Illinois Administrative Code › Title 62 - MINING › Part 1761 - AREAS DESIGNATED BY ACT OF CONGRESS › Section 1761.5 - Definition of Valid Existing Rights

Current through Register Vol. 48, No. 28, July 12, 2024
Valid existing rights (VER) means a set of circumstances under
				which a person may, subject to regulatory authority approval, conduct surface
				coal mining operations on lands where Section
				1761.11
				would otherwise prohibit such operations. Possession of valid existing rights
				only confers an exception from the prohibitions of Section
				1761.11
				and
				30 USC
				1272(e). A person seeking to
				exercise valid existing rights must comply with all other pertinent
				requirements of the Act and the applicable regulatory program.
a) Property rights demonstration. Except as
			 provided in subsection (c) of this definition, a person claiming valid existing
			 rights must demonstrate that a legally binding conveyance, lease, deed,
			 contract or other document vests that person, or a predecessor in interest,
			 with the right to conduct the type of surface coal mining operations intended.
			 This right must exist at the time that the land came under the protection of
			 Section 1761.11. Applicable State statutory or case law will govern
			 interpretation of documents relied upon to establish property rights, unless
			 Federal law provides otherwise. If no applicable State law exists, custom and
			 generally accepted usage at the time and place that the documents came into
			 existence will govern their interpretation.
b) Except as provided in subsection (c) of
			 this definition, a person claiming valid existing rights also must demonstrate
			 compliance with one of the following standards:
1) Good faith/all permits standard. All
			 permits and other authorizations required to conduct surface coal mining
			 operations had been obtained, or a good faith effort to obtain all necessary
			 permits and authorizations had been made, before the land came under the
			 protection of Section 1761.11. At a minimum, an application must have been
			 submitted for any permit required under 62 Ill. Adm. Code 1772 through
			 1785.
2) Needed for and adjacent
			 standard. The land is 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 to obtain all permits and authorizations had been made, before the land
			 came under the protection of Section 1761.11. To meet this standard, a person
			 must demonstrate 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 Section 1761.11. 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 Section
			 1761.11
			 when the regulatory authority 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
			 agency making the determination may consider factors such as:
A) The extent to which coal supply contracts
			 or other legal and business commitments that predate the time that the land
			 came under the protection of Section
			 1761.11
			 depend upon use of that land for surface coal mining operations.
B) The extent to which plans used to obtain
			 financing for the operation before the land came under the protection of
			 Section
			 1761.11
			 rely upon use of that land for surface coal mining operations.
C) The extent to which investments in the
			 operation before the land came under the protection of Section
			 1761.11
			 rely upon use of that land for surface coal mining operations.
D) Whether the land lies within the area
			 identified on the life-of-mine map submitted under 62 Ill. Adm. Code
			 1779.24(c)
			 or
			 1783.24(c)
			  before the land came under the protection of
			 Section 1761.11.