45.1-263 - Right of entry, acquisition, disposition and reclamation of land adversely affected by past coal mining practices.
§ 45.1-263. Right of entry, acquisition, disposition and reclamation of landadversely affected by past coal mining practices.
A. The Director shall take all reasonable actions to obtain written consentfrom the owner or owners of record of the land or property to be entered ontoto perform an inspection for purposes of reclamation or for conductingstudies or exploratory work pertaining to the need for and feasibility ofreclamation, prior to such entry.
B. If the Director, pursuant to an approved state program, makes a finding offact that:
1. Land or water resources have been adversely affected by past coal miningpractices;
2. The adverse effects are at a state where, in the public interest, actionto restore, reclaim, abate, control, or prevent should be taken; and
3. The owners of the land or water resources where entry must be made torestore, reclaim, abate, control, or prevent the adverse effects of past coalmining practices are not known, or readily available; or
4. The owners will not give permission for the Director or his agents,employees, or contractors to enter upon such property to restore, reclaim,abate, control or prevent the adverse effects of past coal mining practices,then, upon giving notice by certified mail to the owners if known or if notknown by posting notice upon the premises and advertising once in a newspaperof general circulation in the municipality or county in which the land lies,the Director, his agents, employees, or contractors shall have the right toenter upon the property adversely affected by past coal mining practices andany other property to have access to such property to do all things necessaryor expedient to restore, reclaim, abate, control or prevent the adverseeffects. Such entry shall be construed as an exercise of the police power forthe protection of public health, safety and general welfare and shall not beconstrued as an act of condemnation of property nor of trespass thereon. Themoneys expended for such work and the benefits accruing to any such premisesso entered upon shall be chargeable against such land to the extent providedin § 45.1-264, and shall mitigate or offset any claim in or any actionbrought by any owner of any interest in such premises for any alleged damagesby virtue of such entry; provided, however, that this provision is notintended to create new rights of action or eliminate the existing sovereignimmunity of the Commonwealth and its agents and employees.
C. The Director, his agents, employees, or contractors shall have the rightto enter upon any property for the purpose of conducting studies orexploratory work to determine the existence of adverse effects of past coalmining practices and to determine the feasibility of restoration,reclamation, abatement, control, or prevention of such adverse effects. Suchentry shall be construed as an exercise of the police power for theprotection of public health, safety and general welfare and shall not beconstrued as an act of condemnation of property nor trespass thereon.
D. The Director, pursuant to an approved state program, may acquire title inthe name of the Commonwealth to any land or interest therein by purchase,donation, or condemnation, if such land or interest is adversely affected bypast coal mining practices, after approval of the Secretary and upon adetermination that acquisition of such land is necessary to successfulreclamation, and that:
1. The acquired land, after restoration, reclamation, abatement, control, orprevention of the adverse effects of past coal mining practices, will serverecreation and historic purposes, conservation and reclamation purposes orprovide open space benefits; and
2. Permanent facilities such as a treatment plant or a relocated streamchannel will be constructed on the land for the restoration, reclamation,abatement, control or prevention of the adverse effects of past coal miningpractices; or
3. Acquisition of coal refuse disposal sites and all coal refuse thereon willserve the purposes of this article or that public ownership is desirable tomeet emergency situations and prevent recurrences of the adverse effects ofpast coal mining practices.
The price paid for land acquired under this section shall reflect the marketvalue of the land as adversely affected by past coal mining practices.
E. The Director, with the approval of the Secretary, and in accordance withthe State Reclamation Plan, may:
1. Transfer the administrative responsibility for land acquired under thissection to any state, regional, or local agency, department, or institution,with or without cost, upon such terms as will insure that the use of the landis consistent with the authorization under which the land was acquired;
2. Sell land acquired under this section which is suitable for industrial,commercial, residential, or recreational development, by public sale under asystem of competitive bidding, at not less than fair market value and undersuch regulations promulgated to insure that such lands are put to proper useconsistent with local, state or federal land use plan, if any, for the areain which the land is located; and
3. Transfer land acquired under this section to the United States to bereclaimed by the Secretary and after reclamation is completed, any state,regional, or local agency, department, or institution may purchase such landfrom the Secretary for governmental, educational, recreational, historical,open-space or other public purposes upon such terms as the Secretary mayrequire.
F. Prior to the disposition of any land acquired under this section theDirector, pursuant to the State Reclamation Plan, when requested afterappropriate public notice shall hold a public hearing in the city or countyor cities or counties where the land is located. The hearing shall be held ata time which shall afford local citizens and governments the maximumopportunity to participate in the decision concerning the use or dispositionof the lands after restoration, reclamation, abatement, control, orprevention of the adverse effects of past coal mining practices.
G. The Director may authorize the use, pending disposition, of land acquiredunder this section, for any lawful purpose that is not inconsistent with thereclamation and post-reclamation uses for which the land was acquired. TheDirector shall charge any user of the land a reasonable use fee, which shallgo toward the purpose of operating and maintaining improvement of the land,and any excess thereof shall be deposited in the State Reclamation Fund. TheDirector may waive the fee if he finds in writing that a waiver is in thepublic interest.
H. Any state, regional, or local agency, department, or institution maypurchase or otherwise acquire and develop lands which the Secretary isauthorized to dispose of pursuant to § 407(h) of the federal act.
(1979, c. 290.)