Virginia Administrative Code › Title 4 - CONSERVATION AND NATURAL RESOURCES › Agency 25 - DEPARTMENT OF ENERGY › Chapter 130 - COAL SURFACE MINING RECLAMATION REGULATIONS › Part 700 - General › Section 4VAC25-130-700.5 - Definitions

Current through Register Vol. 40, No. 24, July 15, 2024
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 10 (§ 45.2-1000 et seq.) of
					 Title 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
					 Energy.
"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 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 Repurposing of
					 the Department of 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 § 45.2-1032 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 Chapter 8 (§ 3.2-800 et
					 seq.) of Title 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 § 45.2-1043 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 22 (§ 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 10 (§ 45.2-1000 et seq.) of Title
					 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
					 § 45.2-1020 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 §
					 45.2-1018 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 § 45.2-1008 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 § 45.2-1000 of the Act.
"Surety bond" means an indemnity agreement in a sum certain
					 payable to the Commonwealth of Virginia, Director-Division of Mined Land
					 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 § 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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 §
					 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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 § 45.2-1028 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
					 § 45.2-1028 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 § 45.2-1028 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
					 § 45.2-1028 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 § 45.2-1028 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 §§
					 45.2-1010 and 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 §
					 45.2-1021 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.
Statutory Authority: § 45.2-103 of the Code of
						Virginia.