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.
c) Roads. A person who claims valid existing
rights to use or construct a road across the surface of lands protected by
Section
1761.11
must demonstrate that one or more of the following circumstances exist if the
road is included within the definition of "surface coal mining operations" in
62 Ill. Adm. Code
1701.Appendix A:
1) The road
existed when the land upon which it is located came under the protection of
Section 1761.11, and the person has a legal right to use the road for surface
coal mining operations.
2) A
properly recorded right of way or easement for a road in that location existed
when the land came under the protection of Section
1761.11
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.
3) A valid permit for
use or construction of a road in that location for surface coal mining
operations existed when the land came under the protection of Section
1761.11.
4) Valid existing rights
exist under subsections (a) and (b) of this definition.