HB2955 SUB ENR
H. B. 2955
(By Delegates Caputo and Barker)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT to
amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §11-13BB-1, §11-13BB-
2, §11-13BB-3, §11-13BB-4, §11-13BB-5, §11-13BB-6, §11-13BB-7,
§11-13BB-8, §11-13BB-9, §11-13BB-10, §11-13BB-11, §11-13BB-12
and §11-13BB-13; to
amend and reenact §22-3-7, §22-3-8 and
§22-3-19 of said code;
to amend and reenact §22A-1-4 of said
code; and to amend and reenact §22A-11-3 of said code, all
to environmental resources;
to providing a tax credit
for purchase of innovative mine safety technology; legislative
findings and purpose; definitions; requirements for list of
approved innovative mine safety technology; amount of tax
credit allowed; criteria for qualified investment; forfeiture
of unused tax credits; treatment for transfer of certified
eligible safety property to successors; setting forth
requirements for identification of investment credit property; prescribing treatment for failure to keep records of certified
eligible safety property; specifying tax credit review and
accountability requirements; specifying requirement for
disclosure of tax credits; authorizing rules;
mining and reclamation act; and fees assessed to coal mining
operators by the Division of Mining and Reclamation
the duties of the Director of the West Virginia Office of
Miners' Health, Safety and Training; and amending the duties
of the Mine Safety Technology Task Force.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-13BB-1, §11-13BB-2,
§11-13BB-3, §11-13BB-4, §11-13BB-5, §11-13BB-6, §11-13BB-7, §11-
13BB-8, §11-13BB-9, §11-13BB-10, §11-13BB-11, §11-13BB-12, §11-
13BB-13 and §11-13BB-14; that
§22-3-7, §22-3-8 and §22-3-19 of said
code be amended and reenacted;
that §22A-1-4 of said code be
amended and reenacted; and that §22A-11-3 of said code be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 13BB. WEST VIRGINIA INNOVATIVE MINE SAFETY TECHNOLOGY TAX
§11-13BB-1. Short title.
This article may be cited as the "West Virginia Innovative Mine Safety Technology Tax Credit Act".
§11-13BB-2. Legislative findings and purpose.
The Legislature finds that the encouragement of new investment
in innovative coal mine safety technology in this state is in the
public interest and promotes the general welfare of the people of
(a) Any term used in this article has the meaning ascribed by
this section, unless a different meaning is clearly required by the
context of its use or by definition in this article.
(b) For purposes of this article, the term:
(1) "Certified eligible safety property" means eligible safety
property in which an eligible taxpayer has made qualified
investment for which credit has been certified under this article.
(2) "Coal mining company" means:
(A) Any person subject to tax imposed on the severance of coal
by section three, article thirteen-a of this chapter, or
(B) Any person working as a contract miner of coal, which
mines coal in this state, under contract with a person subject to
tax imposed on the severance of coal by section three, article
thirteen-a of this chapter.
(3) "Director" means the Director of the Office of Miners'
Health, Safety and Training or West Virginia Office of Miners'
Health, Safety and Training established under article one, chapter twenty two-a of this code.
(4) "Eligible safety property" means safety technology
equipment, that at the time of acquisition, is on the list of
approved innovative mine safety technology.
(5) "Eligible taxpayer" means a coal mining company which
purchases eligible safety property.
(6) "List of approved innovative mine safety technology" means
the list required to be compiled and maintained by the Mine Safety
Technology Task Force and approved and published by the director
under this article.
(7) "Office of Miners' Health, Safety and Training" or "West
Virginia Office of Miners' Health, Safety and Training" means the
Office of Miners' Health, Safety and Training established under
article one, chapter twenty two-a of this code.
(8) "Person" includes any corporation, limited liability
company, or partnership.
(9) "Qualified investment" means the eligible taxpayer's
investment in eligible safety property pursuant to a qualified
purchase as qualified and limited by section six of this article.
(10) "Qualified purchase" means and includes only acquisitions
of eligible safety property for use in this state.
(A) A lease of eligible safety property may constitute a
qualified purchase if the lease was entered into and became
effective at a time when the equipment is on the list of approved innovative mine safety technology, and if the primary term of the
lease for the eligible safety property is five years or more.
Leases having a primary term of less than five years do not
(B) "Qualified purchase" does not include:
(i) Purchases or leases of realty or any cost for, or related
to, the construction of any building, facility or structure
attached to realty;
(ii) Purchases or leases of any property not exclusively used
in West Virginia;
(iii) Repair costs including materials used in the repair,
unless for federal income tax purposes, the cost of the repair must
be capitalized and not expensed;
(iv) Motor vehicles licensed by the Department of Motor
(vii) Off-premises transportation equipment;
(viii) Leases of tangible personal property having a primary
term of less than five years shall not qualify;
(ix) Property that is used outside this state; and
(x) Property that is acquired incident to the purchase of the
stock or assets of an industrial taxpayer, which property was or
had been used by the seller in his or her industrial business in this state, or in which investment was previously the basis of a
credit against tax taken under any other article of this chapter.
(C) Acquisitions, including leases, of eligible safety
property may constitute qualified purchases for purposes of this
article only if:
(i) The property is not acquired from a person whose
relationship to the person acquiring it would result in the
disallowance of deductions under Section 267 or 707(b) of the
United States Internal Revenue Code of 1986, as amended;
(ii) The property is not acquired from a related person or by
one component member of a controlled group from another component
member of the same controlled group. The Tax Commissioner may
waive this requirement if the property was acquired from a related
party for its then fair market value; and
(iii) The basis of the property for federal income tax
purposes, in the hands of the person acquiring it, is not
determined, in whole or in part, by reference to the federal
adjusted basis of the property in the hands of the person from whom
it was acquired; or under Section 1014(e) of the United States
Internal Revenue Code of 1986, as amended.
(11) "Safety technology" means depreciable tangible personal
property and equipment, other than clothing, principally designed
to directly minimize workplace injuries and fatalities in coal
(12) "Taxpayer" means any person subject to any of the taxes
imposed by article thirteen-a, twenty-three or twenty-four of this
§11-13BB-4. List of approved innovative mine safety technology.
(a) List of approved innovative mine safety technology. --
Mine Safety Technology Task Force, established in section two,
article eleven, chapter twenty-two-a of this code, shall annually
compile a proposed list of approved innovative mine safety
technologies as required by subsection (f), section three, article
eleven, chapter twenty-two-a of this code. The list shall be
transmitted to the director for approval. The director has thirty
days to approve or amend the list. At the expiration of thirty
days, the director shall publish the list of approved innovative
mine safety technologies. The list shall describe and specifically
identify safety equipment for use in West Virginia coal mines
which, in the fiscal year when the equipment is added to the list,
is not required by the Mine Safety and Health Administration of the
United States Department of Labor or the West Virginia Office Of
Miners' Health, Safety And Training or any other state or federal
agency, to be used in a coal mine or on a mine site or on any other
industrial site. Safety equipment shall remain on the list from
year to year until the director removes it from the list. The
Office of Miners' Health, Safety and Training may establish by
legislative rule or interpretive rule a shorter time period for issuance of and updating of the list of approved innovative mine
(b) It is the intent of the Legislature that the list of
approved innovative mine safety technologies include only safety
equipment that is depreciable tangible personal property for
federal income tax purposes, which is so new to the industry and so
innovative in concept, design, operation or performance that, in
the fiscal year when it is added to the list of approved innovative
mine safety technologies, the equipment has not yet been adopted by
the Federal Mine Safety and Health Administration or the West
Virginia Office of Miners Health, Safety and Training or any other
state or federal agency as required equipment to be used in a coal
mine or on a mine site or on any other industrial site.
(c) Delisting. --
(1) If any item of equipment or any line of
equipment or class of equipment is listed on the list of approved
innovative mine safety technologies in any fiscal year, but then is
subsequently adopted by the Federal Mine Safety and Health
Administration or the West Virginia Office of Mine Safety or any
other state or federal agency as required equipment to be used in
a coal mine or on a mine site or on any other industrial site, the
equipment shall be removed from the list of approved innovative
mine safety technologies compiled and issued for the next
succeeding periodic issuance thereafter of the list of approved
innovative mine safety technologies.
(2) If it is determined by the director that any item of
equipment or any line of equipment or class of equipment that is
listed on the list of approved innovative mine safety technology
has ceased to be innovative in concept, design, operation or
performance, or is ineffective, or has failed to meet the
expectations of the Mine Safety Technology Task Force, or has
failed to prove its value in directly minimizing workplace injuries
and fatalities in coal mines, the equipment shall be removed from
the list of approved innovative mine safety technologies that is
compiled and issued for the next succeeding periodic issuance of
the list of approved innovative mine safety technologies after the
determination has been reached.
(3) However, any eligible taxpayer who invested in the
equipment as certified eligible safety property during the time the
equipment was lawfully listed on the list of approved innovative
mine safety technologies, shall not forfeit the credit authorized
by this article as a result of the delisting of the equipment under
either subdivision (1) or subdivision (2) of this subsection, so
long as the requirements of this article are otherwise fulfilled by
the taxpayer for entitlement to the credit.
§11-13BB-5. Amount of credit allowed.
(a) Credit allowed
-- For tax years beginning after
December 31, 2011, there is allowed to eligible taxpayers a credit
against the taxes imposed by articles twenty-three and twenty-four of this chapter. The amount of credit shall be determined as
provided in this section.
(b) Amount of credit allowable. --
The amount of allowable
credit under this article is equal to fifty percent of the
qualified investment as determined in section six of this article,
and shall reduce the business franchise tax imposed under article
twenty-three of this chapter and the corporation net income tax
imposed under article twenty-four of this chapter, in that order,
subject to the following conditions and limitations:
(1) The amount of credit allowable is applied over a five-year
period, at the rate of one-fifth thereof per taxable year,
beginning with the taxable year in which the eligible safety
property is first placed in service or use in this state.
(2) Business franchise tax.
-- The credit is applied to reduce
the business franchise tax imposed under article twenty-three of
this chapter determined after application of the credits against
tax provided in section seventeen, article twenty-three of this
chapter, but before application of any other allowable credits
against tax. The amount of annual credit allowed will not reduce
the business franchise tax, imposed under article twenty-three of
this chapter, below fifty percent of the amount which would be
imposed for the taxable year in the absence of this credit against
(3) Corporation net income tax
. -- After application of subdivision (2) of this subsection, any unused credit is next
applied to reduce the corporation net income tax imposed under
article twenty-four of this chapter determined before application
of any other allowable credits against tax. The amount of annual
credit allowed will not reduce corporation net income tax, imposed
under article twenty-four of this chapter, below fifty percent of
the amount which would be imposed for the taxable year in the
absence of this credit against tax.
(4) Pass-through entities.
-- (A) If the eligible taxpayer is
a limited liability company, small business corporation or a
partnership, then any unused credit after application of
subdivisions (2) and (3) of this subsection is allowed as a credit
against the taxes imposed by article twenty-four of this chapter on
owners of the eligible taxpayer on the conduit income directly
derived from the eligible taxpayer by its owners. Only those
portions of the tax imposed by article twenty-four of this chapter
that are imposed on income directly derived by the owner from the
eligible taxpayer are subject to offset by this credit.
(B) The amount of annual credit allowed will not reduce
corporation net income tax, imposed under article twenty-four of
this chapter, below fifty percent of the amount which would be
imposed on the conduit income directly derived from the eligible
taxpayer by each owner for such taxable year in the absence of this
credit against the taxes.
(5) Small business corporations, limited liability companies,
partnerships and other unincorporated organizations shall allocate
any unused credit after application of subdivisions (2) and (3) of
this subsection) among their members in the same manner as profits
and losses are allocated for the taxable year; and
(6) No credit is allowed under this article against any tax
imposed by article twenty-one of this chapter.
(c) No carryover to a subsequent taxable year or carryback to
a prior taxable year is allowed for the amount of any unused
portion of any annual credit allowance. Any unused credit is
(d) No tax credit is allowed or may be applied under this
article until the taxpayer seeking to claim the tax credit has:
(1) Filed, with the Office of Miners' Health, Safety and
Training, a written application for certification of the proposed
tax credit; and
(2) Received, from the Office of Miners' Health, Safety and
Training, certification of the amount of tax credit to be allocated
to the eligible taxpayer.
(e) No more than $2 million of the tax credits allowed under
this article shall be allocated by the Office of Miners' Health,
Safety and Training during any fiscal year. The Office of Miners'
Health, Safety and Training shall allocate the tax credits in the
order the applications therefor are received.
(f) The total amount of tax credit that may be used in any
taxable year by any eligible taxpayer in combination with the
owners of the eligible taxpayer under this article may not exceed
(g) Applications for certification of the proposed tax credit
shall contain such information and be in such detail and in such
form as required by the Office of Miners' Health, Safety and
(h) The Tax Commissioner may prescribe the forms and schedules
as necessary or appropriate for effective, efficient and lawful
administration of this article.
(i) Notwithstanding the provisions of section five-d, article
ten of this chapter, and notwithstanding any other provision of
this code, the Tax Commissioner and Office of Miners' Health,
Safety and Training may exchange tax information and other
information as determined by the Tax Commissioner to be useful and
necessary for the effective oversight and administration of the
credit authorized pursuant to this article.
§11-13BB-6. Qualified investment.
(a) General. --
The qualified investment is one hundred
percent of the cost for eligible safety property pursuant to a
qualified purchase, which is placed in service or use in this state
by the eligible taxpayer during the tax year.
(b) Placed in service or use.--
For purposes of the credit allowed by this article, property is considered placed in service
or use in the earlier of the following taxable years:
(1) The taxable year in which, under the taxpayer's
depreciation practice, the period for federal income tax
depreciation with respect to the property begins; or
(2) The taxable year in which the property is placed in a
condition or state of readiness and availability for a specifically
-- For purposes of this article, the cost for
eligible safety property pursuant to a qualified purchase is
determined under the following rules:
-- Cost for eligible safety property will not
include the value of property given in trade or exchange for
eligible safety property pursuant to a qualified purchase;
(2) Damaged, destroyed or stolen property. --
safety property is damaged or destroyed by fire, flood, storm or
other casualty, or is stolen, then the cost for replacement of the
eligible safety property, will not include any insurance proceeds
received in compensation for the loss;
(3) Rental property. --
The cost for eligible safety property
acquired by lease for a term of at least five years or longer is
one hundred percent of the rent reserved for the primary term of
the lease, not to exceed ten years; and
(4) Property purchased for multiple use. --
Any cost of
acquisition of property that is not principally and directly used
to minimize workplace injuries and fatalities in a coal mine does
not qualify as qualified investment for purposes of this article.
§11-13BB-7. Forfeiture of unused tax credits.
Disposition of property or cessation of use
. -- If during any
taxable year, property with respect to which a tax credit has been
allowed under this article:
(1) Is disposed of prior to the end of the fourth tax year
subsequent to the end of the tax year in which the property was
placed in service or use; or
(2) Ceases to be used in a coal mine of the eligible taxpayer
in this state prior to the end of the fourth tax year subsequent to
the end of the tax year in which the property was placed in service
or use, then the unused portion of the credit allowed for such
property is forfeited for the tax year in which the disposition or
cessation of use occurred and all ensuing years.
§11-13BB-8. Transfer of certified eligible safety property to
(a) Mere change in form of business
. -- Certified eligible
safety property may not be treated as disposed of under section
seven of this article, by reason of a mere change in the form of
conducting the business as long as the certified eligible safety property is retained in a business in this state for use in a coal
mine in West Virginia, and the taxpayer retains a controlling
interest in the successor business. In this event, the successor
business is allowed to claim the amount of credit still available
with respect to the certified eligible safety property transferred,
and the taxpayer (transferor) may not be required to forfeit the
credit for the years remaining at the time of transfer in the
original five year credit period.
(b) Transfer or sale to successor. --
safety property will not be treated as disposed of under section
seven of this article by reason of any transfer or sale to a
successor business which continues to use the certified eligible
safety property in a coal mine in West Virginia. Upon transfer or
sale, the successor shall acquire the amount of credit that remains
available under this article in the original five year credit
period for each subsequent taxable year, and the transferor shall
not be required to forfeit the credit for subsequent years. Upon
transfer or sale, the successor shall acquire the amount of credit
that remains available under this article for each taxable year
subsequent to the taxable year of the transferor during which the
transfer occurred and, for the year of transfer, an amount of
annual credit for the year in the same proportion as the number of
days remaining in the transferor's taxable year bears to the total
number of days in the taxable year and the transferor shall not be required to redetermine the amount of credit allowed in earlier
§11-13BB-9. Identification of investment credit property.
Every taxpayer who claims credit under this article shall
maintain sufficient records to establish the following facts for
each item of certified eligible safety property:
(1) Its identity;
(2) Its actual or reasonably determined cost;
(3) Its straight-line depreciation life;
(4) The month and taxable year in which it was placed in
(5) The amount of credit taken; and
(6) The date it was disposed of or otherwise ceased to be
actively and directly used in a coal mine in this state.
§11-13BB-10. Failure to keep records of certified eligible safety
A taxpayer who does not keep the records required for
certified eligible safety property and the credit authorized under
this article, is subject to the following rules:
(1) A taxpayer is treated as having disposed of, during the
taxable year, any certified eligible safety property which the
taxpayer cannot establish was still on hand and used in a coal mine
in this state at the end of that year; and
(2) If a taxpayer cannot establish when certified eligible safety property reported for purposes of claiming this credit
returned during the taxable year was placed in service, the
taxpayer is treated as having placed it in service in the most
recent prior year in which similar property was placed in service,
unless the taxpayer can establish that the property placed in
service in the most recent year is still on hand and used in a coal
mine in this state at the end of that year. In that event, the
taxpayer will be treated as having placed the returned property in
service in the next most recent year.
§11-13BB-11. Tax credit review and accountability.
(a) Beginning on August 1, 2012, and August 1 of every year
thereafter, the Tax Commissioner shall submit to the Governor, the
President of the Senate and the Speaker of the House of Delegates
a tax credit review and accountability report evaluating the cost
of the credit allowed under this article during the most recent
period for which information is available. The criteria to be
evaluated includes, but is not limited to, for each year:
(1) The numbers of taxpayers claiming the credit; and
(2) The cost of the credit.
(b) Taxpayers claiming the credit shall provide whatever
information the Tax Commissioner requires to prepare the report:
That the information is subject to the confidentiality
and disclosure provisions of sections five-d and five-s, article
ten of this chapter. If, in any reporting period under this section, fewer than ten eligible taxpayers have taken or applied
for the credit authorized under this article, then no report shall
be filed for that reporting period under this section.
§11-13BB-12. Disclosure of tax credits.
Notwithstanding section five-d, article ten of this chapter or
any other provision in this code to the contrary, the Tax
Commissioner shall annually publish in the State Register the name
and address of every eligible taxpayer and the amount of any tax
credit asserted under this article.
The Tax Commissioner and the Office of Miners' Health, Safety
and Training may each promulgate rules in accordance with article
three, chapter twenty-nine-a of this code to carry out the policy
and purposes of this article, to provide any necessary
clarification of the provisions of this article and to efficiently
provide for the general administration of this article.
The tax credit authorized in this article shall terminate
December 31, 2014.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-7. Notice of intention to prospect, requirements therefor;
bonding; secretary's authority to deny or limit; postponement of reclamation; prohibited acts;
(a) Any person intending to prospect for coal in an area not
covered by a surface-mining permit, in order to determine the
location, quantity or quality of a natural coal deposit, making
feasibility studies or for any other purpose, shall file with the
secretary, at least fifteen days prior to commencement of any
disturbance associated with prospecting, a notice of intention to
prospect, which notice shall include a description of the
prospecting area, the period of supposed prospecting and any other
information as required by rules promulgated pursuant to this
That prior to the commencement of prospecting,
the secretary may issue an order denying or limiting permission to
prospect where the secretary finds that prospecting operations will
damage or destroy a unique natural area, or will cause serious harm
to water quality, or that the operator has failed to satisfactorily
reclaim other prospecting sites, or that there has been an abuse of
prospecting by previous prospecting operations in the area.
(b) Notice of intention to prospect shall be made in writing
on forms prescribed by the secretary and shall be signed and
verified by the applicant. The notice shall be accompanied by: (1)
A United States Geological Survey topographic map showing by proper
marking the crop line and the name, where known, of the seam or
seams to be prospected; (2) a filing fee of $2000; and (3) a bond, or cash, or collateral securities or certificates of the same type
and form and in the same manner as provided in section eleven of
this article, in the amount of five hundred dollars per acre or
fraction thereof for the total estimated disturbed area. If a bond
is used, it shall be payable to the State of West Virginia and
conditioned that the operator faithfully perform the requirements
of this article as they relate to backfilling and revegetation of
the disturbed area.
(c) Any person prospecting under the provisions of this
section shall ensure that the prospecting operation is conducted in
accordance with the performance standards in section thirteen of
this article for all lands disturbed in explorations, including
excavations, roads, drill holes, and the removal of necessary
facilities and equipment.
(d) Information submitted to the secretary pursuant to this
section as confidential, concerning trade secrets or privileged
commercial or financial information, which relates to the
competitive rights of the person or entity intended to prospect the
described area, is not available for public examination.
(e) Any person who conducts any prospecting activities which
substantially disturb the natural land surface in violation of this
section or rules issued pursuant thereto is subject to the
provisions of sections sixteen and seventeen of this article.
(f) An operator may not remove more than two hundred fifty tons of coal without the specific written approval of the
secretary. Such approval shall be requested by the operator on
forms prescribed by the secretary. The secretary shall promulgate
rules governing such operations and setting forth information
required in the application for approval. Each such application
shall be accompanied by a $2000 filing fee.
(g) The bond accompanying said notice of intention to prospect
shall be released by the secretary when the operator demonstrates
that a permanent species of vegetative cover is established.
(h) If an operator desires to mine the area currently being
prospected, and has requested and received an appropriate surface
mine application (S.M.A.) number, the secretary may permit the
postponement of the reclamation of the area prospected. Any part
of a prospecting operation, where reclamation has not been
postponed as provided above, shall be reclaimed within a period of
three months from disturbance.
(i) For the purpose of this section, the word "prospect" or
"prospecting" does not include core drilling related solely to
taxation or highway construction.
§22-3-8. Prohibition of surface mining without a permit; permit
requirements; successor in interest; duration of
permits; proof of insurance; termination of permits;
(a) No person may engage in surface mining operations unless he or she has first obtained a permit from the secretary in
accordance with the following:
(1) All permits issued pursuant to the requirements of this
article shall be issued for a term not to exceed five years:
That if the applicant demonstrates that a specified
longer term is reasonably needed to allow the applicant to obtain
necessary financing for equipment and the opening of the operation,
and if the application is full and complete for the specified
longer term, the secretary may extend a permit for a longer term:
That subject to the prior approval of the
secretary, with the approval being subject to the provisions of
subsection (c), section eighteen of this article, a successor in
interest to a permittee who applies for a new permit, or transfer
of a permit, within thirty days of succeeding to the interest and
who is able to obtain the bond coverage of the original permittee,
may continue surface mining and reclamation operations according to
the approved mining and reclamation plan of the original permittee
until the successor's permit application or application for
transfer is granted or denied.
(2) Proof of insurance is required on an annual basis.
(3) A permit terminates if the permittee has not commenced the
surface mining operations covered by the permit within three years
of the date the permit was issued: Provided,
That the secretary
may grant reasonable extensions of time upon a timely showing that the extensions are necessary by reason of litigation precluding
commencement, or threatening substantial economic loss to the
permittee, or by reason of conditions beyond the control and
without the fault or negligence of the permittee: Provided,
That with respect to coal to be mined for use in a
synthetic fuel facility or specific major electric-generating
facility, the permittee shall be considered to have commenced
surface mining operations at the time the construction of the
synthetic fuel or generating facility is initiated.
(4) Each application for a new surface mining permit filed
pursuant to this article shall be accompanied by a fee of $3,500.
All permit fees and renewal fees provided in this section or
elsewhere in this article shall be collected by the secretary and
deposited with the Treasurer of the State of West Virginia to the
credit of the Operating Permit Fees Fund and shall be used, upon
requisition of the secretary, for the administration of this
(5) Prior to the issuance of any permit, the secretary shall
ascertain from the Commissioner of the Division of Labor whether
the applicant is in compliance with section fourteen, article five,
chapter twenty-one of this code. Upon issuance of the permit, the
secretary shall forward a copy to the Commissioner of the Division
of Labor, who shall assure continued compliance under the permit.
(6) (A) Prior to the issuance of any permit the secretary shall ascertain from the Executive Director of Workforce West
Virginia and the Insurance Commissioner whether the applicant is in
compliance with the provisions of section six-c, article two,
chapter twenty-one-a of this code and section five, article two,
chapter twenty-three of this code with regard to any required
subscription to the Unemployment Compensation Fund or to the
Workers' Compensation Fund, the payment of premiums and other
charges to the fund, the timely filing of payroll reports and the
maintenance of adequate deposits. If the applicant is delinquent
or defaulted, or has been terminated by the executive director or
the Insurance Commissioner, the permit may not be issued until the
applicant returns to compliance or is restored by the executive
director or the Insurance Commissioner under a reinstatement
That in all inquiries the Executive Director
of Workforce West Virginia and the Insurance Commissioner shall
make response to the Department of Environmental Protection within
fifteen calendar days; otherwise, failure to respond timely is
considered to indicate the applicant is in compliance and the
failure will not be used to preclude issuance of the permit.
(B) It is a requirement of this article that each operator
maintain continued compliance with the provisions of section five,
article two, chapter twenty-three of this code and section six-c,
article two, chapter twenty-one-a of this code and provide proof of
compliance to the secretary on a quarterly basis.
§22-3-19. Permit revision and renewal requirements; incidental
boundary revisions; requirements for transfer;
assignment and sale of permit rights; operator
reassignment; and procedures to obtain inactive
(a) (1) Any valid permit issued pursuant to this article
carries with it the right of successive renewal upon expiration
with respect to areas within the boundaries of the existing permit.
The holders of the permit may apply for renewal and the renewal
shall be issued: Provided, That on application for renewal, the
burden is on the opponents of renewal, unless it is established
that and written findings by the secretary are made that: (A) The
terms and conditions of the existing permit are not being
satisfactorily met: Provided, however, That if the permittee is
required to modify operations pursuant to mining or reclamation
requirements which become applicable after the original date of
permit issuance, the permittee shall be provided an opportunity to
submit a schedule allowing a reasonable period to comply with such
revised requirements; (B) the present surface-mining operation is
not in compliance with the applicable environmental protection
standards of this article; (C) the renewal requested substantially
jeopardizes the operator's continuing responsibility on existing
permit areas; (D) the operator has not provided evidence that the bond in effect for said operation will continue in effect for any
renewal requested as required pursuant to sections eleven or twelve
of this article; or (E) any additional revised or updated
information as required pursuant to rules promulgated by the
secretary has not been provided.
(2) If an application for renewal of a valid permit includes
a proposal to extend the surface-mining operation beyond the
boundaries authorized in the existing permit, that portion of the
application for renewal which addresses any new land area is
subject to the full standards of this article, which includes, but
is not limited to: (A) Adequate bond; (B) a map showing the
disturbed area and facilities; and (C) a reclamation plan.
(3) Any permit renewal shall be for a term not to exceed the
period of time for which the original permit was issued.
Application for permit renewal shall be made at least one hundred
twenty days prior to the expiration of the valid permit.
(4) Any renewal application for an active permit shall be on
forms prescribed by the secretary and shall be accompanied by a
filing fee of $3,000. The application shall contain such
information as the secretary requires pursuant to rule.
(b)(1) During the term of the permit, the permittee may submit
to the secretary an application for a revision of the permit,
together with a revised reclamation plan.
(2) An application for a significant revision of a permit is subject to all requirements of this article and rules promulgated
pursuant thereto and shall be accompanied by a filing fee of $2000.
(3) Any extension to an area already covered by the permit,
except incidental boundary revisions, shall be made by application
for another permit. If the permittee desires to add the new area
to his or her existing permit in order to have existing areas and
new areas under one permit, the secretary may so amend the original
Provided, That the application for the new area is subject
to all procedures and requirements applicable to applications for
original permits under this article and a filing fee of $550.
(c) The secretary shall review outstanding permits of a five-
year term before the end of the third year of the permit. Other
permits shall be reviewed within the time established by rules.
The secretary may require reasonable revision or modification of
the permit following review:
Provided, That such revision or
modification shall be based upon written findings and shall be
preceded by notice to the permittee of an opportunity for hearing.
(d) No transfer, assignment or sale of the rights granted
under any permit issued pursuant to this article may be made
without the prior written approval of the secretary, application
for which shall be accompanied by a filing fee of $1,500 for
transfer or $1,500 for assignment.
(e) Each request for inactive status shall be submitted on
forms prescribed by the secretary, shall be accompanied by a filing fee of $2000, and shall be granted in accordance with the procedure
established in the Surface Mining and Reclamation Rule.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
§22A-1-4. Powers and duties of the Director of the Office of
Miners' Health, Safety and Training.
(a) The Director of the Office of Miners' Health, Safety and
Training is hereby empowered and it is his or her duty to
administer and enforce such provisions of this chapter relating to
health and safety inspections and enforcement and training in
surface and underground coal mines, underground clay mines, open
pit mines, cement manufacturing plants and underground limestone
and sandstone mines.
(b) The Director of the Office of Miners' Health, Safety and
Training has full charge of the division. The director has the
power and duty to:
(1) Supervise and direct the execution and enforcement of the
provisions of this article.
(2) Employ such assistants, clerks, stenographers and other
employees as may be necessary to fully and effectively carry out
his or her responsibilities and fix their compensation, except as
otherwise provided in this article.
(3) Assign mine inspectors to divisions or districts in
accordance with the provisions of section eight of this article as
may be necessary to fully and effectively carry out the provisions
of this law, including the training of inspectors for the
specialized requirements of surface mining, shaft and slope sinking
and surface installations and to supervise and direct such mine
inspectors in the performance of their duties.
(4) Suspend, for good cause, any such mine inspector without
compensation for a period not exceeding thirty days in any calendar
(5) Prepare report forms to be used by mine inspectors in
making their findings, orders and notices, upon inspections made in
accordance with this article.
(6) Hear and determine applications made by mine operators for
the annulment or revision of orders made by mine inspectors, and to
make inspections of mines, in accordance with the provisions of
(7) Cause a properly indexed permanent and public record to be
kept of all inspections made by himself or by mine inspectors.
(8) Make annually a full and complete written report of the
administration of the office to the Governor and the Legislature of
the state for the year ending June 30. The report shall include
the number of visits and inspections of mines in the state by mine
inspectors, the quantity of coal, coke and other minerals (excluding oil and gas) produced in the state, the number of
individuals employed, number of mines in operation, statistics with
regard to health and safety of persons working in the mines
including the causes of injuries and deaths, improvements made,
prosecutions, the total funds of the office from all sources
identifying each source of such funds, the expenditures of the
office, the surplus or deficit of the office at the beginning and
end of the year, the amount of fines collected, the amount of fines
imposed, the value of fines pending, the number and type of
violations found, the amount of fines imposed, levied and turned
over for collection, the total amount of fines levied but not paid
during the prior year, the titles and salaries of all inspectors
and other officials of the office, the number of inspections made
by each inspector, the number and type of violations found by each
inspector. However, no inspector may be identified by name in this
report. Such reports shall be filed with the Governor and the
Legislature on or before December 31 of the same year for which it
was made, and shall upon proper authority be printed and
distributed to interested persons.
(9) Call or subpoena witnesses, for the purpose of conducting
hearings into mine fires, mine explosions or any mine accident; to
administer oaths and to require production of any books, papers,
records or other documents relevant or material to any hearing,
investigation or examination of any mine permitted by this chapter. Any witness so called or subpoenaed shall receive $40 per diem and
shall receive mileage at the rate of $0.15 for each mile actually
traveled, which shall be paid out of the State Treasury upon a
requisition upon the State Auditor, properly certified by such
(10) Institute civil actions for relief, including permanent
or temporary injunctions, restraining orders, or any other
appropriate action in the appropriate federal or state court
whenever any operator or the operator's agent violates or fails or
refuses to comply with any lawful order, notice or decision issued
by the director or his or her representative.
(11) Perform all other duties which are expressly imposed upon
him or her by the provisions of this chapter.
(12) Impose reasonable fees upon applicants taking tests
administered pursuant to the requirements of this chapter.
(13) Impose reasonable fees for the issuance of certifications
required under this chapter.
(14) Prepare study guides and other forms of publications
relating to mine safety and charge a reasonable fee for the sale of
(15) Make all records of the office open for inspection of
interested persons and the public.
(c) The Director of the Office of Miners' Health, Safety and
Training, or his or her designee, upon receipt of the list of approved innovative mine safety technologies from the Mine Safety
Technology Task force, has thirty days to approve or amend the list
as provided in section four, article thirteen-bb, chapter eleven of
this code. At the expiration of the time period, the director
shall publish the list of approved innovative mine safety
technologies as provided in section four, article thirteen-bb,
chapter eleven of this code.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other
assistance to the office related to the implementation of the new
technological requirements set forth in the provisions of section
fifty-five, article two of this chapter, as amended and reenacted
during the regular session of the Legislature in 2006 and
requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director,
shall continue to study issues regarding the commercial
availability, the functional and operational capability and the
implementation, compliance and enforcement of the following
(1) Self-contained self-rescue devices, as provided in
subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in
subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in
subsection (h), section fifty-five, article two of this chapter;
(4) Any other protective equipment required by this chapter or
rules promulgated in accordance with the law that the director
determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor
(1) The potential for enhancing coal mine health and safety
through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of
technologies and procedures to increase the performance and
survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and
(4) Market forces impacting the development of new
technologies, including issues regarding the costs of research and
development, regulatory certification and incentives designed to
stimulate the marketplace.
(d) On or before July 1 of each year, the task force shall
submit a report to the Governor and the board of Coal Mine Health
and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the
implementation of the new technological requirements set forth in the provisions of section fifty-five, article two of this chapter,
or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that
would improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would enhance technological
advancement in coal mine health and safety; and
(4) Any other information the task force considers
(e) In performing its duties, the task force shall, where
possible, consult with, among others, mine engineering and mine
safety experts, radiocommunication and telemetry experts and
relevant state and federal regulatory personnel.
(f) Appropriations to the task force commission and to
effectuate the purposes of this article shall be made to one or
more budget accounts established for that purpose.
(g) The task force shall annually compile a proposed list of
approved innovative mine safety technologies and transmit the list
to the Director of the Office of Miners' Health, Safety and
Training as provided in section four, article thirteen-BB, chapter
eleven of this code. The list shall be approved by unanimous vote
of the task force.