CHAPTER 734

An Act to amend the Code of Virginia by adding in Title 45.1 a chapter
numbered 16 consisting of sections numbered 45.1-180 through 45.1-
197, requiring licenses for certain surface mining operations and fiz-
ing conditions for issuance thereof; providing that certain reclama-
tion be performed or contracted for by the Department of Conserva-
tion and Economic Develonment under certain circumstances; cre-
ating a Board of Surface Mining Review and providing for appeals
from rulings of such board; providing penalties for violations; to
create a special fund for reclamation purposes and to provide jor
expenditures therefrom, and to appropriate funds to carry out the
provisions hereof.

(H 113]

Approved April 5, 1968

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia be amended by adding in Title 45.1 a
chapter numbered 16 consisting of sections numbered 45.1-180 through
45.1-197, as follows:

§ 45.1-180. The following words and phrases when used in this
chapter shall have the meanings respectively ascribed to them in this
section except where the context clearly requires a different meaning: |

(a) Mining—means the breaking or disturbing of the surface soil
or rock in order to facilitate or accomplish the extraction or removal of
minerals, ores, rock or other solid matter; any activity constituting all or
part of a process for the extraction or removal of minerals, ores, rock or
other solid matter so as to make them suitable for commercial, industrial,
or construction use; but shall not include those aspects of deep mining not
having significant effect on the surface, and shall not include excavation
or grading when conducted solely in aid of on-site farming or construction.
Nothing herein shall apply to strip mining of coal.

(b) Disturbed land—The areas from which overburden has been
removed in any mining operation, plus the area covered by the spoil, plus
any areas used in such mining operation which by virtue of their use are
susceptible to excess erosion. Access roads constructed as fire breaks
whose purpose is primarily for fire fighting are excluded from this defini-
tion, but the banks thereof are included.

(c) Overburden—All of the earth and other material which lie above
a natural deposit of minerals, ores, rock or other solid matter and also
other materials after removal from their natural deposit in the process of
mining.

(d) Spoil bank—A deposit of removed overburden.

(e) Operator—Any individual, group of individuals, corporation,
partnership, business trust, association or any legal entity which is
engaged in mining and which disturbs more than one-quarter acre of land
or removes, or intends to remove, more than one hundred tons of minerals,
ores or other solid matter in any twelve month period from any such land
by such mining operation.

(f) Director—The Director of the Department of Conservation and
Economic Development.

(g) Department—The Department of Conservation and Economic
Development.

(h) Division—The Division of Mines of the Department of Labor
and Industry.

(i) Chief—The Chief of the Division of Mines.

(j) Mining operation—Any area included in an approved plan of
operation.

§ 45.1-181. It shall be unlawful for any person or operator to engage
in any mining operation in this State, without having first obtained from
the Division a permit to engage in such operation and paying a fee there-
for of six dollars per acre for every acre proposed to be disturbed, not to
exceed the total sum of one hundred fifty dollars, which shall be deposited
in the State treasury in a special fund to be used by the Director in per-
forming reclamations under the provisions of this act. Such permits shall
not be transferable. A permit shall be obtained prior to the starting of
any mining operation. A permit shall continue to be in effect if, within 10
days of the anniversary date of the permit the Director, after inspection, is
satisfied that the operation is proceeding according to the plan submitted
to and approved by him. If the operator believes changes in his original
plan are necessary or if additional land not shown as a part of the approved
plan of operation is to be disturbed, he shall submit an amended plan of op-
eration which shall be approved by the Director in the same manner as an
original plan and shall be subject to the provisions of §§ 45.1-182 and 45.1-
183 hereof. A separate permit must be secured for each mining operation
conducted. Application for a mining permit shall be made in writing on
forms prescribed by the Chief and shall be signed and sworn to by the
applicant or his duly authorized representative. The application, in addi-
tion to such other information as may be reasonably required by the Chief,
shall contain the following information: (1) the common name and geo-
logic title, where applicable, of the mineral, ore or other solid matter to be
extracted; (2) a description of the land upon which the applicant proposes
to conduct mining operations, which description shall set forth: the name
of the county or city in which such land is located; the location of its bound-
aries and any other description of the land to be disturbed in order that it
may be located and distinguished from other lands and easily ascertainable
as shown by a map attached thereto showing the amount of land to be dis-
turbed; (3) the name and address of the owner or owners of the surface
of the land; (4) the name and address of the owner or owners of the
mineral, ore or other solid matter; (5) the source of the operator’s legal
right to enter and conduct operations on the land to be covered by the
permit; (6) the total number of acres of land to be covered by the permit;
(7) a reasonable estimate of the number of acres of land that will be dis-
turbed by mining operations on the area to be covered by the permit dur-
ing the ensuing year; (8) whether any mining permits of any type are
now held by the applicant and the number thereof; (9) the name and
address of the applicant, if an individual; the names and addresses of all
partners, if a partnership; the state of incorporation and the name and
address of its registered agent, if a corporation; or the name and address
of the trustee, if a trust; and (10) if known, whether applicant, or any
subsidiary or affiliate or any partnership, association, trust or corporation
controlled by or under common control with applicant, or any person
required to be identified by item (9) above, has ever had a mining permit
of any type issued under the laws of this or any other state revoked or has
ever had a mining or other bond, or security deposited in lieu of bond,
forfeited.

The application for a permit shall be accompanied by two copies of
an accurate map or plan and meeting the following requirements:

(a) Be prepared by a licensed engineer or licensed land surveyor;

(b) Identify the area to correspond with the land described in the
application ;

(c) Show adjacent deep mining, if any, and the boundaries of sur-
face properties, with the names of owners of the affected area which lie
within a hundred feet of any part of the affected area;

(d) Be drawn to a scale of four hundred feet to the inch or better:

(e) Show the names and location of all streams, creeks or other
bodies of public water, roads, buildings, cemeteries, oil and gas wells, and
utility lines on the area affected and within five hundred feet of such area:

(f) Show by appropriate markings the boundaries of the area of
land affected, the outcrop of the seam at the surface or deposit to be mined,
and the total number of acres involved in the area of land affected.

(g) Show the date on which the map was prepared, the North arrow
and the quadrangle name;

(h) Show the drainage plan on and away from the area of land
affected, including the directional flow of water, constructed drainways,
natural waterways used for drainage and the streams or tributaries re-
ceiving the discharge. _ ;

No permit shall be issued by the Division until it has received ap-
proval in writing from the Department of the plan of operation required
in § 45.1-182 and the bond from the applicant as required in § 45.1-183.

§ 45.1-182. At the time of filing an application for a permit, each
operator shall file with the Division a plan of operation for the mining
operations for which a permit is sought. The plan shall then be submitted
to the Director on a form to be prescribed by the Director and shall contain
such information as the Director may require. The plan shall contain
among other things an agreement by the operator to provide for the follow-
ing in a manner satisfactory to the Director: ;

(1) Removal of metal, lumber and other debris resulting from min-
ing operations.

(2) Regrading of the area in a manner to be established by rules
and regulations of the Director. ;

(3) Grading the surface in such a manner as to preserve existent
access truck roads and truck roads on and along the bench, and grading
the surface on areas where truck roads do not exist in such a manner that
serviceable truck roads may be constructed with minimum cost by persons
other than the operator for the purposes of forest fire control or recreation.

(4) Grading loose soil, refuse and other debris on the bottom of the
last cut so as to reduce the piles of such material in accordance with good
conservation practices.

(5) Planting trees, shrubs, grasses or other plants upon the parts of
such area where revegetation is practicable.

(6) Where the operator elects to impound water to provide lakes or
ponds for wildlife, recreational or water supply purposes, such operator
shall file a formal request with the Department and obtain approval before
such ponds or lakes can be created in impounding such water.

In a plan of operation submitted by a dimensional stone quarry
operator, the Director shall give due consideration to the peculiar nature
of the excavated cavity or cavities to be excavated contained in such plan.

§ 45.1-183. Each operator at the time of filing his application shall
furnish bond on a form to be prescribed by the Chief payable to the Depart-
ment and conditioned that the operator shall faithfully perform all of the
requirements of this act and of the plan of operation as approved and
directed by the Department. The amount of bond shall be fifty dollars per
acre, based upon the number of acres of land which the operator estimates
will be disturbed by mining operations during the next ensuing year.
The minimum amount of bond furnished shall be one thousand dollars.
Such bond shall be executed by the operator and by a corporate surety
licensed to do business in this State; provided, however, that in lieu of
such bond the operator may deposit cash or collateral security acceptable
to the Chief.

§ 45.1-184. Upon receipt of a reasonable plan of operation and bond
prescribed above, the Director shall review the plan and if it meets his
approval certify this fact to the Division. If the Director disapproves the
plan, he shall furnish the applicant and the Division with his written
objections thereto and his required amendments. Until the applicant shall
amend his plan of operation to meet the Director’s reasonable objections
and - a satisfactory amended plan with the Director, no permit shall be
issued.

Upon receipt of the Director’s approval and the required bond, the
Chief shall issue the permit unless he finds that the applicant has had
control or has had common control with a person, partnership, association,
trust or corporation which has had a mining permit revoked or bond or
other security forfeited for failure to reclaim lands as required by the laws
of this State, in which event no permit shall be issued. Except, however,
if an operator who has heretofore forfeited a bond within 30 days of notice
and demand by the Director pays the cost of reclamation in excess of the
amount of the forfeited bond, or if any bond is forfeited and the amount
forfeited is equal to or less than the cost of reclamation, such operator
shall then become eligible for another permit.

§ 45.1-185. Within ten days following the anniversary date of any
permit, the operator shall post additional bond in the amount of fifty
dollars per acre for each additional acre of land estimated by him to be
disturbed during the next year following the anniversary date of the per-
mit for which no bond has been previously posted by him. Bond or other
security previously posted shall be released for the areas disturbed in the
last twelve months if reclamation work has been completed and the ap-
proval of the Director obtained in accordance with the following:

The operator shall file with the Department a written report on a
form to be prescribed by the Department stating under oath that reclama-
tion has been completed on certain lands and submit the following:

(a) Identification of the operation; (b) the county or city in which
it is located and its location with reference to the nearest public highway ;
(c) a description of the area of land affected by the operation within the
period of time covered by such report with sufficient certainty to enable it
to be located and distinguished from other lands; (d) an accurate map or
plan prepared by a licensed land surveyor or licensed engineer showing the
boundary lines of the area of land affected by the operation, the number
of acres comprising such area and the methods of access to the area from
the nearest public highway.

§ 45.1-186. Upon receipt of the report called for in § 45.1-185, the
Director shall cause an inspection to be made of the land described in the
report. If he shall approve the reclamation work completed by the oper-
ator, he shall notify the Division in writing and the Chief shall order the
return of the bond or certified check to the operator.

If the Director does not approve the reclamation work, he shall notify
the operator immediately in writing and advise him of what additional
steps he deems necessary to satisfactorily complete the reclamation. In
such event, the operator shall have ninety days from the receipt of the
Director’s order to begin such additional reclamation and present satis-
factory evidence to the Director that such work is in progress. The bond
or other security posted by the operator for such land shall not be refunded
until he has obtained the Director’s approval as aforesaid, and the Director
has notified the Division in writing to this effect.

If the operator does not undertake to complete the reclamation in
accordance with the notification of the Director and submit evidence to
the Director that such work is in progress within ninety days of such order
or within such additional period of time not to exceed six months which
may be granted by the Director for cause shown, the Director shall request,
and the Chief shall order a forfeiture of the bond or other security posted
by the operator at the rate of fifty dollars per acre or part thereof for each
acre of land involved; or, upon the written request of the operator, the
Director shall survey the land involved and establish the cost of reclaiming
such land. He shall immediately notify the operator by registered mail,
who shall within 30 days of receipt of such notice deposit cash or a certi-
fied check with the Director the sum set by the Director for reclamation.
Upon receipt of this sum, the Director shall have the reclamation per-
liability with the money so received and release the operator from further

ability.

In the event the operator does not post the cost of reclaiming as set by
the Director or does not request him to set such amount the Chief shal]
certify the fact to the Attorney General who shall proceed to collect the
amount thereof, which, when collected, shall be deposited in the State
treasury in a special fund to be used by the Director in performing re-
clamation under the provisions of this act. Furthermore, following the
order of forfeiture the Director shall perform such reclamation operations
as he deems necessary with the resources and facilities of his Department
or as provided by § 45.1-192 hereof, the cost thereof to be paid from the
proceeds of the special fund above created.

§ 45.1-187. If, during any operation, it is found that the operator’s
estimate of the amount of disturbed land for which bond or other security
has been posted for reclamation is less than the actual area disturbed, the
Chief shall order the operator to file additional bond or security sufficient
to cover an amended estimate of land to be disturbed by such operation.

§ 45.1-188. It shall be unlawful for any owner or owners of surface
rights or the owner or owners of mineral] rights to interfere with the
operator in the discharge of his obligations to the State for the reclama-
tion of lands disturbed by him. If the owner or owners of surface rights
or the owner or owners of mineral rights desire to conduct other mining
operations on lands disturbed by the operator furnishing bond hereunder,
such owner or other person shall be in all respects subject to the provisions
of this act and the Chief shall then release an equivalent amount of bonds
of the operator originally furnishing bond on the disturbed area.

§ 45.1-189. Any operator holding a valid commercial mining license
under which any mining operations are being conducted shall comply with
the provisions hereof on or before July 1, 1969 and obtain a permit under
§ 45.1-182 hereof or forfeit his right to conduct mining operations under
such license.

§ 45.1-190. All provisions of the mining laws of this State intended
to safeguard life and property shall extend to all mining operations insofar
as such laws are applicable thereto. The Chief shall have the power and
authority to promulgate reasonable rules and regulations to effectuate the
purposes of this act and to protect the safety of those employed in and
around surface mines. For the administration of mining laws and regu-
lations, all mining operations shall be supervised by the Division.

§ 45.1-191. Any violation of any provision of this act or of any order
of the Director or Chief shall be a misdemeanor punishable by a maximum
fine of one thousand dollars or a maximum of one year in jail, or both.

§ 45.1-192. In approving plans of operation and in issuing rules and
regulations for reclamation, the Director may avail himself and his Depart-
ment of the advice, assistance and facilities of local soil and water con-
servation district supervisors or any other federal, State or local agency.

§ 45.1-193. In addition to other legal processes, the Chief or the
Division or the Director or the Department may seek injunctive relief to
enforce any rule, regulation, order or requirement issued.

§ 45.1-194. An appeal from any order, rule or regulation of the
Department or Division shall be taken first to the Board of Surface Mining
Review hereinafter created. Such appeal shall be taken within thirty days
following the issuance of such order, rule or regulation. Any party desiring
to appeal shall file with the Board of Surface Mining Review a notice of
appeal designating the order, rule or regulation appealed from, and send a
copy thereof by registered mail to the Director or the Chief issuing such.

Upon receipt thereof, the Board shall set the hearing at a place within
the county where the major portion of the land involved in the order, rule
or regulation appealed from is located and such hearing shall be held by
the Board within sixty days from the date notice of appeal is received.
The Board shall have the power to subpoena and bring before it any
person in this State or take testimony of any such person by deposition
with the same fees and mileage in the same manner as prescribed by law
in judicial procedure in courts of this State in civil cases. Any party to
any hearing before the Board shall have the right to the attendance of
witnesses in his behalf.

§ 45.1-195. There is hereby created the Board of Surface Mining
Review to be composed of the Director of the Department of Conservation
and Economic Development and three members to be appointed by the
Governor, two of whom shall be surface mining operators who have been
engaged in such operation continuously for five years preceding their ap-
pointment, and one property owner who at the time of his appointment
owns land or is an executive officer of a corporation which owns land upon
which surface mining operations have been or are being conducted. The
appointive members shall serve for terms of four years each, except ap-
pointments to fill vacancies which shall be for unexpired terms, all of
whom shall hold office at the pleasure of the Governor for their respective
terms. The Board shall elect its own chairman. The members of the
Board shall receive no compensation for their services but shall be entitled
to receive their necessary traveling and other expenses incurred in the
performance of their duties. The sole duty of the Board shall be to hear
appeals from orders issued by the Department or Division under this chap-
Eye de the procedure for determining such appeals shall be as provided

y 1-194.

§ 45.1-196. Any person aggrieved by any opinion issued by the
Board shall have the right of appeal to the circuit court of the county in
which the land or a major portion thereof which is involved in the opinion
appealed from, is located. Such appeal shall be filed within thirty days
after the opinion is rendered. The filing of an appeal hereunder shall not
automatically stay the effect of the opinion appealed from, but, if on
application to the court, undue hardship is shown to result, the court in
its discretion may suspend the execution thereof and fix the terms.

§ 45.1-197. Counties, cities and towns may establish standards and
adopt regulations dealing with the same subject, provided, however, such
standards and regulations shall not be below those adopted by the Chief
an irector.

This chapter shall not be construed to repeal any local ordinance or
regulation or charter provision now in effect in any county, city or town
where the provisions are not less than the standards adopted by the Chief
and Director. The Chief may waive the application of this chapter if, in
his opinion, a county, city or town in which surface mining operations are
being conducted has enacted zoning ordinances dealing with the subject
matter, prescribing standards and regulations not below those set forth in
this chapter. If the Chief waives the provisions hereof, the operator shall
comply strictly with all the provisions of the ordinances of such counties,
cities and towns in which his operations are located.

_ The Chief may also waive the application of this chapter as to any
mining or borrow pit operation which is conducted solely and exclusively
for a State project and which is subject by contract to the control and
supervision of a State agency, provided regulations satisfactory to the
Chief have been promulgated and are incorporated in any contract for
such removal.

2. A sum sufficient not to exceed $25,000 per year for each year of the
biennium 1968-70 is hereby appropriated from the general fund of the
State treasury for the purpose of carrying out the provisions of this act.