 45.1-161.292:11 § 45.2-1109 of the Code of Virginia, mine inspector applicants shall demonstrate knowledge and competence in those areas specified in § 45.1-161.292:12 § 45.2-1110 of the Code of Virginia through the examination process. A certificate will not be issued until an applicant is employed by the department. Applicants who already possess a valid coal mine inspector certification pursuant to 4VAC25-20-180 or 4VAC25-20-185 shall be deemed to have met the requirements of this section.

4VAC25-35-120. General mineral miner.

A. As set forth in § 45.1-161.292:28 § 45.2-1122 of the Code of Virginia, miners commencing work after January 1, 1997, shall have a general mineral miner certification. Persons excluded from the general mineral miner certification are those involved in delivery, office work, maintenance, service and construction work, other than the extraction and processing of minerals, who are contracted by the mine operator. Hazard training as required by 30 CFR Part 46 or 30 CFR Part 48 shall be provided to these persons.

B. Applicants shall complete certification training in first aid and mineral mining regulations and law, which is conducted by a training instructor approved by the division, a certified MSHA instructor, or a certified mine foreman. Training shall include the following topics, subtopics and practical applications:

1. First aid training shall convey knowledge of first aid practices including identification of trauma symptoms, recognition and treatment of external and internal bleeding, shock, fractures, and exposure to extreme heat or cold. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

2. Law and regulation training shall convey highlights of the mineral mine safety laws of Virginia and the safety and health regulations of Virginia. Specifically, information shall be provided on miner responsibilities and accountability, certification requirements, violations, penalties, appeals and reporting violations to the division. Training shall include a demonstration of skills or passing an examination, as evidenced by the instructor certification submitted in a form acceptable to the division.

C. The trainer will certify to the department that the training and demonstrations required by § 45.1-161.292:28 § 45.2-1122 B of the Code of Virginia and this section have occurred.

D. Applicants who hold a valid first aid certificate as noted in 4VAC25-35-10 shall be considered to have met the first aid requirements.

E. Applicants who have completed training may commence work and shall be considered provisionally certified for up to 60 days from the date the instructor completes the training.

F. The instructor shall submit verification of certification in a form acceptable to the division and the $10 fee for each applicant who completes the training, together with a class roster of all persons who complete the training, within 30 days of the training date.

G. The mine operator shall maintain the following records for those miners required to obtain a general mineral miner certification and those who qualify for exemption, starting January 1, 1997:

1. The employee name, address, and phone number.

2. The job title, employment date and general mineral miner number if applicable.

3. The date training was completed and the instructor providing it for nonexempt employees.

4. If the employee is exempt from the requirements, the date they began working in the mineral mining industry in Virginia.

H. Applicants who already possess a valid general coal miner surface certification pursuant to 4VAC25-20 shall be deemed to have met the requirements of this section.

4VAC25-40-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Abandoned mine" means a mine in which all work has stopped on the mine premises and where an office with a responsible person in charge is no longer maintained at the mine.

"Abandoned workings" means deserted mine areas in which further work is not intended.

"Acceptable" means tested and found to be appropriate for a specific purpose by a nationally recognized agency.

"ACGIH" means the American Conference of Governmental Industrial Hygienists.

"Angle of repose" means the maximum slope or angle at which material remains stable.

"Auxiliary fan" means a fan used to deliver air to a working place off the main airstream, generally used with ventilation tubing.

"Barricaded" means physically obstructed to hinder or prevent the passage of persons or vehicles.

"Blast area" means the area of the mine in which concussion or flying material can reasonably be expected to cause injury during detonation.

"Blast site" means the 50-foot perimeter around boreholes being loaded, or 30 feet if demarcated by a barricade, and the 180° free-face area for a distance of at least four times the average depth of the boreholes being loaded.

"Bridle" means a cable or chain used to support a work platform in a raised position with more than three connection points.

"Burden" means the distance in feet between rows of boreholes or between the open face and boreholes.

"Company official" means a member of the company supervisory or technical staff.

"Competent person" means a person having abilities and experience that fully qualify him to perform the duty to which he is assigned.

"Confined space" means an enclosed area that is large enough for an employee to enter fully and perform his assigned work but is not designed for continuous occupancy by the employee and has a limited or restricted means of entry or exit. These spaces may include storage bins, hoppers, silos, tanks, vaults, and other similar areas.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Division of Mineral Mining.

"Distribution box" means an apparatus with an enclosure through which an electric circuit is carried to one or more cables from a single incoming feedline, each cable circuit being connected through individual overcurrent protective devices.

"Division" means the Division of Mineral Mining.

"Escapeway" means a passageway by which persons may leave if the ordinary exit is obstructed.

"Face" or "bank" means that part of any mine where excavating is progressing or was last done.

"Flash point" means the minimum temperature at which sufficient vapor is released to form a flammable vapor-air mixture.

"Free-face" means the face area of a quarry bench to be blasted.

"Flyrock" means any uncontrolled material generated by the effect of a blast that was hazardous to persons, or to property not owned or controlled by the operator.

"Heavy duty mobile equipment" means any equipment used for loading, hauling, or grading and not normally intended for highway use.

"Hoist" means a power-driven windlass or drum used for raising ore, rock, or other material from a mine, and for lowering or raising persons and material.

"Lay" means the distance parallel to the axis of the rope in which a strand makes one complete turn about the axis of the rope.

"Loaded" means containing explosives, blasting agents, or detonators.

"Main fan" means a fan that controls the entire airflow of the mine or the airflow of one of the major air circuits.

"Major electrical installation" means an assemblage of stationary electrical equipment for the generation, transmission, distribution, or conversion of electrical power.

"Mine opening" means any opening or entrance from the surface into a mine.

"Mine vehicle" means any vehicle on the mine site that is utilized by the mine operator or contractors performing excavation, maintenance, or construction at the mine.

"Misfire" means the partial or complete failure of a blast to detonate as planned.

"MSHA" means the Mine Safety and Health Administration.

"Occupational injury" means any injury to a miner which occurs at a mine for which medical treatment is administered, or which results in death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary assignment to other duties, or transfer to another job as specified in the 30 CFR Part 50.2.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a deposit of useful materials or ores that are to be mined.

"Potable" means fit for human consumption and, where required by the Code of Virginia, approved by the Virginia Department of Health.

"Powder chest" means a substantial, nonconductive portable container equipped with a lid and used at blasting sites for explosives other than blasting agents.

"Primer" means a cartridge or package of explosives which contains a detonator or detonating cord.

"Refuse" means mineral processing waste, tailings, silts, sediments, or slimes.

"Rollover protection" means a framework, safety canopy or similar protection for the operator when equipment overturns and which is acceptable for use on that particular type of equipment.

"Safety fuse" means a train of powder enclosed in cotton, jute yarn, and water-proofing compounds, which burns at a uniform rate, used for firing a cap containing the detonating compound which in turn sets off the explosive charge.

"Safety hazard" means any condition, function, or circumstance which may reasonably be expected to cause or assist an accident.

"Scaled distance (Ds)" means the actual distance (D) in feet divided by the square root of the maximum explosive weight (W) in pounds that is detonated per delay period for delay intervals of eight milliseconds or greater; or the total weight of explosive in pounds that is detonated within an interval less than eight milliseconds.

"Scaling" means removal of insecure material from a face or highwall.

"Shaft" means a vertical or inclined shaft, slope, incline, or winze.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

"Substantial construction" means construction of such strength, material, and workmanship that the object will withstand all reasonable shock, wear, and usage to which it will be subjected.

"Suitable" means that which fits and has the qualities or qualifications to meet a given purpose, occasion, condition, function, or circumstance.

"Switch" means a device used to complete or disconnect an electrical circuit.

"Travelway" means a passage, walk or way regularly used and designated for persons to go from one place to another.

"Wet drilling" means the continuous application of water through the control hole of hollow drill steel to the bottom of the drill hole.

4VAC25-40-25. Purpose and authority.

The purpose of this chapter is to provide for the protection of persons and property on and around mineral mines. The chapter works with the Virginia Mineral Mine Safety Act (§ 45.1-161.292:1 § 45.2-939 et seq.) of the Code of Virginia (as shown in Mineral Mine Safety Laws of Virginia, 2005 edition). Refer to the Act for other definitions and requirements related to this chapter.

4VAC25-40-270. Refuse piles, water and silt retaining dams.

A. Refuse piles, water and silt retaining dams that meet the size criteria of § 45.1-225.2 § 45.2-1302 of the Code of Virginia shall be designed, constructed, maintained, inspected and abandoned in accordance with §§ 45.1-225.2 through 45.1-225.5 Chapter 13 (§ 45.2-1300 et seq.) of Title 45.2 of the Code of Virginia.

B. Water and silt retaining dams that do not meet the size criteria of § 45.1-225.1 § 45.2-1301 of the Code of Virginia shall be designed, constructed and abandoned in accordance with the Minerals Other Than Coal Surface Mining Law (§ 45.1-180 § 45.2-1200 et seq. of the Code of Virginia).

C. Refuse shall be placed only in locations approved by the director.

4VAC25-40-300. Closure of roads or openings.

Upon abandonment of a mine, the operator shall effectively close or fence all roads, mine openings, and surface excavations where hazardous conditions exist and warning signs shall be posted. Upon temporary cessation of mining activities as provided for in § 45.1-181 § 45.2-1205 of the Code of Virginia, the operator shall effectively close or barricade access roads and hazardous areas.

4VAC25-40-5760. Application for mining near gas or oil wells.

A. Application may be made at any time to the director by the operator for an approval to conduct mining operations within 200 feet of any permitted gas or oil well, or gas or oil well being drilled, on forms furnished by the director and containing such information as the director may require.

B. The application shall be accompanied by a map or maps as specified in Chapter 16 12 (§ 45.1-180 § 45.2-1200 et seq.) of Title 45.1 45.2 of the Code of Virginia showing all mining operations or workings projected within 200 feet of the well.

C. Notice of the application shall be sent by certified mail to the well operator and the gas and oil inspector. The notice shall inform the well operator of the right to object to the proposed mining activity. Objections must be filed with the director within 15 days after notice is received by the objecting person.

D. The director may, prior to considering the application, make or cause to be made any inspections or surveys which he deems necessary, and may, if no objection is filed by the well operator or the gas and oil inspector within 15 days after the notice is received, grant the request of the operator to conduct the mining operations as projected, or with such modifications as he may deem necessary.

E. If the well operator or gas and oil inspector files objections, a hearing will be held under the same procedures as set forth in § 9-6.14:11 § 2.2-4019 of the Code of Virginia.

F. If the applicant for an approval to mine within 200 feet of a gas or oil well submits proof in writing that none of the persons required to be notified under this section has any objection to the projected mining activity, then the director may waive the notice requirement under this section and grant the request of the operator to conduct the projected mining activity, provided all other conditions have been met.

4VAC25-70-10. General requirements.

A. Section 45.1-161.191 Section 45.2-811 of the Code of Virginia requires that telephone service or an equivalent two-way communication system be provided between the top and each landing of main shafts and slopes in the mines.

B. Corrective actions shall be taken when a disruption or failure of the required communication system occurs to any section or part of an underground mine where preparation for mining is being made or mining is in progress. Work to restore communications shall begin immediately.

C. Any disruption in communication which is not restored within one hour shall be recorded by the mine foreman in the on-shift report. The record shall reflect the corrective actions taken and time the communication was restored.

D. Whenever a representative of the miners, or a miner where there is no such representative, has reason to believe that conditions are such that continuing to work on a section without communication would constitute an imminent danger to safety or health, such miner or representative shall notify the Chief of the Division of Mines or mine inspector of his concern. Upon receipt of such notification, the Chief shall cause an inspection to be made as soon as possible. If the inspection determines that such danger exists, the workers, excluding those needed to correct the problem, shall be withdrawn to a place that has communication with the surface.

4VAC25-90-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"MSHA" means the Mine Safety and Health Administration.

"TLV" or "Threshold Limit Value" means the airborne concentration of a substance that represents conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect as recommended by the American Conference of Government Industrial Hygienists.

4VAC25-90-70. Air quality.

A. During on-shift examinations required by § 45.1-161.209 § 45.2-827 of the Code of Virginia, a mine foreman authorized by the operator shall determine the concentration of carbon monoxide (CO) and nitrogen dioxide (NO₂).

1. In the return of each working section where diesel equipment is used inby the loading point at a location which represents the contribution of all diesel equipment on such section.

2. At a point inby the last piece of diesel equipment on a longwall or shortwall when mining equipment is being installed or removed. This examination shall be made at a time which represents the contribution of all diesel equipment used for this activity including the diesel equipment used to transport longwall or shortwall equipment to and from the section.

3. In any other area designated by the chief where diesel equipment is operated in a manner which can result in significant concentrations of diesel exhaust emissions.

4. The concentrations of carbon monoxide (CO) and nitrogen dioxide (NO₂) shall not exceed the following threshold limit values:

Threshhold Limit Values (TLV)
Carbon Monoxide (CO)	25 ppm
Nitrogen Dioxide (NO2)	3 ppm

B. Samples of CO and NO₂ shall be collected and analyzed:

1. By appropriate instrumentation that has been maintained and calibrated in accordance with the manufacturer's recommendations;

2. In a manner that makes the results available immediately to the person collecting the samples; and

3. During periods that are representative of conditions during normal operations.

C. The results of these tests shall be:

1. Recorded in a secure book that is not susceptible to alteration, or recorded electronically in a computer system that is secure and not subject to alteration; and

2. Retained at a surface location at the mine for at least one year and made available for inspection by interested persons.

4VAC25-101-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Accurate map or plat" means a map or plat drawn of a scale of between one inch equals 100 feet (1:1,200) and one inch equals 400 feet (1:4,800) with the scale so stated on the map or plat and certified by a licensed professional engineer or licensed land surveyor.

"Approved" means a device, apparatus, equipment, condition, method, course or practice approved in writing by the chief. Approvals by federal agencies such as the Mine Safety and Health Administration (MSHA), or the Office of Surface Mining (OSM), shall also be considered "approved" for the purposes of this chapter.

"Bridge plug" means an obstruction intentionally placed in a vertical ventilation hole at a specified depth.

"Building" means a structure regularly occupied in whole or in part as a habitation for human beings, or where people are accustomed to live, work, or assemble.

"Casing" means all pipe set in wells or vertical ventilation holes except conductor pipe and tubing.

"Cement" means hydraulic cement properly mixed with water.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy, or his authorized agent.

"Coalbed methane gas" means occluded natural gas produced from coalbeds and rock strata associated therewith.

"Coalbed methane gas well" means a well capable of producing coalbed methane gas.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids and gas or gas pressure from the seam, except such as may be found in the coal seam itself.

"Coal seam" means any stratum of coal 20 inches or more in thickness, unless a stratum of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical and direction of points in the hole from the vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Form prescribed by the chief" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Code of Virginia or this chapter.

"Gas" or "natural gas" means all natural gas whether hydrocarbon or nonhydrocarbon or any combination or mixture thereof, including hydrocarbons, hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casing head gas, and all other fluids not defined as oil.

"Gas well operator" means any person who has been designated to operate or does operate a gas well.

"Gas and Oil Inspector" means the Director of the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Gas well" means any well that produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well which is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial or agricultural use or otherwise affects the public safety.

"Highway" means any public street, public alley, or public road.

"Inclination survey" means a survey taken inside a vertical ventilation hole that measures the degree of deviation of the point of the survey from the vertical.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Log" means the written record progressively describing all strata, water, or gas encountered in drilling, depth and thickness of each bed or seam of coal drilled through, volume of gas, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, cavings strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include electrical survey records or electrical survey logs.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Minable coal seam" means a coal seam being mined commercially, or that, in the judgment of the chief, can reasonably be expected to be mined, and which, when mined, will require protection if holes are drilled through it.

"Mining" means the activity of producing coal from any coal mine.

"Mud" means a mixture of materials which creates a weighted fluid to be circulated downhole during over-balance drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation fluids, oil, gas or gas pressure.

"Owner" means the person or persons listed as owner of record by the Clerk of the Circuit Court of the county in which the property is located.

"Pending" means an application for a vertical ventilation hole or gas well permit that has been submitted to the department, but where the decision to issue or refuse to issue the permit has not been made.

"Permanent point" means an established physical point of reference on the land surface, based on the applicant's coordinate system, used for a map or plat submitted with a permit application.

"Permitted" means a vertical ventilation hole or gas well that has been approved by the department.

"Person" means individual, corporation, partnership, association, company, business, trust, joint venture, unit of government, or other legal entity.

"Pillar" means a solid block of coal or ore or other material left unmined to support the overlying strata in a mine.

"Pipeline" means any pipe buried or on the surface used or to be used to transport gas.

"Plug" means the sealing of, or a device or material used for the sealing of, a vertical ventilation hole or casing to prevent the migration of formation fluids or gas from one stratum to another.

"Railroad" means any steam, electric or other powered transportation system operating on a track which carries passengers for hire, or over which loaded or empty equipment is transported.

"State plane coordinate system" means the Virginia Coordinate System of 1927 or the Virginia Coordinate System of 1983 as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a vertical ventilation hole. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Tubing" means the small diameter string set after the vertical ventilation hole has been drilled from the surface to the total depth and through which a substance is produced or injected.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used primarily for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

"Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction, injection or placement of any gaseous or liquid substance, or any shaft or hole sunk or used in conjunction with such extraction, injection or placement. The term shall not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural, or public use and shall not include water boreholes, vertical ventilation holes where methane is vented or flared rather than produced and saved, subsurface boreholes drilled from the mine face of an underground coal mine, any other boreholes necessary or convenient for the extraction of coal or drilled pursuant to a uranium exploratory program carried out pursuant to the laws of this Commonwealth, or any coal or non-fuel mineral corehole or borehole for the purpose of exploration.

4VAC25-101-50. Venting methane; bleeder system.

A. Nothing in this chapter shall prevent the operator of a permitted coalbed methane gas well from venting methane from the well in accordance with the requirements of the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia and the Virginia Gas and Oil Regulation, 4VAC25-150-10 et seq.

B. The mine bleeder system, when operated in conjunction with vertical ventilation holes or coalbed methane gas wells, shall be operated such that changes in the operation of the vertical ventilation holes or coalbed methane wells shall not create hazardous conditions for the miners working underground. If the operation of a vertical ventilation hole or coalbed methane gas well affects any mine's ventilation, the mine shall be adequately ventilated in accordance with the mine's bleeder plan approved under § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act. Any changes or adjustments to such VVH's or coalbed methane gas wells shall be recorded as required by the mine's approved bleeder plan.

4VAC25-101-150. Mining within 500 feet of a vertical ventilation hole or gas well.

A. Before removing any coal or other mineral, or extending any mine workings or operations within 500 horizontal feet of any permitted or pending vertical ventilation hole or gas well, the mine operator shall give notice by certified mail to the vertical ventilation hole operator and the chief or, in the case of a gas well, the mine operator shall give notice as provided for in §§ 45.1-161.121 45.2-707 A and 45.1-161.292 45.2-939 A of the Coal Mine Safety Act.

B. The mine operator shall send to the vertical ventilation hole operator and the chief an accurate map or plat. The map shall show the location of the hole and projected mine workings within 500 horizontal feet of the ventilation hole and shall be shown in accordance with the state plane coordinate system.

C. Once notice and the map have been provided, the mine operator may proceed with mining operations as shown on the map. However, the mine operator shall not remove any coal or other mineral, or conduct any mining operations nearer than 200 horizontal feet, as determined by survey, to any permitted or pending vertical ventilation hole or gas well without the approval of the chief.

D. This provision shall not apply to mining operations in the seam which the vertical ventilation hole or gas well is intended to ventilate if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through that seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-160. Mining within 200 feet of a vertical ventilation hole, gas well or pipeline.

A. A mine operator shall submit a plan to the chief for approval to conduct mining operations within 200 feet (horizontally or vertically) of any permitted or pending vertical ventilation hole or gas well or to conduct surface mining operations within 200 feet of pipelines.

B. The plan shall comply with requirements developed by the chief. It shall be accompanied by an accurate map or plat showing the location of the hole, well, or pipeline, mine workings within 500 feet of the hole, well, or pipeline, projected mine workings within 200 horizontal feet of the vertical ventilation hole, gas well, or pipeline in accordance with the state plane coordinate system.

C. The chief may, prior to considering the plan, make or cause to be made any inspections or surveys which he deems necessary.

D. Notice of intent, including a copy of the plan, shall be sent by certified mail to the operator of the vertical ventilation hole or pipeline, which may be affected by the proposed mining operations. Gas well operators, which may be affected by the proposed mining operations, shall be given notice as required in §§ 45.1-161.121.45.2-707 C and 45.1-161.292. 45.2-939 B of the Coal Mine Safety Act. The notice shall inform the operator of the right to object to the proposed mining activity. Objections shall be filed with the chief within 10 days of the date that the notice is received. If the operator files an objection, the chief shall schedule a hearing in accordance with the provisions in 4VAC25-101-70.

E. If the mine operator submits proof in writing that the operator of the vertical ventilation hole, gas well, or pipeline does not object to the projected mining activity, then the chief may waive the notice requirement and issue a permit, provided all other conditions for permit issuance have been met.

F. The chief may, if the operator of the vertical ventilation hole, or gas well, or pipeline does not file an objection within the specified period, approve the plan for the mining operations as projected, or with such modifications as the chief may deem necessary.

G. This section shall not apply to mining operations in the seam that the vertical ventilation hole or gas well is intended to ventilate, if safe mining procedures have been incorporated in the approved bleeder plan as provided in 4VAC25-101-190, unless the casing extends through the seam or if the vertical ventilation hole, gas well, or pipeline is located outside the coal seam outcrop.

4VAC25-101-190. Mining seams impacted by vertical ventilation holes and coalbed methane wells intended to degas the seams being mined.

Mining through vertical ventilation holes, coalbed methane wells, or gas wells intended to degas the seam being mined shall comply with safe mining procedures which have been incorporated in the approved Bleeder Plan required by § 45.1-161.220 § 45.2-837 of the Coal Mine Safety Act.

4VAC25-101-200. Plugging of vertical ventilation holes.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the chief. A permit modification is required if the vertical ventilation hole was not previously permitted for plugging.

2. Any person may file an application with the chief to re-plug a previously plugged vertical ventilation hole in any manner permissible under provisions of this section to facilitate the safe mining-through of the vertical ventilation hole at a later date.

3. The chief may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Coal Mine Safety Act:

a. The coal owner, operator, or lessee of record requests a special plugging program to facilitate mine safety or to obtain approval from another governmental agency for the safe mining-through of a vertical ventilation hole. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan, which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a vertical ventilation hole or section of a vertical ventilation hole without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

2. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

3. A cement plug of minimum length of 100 feet shall be placed across the bottom of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the vertical ventilation hole is without surface casing, a continuous cement plug shall be placed at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

4. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the hole by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each minable coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If there is uncemented annulus between an inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

c. If a fresh water aquifer is exposed to the hole in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

d. At a point no less than 50 feet below the bottom of the surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

e. From a point not less than 50 feet below the surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

f. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the chief.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision 1 of this subsection.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal length inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the hole, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the hole or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity, such as a cavern, mine void, blast stimulation zone, or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest stratum in the hole, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision 1 of this subsection.

4VAC25-110-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:

"Actual distance" means the distance in feet from the blast location to the nearest dwelling house, public building, school, church, or commercial or institutional building neither owned nor leased by the person conducting the blast.

"DMLR" means the Division of Mined Land Reclamation Repurposing of the Department of Energy.

"Fly rock" means uncontrolled material generated by the blast traveling along the ground and shall not be cast from the blasting vicinity more than half the distance to the nearest dwelling or other occupied structure and in no case beyond the Division of Mined Land Reclamation Repurposing (DMLR) permit boundary.

"Inhabited building" means a building regularly occupied in whole or in part as a habitation for human beings, or any church, schoolhouse, railroad station, store, or other structure where people are accustomed to assemble, except any building or structure occupied in connection with the manufacture, transportation, storage or use of explosives.

"Mudcapping," also known as bulldozing, adobe blasting or dobying, means a method of blasting by placing a quantity of explosives in contact with a rock, boulder, or other object without confining the explosives in a drill hole.

"Person" means and includes individuals, firms, partnerships, associations, corporations, receivers, or any officer of the Commonwealth, or any agent or officer of the above-mentioned classes employing any person in this Commonwealth.

"Stemming" means that inert material placed in a borehole after the explosive charge for the purpose of confining the explosion gases in the borehole or that inert material used to separate the explosive charges (decks) in decked holes.

4VAC25-110-210. Blasting safety.

A. When operating within 1,000 horizontal feet of a highway, traffic must be stopped at a safe distance and the blasting area shall be posted with warning signs.

B. Where a blasting operation is conducted in the vicinity of an active deep mine, the blaster shall observe all procedures necessary to secure the health and safety of the deep mine workers. The operator of the affected deep mine shall be notified of planned blasting activities to coordinate necessary precautions for underground workers.

C. When blasting operations, other than those conducted at a fixed site as a part of any industry or business operated at such site, are to be conducted within 200 feet of a pipe line or high voltage transmission line, the blaster or person in charge of the blasting operations shall take due precautionary measures for the protection of the line, and shall notify the owner of the line or his agent at least 48 hours in advance that such blasting operations are intended.

D. When an operator applies for a mine license, he shall indicate on the application the actual distance to the nearest inhabited building.

E. Before a blast is fired, a loud warning signal, audible within a range of ½ mile, shall be given by the blaster in charge, who has made certain that all surplus explosives are in a safe place and all employees, vehicles, and equipment are at a safe distance or under sufficient cover.

F. Fly rock as defined in 4VAC25-110-10 shall not be allowed.

G. Blasting operations shall be conducted during daylight hours (sunrise to sunset) unless authorized by the Chief or his authorized representative.

H. Misfires, hangfires, etc., shall be handled in accordance with § 45.1-161.285 § 45.2-932 of the Code of Virginia.

I. Mudcapping in blasting operations shall be permitted only where the driller would be in a hazardous position in attempting to drill the rock or material to be blasted.

4VAC25-125-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bin" means a container for storage of bulk material.

"Bunker" means a vessel for the bulk storage of material; the lowermost portion is usually constructed in the form of a hopper.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mines of the Department of Mines, Minerals and Energy.

"Hopper" means a vessel not primarily intended for storage into which materials are fed; usually constructed in the form of an inverted pyramid or cone terminating in an opening through which the material is discharged.

"Safety line" means a component consisting of a flexible line for connection to an anchorage at one end to hang vertically (vertical lifeline), or for connection to anchorages at both ends to stretch horizontally (horizontal lifeline), and which serves as a means for connecting other components of a personal fall arrest system to the anchorage.

"Silo" means a tall structure, usually cylindrical and of reinforced concrete construction, in which bulk material is stored and discharged through feeders that draw materials from the bottom.

"Stockpile" means any accumulation of material formed to create a reserve for loading or other purposes.

4VAC25-130-700.1. Scope.

These regulations, consisting of Parts 700 through 882, establishes the procedures and requirements through which the Department of Mines, Minerals, and Energy and its Division of Mined Land Reclamation Repurposing will implement the Virginia Coal Surface Mining Control and Reclamation Act of 1979 (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and the Federal Surface Mining Control and Reclamation Act of 1977, (P.L. 95-87, 91 Stat. 445 (30 USC §§ 1201 et seq.)), pursuant to the Virginia permanent regulatory program, as approved by the United States Secretary of the Interior.

This Chapter is divided into nine Subchapters.

(a) Subchapter VA contains introductory information intended to serve as a guide to the rest of the Chapter and to the regulatory requirements and definitions generally applicable to the programs and persons covered by the Act.

(b) Subchapter VD identifies the procedures that apply to surface coal mining and reclamation operations conducted on Federal lands rather than State or private lands and incorporates by reference the applicable requirements of the State regulatory program: Subchapters VG, VJ, VK, AND VL.

(c) Subchapter VF implements the requirements of the Act for--

(i) Designating lands which are unsuitable for all or certain types of surface coal mining operations;

(ii) Terminating designation no longer found to be appropriate; and

(iii) Prohibiting surface coal mining and reclamation operations on those lands or areas where the Act states that surface coal mining operations should not be permitted or should be permitted only after specified determinations are made.

(d) Subchapter VG governs applications for and decisions on permits for surface coal mining and reclamation operations within the Commonwealth. It also governs coal exploration and permit application and decisions on permits for special categories of coal mining in the Commonwealth. Regulations implementing the experimental practices provision of the Act are also included in Subchapter VG.

(e) Subchapter VJ sets forth requirements for performance bonds and public liability insurance for surface mining, underground mining and coal exploration permits.

(f) Subchapter VK sets forth the environmental and other performance standards which apply to coal exploration and to surface coal mining and reclamation operations, as well as to special mining situations involved with steep slope mining, mountaintop removal mining, auger mining and prime farmlands.

(g) Subchapter VL sets forth the inspection, enforcement, and civil penalty provisions.

(h) Subchapter VM sets forth the requirements for the training, examination, and certification of blasters.

(i) Subchapter VR sets forth the regulations for the Abandoned Mine Land Program.

4VAC25-130-700.2. Authority and citation to federal law.

These regulations are promulgated pursuant to Chapter 19, 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia (1950) as amended. In order for these regulations to receive approval by the United States Secretary of the Interior as part of the Commonwealth's permanent regulatory program, the Federal Surface Mining Control and Reclamation Act requires that these regulations be consistent with (as effective as) applicable regulations issued by the Secretary, contained in 30 CFR Chapter VII. The numbering system used for the Virginia regulations corresponds to the numbering system used for the applicable Federal regulations in 30 CFR Chapter VII, except that the numbering for the Virginia regulations contains the prefix "4VAC25-130-xxx.xxx." All references to Sections, Parts, or Subchapters are made to this chapter, unless otherwise noted.

4VAC25-130-700.3. Effective date.

(a) The regulations promulgated pursuant to Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia became effective on December 15, 1981, the date on which the Secretary of the Interior approved the Commonwealth's permanent regulatory program.

(b) The regulations in this chapter shall become effective when approved by the Secretary of the Interior, except, for existing operations permitted pursuant to Chapter 19, Title 45.1-

(1) All provisions except for those related to the contents of permit applications of Subchapter VG and the performance standards of Subchapter VK shall apply.

(2) The content of permit application requirements and the performance standards of the regulations approved on December 15, 1981, shall be complied with.

(3) All provisions of this chapter shall apply when the existing permit is significantly revised or renewed.

4VAC25-130-700.5. Definitions.

As used throughout this chapter, the following terms have the specified meanings except where otherwise indicated.

"Abatement plan" means an individual technique or combination of techniques, the implementation of which is designed to result in reduction of the baseline pollution load. Abatement techniques include but are not limited to: addition of alkaline material, special plans for managing toxic and acid forming material, regrading, revegetation, and daylighting.

"Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mining and reclamation operation or from an area affected by surface coal mining and reclamation operations.

"Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water, or weathering processes, form acid that may create acid drainage or leachate.

"Act" means the Virginia Coal Surface Mining Control and Reclamation Act of 1979 as amended (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia).

"Actual improvement" means the reduction of the baseline pollution load resulting from the implementation of the approved abatement plan: except that a reduction of the baseline pollution load achieved by water treatment may not be considered as actual improvement.

"Adjacent area" means the area outside the permit area where a resource or resources, determined according to the context in which adjacent area is used, are or reasonably could be expected to be adversely impacted by proposed mining operations, including probable impacts from underground workings.

"Administratively complete application" means an application for permit approval, or approval for coal exploration where required, which the division determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review.

"Adverse physical impact" means, with respect to a highwall created or impacted by remining, conditions such as sloughing of material, subsidence, instability, or increased erosion of highwalls, which occur or can reasonably be expected to occur as a result of remining and which pose threats to property, public health, safety, or the environment.

"Affected area" means any land or water surface area which is used to facilitate, or is physically altered by, surface coal mining and reclamation operations. The affected area includes the disturbed area; any area upon which surface coal mining and reclamation operations are conducted; any adjacent lands, the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations, except as provided in this definition; any area covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property or material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings. The affected area shall include every road used for purposes of access to, or for hauling coal to or from, surface coal mining and reclamation operations, unless the road is a public road.

"Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

"Anthracite" means coal classified as anthracite in ASTM Standard D 388-77. Coal classifications are published by the American Society of Testing and Materials under the title, "Standard Specification for Classification of Coals by Rank," ASTM D 388-77, on pages 220 through 224. Table 1 which classifies the coals by rank is presented on page 223. This publication is hereby incorporated by reference.

"Applicant" means any person seeking a permit, permit revision, renewal, and transfer, assignment, or sale of permit rights from the division to conduct surface coal mining and reclamation operations or, where required, seeking approval for coal exploration.

"Applicant violator system" or "AVS" means an automated information system of applicant, permittee, operator, violation, and related data the federal Office of Surface Mining Reclamation and Enforcement (OSM) maintains and the division utilizes in the permit review process.

"Application" means the documents and other information filed with the division under this chapter for the issuance of permits; revisions; renewals; and transfer, assignment, or sale of permit rights for surface coal mining and reclamation operations or, where required, for coal exploration.

"Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls, spoil piles and coal refuse piles eliminated. Permanent water impoundments may be permitted where the division has determined that they comply with 4VAC25-130-816.49, 4VAC25-130-816.56, and 4VAC25-130-816.133 or 4VAC25-130-817.49, 4VAC25-130-817.56, and 4VAC25-130-817.133.

"Aquifer" means a zone, stratum, or group of strata that can store and transmit water in sufficient quantities for a specific use.

"Auger mining" means a method of mining coal at a cliff or highwall by drilling or cutting holes into an exposed coal seam from the highwall and transporting the coal along the auger bit to the surface.

"Authorized officer" means any person authorized to take official action on behalf of a federal agency that has administrative jurisdiction over federal lands.

"Baseline pollution load" means the characterization of the pollution material being discharged from or on the pollution abatement area, described in terms of mass discharge for each parameter, including seasonal variations and variations in response to precipitation events. The division will establish in each authorization the specific parameters it deems relevant for the baseline pollution load.

"Best professional judgment" means the highest quality technical opinion forming the basis for the terms and conditions of the treatment level required after consideration of all reasonably available and pertinent data. The treatment levels shall be established by the division under §§ 301 and 402 of the federal Water Pollution Control Act (33 USC §§ 1311 and 1342).

"Best technology" means measures and practices which are designed to abate or ameliorate to the maximum extent possible pollutional discharges from or on the pollution abatement area. These measures include engineering, geochemical or other applicable practices.

"Best technology currently available" means equipment, devices, systems, methods, or techniques which will:

(a) Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contribution of suspended solids in excess of requirements set by the applicable state or federal laws;

(b) Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, terms, methods, or techniques which are currently available anywhere as determined by the division even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetative selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with Parts 816 and 817 of this chapter. Within the constraints of the permanent program, the division shall have the discretion to determine the best technology currently available on a case-by-case basis, as authorized by the Act and this chapter.

"Cemetery" means any area of land where human bodies are interred.

"Certification" when used in regards to construction certifications by qualified registered professional engineers, is not considered to be a warranty or guarantee.

"Coal" means combustible carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite by ASTM Standard D 388-77, referred to and incorporated by reference in the definition of "anthracite."

"Coal exploration" means the field gathering of:

(a) Surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or

(b) The gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of this chapter.

"Coal lease" means a federal coal lease or license issued by the Bureau of Land Management pursuant to the Mineral Leasing Act and the federal Acquired Lands Leasing Act of 1947 (30 USC § 351 et seq.).

"Coal mine waste" means coal processing waste and underground development waste.

"Coal mining operation" means, for the purposes of Part 705 of this chapter—Financial Interests of State Employees—the business of developing, producing, preparing or loading bituminous coal, subbituminous coal, anthracite, or lignite, or of reclaiming the areas upon which such activities occur.

"Coal preparation" or "coal processing" means chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

"Coal preparation plant" means a facility where coal is subjected to chemical or physical processing or the cleaning, concentrating, or other processing or preparation. It includes facilities associated with coal preparation activities, including but not limited to the following: loading facilities; storage and stockpile facilities; sheds, shops, and other buildings; water-treatment and water storage facilities; settling basins and impoundments; and coal processing and other waste disposal areas.

"Coal processing waste" means earth materials which are separated and wasted from the product coal during cleaning, concentrating, or other processing or preparation of coal.

"Cognovit note" means an extraordinary note which authorizes an attorney to confess judgement against the person or persons signing it. It is written authority of a debtor and a direction by him for entry of a judgement against him if the obligation set forth in the note is not paid when due. Such judgement may be taken by any person holding the note, which cuts off every defense which makers of the note may otherwise have and it likewise cuts off all rights of appeal from any judgement taken on it. The note shall, at a minimum:

(a) Contain the date of execution.

(b) Be payable to the "Treasurer of Virginia."

(c) Be due and payable in the event of bond forfeiture of the permit.

(d) Be payable in a sum certain of money.

(e) Be signed by the makers.

"Collateral bond" means an indemnity agreement in a sum certain executed by the permittee and deposited with the division supported by one or more of the following:

(a) The deposit of cash in one or more federally insured accounts, payable only to the division upon demand;

(b) Negotiable bonds of the United States, the Commonwealth of Virginia, or a political subdivision thereof, endorsed to the order of, and placed in the possession of the division; the bond will only be acceptable if the issue is rated "A" or better by Moody's Investor Service, Inc., or Standard and Poor's, Inc.;

(c) Certificates of deposit issued by Virginia banks payable only to the division and placed in its possession. No security in default as to principal or interest shall be acceptable as collateral; or

(d) An irrevocable letter of credit of any bank organized or authorized to transact business in the United States, payable only to the department at sight prepared in accordance with the Uniform Customs and Practices for Documentary Credits (1993 revision) International Chamber of Commerce (Publication No. 500).

"Combustible material" means organic material that is capable of burning, either by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

"Community or institutional building" means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

"Compaction" means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as from repeated application of wheel, track, or roller loads from heavy equipment.

"Complete and accurate application" means an application for permit approval or approval for coal exploration where required which the division determines to contain all information required under the Act and this chapter.

"Contamination" means, in reference to ground water or surface water supplies receiving ground water, any impairment of water quality which makes the water unsuitable for a specific use.

"Control" or "controller" when used in 4VAC25-130-773, 4VAC25-130-774, or 4VAC25-130-778 means:

(a) A permittee of a surface coal mining operation;

(b) An operator of a surface coal mining operation; or

(c) Any person who has the ability to determine the manner in which a surface coal mining operation is conducted.

"Cooperative agreement" means a cooperative agreement entered into in accordance with § 523(c) of the federal Act and 30 CFR Part 745.

"Cumulative impact area" means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and ground water systems. Anticipated mining shall include, at a minimum, the entire projected lives through bond release of:

(a) The proposed operation;

(b) All existing operations;

(c) Any operation for which a permit application has been submitted to the division; and

(d) All operations required to meet diligent development requirements for leased federal coal for which there is actual mine development information available.

"Department" means the Virginia Department of Mines, Minerals and Energy (DMME) of Virginia.

"Diminution" means, in reference to ground or surface water supplies receiving ground water, any impairment of water quantity which makes the water unsuitable for a specific use.

"Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal mining operations. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

"Director" means the Director of the Department of Mines, Minerals, and Energy or his representative.

"Disturbed area" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste, or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is complete and the performance bond or other assurance of performance required by Subchapter VJ is released.

"Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one area to another.

"Division" means the Division of Mined Land Reclamation Repurposing of the Department of Mines, Minerals, and Energy.

"Downslope" means the land surface between the projected outcrop of the lowest coal bed being mined along each highwall and a valley floor.

"Drinking, domestic or residential water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included, except to the extent the water supply is for direct human consumption or human sanitation or domestic use.

"Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

"Employee" means (a) any person employed by the department or other state or local government agency who performs any function or duty under the Act, and (b) consultants who perform any function or duty under the Act, if they perform decision-making functions for the department under the authority of the Act or regulations promulgated under the Act.

"Ephemeral stream" means a stream that flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and that has a channel bottom that is always above the local water table.

"Escrow account" means an account in a federally insured financial institution.

"Excess spoil" means spoil material disposed of in a location other than the mined-out area; provided that spoil material used to achieve the approximate original contour or to blend the mined-out area with the surrounding terrain in accordance with 4VAC25-130-816.102(d) and 4VAC25-130-817.102(d) in nonsteep slope areas shall not be considered excess spoil.

"Existing structure" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction begins prior to the approval of the state program or a federal land program, whichever occurs first.

"Extraction of coal as an incidental part" means, for the purposes of Part 707 of this chapter, the extraction of coal which is necessary to enable the construction to be accomplished. For purposes of Part 707, only that coal extracted from within the right-of-way, in the case of a road, railroad, utility line or other such construction, or within the boundaries of the area directly affected by other types of government-financed construction, may be considered incidental to that construction. Extraction of coal outside the right-of-way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and this chapter.

"Federal Act" means the federal Surface Mining Control and Reclamation Act of 1977, as amended (Pub. L. 95-87).

"Federal land management agency" means a federal agency having administrative jurisdiction over the surface of federal lands that are subject to this chapter.

"Federal lands" means any land, including mineral interests, owned by the United States, without regard to how the United States acquired ownership of the lands or which agency manages the lands. It does not include Indian lands.

"Federal lands program" means a program established by the secretary pursuant to § 523 of the federal Act to regulate surface coal mining and reclamation operations on federal lands.

"Federal lease bond" means the bond or equivalent security required by 43 CFR Part 3400 to assure compliance with the terms and conditions of a federal coal lease.

"Federal lessee protection bond" means a bond payable to the United States or the state, whichever is applicable, for use and benefit of a permittee or lessee of the surface lands to secure payment of any damages to crops or tangible improvements on federal lands, pursuant to § 715 of the federal Act.

"Federal program" means a program established by the secretary pursuant to § 504 of the federal Act to regulate coal exploration and surface coal mining and reclamation operations on nonfederal and non-Indian lands within the state in accordance with the federal Act and 30 CFR Chapter VII.

"First water producing zone" means the first water zone encountered which can be monitored in a manner which indicates the effects of a surface mining operation on usable ground water.

"Fragile lands" means areas containing natural, ecologic, scientific or aesthetic resources that could be significantly damaged by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, paleontological sites, National Natural Landmarks, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features and areas of recreational value due to high environmental quality.

"Fugitive dust" means that particulate matter which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During surface coal mining and reclamation operations it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles, and spoil piles; reclamation operations; and other activities in which material is either removed, stored, transported, or redistributed. Fugitive dust does not include particulate matter emitted from a duct or stack.

"Fund," as used in Subchapter VR, means the Abandoned Mine Reclamation Fund established pursuant to § 45.1-261 § 45.2-1032 of the Act.

"General area" means, with respect to hydrology, the topographic and ground water basin surrounding a permit area and adjacent areas to include one or more watersheds containing perennial streams or ground water zones which possess useable and/or managed zones or flows, to allow an assessment of the probable cumulative impacts on the hydrologic regime.

"Government-financed construction" means construction funded 50% or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50% may qualify if the construction is undertaken as an approved reclamation project under Title IV of the federal Act. Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments does not qualify as government-financed construction.

"Government financing agency" means any federal, state, regional, county, city or town unit of government, or a department, bureau, agency or office of a governmental unit or any combination of two or more governmental units or agencies, which, directly or through another unit of government, finances construction.

"Gravity discharge" means, with respect to underground coal mining activities, mine drainage that flows freely in an open channel downgradient. Mine drainage that occurs as a result of flooding a mine to the level of the discharge is not gravity discharge.

"Ground cover" means the area of ground covered by the combined aerial parts of vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of ground.

"Ground water" means subterranean water which exists within a totally saturated zone, stratum or group of strata.

"Growing season" means the period of year when climatic conditions are favorable for plant growth, common to a place or area. The period between April 15 and October 15 is the normal growing season.

"Half-shrub" means a perennial plant with a woody base whose annually produced stems die back each year.

"Head-of-hollow fill" means a fill structure consisting of any material, except organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow, measured at the steepest point, are greater than 20 degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10 degrees. In head-of-hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill, draining into the fill area.

"Higher or better uses" means postmining land uses that have a higher value or benefit, either economic or noneconomic, to the landowner or the community than the premining land uses.

"Highwall" means the face of exposed overburden and coal in an open cut of a surface coal mining activity or for entry to underground mining activities.

"Highwall remnant" means that portion of highwall that remains after backfilling and grading of a remining permit area.

"Historically used for cropland" means (1) lands that have been used for cropland for any five years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease, or option the conduct of surface coal mining and reclamation operations; (2) lands that the division determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific five-years-in-10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or (3) lands that would likely have been used as cropland for any five out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the land unrelated to the productivity of the land.

"Historic lands" means areas containing historic, cultural, or scientific resources. Examples of historic lands include archaeological sites, properties listed on or eligible for listing on the State or National Register of Historic Places, National Historic Landmarks, properties having religious or cultural significance to native Americans or religious groups, and properties for which historic designation is pending.

"Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, and changes in ground and surface water storage.

"Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along or into the ground surface, and returns to the atmosphere as vapor by means of evaporation and transportation.

"Imminent danger to the health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirements of the Act in a surface coal mining and reclamation operation, which could reasonably be expected to cause substantial physical harm to persons outside the permit area before the condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same condition or practice giving rise to the peril, would avoid exposure to the danger during the time necessary for abatement.

"Impounding structure" means a dam, embankment or other structure used to impound water, slurry, or other liquid or semi-liquid material.

"Impoundments" mean all water, sediment, slurry or other liquid or semi-liquid holding structures and depressions, either naturally formed or artificially built.

"Indemnity agreement" means an agreement between two persons in which one person agrees to pay the other person for a loss or damage. The persons involved can be individual people, or groups of people, or legal organizations, such as partnerships, corporations or government agencies, or any combination of these.

"Indirect financial interest" means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by the employee's spouse, minor child and other relatives, including in-laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal mining operation in which the spouse, minor children or other resident relatives hold a financial interest.

"In situ processes" means activities conducted on the surface or underground in connection with in-place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining, and fluid recovery mining.

"Intermittent stream" means:

(a) A stream or section of a stream that drains a watershed of at least one square mile, or

(b) A stream or section of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

"Irreparable damage to the environment" means any damage to the environment, in violation of the Act, or this chapter, that cannot be corrected by the permittee.

"Knowing" or "knowingly" means that a person who authorized, ordered, or carried out an act or omission knew or had reason to know that the act or omission would result in either a violation or failure to abate or correct a violation.

"Land use" means specific uses or management-related activities, rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal use occur and may include land used for support facilities that are an integral part of the use. Changes of land use from one of the following categories to another shall be considered as a change to an alternative land use which is subject to approval by the division.

(a) "Cropland." Land used for production of crops which can be grown for harvest alone or in a rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops.

(b) "Pastureland" or land occasionally cut for hay. Land used primarily for the long-term production of adapted, domesticated forage plants to be grazed by livestock or occasionally cut and cured for livestock feed.

(c) "Grazingland." Lands used for grasslands and forest lands where the indigenous vegetation is actively managed for grazing, browsing, or occasional hay production.

(d) "Forestry." Land used or managed for long-term production of wood, wood fiber, or wood derived products.

(e) "Residential." Land used for single and/or multiple family housing, mobile home parks, or other residential lodgings.

(f) "Industrial/Commercial." Land used for:

(1) Extraction or transformation of materials for fabrication of products, wholesaling of products, or long-term storage of products. This includes all heavy and light manufacturing facilities.

(2) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments.

(g) "Recreation." Land used for public or private leisure-time activities, including developed recreation facilities such as parks, camps, amusement areas, as well as undeveloped areas for recreation such as hiking and canoeing.

(h) "Fish and wildlife habitat." Land dedicated wholly or partially to the production, protection, or management of species of fish or wildlife.

(i) "Developed water resources." Land used for storing water for beneficial uses, such as stockponds, irrigation, fire protection, flood control, and water supply.

(j) "Undeveloped land or no current use or land management." Land that is undeveloped or, if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

"Lands eligible for remining" means those lands that would otherwise be eligible for expenditures under § 404 or under § 402(g)(4) of the federal Act.

"Leachate" means water percolating from a surface coal mining operation which contains dissolved and suspended matter.

"Leased federal coal" means coal leased by the United States pursuant to 43 CFR Part 3400, except mineral interests in coal on Indian lands.

"Lease terms, conditions and stipulations" means all of the standard provisions of a federal coal lease, including provisions relating to lease duration, fees, rentals, royalties, lease bond, production and recordkeeping requirements, and lessee rights of assignment, extension, renewal, termination and expiration, and site-specific requirements included in federal coal leases in addition to other terms and conditions which relate to protection of the environment and of human, natural and mineral resources.

"Material damage" in the context of 4VAC25-130-784.20 and 4VAC25-130-817.121 means:

(a) Any functional impairment of surface lands, features, structures, or facilities;

(b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.

"Mineral Leasing Act" or "MLA" means the Mineral Leasing Act of 1920, as amended, 30 USC § 181 et seq.

"Mining plan" means the plan, for mining leased federal coal, required by the Mineral Leasing Act.

"Mining supervisor" means the Area Mining Supervisor, Conservation Division, U.S. Geological Survey, or District Mining Supervisor or other subordinate acting under their direction.

"Moist bulk density" means the weight of soil (oven dry) per unit volume. Volume is measured when the soil is at field moisture capacity (1/3 bar moisture tension). Weight is determined after drying the soil at 105°C.

"MSHA" means the United States Mine Safety and Health Administration.

"Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, and provide micro-climatic conditions suitable for germination and growth.

"Natural hazard lands" means geographic areas in which natural conditions exist which pose or as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding, and areas of unstable geology.

"Net worth" means total assets less total liabilities. Total liabilities include, but are not limited to, funds pledged or otherwise obligated to the Commonwealth of Virginia, or to any other person at any time during the permit term. Total liabilities also include, but are not limited to, contingent liabilities that might materially affect the Commonwealth's ability to collect the amount of bond required in the event of bond forfeiture.

"Noncommercial building" means any building other than an occupied residential dwelling that at the time subsidence occurs is used on a regular or temporary basis as a public building or community or institutional building as those terms are defined in this section. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

"Noxious plants" means living plants which are declared to be noxious weeds or noxious plants pursuant to the Virginia Noxious Weed Law, Chapter 17.2 8 (§ 3.1-296.11 § 3.2-800 et seq.) of Title 3.1 3.2 of the Code of Virginia.

"Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

"Occupied residential dwelling and structures related thereto" means, for purposes of 4VAC25-130-784.20 and 4VAC25-130-817.121, any building or other structures that, at the time the subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation. This term also includes any building, structure, or facility installed on, above or below, or a combination thereof, the land surface if that building structure or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to, garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems. Any structure used only for commercial agriculture, industrial, retail or other commercial purposes is excluded.

"Office" or "OSM" means the Office of Surface Mining Reclamation and Enforcement established under Title II of the federal Act.

"Operator" means any person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth or from coal refuse piles by mining within 12 consecutive calendar months in any one location.

"Other treatment facilities" means any facilities for chemical treatments, such as flocculation or neutralization, or mechanical structures, such as clarifiers or precipitators, that have a point source discharge and that are utilized:

(a) To prevent additional contribution of dissolved or suspended solids to streamflow or runoff outside the permit area; or

(b) To comply with all applicable state and federal water quality laws and regulations.

"Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

"Overburden" means material of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

"Own," "owner," or "ownership" as used in 4VAC25-130-773, 4VAC25-140-774, or 4VAC25-140-778 (except when used in the context of ownership of real property) means being a sole proprietor or owning of record in excess of 50% of the voting securities or other instruments of ownership of an entity.

"Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground-water discharge or surface runoff. The term does not include "intermittent stream" or "ephemeral stream."

"Performance bond" means a surety bond, collateral bond, or a combination thereof, by which a permittee assures faithful performance of all the requirements of the Act, this chapter, and the requirements of the permit and reclamation plan.

"Performing any function or duty under this Act" means decision or action, which if performed or not performed by an employee, affects the programs under the Act.

"Permanent diversion" means a diversion which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permanent impoundment" means an impoundment which is approved by the division and, if required, by other state and federal agencies for retention as part of the postmining land use.

"Permit" means a permit to conduct surface coal mining and reclamation operations issued by the division pursuant to the Act and this chapter or by the secretary pursuant to a federal program. For the purposes of the federal lands program, permit means a permit issued by the division under a cooperative agreement or by the OSM where there is no cooperative agreement.

"Permit application package" means a proposal to conduct surface coal mining and reclamation operations on federal lands, including an application for a permit, permit revision or permit renewal, all the information required by the federal Act, 30 CFR Subchapter D, the Act and this chapter, any applicable cooperative agreement and all other applicable laws and regulations including, with respect to leased federal coal, the Mineral Leasing Act and its implementing regulations.

"Permit area" means the area of land indicated on the approved map submitted by the permittee with his application, required to be covered by the permittee's performance bond under Subchapter VJ and which shall include the area of land upon which the permittee proposes to conduct surface coal mining and reclamation operations under the permit. The permit area shall include all disturbed areas except that areas adequately bonded under another permit issued pursuant to this chapter may be excluded from the permit area.

"Permittee" means a person holding or required by the Act or this chapter to hold a permit to conduct coal exploration (more than 250 tons) or surface coal mining and reclamation operations issued (a) by the division, (b) by the director of the OSM pursuant to a federal lands program, or (c) by the OSM and the division, where a cooperative agreement pursuant to § 45.1-230 B of the Act has been executed.

"Person" means an individual, Indian tribe when conducting surface coal mining and reclamation operations on non-Indian lands, partnership, association, society, joint venture, joint stock company, firm, company, corporation, cooperative or other business organization and any agent, unit, or instrumentality of federal, state or local government including any publicly owned utility or publicly owned corporation of federal, state or local government.

"Person having an interest which is or may be adversely affected" or "person with a valid legal interest" shall include any person:

(a) Who uses any resources of economic, recreational, aesthetic, or environmental value that is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division; or

(b) Whose property is, or may be, in fact adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the division.

The term "adversely affected" is further defined as meaning perceptibly harmed. "Aesthetics" means the consideration of that which is widely regarded to be a visibly beautiful element of a community or area.

"Piezometer" means a vertical pipe that is established in material, which is closed at the bottom, perforated from the upper limits of the material to the lower limits of the material, and which permits static water level measurements and water sampling.

"Pollution abatement area" means the part of the permit area which is causing or contributing to the baseline pollution load, which shall include adjacent and nearby areas that must be affected to bring about significant improvement of the baseline pollution load, and which may include the immediate location of the discharges.

"Pool Bond fund" means the Coal Surface Mining Reclamation Fund established pursuant to § 45.1-270.1 § 45.2-1043 of the Act.

"Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. "Precipitation event" also includes that quantity of water coming from snow cover as snow melt in a limited period of time.

"Previously mined area" means land affected by surface coal mining operations prior to August 3, 1977, that has not been reclaimed to the standards of this chapter.

"Prime farmland" means those lands which are defined by the Secretary of Agriculture in 7 CFR Part 657 (Federal Register Vol. 4, No. 21) and which have historically been used for cropland.

"Principal shareholder" means any person who is the record or beneficial owner of 10% or more of any class of voting stock in a corporation.

"Professional geologist" means a person who is certified pursuant to Chapter 14 22 (§ 54.1-1400 § 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia.

"Prohibited financial interest" means any direct or indirect financial interest in any coal mining operation.

"Property to be mined" means both the surface property and mineral property within the permit area and the area covered by underground workings.

"Public building" means any structure that is owned or leased, and principally used, by a governmental agency for public business or meetings.

"Public office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

"Public park" means an area or portion of an area dedicated or designated by any federal, state, or local agency primarily for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved, or held open to the public because of that use.

"Public road" means a road (i) that has been designated as a public road pursuant to the laws of the jurisdiction in which it is located; (ii) that is maintained with public funds, and is constructed, in a manner similar to other public roads of the same classification within the jurisdiction; and (iii) for which there is substantial (more than incidental) public use.

"Publicly owned park" means a public park that is owned by a federal, state or local governmental entity.

"Qualified laboratory" means a designated public agency, private firm, institution, or analytical laboratory which can prepare the required determination of probable hydrologic consequences or statement of results of test borings or core samplings or other services as specified at 4VAC25-130-795.9 under the Small Operator Assistance Program (4VAC25-130-795.1 et seq.) and which meets the standards of 4VAC25-130-795.10.

"Reasonably available spoil" means spoil and suitable coal mine waste material generated by the remining operation or other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment.

"Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach the zone of saturation.

"Reclamation" means those actions taken to restore mined land as required by this chapter to a postmining land use approved by the division.

"Recurrence interval" means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10-year, 24-hour precipitation event would be that 24-hour precipitation event expected to occur on the average once in 10 years.

"Reference area" means a land unit maintained under appropriate management for the purpose of measuring vegetation ground cover, productivity and plant species diversity that are produced naturally or by crop production methods approved by the division. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area.

"Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semi-liquid material.

"Regulatory program" means the Virginia Coal Surface Mining Control and Reclamation program (Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia) and rules and regulations approved by the secretary.

"Remining" means conducting surface coal mining and reclamation operations which affect previously mined areas.

"Renewable resource lands" means areas which contribute significantly to the long-range productivity of water supply or of food or fiber products, such lands to include aquifers and aquifer recharge areas.

"Replacement of water supply" means, with respect to protected water supplies contaminated, diminished or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to premining quantity and quality. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for premining water supplies.

(a) Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the postmining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

"Road" means a surface right-of-way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, structures, ditches and surface. The term includes access and haul roads constructed, used, reconstructed, improved, or maintained for use in coal exploration or surface coal mining and reclamation operations, including use by coal hauling vehicles to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

"Safety factor" means the ratio of the available shear strength to the developed shear stress, or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

"Secretary" means the Secretary of the Interior or the secretary's representative.

"Sedimentation pond" means an impoundment used to remove solids or other pollutants from water in order to meet water quality standards or effluent limitations before the water leaves the permit area.

"Self-bond," as provided by Part 801 of this chapter, means:

(a) For an underground mining operation, a cognovit note in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant, and supported by a certification that the applicant participating in the Pool Bond Fund has a net worth, total assets minus total liabilities equivalent to $1 million. Such certification shall be by an independent certified public accountant in the form of an unqualified opinion.

(b) For a surface mining operation or associated facility, an indemnity agreement in a sum certain payable on demand to the Treasurer of Virginia, executed by the applicant and by each individual and business organization capable of influencing or controlling the investment or financial practices of the applicant by virtue of this authority as an officer or ownership of all or a significant part of the applicant.

"Significant forest cover" means an existing plant community consisting predominantly of trees and other woody vegetation.

"Significant, imminent environmental harm to land, air, or water resources" means:

(a) An environmental harm is an adverse impact on land, air, or water resources which resources include, but are not limited to, plants and animal life.

(b) An environmental harm is imminent, if a condition, practice, or violation exists which:

(1) Is causing such harm; or

(2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under § 45.1-245 B § 45.2-1020 of the Act.

(c) An environmental harm is significant if that harm is appreciable and not immediately reparable.

"Significant recreational, timber, economic, or other values incompatible with surface coal mining operations" means those values to be evaluated for their significance which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected areas. Those values to be evaluated for their importance include:

(a) Recreation, including hiking, boating, camping, skiing or other related outdoor activities;

(b) Timber management and silviculture;

(c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce;

(d) Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants or cultural interests.

"Siltation structure" means a sedimentation pond, a series of sedimentation ponds, or other treatment facility.

"Slope" means average inclination of a surface, measured from its horizontal, generally expressed as the ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g., 1v:5h). It may also be expressed as a percentage or in degrees.

"Soil horizons" means contrasting layers of soil parallel or nearly parallel to the land surface. Soil horizons are differentiated on the basis of field characteristics and laboratory data. The four master soil horizons are:

(a) "A horizon." The uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest;

(b) "E horizon." The layer commonly near the surface below an A horizon and above a B horizon. An E horizon is most commonly differentiated from an overlying A horizon by lighter color and generally has measurably less organic matter than the A horizon. An E horizon is most commonly differentiated from an underlying B horizon in the same sequum by color of higher value or lower chroma, by coarser texture, or by a combination of these properties;

(c) "B horizon." The layer that typically is immediately beneath the E horizon and often called the subsoil. This middle layer commonly contains more clay, iron, or aluminum than the A, E, or C horizons; and

(d) "C horizon." The deepest layer of the soil profile. It consists of loose material or weathered rock that is relatively unaffected by biologic activity.

"Soil survey" means a field and other investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies, and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey as incorporated by reference in 4VAC25-130-785.17(c)(1).

"Spoil" means overburden that has been removed during surface coal mining operations.

"Stabilize" means to control movement of soil, spoil piles, or areas of disturbed earth by modifying the geometry of the mass, or by otherwise modifying physical or chemical properties, such as by providing a protective surface coating.

"Steep slope" means any slope of more than 20 degrees or such lesser slope as may be designated by the division after consideration of soil, climate, and other characteristics of a region or the state.

"Substantial legal and financial commitments in a surface coal mining operation" means significant investments, prior to January 4, 1977, have been made on the basis of a long-term coal contract in power plants, railroads, coal-handling, preparation, extraction or storage facilities and other capital-intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

"Substantially disturb" means, for purposes of coal exploration, to significantly impact land or water resources by blasting; by removal of vegetation, topsoil, or overburden; by construction of roads or other access routes; by placement of excavated earth or waste material on the natural land surface or by other such activities; or to remove more than 250 tons of coal.

"Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights.

"Surface coal mining and reclamation operations" means surface coal mining operations and all activities necessary or incidental to the reclamation of such operations. This term includes the term "surface coal mining operations."

"Surface coal mining operations" means:

(a) Activities conducted on the surface of lands in connection with a surface coal mine or, subject to the requirements of § 45.1-243 § 45.2-1018 of the Act, surface operations and surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining; the use of explosives and blasting; in situ distillation or retorting; leaching or other chemical or physical processing; and the cleaning, concentrating, or other processing or preparation of coal. Such activities also include the loading of coal for interstate commerce at or near the mine site. Provided, these activities do not include the extraction of coal incidental to the extraction of other minerals, where coal does not exceed 16-2/3% of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to § 45.1-233 § 45.2-1008 of the Act; and, provided further, that excavation for the purpose of obtaining coal includes extraction of coal from coal refuse piles; and

(b) The areas upon which the activities described in paragraph (a) of this definition occur or where such activities disturb the natural land surface. These areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of those activities and for haulage and excavation, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or material on the surface, resulting from or incident to those activities.

"Surface coal mining operations which exist on the date of enactment" means all surface coal mining operations which were being conducted on August 3, 1977.

"Surface mining activities" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before recovering the coal, by auger coal mining, or by recovery of coal from a deposit that is not in its original geologic location.

"Surface operations and impacts incident to an underground coal mine" means all activities involved in or related to underground coal mining which are either conducted on the surface of the land, produce changes in the land surface or disturb the surface, air or water resources of the area, including all activities listed in § 45.1-229 L § 45.2-1000 of the Act.

"Surety bond" means an indemnity agreement in a sum certain payable to the Commonwealth of Virginia, Director—Division of Mined Land Reclamation, Repurposing executed by the permittee as principal and which is supported by the performance guarantee of a corporation licensed to do business as a surety in Virginia.

"Suspended solids" or nonfilterable residue, expressed as milligrams per liter, means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR Part 136).

"Temporary diversion" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the division to remain after reclamation as part of the approved postmining land use.

"Temporary impoundment" means an impoundment used during surface coal mining and reclamation operations, but not approved by the division to remain as part of the approved postmining land use.

"Ton" means 2000 pounds avoirdupois (.90718 metric ton).

"Topsoil" means the A and E soil horizon layers of the four master soil horizons.

"Toxic-forming materials" means earth materials, or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

"Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair plant and animal life commonly present in the area that might be exposed to it.

"Transfer, assignment, or sale of permit rights" means a change of a permittee.

"Unanticipated event or condition," as used in 4VAC25-130-773.15, means an event or condition related to prior mining activity which arises from a surface coal mining and reclamation operation on lands eligible for remining that was not contemplated by the applicable permit.

"Underground development waste" means waste-rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of from underground workings in connection with underground mining activities.

"Underground mining activities" means a combination of:

(a) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of wastes, and areas on which materials incident to underground mining operations are placed; and

(b) Underground operations such as underground construction, operations, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting.

"Unwarranted failure to comply" means the failure of a permittee to prevent the occurrence of any violation of his permit or any requirement of the Act or this chapter due to indifference, lack of diligence, or lack of reasonable care, or failure to abate any violation of such permit, the Act, or this chapter due to indifference, lack of diligence, or lack of reasonable care.

"Usable ground water" or "ground water in use" means all ground water that is reasonably able to be used.

"Valid existing rights" means a set of circumstances under which a person may, subject to division approval, conduct surface coal mining operations on lands where § 45.1-252 D § 45.2-1028 of the Act and 4VAC25-130-761.11 would otherwise prohibit such operations. The possession of valid existing rights only confers an exception from the prohibitions of § 45.1-252 D § 45.2-1028 and 4VAC25-130-761.11. A person seeking to exercise valid existing rights must comply with all pertinent requirements of the Act and the regulations promulgated thereunder and would need to demonstrate:

(a) Except as provided in subdivision (c) of this definition, the legally binding conveyance, lease, deed, contract, or other document that vests the person or predecessor in interest with the right to conduct the type of surface coal mining operations intended. The right must exist at the time the land came under the protection of 4VAC25-130-761.11;

(b) Compliance with one of the following:

(1) That all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt to obtain all necessary permits and authorizations had been made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11.

(2) That the land needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained or a good faith attempt made to obtain such permits and authorizations occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. The person must demonstrate that prohibiting the expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 when the division approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the division may consider:

(i) The extent to which coal supply contracts or other legal and business commitments that occurred before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 depend upon the use of the land for surface coal mining operations.

(ii) The extent to which plans used to obtain financing for the operation before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon use of that land for surface coal mining operations.

(iii) The extent to which investments in the operation made before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 relied upon the use of that land for surface coal mining operations.

(iv) Whether the land lies within the area identified on the life-of-mine map under 4VAC25-130-779.24 (c) that was submitted before the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11;

(c) For haulroads, a person who claims valid existing rights to use or construct a road across the surface of lands protected by § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 must demonstrate that one or more of the following circumstances exist. The road:

(1) Existed when the land upon which it is located came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and the person has the legal right to use the road for surface coal mining operations;

(2) Was under a properly recorded right of way or easement for a road in that location at the time the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11 and under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations; or

(3) Was used or contained in a valid permit that existed when the land came under the protection of § 45.1-252 D § 45.2-1028 or 4VAC25-130-761.11; and

(d) That an interpretation of the terms of the document relied upon to establish the valid existing rights shall be based either upon applicable Virginia statutory or case law concerning interpretation of documents conveying mineral rights or, where no applicable state law exists, upon the usage and custom at the time and place it came into existence.

"Valley fill" means a fill structure consisting of any material, other than organic material, that is placed in a valley where side slopes of the existing valley, measured at the steepest point, are greater than 20 degrees, or where the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 degrees.

"Violation," when used in the context of the permit application information or permit eligibility requirements of §§ 45.1-235 45.2-1010 and 45.1-238 C 45.2-1013 of the Act and related regulations, means:

(a) A failure to comply with an applicable provision of a federal or state law or regulation pertaining to air or water environmental protection as evidenced by a written notification from a governmental entity to the responsible person; or

(b) A noncompliance for which the division has provided one or more of the following types of notice or OSM or a state regulatory authority has provided equivalent notice under corresponding provisions of a federal or state regulatory program:

(1) A notice of violation under 4VAC25-130-843.12;

(2) A cessation order under 4VAC25-130-843.11;

(3) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under 4VAC25-130-845 or 4VAC25-130-846;

(4) A bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR Part 870; or

(5) A notice of bond forfeiture under 4VAC25-130-800.50 when:

(i) One or more violations upon which the forfeiture was based have not been abated or corrected; or

(ii) The amount forfeited and collected is insufficient for full reclamation under 4VAC25-130-800.50 or 4VAC-25-130-801.19, the division orders reimbursement for additional reclamation costs and the person has not complied with the reimbursement order.

"Violation, failure, or refusal," for purposes of 4VAC25-130-846, means:

(a) A failure to comply with a condition of an issued permit or the regulations implementing those sections; or

(b) A failure or refusal to comply with any order issued under 4VAC25-130-843 or any order incorporated in a final decision issued by the director, except an order incorporated in a decision issued under § 45.1-246 § 45.2-1021 of the Act.

"Violation notice" means any written notification from a governmental entity of a violation of law or regulation, whether by letter, memorandum, legal or administrative pleading, or other written communication.

"Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

"Willful" or "willfully" means that a person who authorized, ordered, or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted:

(a) Intentionally, voluntarily, or consciously; and

(b) With intentional disregard or plain indifference to legal requirements.

4VAC25-130-700.11. Applicability.

(a) Except as provided in Paragraph (b) of this section, this chapter applies to all coal exploration and surface coal mining and reclamation operations, except--

(1) The extraction of coal by a landowner for his own non-commercial use from land owned or leased by him. Non-commercial use does not include the extraction of coal by one unit of an integrated company or other business or non-profit entity which uses the coal in its own manufacturing or power plants;

(2) The extraction of 250 tons of coal or less by a person conducting a surface coal mining and reclamation operation. A person who intends to remove more than 250 tons is not exempted;

(3) The extraction of coal as an incidental part of Federal, State or local government-financed highway or other construction in accordance with Part 707;

(4) The extraction of coal incidental to the extraction of other minerals where coal does not exceed 16-2/3 percent of the total tonnage of coal and other minerals removed for purposes of commercial use or sale in accordance with Part 702.

(b) The division may on its own initiative and shall, within a reasonable time of a request from any person who intends to conduct surface coal mining operations, make a written determination whether the operation is exempt under this section. The division shall give reasonable notice of the request to interested persons. Prior to the time a determination is made, any person may submit, and the division shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption. If a written determination of exemption is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination, shall not be cited for violations which occurred prior to the date of the reversal.

(c)(1) The division may terminate its jurisdiction under the regulatory program over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, when: (i) The division determines in writing that under the initial program, all requirements imposed under Chapter 17 (§ 45.1-198 et seq.) of Title 45.1 of the Code of Virginia have been successfully completed; or (ii) The the division determines in writing that under the permanent program, all requirements imposed under Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia have been successfully completed or, where a performance bond was required, the division has made a final decision in accordance with Part 800 or 801 of this chapter to release the performance bond fully.

(2) Following a termination under Paragraph (d)(1) of this section, the division shall reassert jurisdiction under this chapter over a site if it is demonstrated that the bond release or written determination referred to in Paragraph (d)(1) of this section was based upon fraud, collusion, or misrepresentation of a material fact.

4VAC25-130-700.14. Availability of records.

(a) Records required by the Act to be made available to the public shall be retained at the division office in Big Stone Gap.

(b) Requests for other documents or records in the possession of the division should be made in accordance with the Virginia Freedom of Information Act, Chapter 21, Title 2.1, (§ 2.2-3700 et seq. of the Code of Virginia, (1950), as amended).

4VAC25-130-701.11. Applicability.

(a) Any person who conducts surface coal mining operations on non-Indian or non-Federal lands within the Commonwealth of Virginia shall have a permit issued pursuant to requirements of Chapter 19 10 (§ 45.1-226 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

(b) Any person who conducts surface coal mining operations on Federal lands located within the Commonwealth of Virginia shall have a permit issued pursuant to Part 740.

(c) The requirements of Subchapter VK shall be effective and shall apply to each surface coal mining and reclamation operation for which the surface coal mining operation is required to obtain a permit under the Act, on the earliest date upon which the Act and this chapter require a permit to be obtained, except as provided in Paragraph (d) of this section.

(d)(1) Each structure used in connection with or to facilitate a coal exploration or surface coal mining and reclamation operation shall comply with the performance standards and the design requirements of Subchapter VK, except that--

(i) An existing structure which meets the performance standards of Subchapter VK but does not meet the design requirements of Subchapter VK may be exempted from meeting those design requirements by the division. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-130-784.12 and after making the findings required in 4VAC25-130-773.15.

(ii) If the performance standard of Subchapter B of 30 CFR Chapter VII is at least as stringent as the comparable performance standard of Subchapter VK, an existing structure which meets the performance standards of Subchapter B of 30 CFR Chapter VII may be exempted by the division from meeting the design requirements of Subchapter VK. The division may grant this exemption only as part of the permit application process after obtaining the information required by 4VAC25-130-780.12 or 4VAC25-30-784.12 and after making the findings required in 4VAC25-130-773.15.

(iii) An existing structure which meets a performance standard of Subchapter B of 30 CFR Chapter VII which is less stringent than the comparable performance standards of Subchapter VK or which does not meet a performance standard of Subchapter VK, for which there was no equivalent performance standards in Subchapter B of 30 CFR Chapter VII, shall be modified or reconstructed to meet the performance and design standards of Subchapter VK pursuant to a compliance plan approved by the division only as part of the permit application as required in 4VAC25-130-780.12 or 4VAC25-130-784.12 and according to the findings required by 4VAC25-130-773.15.

(iv) An existing structure which does not meet the performance standards of Subchapter B of 30 CFR Chapter VII and which the applicant proposes to use in connection with or to facilitate the coal exploration or surface coal mining and reclamation operation shall be modified or reconstructed to meet the performance and design standards of Subchapter VK prior to issuance of the permit.

(2) The exemptions provided in Paragraphs (d)(1)(i) and (d)(1)(ii) of this section shall not apply to -

(i) The requirements for existing and new coal mine waste disposal facilities; and

(ii) The requirements to restore the approximate original contour of the land.

(e)(1) Any person conducting coal exploration on non-Federal and non-Indian lands shall either file a notice of intention to explore or obtain approval of the division, as required by Part 772.

(2) Coal exploration performance standards in Part 815 shall apply to coal exploration on non-Federal and non-Indian lands which substantially disturbs the natural land surface.

4VAC25-130-702.11. Application requirements and procedures.

(a)(1) Any person who plans to commence or continue coal extraction after the effective date of this Part, in reliance on the incidental mining exemption shall file a complete application for exemption with the division for each mining area.

(2) A person may not commence coal extraction based upon the exemption until the division approves such application, except as provided in Paragraph (e)(3) of this section.

(b) Existing operations. Any person who has commenced coal extraction at a mining area in reliance upon the incidental mining exemption prior to the effective date of the incidental mining provisions in this chapter may continue mining operations for 60 days after such effective date. Coal extraction may not continue after such 60-day period unless that person files an administratively complete application for exemption with the division. If an administratively complete application is filed within 60 days, the person may continue extracting coal in reliance on the exemption beyond the 60-day period until the division makes an administrative decision on such application.

(c) Additional information. The division shall notify the applicant if the application for exemption is incomplete and may at any time require submittal of additional information.

(d) Public comment period. Following publication of the newspaper notice required by 4VAC25-130-702.12(g), the division shall provide a period of no less than 30 days during which time any person having an interest which is or may be adversely affected by a decision on the application may submit written comments or objections.

(e) Exemption determination.

(1) No later than 90 days after filing of an administratively complete application, the division shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this Part, and shall notify the applicant and persons submitting comments on the application of the determination and the basis for the determination.

(2) The determination of exemption shall be based upon information contained in the application and any other information available to the division at that time.

(3) If the division fails to provide an applicant with the determination as specified in Paragraph (e)(1) of the section, an applicant who has not begun may commence coal extraction pending a determination on the application unless the division issues an interim finding, together with reasons therefor, that the applicant may not begin coal extraction.

(f) Administrative review.

(1) Any adversely affected person may request administrative review of a determination under Paragraph (e) of this section within 30 days of the notification of such determination in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(2) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a determination under Paragraph (e) of this section.

4VAC25-130-702.17. Revocation and enforcement.

(a) The division shall conduct an annual compliance review of the mining area, utilizing the annual report submitted pursuant to 4VAC25-130-702.18, an on-site inspection and any other information available to the division.

(b) If the division has reason to believe that a specific mining area was not exempt under the provision of this Part at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the division shall notify the operator that the exemption may be revoked and the reason(s) therefore. The exemption will be revoked unless the operator demonstrates to the division within 30 days that the mining area in question should continue to be exempt.

(c)(1) If the division finds that an operator has not demonstrated that activities conducted in the mining area qualify for the exemption, the division shall revoke the exemption and immediately notify the operator and intervenors. If a decision is made not to revoke an exemption, the division shall immediately notify the operator and intervenors.

(2) Any adversely affected person may request administrative review of a decision whether to revoke an exemption within 30 days of the notification of such decision in accordance with procedures established under section 45.1-250 § 45.2-1026 of the Code of Virginia.

(3) A petition for administrative review filed under section 45.1-250 § 45.2-1026 of the Code of Virginia shall not suspend the effect of a decision whether to revoke an exemption.

(d)(1) An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of this chapter which occurred prior to the revocation of the exemption.

(2) An operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should know such activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of this chapter which occur during the period of such activities.

(3) Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained and shall comply with the reclamation standards of this chapter with regard to conditions, areas and activities existing at the time of revocation or denial.

4VAC25-130-705.24. Confidentiality and access to disclosure statements.

(a) The provisions of the Privacy Protection Act of 1976 Virginia Freedom of Information Act (Chapter 26 (§ 2.1-377 § 2.2-3700 et seq.) of Title 2.1 of the Code of Virginia) shall apply to statements and information obtained pursuant to these regulations.

(b) All statements of employment and financial interest which are filed pursuant to these regulations, and the information shown thereon, shall be maintained only for the purposes of determining whether there are any direct or indirect financial interests in violation of Section 45.1-231 § 45.2-1005 of the Act, and Section 517(g) of the Federal Act. No other use is authorized.

(c) Access to such statements and information shall be restricted to personnel of the Department and of the U.S. Department of the Interior, and State and Federal enforcement authorities (including the U.S. Justice Department) for the purposes for which the information was collected. Access among personnel of the Department shall be further restricted to only those persons specified by the Director as having regular access to the statements and information.

(d) All such statements and information shall be maintained separate and apart from personnel records and other records to which the public could have access.

(e) The filing and information system where such statements and information are stored shall be identified as restricted access and secured against unauthorized access. The Director shall designate a custodian for records maintained in the Division's Office in Big Stone Gap, and another custodian for records maintained in the Department's Offices in Richmond. The duties of these custodians shall be to maintain restricted access and security for their respective records.

(f) Whenever any employee ceases to occupy a listed position which requires the filing of a statement of employment and financial interest, all such statements then on file from such employee shall be returned to the employee and all information systems purged of the data provided by such statements upon request of the employee. In addition, the custodian of the records where such statements are maintained shall periodically update the records by purging them of statements and information pertaining to employees who no longer occupy listed positions.

4VAC25-130-740.15. Bonds on federal lands.

(a) Federal lease bonds.

(1) Each holder of a Federal coal lease that is covered by a Federal lease bond required under 43 CFR 3474 may apply to the authorized officer of the Federal agency that has administrative jurisdiction over the Federal lands for release of liability for that portion of the Federal lease bond that covers reclamation requirements.

(2) The authorized officer may release the liability for that portion of the Federal lease bond that covers reclamation requirements if:

(i) The lessee has secured a suitable performance bond covering the permit area under this Part;

(ii) There are no pending actions or unresolved claims against existing bonds; and

(iii) The authorized officer has received concurrence from the OSM and the Bureau of Land Management.

(b) Performance bonds. The performance bonds required for operations on Federal lands shall be made payable to the United States and the Commonwealth of Virginia: Director-Division of Mined Land Reclamation Repurposing.

(c) Federal lessee protection bonds.

(1) Where leased Federal coal is to be mined and the surface of the land is subject to a lease or permit issued by the United States for purposes other than surface coal mining, the applicant for a mining permit, if unable to obtain the written consent of the permittee or lessee of the surface to enter and commence surface coal mining operations, shall submit to the division with the application evidence of execution of a bond or undertaking which meets the requirements of this section. The Federal lessee protection bond is in addition to the performance bond required by Subchapter VJ. This section does not apply to permits or licenses for the use of the surface that do not convey to the permittee or licensee the right of transfer, sale or consent to other uses.

(2) The bond shall be payable to the United States for the use and benefit of the permittee or lessee of the surface lands involved.

(3) The bond shall secure payment to the surface estate for any damage which the surface coal mining and reclamation operation causes to the crops or tangible improvements of the permittee or lessee of the surface lands.

(4) The amount of the bond shall be determined either by the applicant and the Federal lessee or permittee, or if an agreement cannot be reached, as determined in an action brought against the person conducting surface coal mining and reclamation operations or upon the bond in a court of competent jurisdiction.

(d) Release of bonds.

(1) A Federal lease bond may be released by the OSM upon satisfactory compliance with all applicable requirements of 43 CFR 3480-3487 and 43 CFR 3400 and after the release is approved by the Bureau of Land Management.

(2) A Federal lessee protection bond shall be released by the OSM upon the written consent of the permittee or lessee.

(3) Where surface coal mining and reclamation operations are subject to an approved mining plan, a performance bond shall be released by the division after the release is approved by the OSM.

4VAC25-130-761.1. Scope.

This Part establishes the procedures and standards to be followed in determining whether a proposed surface coal mining and reclamation operation can be authorized in light of the prohibitions and limitations in Section 45.1-252 § 45.2-1028 of the Act for those types of operations on certain Federal, public and private lands in the Commonwealth.

4VAC25-130-761.3. Authority.

The Director is authorized by Section 45.1-252 § 45.2-1028 of the Act to prohibit or limit surface coal mining operations on or near certain private, Federal, and other public lands, subject to valid existing rights and except for those operations which existed on August 3, 1977.

4VAC25-130-761.12. 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 § 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.

4VAC25-130-761.16. Submission and processing of requests for valid existing rights determinations.

A. Basic framework for valid existing rights determinations. 30 CFR 761.16(a) identifies the agency responsible for making a valid existing rights determination and the definition that it must use based upon which subsection of 30 CFR 761.11 or 4VAC25-130-761.11 applies and whether the request includes federal lands.

B. A request for a valid existing rights determination must be submitted to the division if a person intends to conduct surface coal mining operations on the basis of valid existing rights under 4VAC25-130-761.11 or wishes to confirm the right to do so. The request may be submitted before the person prepares and submits an application for a permit or boundary revision for the land.

1. The person must provide a property rights demonstration under the definition of valid existing rights if the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in 4VAC25-130.700.5. For the land subject to the request, the demonstration must include:

a. A legal description of the land;

b. Complete documentation of the character and extent of the person's current interests in the surface and mineral estates of the land;

c. A complete chain of title for the surface and mineral estates of the land;

d. A description of the nature and effect of each titles instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities;

e. A description of the type and extent of surface coal mining operations that the person claims the right to conduct, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with Virginia property law;

f. Complete documentation of the nature and ownership, as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11, of all property rights for the surface and mineral estates;

g. Names and addresses of the current owners of the surface and mineral estates of the land;

h. If the coal interests have been severed from other property interests, documentation that the person has notified and provided reasonable opportunity for the owners of other property interests in the land to comment on the validity of the person's property rights claims; and

i. Any comments that the person receives in response to the notification provider under subdivision 1 h of this subsection.

2. If the request relies upon the good faith/all permits standard in subdivision (b)(1) of the valid existing rights definition in 4VAC25-130-700.5, the person must also submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land subject to the request that the person or predecessor in interest obtained, submitted, or made:

a. Approval and issuance dates and identification numbers for any permits, licenses, and authorizations obtained before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

b. Application dates and identification numbers for any permits, licenses, and authorizations submitted before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

c. An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

3. If the request relies upon the needed for and adjacent standard in subdivision (b)(2) of the valid existing rights definition in 4VAC25-130-700.5, the person must explain how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11

4. If the request relies upon one of the standards for roads in subdivision (c) of the valid existing rights definition in 4VAC25-130-700.5, the person must submit satisfactory documentation that:

a. The road existed when the land upon which it is located came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and the person has a legal right to use the road for surface coal mining operations;

b. A properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and under the document creating the right of way or easement and under any subsequent conveyances, the person has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

c. A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.

C. Initial review of request.

1. The division must conduct an initial review to determine whether the request includes all applicable components of the submission requirements of subsection B of this section. The review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

2. If the request does not include all applicable components of the submission requirements of subsection B of this section, the division must notify the person and establish a reasonable time for submission of the missing information. Should the person not provide the information requested by the division under this subdivision within the time specified or as subsequently extended, the division must issue a determination under subdivision E 4 of this section that the person has not demonstrated valid existing rights.

3. When the request includes all applicable components of the submission requirements of subsection B of this section, the division must implement the notice and comment requirements of subsection D of this section.

D. 1. When the division determines that the request satisfies the completeness requirements of subsection C of this section, it shall publish a notice in a newspaper of general circulation in the county in which the land is located inviting public comment on the merits of the request. OSM will publish a similar notice in the Federal Register if the request involves federal lands within an area listed in 4VAC25-130-761.11 (a) or (b). The public notice must include:

a. The location of the land to which the request pertains.

b. A description of the type of surface coal mining operations planned.

c. A reference to and brief description of the applicable standard or standards under the definition of valid existing rights in 4VAC25-130-700.5.

(1) If the request relies upon the good faith/all permits or the needed for and adjacent standard set forth in the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the property rights that the person claims and the basis for the claim.

(2) If the request relies upon the road standard set forth in subdivision (c) (1) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that the road existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that the person has a legal right to use that road for surface coal mining operations.

(3) If the request relies upon the standard in subdivision (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, the notice must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of § 45.1-252 § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

d. If the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, a statement that the division will not make a decision on the merits of the request if, by the close of the comment period under the notice or the notice required by subdivision 3 of this subsection, a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the valid existing rights claim.

e. A description of the procedures the division will follow in processing the request.

f. The closing date of the public comment period, which shall be a minimum of 30 days after the notice's publication date.

g. A statement that interested persons may request, in writing, from the division a 30-day extension of the public comment period. The extension request shall set forth with reasonable specificity the reasons the commenter needs the additional time to submit comments.

h. Include the division office's address where a copy of the valid existing rights request is available for public inspection and where comments and requests for extension of the comment period should be sent.

2. The division must promptly provide a copy of the notice required under subdivision 1 of this subsection to:

a. All reasonably locatable owners of surface and mineral estates in the land included in the valid existing rights request.

b. The owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and when applicable, the agencies with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of 4VAC25-130-761.11.

3. The notice required under subdivision 2 of this subsection must provide a 30-day comment period and specify that an additional 30 days may be granted for good cause shown at the discretion of the division or agency responsible for the valid existing rights determination.

E.1. The division or agency responsible for making the valid existing rights determination must review the materials submitted under subsection B of this section, comments received under subsection D of this section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the division must notify the person in writing explaining the inadequacy of the record and requesting submittal within a specified reasonable time of any additional information that the division deems necessary to remedy the inadequacy.

2. Once the record is complete and adequate, the division must make a determination as to whether valid existing rights have been demonstrated. The division's decision must explain how the person has or has not satisfied all applicable elements of the valid existing rights definition under 4VAC25-130-700.5, contain findings of fact and conclusions, and specify the reasons for the conclusions.

3. When the request relies upon one or more of the standards in subdivisions (b) and (c) (1) and (2) of the valid existing rights definition in 4VAC25-130-700.5, the division:

a. Must issue a determination that the person has not demonstrated valid existing rights if the property rights claim is the subject of pending litigation in a court or administrative body with the jurisdiction over the property rights in question. The division will make the determination without prejudice, meaning that the person may refile the request once the property rights dispute is finally adjudicated. This applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions D 1 and 3 of this section.

b. If the record indicates disagreement of the accuracy of the person's property rights claim, but the disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, must evaluate the merits of the information in the record and determine whether the person has demonstrated that the requisite property rights exist under subdivision (a), (c) (1) or (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, as appropriate. The division must then proceed with the decision process under subdivision 2 of this subsection.

4. The division must issue a determination that the person has not demonstrated valid existing rights if the person does not submit information that the division requests under subdivision C 2 of this section or subdivision 1 of this subsection within the time specified or as subsequently extended. The division will make the determination without prejudice, meaning the person may refile a revised request at any time.

5. After making a valid existing rights determination, the division shall:

a. Provide a copy of the determination with an explanation of appeal rights and procedures to the person seeking the determination, owner or owners of the land to which the determination applies, owner of the feature causing the land to come under the protection of 4VAC25-130-761.11, and, when applicable, 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.

b. Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) will publish the determination, together with an explanation of appeal rights and procedures in the Federal Register if the request includes federal lands within an area listed in 4VAC25-130-761.11 (a) or (b).

F. The division's valid existing rights determination shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.

G. The division must make a copy of the valid existing rights determination request available to the public as provided by 4VAC25-130-773.13 (d) and the records associated with that request, and any subsequent determination under subsection E of this section, available to the public in accordance with 4VAC25-130-840.14.

4VAC25-130-762.14. Exploration on land designated as unsuitable for surface coal mining operations.

Designation of any area as unsuitable for all or certain types of surface coal mining operations pursuant to Section 45.1-252 § 45.2-1028 of the Act and this Subchapter does not prohibit coal exploration operations in the area, if conducted in accordance with the Act, this chapter, and other applicable requirements. Exploration operations on any lands designated unsuitable for surface coal mining operations must be approved by the division under Part 772 to ensure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining operations.

4VAC25-130-764.13. Petitions.

(a) Right to petition. Any person having an interest which is or may be adversely affected has the right to petition the Director to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated. For the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he meets an "injury in fact" test by describing the injury to his specific affected interests and demonstrate how he is among the injured.

(b) Designation. A complete petition for designation shall include:

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) A statement of whether the petitioner is an individual, an association, sole proprietorship, partnership, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, and the resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size, and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area;

(4) An identification of the petitioner's interest which is or may be adversely affected by surface coal mining operations, including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) A description of how mining of the area has affected or may adversely affect people, land, air, water, or other resources, including the petitioner's interests; and

(7) Allegations of fact and supporting evidence, covering all lands in the petition area, which tend to establish that the area is unsuitable for surface coal mining operations, pursuant to specific criteria of Subsections of Section 45.1-252 § 45.2-1028 of the Act, assuming that contemporary mining practices required under the Act would be followed if the area were to be mined. Each of the allegations of fact should be specific as to the mining operation, if known, and the portion(s) of the petitioned area and petitioner's interests to which the allegation applies and be supported by evidence that tends to establish the validity of the allegations for the mining operation or portion of the petitioned areas.

(8) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

(c) Termination. A complete petition for termination shall include--

(1) The petitioner's name, address, telephone number, and notarized signature;

(2) Statement of whether the petitioner is an individual, an association, sole proprietorship, corporation, or other entity. If the petitioner is an entity other than an individual, the petition shall contain the names and addresses of the principals, officers, directors, and resident agent of the petitioner;

(3) Identification of the petitioned area, including its location and size and a U.S. Geological Survey topographic map clearly outlining the perimeter of the petitioned area to which the termination petition applies;

(4) An identification of the petitioner's interest which is or may be adversely affected by the designation that the area is unsuitable for surface coal mining operations including a statement demonstrating how the petitioner satisfies the requirements of Paragraph (a) of this section;

(5) The owners and lessees, if known, of the surface and mineral property of the area covered by the petition;

(6) Allegations of fact covering all lands for which the termination is proposed. Each of the allegations of fact shall be specific as to the mining operation, if any, and to portions of the petitioned area and the petitioner's interests to which the allegation applies. The allegations shall be supported by evidence, not contained in the record of the designation proceeding, that tends to establish the validity of the allegations for the mining operation or portion of the petitioned area, assuming that contemporary mining practices required under the Act would be followed were the area to be mined. For areas previously and unsuccessfully proposed for termination, significant new allegations of facts and supporting evidence must be presented in the petition. Allegations and supporting evidence should also be specific to the basis for which the designation was made and tend to establish that the designation should be terminated on the following bases:

(i) Nature or abundance of the protected resource or condition or other basis of the designation if the designation was based on criteria found in 4VAC25-130-762.11(b);

(ii) Reclamation now being technologically and economically feasible if the designation was based on the criteria found in 4VAC25-130-762.11(a); or

(iii) Resources or conditions not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining, if the designation was based on criteria found in 4VAC25-130-762.11(b).

(7) The Director or the division may request that the petitioner provide other supplementary information which is readily available.

4VAC25-130-764.19. Decision.

(a) In reaching his decision, the Director shall use:

(1) The information contained in the data base and inventory system as required by 4VAC25-130-764.21;

(2) Information provided by other governmental agencies;

(3) The detailed statement when it is prepared under 4VAC25-130-764.17(e); and

(4) Any other relevant information submitted during the comment period.

(b) A final written decision shall be issued by the Director, including a statement of reasons, within 60 days of completion of the public hearing, or, if no public hearing is held, then within 12 months after receipt of the complete petition. The Director shall simultaneously send the decision by certified mail to the petitioner and intervenors and by regular mail to all other persons involved in the proceeding.

(c) The decision of the Director with respect to a petition, or the failure of the Director to act within the time limits set forth in this section, shall be subject to judicial review by a court of competent jurisdiction in accordance with Section 45.1-251 § 45.2-1027 of the Act and 4VAC25-130-775.13. All relevant portions of the data base, inventory system, and public comments received during the public comment period set by the Director shall be considered and included in the record of the administrative proceeding.

4VAC25-130-773.13. Public participation in permit processing.

(a) Filing and public notice.

(1) Upon submission of an administratively complete application, an applicant for a permit, significant revision of a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, shall place an advertisement in a local newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least once a week for four consecutive weeks. A copy of the advertisement as it will appear in the newspaper shall be submitted to the division. The advertisement shall contain, at a minimum, the following:

(i) The name and business address of the applicant.

(ii) A map or description which clearly shows or describes the precise location and boundaries of the proposed permit area and is sufficient to enable local residents to readily identify the proposed permit area. It may include towns, bodies of water, local landmarks, and any other information which would identify the location. The name of the U.S. Geological Survey 7.5 minute quadrangle map(s) which contains the area shown or described shall be stated; and if a map is used, it shall indicate the north direction.

(iii) The location where a copy of the application is available for public inspection.

(iv) The name and address of the division office where written comments, objections, or requests for informal conferences on the application may be submitted under Paragraphs (b) and (c) of this section.

(v) If an applicant seeks a permit to mine within 100 feet of the outside right-of-way of a public road or to relocate or close a public road, except where public notice and hearing have previously been provided for this particular part of the road in accordance with 4VAC25-130-761.12(d); a concise statement describing the public road, the particular part to be relocated or closed, and the approximate timing and duration of the relocation or closing.

(vi) If the application includes a request for an experimental practice under 4VAC25-130-785.13, a statement indicating that an experimental practice is requested and identifying the regulatory provisions for which a variance is requested.

(2) The applicant shall make an application for a permit, significant revision under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, available for the public to inspect and copy by filing a full copy of the application with the Clerk of the Circuit Court of the city or county where the mining is proposed to occur, or an accessible public office approved by the division. This copy of the application need not include confidential information exempt from disclosure under Paragraph (d) of this section. The application required by this Paragraph shall be filed by the first date of newspaper advertisement of the application. The applicant shall file any changes to the application with the public office at the same time the change is submitted to the division.

(3) Upon receipt of an administratively complete application for a permit, a significant revision to a permit under 4VAC25-130-774.13, or a renewal of a permit under 4VAC25-130-774.15, the division shall issue written notification indicating the applicant's intention to mine the described tract of land, the application number or other identifier, the location where the copy of the application may be inspected, and the location where comments on the application may be submitted. The notification shall be sent to--

(i) Local governmental agencies with jurisdiction over or an interest in the area of the proposed surface coal mining and reclamation operation, including but not limited to planning agencies, sewage and water treatment authorities, water companies; and

(ii) All Federal or State governmental agencies with authority to issue permits and licenses applicable to the proposed surface coal mining and reclamation operation and which are part of the permit coordinating process developed in accordance with 4VAC25-130-773.12; or those agencies with an interest in the proposed operation, including the U.S. Department of Agriculture, Natural Resources Conservation Service district office, the local U.S. Army Corps of Engineers district engineer, the National Park Service, State and Federal fish and wildlife agencies, and the historic preservation officer.

(b) Comments and objections on permit application.

(1) Within 30 days after notification, written comments or objections on an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by public entities notified under Paragraph (a)(3) of this section with respect to the effects of the proposed mining operations on the environment within their areas of responsibility.

(2) Written objections to an application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15, may be submitted to the division by any person having an interest which is or may be adversely affected by the decision on the application, or by an officer or head of any Federal, State, or local government agency or authority, within 30 days after the last publication of the newspaper notice required by Paragraph (a) of this section.

(3) The division shall upon receipt of such written comments or objections--

(i) Transmit a copy of the comments or objections to the applicant; and

(ii) File a copy for public inspection at the same public office where the application is filed.

(c) Informal conferences.

(1) Any person having an interest which is or may be adversely affected by the decision on the application, or an officer or a head of a Federal, State, or local government agency, may request in writing that the division hold an informal conference on the application for a permit, significant revision to a permit under 4VAC25-130-774.13, or renewal of a permit under 4VAC25-130-774.15. The request shall--

(i) Briefly summarize the issues to be raised by the requestor at the conference;

(ii) State whether the requestor desires to have the conference conducted in the locality of the proposed operation; and

(iii) Be filed with the division no later than 30 days after the last publication of the newspaper advertisement required under Paragraph (a) of this section.

(2) Except as provided in Paragraph (c)(3) of this section, if an informal conference is requested in accordance with Paragraph (c)(1) of this section, the division shall hold an informal conference within a reasonable time following the receipt of the request. The informal conference shall be conducted as follows:

(i) If requested under Paragraph (c)(1)(ii) of this section, it shall be held in the locality of the proposed surface coal mining and reclamation operation.

(ii) The date, time, and location of the informal conference shall be sent to the applicant and other parties to the conference and advertised by the division in a newspaper of general circulation in the locality of the proposed surface coal mining and reclamation operation at least 2 weeks before the scheduled conference.

(iii) If requested in writing by a conference requestor at a reasonable time before the conference, the division may arrange with the applicant to grant parties to the conference access to the proposed permit area and, to the extent that the applicant has the right to grant access to it, to the adjacent area prior to the date of the conference for the purpose of gathering information relevant to the conference.

(iv) The conference shall be conducted by a representative of the division, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the applicant's performance bond or other equivalent guarantee pursuant to Subchapter VJ.

(3) If all parties requesting the informal conference withdraw their request before the conference is held, the informal conference may be canceled.

(4) Informal conferences held in accordance with this section may be used by the division as the public hearing required under 4VAC25-130-761.12(d) on proposed relocation or closing of public roads.

(d) Public availability of permit applications.

(1) General availability. Except as provided in Paragraphs (d)(2) or (d)(3) of this section, all applications for permits; revisions; renewals; and transfers, assignments or sales of permit rights on file with the Division shall be available, at reasonable times, for public inspection and copying.

(2) Limited availability. Except as provided in Paragraph (d)(3)(i) of this section, information pertaining to coal seams, test borings, core samplings, or soil samples in an application shall be made available to any person with an interest which is or may be adversely affected. Information subject to this Paragraph shall be made available to the public when such information is required to be on public file pursuant to State law.

(3) Confidentiality. The division shall provide procedures, including notice and opportunity to be heard for persons both seeking and opposing disclosure, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to--

(i) Information that pertains only to the analysis of the chemical and physical properties of the coal to be mined, except information on components of such coal which are potentially toxic in the environment;

(ii) Information required under Section 45.1-236 § 45.2-1011 of the Act that is not on public file pursuant to State law and that the applicant has requested in writing to be held confidential;

(iii) Information on the nature and location of archeological resources on public land and Indian land as required under the Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 93 Stat. 721, 16 USC § 470).

4VAC25-130-773.15. Review of permit applications.

(a) General.

(1) The division shall review the application for a permit, revision, or renewal; written comments and objections submitted; information from the AVS; and records of any informal conference or hearing held on the application and issue a written decision, within a reasonable time, either granting, requiring modification of, or denying the application. If an informal conference is held under 4VAC25-130-773.13(c), the decision shall be made within 60 days of the close of the conference.

(2) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of the regulatory program.

(3) The division shall review the information submitted under 4VAC25-130-778.13 and 4VAC25-130-778.14 regarding the applicant's or operator's permit histories, business structure, and ownership and control relationships.

(4) If the applicant or operator does not have any previous mining experience, the division may conduct additional reviews to determine if someone else with surface coal mining experience controls or will control the mining operation.

(b) Review of violations.

(1) Based on available information concerning federal and state failure-to-abate cessation orders, unabated federal and state imminent harm cessation orders, delinquent civil penalties issued pursuant to § 518 of the federal Act and § 45.1-246 § 45.2-1021 of the Code of Virginia, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of federal and state laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the division shall not issue the permit if any surface coal mining and reclamation operation directly owned or controlled by either the applicant or operator is currently in violation of the federal Act, this chapter, or any other law, rule or regulation referred to in this subdivision; or if a surface coal mining and reclamation operation indirectly owned or controlled by the applicant or operator has an unabated or uncorrected violation and the applicant's or operator's control was established or the violation was cited after November 2, 1988. In the absence of a failure-to-abate cessation order, the division may presume that a notice of violation issued pursuant to 4VAC25-130-843.12 or under a federal or state program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application or the AVS, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the division shall require the applicant or operator, before the issuance of the permit, to either

(i) Submit to the division proof that the current violation has been or is in the process of being corrected to the satisfaction of the agency that has jurisdiction over the violation; or

(ii) Establish for the division that the applicant, or operator, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of the current violation. If the initial judicial review authority under 4VAC25-130-775.13 affirms the violation, then the applicant shall within 30 days of the judicial action submit the proof required under subdivision (b)(1)(i) of this section.

(2) Any permit that is issued on the basis of proof submitted under subdivision (b)(1)(i) of this section that a violation is in the process of being corrected, or pending the outcome of an appeal described in subdivision (b)(1)(ii) of this section, shall be conditionally issued.

(3) If the division makes a finding that the applicant or the operator specified in the application, controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration, and with resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, no permit shall be issued. Before such a finding becomes final, the applicant or operator shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for in 4VAC25-130-775.11.

(4) (i) Subsequent to October 24, 1992, the prohibitions of subsection (b) of this section regarding the issuance of a new permit shall not apply to any violation that:

(A) Occurs after that date;

(B) Is unabated; and

(C) Results from an unanticipated event or condition that arises from a surface coal mining and reclamation operation on lands that are eligible for remining under a permit held by the person making application for the new permit.

(ii) For permits issued under 4VAC25-130-785.25 an event or condition shall be presumed to be unanticipated for the purposes of this subdivision if it:

(A) Arose after permit issuance;

(B) Was related to prior mining; and

(C) Was not identified in the permit.

(c) Written findings for permit application approval. No permit application or application for a significant revision of a permit shall be approved unless the application affirmatively demonstrates and the division finds, in writing, on the basis of information set forth in the application or from information otherwise available that is documented in the approval, the following:

(1) The application is complete and accurate and the applicant has complied with all requirements of the Act and this chapter.

(2) The applicant has demonstrated that reclamation as required by the Act and this chapter can be accomplished under the reclamation plan contained in the permit application.

(3) The proposed permit area is:

(i) Not within an area under study or administrative proceedings under a petition, filed pursuant to Part 764 of this chapter and 30 CFR Part 769, to have an area designated as unsuitable for surface coal mining operations, unless the applicant demonstrates that before January 4, 1977, he has made substantial legal and financial commitments in relation to the operation covered by the permit application; or

(ii) Not within an area designated as unsuitable for mining pursuant to Parts 762 and 764 of this chapter, or subject to the prohibitions or limitations of 4VAC25-130-761.11 and 4VAC25-130-761.12.

(4) For mining operations where the private mineral property to be mined has been severed from the private surface property, the applicant has submitted to the division the documentation required under 4VAC25-130-778.15(b).

(5) The division has made an assessment of the probable cumulative impacts of all anticipated coal mining on the hydrologic balance in the cumulative impact area and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area.

(6) The applicant has demonstrated that any existing structure will comply with 4VAC25-130-701.11(d) and 4VAC25-130-773.16, and the applicable performance standards of the initial regulatory program or Subchapter VK.

(7) The applicant has paid all reclamation fees, civil penalty assessments, Pool Bond Fund fees, and anniversary fees, from previous and existing operations as required by this chapter.

(8) The applicant has satisfied the applicable requirements of Part 785 of this chapter.

(9) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural postmining land use, in accordance with the requirements of 4VAC25-130-816.111(d) or 4VAC25-130-817.111(d).

(10) The operation would not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats, as determined under the Endangered Species Act of 1973 (16 USC § 1531 et seq.).

(11) The division has taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the National Register of Historic Places. This finding may be supported in part by inclusion of appropriate permit conditions or changes in the operation plan protecting historic resources, or a documented decision that the division has determined that no additional protection measures are necessary.

(12) For a proposed remining operation where the applicant intends to reclaim in accordance with the requirements of 4VAC25-130-816.106 or 4VAC25-130-817.106, the site of the operation is a previously mined area as defined in 4VAC25-130-700.5.

(13) The applicant or the permittee specified in the application, has not owned or controlled a surface mining and reclamation operation for which the permit has been revoked and/or the bond forfeited pursuant to the Code of Virginia or any federal law, rule or regulation, or any law, rule or regulation enacted pursuant to federal or state law pertaining to air or water environmental protection and surface coal mining activities in any other state unless reinstated. Applicable Virginia reinstatement requirements may be found in 4VAC25-130-800.52.

(14) For permits to be issued under 4VAC25-130-785.25 the permit application must contain:

(i) Lands eligible for remining;

(ii) An identification of the potential environmental and safety problems related to prior mining activity which could reasonably be anticipated to occur at the site; and

(iii) Mitigation plans to sufficiently address these potential environmental and safety problems so that reclamation as required by the applicable requirements of this chapter can be accomplished.

(d) Performance bond submittal. If the division decides to approve the application, it shall require that the applicant file the performance bond or provide other equivalent guarantee before the permit is issued, in accordance with the provisions of Subchapter VJ.

(e) Final compliance review. After an application is approved, but before the permit is issued, the division shall reconsider its decision to approve the application, based on the compliance review required by subdivision (b)(1) of this section in light of any new information submitted under 4VAC25-130-778.13 (j) or 4VAC25-130-778.14 (d).

4VAC25-130-774.12. Post-permit issuance requirements.

A. For purposes of future permit eligibility determinations and enforcement actions, the division will utilize the AVS to retrieve and enter appropriate data regarding ownership, control, and violation information. The division shall enter into the AVS:

Information	Within 30 days after
(1) Permit records	the permit is issued or subsequent changes made
(2) Unabated or uncorrected violations	the abatement or correction period for a violation expires
(3) Unpaid final civil penalties, charges, taxes, or fees	the required due payment date
(4) Changes in violation status	abatement, correction or termination of a violation or a final decision from an administrative or judicial review proceeding

B. In the event the permittee is issued enforcement action under 4VAC25-130-843.11 and fails to timely comply with the order's remedial measures, the division shall instruct the permittee to provide or update all the information required by 4VAC25-130-778.13. However, the permittee would not be required to submit this information if a court of competent jurisdiction has granted a stay of the cessation order and the stay remains in effect.

C. The permittee shall notify the division within 60 days of any addition, departure, or change in position of any person identified under 4VAC25-130-778.13. The permittee shall provide the date of such addition, departure, or change of such person.

D. Should the division discover that the permittee or a person listed in an ownership or control relationship with the permittee owns or controls an operation with an unabated or uncorrected violation, it will determine whether enforcement action is appropriate under 4VAC25-130-843 and 4VAC25-130-846 or other applicable provisions. The division may issue a preliminary finding of permit ineligibility under § 45.1-238 (c) § 45.2-1013 of the Act if it finds that the person had control relationships and violations that would have made the person ineligible for a permit under 4VAC25-130-773.15. The finding shall be in accordance with 4VAC25-130-773.20 (c) (3).

E. If a determination of permit ineligibility is rendered by the division, the person would have 30 days from service of the written finding to submit any information that would tend to demonstrate the person's lack of ownership or control of the surface coal mining operation. The division would issue a final determination regarding the permit eligibility within 30 days of receiving any information from the person or from the expiration date that the person could submit the information under this subsection. A person aggrieved by the division's eligibility finding would have the right to request review under 4VAC25-130-775.

4VAC25-130-775.11. Administrative review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900, 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-775.13. Judicial review.

(a) General. Any applicant, or any person with an interest which is or may be adversely affected by the final administrative decision and who has participated in the administrative hearings as an objector may appeal as provided in subsection (b) of this section if—

(1) The applicant or person is aggrieved by the director or his designee's final order under 4VAC25-130-775.11; or

(2) Either the division or the director failed to act within time limits specified in 4VAC25-130-775.11.

(b) Judicial review. The final order of the division pursuant to subsection (a) of 4VAC25-130-775.11 shall be subject to judicial review as provided by the Virginia Administrative Process Act and the rules of the Supreme Court of Virginia as promulgated thereto. The availability of such review shall not be construed to limit the operation of the rights established in Section 520 of the Federal Act.

(c) All notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-780.18. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Section 45.1-242 § 45.2-1017 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-780.18 through 4VAC25-130-780.37.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross-sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-816.102 through 4VAC25-130-816.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-816.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-816.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosporous, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, and field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-816.111 through 4VAC25-130-816.116, including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-816.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-816.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-816.89 and 4VAC25-130-816.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-816.13 through 4VAC25-130-816.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-816.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.13. Reclamation plan; general requirements.

(a) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with Sections 45.1-242 and 45.1-243 §§ 45.2-1017 and 45.2-1018 of the Act, Subchapter VK, and the environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under 4VAC25-130-784.13 through 4VAC25-130-784.29.

(b) Each plan shall contain the following information for the proposed permit area:

(1) A detailed timetable for the completion of each major step in the reclamation plan;

(2) A detailed estimate of the cost of the reclamation of the proposed operations required to be covered by a performance bond under Subchapter VJ, with supporting calculations for the estimates;

(3) A plan for backfilling, soil stabilization, compacting, and grading, with contour maps or cross sections that show the anticipated final surface configuration of the proposed permit area, in accordance with 4VAC25-130-817.102 through 4VAC25-130-817.107;

(4) A plan for removal, storage, and redistribution of topsoil, subsoil, and other material to meet the requirements of 4VAC25-130-817.22. A demonstration of the suitability of topsoil substitutes or supplements under 4VAC25-130-817.22(b) shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, phosphorus, potassium, and areal extent of the different kinds of soils. The division may require other chemical and physical analyses, field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements;

(5) A plan for revegetation as required in 4VAC25-130-817.111 through 4VAC25-130-817.116 including, but not limited to, descriptions of the--

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate, and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation as required in 4VAC25-130-817.116; and

(vii) A soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation;

(6) A description of the measures to be used to maximize the use and conservation of the coal resource as required in 4VAC25-130-817.59;

(7) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials, and materials constituting a fire hazard are disposed of in accordance with 4VAC25-130-817.89 and 4VAC25-130-817.102 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(8) A description, including appropriate cross sections and maps, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings with in the proposed permit area, in accordance with 4VAC25-130-817.13 through 4VAC25-130-817.15;

(9) A description of the measures to be used to stabilize all exposed surface areas to control erosion and air pollution attendant to erosion as required under 4VAC25-130-817.95; and

(10) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 USC § 7401 et seq.), the Clean Water Act (33 USC § 1251 et seq.), and other applicable air and water quality laws and regulations and health and safety standards.

4VAC25-130-784.20. Subsidence control plan.

(a) Presubsidence survey. Each application must include:

(1) A map of the permit and adjacent areas at a scale of 1:12,000, or larger if determined necessary by the division, showing the location and type of structures and renewable resource lands that subsidence may materially damage or for which the value or reasonably foreseeable use may be diminished by subsidence, and showing the location and type of drinking, domestic, and residential water supplies that could be contaminated, diminished, or interrupted by subsidence.

(2) A narrative indicating whether subsidence, if it occurred, could cause material damage to or diminish the value or reasonably foreseeable use of such structures or renewable resource lands or could contaminate, diminish, or interrupt drinking, domestic, or residential water supplies.

(3) A survey of the quantity and quality of all drinking, domestic and residential water supplies within the permit area and adjacent area that could be contaminated, diminished or interrupted by subsidence. If the applicant cannot make this survey because the owner will not allow access to the site, the applicant will notify the owner in writing of the effect that denial of access will have pursuant to § 45.1-258 D § 45.2-1030 of the Code of Virginia, as amended. The applicant must pay for any technical assessment or engineering evaluation used to determine the quantity and quality of drinking, domestic, or residential water supplies. The applicant must provide copies of the survey and any technical assessment or engineering evaluation to the property owner and the division.

(b) Subsidence control plan. If the survey conducted under subsection (a) of this section shows that no structures, or drinking, domestic, or residential water supplies, or renewable resource lands exist, or that no material damage or diminution in value or reasonably foreseeable use of such structures or lands, and no contamination, diminution or interruption of such water supplies would occur as a result of mine subsidence, and if the division agrees with this conclusion, no further information need be provided under this section. If the survey shows that structures, renewable resource lands, or water supplies exist and that subsidence could cause material damage or diminution in value or reasonably foreseeable use, or contamination, diminution or interruption of protected water supplies, or if the division determines that damage, diminution, in value or foreseeable use, or contamination, diminution, or interruption could occur, the application must include a subsidence control plan that contains the following information:

(1) A description of the method of coal removal, such as longwall mining, room-and-pillar removal or hydraulic mining including the size, sequence and timing of the development of underground workings;

(2) A map of the underground workings that describes the location and extent of the areas in which planned subsidence mining methods will be used and that identifies all areas where the measures described in subdivisions (b) (4), (b) (5), and (b) (7) of this section will be taken to prevent or minimize subsidence and subsidence related damage; and, when applicable, to correct subsidence related material damage;

(3) A description of the physical conditions, such as depth of cover, seam thickness and lithology of overlaying strata, that affects the likelihood or extent of subsidence and subsidence related damage;

(4) A description of the monitoring, if any, needed to determine the commencement and degree of subsidence so that, when appropriate, other measures can be taken to prevent, reduce, or correct material damage in accordance with 4VAC25-130-817.121 (c).

(5) Except for those areas where planned subsidence is projected to be used, a detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence and subsidence related damage, such as, but not limited to:

(i) Backstowing or backfilling of voids;

(ii) Leaving support pillars of coal;

(iii) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place; and

(iv) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.

(6) A description of the anticipated effects of planned subsidence, if any.

(7) For those areas where planned subsidence is projected to be used, a description of methods to be employed to minimize damage from planned subsidence to noncommercial buildings and occupied residential dwellings and structures related thereto; or the written consent of the owner of the structure or facility that minimization measures not be taken; or, unless the anticipated damage would constitute a threat to health or safety, a demonstration that the costs of minimizing damage exceed the anticipated costs or repair.

(8) A description of the measures to be taken in accordance with 4VAC25-130-817.41 (j) and 4VAC25-130-817.121 (c) to replace adversely affected protected water supplies or to mitigate or remedy any subsidence related material damage to the land and protected structures.

(9) Other information specified by the division as necessary to demonstrate that the operation will be conducted in accordance with 4VAC25-130-817.121.

4VAC25-130-789.1. Petition for award of costs and expenses under Section 45.1-249E § 45.2-1025 of the Act.

(a) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the Act which results in--

(1) A final order being issued by a Hearing Officer, or

(2) A final order being issued by the Director or division.

(b) The petition for an award of costs and expenses including attorneys' fees must be filed with the Hearing Officer who issued the final order, or if the final order was issued by the Director or division, with the Director or division, within 30 days of receipt of such order. Failure to make a timely filing of the petition may constitute a waiver of the right to such an award.

(c) A petition, filed under this section, shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition--

(1) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of such costs and expenses; and

(3) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services. The person or agency to whom the petition is filed may consult with the division's legal counsel regarding claimed attorneys' fees.

(d) Any person served with a copy of the petition shall have 30 days from service of the petition within which to file an answer to such petition.

(e) Appropriate costs and expenses including attorneys' fees may be awarded--

(1) To any person from the permittee, if the person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Hearing Officer or Director or division determines that the person made a substantial contribution to the full and fair determination of the issues;

(2) To a permittee or permit applicant from any person where the permittee or permit applicant demonstrates that the person initiated an administrative proceeding under the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee or permit applicant.

(f) An award under these sections may include--

(1) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under the Act; and

(2) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award.

(g) Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under the Act may appeal such award to the division within 30 days, unless the Director or division has made the initial decision concerning such an award. Awards by the Director or division are final for the purposes of judicial review.

(h) For the purposes of this section, "person" shall include the Commonwealth, its agents, officers, or employees, and "permit applicant" shall include applicants for permit revisions, renewals, and transfer, assignment or sale of permit rights.

4VAC25-130-790.1. Purpose.

Section 45.1-246.1 45.2-1022 of the Act authorizes the commencement of civil actions by persons having an interest which is or may be adversely affected, in order to compel compliance with provisions of the Act. The purpose of this Part is to prescribe procedures governing the giving of notices required by Subsections (B) and (C) of section 45.1-246.1 § 45.2-1022 as a prerequisite to the commencement of such actions.

4VAC25-130-790.11. Service of notice.

(a) Notice to the Director. Service of notice given to the Director of an alleged violation or of an alleged failure of the Director to per form perform any act or duty under the Act which is not discretionary with the Director shall be accomplished by registered or certified mail addressed to the Director, Department of Mines, Minerals, and Energy, 202 North Ninth Street 1100 Bank Street, 8th Floor, Richmond, Virginia 23219. A copy of such notice shall be mailed to the Director, Division of Mined Land Reclamation Repurposing, P.O. Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(b) Notice to the Secretary of the Interior. Service of notice given to the Secretary of the Interior shall be accomplished by registered or certified mail addressed to the United States Secretary of the Interior, Office of the Secretary, Main Interior Building, Washington, D. C. 20240.

(c) Notice to alleged violator. Service of notice given to an alleged violator of the provisions of the Act or of any regulation in this chapter or of any permit or order issued pursuant thereto, shall be accomplished by registered or certified mail addressed to, or personal service upon, the permittee or managing agent of the coal surface mining operation alleged to be in violation. Where the alleged violator is a corporation, a copy of the notice will be sent by certified or registered mail to the registered agent of such corporation. Where the alleged violator is a government instrumentality or agency, the notice shall be sent by certified or registered mail to the head of such government instrumentality or agency.

(d) Notice served in accordance with the provisions of this Part shall be deemed given on the postmark date, if served by mail, or on the date of receipt, if personally served.

4VAC25-130-795.1. Scope and purpose.

This Part comprises the Small Operator Assistance Program (SOAP) and establishes the procedures for providing assistance to eligible operators by the division. It is an elective means for the division to satisfy the requirements of § 45.1-235 C § 45.2-1010 of the Act. The purpose of the program is to provide for eligible operators a determination of probable hydrologic consequences and a statement of results of test borings or core samplings which are required components of the permit application under Subchapter VG.

4VAC25-130-800.16. General terms and conditions of bond.

(a) The performance bond shall be in an amount determined by the division as provided in 4VAC25-130-800.14 or Part 801.

(b) The performance bond shall be payable to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing.

(c) The performance bond shall be conditioned upon faithful performance of all the requirements of the Act, this chapter, and the approved permit, including completion of the reclamation plan.

(d) The duration of the bond shall be for the time period provided in 4VAC25-130-800.13.

(e)(1) The bond shall provide a mechanism for a bank or surety company to give prompt notice to the division and the permittee of any action filed alleging the insolvency or bankruptcy of the surety company, the bank, or the permittee, or alleging any violations which would result in suspension or revocation of the surety or bank charter or license to do business.

(2) Upon the incapacity of a bank or surety company by reason of bankruptcy, insolvency, or suspension or revocation of a charter or license, the permittee shall be deemed to be without bond coverage and shall promptly notify the division. The division, upon notification received through procedures of Paragraph (e)(1) of this section or from the permittee, shall, in writing, notify the permittee who is without bond coverage and specify a reasonable period, not to exceed 90 days, to replace bond coverage. If an adequate bond is not posted by the end of the period allowed, the permittee shall cease coal extraction and shall comply with the provisions of 4VAC25-130-816.132 or 4VAC25-130-817.132 and shall immediately begin to conduct reclamation operations in accordance with the reclamation plan. Mining operations shall not resume until the division has determined that an acceptable bond has been posted.

4VAC25-130-800.21. Collateral bonds.

(a) Collateral bonds, except for letters of credit, shall be subject to the following conditions: The division shall—

(1) Keep custody of collateral deposited by the applicant until authorized for release or replacement as provided in this Subchapter.

(2) Value collateral at its current market value, not at face value.

(3) Require that certificates of deposit be made payable to or assigned to the Commonwealth of Virginia, Director-Division of Mined Land Reclamation Repurposing, both in writing and upon the records of the bank issuing the certificates. The division shall require the banks issuing these certificates to waive all rights of setoff or liens against those certificates and that such certificates be automatically renewable.

(4) Not accept an individual certificate of deposit in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(5) Require the applicant to deposit the certificates of deposit in a sufficient amount to assure that the division will be able to liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond required by this Subchapter.

(6) Require the applicant to designate, with the bond submitted, the person to whom—

(i) The collateral will be endorsed and returned upon release or replacement as provided in this Subchapter; and

(ii) Any interest or dividends paid on the collateral shall be paid.

(b) Cash accounts shall be subject to the following conditions:

(1) The division may authorize the permittee to supplement the bond through the establishment of a cash account in one or more federally- insured or equivalently protected accounts made payable upon demand to the division. The total bond including the cash account shall not be less than the amount required under terms of performance bonds including any adjustments, less amounts released in accordance with 4VAC25-130-800.40 or 4VAC25-130-801.18.

(2) Any interest paid on a cash account shall be paid to the permittee.

(3) Certificates of deposit may be substituted for a cash account with the approval of the division.

(4) The division shall not accept an individual cash account in an amount in excess of $100,000 or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.

(c) Letters of credit shall be subject to the following conditions:

(1) The letter may be issued only by a bank organized or authorized to do business in the United States and must conform to the Uniform Customs and Practice for Documentary Credits (1993 Revision) International Chamber of Commerce (Publication No. 500);

(2) Letters of credit shall be irrevocable during their terms. A letter of credit used as security in areas requiring continuous bond coverage shall be forfeited and shall be collected by the division if not replaced by other suitable bond or letter of credit at least 30 days before its expiration date; and

(3) The letter of credit shall be payable to the department at sight, in part or in full, upon receipt from the division of a notice of forfeiture issued in accordance with 4VAC25-130-800.50.

(d) Persons with an interest in collateral posted as a bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the division at the time collateral is offered.

4VAC25-130-800.40. Requirements to release performance bonds.

(a) Bond release application.

(1) The permittee may file an application with the division for the release of all or part of a performance bond. Applications may be filed only at times or during seasons authorized by the division in order to properly evaluate the completed reclamation operations. The times or seasons appropriate for the evaluation of certain types of reclamation shall be identified in the mining and reclamation plan required in Subchapter VG.

(2) Within 30 days after an application for bond release has been filed with the division, the permittee shall submit proof of publication of the advertisement placed at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operation. The advertisement shall be considered part of any bond release application and shall contain the applicant's name, the permit number, notification of the precise location of the land affected, the number of acres, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, a description of the results achieved as they relate to the permittee's approved reclamation plan, and the name and address of the division to which written comments, objections, or requests for public hearings and informal conferences on the specific bond release may be submitted pursuant to 4VAC25-130-800.40(f) and (h). In addition, as part of any bond release application, the permittee shall submit copies of letters which he has sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond.

(3) The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Act, the regulatory program, and the approved reclamation plan. Such certification shall be submitted for each application or phase of bond release.

(b) Inspection by the division.

(1) Upon receipt of the bond release application, the division shall, within 30 days, or as soon thereafter as weather conditions permit, conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other factors, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of future occurrence of such pollution, and the estimated cost of abating such pollution. The surface owner, agent, or lessee shall be given notice of such inspection and may participate with the division in making the bond release inspection. The division may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in the bond release, for the purpose of gathering information relevant to the proceeding.

(2) Within 60 days from the filing of the bond release application, if no public hearing is held pursuant to paragraph (f) of this section, or, within 30 days after a public hearing has been held pursuant to paragraph (f) of this section, the division shall notify in writing the permittee, the surety or other persons with an interest in the bond collateral who have requested notification under 4VAC25-130-800.21(c), and the persons who either filed objections in writing or objectors who were a party to the hearing proceedings, if any, of its decision to release or not to release all or part of the performance bond.

(c) The division may release all or part of the bond for the entire permit area or a portion of the permit area if the division is satisfied that all reclamation or a phase of the reclamation covered by the bond or portion thereof has been accomplished in accordance with the following schedules for reclamation of Phases I, II and III:

(1) At the completion of Phase I, after the permittee completes the backfilling, regrading (which may include the replacement of topsoil) and drainage control of a bonded area in accordance with the approved reclamation plan, 60% of the bond or collateral for the applicable area.

(2) At the completion of Phase II, after revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, an additional amount of bond. When determining the amount of bond to be released after successful revegetation has been established, the division shall retain that amount of bond for the revegetated area which would be sufficient to cover the cost of reestablishing revegetation if completed by a third party and for the period specified for permittee responsibility in § 45.1-241 § 45.2-1016 of the Act for reestablishing revegetation. No part of the bond or deposit shall be released under this paragraph so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by § 45.1-242 § 45.2-1017 of the Act and by Subchapter VK or until soil productivity for prime farmlands has returned to the equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to § 45.1-238(D) § 45.2-1013 of the Act and Part 823. Where a silt dam is to be retained as a permanent impoundment pursuant to Subchapter VK, the Phase II portion of the bond may be released under this paragraph so long as provisions for sound future maintenance by the permittee or the landowner have been made with the division.

(3) At the completion of Phase III, after the permittee has successfully completed all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for permittee responsibility in 4VAC25-130-816.116 or 4VAC25-130-817.116. However, no bond shall be fully released under provisions of this section until reclamation requirements of the Act and the permit are fully met.

(d) If the division disapproves the application for release of the bond or portion thereof, the division shall notify the permittee, the surety, and any person with an interest in collateral as provided for in 4VAC25-130-800.21(c), in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing an opportunity for a public hearing.

(e) When any application for total or partial bond release is filed with the division, the division shall notify the town, city or other municipality nearest the operation and the county in which the surface coal mining operation is located by certified mail at least 30 days prior to the release of all or a portion of the bond.

(f) Any person with a valid legal interest which might be adversely affected by release of the bond, or the responsible officer or head of any federal, state, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release from bond with the division within 30 days after the last publication of the notice required by 4VAC25-130-800.40(a)(2). If written objections are filed and a hearing is requested, the division shall inform all the interested parties of the time and place of the hearing, and shall hold a public hearing within 30 days after receipt of the request for the hearing. The date, time and location of the public hearing shall be advertised by the division in a newspaper of general circulation in the locality for two consecutive weeks. The public hearing shall be held in the locality of the surface coal mining operation from which bond release is sought, at the location of the division office, or at the State Capital, at the option of the objector. The decision of the Hearing Officer shall be made within 30 days from the close of the hearing.

(g) For the purpose of the hearing under paragraph (f) of this section, the division shall have the authority to administer oaths, subpoena witnesses or written or printed material, compel the attendance of witnesses or the production of materials, and take evidence including, but not limited to, inspection of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing shall be made, and a transcript shall be made available on the motion of any party or by order of the division.

(h) Without prejudice to the right of an objector or the applicant, the division may hold an informal conference as provided in § 45.1-239 § 45.2-1014 of the Act to resolve such written objections. The division shall make a record of the informal conference unless waived by all parties, which shall be accessible to all parties. The division shall also furnish all parties of the informal conference with a written finding of the division based on the informal conference, and the reasons for said finding.

4VAC25-130-800.51. Administrative review of performance bond forfeiture.

(a) The permittee or surety, if applicable, may request, in writing, a hearing on the division's determination to forfeit the performance bond within 30 days of receipt of the written determination from the division.

(b) A request for hearing shall not operate as a stay of the bond forfeiture decision. Unless the division decides to withhold forfeiture as provided by 4VAC25-130-800.50 (a) (2), it shall take immediate steps to collect the necessary performance bond amounts so that it, or its contractor, may complete the reclamation plan and any other regulatory requirements in the most expeditious manner possible, pending administrative and/or judicial review.

(c)(1) The division shall commence the hearing within 30 days of the hearing request. The hearing shall be conducted in accordance with § 2.2-4020 of the Code of Virginia by a Hearings Officer appointed by the director.

(2) The burden of proof at such hearing shall be on the party seeking to reverse the decision of the division.

(3) For the purpose of such hearing, the hearings officer may administer oaths and affirmations, subpoena witnesses, written or printed materials, compel attendance of witnesses or production of those materials, compel discovery, and take evidence, including but not limited to site inspections of the land affected.

(4) The hearings officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party who requests a copy of the record.

(5) Ex parte contacts between representatives of the parties to the hearing and the hearings officer shall be prohibited.

(6) Within 30 days after the close of the record, the division shall issue and furnish the permittee, surety (if applicable) and each person who participated in the hearing with the written findings of fact, conclusion of law, and order of the hearings officer with respect to the appeal. The decision of the hearings officer shall be final as of the date of issuance, subject to the review and reconsideration by the director or his designee, provided in subsection (d) of this section.

(d) Within 14 days after the issuance of the hearings officer's decision under subdivision (c) (6) of this section, the permittee, surety (if applicable), or any person who participated in the hearing and has an interest which is or may be adversely affected by the decision, may appeal to the director or his designee for review of the record and reconsideration of the hearings officer's decision. The director or his designee may also on his own motion, with notice to the parties, review the record and reconsider the hearings officer's decision within the same time period. No further evidence will be allowed in connection with such review and reconsideration, but the director or his designee may hear further arguments and may, after considering the record, remand the case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearings officer's decision and issue a final decision.

(e) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-800.52. Bond forfeiture reinstatement procedures.

(a) Any person who owns or controls or has owned or controlled any operation on which the bond has been forfeited or the permit revoked pursuant to this chapter or pursuant to Chapters 15 [repealed], 17 (§ 45.1-198 et seq.) or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia and who has not previously been reinstated by the director may petition the director for reinstatement. Reinstatement, if granted, shall be under such terms and conditions as set forth by the director or his designee. The director or his designee in determining the terms and conditions shall consider the particular facts and circumstances existing in each individual case. Reinstatement shall not be available to applicants for reinstatement where the division finds that the applicant controls or has controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations of the Act of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the Act, in accordance with 4VAC25-130-773.15(b)(3). As a minimum, the applicant for reinstatement shall satisfy the following requirements:

(1) Abatement of any outstanding violations existing on each site on which the bond has been forfeited or the permit revoked;

(2) Payment of any outstanding civil penalties (both state and federal), Reclamation fund taxes, and any outstanding fees, including Federal Abandoned Mine Land Reclamation taxes;

(3) Reclaim each site on which the bond was forfeited according to the applicable law, regulations and standards governing the site at the time of bond forfeiture;

(4) Payment to the director of any money expended by the Commonwealth in excess of the forfeited bond amount to accomplish the reclamation of the sites; and

(5) Pay to the director a reinstatement fee of $5,000 assessed by the director on each site forfeited. These fees shall be used by the director to accomplish reclamation on other forfeited or abandoned surface coal mining operations.

(b) Reinstatement by the director shall be a prerequisite to the filing by the person (applicant for reinstatement) of any new permit application or renewal under this chapter or Chapters 15 [repealed], 17 (§ 45.1-198 et seq.), or 23 [repealed] Chapter 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, but shall not affect the person's need to comply with all other requirements of said statutes, regulations or both promulgated thereunder.

4VAC25-130-801.2. Scope.

The regulations of this Part establish the procedures and requirements for an alternative bonding system through which the division will implement and administer the Coal Surface Mining Reclamation Fund (Pool Bond Fund) as established under Article 5 (§ 45.1-270.1 § 45.2-1043 et seq.) of Chapter 19 10 of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-801.11. Participation in the pool bond fund.

(a) Participation in the Pool Bond Fund shall be at the option of any applicant for a permit under the Act and the regulations promulgated thereunder who can demonstrate to the division's satisfaction at least a consecutive three-year history of compliance under the Act or any other comparable State or Federal Act.

(b) All participants in the Pool Bond Fund shall:

(1) Pay all entrance fees to the Pool Bond Fund as required by 4VAC25-130-801.12(a); and

(2) Comply with the applicable parts of section 45.1-241 § 45.2-1016 of the Code of Virginia.

(c) Commencement of participation in the Pool Bond Fund shall constitute an irrevocable commitment by the permittee to participate therein as to the applicable permit and for the duration of the coal surface mining operations covered thereunder.

(d) All fees and taxes are nonrefundable.

(e) The division shall, as provided by section 45.1-270.5(B) § 45.2-1048 of the Code of Virginia, utilize those monies from the interest accrued to the fund which are required to properly administer the Pool Bond Fund. These monies shall be used to support one position for administration of the Pool Bond Fund; however, if it is apparent that such position is insufficient to ensure proper administration of the Pool Bond Fund, the division may upon proof of need, and upon concurrence with the Pool Bond Fund Advisory Board obtain additional assistance.

4VAC25-130-801.17. Bond release application.

The permittee participating in the Pool Bond Fund, or any person authorized to act upon his behalf, may file an application with the division for the Phase I, II or III release of the bond furnished in accordance with 4VAC25-130-801.12 (b) for the permit area or any applicable increment thereof. The bond release application, the procedural requirements and the released percentages shall be consistent with the release criteria of 4VAC25-130-800.40. However, in no event shall the total bond of the permit be less than the minimum amounts established pursuant to §§ 45.1-241 45.2-1016 and 45.1-270.3 B 45.2-1045 of the Virginia Coal Surface Mining Control and Reclamation Act prior to completion of Phase III reclamation of the entire permit area.

4VAC25-130-801.18. Criteria for release of bond.

(a) The division shall release bond furnished in accordance with §§ 45.1-241 45.2-1016 and 45.1-270.3 45.2-1043 of the Virginia Coal Surface Mining Control and Reclamation Act through the standards specified at 4VAC25-130-800.40 upon receipt of an application for Phase I, II or III release.

(b) The division shall terminate jurisdiction for the permit area, or any increment thereof upon approval of the Phase III bond release for that area.

(c) In the event a forfeiture occurs, the division may, after utilizing the available bond monies, utilize the Fund as necessary to complete reclamation liabilities for the permit area.

4VAC25-130-816.76. Disposal of excess spoil; incidental reclamation.

(a) The division, where environmental benefits will occur, may approve placement of spoil not needed to restore the approximate original contour of the land and reclaim land within the permit area in a manner consistent with the Act and this chapter on:

(1) Another area under a permit issued pursuant to the Act, or

(2) On abandoned mine lands under a contract for reclamation according to the AML Guidelines and approved by the Division of Mined Land Reclamation Repurposing.

4VAC25-130-840.11. Inspections by the division.

(a) The division shall conduct an average of at least one partial inspection per month of each active surface coal mining and reclamation operation under its jurisdiction, and shall conduct such partial inspections of each inactive surface coal mining and reclamation operation under its jurisdiction as are necessary to ensure effective enforcement of the Act and this chapter. A partial inspection is an on-site or aerial review of a permittee's compliance with some of the permit conditions and requirements imposed under the Act and this chapter.

(b) The division shall conduct an average of at least one complete inspection per calendar quarter of each active or inactive surface coal mining and reclamation operation under its jurisdiction. A complete inspection is an on-site review of a permittee's compliance with all permit conditions and requirements imposed under the Act and this chapter, within the entire area disturbed or affected by the surface coal mining and reclamation operations.

(c) The division shall conduct such inspections of coal explorations as are necessary to ensure compliance with the Act and this chapter.

(d) (1) Aerial inspections shall be conducted in a manner which reasonably ensures the identification and documentation of conditions at each surface coal mining and reclamation site inspected.

(2) Any potential violation observed during an aerial inspection shall be investigated on site within three days; provided, that any indication of a condition, practice or violation constituting cause for the issuance of a cessation order under § 45.1-245 § 45.2-1020 of the Act shall be investigated on site immediately, and provided further, that an on-site investigation of a potential violation observed during an aerial inspection shall not be considered to be an additional partial or complete inspection for the purposes of paragraphs (a) and (b) of this section.

(e) The inspections required under paragraphs (a), (b), (c) and (d) of this section shall:

(1) Be carried out on an irregular basis, so as to monitor compliance at all operations, including those which operate nights, weekends, or holidays;

(2) Occur without prior notice to the permittee or any agent or employee of such permittee, except for necessary on-site meetings; and

(3) Include the prompt filing of inspection reports adequate to enforce the requirements of the Act and this chapter.

(f) For the purposes of this section, an inactive surface coal mining and reclamation operation is one for which:

(1) The division has secured from the permittee the written notice provided for under 4VAC25-130-816.131(b) or 4VAC25-130-817.131(b); or

(2) Reclamation has been completed to the level established in 4VAC25-130-800.40 as Phase II.

(g) Abandoned site means a surface coal mining and reclamation operation for which the division has found in writing that:

(1) All surface and underground coal mining and reclamation activities at the site have ceased;

(2) The division has issued at least one notice of violation or the interim program equivalent, and either:

(i) Is unable to serve the notice despite diligent efforts to do so; or

(ii) The notice was served and has progressed to a failure-to-abate cessation order or the interim program equivalent;

(3) The division:

(i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and

(ii) Is taking action pursuant to §§ 45.1-245 C, 45.1-245 E, 45.1-246 E, or § 45.1-246 F § 45.2-1020 or 45.2-1021 of the Act to ensure that abatement occurs or that there will not be a recurrence of the failure-to-abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(4) Where the site is, or was, permitted or bonded:

(i) The permit has either expired or been revoked, or permit revocation proceedings have been initiated and are being pursued diligently; and

(ii) The division has initiated and is diligently pursuing forfeiture of, or has forfeited, the any available performance bond.

(h) In lieu of the inspection frequency established in paragraphs (a) and (b) of this section, the division shall inspect each abandoned site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.

(1) In selecting an alternate inspection frequency authorized under the paragraph above, the division shall first conduct a complete inspection of the abandoned site and provide public notice under paragraph (h)(2) of this section. Following the inspection and public notice, the division shall prepare and maintain for public review a written finding justifying the alternative inspection frequency selected. This written finding shall justify the new inspection frequency by affirmatively addressing in detail all of the following criteria:

(i) How the site meets each of the criteria under the definition of an abandoned site under paragraph (g) of this section and thereby qualifies for a reduction in inspection frequency;

(ii) Whether, and to what extent, there exists on the site impoundments, earthen structures or other conditions that pose, or may reasonably be expected to ripen into, imminent dangers to the health or safety of the public or significant environmental harms to land, air, or water resources;

(iii) The extent to which existing impoundments or earthen structures were constructed and certified in accordance with prudent engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present and functioning;

(v) The extent to which the site is located near or above urbanized areas, communities, occupied dwellings, schools and other public or commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and the degree of stability of unreclaimed areas, taking into consideration the physical characteristics of the land mined and the extent of settlement or revegetation that has occurred naturally with them; and

(vii) Based on a review of the complete and partial inspection report record for the site during at least two consecutive years, the rate at which adverse environmental or public health and safety conditions have and can be expected to progressively deteriorate.

(2) The public notice and opportunity to comment required under paragraph (h)(1) of this section shall be provided as follows:

(i) The division shall place a notice in the newspaper with the broadest circulation in the locality of the abandoned mine site providing the public with a 30-day period in which to submit written comments.

(ii) The public notice shall contain the permittee's name, the permit number, the precise location of the land affected, the inspection frequency proposed, the general reasons for reducing the inspection frequency, the bond status of the permit, the telephone number and address of the regulatory authority where written comments on the reduced inspection frequency may be submitted, and the closing date of the comment period.

4VAC25-130-840.14. Availability of records.

(a) The division shall make available to the OSM, upon request, copies of all documents relating to applications for and approvals of existing, new, or revised coal exploration approvals or surface coal mining and reclamation operation permits and all documents relating to inspection and enforcement actions.

(b) Copies of all records, reports, inspection materials, or information obtained by the division shall be made immediately and conveniently available to the public in the area of mining until at least five years after expiration of the period during which the subject operation is active or is covered by any portion of a reclamation bond, except-

(1) As otherwise provided by state law; and

(2) For information not required to be made available under 4VAC25-130-772.15 and 4VAC25-130-773.13(d) or subdivison (d) of this section.

(c) The division shall ensure compliance with subdivison (b) of this section by either:

(1) Making copies of all records, reports, inspection materials, and other subject information available for public inspection at a federal, state, or local government office in the county where the mining is occurring or proposed to occur; or,

(2) At the division's option in accordance with the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia), providing copies of subject information promptly by mail at the request of any resident of the area where the mining is occurring or is proposed to occur, provided, that the division shall maintain for public inspection, at a federal, state, or local government office in the county where the mining is occurring or proposed to occur, a description of the information available for mailing and the procedure for obtaining such information. A list of government offices where information may be inspected can be obtained on request by contacting the division's Big Stone Gap office.

(d) In order to protect preparation for hearings and enforcement proceedings, the OSM and the division may enter into agreements regarding procedures for the special handling of investigative and enforcement reports and other such materials.

4VAC25-130-840.16. Compliance conference.

(a) A permittee may request an on-site compliance conference with an authorized representative of the Director to review the compliance status of any condition or practice proposed at any coal exploration or surface coal mining and reclamation operation. Any such conference shall not constitute an inspection within the meaning of Section 45.1-244 § 45.2-1019 of the Act and 4VAC25-130-840.11.

(b) The division may accept or refuse any request to conduct a compliance conference under Paragraph (a).

(c) The authorized representative at any compliance conference shall review such proposed conditions and practices in order to advise whether any such condition or practice may become a violation of any requirement of the Act, this chapter, or any applicable permit or exploration approval.

(d) Neither the holding of a compliance conference under this section nor any opinion given by the authorized representative at such a conference shall affect:

(1) Any rights or obligations of the division or of the permittee with respect to any inspection, notice of violation or cessation order, whether prior or subsequent to such compliance conference; or

(2) The validity of any notice of violation or cessation order issued with respect to any condition or practice reviewed at the compliance conference.

4VAC25-130-842.12. Citizens' requests for inspections.

(a) A person may request an inspection under 4VAC25-130-842.11(a), by furnishing to an authorized representative of the Director a signed, written statement (or an oral report followed by a signed, written statement) giving the authorized representative reason to believe that a violation, condition or practice referred to in 4VAC25-130-842.11(a) exists and setting forth a phone number and address where the person can be contacted.

(b) The identity of any person supplying information to the division relating to a possible violation or imminent danger or harm shall remain confidential with the division, if requested by that person, unless that person elects to accompany the inspector on the inspection, or unless disclosure is required under the Virginia Freedom of Information Act (Chapter 21 37 (§ 2.1-340 § 2.2-3700 et seq.) of Title 2.1 2.2 of the Code of Virginia).

(c) If an inspection is conducted as a result of information provided to the division by a person as described in Paragraph (a) of this section, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the authorized representative of the Director during the inspection. It shall be the responsibility of the person to provide any or all safety equipment needed to accompany the division's inspector during the mine site inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he supplied information, but only if he is in the presence of and is under the control, direction, and supervision of the authorized representative while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the building or without a search warrant.

(d) Within 10 days of the inspection or, if there is no inspection, within 15 days of receipt of the person's written statement, the division shall send the person the following:

(1) If an inspection was made, a description of the enforcement action taken, which may consist of copies of the inspection report and all notices of violation and cessation orders issued as a result of the inspection, or an explanation of why no enforcement action was taken;

(2) If no inspection was conducted, an explanation of the reason why; and

(3) An explanation of the person's right, if any, to informal review of the action or inaction of the division under 4VAC25-130-842.15.

(e) The division shall give copies of all materials in Paragraphs (d)(1) and (d)(2) of this section within the time limits specified in those Paragraphs to the person alleged to be in violation, except that the name of the person supplying information shall be removed unless disclosure of the person's identity is permitted under Paragraph (b) of this section.

4VAC25-130-842.15. Review of decision not to inspect or enforce.

(a) Any person who is or may be adversely affected by a coal exploration or surface coal mining and reclamation operation may ask the division to review informally an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection under 4VAC25-130-842.12. The request for review shall be in writing and include a statement of how the person is or may be adversely affected and why the decision merits review.

(b) The division shall conduct the review and inform the person, in writing, of the results of the review within 30 days of receipt of the request. The person alleged to be in violation shall also be given a copy of the results of the review, except that the name of the person who is or may be adversely affected shall not be disclosed unless confidentiality has been waived or disclosure is required under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

(c) Informal review under this section shall not affect any right to formal review under § 45.1-249 § 45.2-1025 of the Act or to a citizen's suit under § 45.1-246.1 § 45.2-1022 of the Act.

(d) Any person who requested a review of a decision not to inspect or enforce under this section and who is or may be adversely affected by any determination made under subsection (b) of this section may request review of that determination by filing within 30 days of the division's determination an application for formal review and request for hearing under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). All requests for hearing or appeals for review and reconsideration made under this section shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-843.11. Cessation orders.

(a)(1) An authorized representative of the Director shall immediately order a cessation of a coal exploration or a surface coal mining and reclamation operation or of the relevant portion thereof, if the representative finds, on the basis of any inspection, any condition or practice, or any violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter which:

(i) Creates an imminent danger to the health or safety of the public; or

(ii) Is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources.

(2) Surface coal mining operations conducted by any person without a valid surface coal mining permit constitute a condition or practice which causes or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, unless such operations:

(i) Are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations; or

(ii) Were conducted lawfully without a permit under this chapter because no permit under this chapter has been required for such operations by the division.

(3) If the cessation ordered under Paragraph (a)(1) of this section will not completely abate the imminent danger or harm in the most expeditious manner physically possible, the authorized representative of the Director shall impose affirmative obligations on the permittee to abate the imminent danger or significant environmental harm. The order shall specify the time by which abatement shall be accomplished.

(b)(1) When a notice of violation has been issued under 4VAC25-130-843.12(a) and the permittee fails to abate the violation within the abatement period fixed or subsequently extended by the authorized representative, the authorized representative of the Director shall immediately order a cessation of coal exploration or surface coal mining and reclamation operations, or of the portion relevant to the violation.

(2) A cessation order issued under this Paragraph (b) shall require the permittee to take all steps the authorized representative of the Director deems necessary to abate the violations covered by the order in the most expeditious manner physically possible.

(c) A cessation order issued under Paragraphs (a) or (b) of this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity: (1) The nature of the condition, practice or violation; (2) the remedial action or affirmative obligation required, if any, including interim steps, if appropriate; (3) the time established for abatement, including a schedule for meeting any interim steps, if appropriate; and (4) a reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies. The order shall remain in effect until the condition, practice or violation resulting in the issuance of the cessation order has been abated or until vacated, modified or terminated in writing by an authorized representative of the Director, or until the order expires pursuant to Section 45.1-245(D) § 45.2-1020 of the Act and 4VAC25-130-843.15.

(d) Reclamation operations and other activities intended to protect public health and safety and the environment shall continue during the period of any order unless otherwise provided in the order.

(e) An authorized representative of the Director may modify, terminate or vacate a cessation order for good cause, and may extend the time for abatement if the failure to abate within the time previously set was not caused by the permittee's lack of diligence.

(f) An authorized representative of the Director shall terminate a cessation order by written notice to the permittee when the representative determines that all conditions, practices or violations listed in the order have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 of this chapter for those violations.

(g) Within 60 days after issuing a cessation order, the division shall notify in writing any person who has been identified under 4VAC25-130-773.17(h) and 4VAC25-130-778.13(c) and (d) as owning or controlling the permittee, that the cessation order was issued and that the person has been identified as an owner or controller.

4VAC25-130-843.12. Notices of violation.

(a) An authorized representative of the director shall issue a notice of violation if, on the basis of an inspection pursuant to § 45.1-244 § 45.2-1019 of the Act, the representative finds a violation of the Act, this chapter, or any condition of a permit or an exploration approval imposed under the Act, or this chapter, which does not create an imminent danger or harm for which a cessation order must be issued under 4VAC25-130-843.11.

(b) A notice of violation issued under this section shall be in writing, signed by the authorized representative who issues it, and shall set forth with reasonable specificity:

(1) The nature of the violation;

(2) The remedial action required, which may include interim steps;

(3) A reasonable time for abatement, which may include time for accomplishment of interim steps; and

(4) A reasonable description of the portion of the coal exploration or surface coal mining and reclamation operation to which it applies.

(c) An authorized representative of the director may extend the time set for abatement or for accomplishment of an interim step, if the failure to meet the time previously set was not caused by the permittee's lack of diligence. The total time for abatement under a notice of violation, including all extensions, shall not exceed 90 days from the date of issuance, except upon a showing by the permittee that it is not feasible to abate the violation within 90 calendar days due to one or more of the circumstances in subsection (f) of this section. An extended abatement date pursuant to this section shall not be granted when the permittee's failure to abate within 90 days has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

(d)(1) If the permittee fails to meet the time set for abatement, the authorized representative shall issue a cessation order under 4VAC25-130-843.11(b).

(2) If the permittee fails to meet the time set for accomplishment of any interim step the authorized representative may issue a cessation order under 4VAC25-130-843.11 (b).

(e) An authorized representative of the director shall terminate a notice of violation by written notice to the permittee when the representative determines that all violations listed in the notice of violation have been abated. Termination shall not affect the right of the division to assess civil penalties under Part 845 for those violations.

(f) Circumstances which may qualify a coal exploration or a surface coal mining operation for an abatement period of more than 90 days are:

(1) Where the permittee of an on-going permitted operation has timely applied for and diligently pursued a permit renewal or other necessary approval of designs or plans but such permit or approval has not been or will not be issued within 90 days after a valid permit expires or is required, for reasons not within the control of the permittee;

(2) Where there is a valid judicial or administrative order precluding abatement within 90 days as to which the permittee has diligently pursued all rights of appeal and as to which the permittee has no other effective legal remedy;

(3) Where the permittee cannot abate within 90 days due to a labor strike;

(4) Where climatic conditions preclude abatement within 90 days, or where, due to climatic conditions, abatement within 90 days clearly would cause more environmental harm than it would prevent; or

(5) Where abatement within 90 days requires action that would violate safety standards established by statute or regulation under the Mine Safety and Health Act of 1977.

(g) Whenever an abatement time in excess of 90 days is permitted, interim abatement measures shall be imposed to the extent necessary to minimize harm to the public or the environment.

(h) If any of the conditions in subsection (f) of this section exists, the permittee may request the authorized representative to grant an abatement period exceeding 90 days. The authorized representative shall not grant such an abatement period without the concurrence of the director and the abatement period granted shall not exceed the shortest possible time necessary to abate the violation. The permittee shall have the burden of establishing by clear and convincing proof that he is entitled to an extension under the provisions of 4VAC25-130-843.12 (c) and (f). In determining whether or not to grant an abatement period exceeding 90 days the authorized representative may consider any relevant written or oral information from the permittee or any other source. The authorized representative shall promptly and fully document in the file his reasons for granting or denying the request. The authorized representative's immediate supervisor shall review this document before concurring in or disapproving the extended abatement date and shall promptly and fully document the reasons for his concurrence or disapproval in the file.

(i) No extension granted under subsection (h) of this section may exceed 90 days in length. Where the condition or circumstance which prevented abatement within 90 days exists at the expiration of any such extension, the permittee may request a further extension in accordance with the procedures of subsection (h) of this section.

(j) Any determination made under subsection (h) of this section shall be subject to formal review pursuant to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

4VAC25-130-843.13. Suspension or revocation of permits; pattern of violations.

(a)(1) The director shall issue a show cause order to a permittee requiring justification as to why his permit and right to mine under the Act should not be suspended or revoked, if the director determines that a pattern of violations of any requirements of the Act, this chapter, or any permit condition required by the Act exists or has existed, and that the violations were caused by the permittee's willful or unwarranted failure to comply with those requirements or conditions, or if the permittee failed to pay the final civil penalty assessment as required by 4VAC25-130-845.20. Violations by any person conducting surface coal mining operations on behalf of the permittee shall be attributed to the permittee, unless the permittee establishes that they were acts of deliberate sabotage.

(2) The director may determine that a pattern of violations exists or has existed based upon two or more inspections of the permit area within any 12-month period, after considering the circumstances, including:

(i) The number of violations, cited on more than one occasion, of the same or related requirements of the Act, this chapter, or the permit;

(ii) The number of violations, cited on more than one occasion, of different requirements of the Act, this chapter, or the permit; and

(iii) The extent to which the violations were isolated departures from lawful conduct.

(3) The director shall promptly review the history of violations of any permittee who has been cited for violations of the same or related requirements of the Act, this chapter, or the permit during three or more inspections of the permit area within any 12-month period. If, after such review, the director determines that a pattern of violations exists or has existed, he shall issue a show cause order as provided in subdivision (a) (1) of this section.

(4)(i) In determining the number of violations within any 12-month period, the director shall consider only violations issued as a result of an inspection carried out pursuant to 4VAC25-130-840.11, 4VAC25-130-842.11 and 4VAC25-130-842.12.

(ii) The director may not consider violations issued as a result of inspections other than those mentioned in subdivision (a) (4) (i) of this section in determining whether to exercise his discretion under subdivision (a) (2) of this section, except as evidence of the "willful" or "unwarranted" nature of the permittee's failure to comply.

(5) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the division shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue a show cause order as appropriate pursuant to 4VAC25-130-845.15(b)(2).

(b) The permittee shall have 15 days from receipt of the show cause order to file an answer and request a formal public hearing in writing. The director shall give 30 days written notice of the date, time and place of the hearing to the permittee, and any intervenor. The public hearing shall be conducted in accordance with § 2.2-4020 of the Virginia Administrative Process Act. The director shall publish the notice, if practicable, in a newspaper of general circulation in the area of the surface coal mining and reclamation operations, and shall post it at the division's Big Stone Gap office.

(c) Within 30 days after the hearing, the hearing officer shall issue a written decision as to whether a pattern of violations exists, and, if appropriate, an order. The decision and order shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (e) of this section. If the decision and order revoke or suspend the permit and the permittee's right to mine under the Act, the permittee shall immediately cease surface coal mining operations on the permit area and shall:

(1) If the permit and right to mine under the Act are revoked, complete reclamation within the time specified in the order; or

(2) If the permit and the right to mine under the Act are suspended, complete all affirmative obligations to abate all conditions, practices or violations, as specified in the order.

(d) Within 14 days after the issuance of a decision or order, the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision may appeal to the director, or his designee (who shall not be the same person who issued the show cause order) for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments, and may also after considering the record, remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

(f) Any person who owns or controls or has owned or controlled any operations on which the permit has been revoked pursuant to this section may apply for reinstatement pursuant to 4VAC25-130-800.52.

4VAC25-130-843.15. Informal public hearing.

(a) A notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing is held or if the notice or order is terminated prior to the hearing. Expiration of a notice or order shall not affect the division's right to assess civil penalties for the violations as set forth in part 845. For purposes of this section, mining includes (1) extracting coal from the earth or coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a mine site.

(b) A person issued a notice of violation or cessation order pursuant to this part may request, in writing within 15 days from service of the notice or order, an informal public hearing to review the issuance of the notice or order. The written request must be submitted to the division's Big Stone Gap Office.

(c) The division shall conduct the informal hearing within 30 days from receipt of the hearing request pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The division shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to:

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to that notice or order.

(d) The division shall also post notice of the hearing at its Big Stone Gap office and, where practicable, publish it in a newspaper of general circulation in the area of the mine.

(e) An informal public hearing shall be conducted by a representative of the division, who may accept oral or written arguments and any other relevant information from any person attending.

(f) Within five days after the close of the informal public hearing, the division shall affirm, modify, or vacate the notice or order in writing. The decision shall be sent to-

(1) The person to whom the notice or order was issued; and

(2) Any person who filed a report which led to the notice or order.

(g) The granting of an informal public hearing shall not affect the right of any person to formal review under § 45.1-249 § 45.2-1025 of the Act.

(h) The person conducting the hearing for the division shall determine whether or not the mine site should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the mine site will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or of the required remedial action.

4VAC25-130-843.16. Formal review of citations.

(a) A person issued a notice of violation or cessation order under 4VAC25-130-843.11 or 4VAC25-130-843.12, or a person having an interest which is or may be adversely affected by the issuance, modification, vacation, or termination of a notice or order may request review of that action by filing an application for formal review and request for hearing, under § 45.1-249 § 45.2-1025 of the Act, within 30 days after receiving notice of the action. A person may also request formal review of the decision rendered under 4VAC25-130-843.15, if the request is submitted within 15 days of receipt of the informal public hearing decision.

(b) The filing of an application for review and request for a hearing under this section shall not operate as a stay of any notice or order, or of any modification, termination, or vacation of either.

(c) Hearings under subsection (a) of this section shall be conducted by a hearing officer appointed by the director. Within 30 days after the close of the record, the hearing officer shall issue a written decision affirming, modifying, terminating, or vacating the notice or order. The decision shall be final, subject to the review and reconsideration by the director or his designee provided in subsection (d) of this section.

(d) Within 14 days after the issuance of a decision the permittee, or any person who participated in the hearing and who has an interest which is or may be adversely affected by the hearing officer's decision, may appeal to the director or his designee for review of the record and reconsideration of the hearing officer's decision. The director or his designee may also, on his own motion, with notice to the parties, made within 14 days of the hearing officer's decision, review the record and reconsider the hearing officer's decision. No further evidence will be allowed in connection with such review and reconsideration but the director or his designee may hear further arguments and may also, after considering the record remand any case for further hearing if he considers such action necessary to develop the facts. Within 30 days of the appeal or motion for review and reconsideration, the director or his designee shall complete his review of the hearing officer's decision and issue a final decision thereon.

(e) All requests for hearing before a hearing officer, or appeals for review and reconsideration, made under this section, and all notices of appeal for judicial review of a hearing officer's final decision, or a final decision on review and reconsideration, shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-845.2. Objective.

Civil penalties are assessed under § 45.1-246 § 45.2-1021 of the Act and this Part to deter violations and to ensure maximum compliance with the terms and purposes of the Act on the part of the coal mining industry.

4VAC25-130-845.15. Assessment of separate violations for each day.

(a) The division may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the division shall consider the factors listed in 4VAC25-130-845.13 and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which has been assigned a penalty of $5,000 or more under 4VAC25-130-845.13, the division shall assess a penalty for a minimum of two separate days.

(b) In addition to the civil penalty provided for in subsection (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to § 45.1-245 B § 45.2-1020 of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that:

(1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under § 45.1-249 C § 45.2-1025 of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the director or his authorized representative issues a final order with respect to the violation in question; and

(ii) If the person to whom the notice or order was issued initiates review proceedings under § 45.1-251 B § 45.2-1027 of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to § 45.1-251 B § 45.2-1027 of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court;

(2) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30 day period, the division shall take appropriate action pursuant to §§ 45.1-245 45.2-1020 and 45.1-246 45.2-1021 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate.

4VAC25-130-845.18. Procedures for assessment conference.

(a) The division shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom notice or order was issued, if the request is received within 30 days from the date the proposed assessment or reassessment is served.

(b)(1) The division shall assign a conference officer to hold the assessment conference. The assessment conference shall be conducted as an informal proceeding in accordance with § 2.2-4019 of the Code of Virginia. The assessment conference shall be held within 60 days from the date the conference request is received or the end of the abatement period, whichever is later. Provided that a failure by the division to hold such conference within 60 days shall not be grounds for dismissal of all or part of an assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

(2) The division shall post notice of the time and place of the conference at the division's office in Big Stone Gap or field office located closest to the mine at least five days before the conference. Any person shall have a right to attend and participate in the conference.

(3) The conference officer shall consider all relevant information on the violation. Within 30 days after the conference is held, the conference officer shall either:

(i) Settle the issue, in which case a settlement agreement shall be prepared and signed by the division and by the person assessed; or

(ii) Affirm, raise, lower, or vacate the penalty.

(4) An increase or reduction of a proposed civil penalty assessment of more than 25% and more than $500 shall not be final and binding on the division, until approved by the director or his designee.

(c) The division shall promptly serve the person assessed with a notice of the conference decision in the manner provided in 4VAC25-130-845.17 (b) and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file.

(d)(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect.

(2) If full payment of the amount specified in the settlement agreement is not received by the division within 30 days after that date of signing, the division may enforce the agreement or rescind it and proceed according to subdivision (b)(3)(ii) of this section within 30 days from the date of the rescission.

(e) The conference officer may terminate the conference if it is determined that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

(f) At any formal review proceedings under §§ 45.1-245 C, 45.1-246 and 45.1-249 45.2-1020, 45.2-1021, and 45.2-1025 of the Act, no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.

4VAC25-130-845.19. Request for hearing.

(a) The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or affirmed penalty to the division (to be held in escrow as provided in subsection (b) of this section) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the assessment conference decision, whichever is later. The fact of the violation may not be contested if it has been decided in a review proceeding commenced under 4VAC25-130-843.16.

(b) The division shall transfer all funds submitted under subsection (a) of this section to the State Treasurer's Office which shall hold them in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in 4VAC25-130-845.20.

(c) The hearing requested pursuant to a petition filed under subsection (a) of this section shall be conducted as a formal hearing in accordance with the provisions of § 2.2-4020 of the Code of Virginia. The hearing officer shall cause an accurate verbatim record of the hearing to be made. The division may charge the reasonable cost of preparing such record to any party to the hearing who requests a copy of the record.

(d) All requests for hearing, or appeals for review and reconsideration made under this section; and all notices of appeal for judicial review of a hearing officer's final decision, or the final decision on review and reconsideration shall be filed with the Director, Division of Mined Land Reclamation Repurposing, Department of Mines, Minerals and Energy, Post Office Drawer 900 3405 Mountain Empire Road, Big Stone Gap, Virginia 24219.

4VAC25-130-846.14. Amount of the individual civil penalty.

(a) In determining the amount of an individual civil penalty, the division shall consider the criteria specified in § 45.1-246 A § 45.2-1021 of the Act, including:

(1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;

(2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and,

(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(b) The penalty shall not exceed $5,000 for each violation, except that if the violation resulted in a personal injury or fatality to any person, then the civil penalty determined under 4VAC25-130-845.13 (d) shall be multiplied by a factor of 20, not to exceed $70,000. Each day of a continuing violation may be deemed a separate violation and the division may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the director, until abatement or compliance is achieved.

4VAC25-130-850.15. Certification.

(a) The division shall issue the blaster's coal surface mining endorsement for a period of five years to those candidates examined and found to be competent and has met the requirements as described in 4VAC25-130-850.13 and 4VAC25-130-850.14.

(b) Suspension and revocation:

(1) The division, when practicable, following written notice and opportunity for a hearing may, and upon a finding of willful conduct by the DM Board of Coal Mine Examiners, shall suspend or revoke the blaster's coal surface mining endorsement certification during the term of the certification or take other necessary action for any of the following reasons:

(i) Non-compliance with any blasting related order issued by the division or DM;

(ii) Unlawful use in the work place of, or current addiction to, alcohol, narcotics, or other dangerous drugs;

(iii) Violation of any provision of the State or Federal explosives laws or regulations;

(iv) Providing false information or a misrepresentation to obtain certification.

(2) If advance notice and opportunity for a hearing cannot be provided, an opportunity for a hearing shall be provided as soon as practical following the suspension, revocation, or other adverse action.

(c) Recertification. Any person certified as a blaster must be recertified every five years by:

(1) Presenting written proof that the individual has worked in a capacity which demonstrates the blaster's competency during two of the last three years immediately preceding the expiration date; or

(2) Retaking the division's endorsement exam and achieving the required score on the exam. Anyone who fails to achieve the required score on the exam must take or retake the training prior to retaking both the division's and DM's exam.

(d) Protection of certification. Certified blasters shall take every reasonable precaution to protect their certificates from loss, theft, or unauthorized duplication. Any such occurrence shall be reported immediately to the division.

(e) Conditions:

(1) A blaster shall immediately exhibit upon request his or her certificate to any authorized representative of the division, DM, or the Office of Surface Mining.

(2) Blaster's certification shall not be assigned or transferred.

(3) Blasters shall not delegate their responsibility to any individual who is not a certified blaster.

(f) Petitions for recertification.

An individual whose certification has been revoked may petition the DMLR for recertification. The DMLR shall not accept a petition for recertification any sooner than one year from the effective date of revocation. Such petitions shall show valid reasons why the division should consider the request for recertification. The division may require retesting prior to recertification.

(g) Appeals procedures.

Appeals for review of certification including suspension and revocation decisions shall be made to the DMLR. Appeals not resolved by the DMLR may be heard pursuant to the provisions for administrative and judicial review under Chapter 19 10 (§ 45.1-2.26 § 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia.

4VAC25-130-882.13. Liens.

(a) The Director has the discretionary authority to place or waive a lien against land reclaimed if the reclamation results in a significant increase in the fair market value; except that-

(1) A lien shall not be placed against the property of a surface owner who acquired title prior to May 2, 1977, and who did not consent to, participate in, or exercise control over the mining operation which necessitated the reclamation work.

(2) The basis for making a determination of what constitutes a significant increase in market value or what factual situation constitutes a waiver of lien will be made by the Director pursuant to the Congressional intent expressed in Section 408 of the Federal Act and consistent with the laws of the Commonwealth governing liens.

(3) A lien may be waived if findings made prior to construction indicate that the reclamation work to be performed on private land shall primarily benefit the health, safety, or environmental values of the greater community or area in which the land is located; or if the reclamation is necessitated by an unforeseen occurrence, and the work performed to restore that land will not result in a significant increase in the market value of the land as it existed immediately before the unforeseen occurrence; and

(4) The Director may waive the lien if the cost of filing it, including indirect costs to the Commonwealth, exceeds the increase in fair market value as a result of reclamation activities.

(b) If a lien is to filed, the Director shall, within six months after the completion of the reclamation work, file a statement in the office having responsibility under applicable law for recording judgments and placing liens against land. Such statement shall consist of notarized copies of the appraisals obtained under 4VAC25-130-882.12 and may include an account of moneys expended for the reclamation work. The amount reported to be the increase in value of the property shall constitute the lien to be recorded in compliance with laws of the Commonwealth; Provided, however, That prior to the time of actual filing of the proposed lien, the landowner shall be notified of the amount of the proposed lien and shall be allowed a reasonable time to prepay that amount instead of allowing the lien to be filed against the property involved.

(c) Within 60 days after the lien is filed the landowner may petition under local law to determine the increase in market value of the land as a result of reclamation work. Any aggrieved party may appeal in the manner provided by section 45.1-268 § 45.2-1040 of the Code of Virginia.

4VAC25-145-10. Definitions.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy.

"Division" means the Division of Mined Land Reclamation Repurposing.

"Net worth" means total assets less total liabilities including funds pledged or otherwise obligated to the Commonwealth or other in effect at any time during the contract period and any other contingent liabilities that might materially affect the Commonwealth's ability to realize the amount of bond required in the event of forfeiture.

"Operator" means any person engaging in coal surface mining operations whether or not such coal is sold within or without the Commonwealth.

"Reclamation project" means any work contracted out by or on behalf of the division for reclamation of eligible lands and waters, and defined in § 45.1-262 § 45.2-1034 of the Code of Virginia and funded by the Federal Office of Surface Mining or reclamation of mined lands where the operator who mined the land has had his bond covering the land forfeited to the division or otherwise defaulted on his reclamation obligation and the project is funded either by the forfeited bond or the Virginia Coal Surface Mining Reclamation Fund.

"Relevant mining experience" means at least three years of satisfactory mining and reclamation work in the Commonwealth under Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia. The operator shall have active reclamation work experience for two of the three years.

"State reclamation program" means Articles 4 and 5 of Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia, as well as reclamation done by or for the Commonwealth and funded by the forfeited bond of an operator.

4VAC25-145-20. Operator requirements.

A. Operators must demonstrate relevant mining experience in order to bid on or be awarded contracts for any reclamation project in the Commonwealth. An operator may demonstrate satisfactory mining and reclamation work to the division by showing (i) that the operator has obtained partial or complete bond release on a coal surface mining permit obtained pursuant to Chapter 19 10 (§ 45.2-1000 et seq.) of Title 45.1 45.2 of the Code of Virginia under his control, or that all reclamation work on any active permit operated or controlled by the operator is up to date; and (ii) that no coal surface mining permit under his control has any outstanding violations of any federal, state or local agency's laws, rules, regulations or ordinances unless the operator submits proof to the division that such violations have been corrected or are being corrected to the satisfaction of the agencies citing of such violations.

B. No operator shall be allowed to bid on or be awarded contracts for any reclamation project in the Commonwealth if:

1. The director, after opportunity for a hearing, finds that the operator controls or has controlled mining operations with a demonstrated pattern of willful violations of the Federal Act or State Reclamation Program of such nature and duration with such resulting environmental damage as to indicate an intent not to comply with the Federal Act, P.L. 95-87 or State Reclamation Program.

2. The operator has had a coal surface mining permit revoked or suspended and has not been re-instated by the director; has had his bond forfeited; or has received an order to show cause why his permit should not be revoked or suspended.

4VAC25-145-30. Compliance with other laws and obligations.

A. The operator bidding or seeking to bid on reclamation projects shall comply with all other applicable laws, ordinances, orders, rules and regulations of any federal, state or local agency with jurisdiction over the operator's mining or reclamation activities.

B. The operator shall comply with all applicable requirements of the division with regard to bidding on reclamation projects in the Commonwealth, excepting any requirements waived by § 45.1-161.1 § 45.2-100 of the Code of Virginia and this regulation.

4VAC25-150-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Adequate channel" means a watercourse that will convey the designated frequency storm event without overtopping its banks or causing erosive damage to the bed, banks and overbank sections.

"Applicant" means any person or business who files an application with the Division of Gas and Oil.

"Approved" means accepted as suitable for its intended purpose when included in a permit issued by the director or determined to be suitable in writing by the director.

"Berm" means a ridge of soil or other material constructed along an active earthen fill to divert runoff away from the unprotected slope of the fill to a stabilized outlet or sediment trapping facility.

"Board" means the Virginia Gas and Oil Board.

"Bridge plug" means an obstruction intentionally placed in a well at a specified depth.

"CAS number" means the unique number identifier for a chemical substance assigned by the Chemical Abstracts Service.

"Cased completion" means a technique used to make a well capable of production in which production casing is set through the productive zones.

"Cased/open hole completion" means a technique used to make a well capable of production in which at least one zone is completed through casing and at least one zone is completed open hole.

"Casing" means all pipe set in wells except conductor pipe and tubing.

"Causeway" means a temporary structural span constructed across a flowing watercourse or wetland to allow construction traffic to access the area without causing erosion damage.

"Cement" means hydraulic cement properly mixed with water.

"Cement bond log" means an acoustic survey or sonic-logging method that records the quality or hardness of the cement used in the annulus to bond the casing and the formation.

"Centralizer" means a device secured around the casing at regular intervals to center it in the hole.

"Channel" means a natural stream or man-made waterway.

"Chemical Disclosure Registry" means the chemical registry website known as FracFocus.org developed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

"Chief" means the Chief of the Division of Mines of the Department of Mines, Minerals and Energy.

"Coal-protection string" means a casing designed to protect a coal seam by excluding all fluids, oil, gas, or gas pressure from the seam, except such as may be found in the coal seam itself.

"Cofferdam" means a temporary structure in a river, lake, or other waterway for keeping the water from an enclosed area that has been pumped dry so that bridge foundations, pipelines, etc., may be constructed.

"Completion" means the process that results in a well being capable of producing gas or oil.

"Conductor pipe" means the short, large diameter string used primarily to control caving and washing out of unconsolidated surface formations.

"Corehole" means any hole drilled solely for the purpose of obtaining rock samples or other information to be used in the exploration for coal, gas, or oil. The term shall not include a borehole used solely for the placement of an explosive charge or other energy source for generating seismic waves.

"Days" means calendar days.

"Denuded area" means land that has been cleared of vegetative cover.

"Department" means the Department of Mines, Minerals and Energy.

"Detention basin" means a stormwater management facility which temporarily impounds and discharges runoff through an outlet to a downstream channel. Infiltration is negligible when compared to the outlet structure discharge rates. The facility is normally dry during periods of no rainfall.

"Dike" means an earthen embankment constructed to confine or control fluids.

"Directional survey" means a well survey that measures the degree of deviation of a hole from true vertical, and the distance and direction of points in the hole from vertical.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Diversion" means a channel constructed for the purpose of intercepting surface runoff.

"Diverter" or "diverter system" means an assembly of valves and piping attached to a gas or oil well's casing for controlling flow and pressure from a well.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Emergency response plan" means the document that details the steps to prevent, control, and provide adequate countermeasures for a petroleum product discharge not covered by the spill prevention, control, and countermeasures plan or for a non-petroleum product discharge.

"Erosion and sediment control plan" means a document containing a description of materials and methods to be used for the conservation of soil and the protection of water resources in or on a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain a record of all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

"Expanding cement" means any cement approved by the director that expands during the hardening process, including but not limited to regular oil field cements with the proper additives.

"Firewall" means an earthen dike or fire resistant structure built around a tank or tank battery to contain the oil in the event a tank ruptures or catches fire.

"Flume" means a constructed device lined with erosion-resistant materials intended to convey water on steep grades.

"Flyrock" means any material propelled by a blast that would be actually or potentially hazardous to persons or property.

"Form prescribed by the director" means a form issued by the division, or an equivalent facsimile, for use in meeting the requirements of the Act or this chapter.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Gob well" means a coalbed methane gas well that is capable of producing coalbed methane gas from the de-stressed zone associated with any full-seam extraction of coal that extends above and below the mined-out coal seam.

"Groundwater" means all water under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, which has the potential for being used for domestic, industrial, commercial, or agricultural use or otherwise affects the public welfare.

"Highway" means any public street, public alley, or public road.

"Hydraulic fracturing" means the treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil or natural gas.

"Hydraulic fracturing fluid" means the fluid, including the applicable base fluid and all additives, used to perform hydraulic fracturing treatment.

"Inclination survey" means a survey taken inside a wellbore that measures the degree of deviation of the point of the survey from true vertical.

"Inhabited building" means a building, regularly occupied in whole or in part by human beings, including, but not limited to, a private residence, church, school, store, public building or other structure where people are accustomed to assemble except for a building being used on a temporary basis, on a permitted site, for gas, oil, or geophysical operations.

"Intermediate string" means a string of casing that prevents caving, shuts off connate water in strata below the water-protection string, and protects strata from exposure to lower zone pressures.

"Live watercourse" means a definite channel with bed and banks within which water flows continuously.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mud" means a mixture of materials that creates a weighted fluid to be circulated downhole during drilling operations for the purpose of lubricating and cooling the bit, removing cuttings, and controlling formation pressures and fluid.

"Natural channel" or "natural stream" means nontidal waterways that are part of the natural topography. They usually maintain a continuous or seasonal flow during the year and are characterized as being irregular in cross section with a meandering course.

"Nonerodible" means a material such as riprap, concrete, or plastic that will not experience surface wear due to natural forces.

"Oil well" means any well that produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Open hole completion" means a technique used to make a well capable of production in which no production casing is set through the productive zones.

"Person" means any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.

"Plug" means the sealing of, or a device or material used for the sealing of, a gas or oil wellbore or casing to prevent the migration of water, gas, or oil from one stratum to another.

"Pre-development" means the land use and site conditions that exist at the time that the operations plan is submitted to the division.

"Produced waters" means water or fluids produced from a gas well, oil well, coalbed methane gas well, or gob well as a byproduct of producing gas, oil, or coalbed methane gas.

"Producer" means a permittee operating a well in Virginia that is producing or is capable of producing gas or oil.

"Production string" means a string of casing or tubing through which the well is completed and may be produced and controlled.

"Red shales" means the undifferentiated shaley portion of the Bluestone formation normally found above the Pride Shale Member of the formation, and extending upward to the base of the Pennsylvanian strata, which red shales are predominantly red and green in color but may occasionally be gray, grayish green, and grayish red.

"Red zone" is a zone in or contiguous to a permitted area that could have potential hazards to workers or to the public.

"Retention basin" means a stormwater management facility that, similar to a detention basin, temporarily impounds runoff and discharges its outflow through an outlet to a downstream channel. A retention basin is a permanent impoundment.

"Sediment basin" means a depression formed from the construction of a barrier or dam built to retain sediment and debris.

"Sheet flow" or "overland flow" means shallow, unconcentrated and irregular flow down a slope. The length of strip for sheet flow usually does not exceed 200 feet under natural conditions.

"Slope drain" means tubing or conduit made of nonerosive material extending from the top to the bottom of a cut or fill slope.

"Special diligence" means the activity and skill exercised by a good businessperson in a particular specialty, which must be commensurate with the duty to be performed and the individual circumstances of the case, not merely the diligence of an ordinary person or nonspecialist.

"Spill prevention, control, and countermeasure plan" or "SPCC plan" means the document that details the steps to prevent, control, and provide adequate countermeasures to certain petroleum product discharges.

"Stabilized" means able to withstand normal exposure to air and water flows without incurring erosion damage.

"Stemming" means the inert material placed in a borehole after an explosive charge for the purpose of confining the explosion gases in the borehole or the inert material used to separate the explosive charges (decks) in decked holes.

"Stimulate" means any action taken by a gas or oil operator to increase the inherent productivity of a gas or oil well, including, but not limited to, fracturing, shooting, or acidizing, but excluding (i) cleaning out, bailing, or workover operations and (ii) the use of surface-tension reducing agents, emulsion breakers, paraffin solvents, and other agents that affect the gas or oil being produced, as distinguished from the producing formation.

"Storm sewer inlet" means any structure through which stormwater is introduced into an underground conveyance system.

"Stormwater management facility" means a device that controls stormwater runoff and changes the characteristics of that runoff, including but not limited to, the quantity, quality, the period of release, or the velocity of flow.

"String of pipe" or "string" means the total footage of pipe of uniform size set in a well. The term embraces conductor pipe, casing, and tubing. When the casing consists of segments of different size, each segment constitutes a separate string. A string may serve more than one purpose.

"Sulfide stress cracking" means embrittlement of the steel grain structure to reduce ductility and cause extreme brittleness or cracking by hydrogen sulfide.

"Surface mine" means an area containing an open pit excavation, surface operations incident to an underground mine, or associated activities adjacent to the excavation or surface operations, from which coal or other minerals are produced for sale, exchange, or commercial use and includes all buildings and equipment above the surface of the ground used in connection with such mining.

"Target formation" means the geologic gas or oil formation identified by the well operator in his application for a gas, oil or geophysical drilling permit.

"Temporary stream crossing" means a temporary span installed across a flowing watercourse for use by construction traffic. Structures may include bridges, round pipes or pipe arches constructed on or through nonerodible material.

"Ten-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in 10 years. It may also be expressed as an exceedance probability with a 10% chance of being equaled or exceeded in any given year.

"Tidewater Virginia" means the region defined in § 62.1-44.15:68 of the Code of Virginia.

"Trade secret" means the term defined in § 59.1-336 of the Code of Virginia.

"Tubing" means the small diameter string set after the well has been drilled from the surface to the total depth and through which the gas or oil or other substance is produced or injected.

"Two-year storm" means a storm that is capable of producing rainfall expected to be equaled or exceeded on the average of once in two years. It may also be expressed as an exceedance probability with a 50% chance of being equaled or exceeded in any given year.

"Vertical ventilation hole" means any hole drilled from the surface to the coal seam used only for the safety purpose of removing gas from the underlying coal seam and the adjacent strata, thus, removing the gas that would normally be in the mine ventilation system.

"Water bar" means a small obstruction constructed across the surface of a road, pipeline right-of-way, or other area of ground disturbance in order to interrupt and divert the flow of water on a grade for the purpose of controlling erosion and sediment migration.

"Water-protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-150-20. Basis and authority.

This chapter implements the Virginia Gas and Oil Act, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The Director of the Department of Mines, Minerals and Energy is authorized to promulgate this chapter pursuant to §§ 45.1-161.3 45.2-103 and 45.1-361.27 45.2-1629 of the Code of Virginia.

4VAC25-150-40. Registration.

A. Persons required to register under § 45.1-361.37 § 45.2-1639 of the Code of Virginia shall register with the division on a registration form prescribed by the director.

B. Registered persons shall notify the division within 30 days of any change in the information included on the registration form filed in accordance with subsection A of this section.

4VAC25-150-80. Application for a permit.

A. Applicability.

1. Persons required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia to obtain a permit or permit modification shall apply to the division on the forms prescribed by the director. All lands on which gas, oil, or geophysical operations are to be conducted shall be included in a permit application.

2. In addition to specific requirements for variances in other sections of this chapter, any applicant for a variance shall, in writing, document the need for the variance and describe the alternate measures or practices to be used.

3. Prior to accepting an application for a permit to drill for gas or oil in Tidewater Virginia, the department shall convene a pre-application meeting within the locality where the operation is proposed. The pre-application meeting shall ensure those who desire to submit an application are aware of the requirements established in § 62.1-195.1 of the Code of Virginia and 9VAC15-20. The department, in conjunction with the Department of Environmental Quality, shall conduct the meeting. The meeting shall be open to the public, and the department shall notify the locality in which the meeting is to take place and adjacent localities. No application for a permit to drill for gas or oil in Tidewater Virginia shall be accepted until the meeting is completed.

B. The application for a permit shall, as applicable, be accompanied by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia, the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia, and the fee for the Orphaned Well Fund in accordance with § 45.1-361.40 § 45.2-1642 of the Code of Virginia.

C. Each application for a permit shall include information on all activities, including those involving associated facilities, to be conducted on the permitted site. This shall include the following:

1. The name and address of:

a. The gas, oil, or geophysical applicant;

b. The agent required to be designated under § 45.1-361.37 § 45.2-1639 of the Code of Virginia; and

c. Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

2. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

3. Certification from the applicant that the proposed operation complies with all applicable local land use ordinances;

4. The proof of notice to affected parties required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, which shall be:

a. A copy of a signed receipt or electronic return receipt of delivery of notice by certified mail;

b. A copy of a signed receipt acknowledging delivery of notice by hand; or

c. If all copies of receipt of delivery of notice by certified mail have not been signed and returned within 15 days of mailing, a copy of the mailing log or other proof of the date the notice was sent by certified mail, return receipt requested;

5. If the application is for a permit modification, proof of notice to affected parties, as specified in subdivision C 4 of this section;

6. Identification of the type of well or other gas, oil, or geophysical operation being proposed;

7. A list of ingredients anticipated to be used in any hydraulic fracturing operations. The applicant should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection;

8. The groundwater baseline sampling, analysis, and monitoring plan in accordance with 4VAC25-150-95;

9. The plat in accordance with 4VAC25-150-90;

10. The operations plan in accordance with 4VAC25-150-100;

11. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350;

12. The spill prevention, control, and countermeasure (SPCC) plan, if one is required;

13. The emergency response plan;

14. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit on which a proposed gas, oil, or geophysical operation is to be located;

15. For an application for a conventional well, the information required in 4VAC25-150-500;

16. For an application for a coalbed methane gas well, the information required in 4VAC25-150-560;

17. For an application for a geophysical operation, the information required in 4VAC25-150-670; and

18. For an application for a permit to drill for gas or oil in Tidewater Virginia, the environmental impact assessment meeting the requirements of § 62.1-195.1 B of the Code of Virginia and 9VAC15-20.

D. All permit applications and plats submitted to the division shall be in electronic form or a format prescribed by the director.

4VAC25-150-90. Plats.

A. When filing an application for a permit for a well or corehole, the applicant also shall file an accurate plat certified by a licensed professional engineer or licensed land surveyor on a scale, to be stated thereon, of 1 inch equals 400 feet (1:4800). The scope of the plat shall be large enough to show the board approved unit and all areas within the greater of 750 feet or one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia from the proposed well or corehole. The plat shall be submitted on a form prescribed by the director.

B. The known courses and distances of all property lines and lines connecting the permanent points, landmarks or corners within the scope of the plat shall be shown thereon. All lines actually surveyed shall be shown as solid lines. Lines taken from deed or chain of title descriptions only shall be shown by broken lines. All property lines shown on a plat shall agree with any one of the following: surveys, deed descriptions, or acreages used in county records for tax assessment purposes.

C. A north and south line shall be given and shown on the plat, and point to the top of the plat.

D. Wells or coreholes shall be located on the plat as follows:

1. The proposed or actual surface elevation of the subject well or corehole shall be shown on the plat, within an accuracy of one vertical foot. The surface elevation shall be tied to either a government benchmark or other point of proven elevation by differential or aerial survey, by trigonometric leveling, or by global positioning system (GPS) survey. The location of the government benchmark or the point of proven elevation and the method used to determine the surface elevation of the subject well or corehole shall be noted and described on the plat.

2. The proposed or actual horizontal location of the subject well or corehole determined by survey shall be shown on the plat. The proposed or actual well or corehole location shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System.

3. The courses and distances of the well or corehole location from two permanent points or landmarks on the tract shall be shown; such landmarks shall be set stones, iron pipes, T-rails or other manufactured monuments, including mine coordinate monuments, and operating or abandoned wells which are platted to the accuracy standards of this section and on file with the division. If temporary points are to be used to locate the actual well or corehole location as provided for in 4VAC25-150-290, the courses and distances of the well or corehole location from the two temporary points shall be shown.

4. Any other well, permitted or drilled, within the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well shall be shown on the plat or located by notation. The type of each well shall be designated by the following symbols as described in the Federal Geographic Data Committee (FGDC) Digital Cartographic Standard for Geologic Map Symbolization:

Symbols for additional features as required in 4VAC25-150-510, 4VAC25-150-590, and 4VAC25-150-680 should be taken from the FDGC standard where applicable.

E. Plats shall also contain:

1. For a conventional gas and oil or injection well, the information required in 4VAC25-150-510;

2. For a coalbed methane gas well, the information required in 4VAC25-150-590; or

3. For a corehole, the information required in 4VAC25-150-680.

F. Any subsequent application for a new permit or permit modification shall include an accurate copy of the well plat, updated as necessary to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted. Any revised plat shall be certified as required in subsection A of this section.

4VAC25-150-100. Operations plans.

A. Each application for a permit or permit modification shall include an operations plan, in a format approved by or on a form prescribed by the director. The operations plan and accompanying maps or drawings shall become part of the terms and conditions of any permit which is issued.

B. The operations plan shall describe the specifications for the use of centralizers to ensure casing is centered in the hole. The specifications shall include, at a minimum, one centralizer within 50 feet of the water protection string seat and then in intervals no greater than every 150 feet above the first centralizer and are subject to the approval of the director.

C. The applicant shall indicate how risks to the public safety or to the site and adjacent lands are to be managed, consistent with the requirements of § 45.1-361.27 B § 45.2-1629 B of the Code of Virginia, and shall provide a short narrative, if pertinent. The operations plan shall identify red zone areas.

4VAC25-150-110. Permit supplements and permit modifications.

A. Permit supplements.

1. Standard permit supplements. A permittee shall be allowed to submit a permit supplement when work being performed:

a. Does not change the disturbance area as described in the original permit; and

b. Involves activities previously permitted.

The permittee shall submit written documentation of the changes made to the permitted area no later than 30 days after completing the change. All other changes to the permit shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Permit supplements for disclosure of ingredients used in hydraulic fracturing. Prior to completion of a well, the permittee shall submit a permit supplement when the ingredients expected to be used in the hydraulic fracturing process differ in any way from that which was submitted pursuant to subdivision C 7 of 4VAC25-150-80. The permittee should identify any ingredients claimed to be trade secrets, and the department shall utilize the process described in 4VAC25-150-365 C to determine if the identified ingredients are entitled to trade secret protection.

3. Emergency permit supplements. If a change must be implemented immediately for an area off the disturbance area as described in the original permit, or for an activity not previously permitted due to actual or threatened imminent danger to the public safety or to the environment, the permittee shall:

a. Take immediate action to minimize the danger to the public or to the environment;

b. Notify the director as soon as possible of actions taken to minimize the danger and, if the director determines an emergency still exists and grants oral approval, commence additional changes if necessary; and

c. Submit a supplement to the permit within seven working days of notifying the director with a written description of the emergency and action taken. An incident report may also be required as provided for in 4VAC25-150-380.

Any changes to the permit are to be temporary and restricted to those that are absolutely necessary to minimize danger. Any permanent changes to the permit shall require a permit modification as provided for in subsection B of this section.

B. Permit modifications.

1. Applicability. All changes to the permit which do not fit the description contained in subsection A of this section shall require a permit modification in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

2. Notice and fees. Notice of a permit modification shall be given in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia. The application for a permit modification shall be accompanied, as applicable, by the fee in accordance with § 45.1-361.29 § 45.2-1631 of the Code of Virginia and the bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia.

3. Waiver of right to object. Upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit modification. The department shall be entitled to rely upon the waiver to approve the permit modification.

4. Permit modification. The permittee shall submit a written application for a permit modification on a form prescribed by the director. The permittee may not undertake the proposed work until the permit modification has been issued. As appropriate, the application shall include, but not be limited to:

a. The name and address of:

(1) The permittee; and

(2) Each person whom the applicant must notify under § 45.1-361.30 § 45.2-1632 of the Code of Virginia;

b. The certifications required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia;

c. The proof of notice required in § 45.1-361.29 E § 45.2-1631 E of the Code of Virginia, as provided for in 4VAC25-150-80 C 4;

d. Identification of the type of work for which a permit modification is requested;

e. The plat in accordance with 4VAC25-150-90;

f. All data, maps, plats and plans in accordance with 4VAC25-150-100 necessary to describe the activity proposed to be undertaken;

g. When the permit modification includes abandoning a gas or oil well as a water well, a description of the plugging to be completed up to the water-bearing formation and a copy of the permit issued for the water well by the Virginia Department of Health;

h. The information required for operations involving hydrogen sulfide in accordance with 4VAC25-150-350 if applicable to the proposed operations;

i. The spill prevention, control, and countermeasure (SPCC) plan, if one has been developed for the site of the proposed operations, or the emergency response plan;

j. The Department of Mines, Minerals and Energy, Division of Mined Land Reclamation's Repurposing's permit number for any area included in a Division of Mined Land Reclamation Repurposing permit; and

k. The information, as appropriate, required in 4VAC25-150-500, 4VAC25-150-560, 4VAC25-150-670, or 4VAC25-150-720.

5. Upon receipt of an application for a permit modification for a well in Tidewater Virginia, the director may require additional documentation to supplement information submitted to the department pursuant to subsection B of § 62.1-195.1 of the Code of Virginia. If additional documentation is required, the operator shall submit that documentation to the director and the Department of Environmental Quality.

4VAC25-150-120. Transfer of permit rights.

A. Applicability.

1. No transfer of rights granted by a permit shall be made without prior approval from the director.

2. Any approval granted by the director of a transfer of permit rights shall be conditioned upon the proposed new operator complying with all requirements of the Act, this chapter and the permit.

B. Application. Any person requesting a transfer of rights granted by a permit shall submit a written application on a form prescribed by the director. The application shall be accompanied by a fee of $75 and bond, in the name of the person requesting the transfer, in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia. The application shall contain, but is not limited to:

1. The name and address of the current permittee, the current permit number and the name of the current operation;

2. The name and address of the proposed new operator and the proposed new operations name;

3. Documentation of approval of the transfer by the current permittee;

4. If the permit was issued on or before September 25, 1991, an updated operations plan, in accordance with 4VAC25-150-100, showing how all permitted activities to be conducted by the proposed new permittee will comply with the standards of this chapter;

5. If the permit was issued on or before September 25, 1991, for a well, a plat meeting the requirements of 4VAC25-150-90 updated to reflect any changes on the site, newly discovered data or additional data required since the last plat was submitted, including the change in ownership of the well; and

6. If the permit was issued on or before September 25, 1991, if applicable, the docket number and date of recordation of any order issued by the board for a pooled unit, pertaining to the current permit.

C. Standards for approval. The director shall approve the transfer of permit rights when the proposed new permittee:

1. Has registered with the department in accordance with § 45.1-361.37 § 45.2-1639 of the Code of Virginia;

2. Has posted acceptable bond in accordance with § 45.1-361.31 § 45.2-1633 of the Code of Virginia; and

3. Has no outstanding debt pursuant to § 45.1-361.32 § 45.2-1634 of the Code of Virginia.

D. The new permittee shall be responsible for any violations of or penalties under the Act, this chapter, or conditions of the permit after the director has approved the transfer of permit rights.

4VAC25-150-130. Notice of permit applications and modifications.

A. Gas, oil or geophysical operators shall provide notice of an application for a permit or permit modification in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia, as identified on the "Technical Data Sheet for Permit Applications Under § 45.1-361.29," prescribed by the director.

B. If notice required under § 45.1-361.30 § 45.2-1632 of the Code of Virginia has been sent by certified mail, return receipt requested, and the notice has not been delivered within 15 days of mailing the notice, the director shall consider notice to be given as of the end of the 15-day period and the objection period specified in §§ 45.1-361.35 § 45.2-1637 of the Code of Virginia shall commence.

4VAC25-150-140. Objections to permit applications.

A. Objections shall be filed in writing, at the office of the division, in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia. The director shall notify affected parties of an objection as soon as practicable.

B. If after the director has considered notice to be given under 4VAC25-150-130 B of this chapter, a person submits an objection with proof of receipt of actual notice within 15 days prior to submitting the objection, then the director shall treat the objection as timely.

C. Objections to an application for a new or modified permit shall contain:

1. The name of the person objecting to the permit;

2. The date the person objecting to the permit received notice of the permit application;

3. Identification of the proposed activity being objected to;

4. A statement of the specific reason for the objection;

5. A request for a stay to the permit, if any, together with justification for granting a stay; and

6. Any other information the person objecting to the permit wishes to provide.

D. When deciding to convene a hearing pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia, the dir0ctor director shall consider the following:

1. Whether the person objecting to the permit has standing to object as provided in § 45.1-361.35 § 45.2-1632 of the Code of Virginia;

2. Whether the objection is timely; and

3. Whether the objection meets the applicable standards for objections as provided in § 45.1-361.35 § 45.2-1637 of the Code of Virginia.

E. If the director decides not to hear the objection, then he shall notify the person who objects and the permit applicant in writing, indicating his reasons for not hearing the objection, and shall advise the objecting person of his right to appeal the decision.

4VAC25-150-150. Hearing and decision on objections to permit applications.

A. In any hearing on objections to a permit application:

1. The hearing shall be an informal fact finding hearing in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia.

2. The permit applicant and any person with standing in accordance with § 45.1-361.30 § 45.2-1632 of the Code of Virginia may be heard.

3. Any valid issue in accordance with § 45.1-361.35 § 45.2-1637 of the Code of Virginia may be raised at the hearing. The director shall determine the validity of objections raised during the hearing.

B. The director shall, as soon after the hearing as practicable, issue his decision in writing and hand deliver or send the decision by certified mail to all parties to the hearing. The decision shall include:

1. The subject, date, time and location of the hearing;

2. The names of the persons objecting to the permit;

3. A summary of issues and objections raised at the hearing;

4. Findings of fact and conclusions of law;

5. The text of the decision, including any voluntary agreement; and

6. Appeal rights.

C. Should the director deny the permit issuance and allow the objection, a written notice of the decision shall be sent to any person receiving notice of the application.

4VAC25-150-160. Approval of permits and permit modifications.

A. Permits, permit modifications, permit renewals, and transfer of permit rights shall be granted in writing by the director.

B. The director may not issue a permit, permit renewal, or permit modification prior to the end of the time period for filing objections pursuant to § 45.1-361.35 § 45.2-1637 of the Code of Virginia unless, upon receipt of notice, any person may, on a form approved by the director, waive the time requirements and their right to object to a proposed permit application or permit modification application. The director shall be entitled to rely upon the waiver to approve the permit application or permit modification.

C. The director may not issue a permit to drill for gas or oil or approve a permit modification for a well where additional documentation is required pursuant to subdivision B 5 of 4VAC25-150-110 in Tidewater Virginia until he has collaborated with the Department of Environmental Quality to ensure permit conditions accurately reflect the results from the Department of Environmental Quality's coordinated review of the environmental impact assessment required pursuant to § 62.1-195.1 of the Code of Virginia.

D. The provisions of any order of the Virginia Gas and Oil Board that govern a gas or oil well permitted by the director shall become conditions of the permit.

4VAC25-150-170. Enforcement.

A. The director shall enforce the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or any condition of a permit, and may use the following methods:

1. Obtaining voluntary compliance through conference, warning or other means prior to issuing any enforcement notice or order;

2. Issuing notices of violation in accordance with 4VAC25-150-180;

3. Issuing closure orders in accordance with 4VAC25-150-190;

4. Issuing show cause orders in accordance with 4VAC25-150-200;

5. Issuing emergency orders in accordance with § 45.1-361.27 D § 45.2-1629 of the Code of Virginia; or

6. Any other action in accordance with the Code of Virginia.

B. The purpose of taking actions under this section is to obtain compliance with the provisions of the Act, this chapter, 4VAC25 Chapter 160 (4VAC25-160-10 et seq.) entitled "The Virginia Gas and Oil Board Regulation," any board order, or conditions of a permit.

C. Reclamation operations and other activities intended to protect the public health and safety and the environment shall continue during the period of any notice or order unless otherwise provided in the notice or order.

D. Any person found to be conducting a gas, oil or geophysical operation without a permit from the director shall be subject to enforcement for operating without a permit and for not meeting any other standards of the Act or this chapter which would be required if the person was operating under a permit.

E. Decisions of the director may be appealed to the Virginia Gas and Oil Board pursuant to § 45.1-361.23 § 45.2-1625 of the Code of Virginia.

4VAC25-150-180. Notices of violation.

A. The director may issue a notice of violation if he finds a violation of any of the following:

1. Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia;

2. This chapter;

3. 4VAC25-160 entitled "Virginia Gas and Oil Board Regulation";

4. Any board order; or

5. Any condition of a permit, which does not create an imminent danger or harm for which a closure order must be issued under 4VAC5-150-190.

B. A notice of violation shall be in writing, signed, and set forth with reasonable specificity:

1. The nature of the violation, including a reference to the section or sections of the Act, applicable regulation, order or permit condition which has been violated;

2. A reasonable description of the portion of the operation to which the violation applies, including an explanation of the condition or circumstance that caused the portion of the operation to be in violation, if it is not self-evident in the type of violation itself;

3. The remedial action required, which may include interim steps; and

4. A reasonable deadline for abatement, which may include a deadline for accomplishment of interim steps.

C. The director may extend the deadline for abatement or for accomplishment of an interim step, if the failure to meet the deadline previously set was not caused by the permittee's lack of diligence. An extension of the deadline for abatement may not be granted when the permittee's failure to abate has been caused by a lack of diligence or intentional delay by the permittee in completing the remedial action required.

D. If the permittee fails to meet the deadline for abatement or for completion of any interim steps, the director shall issue a closure order under 4VAC25-150-190.

E. The director shall terminate a notice of violation by written notice to the permittee when he determines that all violations listed in the notice of violation have been abated.

F. A permittee issued a notice of violation may request, in writing to the director, an informal fact-finding hearing to review the issuance of the notice. This written request shall be made within 10 days of receipt of the notice. The permittee may request, in writing to the director, an expedited hearing.

G. A permittee is not relieved of the duty to abate any violation under a notice of violation during an appeal of the notice. A permittee may apply for an extension of the deadline for abatement during an appeal of the notice.

H. The director shall issue a decision on any request for an extension of the deadline for abatement under a notice of violation within five days of receipt of such request. The director shall conduct an informal fact-finding hearing, in accordance with the Administrative Process Act, § 2.2-4019 of the Code of Virginia, no later than 10 days after receipt of the hearing request.

I. The director shall affirm, modify, or vacate the notice in writing to the permittee within five days of the date of the hearing.

4VAC25-150-220. Annual reports.

A. Each permittee shall submit a calendar-year annual report to the division by no later than March 31 of the next year.

B. The annual report shall include as appropriate:

1. A confirmation of the accuracy of the permittee's current registration filed with the division or a report of any change in the information;

2. The name, address and phone number or numbers of the persons to be contacted at any time in case of an emergency;

3. Production of gas or oil on a well-by-well and county-by-county or city-by-city basis for each permit or as prescribed by the director and the average price received for each Mcf of gas and barrel of oil;

4. Certification by the permittee that the permittee has paid all severance taxes for each permit;

5. When required, payment to the Gas and Oil Plugging and Restoration Fund as required in § 45.1-361.32 § 45.2-1634 of the Code of Virginia; and

6. Certification by the permittee that bonds on file with the director have not been changed.

4VAC25-150-290. Actual well or corehole location.

A. The actual horizontal surface location of the well shall be within three feet of the permitted location designated on the well plat, except where an operator has stated that the location may vary up to 10 feet in the notice as required in § 45.1-361.30 § 45.2-1632 of the Code of Virginia.

B. The permittee shall survey the actual location of the well which may be made from a minimum of two temporary points not disturbed during development of the well or site and shown on the plat submitted with the permit application. The permittee shall submit an updated plat, certified by a licensed land surveyor or licensed professional engineer, showing the actual well location certified to be within three feet of the permitted location, or within 10 feet as provided for in subsection A of this section. This updated plat shall be included with the drilling report submitted in accordance with 4VAC25-150-360.

4VAC25-150-365. Disclosure of well stimulation fluids.

A. In addition to other requirements that may be prescribed by the director, each completion report required in 4VAC25-150-360 shall also contain the following disclosures:

The operator of the well shall complete the Chemical Disclosure Registry form and upload the form on the Chemical Disclosure Registry, including:

a. The operator name;

b. The date of completion of the hydraulic fracturing treatment or treatments;

c. The county in which the well is located;

d. The American Petroleum Institute (API) number for the well;

e. The well name and number;

f. The longitude and latitude of the wellhead;

g. The total vertical depth of the well;

h. The total volume of water used in the hydraulic fracturing treatment or treatments of the well or the type and total volume of the base fluid used in the hydraulic fracturing treatment or treatments, if something other than water;

i. Each additive used in the hydraulic fracturing treatments and the trade name, supplier, and a brief description of the intended use or function of each additive in the hydraulic fracturing treatment or treatments;

j. Each chemical ingredient used in the hydraulic fracturing treatment or treatments of the well that is subject to the requirements of 29 CFR 1910.1200(g)(2), as provided by the chemical supplier or service company or by the operator, if the operator provides its own chemical ingredients;

k. The actual or maximum concentration of each chemical ingredient listed under subdivision j of this subsection in percent by mass;

l. The CAS number for each chemical ingredient listed, if applicable; and

m. A supplemental list of all chemicals, their respective CAS numbers, and the proportions thereof not subject to the requirements of 29 CFR 1910.1200(g)(2), that were intentionally included in and used for the purpose of creating the hydraulic fracturing treatments for the well.

B. The department shall obtain and maintain data submitted to the Chemical Disclosure Registry. If the Chemical Disclosure Registry is temporarily inoperable, the operator of a well on which hydraulic fracturing treatment or treatments were performed shall supply the department with the required information and upload the information on the registry when it is again operable. The information required shall also be filed as an attachment to the completion report for the well, which shall be posted, along with all attachments, on the department's website, except that information determined to be subject to trade secret protection shall not be posted.

C. All information related to the specific identity or CAS number or amount of any additive or chemical ingredient used in hydraulic fracturing shall be submitted to the department and shall be available to the public unless the department determines that information supplied by the operator and claimed to be a trade secret is entitled to such protection. All information claimed as a trade secret shall be identified as such at the time of submission of the appropriate report. The department shall treat as confidential in accordance with law, information that meets the criteria specified in law for a trade secret and is contained on such forms and filings as is required under this chapter. Such criteria shall include a demonstration by the claimant that the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Should the department determine that information is protected as a trade secret, the operator of the well shall indicate on the Chemical Disclosure Registry or the supplemental list that the additive or chemical ingredient or their amounts are entitled to trade secret protection. If a chemical ingredient name or CAS number is entitled to trade secret protection, the chemical family or other similar description associated with such chemical ingredient shall be provided. The operator of the well on which hydraulic fracturing was performed shall provide the contact information, including the name, authorized representative, mailing address, and phone number of the business organization for which trade secret protection exists. Unless the information is entitled to protection as a trade secret, information submitted to the department or uploaded on the Chemical Disclosure Registry is public information.

D. The operator understands that the director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical claimed to be a trade secret to additional department staff to the extent that such disclosure is necessary to assist the department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27 § 45.2-1629 of the Code of Virginia provided that such individuals shall not disseminate the information further. In addition, the director may disclose such information to any relevant state or local government official to assist in responding to the emergency. Any information so disclosed shall at all times be considered confidential and shall not be construed as publicly available. The director shall notify the trade secret claimant or holder of disclosures made to relevant state or local government officials as soon as practicable after such disclosure is made.

E. An operator may not withhold information related to chemical ingredients used in hydraulic fracturing, including information identified as a trade secret, from any health professional or emergency responder who needs the information for diagnostic, treatment, or other emergency response purposes subject to procedures set forth in 29 CFR 1910.1200(i). An operator shall provide directly to a health professional or emergency responder, all information in the person's possession that is required by the health professional or emergency responder, whether or not the information may qualify for trade secret protection under this section. The person disclosing information to a health professional or emergency responder shall include with the disclosure, as soon as circumstances permit, a statement of the health professional's confidentiality obligation. In an emergency situation, the operator shall provide the information immediately upon request to the person who determines that the information is necessary for emergency response or treatment. The disclosures required by this subsection shall be made in accordance with the procedures in 29 CFR 1910 with respect to a written statement of need and confidentiality agreements, as applicable.

4VAC25-150-410. Venting and flaring of gas; escape of oil.

A. It shall be unlawful for any permittee to allow crude oil or natural gas to escape from any well, gathering pipeline or storage tank except as provided for in this section or in an approved operations plan. The permittee shall take all reasonable steps to shut in the gas or oil in the well, or make the necessary repairs to the well, gathering pipeline or storage tank to prevent the escape. All actions shall be consistent with the requirements of an abatement plan, if any has been set, in a notice of violation or closure, emergency or other order issued by the director.

B. A permittee shall drill or repair a well with special diligence so that waste of gas or oil from the well shall not continue longer than reasonably necessary under the following circumstances:

1. When, during drilling, gas or oil is found in the well and the permittee desires to continue to search for gas or oil by drilling deeper; or

2. When making repairs to any well producing gas or oil, commonly known as cleaning out.

C. No gas shall be flared or vented from a well for more than seven days after completion of the well except in these circumstances:

1. When a well must be blown to remove accumulated formation fluid which has restricted efficient production, or the well must be otherwise cleaned out as provided for in subsection B of this section;

2. For the safety of mining operations;

3. For any activity excluded in the definition of "waste" under § 45.1-361.1 § 45.2-1600 of the Act; or

4. For any other operational reason approved in advance by the director.

D. In all cases where both gas and oil are found and produced from the same stratum, the permittee shall use special diligence to conserve and save as much of the gas as is reasonably possible.

E. Venting shall only be used when flaring is not safe or not feasible.

4VAC25-150-435. Plugging for abandonment or plug-back operations.

A. Permit requirements; variances.

1. Plugging operations shall not commence until a detailed plugging plan has been submitted to and approved by the director. A permit modification is required if the well was not previously permitted for plugging.

2. Any person may file an application with the director to replug a previously plugged well in any manner permissible under provisions of this section to facilitate the safe mining-through of the well at a later date. The application shall be treated in all respects like any other application for a permit under § 45.1-361.29 § 45.2-1631 of the Code of Virginia.

3. The director may, upon application by the permittee, approve a variance to the prescribed plugging methods for the following reasons if it is determined that the alternate plan meets the requirements of the Act:

a. The coal owner or operator requests a special plugging program to facilitate mine safety, mining through the well, or to obtain approval from another governmental agency for the safe mining-through of a well. The application for a variance must include documentation of the request from the coal owner or operator.

b. The permittee has obtained written authorization from the coal owner or operator for alternate plugging of the coal-bearing section. The application for a variance must include documentation of approval by the coal owner or operator.

c. Downhole conditions such as junk in the hole, a stuck or collapsed casing, caving or other adverse conditions which would prevent proper execution of the prescribed plugging methods.

d. A permittee presents an alternate plugging plan which may differ in method from that prescribed herein, but which will achieve the desired result.

B. Plugging in open hole. When a well or section of a well without casing is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. At a point approximately 20 feet above each oil, gas or water-bearing stratum in open hole, a plug shall be placed so as to completely seal the wellbore. Whenever two or more gas or oil stratum are not widely separated, they may be treated as a single stratum and plugged accordingly. Cement plugs shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of open hole bridge plugs.

2. At each coal seam, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly. This subsection applies only to coal seams which occur at a depth compatible with mining. Coal-bearing sections at greater depths may be plugged in accordance with subdivision B 1 of this section.

3. If a source of groundwater capable of having a beneficial use is exposed in open hole below surface (water-protection) casing, a cement plug at least 100 feet in length shall be placed below the base of the lowest such groundwater zone.

4. A cement plug of a minimum length of 100 feet shall be placed across the shoe of the surface (water-protection) casing. The plug shall be placed so as to have approximately equal lengths in open hole and inside casing. If the well is without surface casing, a continuous cement plug shall be placed from at least 50 feet below the base of the lowest known aquifer or 300 feet depth, whichever is deeper, to the surface.

5. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

C. Plugging in cased hole. When a cased hole or section of a cased hole is to be plugged or plugged back, it shall be sealed and filled as prescribed in this section.

1. All perforated intervals shall be either squeeze-cemented or otherwise isolated from the wellbore by suitable plugs placed across or immediately above the perforated interval. Cement plugs placed across perforations shall extend to at least 50 feet above the top perforations. A cement plug shall be placed to at least 50 feet above squeezed perforations. Cement plugs placed entirely above perforations shall be at least 100 feet in length. At least 20 feet of cement shall be placed on top of bridge plugs, cement retainers, or other tools left in the hole.

2. At each coal seam which is behind a properly installed and cemented coal-protection casing, a cement plug shall be placed from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. Whenever two or more coal seams are not widely separated, they may be treated as a single seam and plugged accordingly.

3. If casing is not to be pulled, and there is uncemented annulus behind the pipe, plugging shall be as follows:

a. Each oil, gas or water-bearing stratum present behind the pipe in an uncemented annulus must be isolated by perforating the casing at each zone and squeezing cement up into the zone, or circulating cement up the annulus such that a cement fill-up of not less than 100 feet is achieved. When squeezing or circulating the annulus, a cement plug of at least 50 feet shall be placed inside the casing above the perforations.

b. If the well penetrates a minable coal-bearing section, and no coal-protection casing was used, and if surface (water-protection) casing is either absent or not properly placed and cemented to surface, the production casing shall be converted to a coal-protection string by perforating at least 50 feet below the base of the lowest coal stratum, and circulating cement in the annulus from that point to the surface.

c. At each coal seam in a minable coal-bearing section which is protected by a properly installed and cemented coal-protection string, a cement plug shall be placed in casing from not less than 50 feet below the base of the coal to not less than 50 feet above the top of the coal. If there is uncemented annulus between the inner casing and the coal-protection string, the casing shall be perforated to allow cement to be circulated over the prescribed interval, and a plug of equal length shall be placed inside the inner casing.

d. If a fresh water aquifer is exposed to the wellbore in an uncemented annulus, it shall be isolated by perforating the casing at least 100 feet below the aquifer and squeezing cement into the annulus or circulating it up the annulus so that a fill-up of not less than 100 feet is achieved. When squeezing or circulating cement, a cement plug of at least 100 feet shall be placed inside the casing above the perforation.

e. At a point no less than 50 feet below the shoe of surface (water-protection) string, the casing shall be perforated and cement circulated up the annulus to a minimum fill-up of 100 feet. A plug of equal length shall be placed inside the casing.

f. From a point not less than 50 feet below surface, a cement plug shall be installed which reaches the surface. If any uncemented annuli are present at the surface, the voids should be filled and sealed to the greatest extent possible by introducing cement from the surface.

g. All intervals below and between plugs shall be filled with drilling mud, bentonite gel, or other appropriately weighted materials approved by the director.

4. If casing is to be pulled, plugging shall be as follows:

a. All perforated intervals shall be isolated as described in subdivision C 1 of this section.

b. Casing stubs shall be isolated by placing a plug across or above the cut-off point. Cement plugs shall be at least 100 feet in length and shall be placed so as to have approximately equal lengths inside and above the remnant casing. Permanent bridge plugs may be placed above the stub and shall be capped by at least 20 feet of cement.

D. Plugging operations involving uncemented water-protection casing or coal-protection casing.

1. If the annulus of the largest casing present across a minable coal-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing must be perforated at least 50 feet below the lowest coal seam, and cement circulated in the annulus to the surface (if water-protection casing is absent or not properly placed and cemented to surface), or to at least 100 feet above the highest coal (if the casing is to be partially pulled to facilitate plugging operations in the fresh water zone). Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and plugging shall proceed according to open hole requirements.

2. If the annulus of the largest casing present across the fresh-water-bearing section is not cemented across that section, then one of the two procedures listed below must be followed:

a. The casing shall be perforated below the lowest known fresh-water zone or at a minimum depth of 300 feet. Cement shall be circulated in the annulus to the surface. Plugging shall proceed according to cased hole requirements; or

b. The casing shall be pulled from the well, and a continuous cement plug shall be placed from below the base of the lowest known fresh-water aquifer exposed to the wellbore, or 300-foot depth, whichever is deeper, to the surface.

E. Unfillable cavities. When an unfillable cavity such as a cavern, mine void, blast stimulation zone or gob completion is encountered, the section shall be plugged as follows:

1. If the stratum with the unfillable cavities is the lowest gas or oil stratum in the well, a plug shall be placed at the nearest suitable point not less than 20 feet above the stratum. Cement plugs shall be at least 100 feet long, and at least 20 feet of cement shall be placed on top of bridge plugs.

2. If the stratum with unfillable cavities is above the lowest gas or oil stratum, a plug shall be placed below the stratum and shall extend to within 20 feet of its base. A plug shall also be placed above the stratum as described in subdivision E 1 of this section.

4VAC25-150-470. Release of bond.

A. Application for bond release.

A permittee desiring to have a bond released by the director shall apply in writing identifying the operation, and documenting that the well or disturbed land meets the requirements for partial or full bond release. A bond may be reduced or released by the director only in writing.

B. Partial bond release.

The portion of a permittee's bond covering disturbed land may be released as follows:

1. A permittee with an individual bond under § 45.1-361.31 A § 45.2-1633 of the Code of Virginia shall be eligible for release of the portion of the bond covering disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

2. A permittee with a blanket bond under § 45.1-361.31 B § 45.2-1633 of the Code of Virginia shall be eligible for release of 75% of the portion of the bond calculated on acreage of disturbed land after the land has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter.

C. Full bond release.

A permittee's bond or coverage of a well and land under a blanket bond is eligible for full release when:

1. A well has been plugged, the plugging affidavit has been submitted to the director and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

2. The well is abandoned as a water well in accordance with 4VAC25-150-440 of this chapter and the land under the bond has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter;

3. The well is abandoned as a vertical ventilation hole in accordance with 4VAC25-150-650 of this chapter and the land under the bond is permitted by the department's Division of Mined Land Reclamation Repurposing or has been successfully reclaimed to the standards of 4VAC25-150-260 of this chapter; or

4. Other bond has been accepted by the director.

4VAC25-150-480. Orphaned wells; right of entry.

A. Written consent from the owner of record or lessee, or their authorized agents, is the preferred means for obtaining agreements to enter lands in order to carry out plugging of orphaned wells and restoration of their sites. Nonconsensual entry under § 45.1- 361.27 § 45.2-1629 E of the Code of Virginia shall be undertaken only after reasonable efforts have been made to obtain written consent.

B. Consent and entry shall meet the following standards:

1. The director or authorized contractors may enter lands to perform plugging and restoration activities or to conduct studies or investigations of orphaned wells if consent from the owner is obtained.

2. If consent is not obtained, then, prior to entry under this section, the director shall find, in writing, with supporting reasons, that:

a. Citizens or the environment of the Commonwealth or persons involved in coal or mineral mining may be at risk from an orphaned well; and

b. The owner of the land where entry must be made to plug an orphaned well and restore the site is not known or readily available, or the owner will not give permission for the director or authorized contractors to enter to plug the orphaned well and reclaim the site.

C. If consent is not obtained, the director shall give notice of his intent to enter for the purposes of conducting plugging and restoration at least 30 days before entry into the property. The notice shall be in writing and shall be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one or more places on the property to be entered, where it is readily visible to the public. The notice posted on the property and the newspaper notice pursuant to § 45.1-361.40 § 45.2-1642 C of the Code of Virginia shall include a statement of where the findings required by this section may be inspected or obtained.

4VAC25-150-510. Plats, conventional wells or Class II injection wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a conventional gas or oil well shall show:

1. The boundaries of any drilling unit established by the board around the subject well;

2. The boundaries and acreage of the tract on which the well is located or is to be located;

3. The boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 500 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 500 feet of a proposed gas or oil well;

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well; and

9. If the plat is for an enhanced oil recovery injection well, any other well within 2,500 feet of the proposed or actual well location, which shall be presumed to embrace the entire area to be affected by an enhanced oil recovery injection well in the absence of a board order establishing units in the target pool of a different size or configuration.

B. If the well location is underlain by known coal seams, or if required by the director, the well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall in any event show all other wells, surface mines and mine openings within the scope of the plat.

4VAC25-150-560. Application for a permit, coalbed methane well operations.

In addition to the requirements of 4VAC25-150-80 or 4VAC25-150-110, every application for a permit or permit modification for a coalbed methane gas well shall contain:

1. An identification of the category of owner or operator, as listed in § 45.1-361.30 § 45.2-1632 A of the Code of Virginia, that each person notified of the application belongs to;

2. The signed consent required in § 45.1-361.29 § 45.2-1631 of the Code of Virginia;

3. Proof of conformance with any mine development plan in the vicinity of the proposed coalbed methane gas well, when the Virginia Gas and Oil Board has ordered such conformance;

4. The approximate depth to which the well is proposed to be drilled or deepened, or the actual depth if the well has been drilled;

5. The approximate depth and thickness, if applicable, of all known coal seams, known groundwater-bearing strata, and other known gas or oil strata between the surface and the depth to which the well is proposed to be drilled;

6. If casing or tubing is proposed to be or has been set, a description of the entire casing program, including the size of each string of pipe, the starting point and depth to which each string is to be or has been set, and the extent to which each string is to be or has been cemented together with any request for a variance under 4VAC25-150-580; and

7. The procedures to be followed to protect the safety of persons working in an underground coal mine for any coalbed methane well to be drilled within 200 feet of or into active workings. The permittee shall give notice of such drilling to the mine operator and the chief at least two working days prior to drilling.

4VAC25-150-590. Plats, coalbed methane wells.

A. In addition to the requirements of 4VAC25-150-90, every plat for a coalbed methane gas well shall show:

1. Boundaries and acreage of any drilling unit established by the board around the subject well;

2. Boundaries and acreage of the tract on which the well is located or is to be located;

3. Boundaries and acreage of all other tracts within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

4. Surface owners on the tract to be drilled and on all other tracts within the unit where the surface of the earth is to be disturbed;

5. All gas, oil or royalty owners on any tract located within one-half of the distance specified in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or within one-half of the distance to the nearest well completed in the same pool, whichever is less, or within the boundaries of a drilling unit established by the board around the subject well;

6. Coal owners and mineral owners on the tract to be drilled and on all other tracts located within 750 feet of the subject well location;

7. Coal operators who have registered operations plans with the department for activities located on the tract to be drilled, or who have applied for or obtained a coal mine license, coal surface mine permit or a coal exploration notice or permit from the department with respect to all tracts within 750 feet of a proposed gas or oil well; and

8. Any inhabited building, highway, railroad, stream, permitted surface mine or permitted mine opening within 500 feet of the proposed well.

B. The well plat shall locate the well and two permanent points or landmarks with reference to the mine coordinate system if one has been established for the area of the well location, and shall show all other wells within the scope of the plat.

4VAC25-150-620. Coalbed methane gas wellhead equipment.

Wellhead equipment and facilities installed on any gob well or on any coalbed methane gas well subject to the requirements of §§ 45.1-161.121 45.2-707 and 45.1-161.292 45.2-939 of the Code of Virginia addressing mining near or through a well shall include a safety precaution plan submitted to the director for approval. Such plans shall include, but shall not be limited to, flame arrestors, back-pressure systems, pressure-relief systems, vent systems and fire-fighting equipment. The director may require additional safety precautions or equipment to be installed on a case-by-case basis.

4VAC25-160-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Applicant" means a person or business who files an application, petition, appeal or other request with the Division of Gas and Oil.

"Board" means the Virginia Gas and Oil Board.

"Complete application" means all the materials required to be filed by the applicant under this chapter.

"Department" means the Department of Mines, Minerals and Energy.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Directional survey" means a well survey that measures the degree of deviation of a hole, or distance, from the vertical and the direction of departure.

"Division" means the Division of Gas and Oil of the Department of Mines, Minerals and Energy.

"Division director" means the Director of the Division of Gas and Oil.

"Election" means the performance of an act within the time established or required by statute, order or regulation. An election required to be made by board order or regulation must be in writing and (i) be personally delivered to the person or agent of the person described in the order or regulation by the date established or required, or (ii) be mailed to the person or agent of the person described in the order or regulation at the address stated therein and be postmarked by the United States Postal Service before midnight on the date established or required.

"Field" means the general area underlain by one or more pools.

"Gas/oil ratio" means the product of the number of Mcf of natural gas produced from a well divided by the number of barrels of oil produced from the well as determined by a gas/oil ratio test.

"Gas well" means any well which produces or appears capable of producing a ratio of 6,000 cubic feet (6 Mcf) of gas or more to each barrel of oil, on the basis of a gas-oil ratio test.

"Inclination survey" means a well survey to determine the deviation, using the surface location of the well as the apex, of a well bore from the true vertical beneath the apex on the same horizontal subsurface plane.

"Mcf" means, when used with reference to natural gas, 1,000 cubic feet of gas at a pressure base of 14.73 pounds per square inch gauge and a temperature base of 60°F.

"Mine development plan" means a permit or license application filed with the Division of Mines or Mined Land Reclamation Repurposing for legal permission to engage in extraction of coal resources.

"Oil well" means any well which produces or appears capable of producing a ratio of less than 6,000 cubic feet (6 Mcf) of gas to each barrel of oil, on the basis of a gas-oil ratio test.

"Petitioner" means any person or business who files a petition, appeal, or other request for action with the Division of Gas and Oil or the Virginia Gas and Oil Board.

"Pooling" means the combining of all interests or estates in a gas, oil or coalbed methane drilling unit for the development and operations thereof. Pooling may be accomplished either through voluntary agreement or through a compulsory order of the board.

"Respondent" means a person named in an application, petition, appeal or other request for board action and against whom relief is sought by the applicant, or a person who under the terms of a board order, is required to make an election.

"Unit operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-160-20. Authority and applicability.

A. This chapter is promulgated by the Virginia Gas and Oil board pursuant to § 45.1-361.15 § 45.2-1614 of the Code of Virginia.

B. As provided for in the Virginia Acts of Assembly, 1990, Chapter 92, all All field rules and orders issued pursuant to the provisions of the Oil and Gas Act of 1982, Chapter 22 (§ 45.1- 286 et seq.) of Title 45.1 of the Code of Virginia shall remain in force and effect until modified or revoked pursuant to the provisions of the Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia. The requirements of this chapter are in addition to requirements of field rules and orders.

4VAC25-160-30. Administrative provisions.

A. The Virginia Gas and Oil Board shall meet on the third Tuesday of each calendar month unless no action is required by the board or unless otherwise scheduled by the board. All hearings shall be scheduled in accordance with the requirements for notice by publication in § 45.1-361.19 § 45.2-1618 of the Code of Virginia. Except where otherwise established by the Act, the board may establish deadlines for filing materials for meetings or hearings scheduled on other than the third Tuesday of each month. Except where otherwise established by the Act, filings shall be in electronic form or a format prescribed by the board.

B. Applications to the board must be filed by the following deadlines:

1. All applications, petitions, appeals or other requests for board action must be received by the division at least 30 calendar days prior to the regularly scheduled meeting of the board. If the 30th day falls on a weekend or a legal holiday, the deadline shall be the prior business day.

2. When required, the following material must be filed with the division at least seven calendar days prior to the regularly scheduled meeting of the board in order for the application to be considered a complete application:

a. The affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

b. Proof of notice by publication in accordance with 4VAC25-160-40 D.

C. A complete application that is not filed by the deadlines of this subsection shall be carried over to the next scheduled meeting of the board. A submission that does not contain a complete application shall not be considered by the board until the application is complete.

D. The division shall assign a docket number to each application or petition at the time of payment receipt and filing. The division shall notify the applicant of the completed filing and assigned docket number. The docket number shall be referenced when submitting material regarding the application or petition.

E. In addition to the other requirements of this chapter, applications to the board shall meet the following standards:

1. Each application for a hearing before the board shall be headed by a caption, which shall contain a heading including:

a. "Before the Virginia Gas and Oil Board";

b. The name of the applicant;

c. The relief sought; and

d. The docket number assigned by the division.

2. Each application shall be signed by the applicant, an authorized agent of the applicant, or an attorney for the applicant, certifying that, "The foregoing application to the best of my knowledge, information, and belief is true and correct."

3. Exhibits shall be identified by the docket number and an exhibit number and may be introduced as part of a person's presentation.

4. Applicants shall submit a copy of each application and exhibits. Each person offering exhibits into evidence shall also have available a reasonably sufficient number of exhibits for other persons who are subject to the provisions of §§ 45.1-361.19 45.2-1618 and 45.1-361.23 45.2-1625 of the Code of Virginia, who have notified the division of their request for copies of exhibits, and are expected to be in attendance at the hearing.

F. Applications for the establishment and modification of a unit, spacing or pooling shall be accompanied by a $130 nonrefundable fee, payable to the Treasurer of Virginia.

G. All parties in any proceeding before the board are entitled to appear in person or be represented by counsel, as provided for in the Administrative Process Act, § 2.2-4000 et seq. of the Code of Virginia.

4VAC25-160-40. Notice of hearings.

A. Each applicant for a hearing to establish an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia shall provide notice by electronic mail, by certified mail, return receipt requested, or by another commercial carrier including Federal Express and United Parcel Service, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 § 45.2-1616 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less. Each applicant for a hearing to establish an exception to a well location provided for in a drilling unit established by an order of the board shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying the unit where the exception is requested.

B. Each applicant shall include, in or with the mailed notice of the hearing required under § 45.1-361.19 § 45.2-1618 of the Code of Virginia, the following information:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or proposed order;

4. Citations of statutes, rules, orders and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. a. For a pooling order, the notice should include: a plat showing the size and shape of the proposed unit and boundaries of tracts within the unit. The location of the proposed unit shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. The plat shall include property lines taken from (i) deed descriptions and chain of title, (ii) county courthouse records, or (iii) a physical survey for each land track in the unit. The location of the well and the percentage of acreage in each tract in the unit shall be certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

b. For a field rule, the notice should include: a description of the pool or pools in the field, the boundaries of the field, information on the acreage and boundaries of the units proposed to be in the field and any proposed allowable production rates; or

c. For a location exception, the notice should include: a description of the proposed well location in relation to other wells within statewide spacing limits or in relation to the allowable area for drilling within a unit;

7. A description of the interest or claim of the respondent being notified;

8. A description of the formation or formations to be produced;

9. An estimate of the amount of reserves of the unit;

10. An estimate of the allowable costs in accordance with 4VAC25-160-100; and

11. How interested persons may obtain additional information or a complete copy of the application.

C. When after a diligent search the identity or location of any person to whom notice is required to be given in accordance with subsection A or B of this section is unknown at the time the applicant applies for a hearing before the board, the applicant for the hearing shall cause a notice to be published in a newspaper of general circulation in the county, counties, city, or cities where the land or the major portion thereof which is the subject of the application is located. The notice shall include:

1. The name and address of the applicant;

2. A description of the action to be considered by the board;

3. A map showing the general location of the area that would be affected by the proposed action or a description that clearly describes the location or boundaries of the area that would be affected by the proposed action sufficient to enable local residents to identify the area;

4. The date, time and location of the hearing at which the application is scheduled to be heard; and

5. How interested persons may obtain additional information or a complete copy of the application.

D. Notice of a hearing made in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia or this section shall be sufficient, and no additional notice is required to be made by the applicant upon a postponement or continuance of the hearing.

E. Each applicant for a hearing to modify an order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each person having an interest underlying the tract or tracts to be affected by the proposed modification.

F. An applicant filing a petition to modify a forced pooling order established under § 45.1-361.21 § 45.2-1620 or § 45.1-361.22 § 45.2-1622 of the Code of Virginia to change the unit operator based on a change in the corporate name of the unit operator; a change in the corporate structure of the unit operator; or a transfer of the unit operator's interests to any single subsidiary, parent or successor by merger or consolidation is not required to provide notice. Other applicants for a hearing to modify a forced pooling order shall provide notice in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia to each respondent named in the order to be modified whose interest may be affected by the proposed modification.

4VAC25-160-50. Applications for field rules.

Each application filed under § 45.1-361.20 § 45.2-1619 of the Code of Virginia to establish or modify a field rule, a drilling unit or drilling units shall contain:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and the proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. In the case where a field rule is proposed to be established or modified:

a. A statement of the type of field (gas, oil or coalbed methane gas);

b. A description of the proposed formation or formations subject to the petition; and

c. A description of the pool or pools included in the field, based on geological and technical data, including the boundaries of the pool or pools and field, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System;

6. In the case where a drilling unit or units are proposed to be established or modified:

a. A statement of the acreage to be embraced within each drilling unit;

b. A description of the formation or formations to be produced by the well or wells in the unit or units; and

c. The boundaries of the drilling unit or units shown in accordance with subdivision 5 c of this section;

7. A statement of the amount of acreage to be included in the order;

8. A statement of the proposed allowable production rate or rates and supporting documentation, if applicable;

9. Evidence that any proposal to establish or modify a unit or units for coalbed methane gas will meet the requirements of § 45.1-361.20 § 45.2-1619 of the Code of Virginia;

10. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40; and

11. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-60. Applications for exceptions to minimum well spacing requirements.

Applications for an exception to statewide spacing under § 45.1-361.17 § 45.2-1616 of the Code of Virginia or under a field rule issued by the board shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application for an exception to spacing established in a field rule, identification of the order governing spacing in the field;

3. A statement of the proposed location of the well in relation to wells permitted or for which a permit application is pending before the Division of Gas and Oil at the time of filing within the distances prescribed in § 45.1-361.17 § 45.2-1616 of the Code of Virginia;

4. A description of the formation or formations to be produced by the well proposed for alternative spacing and the wells identified in subdivision 3 of this section;

5. A description of the conditions justifying the alternative spacing;

6. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with 4VAC25-160-40; and

7. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

4VAC25-160-70. Applications to pool interests in a drilling unit: conventional gas or oil or no conflicting claims to coalbed methane gas ownership.

A. Applications filed under § 45.1-361.21 § 45.2-1620 of the Code of Virginia to pool interests in a drilling unit for conventional gas or oil or for coalbed methane gas where there are no conflicting claims to ownership of the coalbed methane gas, except as provided for in subsection B of this section, shall contain the following:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or a proposed order;

4. Citations of statutes, rules, orders, and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. The permit number or numbers, if any have been issued;

7. A plat showing the size and shape of the proposed unit and boundaries of tracts within the unit, shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia, also known as the State Plane Coordinate System. Also included shall be the names of owners of record of the tracts, and the percentage of acreage in each tract, certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

8. A description of the status of interests to be pooled in the unit at the time the application is filed;

9. For an application to pool a coalbed methane gas unit, a statement of the percentage of the total interest held by the applicant in the proposed unit at the time the application for the hearing is filed;

10. A statement of the names of owners and the percentage of interests to be escrowed under § 45.1-361.21 D § 45.2-1620 of the Code of Virginia for each owner whose location is unknown at the time the application for the hearing is filed;

11. A description of the formation or formations to be produced;

12. An estimate of production over the life of well or wells, and, if different, an estimate of the recoverable reserves of the unit;

13. An estimate of the allowable costs in accordance with 4VAC25-160-100;

14. An affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 § 45.2-1618 of the Code of Virginia and 4VAC25-160-40 C; and

15. When required, proof of notice by publication in accordance with 4VAC25-160-40 C.

B. Applications to amend an order pooling interests in a drilling unit may be filed by written stipulation of all persons affected. The application is not required to contain the information specified in subsection A of this section, but shall contain the proposed amended language to the order, shown by interlineation.

C. Within 45 days after the time for election provided in any pooling order has expired, the unit operator shall file an affidavit with the board stating whether or not any elections were made. If any elections were made, the affidavit shall name each respondent making an election and describe the election made. The affidavit shall state if no elections were made or if any response was untimely. The affidavit shall be accompanied by a proposed supplemental order to be made and recorded to complete the record regarding elections. The affidavit and proposed supplemental order shall be filed by the unit operator within 45 days of the last day on which a timely election could have been delivered or mailed, or within 45 days of the last date for payment set forth in the pooling order, whichever occurs last. The applicant shall mail a true and correct copy of any supplemental order to all persons identified in the supplemental order.

4VAC25-160-80. Applications to pool interests in a drilling unit: conflicting claims to coalbed methane gas ownership.

In addition to the information required in 4VAC25-160-70 of this chapter, applications filed under § 45.1-361.22 § 45.2-1622 of the Code of Virginia to pool interests in a drilling unit for coalbed methane gas where there are conflicting claims to ownership of the coalbed methane gas shall contain a description of the conflicting ownership claims and the percentage of interests to be escrowed for the conflicting claims, and a plan for escrowing the costs of drilling and operating the well or wells and the proceeds from the well or wells attributable to the conflicting interests.

4VAC25-160-100. Allowable cost which may be shared in pooled gas or oil operations.

A. The unit operator of a pooled unit may share all reasonable costs of operating the unit, including a reasonable supervision fee, with other participating and nonparticipating operators, as provided for in § 45.1-361.21 § 45.2-1620 of the Code of Virginia, which may include:

1. Direct costs:

a. Ecological and environmental;

b. Rentals and royalties;

c. Labor;

d. Employee benefits;

e. Material;

f. Transportation;

g. Services;

h. Equipment and facilities furnished by the unit operator;

i. Damages and losses to joint property;

j. Legal expenses;

k. Taxes;

l. Insurance;

m. Abandonment and reclamation;

n. Communications; and

o. Other expenditures.

2. Indirect charges:

a. Drilling and production operations;

b. Major construction; and

c. Catastrophe.

B. Where there are conflicting royalty claims to coalbed methane gas, the unit operator of a forced pooled coalbed methane gas unit shall deposit proceeds in accordance with § 45.1-361.22 § 45.2-1622 of the Code of Virginia, to be determined at the wellhead.

C. Where there are conflicting claims and one or more persons have elected to become participating or nonparticipating operators, the unit operator of a forced pooled coalbed methane gas unit shall escrow net proceeds after deduction for royalty and other costs consistent with the terms of this chapter and the board's order regarding the unit.

D. In any dispute which may arise regarding a unit operator's costs, the unit operator shall be entitled to the benefit of a presumption of reasonableness where it is shown that the types of costs being disputed are, by custom and practice, customary and usual within the industry. The unit operator shall not be entitled to a presumption of reasonableness of the amount of the costs being disputed.

E. Unless one or more respondents elect to participate or elect to be a nonparticipating operator on a carried basis, the unit operator shall have no obligation to report costs after the expiration of the election period.

4VAC25-160-120. Applications to change the unit operator for a unit established by order of the board.

A. Transfer of the right to operate a unit established by the board must be approved by the board prior to the transfer of unit operations to a new operator.

1. For a voluntary transfer, the proposed new unit operator shall file written notification of the proposed transfer of operations.

2. An involuntary transfer may be requested by an applicant or considered by the board on its own motion if the unit operator has not continued gas or oil operations of the unit with due diligence, or the permit for any well in the unit has been revoked by the department.

B. The request for a transfer shall include:

1. The name and address of the existing unit operator;

2. The name and address of the proposed new unit operator;

3. Written approval from the existing unit operator, or a detailed statement of the facts supporting the removal of the existing operator; and

4. Identification of the order to be amended.

C. The notice of the board hearing shall be provided under § 45.1-361.19 B § 45.2-1618 of the Code of Virginia.

4VAC25-160-130. Appeals of the director's decisions.

A. Appeals of the division director's decisions shall be filed in writing, at the office of the division, in accordance with §§ 45.1-361.23 45.2-1625 and 45.1-361.36 45.2-1637 of the Code of Virginia.

B. A petition to appeal a decision of the division director shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. Identification of the decision being appealed, and the date the decision was issued;

3. A statement identifying the standing of the petitioner to appeal;

4. A statement setting forth the reasons for the appeal, including errors alleged in the director's decision and the reasons why the decision is deemed contrary to law or regulation;

5. A statement that the issues on appeal were in fact raised as required by § 45.1-361.36 B § 45.2-1637 of the Code of Virginia;

6. A statement setting forth the specific relief requested; and

7. When a stay to any proposed activity allowed as a result of the director's decision is desired, a request for the stay and the basis for granting the stay.

C. Upon receipt of an appeal containing a request for a stay, the division director shall decide on the request in accordance with § 45.1-361.23 D § 45.2-1625 of the Code of Virginia.

4VAC25-160-140. Miscellaneous petitions to the board.

A. Any petition to the board not otherwise provided for in this chapter shall be made in writing, and shall contain:

1. The name and address of the petitioner and the petitioner's counsel, if any;

2. The names and addresses of any persons who are named as respondents in the petition;

3. An affidavit that notice has been given to each respondent, if any, named in the petition;

4. A statement of the issues of the petition; and

5. A statement setting forth the specific relief requested.

B. If a petitioner for a unit under § 45.1-361.17 § 45.2-1616 or § 45.1-361.22 § 45.2-1622 fails to provide notification to an owner of interest of any part of a unit subject to a petition before the board, then such party may file a written objection to the proceedings in the form of a petition as set out in subsection A of this section. Such petition does not require the submission of an application fee as required in 4VAC25-160-30 F.

4VAC25-160-150. Effective dates for and enforcement of board orders.

A. All orders issued by the board under § 45.1-361.20 § 45.2-1619 of the Code of Virginia shall remain in effect until vacated or amended by the board on its own motion or on application from an owner or operator in the field or unit subject to the order.

B. Unless otherwise provided in the board order, all orders issued by the board under §§ 45.1-361.21 45.2-1620 and 45.1-361.22 45.2-1622 of the Code of Virginia shall remain in effect:

1. For a period of two years from the date of issuance of the board order;

2. If a permit has been issued for a well in a unit subject to the order, until the permit or permits have expired or been released on the well or wells; or

3. Until vacated or amended by the board on its own motion or on application.

C. In the event that an appeal is taken from any order of the board, the time between the filing of the petition for appeal and the final order of the circuit court shall be excluded in calculating the time period as contained in subsection B of this section.

D. All orders of the board shall be enforced by the director pursuant to the process set out in this chapter and § 45.1-361.24 § 45.2-1626 of the Code of Virginia.

4VAC25-160-190. Civil charges.

A. Civil charges shall be provided for in accordance with § 45.1-361.8 C § 45.2-1608 of the Code of Virginia.

B. The division director, after finding any violation of the Act, a regulation promulgated under the Act, or order of the director or board, or upon direction from the board, may recommend a civil charge against a gas, oil or geophysical operator and shall base the recommendation on the Civil Charge Calculation Procedure established by order of the board.

4VAC25-160-200. Surveys and tests.

A. Deviation tests.

1. An inclination survey shall be made on all rotary drilled wells located in accordance with a field rule established by the board. An inclination survey is not required for wells drilled in accordance with the distance limitations of § 45.1-361.17 § 45.2-1616 of the Code of Virginia.

2. The first shot point shall be at a depth not greater than the bottom of the surface casing or, for a well drilled through a coal seam, at a depth not greater than that of the bottom of the coal protection string. Succeeding shot points shall be no more than 1,000 feet apart, or as otherwise ordered by the director.

3. Inclination surveys conforming to these requirements may be made either during the normal course of drilling or after the well has reached total depth. Survey data shall be certified in writing as being true and correct by the designated agent or person in charge of a permittee's Virginia operations, or the drilling contractor, and shall indicate the resultant lateral deviation as the maximum calculated lateral displacement determined at any inclination survey point in a horizon approved for production, by an order of the board or a permit approved by the director, assuming that all displacement occurs in the direction of the nearest boundary of the unit. The resultant lateral deviation shall be recorded on the drilling or completion report filed by the permittee.

4. If a directional survey determining the location of the bottom of the hole is filed upon completion of the well, it shall not be necessary to file the inclination survey data.

5. A directional survey shall be made when:

a. A well is directionally controlled and is thereby intentionally deflected from vertical;

b. The resultant lateral deviation of any well, calculated from inclination survey data, is greater than the distance from the center of the surface location of the well bore to the nearest boundary of the area where drilling is allowed in a unit established by the board; or

c. A well is drilled as an exception location and a directional survey is ordered by the board.

6. The board or the director, on their own initiative or at the request of a gas or oil owner on a contiguous unit or tract, may require the permittee drilling any well to make a directional survey of the well if there is reasonable cause therefor. Whenever a survey is required by the board or the director at the request of a contiguous owner and the permittee of the well and contiguous owner are unable to agree as to the terms and conditions for making the directional survey, the permittee shall pay for the survey if the bottom hole location is found to be outside of the area approved for drilling, and the contiguous owner shall pay for the survey if the bottom hole location is found to be inside of the area approved for drilling.

7. Directional surveys shall be run from total depth to the base of the surface casing or coal protection string, unless otherwise approved by the board or the director. In the event that the proposed or final location of the producing interval or intervals of any well is not in accordance with this section or a board order, the unit operator shall apply to the board for an exception to spacing. However, directional surveys to total depth shall not be required in cases where the interval below the latest survey is less than 500 feet, and in such an instance, a projection of the latest survey shall be deemed to satisfy board requirements.

8. The results of each inclination or directional survey made in accordance with this section shall be filed by the permittee with the first drilling or completion report required by the division.

B. Flow potential and gas/oil ratio tests: conventional gas or oil wells.

1. If a gas or oil well appears capable of producing gas or oil, the permittee shall conduct a potential flow test and a gas/oil ratio test within 14 days after the well is completed and capable of producing gas or oil. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

2. If a permittee deepens or stimulates a well after the initial potential flow test and gas/oil ratio test have been conducted, when determined to be necessary by the permittee or when requested by the board, the permittee shall conduct another potential flow test and gas/oil ratio test and, within 30 days after completing the test, file the results, in writing, with the division.

3. A back-flow method of determining open flow shall be used, such as recommended by the Interstate Oil and Gas Compact Commission, "Manual of Back-Pressure Testing of Gas Wells," 2000. However, when a back-flow method is believed not to be feasible, the permittee shall obtain prior approval from the division, and test the well in accordance with, an alternate method approved by the director that does not entail excessive physical waste of gas.

C. Testing of coalbed methane gas wells. If a permittee cannot test the potential flow of a coalbed methane gas well by a back-flow method or complete the test within the time period required in subdivision B 1 of this section, the permittee may request approval from the director to perform a coalbed methane gas production test. Such a test shall only be made when the water production and the gas flow rates are stabilized for a period of not less than 14 days prior to the test. The test shall be conducted for a minimum of 24 hours in the manner approved by the director. The permittee shall file the test results, electronically or in writing, with the division. The division director shall hold the test results confidential in accordance with § 45.1-361.6 § 45.2-1606 of the Code of Virginia.

D. The board may, by order and after notice and hearing, require a permittee to complete other tests on any well.

4VAC25-165-10. Definitions.

The following words and terms when used in this regulation shall have the following meanings unless the context clearly indicates otherwise.

"Accrued interest" means funds accrued during the preceding 36 months on total proceeds held in the general escrow account. Accrued interest does not include escrow account fees or administrative costs of the board related to the general escrow account.

"Act" means the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia.

"Arbitrator" means a qualified individual appointed by a court to render a determination in an ownership dispute concerning coalbed methane gas.

"Board" means the Virginia Gas and Oil Board.

"Claimant" means a person or entity in a dispute over ownership of coalbed methane gas who has agreed to arbitration to resolve the dispute.

"Court" means a circuit court in the Commonwealth of Virginia wherein the majority of the subject tract of land is located.

"Department" means the Department of Mines, Minerals and Energy.

"Escrow account" means the account established by the board pursuant to § 45.1-361.21 § 45.2-1620 and subdivision 2 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

"Ex parte communication" means any form of communication between an arbitrator and a claimant without the presence of the opposing claimant.

"Operator" means the gas or oil owner designated by the board to operate in or on a pooled unit.

4VAC25-165-30. Qualification of arbitrators.

The department shall review all applications from potential arbitrators pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia. Applications shall be submitted on a form prescribed by the department. In order to qualify, applicants must demonstrate substantial expertise in mineral title examination. Substantial expertise shall be determined on an individual basis. The department shall notify applicants deemed to be qualified.

The department shall maintain a list of qualified arbitrators and update it annually. The list shall be supplied to the court when the board issues an order for arbitration. Pursuant to § 45.1-361.22:1 C § 45.2-1623 of the Code of Virginia, the court has the discretion to appoint an individual not on the list of qualified arbitrators.

In order to maintain a current, accurate list, qualified arbitrators shall at least annually update their disclosures to the department.

4VAC25-165-40. Agreement to arbitrate.

Claimants shall submit their request of arbitration to the board on a form prescribed by the department. Claimants shall also provide an affidavit pursuant to § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia.

4VAC25-165-50. Conflicts of interest.

In addition to the limitations set forth in § 45.1-361.22:1 A § 45.2-1623 of the Code of Virginia, an arbitrator may not hear an arbitration if the arbitrator is related to one of the claimants, has a personal interest in the subject of the arbitration, or if other circumstances exist that might affect the arbitrator's ability to render a fair determination. If evidence of a conflict exists under this section, a claimant may petition the court to appoint a different arbitrator.

4VAC25-165-60. Location.

The arbitrator shall determine an appropriate time and place for the arbitration. The arbitration shall take place in the jurisdiction where the majority of the subject tract is located, unless all claimants agree to an alternate location. Notice to claimants shall be given pursuant to the requirements of § 45.1-361.22:1 D § 45.2-1623 of the Code of Virginia.

4VAC25-165-80. Discovery.

Pursuant to §§ 8.01-581.06 and 45.1-361.22:1 D 45.2-1623 of the Code of Virginia, the arbitrator may issue subpoenas, administer oaths, and take depositions. Additionally, any documents a claimant intends to introduce at the arbitration must be shared with the opposing claimant and the arbitrator not less than five days prior to the arbitration. If this provision is found not to be met, the arbitrator may elect to continue the arbitration.

4VAC25-165-90. Extension of arbitration.

If, pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the claimants agree that the arbitrator may take longer than six months from the date the board ordered the arbitration to render a determination, the arbitrator shall notify the board of this extension.

4VAC25-165-100. Determination of arbitrator.

Pursuant to § 45.1-361.22:1 E § 45.2-1623 of the Code of Virginia, the determination of the arbitrator shall be in writing and sent to the board and each party to whom notice is required to be given. The determination shall include, at a minimum, a finding of facts and an explanation for the basis of the determination. A copy of the determination shall be placed on the department's website. The arbitrator shall record the determination with the clerk's office of the court.

4VAC25-165-120. Fees.

Arbitrators shall be paid at the rate of no more than $250 per hour. Expenses of the arbitrator incurred during the course of the arbitration shall be reimbursed in accordance with the State Travel Regulations prescribed by the Department of Accounts. Arbitrators shall submit a complete W-9 form to the department before payment is made.

Pursuant to § 45.1-361.22:1 F § 45.2-1623 of the Code of Virginia, payment of fees and expenses of the arbitration may be delayed if there are intervening disbursements from the general escrow account under subdivision 5 (i) or (iii) of § 45.1-361.22 § 45.2-1623 of the Code of Virginia that reduce the interest balance below the amount of fees and expenses requested.

4VAC25-165-130. Disbursement of proceeds.

Within 30 days of receipt of an affidavit from the claimants affirming the determination, the operator shall petition the board for disbursement pursuant to subdivision 5 of § 45.1-361.22 § 45.2-1622 of the Code of Virginia.

4VAC25-170-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bottom hole temperature" means the highest temperature measured in the well or bore hole. It is normally attained directly adjacent to the producing zone, and commonly at or near the bottom of the borehole.

"Casing" means all pipe set in wells.

"Conservation" means the preservation of geothermal resources from loss, waste, or harm.

"Correlative rights" means the mutual right of each overlying owner in a geothermal area to produce without waste a just and equitable share of the geothermal resources. Just and equitable shares shall be apportioned according to a ratio of the overlying acreage in a tract to the total acreage included in the geothermal area.

"Department" means the Virginia Department of Mines, Minerals and Energy.

"Designated agent" means that person appointed by the owner or operator of any geothermal resource well to represent him.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

"Division director" means the Director of the Division of Gas and Oil, also known as the Gas and Oil Inspector as defined in the Virginia Gas and Oil Act of 1990, Chapter 22.1 16 (§ 45.1-361.1 § 45.2-1600 et seq.) of Title 45.1 45.2 of the Code of Virginia or his authorized agent.

"Drilling log" means the written record progressively describing all strata, water, minerals, geothermal resources, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, caving strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include the downhole geophysical survey records or logs if any are made.

"Exploratory well" means an existing well or a well drilled solely for temperature observation purposes preliminary to filing an application for a production or injection well permit.

"Geothermal area" means the general land area that is underlaid or reasonably appears to be underlaid by geothermal resources in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the department.

"Geothermal energy" means the usable energy produced or that can be produced from geothermal resources.

"Geothermal reservoir" means the rock, strata, or fractures within the earth from which natural or injected geothermal fluids are obtained.

"Geothermal resource" means the natural heat of the earth at temperatures 70°F or above with volumetric rates of 100 gallons per minute or greater and the energy, in whatever form, present in, associated with, or created by, or that may be extracted from, that natural heat. This definition does not include ground heat or groundwater resources at lower temperatures and rates that may be used in association with heat pump installations.

"Geothermal waste" means any loss or escape of geothermal energy, including, but not limited to:

1. Underground loss resulting from the inefficient, excessive, or improper use or dissipation of geothermal energy; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner that results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in Virginia; provided, however, that unavoidable dissipation of geothermal energy resulting from oil and gas exploration and production shall not be construed to be geothermal waste.

2. The inefficient above-ground transportation and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy.

3. The escape into the open air of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.

"Geothermal well" means any well drilled for the discovery or production of geothermal resources, any well reasonably presumed to contain geothermal resources, or any special well, converted producing well, or reactivated or converted abandoned well employed for reinjecting geothermal resources.

"Injection well" means a well drilled or converted for the specific use of injecting waste geothermal fluids back into a geothermal production zone for disposal, reservoir pressure maintenance, or augmentation of reservoir fluids.

"Monitoring well" means a well used to measure the effects of geothermal production on the quantity and quality of a potable groundwater aquifer.

"Operator" means any person drilling, maintaining, operating, producing, or in control of any well, and shall include the owner when any well is operated or has been operated or is about to be operated by or under the direction of the owner.

"Owner" means the overlying property owner or lessee who has the right to drill into, produce, and appropriate from any geothermal area.

"Permit" means a document issued by the department pursuant to this chapter for the construction and operation of any geothermal exploration, production, or injection well.

"Person" means any individual natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state or the federal government, any municipal or quasi-municipal entity whether or not it is incorporated, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind.

"Production casing" means the main casing string which protects the sidewalls of the well against collapse and conducts geothermal fluid to the surface.

"Production record" means written accounts of a geothermal well's volumetric rate, pressure and temperature, and geothermal fluid quality.

"Sequential utilization" means application of the geothermal resource to a use with the highest heat need and the subsequent channeling of the resource to other uses with lower temperature requirements before injection or disposal of the geothermal fluid.

"Unitized drilling operation" means the management of separately owned tracts overlying a geothermal area as a single drilling unit.

"Water protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-170-30. Bonds, permits and fees.

A. 1. Before any person shall engage in drilling for geothermal resources or construction of a geothermal well in Virginia, such person shall give bond with surety acceptable to the division director and payable to the Commonwealth. At the election of the permit applicant, a cash bond may be given. The amount of bond required shall be sufficient to cover the costs of properly plugging the well and restoring the site, but in no case shall the amount of bond be less than $10,000 for each exploratory and injection well, and $25,000 for each production well. Blanket bonds of $100,000 may be granted at the discretion of the division director.

2. The return of such bonds shall be conditioned on the following requirements:

a. Compliance with all statutes, rules, and regulations relating to geothermal regulations and the permit.

b. Plugging and abandoning the well as approved by the division director in accordance with 4VAC25-170-80.

3. A land stabilization bond of $1,000 per acre of land disturbed shall be required. Such bond will be released once drilling is completed and the land is reclaimed in accordance with 4VAC25-170-40.

4. Liability under any bond may not be terminated without written approval of the division director.

B. Each exploration, production, and injection well permit application shall be accompanied by payment of a $600 application fee.

1. Applications will not be reviewed until the operator or designated agent submits proof of compliance with all pertinent local ordinances.

Before commencement of exploratory drilling operations on any tract of land, the operator or designated agent shall file an exploration permit application with the department. An accurate map of the proposed wells on an appropriate scale showing adjoining property lines and the proposed locations using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and the depths and surface elevations shall be filed with the application. The application also shall include an inventory of local water resources in the area of proposed development.

2. Before commencement of production or injection well drilling, an application to produce and inject geothermal fluids shall be filed in the form of a notice of intent to proceed in accordance with the provisions of 4VAC25-170-40.

3. New permit applications must be submitted if, either prior to or during drilling, the operator desires to change the location of a proposed well. If the new location is within the boundaries established by the permit or within an unitized drilling operation, the application may be made orally and the division director may orally authorize the commencement or continuance of drilling operations. Within 10 days after obtaining oral authorization, the operator shall file a new application to drill at the new location. A permit may be issued and the old permit canceled without payment of additional fee. If the new location is located outside the unitized drilling unit covered by the first permit, no drilling shall be commenced or continued until the new permit is issued.

4. All applications, requests, maps, reports, records, notices, filings, submissions, and other data (including report forms) required by or submitted to the department shall be in electronic form or a format prescribed by the director.

5. The department will act on all permit applications within 30 days of receipt of an application or as soon thereafter as practical.

4VAC25-170-40. Notification of intent to proceed.

The notification of intent to proceed with geothermal production or injection as required by 4VAC25-170-30 must be accompanied by (i) an operations plan, (ii) a geothermal fluid analysis, and (iii) a proposal for injection of spent fluids.

1. The operations plan shall become part of the terms and conditions of any permit that is issued, and the provisions of this plan shall be carried out where applicable in the drilling, production, and abandonment phase of the operation. The department may require any changes in the operations plan necessary to promote geothermal and water resource conservation and management, prevent waste, protect potable groundwater drinking supplies, or protect the environment, including a requirement for injection or unitization. The operations plan shall include the following information:

a. An accurate plat or map, on a scale not smaller than 400 feet to the inch, showing the proposed location using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 § 1-600 of the Code of Virginia), and surface elevation of the production and injection wells as determined by survey, the courses and distances of such locations from two permanent points or landmarks on said tract, the well numbers, the name of the owner, the boundaries and acreage of the tract on which the wells are to be drilled, the location of water wells, surface bodies of water, actual or proposed access roads, other production and injection wells on adjoining tracts, the names of the owners of all adjoining tracts and of any other tract within 500 feet of the proposed location, and any building, highway, railroad, stream, oil or gas well, mine openings or workings, or quarry within 500 feet of the proposed location. The location must be surveyed and the plat certified by a professional engineer or registered surveyor and bear his certificate number.

b. A summary geologic report of the area, including depth to proposed reservoir; type of reservoir; anticipated thickness of reservoir; anticipated temperature of the geothermal resource; anticipated porosity, permeability and pressure; geologic structures; and description of overlying formations and aquifers.

c. The method of meeting the guidelines of the Erosion and Sediment Control Regulations as adopted by the State Water Control Board pursuant to § 62.1-44.15:52 of the Code of Virginia.

d. The method of disposing of all drilling muds and fluids, and all cement and other drilling materials from the well site; the proposed method of preventing such muds, fluids, drillings, or materials from seeping into springs, water wells, and surface waters during drilling operations.

e. The method of construction and maintenance of access roads, materials to be used, method to maintain the natural drainage area, and method of directing surface water runoff from disturbed areas around undisturbed areas.

f. The method of removing any rubbish or debris during the drilling, production, and abandonment phases of the project. All waste shall be handled in a manner that prevents fire hazards or the pollution of surface streams and groundwater.

g. The primary and alternative method of spent geothermal fluid disposal. All disposal methods shall be in accordance with state and federal laws for the protection of land and water resources.

h. The methods of monitoring fluid quality, fluid temperature, and volumetric rate of production and injection wells.

i. The method of monitoring potable drinking water aquifers close to production and injection zones.

j. The method of monitoring for land subsidence.

k. The method of plugging and abandoning wells and a plan for reclaiming production and injection well sites.

l. The method of cleaning scale and corrosion in geothermal casing.

m. A description of measures that will be used to minimize any adverse environmental impact of the proposed activities on the area's natural resources, aquatic life, or wildlife.

2. Geothermal fluid analysis.

a. A geothermal fluid analysis shall be submitted with the operations plan, and annually thereafter.

b. Acceptable chemical parameters and sampling methods are set forth in 4VAC25-170-70 B.

3. Proposal for injection of geothermal fluids.

a. Geothermal fluid shall be injected into the same geothermal area from which it was withdrawn in the Atlantic Coastal Plain. Plans for injection wells in this area shall include information on:

(1) Existing reservoir conditions.

(2) Method of injection.

(3) Source of injection fluid.

(4) Estimate of expected daily volume in gallons per minute per day.

(5) Geologic zones or formations affected.

(6) Chemical analyses of fluid to be injected.

(7) Treatment of spent geothermal fluids prior to injection.

b. Exemptions to the injection rule for geothermal fluid shall be approved by the department. Such requests shall be accompanied by a detailed statement of the proposed alternative method of geothermal fluid disposal; the effects of not injecting on such reservoir characteristics as pressure, temperature, and subsidence; and a copy of the operator's or designated agent's no-discharge permit.

4VAC25-170-60. Records, logs and general requirements.

A. 1. During the drilling and production phases of every well, the owner, operator, or designated agent responsible for the conduct of drilling operations shall keep at the well an accurate record of the well's operations as outlined in subsection C of this section. These records shall be accessible to the division director at all reasonable hours.

2. The refusal of the well operator or designated agent to furnish upon request such logs or records or to give information regarding the well to the department shall constitute sufficient cause to require the cessation or shutting down of all drilling or other operations at the well site until the request is honored.

3. Copies of all productions records required by this chapter shall be submitted to the division director.

4. Samples representative of all strata penetrated in each well shall be collected and furnished to the Commonwealth. Such samples shall be in the form of rock cuttings collected so as to represent the strata encountered in successive intervals no greater than 10 feet. If coring is done, however, the samples to be furnished shall consist, at a minimum, of one-quarter segments of core obtained. All samples shall be handled as follows:

a. Rock cuttings shall be dried and properly packaged in a manner that will protect the individual samples, each of which shall be identified by the well name, identification number, and interval penetrated.

b. Samples of core shall be boxed according to standard practice and identified as to well name and identification number and interval penetrated.

c. All samples shall be shipped or mailed, charges prepaid, to:

Department of Mines, Minerals and Energy Division of Geology and Mineral Resources Fontaine Research Park 900 Natural Resources Drive P.O. Box 3667 Charlottesville, VA 22903

B. Each well operator, owner, or designated agent, within 90 days after the completion of any well, shall submit to the division director a copy of the drilling log. Drilling logs shall list activities in chronological order and include the following information:

1. The well's location and identification number.

2. A record of casings set in wells.

3. Formations encountered.

4. Deviation tests for every one thousand feet drilled.

5. Cementing procedures.

6. A copy of the downhole geophysical logs.

C. The owner, operator, or designated agent of any production or injection well shall keep or cause to be kept a careful and accurate production record. The following information shall be reported to the division director on a monthly basis for the first six months and quarterly thereafter, or as required by permit, unless otherwise stated:

1. Pressure measurements as monitored by valves on production and injection wells.

2. The volumetric rate of production or injection measured in terms of the average flow of geothermal fluids in gallons per minute per day of operation.

3. Temperature measurements of the geothermal fluid being produced or injected, including the maximum temperature measured in the bore-hole and its corresponding depth, and the temperature of the fluid as measured at the discharge point at the beginning and conclusion of a timed production test.

4. Hydraulic head as measured by the piezometric method.