Senate Bill No. 354
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
____________
[Introduced March 11, 1993;
referred to the Committee on the Judiciary.]
____________
A BILL to repeal articles twenty and twenty-six, chapter sixteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal articles five, five-a,
five-b, five-c, five-d, five-e, five-f, five-g, five-h,
five-i, five-m, five-n, six-a, nine, ten and ten-a, chapter
twenty of said code; to repeal article one-a, chapter
twenty-two-a of said code; to repeal articles one-c and one-
d, chapter twenty-nine of said code; to amend and reenact
section four, article ten, chapter four of said code; to
amend and reenact section one, article three, chapter five
of said code; to amend and reenact section one, article two,
chapter five-f of said code; to amend and reenact sections
two-a and eight, article seven, chapter six of said code; to
amend and reenact section three-ff, article one, chapter
seven of said code; to amend and reenact section twenty-two,
article five of said chapter; to amend and reenact section
seventeen, article twenty, chapter eight of said code; to
amend and reenact section twenty-seven, article twenty-four
of said chapter; to amend and reenact section ten, article
one-c, chapter eleven of said code; to amend and reenact
sections one and two, article six-a of said chapter; to
amend and reenact section six, article thirteen-a of said
chapter; to amend and reenact section four, article five-a,
chapter fifteen of said code; to amend and reenact sections
nine and fourteen-a, article one, chapter sixteen of said
code; to amend and reenact sections two and three, article
nine of said chapter; to amend and reenact section six,
article twelve of said chapter; to amend and reenact section
twenty-three-a, article thirteen of said chapter; to amend
and reenact, sections one-b, three, nine and twenty-one,
article thirteen-a of said chapter; to amend and reenact
section ten, article thirteen-b of said chapter; to amend
and reenact section two, article twenty-seven of said
chapter; to amend and reenact sections four, five, six,
seven, eight and nine, article thirty-two of said chapter;
to amend and reenact section five, article one-a, chapter
nineteen of said code; to amend and reenact sections three,
five and seven, article one-b of said chapter; to amend and
reenact section five, article twelve-a of said chapter; to
amend and reenact section four, article twenty-one-a of said
chapter; to amend and reenact section five, article twenty-
five of said chapter; to amend and reenact sections two,seven and fourteen, article one, chapter twenty of said
code; to amend and reenact section six, article five-j of
said chapter; to amend and reenact sections four and twenty-
six, article seven of said chapter; to further amend said
article by adding thereto two new sections, designated
sections twenty-eight and twenty-nine; to amend and reenact
section one, article eight of said chapter; to amend and
reenact sections four, five-a, five-b, nine and twelve,
article eleven of said chapter; to amend and reenact section
three, article three-b, chapter twenty-one of said code; to
amend and reenact chapter twenty-two of said code; to amend
and reenact article one, chapter twenty-two-a of said code;
to amend and reenact sections one, two, three, seven,
twelve, twenty-three, twenty-five, thirty-three, thirty-six,
fifty-three-c, fifty-four, sixty-three, sixty-six, sixty-
eight, seventy, seventy-two, seventy-three, seventy-four,
seventy-five, seventy-six, seventy-seven and seventy-eight,
article two of said chapter; to amend and reenact articles
three, four, five, six and seven of said chapter; to further
amend said chapter by adding thereto three new articles,
designated articles eight, nine and ten; to amend and
reenact chapter twenty-two-b of said code; to amend said
code by adding thereto a new chapter, designated chapter
twenty-two-c; to amend and reenact section two, article
four, chapter twenty-three of said code; to amend and
reenact sections one-b, one-c, one-f, one-h and four-b,article two, chapter twenty-four of said code; to amend and
reenact section eleven, article two-b, chapter twenty-nine
of said code; to amend and reenact section five-a, article
three of said chapter; to amend and reenact section twenty-
a, article eighteen, chapter thirty-one of said code; to
amend and reenact section four, article nineteen of said
chapter; to amend and reenact section nine-a, article four,
chapter thirty-six of said code; to amend and reenact
section seventeen, article seven, chapter fifty-five of said
code; to amend and reenact section two, article twelve-a of
said chapter; and to amend and reenact section forty-seven,
article three, chapter sixty-one of said code, all relating
to revising, arranging and consolidating in the code laws
relating generally to the environment, the division of
environmental protection, laws administered and enforced by
the division and laws incidental thereto; and the related
criminal and civil penalties.
Be it enacted by the Legislature of West Virginia:
That article twenty and twenty-six, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that articles five, five-a, five-b, five-c,
five-d, five-e, five-f, five-g, five-h, five-i, five-m, five-n,
six-a, nine, ten and ten-a, chapter twenty of said code be
repealed; that article one-a, chapter twenty-two-a of said code
be repealed; that articles one-c and one-d, chapter twenty-nine
of said code be repealed; that section four, article ten, chapterfour of said code be amended and reenacted; that section one,
article three, chapter five of said code be amended and
reenacted; that section one, article two, chapter five-f of said
code be amended and reenacted; that sections two-a and eight,
article seven, chapter six of said code be amended and reenacted;
that section three-ff, article one, chapter seven of said code be
amended and reenacted; that section twenty-two, article five of
said chapter be amended and reenacted; that section seventeen,
article twenty, chapter eight of said code be amended and
reenacted; that section twenty-seven, article twenty-four of said
chapter be amended and reenacted; that section ten, article one-
c, chapter eleven of said code be amended and reenacted; that
sections one and two, article six-a of said chapter be amended
and reenacted; that section six, article thirteen-a of said
chapter be amended and reenacted; that section four, article
five-a, chapter fifteen of said code be amended and reenacted;
that sections nine and fourteen-a, article one, chapter sixteen
of said code be amended and reenacted; that sections two and
three, article nine of said chapter be amended and reenacted;
that section six, article twelve of said chapter be amended and
reenacted; that section twenty-three-a, article thirteen of said
chapter be amended and reenacted; that sections one-b, three,
nine and twenty-one, article thirteen-a of said chapter be
amended and reenacted; that section ten, article thirteen-b of
said chapter be amended and reenacted; that section two, article
twenty-seven of said chapter be amended and reenacted; thatsections four, five, six, seven, eight and nine, article thirty-
two of said chapter be amended and reenacted; that section five,
article one-a, chapter nineteen of said code be amended and
reenacted; that sections three, five and seven, article one-b of
said chapter be amended and reenacted; that section five, article
twelve-a of said chapter be amended and reenacted; that section
four, article twenty-one-a of said chapter be amended and
reenacted; that section five, article twenty-five of said chapter
be amended and reenacted; that sections two, seven and fourteen,
article one, chapter twenty of said code be amended and
reenacted; that section six, article five-j of said code be
amended and reenacted; that sections four and twenty-six, article
seven of said chapter be amended and reenacted; that said article
be further amended by adding thereto two new sections, designated
sections twenty-eight and twenty-nine; that section one, article
eight of said chapter be amended and reenacted; that sections
four, five-a, five-b, nine and twelve, article eleven of said
chapter be amended and reenacted; that section three, article
three-b, chapter twenty-one of said code be amended and
reenacted; that chapter twenty-two of said code be amended and
reenacted; that article one, chapter twenty-two-a of said code be
amended and reenacted; that sections one, two, three, seven,
twelve, twenty-three, twenty-five, thirty-three, thirty-six,
fifty-three-c, fifty-four, sixty-three, sixty-six, sixty-eight,
seventy, seventy-two, seventy-three, seventy-four, seventy-five,
seventy-six, seventy-seven and seventy-eight, article two of saidchapter be amended and reenacted; that articles three, four,
five, six and seven of said chapter be amended and reenacted;
that said chapter be further amended by adding thereto three new
articles, designated articles eight, nine and ten; that chapter
twenty-two-b of said code be amended and reenacted; that said
code be amended by adding thereto a new chapter, designated
chapter twenty-two-c; that section two, article four, chapter
twenty-three of said code be amended and reenacted; that sections
one-b, one-c, one-f, one-h and four-b, article two, chapter
twenty-four of said code be amended and reenacted; that section
eleven, article two-b; chapter twenty-nine of said code be
amended and reenacted; that section five-a, article three of said
chapter be amended and reenacted; that section twenty-a, article
eighteen, chapter thirty-one of said code be amended and
reenacted; that section four, article nineteen of said chapter be
amended and reenacted; that section nine-a, article four, chapter
thirty-six of said code be amended and reenacted; that section
seventeen, article seven, chapter fifty-five of said code be
amended and reenacted; that section two, article twelve-a of said
chapter be amended and reenacted; and that section forty-seven,
article three, chapter sixty-one of said code be amended and
reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-4. Termination of governmental entities or programs.
The following governmental entities and programs shall beterminated on the date indicated but no governmental entity or
program shall be terminated under this article unless a
performance audit has been conducted of such entity or program,
except as authorized under section fourteen of this article:
(1) On the first day of July, one thousand nine hundred
eighty-one: Judicial council of West Virginia; motor vehicle
certificate appeal board; and child welfare licensing board.
(2) On the first day of July, one thousand nine hundred
eighty-two: Ohio River basin commission; commission on
postmortem examination; and the state commission on manpower,
training and technology.
(3) On the first day of July, one thousand nine hundred
eighty-three: Anatomical board; economic opportunity advisory
committee; and the community development authority board.
(4) On the first day of July, one thousand nine hundred
eighty-four: The following programs of the department of natural
resources: Rabies control, work incentive program; and the West
Virginia alcoholic beverage control licensing advisory board.
(5) On the first day of July, one thousand nine hundred
eighty-five: Beautification commission.
(6) On the first day of July, one thousand nine hundred
eighty-six: Health resources advisory council.
(7) On the first day of July, one thousand nine hundred
eighty-seven: Civil service commission advisory board; and the
motorcycle safety standards and specifications board.
(8) On the first day of July, one thousand nine hundredeighty-eight: Labor management relations board; records
management and preservation advisory committee; minimum wage rate
board; commission on mass transportation; and the public
employees insurance board.
(9) On the first day of July, one thousand nine hundred
eighty-nine: Mental retardation advisory committee; board of
school finance; veteran's affairs advisory council; and the
reclamation commission.
(10) On the first day of July, one thousand nine hundred
ninety: Consumer affairs advisory council; savings and loan
association; and the forest industries industrial foundation.
(11) On the first day of July, one thousand nine hundred
ninety-one: The following divisions or programs of the
department of agriculture: Interagency committee on pesticides.
(12) On the first day of July, one thousand nine hundred
ninety-three: State structural barriers compliance board; the
oil and gas inspectors examining board; the tree fruit industry
self-improvement program; the oil and gas conservation
commission; governor's cabinet on children and families; state
water resources board; board of banking and financial
institutions; farm management commission; state building
commission; capitol building commission; West Virginia ethics
commission; public service commission; family protection services
board; family law masters system; and the child advocate office
of the department of health and human resources.
(13) On the first day of July, one thousand nine hundredninety-four: Ohio River valley water sanitation commission; the
southern regional education board; real estate commission; the
division of labor; division of tourism and parks; division of
corrections; and the veteran's council.
(14) On the first day of July, one thousand nine hundred
ninety-five: Emergency medical services advisory council;
commission on charitable organizations; information system
advisory commission; West Virginia labor-management council; and
the board of social work examiners; and the rural health
initiative advisory panel and the marketing division and
development division of the department of agriculture.
(15) On the first day of July, one thousand nine hundred
ninety-six: U.S. geological survey program and whitewater
commission within the division of natural resources; state
geological and economic survey; division of culture and history;
and the board of investments.
(16) On the first day of July, one thousand nine hundred
ninety-seven: The driver's licensing advisory board; department
of health and human resources; West Virginia health care cost
review authority; division of personnel; and the West Virginia
contractors licensing board.
(17) On the first day of July, one thousand nine hundred
ninety-eight: State lottery commission; the following divisions
or programs of the department of agriculture: Meat inspection
program and soil conservation committee; women's commission;
state board of risk and insurance management; board of examinersof land surveyors; commission on uniform state laws; council of
finance and administration; forest management review commission;
West Virginia's membership in the interstate commission on the
Potomac River basin; legislative oversight commission on
education accountability; and the board of examiners in
counseling.
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 3. ATTORNEY GENERAL.
§5-3-1. Written opinions and advice and other legal services;
expenditures by state officers, boards and commissions for
legal services prohibited.
The attorney general shall give written opinions and advice
upon questions of law and shall prosecute and defend suits,
actions and other legal proceedings, and generally render and
perform all other legal services, whenever required to do so, in
writing, by the governor, the secretary of state, the auditor,
the state superintendent of free schools, the treasurer, the
commissioner of agriculture, the board of public works, the tax
commissioner, the state archivist and historian, the commissioner
of banking, the adjutant general, the director of the division of
environmental protection, the superintendent of public safety,
the state commissioner of public institutions, the commissioner
of the division of highways, the commissioner of the bureau ofemployment programs, the public service commission or any other
state officer, board or commission or the head of any state
educational, correctional, penal or eleemosynary institution; and
it is unlawful from and after the time this section becomes
effective for any of the public officers, commissions or other
persons above mentioned to expend any public funds of the state
of West Virginia for the purpose of paying any person, firm or
corporation for the performance of any legal services:
Provided,
That nothing contained in this section impairs or affects any
existing valid contracts of employment for the performance of
legal services heretofore made.
It is also the duty of the attorney general to render to the
president of the Senate and/or the speaker of the House of
Delegates a written opinion or advice upon any questions
submitted to the attorney general by them or either of them
whenever he or she is requested in writing so to do.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Council of finance and administration provided for in
article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in article
one-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in
article four-a, chapter five-a of this code;
(6) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen and article six-a,
chapter twenty-nine of this code;
(8) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(9) Boundary commission provided for in article twenty-
three, chapter twenty-nine of this code;
(10) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(11) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(12) The West Virginia ethics commission provided for in
article two, chapter six-b of this code; and
(13) Consolidated public retirement board provided for in
article ten-d, chapter five of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of commerce, labor and environmental resources:
(1) Forest management review commission provided for in
article twenty-four, chapter five of this code;
(2) Division of tourism and parks provided for in article
one, chapter five-b of this code;
(3) Office of community and industrial development or
successor agency provided for in article two, chapter five-b of
this code;
(4) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(5) Office of federal procurement assistance provided for in
article two-c, chapter five-b of this code;
(6) Labor-management council provided for in article four,
chapter five-b of this code;
(7) Public energy authority and board provided for in
chapter five-d of this code;
(8) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(9) Solid waste management board provided for in article
three, chapter twenty-two-c of this code;
(10) Division of forestry and forestry commission provided
for in article one-a, chapter nineteen of this code;
(11) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code;
(12) Environmental quality board provided for in article
three, chapter twenty-two-b of this code;
(13) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(14) Division of labor provided for in article one, chapter
twenty-one of this code;
(15) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this code;
(16) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(17) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(18) Surface mine board provided for in article four,
chapter twenty-two-b of this code;
(19) Board of appeals provided for in article five, chapter
twenty-two-a of this code;
(20) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two-a of this code;
(21) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code;
(22) Oil and gas conservation commission provided for in
article nine, chapter twenty-two-c of this code;
(23) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code;
(24) Mine inspectors' examining board provided for in
article nine, chapter twenty-two-a of this code;
(25) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(26) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(27) Blennerhassett historical state park commission
provided for in article eight, chapter twenty-nine of this code;
(28) Economic development authority provided for in article
fifteen, chapter thirty-one of this code;
(29) Division of banking provided for in article two,
chapter thirty-one-a of this code;
(30) Board of banking and financial institutions provided
for in article three, chapter thirty-one-a of this code;
(31) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(32) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of thedepartment of education and the arts:
(1) Library commission provided for in article one, chapter
ten of this code;
(2) Educational broadcasting authority provided for in
article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two, chapter eighteen-b of this code and board of
directors of the state college system provided for in article
three of said chapter; and
(4) Division of culture and history provided for in article
one, chapter twenty-nine of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Division of health provided for in article one, chapter
sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Hospital finance authority provided for in articletwenty-nine-a, chapter sixteen of this code;
(6) Health care cost review authority provided for in
article twenty-nine-b, chapter sixteen of this code;
(7) Structural barriers compliance board provided for in
article ten-f, chapter eighteen of this code;
(8) Commission on aging provided for in article fourteen,
chapter twenty-nine of this code;
(9) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code; and
(10) Women's commission provided for in article twenty,
chapter twenty-nine of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) Division of public safety provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code andemergency response commission provided for in article five-a of
said chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty-
five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Appraisal control and review commission provided for in
article one-a, chapter eleven of this code;
(3) Municipal bond commission provided for in article three,
chapter thirteen of this code;
(4) Racing commission provided for in article twenty-three,chapter nineteen of this code;
(5) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(6) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(7) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article
two, chapter sixty of this code; and
(8) Division of professional and occupational licenses which
may be hereafter created by the Legislature.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of transportation:
(1) Road commission provided for in article two, chapter
seventeen of this code;
(2) Division of highways provided for in article two-a,
chapter seventeen of this code;
(3) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(4) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for inarticle two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(7) Railroad maintenance authority provided for in article
eighteen, chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency are not
affected by the enactment of this chapter.
(i) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of such boards are not affected by the
enactment of this chapter, and all boards which are appellate
bodies or were otherwise established to be independent decision
makers do not have their appellate or independent decision-making
status affected by the enactment of this chapter.
(j) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, onethousand nine hundred eighty-nine, and subsequent amendments
thereto, shall henceforth be read, construed and understood to
mean a division of the appropriate department so created.
Wherever elsewhere in this code, in any act, in general or other
law, in any rule, or in any ordinance, resolution or order,
reference is made to any department transferred to and
incorporated in a department created in section two, article one
of this chapter, such reference shall henceforth be read,
construed and understood to mean a division of the appropriate
department so created, and any such reference elsewhere to a
division of a department so transferred and incorporated shall
henceforth be read, construed and understood to mean a section of
the appropriate division of the department so created.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers;
appointment; qualifications; powers and salaries of such
officers.
(a) Notwithstanding any other provision of this code to the
contrary, each of the following appointive state officers named
in this subsection shall be appointed by the governor, by and
with the advice and consent of the Senate. Each of such
appointive state officers serves at the will and pleasure of the
governor for the term for which the governor was elected and
until the respective state officers' successors have been
appointed and qualified. Each of such appointive state officersis subject to the existing qualifications for holding each such
respective office and each has all of the powers and authority
and shall perform all of the functions and services previously
vested in and performed by virtue of existing law respecting each
such office.
Beginning on the first day of January, one thousand nine
hundred ninety, the annual salary of each such named appointive
state officer is as follows:
Administrator, division of highways, sixty thousand dollars;
administrator, division of health, fifty-seven thousand two
hundred dollars; administrator, division of human services,
forty-seven thousand eight hundred dollars; administrator, state
tax division, forty-nine thousand nine hundred dollars;
administrator, division of environmental protection, sixty-five
thousand dollars; administrator, division of finance and
administration, forty-seven thousand eight hundred dollars;
administrator, division of corrections, forty-five thousand
dollars; administrator, division of community and industrial
development, sixty-three thousand six hundred dollars;
administrator, division of workers' compensation, forty-five
thousand dollars; administrator, division of commerce, sixty-two
thousand five hundred dollars; administrator, division of natural
resources, forty-seven thousand eight hundred dollars;
administrator, division of public safety, forty-four thousand six
hundred dollars; administrator, lottery division, sixty thousand
dollars; director, public employees insurance agency, fifty-fivethousand dollars; administrator, division of employment security,
forty-five thousand dollars; administrator, division of banking,
thirty-eight thousand three hundred dollars; administrator,
division of insurance, thirty-six thousand seven hundred dollars;
administrator, division of culture and history, thirty-eight
thousand three hundred dollars; chairman, public service
commission, fifty thousand dollars; members, public service
commission, forty-six thousand two hundred dollars;
administrator, alcohol beverage control commission, thirty-eight
thousand three hundred dollars; administrator, division of motor
vehicles, forty thousand dollars; director, division of
personnel, thirty-eight thousand three hundred dollars; adjutant
general, thirty-five thousand seven hundred dollars; chairman,
health care cost review authority, forty thousand dollars;
members, health care cost review authority, thirty-six thousand
five hundred dollars; director, human rights commission, forty
thousand dollars; administrator, division of labor, thirty-five
thousand seven hundred dollars; administrator, division of
veterans affairs, thirty-two thousand dollars; administrator,
division of emergency services, thirty-two thousand dollars;
administrator, nonintoxicating beer commission, thirty-two
thousand dollars; members, board of probation and parole, twenty-
eight thousand three hundred dollars; members, employment
security review board, seventeen thousand dollars; members,
workers' compensation appeal board, seventeen thousand eight
hundred dollars.
Prior to the first day of January, one thousand nine hundred
ninety, each of the aforesaid officers shall continue to receive
the annual salaries they were receiving as of the last day of
March, one thousand nine hundred eighty-nine.
(b) Notwithstanding any other provisions of this code to the
contrary, each of the state officers named in this subsection
shall continue to be appointed in the manner prescribed in this
code, and shall be paid an annual salary as follows:
Chancellor, board of regents, seventy thousand dollars;
state superintendent of schools, seventy thousand dollars;
administrator, division of risk and insurance management, forty-
two thousand dollars; director, division of rehabilitation
services, fifty-five thousand dollars; executive director,
educational broadcasting authority, forty-seven thousand five
hundred dollars; secretary, library commission, forty-seven
thousand five hundred dollars; director, geologic and economic
survey, forty-seven thousand five hundred dollars; executive
director, water development authority, fifty-four thousand two
hundred dollars; executive secretary, teacher's retirement
system, forty-seven thousand two hundred dollars; executive
secretary, public employees retirement system, forty thousand one
hundred dollars; executive director, public legal services
council, forty seven thousand five hundred dollars; director,
commission on aging, forty thousand dollars; commissioner, oil
and gas conservation commission, forty thousand dollars;
director, farm management commission, thirty-two thousand fivehundred dollars; state fire administrator, twenty-five thousand
two hundred dollars; executive secretary, municipal bond
commission, thirty thousand two hundred dollars; director,
railroad maintenance authority, thirty-two thousand five hundred
dollars; executive secretary, women's commission, thirty thousand
one hundred dollars; executive director, regional jail authority,
forty-two thousand six hundred dollars; director, hospital
finance authority, twenty-five thousand eight hundred dollars.
(c) No increase in the salary of any appointive state
officer pursuant to this section shall be paid until and unless
such appointive state officer has first filed with the state
auditor and the legislative auditor a sworn statement, on a form
to be prescribed by the attorney general, certifying that such
spending unit is in compliance with any general law providing for
a salary increase for his or her employees. The attorney general
shall prepare and distribute such form to the affected spending
units:
Provided, That no decrease in salary is effective for any
current appointive state officer appointed prior to the first day
of January, one thousand nine hundred eighty-nine:
Provided,
however, That such decreases take effect at such time as any
appointive office is vacated.
§6-7-8. Public carriage for state officials and employees and
the state board of regents.
State law-enforcement officials, including, but not limited
to, the director of the division of public safety, the adjutant
general of the West Virginia national guard, the director of theoffice of emergency services, the director of the division of
natural resources, the director of the division of environmental
protection, the commissioner of the division of corrections, the
state fire marshal, state fire administrator and officials of the
state board of regents, at the discretion of the chancellor
thereof, have the authority to use, and permit and allow or
disallow their designated employees to use, publicly provided
carriage to travel from their residences to their workplace and
return:
Provided, That such usage is subject to the supervision
of such official and is directly connected with and required by
the nature and in the performance of such official's or
designated employee's duties and responsibilities.
CHAPTER 7. TRAINING PROGRAMS FOR COUNTY EMPLOYEES, ETC.;
COMPENSATION OF ELECTED COUNTY OFFICIALS; COUNTY ASSISTANTS,
DEPUTIES AND EMPLOYEES, THEIR NUMBER AND COMPENSATION.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Duty to require clearance of refuse and debris from
private lands; notice of demand thereof; procedure to
contest demand.
In addition to all other powers and duties conferred by law
upon county commissions, as set forth in this article, and county
health officers, as set forth in section two, article two,
chapter sixteen of this code, such commissions and health
officers are hereby authorized and obliged to require clearance
of any refuse or debris consisting of remnants or remains of any
unused or unoccupied dwelling, nonfarm building, structure ormanmade appurtenance on all private lands within their respective
scopes of authority by the owners thereof that has accumulated as
the result of any natural or manmade force or effect which
presents a safety or health hazard or which has deteriorated to
such a degree as to be unsightly, visually offensive and be
depressive of the value of the adjacent properties or uses of
such properties.
Upon a determination by a county commission or county health
officer that substantial accumulations of refuse or the presence
of debris, as described above, exist on any such private lands,
notice shall be forwarded to the owner thereof informing the
landowner of the following:
(a) The commission's or health officer's demand to remove
all refuse and debris within ninety days of the receipt of such
notice unless an extension be granted by said commission or
health officer;
(b) The landowner's right to contest such demand and of the
proper procedure in which to do so;
(c) That if the landowner fails to both properly contest and
comply with the commission's or health officer's demand, that
removal will be achieved otherwise and that the reasonable costs
incurred thereto will become a civil debt owed by the landowner
to the county;
(d) That if the county incurs costs of removal and the
landowner fails to pay such costs within two months of such
removal that a judgment lien on the subject property will befiled in the county clerk's office wherein the subject property
exists.
The commission or health officer shall send notice as
described herein by certified mail. If, for any reason, such
certified mail is returned without evidence of proper receipt
thereof, then in such event, a Class III-0 legal advertisement
shall be published in a newspaper of general circulation in the
county wherein such land is situated, in order to render proper
notice in accordance with this section:
Provided, That if the
commission or health officer determines, after notice and inquiry
as provided herein, that such refuse or debris was created by
someone other than the present landowner, without such
landowner's expressed or implied permission, the commission or
health officer shall remove any such refuse or debris and shall
apply to and be eligible to receive from the solid waste
reclamation and environmental response fund created under section
eleven, article fifteen, chapter twenty-two of this code for
reimbursement for all reasonable costs incurred for such removal.
In the event any landowner desires to contest any demand
brought forth pursuant to this section, the landowner shall do so
in accordance with article three, chapter fifty-eight of this
code.
ARTICLE 5. FISCAL AFFAIRS.
§7-5-22. County solid waste assessment fees authorized.
Each county or regional solid waste authority is hereby
authorized to impose a similar solid waste assessment fee to thatimposed by section ten, article fifteen, chapter twenty-two of
this code at a rate not to exceed fifty cents per ton or part
thereof upon the disposal of solid waste in that county or
region. All assessments due shall be applied to the reasonable
costs of administration of the county's regional or county solid
waste authority including the necessary and reasonable expenses
of its members and any other expenses incurred from refuse
cleanup, litter control programs or any solid waste programs
deemed necessary to fulfill its duties.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 20. COMBINED WATERWORKS AND SEWERAGE SYSTEMS.
§8-20-17. Additional and alternative method for constructing,
etc., and financing combined waterworks and sewerage system;
cumulative authority.
This article is, without reference to any other statute or
charter provision, full authority for the acquisition,
construction, establishment, extension, equipment, additions,
betterment, improvement, repair, maintenance and operation of or
to the combined waterworks and sewerage system herein provided
for and for the issuance and sale of the bonds by this article
authorized, and is an additional and alternative method therefor
and for the financing thereof, and no petition, referendum or
election or other or further proceeding with respect to any such
undertaking or to the issuance or sale of bonds under this
article and no publication of any resolution, ordinance, notice
or proceeding relating to any such undertaking or to the issuanceor sale of such bonds is required, except as prescribed by this
article, any provisions of other statutes of the state to the
contrary notwithstanding:
Provided, That all functions, powers
and duties of the bureau of public health and the division of
environmental protection remain unaffected by this article.
This article is cumulative authority for any undertaking
herein authorized, and does not repeal any existing laws with
respect thereto.
ARTICLE 24. PLANNING AND ZONING.
§8-24-27. Cooperation between planning commissions; cooperation
between commissions and governing and administrative bodies
and officials.
In the exercise of the powers and authority granted by this
article, the planning commission of any municipality or county
may cooperate with the planning commissions or governing and
administrative bodies and officials of other municipalities
within or without such county and of other counties, with a view
to coordinating and integrating the planning and zoning of such
municipality or county with the plans of such other
municipalities and of such other counties, and may appoint such
committee or committees and may adopt such rules and regulations
as may be thought proper to effect such cooperation. Such
planning commissions and governing and administrative bodies and
officials of other municipalities and counties are hereby
authorized to cooperate with such municipal or county planning
commissions for the purposes of such coordination andintegration. Similarly, such municipal or county planning
commissions may cooperate with the division of environmental
protection of this state and make use of advice and information
furnished by such division and by other appropriate state and
federal officials, departments and agencies, and all state
departments and agencies having information, maps and data
pertinent to the planning and zoning of such municipality or
county may make such available for the use of such planning
commissions.
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-10. Valuation of industrial property and natural
resources property by tax commissioner; penalties; methods;
values sent to assessors.
(a) As used in this section:
(1) "Industrial property" means real and personal property
integrated as a functioning unit intended for the assembling,
processing and manufacturing of finished or partially finished
products.
(2) "Natural resources property" means coal, oil, natural
gas, limestone, fireclay, dolomite, sandstone, shale, sand and
gravel, salt, lead, zinc, manganese, iron ore, radioactive
minerals, oil shale, managed timberland as defined in section two
of this article and other minerals.
(b) All owners of industrial property and natural resources
property each year shall make a return to the state taxcommissioner and, if requested in writing by the assessor of the
county where situated, to such county assessor at a time and in
the form specified by the commissioner of all industrial or
natural resources property owned by them. The commissioner may
require any information to be filed which would be useful in
valuing the property covered in the return. Any penalties
provided for in this chapter or elsewhere in this code relating
to failure to list any property or to file any return or report
may be applied to any owner of property required to make a return
pursuant to this section.
(c) The state tax commissioner shall value all industrial
property in the state at its fair market value within three years
of the approval date of the plan for industrial property required
in subsection (e) of this section. The commissioner shall
thereafter maintain accurate values for all such property. The
tax commissioner shall forward each industrial property appraisal
to the county assessor of the county in which that property is
located and the assessor shall multiply each such appraisal by
sixty percent and include the resulting assessed value in the
land book or the personal property book, as appropriate for each
tax year. The commissioner shall supply support data that the
assessor might need to evaluate the appraisal.
(d) Within three years of the approval date of the plan
required for natural resources property required pursuant to
subsection (e) of this section, the state tax commissioner shall
determine the fair market value as defined in section one,article three of this chapter of all natural resources property
in the state. The commissioner shall thereafter maintain
accurate values for all such property.
(1) In order to qualify for identification as managed
timberland for property tax purposes the owner must annually
certify, in writing to the division of forestry, that the
property meets the definition of managed timberland as set forth
in this article and contracts to manage property according to a
plan that will maintain the property as managed timberland. In
addition, each owner's certification must state that forest
management practices will be conducted in accordance with
approved practices from the publication "Best Management
Practices for Forestry". Property certified as managed
timberland shall be valued according to its use and productive
potential. The tax commissioner shall promulgate rules for
certification as managed timberland.
(2) In the case of all other natural resources property, the
commissioner shall develop an inventory on a county by county
basis of all such property and may use any resources, including,
but not limited to, geological survey information; exploratory,
drilling, mining and other information supplied by natural
resources property owners; and maps and other information on file
with the state division of environmental protection and office of
miners' health, safety and training. Any information supplied by
natural resources owners or any proprietary or otherwise
privileged information supplied by the state division ofenvironmental protection and office of miners' health, safety and
training shall be kept confidential unless needed to defend an
appraisal challenged by a natural resources owner. Formulas for
natural resources valuation may contain differing variables based
upon known geological or other common factors. The tax
commissioner shall forward each natural resources property
appraisal to the county assessor of the county in which that
property is located and the assessor shall multiply each such
appraisal by sixty percent and include the resulting assessed
value in the land book or the personal property book, as
appropriate, for each tax year. The commissioner shall supply
support data that the assessor might need to explain or defend
the appraisal. The commissioner shall directly defend any
challenged appraisal when the assessed value of the property in
question exceeds two million dollars or an owner challenging an
appraisal holds or controls property situated in the same county
with an assessed value exceeding two million dollars. At least
every five years, the commissioner shall review current
technology for the recovery of natural resources property to
determine if valuation methodologies need to be adjusted to
reflect changes in value which result from development of new
recovery technologies.
(e) The tax commissioner shall develop a plan for the
valuation of industrial property and a plan for the valuation of
natural resources property. The plans shall include expected
costs and reimbursements, and shall be submitted to the propertyvaluation training and procedures commission on or before the
first day of January, one thousand nine hundred ninety-one, for
its approval on or before the first day of July of such year.
Such plan shall be revised, resubmitted to the commission and
approved every three years thereafter.
(f) To perform the valuation duties under this section, the
state tax commissioner has the authority to contract with a
competent property appraisal firm or firms to assist with or to
conduct the valuation process as to any discernible species of
property statewide if the contract and the entity performing such
contract is specifically included in a plan required by
subsection (e) of this section or otherwise approved by the
commission. If the tax commissioner desires to contract for
valuation services only in one county or a group of counties, the
contract must be approved by the commission.
(g) The county assessor may accept the appraisal provided,
pursuant to this section, by the state tax commissioner:
Provided, That if the county assessor fails to accept the
appraisal provided by the state tax commissioner, the county
assessor shall show just cause to the valuation commission for
the failure to accept such appraisal and shall further provide to
the valuation commission a plan by which a different appraisal
will be conducted.
(h) The costs of appraising the industrial and natural
resources property within each county, and any costs of defending
same shall be paid by the state:
Provided, That the office ofthe state attorney general shall provide legal representation on
behalf of the tax commissioner or assessor, at no cost, in the
event the industrial and natural resources appraisal is
challenged in court.
(i) For purposes of revaluing managed timberland as defined
in section two of this article, any increase or decrease in
valuation by the commissioner does not become effective prior to
the first day of July, one thousand nine hundred ninety-one. The
property owner may request a hearing by the director of the
division of forestry, who may thereafter rescind the
disqualification or allow the property owner a reasonable period
of time in which to qualify the property. A property owner may
appeal a disqualification to the circuit court of the county in
which the property is located.
ARTICLE 6A. POLLUTION CONTROL FACILITIES TAX TREATMENT.
§11-6A-1. Declaration of policy.
It is declared to be the public policy of the state of West
Virginia to maintain reasonable standards of purity and quality
of the water of the state and a reasonable degree of purity of
the air resources of the state. In the exercise of the police
power of the state to protect the environment and promote the
public health, safety and general welfare, the Legislature has
enacted the water pollution control act as article eleven,
chapter twenty-two of this code and the air pollution control act
as article five of said chapter. It is recognized and declared
by the Legislature that pollution control facilities, ashereinafter defined, are required for the protection and benefit
of the environment and the general welfare of the people, are
nonproductive, do not add to the economic value of a business
enterprise and do not have a market value after installation in
excess of salvage value.
§11-6A-2. Definition.
As used in this article, "pollution control facility" means
any personal property designed, constructed or installed
primarily for the purpose of abating or reducing water or air
pollution or contamination by removing, altering, disposing,
treating, storing or dispersing the concentration of pollutants,
contaminants, wastes or heat in compliance with air or water
quality or effluent standards prescribed by or promulgated under
the laws of this state or the United States, the design,
construction and installation of which personal property was
approved as a pollution control facility by either the office of
water resources or the office of air quality, both of the
division of environmental protection, as the case may be.
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-6. Additional tax on the severance, extraction and
production of coal; dedication of additional tax for benefit
of counties and municipalities; distribution of major
portion of such additional tax to coal-producing counties;
distribution of minor portion of such additional tax to all
counties and municipalities; reports; rules; creation of
special funds in office of state treasurer; method and
formulas for distribution of such additional tax;
expenditure of funds by counties and municipalities for
public purposes; special funds in counties and
municipalities; and requiring special county and municipal
budgets and reports thereon.
(a) Additional coal severance tax. -- Upon every person
exercising the privilege of engaging or continuing within this
state in the business of severing coal or preparing coal (or both
severing and preparing coal) for sale, profit or commercial use,
there is hereby imposed an additional severance tax, the amount
of which shall be equal to the value of the coal severed or
prepared (or both severed and prepared), against which the tax
imposed by section three of this article is measured as shown by
the gross proceeds derived from the sale thereof by the producer,
multiplied by thirty-five one hundredths of one percent. The tax
imposed by this subsection shall be in addition to the tax
imposed by section three of this article, and this additional tax
is hereinafter in this section referred to as the "additional tax
on coal".
(b) This additional tax on coal is imposed pursuant to the
provisions of section six-a, article X of the constitution of
West Virginia. Seventy-five percent of the net proceeds of this
additional tax on coal shall, after appropriation thereof by the
Legislature, be distributed by the state treasurer in the manner
hereinafter specified, to the various counties of this state in
which the coal upon which this additional tax is imposed waslocated at the time it was severed from the ground. Those
counties are hereinafter in this section referred to as the
"coal-producing counties". The remaining twenty-five percent of
the net proceeds of this additional tax on coal shall be
distributed, after appropriation, among all the counties and
municipalities of this state in the manner hereinafter specified.
(c) Such additional tax on coal shall be due and payable,
reported and remitted as elsewhere provided in this article for
the tax imposed by said section three of this article, and all of
the enforcement and other provisions of this article shall apply
to such additional tax. In addition to the reports and other
information required under the provisions of this article and the
tonnage reports required to be filed under the provisions of
section seventy-seven, article two, chapter twenty-two-a of this
code, the tax commissioner is hereby granted plenary power and
authority to promulgate reasonable rules requiring the furnishing
by producers of such additional information as may be necessary
to compute the allocation required under the provisions of
subsection (f) of this section. The tax commissioner is also
hereby granted plenary power and authority to promulgate such
other reasonable rules as may be necessary to implement the
provisions of this section:
Provided, That notwithstanding any
language contained in this code to the contrary, the gross amount
of additional tax on coal collected under this article shall be
paid over and distributed without the application of any credits
against the tax imposed by this section.
(d) In order to provide a procedure for the distribution of
seventy-five percent of the net proceeds of such additional tax
on coal to such coal-producing counties, there is hereby
continued in the state treasurer's office the special fund known
as the "county coal revenue fund"; and in order to provide a
procedure for the distribution of the remaining twenty-five
percent of the net proceeds of such additional tax on coal to all
counties and municipalities of the state, without regard to coal
having been produced therein, there is also hereby continued in
the state treasurer's office the special fund known as the "all
counties and municipalities revenue fund".
Seventy-five percent of the net proceeds of such additional
tax on coal shall be deposited in the "county coal revenue fund"
and twenty-five percent of such net proceeds shall be deposited
in the "all counties and municipalities revenue fund", from time
to time, as such proceeds are received by the tax commissioner.
The moneys in such funds shall, after appropriation thereof by
the Legislature, be distributed to the respective counties and
municipalities entitled thereto in the manner set forth in
subsection (e) of this section.
(e) The moneys in the "county coal revenue fund" and the
moneys in the "all counties and municipalities revenue fund"
shall be allocated among and distributed quarterly to the
counties and municipalities entitled thereto by the state
treasurer in the manner hereinafter specified. On or before each
distribution date, the state treasurer shall determine the totalamount of moneys in each fund which will be available for
distribution to the respective counties and municipalities
entitled thereto on that distribution date. The amount to which
a coal-producing county is entitled from the "county coal revenue
fund" shall be determined in accordance with subsection (f) of
this section, and the amount to which every county and
municipality shall be entitled from the "all counties and
municipalities revenue fund" shall be determined in accordance
with subsection (g) of this section. After determining as set
forth in subsections (f) and (g) of this section the amount each
county and municipality is entitled to receive from the
respective fund or funds, a warrant of the state auditor for the
sum due to such county or municipality shall issue and a check
drawn thereon making payment of such sum shall thereafter be
distributed to such county or municipality.
(f) The amount to which a coal-producing county is entitled
from the "county coal revenue fund" shall be determined by: (1)
Dividing the total amount of moneys in such fund then available
for distribution by the total number of tons of coal mined in
this state during the preceding quarter; and (2) multiplying the
quotient thus obtained by the number of tons of coal removed from
the ground in such county during the preceding quarter.
(g) The amount to which each county and municipality is
entitled from the "all counties and municipalities revenue fund"
shall be determined in accordance with the provisions of this
subsection. For purposes of this subsection "population" meansthe population as determined by the most recent decennial census
taken under the authority of the United States:
(1) The treasurer shall first apportion the total amount of
moneys available in the "all counties and municipalities revenue
fund" by multiplying the total amount in such fund by the
percentage which the population of each county bears to the total
population of the state. The amount thus apportioned for each
county is the county's "base share".
(2) Each county's "base share" shall then be subdivided into
two portions. One portion is determined by multiplying the "base
share" by that percentage which the total population of all
unincorporated areas within the county bears to the total
population of the county, and the other portion is determined by
multiplying the "base share" by that percentage which the total
population of all municipalities within the county bears to the
total population of the county. The former portion shall be paid
to the county and the latter portion shall be the
"municipalities' portion" of the county's "base share". The
percentage of such latter portion to which each municipality in
the county is entitled shall be determined by multiplying the
total of such latter portion by the percentage which the
population of each municipality within the county bears to the
total population of all municipalities within the county.
(h) All counties and municipalities shall create a "coal
severance tax revenue fund" which shall be the depository for
moneys distributed to any county or municipality under theprovisions of this section, from either or both special funds.
Moneys in such "coal severance tax revenue funds", in compliance
with subsection (i) of this section, may be expended by the
county commission or governing body of the municipality for such
public purposes as the county commission or governing body shall
determine to be in the best interest of the people of its
respective county or municipality:
Provided, That in counties
with population in excess of two hundred thousand at least
seventy-five percent of such funds received from the county coal
revenue fund shall be apportioned to, and expended within the
coal-producing area or areas of the county, said coal-producing
areas of each county to be determined generally by the state tax
commissioner:
Provided, however, That a line item budgeted
amount from the current levy estimated for a county shall be
funded at one hundred percent of the preceding year's expenditure
from the county general fund prior to the use of coal severance
tax revenue fund moneys for the same general purpose:
Provided
further, That said coal severance tax revenue fund moneys shall
not be budgeted for personal services in an amount to exceed one
fourth of the total funds available in such fund.
(i) On or before the twenty-eighth day of March, one
thousand nine hundred eighty-six, and each twenty-eighth day of
March thereafter, each county commission or governing body of a
municipality receiving such revenue shall submit to the tax
commissioner on forms provided by the tax commissioner a special
budget, detailing how such revenue is to be spent during thesubsequent fiscal year. Such budget shall be followed in
expending such revenue unless a subsequent budget is approved by
the state tax commissioner. All unexpended balances remaining in
said special fund at the close of a fiscal year shall be
reappropriated to the budget for the subsequent fiscal year.
Such reappropriation shall be entered as an amendment to the new
budget and submitted to the tax commissioner on or before the
fifteenth day of July of the current budget year.
(j) On or before the fifteenth day of December, one thousand
nine hundred eighty-six, and each fifteenth day of December
thereafter, the tax commissioner shall deliver to the clerk of
the Senate and the clerk of the House of Delegates a consolidated
report of the special budgets, created by subsection (i) of this
section, for all county commissions and municipalities as of the
fifteenth day of July of the current year.
(k) The state tax commissioner shall retain for the benefit
of the state from the additional taxes on coal collected the
amount of thirty-five thousand dollars annually as a fee for the
administration of such additional tax by the tax commissioner.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5A. WEST VIRGINIA EMERGENCY RESPONSE AND COMMUNITY
RIGHT-TO-KNOW ACT.
§15-5A-4. State emergency response commission created;
composition and organization, qualifications, terms,
removal, compensation, meetings.
(a) There is hereby created the state emergency responsecommission.
(b) The state emergency response commission shall consist of
eleven members, including the director of the division of
environmental protection, the commissioner of the division of
public health, the chief of the office of air quality of the
division of environmental protection, the director of the office
of emergency services, the superintendent of the division of
public safety, the commissioner of the division of highways, one
designee of the public service commission and one designee of the
state fire marshal, all of whom are members ex officio. A
representative from the chemical industry, a representative of a
municipal or volunteer fire department and a representative of
the public who is knowledgeable in the area of emergency response
shall be appointed by the governor as public members of the state
emergency response commission. The director of the office of
emergency services serves as the chair of the commission and may
cast a vote only in the event of a tie vote. Members serve
without compensation, but shall be reimbursed for all reasonable
and necessary expenses actually incurred in the performance of
their duties under this article. The initial public members
appointed by the governor shall shall serve for a term ending on
the first day of July, one thousand nine hundred ninety-one. A
successor to a public member of the commission shall be appointed
in the same manner as the original public members and has a term
of office expiring two years from the date of the expiration of
the term for which his or her predecessor was appointed. Incases of any vacancy among the public members, such vacancy shall
be filled by appointment by the governor. Any member appointed
to fill a vacancy on the commission occurring prior to the
expiration of the term for which his or her predecessor was
appointed shall be appointed for the remainder of such term.
Members appointed by the governor may be removed by the governor
in case of incompetency, neglect of duty, gross immorality or
malfeasance in office.
(c) The commission shall elect from its membership a vice
chair and appoint a secretary. The secretary need not be a
member of the commission. The vice chair shall preside over the
meetings and hearings of the commission in the absence of the
chair. The commission may appoint and employ such personnel as
may be required, whose duties shall be defined by the commission
and whose compensation, to be fixed by the commission, shall be
paid out of the state treasury, upon the requisition of the
commission, from moneys appropriated for such purposes.
(d) The commission may establish procedural rules in
accordance with chapter twenty-nine-a of the code for the
regulation of its affairs and the conduct of all proceedings
before it. All proceedings of the commission shall be entered in
a permanently bound record book, properly indexed, and the same
shall be carefully preserved and attested by the secretary of the
commission. The commission shall meet at such times and places
as may be agreed upon by the commissioners, or upon the call of
the chairman of the commission or any two members of thecommission, all of which meetings shall be general meetings for
the consideration of any and all matters which may properly come
before the commission. A majority of the commission constitutes
a quorum for the transaction of business.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE BUREAU OF PUBLIC HEALTH.
§16-1-9. Supervision over local sanitation.
No person, firm, company, corporation, institution or
association, whether public or private, county or municipal,
shall install or establish any system or method of drainage,
water supply or sewage or excreta disposal without first
obtaining a written permit to install or establish such system or
method from the commissioner of the bureau of public health or
his or her authorized representative. All such systems or
methods shall be installed or established in accordance with
plans, specifications and instructions issued by the commissioner
or which have been approved in writing by the commissioner or his
or her authorized representative.
Whenever the commissioner of the bureau of public health or
his or her authorized representative finds upon investigation
that any system or method of drainage, water supply, or sewage or
excreta disposal, whether publicly or privately owned, has not
been installed in accordance with plans, specifications and
instructions issued by the commissioner approved in writing by
the commissioner or his or her duly authorized representative,
the commissioner or his or her duly authorized representative mayissue an order requiring the owner of such system or method to
make alterations as may be necessary to correct the improper
condition. Such alterations shall be made within a reasonable
time which shall not exceed thirty days, unless a time extension
is authorized by the commissioner or his or her duly authorized
representative.
The presence of sewage or excreta being disposed of in a
manner not approved by the commissioner of the bureau of public
health or his or her authorized representative constitutes prima
facie evidence of the existence of a condition endangering public
health.
The personnel of the bureau of public health shall be
available to consult and advise with any person, firm, company,
corporation, institution or association, whether publicly or
privately owned, county or municipal, or public service
authority, as to the most appropriate design, method of operation
or alteration of any such system or method.
Any person, firm, company, corporation, institution or
association, whether public or private, county or municipal, who
violates any provisions of this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than twenty-five dollars nor more than five
hundred dollars. The continued failure or refusal of such
convicted person, firm, company, corporation, institution or
association, whether public or private, county or municipal, to
make the alterations necessary to protect the public healthrequired by the commissioner of the bureau of public health or
his or her duly authorized representative n is a separate,
distinct and additional offense for each twenty-four hour period
of such failure or refusal, and, upon conviction thereof, the
violator shall be fined not less than twenty-five dollars nor
more than five hundred dollars for each such conviction:
Provided, That none of the provisions contained in this section
apply to those commercial or industrial wastes which are subject
to the regulatory control of the West Virginia division of
environmental protection.
Magistrates have concurrent jurisdiction with the circuit
courts of this state for violations of any provisions of this
section.
§16-1-14a. Commissioner authorized to designate a representative
to serve in his or her place on certain boards and
commissions.
Notwithstanding any other provision of this code to the
contrary, the commissioner may, at his or her discretion,
designate in writing a representative to serve in his or her
stead at the meetings and in the duties of all boards and
commissions on which the commissioner is designated as a member
ex officio. Such appropriately designated representative or
proxy may act with the full power and authority of the
commissioner in voting, acting upon matters concerning the public
health and welfare and such other business as may properly be the
duty of any such said board or commission, with any suchrepresentative serving as proxy for the commissioner at his or
her will and pleasure:
Provided, That the provisions of this
section do not apply to the state board of health, the medical
licensing board, the air quality board or any other board,
commission or body on which the commissioner is designated by
this code as chairman ex officio, secretary ex officio or any
board, commission or body on which the commissioner is designated
by this code as being that person whose signature must appear on
licenses, minutes or other documents necessary to carry out the
intents and purposes of said board, commission or body.
ARTICLE 9. OFFENSES GENERALLY.
§16-9-2. Throwing or releasing dead animals or offensive
substances into waters used for domestic purposes;
penalties; jurisdiction; failure to bury or destroy
offensive substances after conviction; successive offenses.
Any person who knowingly and willfully throws, causes to be
thrown or releases any dead animal, carcass, or part thereof,
garbage, sink or shower waste, organic substance, human or animal
excrement, contents of privy vault, septic tank, cesspool or the
effluent from any cesspool or nauseous or offensive or poisonous
substances into any well, cistern, spring, brook, pond, stream or
other body of water which is used for domestic purposes, is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than twenty-five dollars nor more than two hundred
dollars. None of the provisions contained in this section shall
apply to those commercial or industrial wastes which are subjectto the regulatory control of the West Virginia division of
environmental protection.
Upon conviction of any such offense, the person convicted
shall, within twenty-four hours after such conviction, remove and
bury or cause to be buried at least three feet under the ground
or destroy or cause to be destroyed as otherwise directed by the
commissioner of the bureau of public health or his or her duly
authorized representative any of such offensive materials which
the person so convicted has thrown, caused to be thrown, released
or knowingly permitted to remain in water used for domestic
purposes, contrary to the provisions of this section, and his or
her failure or refusal to do so is a misdemeanor and a second
violation of the provisions of this section. The continued
failure or refusal of such convicted person to so bury or destroy
such offensive materials is a separate, distinct and additional
offense for each successive twenty-four hour period of such
failure or refusal. Any person convicted of any offense
described in this paragraph shall be fined not less than twenty-
five dollars nor more than two hundred dollars, or imprisoned in
the county jail not more than ninety days, or both fined and
imprisoned.
§16-9-3. Depositing dead animals or offensive substances in or
near waters or on or near roads or on public or private
grounds; penalties; failure to bury or destroy offensive
substances after conviction; successive offenses.
Any person: (1) Who throws, causes to be thrown or releasesany dead animal, carcass, or part thereof, garbage, sink or
shower waste, organic substances, contents of a privy vault,
septic tank, cesspool or the effluent from any cesspool, spoiled
meat or nauseous or offensive or poisonous substances into any
river, creek or other stream, or upon the surface of any land
adjacent to any river, creek or other stream in such a location
that high water or normal drainage conditions will cause such
offensive materials to be washed, drained or cast into the river,
creek or other stream; or (2) who throws, or causes to be thrown
or releases any of such offensive materials upon the surface of
any road, right-of-way, street, alley, city or town lot, public
ground, market space, common or private land; or (3) who, being
the owner, lessee or occupant of any city or town lot, public
ground, market space, common or private land knowingly permits
any such offensive materials to remain thereon or neglects or
refuses to remove or abate the public health menace or nuisance
occasioned thereby, within twenty-four hours of the service of
notice thereof in writing from the commissioner of the bureau of
public health or his or her duly authorized representative, is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than one
thousand dollars. None of the provisions contained in this
section apply to those commercial or industrial wastes which are
subject to the regulatory control of the West Virginia division
of environmental protection.
Upon a conviction for any such offense, the person shall,within twenty-four hours after such conviction, remove and bury
or cause to be buried at least three feet under the ground, or
destroy or cause to be destroyed as otherwise directed by the
commissioner of the bureau of public health or his or her duly
authorized representative, any of such offensive materials which
the person so convicted has placed or knowingly permitted to
remain upon such city or town lot, public ground, market space,
common or private land, contrary to the provisions of this
section. Such person's failure or refusal to do so is a
misdemeanor and a second offense against the provisions of this
section. The continued failure or refusal of such convicted
person to remove and bury or destroy such offensive materials is
a separate, distinct and additional offense for each successive
twenty-four-hour period of such failure and refusal. Any person
convicted of any offense described in this paragraph shall be
fined not less than one hundred dollars nor more than one
thousand dollars, or imprisoned in the county jail not more than
ninety days, or both fined and imprisoned.
ARTICLE 12. SANITARY DISTRICTS FOR SEWAGE DISPOSAL.
§16-12-6. Penalty for failure to provide sewers and sewage
treatment plant; duties of office of water resources;
prosecution.
All sanitary districts organized under the provisions of
this article shall proceed as rapidly as possible to provide
sewers and a plant or plants for the treatment or purification of
its sewage, which plant or plants shall be of suitable kind andsufficient capacity to properly treat and purify such sewage so
as to conduce to the preservation of the public health, comfort
and convenience and to render said sewage harmless, insofar as is
reasonably possible, to animal, fish and plant life. Any
violation of this proviso and any failure to observe and follow
same, by any sanitary district organized under this article, is
a misdemeanor on the part of the sanitary district and upon
conviction, said sanitary district shall be punished by such fine
as law and equity may require, and the trustees thereof may be
removed from office as trustees of said sanitary district by an
order of the court before whom the cause is heard. It is the
duty of the division of environmental protection or the bureau of
public health or other body having proper supervision of such
matters, to enforce the foregoing provisions; and upon complaint
of said office or bureau it is the duty of the attorney general
or prosecuting attorney of the county in which such violation may
occur, to institute and prosecute such cause by indictment or in
the manner provided by law.
ARTICLE 13. SEWAGE WORKS OF MUNICIPAL CORPORATIONS AND SANITARY
DISTRICTS.
§16-13-23a. Additional powers of municipality upon receipt of
order to cease pollution.
Notwithstanding any other provision contained in this
article, and in addition thereto, the governing body of any
municipal corporation which has received or which hereafter
receives an order issued by the director of the division ofenvironmental protection or the environmental quality board
requiring such municipal corporation to cease the pollution of
any stream or waters, is hereby authorized and empowered to fix,
establish and maintain, by ordinance, just and equitable rates or
charges for the use of the services and facilities of the
existing sewer system of such municipal corporation, and/or for
the use of the services and facilities to be rendered upon
completion of any works and system necessary by virtue of said
order, to be paid by the owner, tenant or occupant of each and
every lot or parcel of real estate or building that is connected
with and uses any part of such sewer system, or that in any way
uses or is served thereby, and may change and readjust such rates
or charges from time to time. Such rates or charges shall be
sufficient for the payment of all the proper and reasonable costs
and expenses of the acquisition and construction of plants,
machinery and works for the collection and/or treatment,
purification and disposal of sewage, and the repair, alteration
and extension of existing sewer facilities, as may be necessary
to comply with such order of the director of the division of
environmental protection or the environmental quality board, and
for the operation, maintenance and repair of the entire works and
system; and the governing body shall create, by ordinance, a
sinking fund to accumulate and hold any part or all of the
proceeds derived from rates or charges until completion of said
construction, to be remitted to and administered by the municipal
bond commission by expending and paying said costs and expensesof construction and operation in the manner as provided by said
ordinance; and after the completion of the construction such
rates or charges shall be sufficient in each year for the payment
of the proper and reasonable costs and expenses of operation,
maintenance, repair, replacement, and extension from time to
time, of the entire sewer and works. No such rates or charges
shall be established until after a public hearing, at which all
the potential users of the works and owners of property served or
to be served thereby and others shall have had an opportunity to
be heard concerning the proposed rates or charges. After
introduction of the ordinance fixing such rates or charges, and
before the same is finally enacted, notice of such hearing,
setting forth the proposed schedule of such rates or charges,
shall be given by publication of such notice as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication is the municipality. The first publication
shall be made at least ten days before the date fixed therein for
the hearing. After such hearing, which may be adjourned from
time to time, the ordinance establishing the rates or charges,
either as originally introduced or as modified and amended, may
be passed and put into effect. A copy of the schedule of such
rates and charges so established shall be kept on file in the
office of the sanitary board having charge of the construction
and operation of such works, and also in the office of the clerk
of the municipality, and shall be open to inspection by allparties interested. The rates or charges so established for any
class of users or property served shall be extended to cover any
additional premises thereafter served which fall within the same
class, without the necessity of any hearing or notice. Any
change or readjustment of such rates or charges may be made in
the same manner as such rates or charges were originally
established as hereinbefore provided:
Provided, That if such
change or readjustment be made substantially pro rata, as to all
classes of service, no hearing or notice is required. If any
rate or charge so established is not paid within thirty days
after the same is due, the amount thereof, together with a
penalty of ten percent, and a reasonable attorney's fee, may be
recovered by the sanitary board of such municipal corporation in
a civil action in the name of the municipality. Any municipal
corporation exercising the powers given herein has authority to
construct, acquire, improve, equip, operate, repair and maintain
any plants, machinery, or works necessary to comply with such
order of the director of the division of environmental protection
or the environmental quality board, and the authority provided
herein to establish, maintain and collect rates or charges is an
additional and alternative method of financing such works and
matters, and is independent of any other provision of this
article insofar as such article provides for or requires the
issuance of revenue bonds or the imposition of rates and charges
in connection with such bonds:
Provided, however, That except
for the method of financing such works and matters, theconstruction, acquisition, improvement, equipment, custody,
operation, repair and maintenance of any plants, machinery or
works in compliance with an order of the director of the division
of environmental protection or the environmental quality board
and the rights, powers and duties of such municipal corporation
and the respective officers and departments thereof, including
the sanitary board, are governed by the provisions of this
article.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND
GAS SERVICES.
§16-13A-1b. County commissions to develop plan to create,
consolidate, merge, expand or dissolve public service
districts.
Each county commission shall conduct a study of all public
service districts which have their principal offices within its
county and shall develop a plan relating to the creation,
consolidation, merger, expansion or dissolution of such districts
or the consolidation or merger of management and administrative
services and personnel and shall present such plan to the public
service commission for approval, disapproval, or modification:
Provided, That within ninety days of the effective date of this
section each county commission in this state shall elect either
to perform its own study or request that the public service
commission perform such study. Each county commission electing
to perform its own study has one year from the date of election
to present such plan to the public service commission. For eachcounty wherein the county commission elects not to perform its
own study, the public service commission shall conduct a study of
such county. The public service commission shall establish a
schedule for such studies upon a priority basis, with those
counties perceived to have the greatest need of creation or
consolidation of public service districts receiving the highest
priority. In establishing the priority schedule, and in the
performance of each study, the bureau of public health and the
division of environmental protection shall offer their assistance
and cooperation to the public service commission. Upon
completion by the public service commission of each study, it
shall be submitted to the appropriate county commission for
review and comment. Each county commission has six months in
which to review the study conducted by the public service
commission, suggest changes or modifications thereof, and present
such plan to the public service commission. All county plans,
whether conducted by the county commission itself or submitted as
a result of a public service commission study, shall, by order,
be approved, disapproved or modified by the public service
commission in accordance with rules promulgated by the public
service commission and such order shall be implemented by the
county commission.
§16-13A-3. District to be a public corporation and political
subdivision; powers thereof; public service boards.
From and after the date of the adoption of the order
creating any public service district, it is a public corporationand political subdivision of the state, but without any power to
levy or collect ad valorem taxes. Each district may acquire, own
and hold property, both real and personal, in its corporate name,
and may sue, may be sued, may adopt an official seal and may
enter into contracts necessary or incidental to its purposes,
including contracts with any city, incorporated town or other
municipal corporation located within or without its boundaries
for furnishing wholesale supply of water for the distribution
system of the city, town or other municipal corporation, and
contract for the operation, maintenance, servicing, repair and
extension of any properties owned by it or for the operation and
improvement or extension by the district of all or any part of
the existing municipally owned public service properties of any
city, incorporated town or other municipal corporation included
within the district:
Provided, That no contract shall extend
beyond a maximum of forty years, but provisions may be included
therein for a renewal or successive renewals thereof and shall
conform to and comply with the rights of the holders of any
outstanding bonds issued by the municipalities for the public
service properties.
The powers of each public service district shall be vested
in and exercised by a public service board consisting of not less
than three members, who shall be persons residing within the
district who possess certain educational, business or work
experience which will be conducive to operating a public service
district. Each board member shall, within six months of takingoffice, successfully complete the training program to be
established and administered by the public service commission in
conjunction with the division of environmental protection and the
bureau of public health. Board members shall not be or become
pecuniarily interested, directly or indirectly, in the proceeds
of any contract or service, or in furnishing any supplies or
materials to the district, nor shall a former board member be
hired by the district in any capacity within a minimum of twelve
months after such board member's term has expired or such board
member has resigned from the district board. The members shall
be appointed in the following manner:
Each city, incorporated town or other municipal corporation
having a population of more than three thousand but less than
eighteen thousand is entitled to appoint one member of the board,
and each such city, incorporated town or other municipal
corporation having a population in excess of eighteen thousand
shall be entitled to appoint one additional member of the board
for each additional eighteen thousand population. The members of
the board representing such cities, incorporated towns or other
municipal corporations shall be residents thereof and shall be
appointed by a resolution of the governing bodies thereof and
upon the filing of a certified copy or copies of the resolution
or resolutions in the office of the clerk of the county
commission which entered the order creating the district, the
persons so appointed become members of the board without any
further act or proceedings. If the number of members of theboard so appointed by the governing bodies of cities,
incorporated towns or other municipal corporations included in
the district equals or exceeds three, then no further members
shall be appointed to the board and the members so appointed are
the board of the district.
If no city, incorporated town or other municipal corporation
having a population of more than three thousand is included
within the district, then the county commission which entered the
order creating the district shall appoint three members of the
board, who are persons residing within the district, which three
members become members of the board of the district without any
further act or proceedings.
If the number of members of the board appointed by the
governing bodies of cities, incorporated towns or other municipal
corporations included within the district is less than three,
then the county commission which entered the order creating the
district shall appoint such additional member or members of the
board, who are persons residing within the district, as is
necessary to make the number of members of the board equal three,
and the member or members appointed by the governing bodies of
the cities, incorporated towns or other municipal corporations
included within the district and the additional member or members
appointed by the county commission as aforesaid, are the board of
the district. A person may serve as a member of the board in one
or more public service districts.
The population of any city, incorporated town or othermunicipal corporation, for the purpose of determining the number
of members of the board, if any, to be appointed by the governing
body or bodies thereof, is the population stated for such city,
incorporated town or other municipal corporation in the last
official federal census.
Notwithstanding any provision of this code to the contrary,
whenever a district is consolidated or merged pursuant to section
two of this article, the terms of office of the existing board
members shall end on the effective date of the merger or
consolidation. The county commission shall appoint a new board
according to rules promulgated by the public service commission.
The respective terms of office of the members of the first
board shall be fixed by the county commission and shall be as
equally divided as may be, that is approximately one third of the
members for a term of two years, a like number for a term of
four, and the term of the remaining member or members for six
years, from the first day of the month during which the
appointments are made. The first members of the board appointed
as aforesaid shall meet at the office of the clerk of the county
commission which entered the order creating the district as soon
as practicable after the appointments and shall qualify by taking
an oath of office:
Provided, That any member or members of the
board may be removed from their respective office as provided in
section three-a of this article.
Any vacancy shall be filled for the unexpired term within
thirty days, otherwise successor members of the board shall beappointed for terms of six years and the terms of office shall
continue until successors have been appointed and qualified. All
successor members shall be appointed in the same manner as the
member succeeded was appointed.
The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of
its members to serve as chair and by appointing a secretary and
a treasurer who need not be members of the board. The secretary
shall keep a record of all proceedings of the board which shall
be available for inspection as other public records. Duplicate
records shall be filed with the county commission and shall
include the minutes of all board meetings. The treasurer is
lawful custodian of all funds of the public service district and
shall pay the same out on orders authorized or approved by the
board. The secretary and treasurer shall perform other duties
appertaining to the affairs of the district and shall receive
salaries as shall be prescribed by the board. The treasurer
shall furnish bond in an amount to be fixed by the board for the
use and benefit of the district.
The members of the board, and the chair, secretary and
treasurer thereof, shall make available to the county commission,
at all times, all of its books and records pertaining to the
district's operation, finances and affairs, for inspection and
audit. The board shall meet at least monthly.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; required water and sewer connections; lien for
delinquent fees.
The board may make, enact and enforce all needful rules and
regulations in connection with the acquisition, construction,
improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or
controlled by the district, and the board shall establish rates
and charges for the services and facilities it furnishes, which
shall be sufficient at all times, notwithstanding the provisions
of any other law or laws, to pay the cost of maintenance,
operation and depreciation of such public service properties and
principal of and interest on all bonds issued, other obligations
incurred under the provisions of this article and all reserve or
other payments provided for in the proceedings which authorized
the issuance of any bonds hereunder. The schedule of such rates
and charges may be based upon either: (a) The consumption of
water or gas on premises connected with such facilities, taking
into consideration domestic, commercial, industrial and public
use of water and gas; or (b) the number and kind of fixtures
connected with such facilities located on the various premises;
or (c) the number of persons served by such facilities; or (d)
any combination thereof; or (e) may be determined on any other
basis or classification which the board may determine to be fair
and reasonable, taking into consideration the location of the
premises served and the nature and extent of the services and
facilities furnished. Where water, sewer and gas services areall furnished to any premises, the schedule of charges may be
billed as a single amount for the aggregate thereof. The board
shall require all users of services and facilities furnished by
the district to designate on every application for service
whether the applicant is a tenant or an owner of the premises to
be served. If the applicant is a tenant, he or she shall state
the name and address of the owner or owners of the premises to be
served by the district. All new applicants for service shall
deposit a minimum of fifty dollars with the district to secure
the payment of service rates and charges in the event they become
delinquent as provided in this section. In any case where a
deposit is forfeited to pay service rates and charges which were
delinquent at the time of disconnection or termination of
service, no reconnection or reinstatement of service may be made
by the district until another minimum deposit of fifty dollars
has been remitted to the district. Whenever any rates, rentals
or charges for services or facilities furnished remain unpaid for
a period of thirty days after the same become due and payable,
the property and the owner thereof, as well as the user of the
services and facilities provided are delinquent and the owner,
user and property are liable at law until such time as all such
rates and charges are fully paid:
Provided, That the property
owner shall be given notice of any said delinquency by certified
mail, return receipt requested. The board may, under reasonable
rules promulgated by the public service commission, shut off and
discontinue water or gas services to all delinquent users ofeither water or gas facilities, or both:
Provided, however, That
upon written request of the owner or owners of the premises, the
board shall shut off and discontinue water and gas services where
any rates, rentals or charges for services or facilities remain
unpaid by the user of the premises for a period of sixty days
after the same became due and payable.
In the event that any publicly or privately owned utility,
city, incorporated town, other municipal corporation or other
public service district included within the district owns and
operates separately either water facilities or sewer facilities,
and the district owns and operates the other kind of facilities,
either water or sewer, as the case may be, then the district and
such publicly or privately owned utility, city, incorporated town
or other municipal corporation or other public service district
shall covenant and contract with each other to shut off and
discontinue the supplying of water service for the nonpayment of
sewer service fees and charges:
Provided, That any contracts
entered into by a public service district pursuant to this
section shall be submitted to the public service commission for
approval. Any public service district providing water and sewer
service to its customers has the right to terminate water service
for delinquency in payment of either water or sewer bills. Where
one public service district is providing sewer service and
another public service district or a municipality included within
the boundaries of the sewer district is providing water service,
and the district providing sewer service experiences adelinquency in payment, the district or the municipality included
within the boundaries of the sewer district that is providing
water service, upon the request of the district providing sewer
service to the delinquent account, shall terminate its water
service to the customer having the delinquent sewer account:
Provided, however, That any termination of water service must
comply with all rules and orders of the public service
commission.
Any district furnishing sewer facilities within the district
may require, or may by petition to the circuit court of the
county in which the property is located, compel or may require
the bureau of public health to compel all owners, tenants or
occupants of any houses, dwellings and buildings located near any
such sewer facilities, where sewage will flow by gravity or be
transported by such other methods approved by the bureau of
public health including, but not limited to, vacuum and pressure
systems, approved under the provisions of section nine, article
one, chapter sixteen of this code, from such houses, dwellings or
buildings into such sewer facilities, to connect with and use
such sewer facilities and to cease the use of all other means for
the collection, treatment and disposal of sewage and waste
matters from such houses, dwellings and buildings where there is
such gravity flow or transportation by such other methods
approved by the bureau of public health including, but not
limited to, vacuum and pressure systems, approved under the
provisions of section nine, article one, chapter sixteen of thiscode, and such houses, dwellings and buildings can be adequately
served by the sewer facilities of the district, and it is hereby
found, determined and declared that the mandatory use of such
sewer facilities provided for in this paragraph is necessary and
essential for the health and welfare of the inhabitants and
residents of such districts and of the state:
Provided, That if
the public service district determines that the property owner
must connect with the sewer facilities even when sewage from such
dwellings may not flow to the main line by gravity and the
property owner must incur costs for any changes in the existing
dwellings' exterior plumbing in order to connect to the main
sewer line, the public service district board shall authorize the
district to pay all reasonable costs for such changes in the
exterior plumbing, including, but not limited to, installation,
operation, maintenance and purchase of a pump or any other method
approved by the bureau of public health; maintenance and
operation costs for such extra installation should be reflected
in the users charge for approval of the public service
commission. The circuit court shall adjudicate the merits of
such petition by summary hearing to be held not later than thirty
days after service of petition to the appropriate owners, tenants
or occupants.
Whenever any district has made available sewer facilities to
any owner, tenant or occupant of any house, dwelling or building
located near such sewer facility, and the engineer for the
district has certified that such sewer facilities are availableto and are adequate to serve such owner, tenant or occupant, and
sewage will flow by gravity or be transported by such other
methods approved by the bureau of public health from such house,
dwelling or building into such sewer facilities, the district may
charge, and such owner, tenant or occupant shall pay the rates
and charges for services established under this article only
after thirty-day notice of the availability of the facilities has
been received by the owner.
All delinquent fees, rates and charges of the district for
either water facilities, sewer facilities or gas facilities are
liens on the premises served of equal dignity, rank and priority
with the lien on such premises of state, county, school and
municipal taxes. In addition to the other remedies provided in
this section, public service districts are hereby granted a
deferral of filing fees or other fees and costs incidental to the
bringing and maintenance of an action in magistrate court for the
collection of delinquent water, sewer or gas bills. If the
district collects the delinquent account, plus reasonable costs,
from its customer or other responsible party, the district shall
pay to the magistrate the normal filing fee and reasonable costs
which were previously deferred. In addition, each public service
district may exchange with other public service districts a list
of delinquent accounts.
Anything in this section to the contrary notwithstanding,
any establishment, as defined in section three, article eleven,
chapter twenty-two, now or hereafter operating its own sewagedisposal system pursuant to a permit issued by the division of
environmental protection, as prescribed by section eleven of said
article, is exempt from the provisions of this section.
§16-13A-21. Complete authority of article; liberal construction;
district to be public instrumentality; tax exemption.
This article is full and complete authority for the creation
of public service districts and for carrying out the powers and
duties of same as herein provided. The provisions of this
article shall be liberally construed to accomplish its purpose
and no procedure or proceedings, notices, consents or approvals,
are required in connection therewith except as may be prescribed
by this article:
Provided, That all functions, powers and duties
of the public service commission of West Virginia, the bureau of
public health, the division of environmental protection and the
environmental quality board remain unaffected by this article.
Every district organized, consolidated, merged or expanded under
this article is a public instrumentality created and functioning
in the interest and for the benefit of the public, and its
property and income and any bonds issued by it are exempt from
taxation by the state of West Virginia, and the other taxing
bodies of the state:
Provided, however, That the board of any
such district may use and apply any of its available revenues and
income for the payment of what such board determines to be tax or
license fee equivalents to any local taxing body and in any
proceedings for the issuance of bonds of such district may
reserve the right to annually pay a fixed or computable sum tosuch taxing bodies as such tax or license fee equivalent.
ARTICLE 13B. COMMUNITY IMPROVEMENT ACT.
§16-13B-10. Notice to property owners of assessments; hearings,
correcting and laying assessments; report on project
completion; permits.
(a) After the execution of an agreement or agreements for
the construction of a project with another governmental agency or
the acceptance by the board of a bid by one or more contractors
as contemplated by section nine of this article, but prior to the
commencement of construction, the board shall cause the engineer,
governmental agency or person charged by the board with the
supervision of the project, to prepare a report describing each
lot or parcel of land abutting the project in the case of a
wastewater or water project, or each lot or parcel on which a
flood relief project shall be undertaken or shall protect in the
case of such a project; and setting forth the total cost of the
project based on the contract with the governmental agency, or
the accepted bid or bids, and all other costs incurred prior to
the commencement of construction, and the respective amounts
chargeable upon each lot or parcel of land which may be assessed
and the proper amount to be assessed against the respective lots
or parcels of land in accordance with sections eleven and twelve
of this article, with a description of the lots and parcels of
land as to ownership, frontage and location. If two or more
different kinds of projects are involved, the report shall set
forth the portion of the assessment attributable to eachrespective project. The board shall thereupon give notice to the
owners of property to be assessed that on or after a date
specified in the notice an assessment may be levied against the
property:
Provided, That construction of a project shall not
commence until the assessment district has laid all assessments
on the property to be benefitted by the project and has issued
all assessment certificates necessary to evidence the assessments
in accordance with section fifteen of this article. The notice
shall state that the owner of assessed property, or other
interested party, may on said date appear before the board to
move the revision or correction of the proposed assessment, and
shall show the total cost of the project, whether the assessments
will pay for all or part of the total cost of the project, and
the lots or parcels of property to be assessed and the respective
amounts to be assessed against such lots or parcels, with a
description of the respective lots and parcels of land as to
ownership, frontage and location. The notice shall be published
as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of the code, and
the publication area for such publication is the assessment
district. On or after the date so advertised, the board may
revise, amend, correct and verify the report and proceed by
resolution to lay the assessments as corrected and verified.
(b) Upon completion of a project, or the completion of that
portion of a project that provides water, wastewater or flood
protection benefits to the property subject to the assessments,the board shall cause the engineer or committee charged by the
board with the supervision of the project, to prepare a final
report certifying the completion of the project and showing the
total cost of the project and whether the cost is greater or less
than the cost originally estimated. If the total cost of the
project is less or greater than the cost shown in the report
prepared prior to construction, the board may revise the
assessment charged on each lot or parcel of land pursuant to
subsection (a) of this section to reflect the total cost of the
project as completed, and in so doing shall, in the case of an
assessment increase only: (1) Follow the same procedure with
regard to notice and providing each owner of assessed property
the right to appear before the board to move for the revision or
correction of such proposed reassessment as required for the
original assessment; and (2) issue such additional assessment
certificates as may be necessary to evidence the amount by which
the assessment applicable to each lot or parcel of land has
increased. If an assessment is decreased, the board shall, by
resolution and written notice to the sheriff of the county in
which the assessment district is located, cause the next
installment or installments of assessment fees then due and
payable by each affected property owner to be reduced pro rata
and shall provide written notice to such property owners of the
amount of such decrease by the deposit of such notice in the
United States mail, postage prepaid. In such cases the board
shall also transmit to the sheriff an amount of funds equal tothe difference between the cost of the project upon which the
assessments were originally laid and the cost of the project as
completed, and the sheriff shall disburse such funds to the
holders of the assessment certificates issued in connection with
the project on a pro rata basis.
(c) Prior to the construction of a project, the board shall
obtain all permits and licenses required by law for the
construction and operation of the project:
Provided, That the
board is not required to obtain a certificate of public
convenience from the public service commission under article two,
chapter twenty-four of this code:
Provided, however, That prior
to the construction of each project, the board shall apply to the
public service commission for authorization enabling the
construction and shall submit with said application any
certificate required by the division of public health, any
certification or permit required by the division of environmental
protection, the contract for utility service, if a utility will
be involved, a copy of the utility's applicable, existing rate
tariff, a copy of the order or ordinance creating the board and
a certificate of a qualified professional engineer that the
utility providing service has the capacity to provide or treat,
as the case may be. The public service commission shall render
its final decision on any application filed under the provisions
of this section within: (i) Ninety days in the case of a project
serving twenty-five or fewer residential customers; or (ii) one
hundred twenty days in the case projects serving commercialcustomers or more than twenty-five residential customers,
following the submission of such application and all information
herein required.
ARTICLE 27. STORAGE AND DISPOSAL OF RADIOACTIVE WASTE MATERIALS.
§16-27-2. Storage or disposal of radioactive waste material
within the state prohibited; exceptions.
(a) No person shall store or dispose of any radioactive
waste material within the state:
Provided, That the provisions
of this section do not prohibit: (1) The storage or disposal of
such material produced within the state as a result of medical,
educational, research or industrial activities and so stored or
disposed of in compliance with all applicable state and federal
laws; or (2) the transportation of such material out of or
through the state when done in compliance with all applicable
state and federal laws:
Provided, however, That such waste from
industrial activities does not include, for the purpose of this
article, such material produced from the operation of any nuclear
power generation facility, nuclear processing facility, or
nuclear reprocessing facility.
(b) The disposal of radioactive waste material in a solid
waste facility or in a commercial solid waste facility, as
defined in section two, article fifteen, chapter twenty-two of
this code, is prohibited.
ARTICLE 32. LICENSURE OF ASBESTOS ABATEMENT PROJECT DESIGNER,
INSPECTORS, CONTRACTORS, MANAGEMENT PLANNERS, WORKERS AND
SUPERVISORS.
§16-32-4. Asbestos management planner's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it is unlawful for an individual who does not
possess a valid asbestos management planner's license to design
a building's or facility's asbestos management plan.
(b) To qualify for an asbestos management planner's license,
an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
management planners;
(2) Possess a valid asbestos inspector's license;
(3) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully, with
all applicable requirements, procedures and standards of the
United States environmental protection agency, the United States
occupational safety and health administration, the state bureau
of public health, the division of environmental protection and
the division of labor covering any part of an asbestos project;
and
(4) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos management planner's license
shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos management
planners to the bureau and shall pay the applicable fee. Thecommissioner may deny a license if there has been a failure to
comply with the application procedures or if the applicant fails
to satisfy the application criteria. Written notice of such
denial and an opportunity for reapplication shall be afforded to
all applicants.
§16-32-5. Asbestos abatement project designer's license
required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be unlawful for any person who does not
possess a valid asbestos abatement project designer's license to
specify engineering methods and work practices under asbestos
abatement contract to another person.
(b) To qualify for an asbestos abatement project designer's
license, an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for abatement project
designers;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, the United States
occupational safety and health administration, the state bureau
of public health, the division of environmental protection and
the division of labor covering any part of an asbestos project;
and
(3) Meet the requirements otherwise set forth by thedirector.
(c) Applicants for an asbestos abatement project designer's
license shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos abatement project
designers to the bureau on the required form and shall pay the
applicable fee to the bureau. The commissioner may deny a
license if there has been a failure to comply with the
application procedure or if the applicant fails to satisfy the
application criteria. Written notice of denial and an
opportunity for reapplication shall be afforded to all
applicants.
§16-32-6. Asbestos contractor's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it is unlawful for any person who does not possess
a valid asbestos contractor's license to contract with another
person to abate, enclose, remove or encapsulate asbestos.
(b) To qualify for an asbestos contractor's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for contractors;
(2) Demonstrate to the satisfaction of the director that the
applicant and the applicant's employees or agents are familiar
with and are capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, the United States occupationalsafety and health administration, the state bureau of public
health, the division of environmental protection and the division
of labor covering any part of an asbestos project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos contractor's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
asbestos training course for contractors to the bureau on the
required form and shall pay the applicable fee to the bureau.
The commissioner may deny a license if there has been a failure
to comply with the application procedure or if the applicant
fails to satisfy the application criteria. Written notice of
denial and an opportunity for reapplication shall be afforded to
all applicants.
(d) Licensed asbestos contractors shall carry out the
following duties:
(1) Ensure that each of the applicant's employees or agents
who will come into contact with asbestos or who will be
responsible for an asbestos project is licensed as an asbestos
worker;
(2) Ensure that each asbestos project is supervised by a
licensed asbestos abatement supervisor;
(3) Notify the bureau and all other entities as may be
required by state or federal law at least twenty days prior to
commencement of each asbestos project. Notification shall besent by certified mail or hand-delivered to the department; and
(4) A licensed asbestos contractor shall keep a record of
each asbestos project and shall make the record available to the
state bureau of public health, the division of environmental
protection and the division of labor upon request. Records
required by this section shall be kept for at least thirty years.
The records shall include:
(A) The name, address and asbestos worker's license number
of the individual who supervised the asbestos project and each
employee or agent who worked on the project;
(B) The location and a description of the project and the
amount of asbestos material that was removed;
(C) The starting and completion dates of each project and a
summary of the procedures that were used to comply with all
federal and state standards; and
(D) The name and address of each asbestos disposal site
where waste containing asbestos was deposited and the disposal
site receipts.
§16-32-7. Asbestos abatement supervisor's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it is unlawful for an individual who does not
possess a valid asbestos abatement supervisor's license to direct
an asbestos abatement project.
(b) To qualify for an asbestos abatement supervisor's
license, an applicant shall:
(1) Satisfactorily complete a United States environmentalprotection agency approved training course for asbestos abatement
supervisors;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, United States
occupational safety and health administration, the state bureau
of public health, the division of environmental protection and
the division of labor covering any part of an asbestos project;
and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos inspector's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos abatement supervisors to the bureau
and shall pay the applicable fee. The commissioner may deny a
license if there has been a failure to comply with the
application procedures or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplication shall be afforded to all
applicants.
§16-32-8. Asbestos inspector's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it is unlawful for an individual who does not
possess a valid asbestos inspector's license to work as anasbestos inspector on an asbestos project.
(b) To qualify for an asbestos inspector's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
inspectors;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, United States
occupational safety and health administration, the state bureau
of public health, the division of environmental protection and
the division of labor covering any part of an asbestos project;
and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos inspector's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos inspectors to the bureau and shall
pay the applicable fee. The commissioner may deny a license if
there has been a failure to comply with the application
procedures or if the applicant fails to satisfy the application
criteria. Written notice of such denial and an opportunity for
reapplication shall be afforded to all applicants.
§16-32-9. Asbestos worker's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it is unlawful for an individual who does not
possess a valid asbestos worker's license to work as an asbestos
worker on an asbestos project.
(b) To qualify for an asbestos worker's license an
individual shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos workers;
(2) Demonstrate to the satisfaction of the director that the
applicant and the applicant's employees or agents are familiar
with and are capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, the United States occupational
safety and health administration, the state bureau of public
health, the division of environmental protection and the division
of labor covering any part of an asbestos project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos worker's license shall submit
an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos workers to the bureau and shall pay
the applicable fee. The commissioner may deny a license if there
has been a failure to comply with the application procedures or
if the applicant fails to satisfy the application criteria.
Written notice of such denial and an opportunity forreapplication shall be afforded to all applicants.
CHAPTER 19. AGRICULTURE.
ARTICLE 1A. DIVISION OF FORESTRY.
§19-1A-5. Forestry commission; qualifications and appointment
of director; powers and duties generally; appointment of
director by governor.
There is hereby created in the division of forestry in the
department of agriculture a forestry commission composed of three
members who are the commissioner of agriculture, the commissioner
of commerce and the director of the division of environmental
protection. The commissioner of agriculture is the chair of the
commission. No business shall be transacted by the commission in
the absence of a quorum which consists of two members including
the chair. The forestry commission shall hold meetings quarterly
or at the call of the chair. The commission shall appoint the
director of the division of forestry. In the event that the
commission cannot agree upon the appointment of a director within
sixty days of any vacancy therein, the appointment shall be made
by the governor within sixty days thereafter, but with the advice
and consent of the Senate, in either event. The salary of the
director is forty-five thousand dollars a year. The director
shall be a graduate of a school of forestry accredited by the
society of American foresters or have a minimum of ten years
experience in forest management and serves at the will and
pleasure of the forestry commission. The commission serves as an
advisory board for the director and shall approve the divisionbudget before it is submitted to the department of administration
by the department.
ARTICLE 1B. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING
OPERATIONS.
§19-1B-3. Definitions.
(a) "Best management practices" means sediment control
measures, structural or nonstructural, used singly or in
combination, to reduce soil runoff from land disturbances
associated with commercial timber harvesting.
(b) "Chief" means the chief of the office of water resources
of the division of environmental protection, or his or her
designee.
(c) "Director" means the director of the division of
forestry of the department of commerce, labor and environmental
resources, or his or her authorized designee.
(d) "Operator" means any person who conducts timbering
operations.
(e) "Timbering operations" means activities directly related
to the severing or removal of standing trees from the forest as
a raw material for commercial processes or purposes. For the
purpose of this article, timbering operations do not include the
severing of evergreens grown for and severed for the traditional
Christmas holiday season or the severing of trees incidental to
ground-disturbing construction activities, including well sites,
access roads and gathering lines for oil and natural gas
operations, or the severing of trees for maintaining existing, orduring construction of, rights-of-way for public highways or
public utilities or any company subject to the jurisdiction of
the federal energy regulatory commission unless the trees so
severed are being sold or provided as raw material for commercial
wood product purposes or the severing of trees by an individual
on the individual's own property for his or her individual use
provided that the individual does not have the severing done by
a person whose business is the severing or removal of trees.
(f) "Sediment" means solid particulate matter, usually soil
or minute rock fragments, moved by wind, rainfall or snowmelt
into the streams of the state.
§19-1B-5. Compliance orders, suspension of timbering operating
license.
(a) Upon a finding by the chief that failure to use a
particular best management practice is causing or contributing,
or has the potential to cause or contribute, to soil erosion or
water pollution, the chief shall notify the director of the
location of the site, the problem associated with the site, and
any suggested corrective action. Upon the failure of the
director to take appropriate action within three days of
providing notice to the director, the chief may seek relief
through the conference panel in accordance with section eleven of
this article.
(b) Upon notification of the chief or upon a finding by the
director that failure to use a particular best management
practice is causing or contributing, or has the potential tocause or contribute, to soil erosion or water pollution, the
director shall issue a written compliance order requiring the
person conducting the timber operation to take corrective action.
The order shall mandate compliance within a reasonable and
practical time, not to exceed ten days. The person subject to
the order may appeal the order within forty-eight hours of its
issuance to the conference panel in accordance with section
eleven of this article.
(c) In any circumstance where observed damage or
circumstances on a logging operation, in the opinion of the
director, are sufficient to endanger life or result in
uncorrectable soil erosion or water pollution, or if the operator
is not licensed pursuant to this article, or if a certified
logger is not supervising the operation, the director shall order
the immediate suspension of the timber operation and the
operation shall remain suspended until the corrective action
mandated in the compliance order suspending the operation is
instituted. The director shall not issue an order cancelling the
suspension order until compliance is satisfactory or until
overruled on appeal. Failure to comply with any compliance order
is a violation of this article. The person subject to the order
may appeal to the conference panel in accordance with the
provisions of section eleven of this article.
(d) The director may suspend the license of any person
conducting a timbering operation or the certification of any
certified logger supervising a timbering operation, for no lessthan thirty nor more than ninety days, if the person is found in
violation of this article or article eleven, chapter twenty-two
of this code for a second time within any two-year period:
Provided, That one or more violations for the same occurrence is
only one violation for purposes of this subsection.
(e) The director may revoke the license of any person
conducting timbering operations or the certification of any
certified logger if the person is found in violation of this
article or article eleven, chapter twenty-two of this code for a
third time within any two-year period:
Provided, That one or
more violations for the same occurrence is only one violation for
purposes of this subsection. A revoked license is not subject to
reissue during the licensing period for which it was issued.
(f) The director shall notify the chief of any order issued
or any suspension or revocation of a license pursuant to this
section within three days of the date of the director's action.
§19-1B-7. Certification of persons supervising timbering
operations, timbering operations to be supervised,
promulgation of rules .
(a) After the first day of July, one thousand nine hundred
ninety-three, any individual supervising any timbering operation
must be certified pursuant to this article.
(b) The director is responsible for the development of
standards and criteria for establishment of a regularly scheduled
program of education, training and examination that all persons
must successfully complete in order to be certified to superviseany timbering operation. The program for certified loggers shall
provide, at a minimum, for education and training in the safe
conduct of timbering operations, in first aid procedures, and in
the use of best management practices to prevent, insofar as
possible, soil erosion on timbering operations. The goals of
this program will be to assure that timbering operations are
conducted in accordance with applicable state and federal safety
regulations in a manner that is safest for the individuals
conducting the operations and that they are performed in an
environmentally sound manner.
(c) The director shall provide for such programs by using
the resources of the division, other appropriate state agencies,
educational systems, and other qualified persons. Each inspector
under the jurisdiction of the chief shall attend a certification
program free of charge and complete the certification
requirements of this section.
(d) The director shall promulgate legislative rules in
accordance with article three, chapter twenty-nine-a of this
code, which provide the procedure by which certification pursuant
to this article may be obtained and shall require the payment of
an application fee and an annual renewal fee of fifty dollars.
(e) Upon a person's successful completion of the
certification requirements, the director shall provide that
person with proof of the completion by issuing a numbered
certificate and a wallet-sized card to that person. The division
shall maintain a record of each certificate issued and the personto whom it was issued.
(f) A certification granted pursuant to this section is
renewable only for two succeeding years. For the third renewal
and every third renewal thereafter, the licensee shall first
attend a program designed by the director to update the training.
(g) After the first day of July, one thousand nine hundred
ninety-three, every timbering operation must have at least one
person certified pursuant to this section supervising the
operation at any time the timbering operation is being conducted
and all timbering operators shall be guided by the West Virginia
forest practice standards and the West Virginia silvicultural
best management practices in selecting practices appropriate and
adequate for reducing sediment movement during a timber
operation.
(h) The director shall, at no more than three year intervals
after the effective date of this article, convene a committee to
review the best management practices so as to ensure that they
reflect and incorporate the most current technologies. The
committee shall, at a minimum, include a person doing research in
the field of silvicultural best management practices, a person
doing research in the field of silviculture, two loggers
certified under this article, a representative of the office of
water resources of the division of environmental protection and
a representative of an environmentally active organization. The
director shall chair the committee and may adjust the then
current best management practices according to the suggestions ofthe committee in time for the next certification cycle.
ARTICLE 12A. FARM MANAGEMENT COMMISSION.
§19-12A-5. Powers, duties and responsibilities of commission.
(a) On or before the first day of July, one thousand nine
hundred ninety, the commission shall meet and confer with respect
to the development of a management plan to determine the optimum
use or disposition of all institutional farms, at which time the
farm management director shall provide the commission with a
complete inventory of all institutional farms, and such
information relating to easements, mineral rights, appurtenances,
farm equipment, agricultural products, livestock, inventories and
farm facilities as may be necessary to develop such management
plan. The commission shall complete and provide to the governor
a management plan, which plan shall set forth the objectives of
the commission with respect to institutional farms, the criteria
by which the commission shall determine the optimum use or
disposition of such property, and determinations as to whether
each institutional farm shall be used in production, sold, or
leased, in whole or in part. Prior to the adoption of any plan,
the commission shall consult with the secretaries of the various
departments of state government and shall request from such
secretaries suggestions for land use and resource development on
farm commission lands. On or before the first day of December,
one thousand nine hundred ninety, such management plan shall be
presented to the Legislature, by providing a copy to the
president of the Senate and the speaker of the House ofDelegates. The commission may confer with any other agency or
individual in implementing and adjusting its management plan.
The management plan established pursuant to this subsection may
be amended, from time to time, as may be necessary.
(b) The commission shall manage its institutional farms,
equipment and other property in order to most efficiently produce
food products for state institutions and shall implement the
intent of the Legislature as set forth by this article. From the
total amount of food, milk and other commodities produced on
institutional farms, the commission shall sell, at prevailing
wholesale prices, and each of the institutions under the control
of the bureau of public health and the division of corrections
shall purchase, a proportionate amount of these products based on
the dietary needs of each institution.
(c) If requested by the commissioner of corrections, the
commission may authorize the division of corrections to operate
a farm or other enterprise using inmates as labor on such lands.
The commissioner of corrections is responsible for the selection,
direction and supervision of the inmates and shall assign the
work to be performed by inmates.
(d) The commission is hereby authorized and empowered to:
(1) Lease to public or private parties, for purposes
including agricultural production or experimentation, public
necessity, or other purposes permitted by the management plan,
any land, easements, equipment, or other property, except that
property may not be leased for any use in any manner that wouldrender the land toxic for agricultural use, nor may toxic or
hazardous materials as identified by the commissioner of
agriculture be used or stored upon such property unless all
applicable state and federal permits necessary are obtained. Any
lease for an annual consideration of one thousand dollars or more
shall be by sealed bid auction and the commission shall give
notice of such auction by publication thereof as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication is the county in which the property to be
leased is located;
(2) Transfer to the public land corporation land designated
in its management plan as land to be disposed of, which land
shall be sold, exchanged or otherwise transferred pursuant to
sections four and five, article one-a, chapter twenty of this
code:
Provided, That the net proceeds of the sale of farm
commission lands shall be deposited in the general revenue fund
of the state:
Provided, however, That no sale may be concluded
until on or after the fifteenth day of March, one thousand nine
hundred ninety-one, except with respect to: (A) Properties
located at institutions closed on or before the effective date of
this section, the tenth day of March, one thousand nine hundred
ninety; or (B) properties conveyed to or from the farm management
commission to or from any other entity in order to facilitate the
construction of a regional jail or correctional facility by the
regional jail and correctional facilities authority or the statebuilding commission, with the decision to execute any such
conveyance being solely within the discretion of, and at the
direction of, the regional jail and correctional facilities
authority;
(3) Develop lands to which it has title for the public use
including forestation, recreation, wildlife, stock grazing,
agricultural production, rehabilitation and/or other conservation
activities and may contract or lease for the proper development
of timber, oil, gas or mineral resources, including coal by
underground mining or by surface mining where reclamation as
required by specifications of the division of environmental
protection will increase the beneficial use of such property.
Any such contract or lease shall be by sealed bid auction as
provided for in subdivision (1) above; and
(4) Exercise all other powers and duties necessary to
effectuate the purposes of this article.
(e) Notwithstanding the provisions of subsection (d) herein,
no timberland may be leased, sold, exchanged or otherwise
disposed of unless the division of forestry of the department of
commerce, labor and environmental resources certifies that there
is no commercially salable timber on the timberland, an inventory
is provided, an appraisal of the timber is provided, and the
sale, lease, exchange or other disposition is accomplished by the
sealed bid auction procedure provided above in subdivision (1) or
(2), as applicable.
(f) The commission shall promulgate, pursuant to chaptertwenty-nine-a of this code, rules and regulations relating to the
powers and duties of the commission as enumerated in this
section.
ARTICLE 21A. SOIL CONSERVATION DISTRICTS.
§19-21A-4. State soil conservation committee.
(a) There is hereby established, to serve as an agency of
the state and to perform the functions conferred upon it in this
article, the state soil conservation committee. The committee
consists of seven members. The following shall serve, ex
officio, as members of the committee: The director of the state
cooperative extension service; the director of the state
agricultural experiment station; the director of the division of
environmental protection; and the state commissioner of
agriculture, who is chair of the committee.
The governor shall appoint as additional members of the
committee three representative citizens. The term of members
thus appointed is four years, except that of the first members so
appointed, one shall be appointed for a term of two years, one
for a term of three years, and one for a term of four years. In
the event of a vacancy, appointment is for the unexpired term.
The committee may invite the secretary of agriculture of the
United States of America to appoint one person to serve with the
committee as an advisory member.
The committee shall keep a record of its official actions,
shall adopt a seal, which seal shall be judicially noticed, and
may perform such acts, hold such public hearings and promulgatesuch rules as may be necessary for the execution of its functions
under this article.
(b) The state soil conservation committee may employ an
administrative officer and such technical experts and such other
agents and employees, permanent and temporary, as it may require,
and shall determine their qualifications, duties and
compensation. The committee may call upon the attorney general
of the state for such legal services as it may require. It has
authority to delegate to its chair, to one or more of its
members, or to one or more agents or employees, such powers and
duties as it may deem proper. The committee is empowered to
secure necessary and suitable office accommodations, and the
necessary supplies and equipment. Upon request of the committee,
for the purpose of carrying out any of its functions, the
supervising officer of any state agency, or of any state
institution of learning shall, insofar as may be possible, under
available appropriations, and having due regard to the needs of
the agency to which the request is directed, assign or detail to
the committee, members of the staff or personnel of such agency
or institution of learning, and make such special reports,
surveys or studies as the committee may request.
(c) A member of the committee shall hold office so long as
he or she retains the office by virtue of which he or she is
serving on the committee. A majority of the committee is a
quorum, and the concurrence of a majority in any matter within
their duties is required for its determination. The chair andmembers of the committee shall receive no compensation for their
services on the committee, but shall be entitled to expenses,
including traveling expenses, necessarily incurred in the
discharge of their duties on the committee. The committee shall
provide for the execution of surety bonds for all employees and
officers who are entrusted with funds or property; shall provide
for the keeping of a full and accurate public record of all
proceedings and of all resolutions, rules and orders issued or
adopted; and shall provide for an annual audit of the accounts of
receipts and disbursements.
(d) In addition to the duties and powers hereinafter
conferred upon the state soil conservation committee, it has the
following duties and powers:
(1) To offer such assistance as may be appropriate to the
supervisors of soil conservation districts, organized as provided
hereinafter, in the carrying out of any of their powers and
programs;
(2) To keep the supervisors of each of the several
districts, organized under the provisions of this article,
informed of the activities and experience of all other districts
organized hereunder, and to facilitate an interchange of advice
and experience between such districts and cooperation between
them;
(3) To coordinate the programs of the several soil
conservation districts organized hereunder so far as this may be
done by advice and consultation;
(4) To secure the cooperation and assistance of the United
States and any of its agencies, and of agencies of this state, in
the work of such districts;
(5) To disseminate information throughout the state
concerning the activities and programs of the soil conservation
districts organized hereunder, and to encourage the formation of
such districts in areas where their organization is desirable;
(6) To accept and receive donations, gifts, contributions,
grants and appropriations in money, services, materials or
otherwise, from the United States or any of its agencies, from
the state of West Virginia, or from other sources, and to use or
expend such money, services, materials or other contributions in
carrying out the policy and provisions of this article, including
the right to allocate such money, services or materials in part
to the various soil conservation districts created by this
article in order to assist them in carrying on their operations;
and
(7) To obtain options upon and to acquire by purchase,
exchange, lease, gift, grant, bequest, devise or otherwise, any
property, real or personal, or rights or interests therein; to
maintain, administer, operate and improve any properties
acquired, to receive and retain income from such property and to
expend such income as required for operation, maintenance,
administration or improvement of such properties or in otherwise
carrying out the purposes and provisions of this article; and to
sell, lease or otherwise dispose of any of its property orinterests therein in furtherance of the purposes and the
provisions of this article. Money received from the sale of land
acquired in the small watershed program shall be deposited in the
special account of the state soil conservation committee and
expended as herein provided.
Pursuant to the provisions of section four, article ten,
chapter four of this code, the state soil conservation committee
shall continue to exist until the first day of July, one thousand
nine hundred ninety-eight.
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-5. Definitions.
For purposes of this article: (a) The term "land" includes,
but is not limited to, roads, water, watercourses, private ways
and buildings, structures and machinery or equipment thereon when
attached to the realty; (b) the term "owner" includes, but is not
limited to, tenant, lessee, occupant or person in control of the
premises; (c) the term "recreational purposes" includes, but is
not limited to, any one or any combination of the following:
Hunting, fishing, swimming, boating, camping, picnicking, hiking,
pleasure driving, nature study, water skiing, winter sports and
visiting, viewing or enjoying historical, archaeological, scenic
or scientific sites, or otherwise using land for purposes of the
user; (d) the term "wildlife propagation purposes" applies to and
includes all ponds, sediment control structures, permanent water
impoundments or any other similar or like structure created or
constructed as a result of or in connection with surface miningactivities, as governed by article three, chapter twenty-two of
this code, or from the use of surface in the conduct of
underground coal mining as governed by said article, and rules
promulgated thereunder, which ponds, structures or impoundments
are hereafter designated and certified in writing by the director
of the division of environmental protection and the owner to be
necessary and vital to the growth and propagation of wildlife,
animals, birds and fish or other forms of aquatic life, and finds
and determines that such premises has the potential of being
actually used by such wildlife for such purposes and that such
premises are no longer used or necessary for mining reclamation
purposes. Such certification shall be in form satisfactory to
the director and shall provide that such designated ponds,
structures or impoundments are not removed without the joint
consent of the director and the owner; and (e) the term "charge"
means the amount of money asked in return for an invitation to
enter or go upon the land.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-2. Definitions.
As used in this chapter, unless the context clearly requires
a different meaning:
"Agency" means any branch, department or unit of the state
government, however designated or constituted.
"Alien" means any person not a citizen of the United States.
"Bag limit" or "creel limit" means the maximum number ofwildlife which may be taken, caught, killed or possessed by any
licensee.
"Bona fide resident, tenant or lessee" means a person who
permanently resides on the land.
"Citizen" means any native born citizen of the United
States, and foreign born persons who have procured their final
naturalization papers.
"Closed season" means the time or period during which it
shall be unlawful to take any wildlife as specified and limited
by the provisions of this chapter.
"Commission" means the natural resources commission.
"Commissioner" means a member of the advisory commission of
the natural resources commission.
"Director" means the director of the division of natural
resources.
"Fishing" or "to fish" means the taking, by any means, of
fish, minnows, frogs, or other amphibians, aquatic turtles, and
other forms of aquatic life used as fish bait.
"Fur-bearing animals" include: (a) The mink; (b) the
weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the
skunk and civet cat, commonly called polecat; (g) the otter; (h)
the red fox; (i) the gray fox; (j) the wildcat, bobcat or bay
lynx; (k) the raccoon; and (l) the fisher.
"Game" means game animals, game birds and game fish as
herein defined.
"Game animals" include: (a) The elk; (b) the deer; (c) thecottontail rabbits and hares; (d) the fox squirrels, commonly
called red squirrels, and gray squirrels and all their color
phases -- red, gray, black or albino; (e) the raccoon; (f) the
black bear; and (g) the wild boar.
"Game birds" include: (a) The Anatidae, commonly known as
swan, geese, brants and river and sea ducks; (b) the Rallidae,
commonly known as rails, sora, coots, mudhens and gallinales; (c)
the Limicolae, commonly known as shorebirds, plover, snipe,
woodcock, sandpipers, yellow legs and curlews; (d) the Galli,
commonly known as wild turkey, grouse, pheasants, quails and
partridges (both native and foreign species); and (e) the
Columbidae, commonly known as doves and the Icteridae, commonly
known as blackbirds, redwings and grackle.
"Game fish" include: (a) Brook trout; (b) brown trout; (c)
rainbow trout; (d) golden rainbow trout; (e) Kokanee salmon; (f)
largemouth bass; (g) smallmouth bass; (h) Kentucky or spotted
bass; (i) striped bass; (j) pickerel; (k) muskellunge; (l)
walleye pike or pike perch; (m) northern pike; (n) rock bass; (o)
white bass; (p) white and black crappie; (q) all sunfish; (r)
channel and flathead catfish; and (s) sauger.
"Hunt" means to pursue, chase, catch or take any wild birds
or wild animals.
"Lands" means land, waters, and all other appurtenances
connected therewith.
"Migratory birds" means any migratory game or nongame birds
included in the terms of conventions between the United Statesand Great Britain and between the United States and United
Mexican States, known as the "Migratory Bird Treaty Act", for the
protection of migratory birds and game mammals concluded,
respectively, on the sixteenth day of August, one thousand nine
hundred sixteen, and the seventh day of February, one thousand
nine hundred thirty-six.
"Nonresident" means any person who is a citizen of the
United States and who has not been a domiciled resident of the
state of West Virginia for a period of thirty consecutive days
immediately prior to the date of his or her application for a
license or permit except any full-time student of any college or
university of this state, even though he or she be paying a
nonresident tuition.
"Open season" means the time during which the various
species of wildlife may be legally caught, taken, killed or
chased in a specified manner, and shall include both the first
and the last day of the season or period designated by the
director.
"Person", except as otherwise defined elsewhere in this
chapter, means the plural "persons", and shall include
individuals, partnerships, corporations, or other legal entity.
"Preserve" means all duly licensed private game farmlands,
or private plants, ponds or areas, where hunting or fishing is
permitted under special licenses or seasons other than the
regular public hunting or fishing seasons.
"Protected birds" means all wild birds not included withinthe definition of "game birds" and "unprotected birds".
"Resident" means any person who is a citizen of the United
States and who has been a domiciled resident of the state of West
Virginia for a period of thirty consecutive days or more
immediately prior to the date of his or her application for a
license or permit:
Provided, That a member of the armed forces
of the United States who is stationed beyond the territorial
limits of this state, but who was a resident of this state at the
time of his or her entry into such service, and any full-time
student of any college or university of this state, even though
he or she is paying a nonresident tuition, shall be considered a
resident under the provisions of this chapter.
"Roadside menagerie" means any place of business, other than
commercial game farm, commercial fish preserve, place or pond,
where any wild bird, game bird, unprotected bird, game animal or
fur-bearing animal is kept in confinement for the attraction and
amusement of the people for commercial purposes.
"Take" means to hunt, shoot, pursue, lure, kill, destroy,
catch, capture, keep in captivity, gig, spear, trap, ensnare,
wound or injure any wildlife, or attempt to do so.
"Unprotected birds" shall include: (a) The English sparrow;
(b) the European starling; (c) the cowbird; and (d) the crow.
"Wild animals" means all mammals native to the state of West
Virginia occurring either in a natural state or in captivity,
except house mice or rats.
"Wild birds" shall include all birds other than: (a)Domestic poultry - chickens, ducks, geese, guinea fowl, peafowls
and turkeys; (b) psittacidae, commonly called parrots and
parakeets; and (c) other foreign cage birds such as the common
canary, exotic finches and ring dove. All wild birds, either:
(a) Those occurring in a natural state in West Virginia; or (b)
those imported foreign game birds, such as waterfowl, pheasants,
partridges, quail and grouse, regardless of how long raised or
held in captivity, shall remain wild birds under the meaning of
this chapter.
"Wildlife" means wild birds, wild animals, game and fur-
bearing animals, fish (including minnows), frogs and other
amphibians, aquatic turtles and all forms of aquatic life used as
fish bait, whether dead or alive.
"Wildlife refuse" means any land set aside by action of the
director as an inviolate refuge or sanctuary for the protection
of designated forms of wildlife.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities
granted and assigned to the director in this chapter and
elsewhere by law, the director is hereby authorized and empowered
to:
(1) With the advice of the commission, prepare and
administer, through the various divisions created by this
chapter, a long-range comprehensive program for the conservation
of the natural resources of the state which best effectuates the
purpose of this chapter and which makes adequate provisions forthe natural resources laws of the state;
(2) Sign and execute in the name of the state by the
"division of natural resources" any contract or agreement with
the federal government or its departments or agencies,
subdivisions of the state, corporations, associations,
partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the
habits of wildlife, and for purposes of control and protection,
to classify by regulation the various species into such
categories as may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the natural
resources commission may appear to be necessary and proper for
the purpose of giving interested persons in the various sections
of the state an opportunity to be heard concerning open season
for their respective areas, and report the results of the
meetings to the natural resources commission before such season
and bag limits are fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
governor in case of an emergency such as a drought, forest firehazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until
rescinded by the director. Suspension, or reopening after such
suspension, of open seasons may be made upon twenty-four hours'
notice by delivery of a copy of the order of suspension or
reopening to the wire press agencies at the state capitol;
(8) Supervise the fiscal affairs and responsibilities of the
division;
(9) Designate such localities as he or she shall determine
to be necessary and desirable for the perpetuation of any species
of wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of
provisions of this chapter, to serve and execute warrants and
processes, to make arrests and to otherwise effectively enforce
the provisions of this chapter;
(11) Acquire for the state in the name of the "division of
natural resources" by purchase, condemnation, lease or agreement,
or accept or reject for the state, in the name of the division of
natural resources, gifts, donations, contributions, bequests or
devises of money, security or property, both real and personal,
and any interest in such property, including lands and waters,
which he or she deems suitable for the following purposes:
(a) For state forests for the purpose of growing timber,
demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural,
archaeological or historical values or natural wonders, or
providing public recreation;
(c) For public hunting, trapping or fishing grounds or
waters for the purpose of providing areas in which the public may
hunt, trap or fish, as permitted by the provisions of this
chapter, and the rules issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision; and
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter;
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the
provisions of this chapter;
(13) Sell, with the approval in writing of the governor,
timber for not less than the value thereof, as appraised by a
qualified appraiser appointed by the director, from all lands
under the jurisdiction and control of the director, except those
lands that are designated as state parks and those in the Kanawha
state forest. The appraisal shall be made within a reasonable
time prior to any sale, reduced to writing, filed in the office
of the director and shall be available for public inspection. When the appraised value of the timber to be sold is more than
five hundred dollars, the director, before making sale thereof,
shall receive sealed bids therefor, after notice by publication
as a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be each county in
which the timber is located. The timber so advertised shall be
sold at not less than the appraised value to the highest
responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall
designate; but the director shall have the right to reject any
and all bids and to readvertise for bids. If the foregoing
provisions of this section have been complied with, and no bid
equal to or in excess of the appraised value of the timber is
received, the director may, at any time, during a period of six
months after the opening of the bids, sell the timber in such
manner as he or she deems appropriate, but the sale price shall
not be less than the appraised value of the timber advertised.
No contract for sale of timber made pursuant to this section
shall extend for a period of more than ten years. And all
contracts heretofore entered into by the state for the sale of
timber shall not be validated by this section if the same be
otherwise invalid. The proceeds arising from the sale of the
timber so sold, shall be paid to the treasurer of the state of
West Virginia, and shall be credited to the division and used
exclusively for the purposes of this chapter:
Provided, Thatnothing contained herein shall prohibit the sale of timber which
otherwise would be removed from rights-of-way necessary for and
strictly incidental to the extraction of minerals;
(14) Sell or lease, with the approval in writing of the
governor, coal, oil, gas, sand, gravel and any other minerals
that may be found in the lands under the jurisdiction and control
of the director, except those lands that are designated as state
parks. The director, before making sale or lease thereof, shall
receive sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the
publication area for such publication shall be each county in
which such lands are located. The minerals so advertised shall
be sold or leased to the highest responsible bidder, who shall
give bond for the proper performance of the sales contract or
lease as the director shall designate; but the director shall
have the right to reject any and all bids and to readvertise for
bids. The proceeds arising from any such sale or lease shall be
paid to the treasurer of the state of West Virginia and shall be
credited to the division and used exclusively for the purposes of
this chapter;
(15) Exercise the powers granted by this chapter for the
protection of forests, and regulate fires and smoking in the
woods or in their proximity at such times and in such localities
as may be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, localand federal governments in the conservation of natural resources
and the beautification of the state;
(17) Report to the governor each year all information
relative to the operation and functions of the division and the
director shall make such other reports and recommendations as may
be required by the governor, including an annual financial report
covering all receipts and disbursements of the division for each
fiscal year, and he or she shall deliver such report to the
governor on or before the first day of December next after the
end of the fiscal year so covered. A copy of such report shall
be delivered to each house of the Legislature when convened in
January next following;
(18) Keep a complete and accurate record of all proceedings,
record and file all bonds and contracts taken or entered into,
and assume responsibility for the custody and preservation of all
papers and documents pertaining to his or her office, except as
otherwise provided by law;
(19) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) Purchase as provided by law all equipment necessary for
the conduct of the division;
(22) Conduct and encourage research designed to further new
and more extensive uses of the natural resources of this state
and to publicize the findings of such research;
(23) Encourage and cooperate with other public and private
organizations or groups in their efforts to publicize the
attractions of the state;
(24) Accept and expend, without the necessity of
appropriation by the Legislature, any gift or grant of money made
to the division for any and all purposes specified in this
chapter, and he or she shall account for and report on all such
receipts and expenditures to the governor;
(25) Cooperate with the state historian and other
appropriate state agencies in conducting research with reference
to the establishment of state parks and monuments of historic,
scenic and recreational value, and to take such steps as may be
necessary in establishing such monuments or parks as he or she
deems advisable;
(26) Maintain in his or her office at all times, properly
indexed by subject matter, and also, in chronological sequence,
all rules and regulations made or issued under the authority of
this chapter. Such records shall be available for public
inspection on all business days during the business hours of
working days;
(27) Delegate the powers and duties of his or her office,except the power to execute contracts, to appointees and
employees of the division, who shall act under the direction and
supervision of the director and for whose acts he or she shall be
responsible;
(28) Conduct schools, institutions and other educational
programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the
natural resources programs of the state;
(29) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of
a reassignment of the employee:
Provided, That no part of the
moving expenses of any one such employee shall be paid more
frequently than once in twelve months; and
(30) Promulgate rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement and make
effective the powers and duties vested in him or her by the
provisions of this chapter and take such other steps as may be
necessary in his or her discretion for the proper and effective
enforcement of the provisions of this chapter.
§20-1-14. Sections within division.
Sections of wildlife resources and of law enforcement are
hereby continued within the division of natural resources.
Subject to provisions of law, the director of the division of
natural resources shall allocate the functions and services of
the division to the sections, offices and activities thereof andmay from time to time establish and abolish other sections,
offices and activities within the division in order to carry out
fully and in an orderly manner the powers, duties and
responsibilities of the office as director. The director shall
select and designate a competent and qualified person to be chief
of each section. The chief is the principal administrative
officer of that section and is accountable and responsible for
the orderly and efficient performance of the duties, functions
and services thereof.
ARTICLE 5J. MEDICAL WASTE ACT.
§20-5J-6. Powers of secretary; authority to promulgate rules.
(a) The secretary shall promulgate legislative rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, necessary to effectuate the findings and purposes of this
article. Said rules shall include, but not be limited to, the
following:
(1) A plan designed to encourage and foster reduction in the
volume of infectious and noninfectious medical waste and the
separation of infectious and noninfectious medical waste;
(2) Guidelines and procedures for the development and
implementation of local infectious medical waste management
plans, to be followed by all generators, that set forth proper
methods for the management of infectious and noninfectious
medical waste;
(3) Criteria for identifying the characteristics of
infectious medical waste and identifying the characteristics ofinfectious medical waste;
(4) Standards applicable to generators of medical waste
necessary to protect public health, safety and the environment,
which standards shall establish requirements respecting:
(A) Record-keeping practices that accurately identify the
quantities of infectious medical waste generated, the
constituents thereof which are significant in quantity or in
potential harm to human health or the environment, and the
disposition of such waste;
(B) Labeling practices for containers used in the storage,
transportation or disposal of infectious medical waste which will
accurately identify such waste;
(C) Use of appropriate containers for infectious medical
waste;
(D) Furnishing of information regarding the general
composition of infectious medical wastes to persons transporting,
treating, storing or disposing of such waste;
(E) Use of a manifest system and other reasonable means to
assure that all infectious medical waste is designated for and
arrives at treatment, storage or disposal facilities for which
the secretary has issued permits, other than facilities on the
premises where the waste is generated; and
(F) The submission of reports to the secretary, at such
times as the secretary deems necessary, setting out the quantity
of infectious medical waste generated during a particular time
period, and the disposition of such infectious medical waste;
(5) Performance standards applicable to owners and operators
of facilities for the treatment, storage or disposal of
infectious medical waste necessary to protect public health and
safety and the environment, which standards shall include, but
need not be limited to, requirements respecting:
(A) Maintaining records of all infectious medical waste and
the manner in which such waste was treated, stored or disposed
of;
(B) Reporting, monitoring and inspection of and compliance
with the manifest system referred to in subdivision (4),
subsection (a) of this section;
(C) Treatment, storage or disposal of all infectious medical
waste received by the facility pursuant to operating methods,
techniques and practices as may be satisfactory to the secretary;
(D) The location, design and construction of infectious
medical waste treatment, disposal or storage facilities;
(E) Contingency plans for effective action to minimize
unanticipated damage from any treatment, storage or disposal of
infectious medical waste;
(F) The maintenance or operation of such facilities and
requiring additional qualifications as to ownership, continuity
of operation, training for personnel and financial responsibility
as may be necessary or desirable:
Provided, That no private
entity may be precluded by reason of criteria established under
this subsection from the ownership or operation of facilities
providing infectious medical waste treatment, storage or disposalservices where such entity can provide assurances of financial
responsibility and continuity of operation consistent with the
degree and duration of risks associated with the treatment,
storage or disposal of infectious medical waste; and
(G) Compliance with the requirements of this article
respecting permits for treatment, storage or disposal;
(6) The terms and conditions under which the secretary shall
issue, modify, suspend, revoke or deny permits required by this
article. The legislative rules required by this subdivision
shall be promulgated by the first day of August, one thousand
nine hundred ninety-one;
(7) Establishing and maintaining records; making reports;
taking samples and performing tests and analyses; installing,
calibrating, operating and maintaining monitoring equipment or
methods; and providing any other information necessary to achieve
the purposes of this article;
(8) Standards and procedures for the certification of
personnel at infectious medical waste treatment, storage or
disposal facilities or sites;
(9) Procedures for public participation in the
implementation of this article;
(10) Procedures and requirements for the use of manifests
during the transportation of infectious medical wastes;
(11) Procedures and requirements for the submission and
approval of a plan by the owners or operators of infectious
medical waste storage, treatment and disposal facilities, forclosure of such facilities, post-closure monitoring and
maintenance, and for both sudden and nonsudden accidental
occurrences; and
(12) A schedule of fees to recover the costs of processing
permit applications and renewals, training, enforcement,
inspections and program development.
(b) The legislative rules required by subsection (a) of this
section shall be promulgated within six months after the
effective date of this article.
(c) Within twelve months after the effective date of this
article, the secretary shall conduct and publish a study of
infectious medical waste management in this state which shall
include, but not be limited to:
(1) A description of the sources of infectious medical waste
generation within the state, including the types and quantities
of such waste;
(2) A description of current infectious medical waste
management practices and costs, including treatment, storage and
disposal within the state; and
(3) An inventory of existing infectious medical waste
treatment, storage and disposal sites.
(d) Any person aggrieved or adversely affected by an order
of the secretary pursuant to this article, or by the denial or
issuance of a permit, or the failure or refusal of said secretary
to act within a reasonable time on an application for a permit or
the terms or conditions of a permit granted under the provisionsof this article, may appeal to a special hearing examiner
appointed to hear contested cases in accordance with the
provisions of chapter twenty-nine-a of this code. The secretary
shall promulgate legislative rules establishing procedures for
appeal and the conduct of hearings.
(e) In addition to those enforcement and inspection powers
conferred upon the secretary elsewhere by law, the secretary has
the enforcement and inspection powers as provided in sections
seven, eight and nine of this article.
(f) Nothing in this section diminishes or alters the
authority of the director of the division of environmental
protection under article five, chapter twenty-two of this code.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-4. Powers and duties of conservation officers.
Conservation officers and all other persons authorized to
enforce the provisions of this chapter shall be under the
supervision and direction of the director in the performance of
their duties as herein provided. The authority, powers and
duties of the conservation officers shall be statewide and they
shall have authority to:
(1) Arrest on sight, without warrant or other court process,
any person or persons committing a criminal offense in violation
of any of the laws of this state, in the presence of such
officer, but no such arrest shall be made where any form of
administrative procedure is prescribed by this chapter for the
enforcement of any of the particular provisions contained herein;
(2) Carry such arms and weapons as may be prescribed by the
director in the course and performance of their duties, upon
giving the bond required by the provisions of section five,
article seven, chapter sixty-one of this code, but no license or
other authorization shall be required of such officers for this
privilege;
(3) Search and examine, in the manner provided by law, any
boat, vehicle, automobile, conveyance, express or railroad car,
fish box, fish bucket or creel, game bag or game coat, or any
other place in which hunting and fishing paraphernalia, wild
animals, wild birds, fish, amphibians or other forms of aquatic
life could be concealed, packed or conveyed whenever they have
reason to believe that they would thereby secure or discover
evidence of the violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any
process of law issued under the authority of this chapter or any
law relating to wildlife, forests, and all other natural
resources, by a magistrate or any court having jurisdiction
thereof, in the same manner, with the same authority, and with
the same legal effect, as any sheriff can serve or execute such
warrant, notice or process;
(5) Require the operator of any motor vehicle or other
conveyance on or about the public highways or roadways, or in or
near the fields and streams of this state, to stop for the
purpose of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executingany warrants, notices or processes, and they shall have the same
rights and powers as sheriffs have in their respective counties
in so doing;
(7) Enter private lands or waters within the state while
engaged in the performance of their official duties hereunder;
(8) Arrest on sight, without warrant or other court process,
subject to the limitations set forth in subdivision (1) of this
section, any person or persons committing a criminal offense in
violation of any law of this state in the presence of any such
officer on any state-owned lands and waters and lands and waters
under lease by the division of natural resources and all national
forest lands, waters and parks, and U.S. Corps of Army
Engineers' properties within the boundaries of the state of West
Virginia, and, in addition to any authority conferred in the
other subdivisions of this section, execute all warrants of
arrest on such state and national lands, waters and parks, and
U.S. Corps of Army Engineers' properties, consistent with the
provisions of article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises
of another without written permission from the owner of the land
or premises in order to cut, damage or carry away, or cause to be
cut, damaged or carried away any timber, trees, logs, posts,
fruit, nuts, growing plants or products of any growing plant.
Any person convicted of the foregoing shall be liable to the
owner in the amount of three times the value of the timber,
trees, logs, posts, fruit, nuts, growing plants or products ofany growing plant, which shall be in addition to and
notwithstanding any other penalties by law provided by section
thirteen, article three, chapter sixty-one of this code; and
(10) Do all things necessary to carry into effect the
provisions of this chapter.
§20-7-26. Unlawful disposal of litter; civil and criminal
penalties; litter control fund; evidence; notice of
violations; litter receptacle placement; penalties; duty to
enforce violations.
(a) (1) Any person who places, deposits, dumps or throws or
causes to be placed, deposited, dumped or thrown any litter as
defined in section twenty-four of this article, in or upon any
public or private highway, road, street or alley, or upon any
private property without the consent of the owner, or in or upon
any public park or other public property other than in such place
as may be set aside for such purpose by the governing body having
charge thereof, is guilty of a misdemeanor, and, upon his or her
first conviction, shall be fined not less than fifty dollars nor
more than five hundred dollars:
Provided, That a person shall
not be held responsible for the actions of animals under their
direct control. At the request of the defendant or in the
discretion of the court, the court may sentence the defendant to
pick up and remove from any public highway, road, street, alley
or any other public park or public property as designated by the
court, any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of this
section by anyone prior to the date of such conviction. For the
first offense, the alternative sentence of litter pickup shall be
not less than eight hours nor more than sixteen hours in lieu of
other such fine. For purposes of this subdivision, the term
"court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less than
twenty-four hours nor more than six months:
Provided, That a
person shall not be held responsible for the actions of animals
under their direct control. At the request of the defendant or
in the discretion of the court, the court may sentence the
defendant to pick up and remove from any public highway, road,
street, alley or any other public park or public property as
designated by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal
or any part thereof, offal or any other offensive or unsightly
matter placed, deposited, dumped or thrown contrary to the
provisions of this section by anyone prior to the date of such
conviction. For the second offense, the alternative sentence of
litter pickup shall be not less than sixteen hours nor more than
thirty-two hours in lieu of such fine or incarceration, but not
both. For purposes of this subdivision, the term "court" shall
include circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than five hundred dollars nor more
than two thousand dollars and imprisoned in the county jail not
less than forty-eight hours nor more than one year:
Provided,
That a person shall not be held responsible for the actions of
animals under their direct control. At the request of the
defendant or in the discretion of the court, the court may
sentence the defendant to pick up and remove from any public
highway, road, street, alley or any other public park or public
property as designated by the court, any and all litter, garbage,
refuse, trash, cans, bottles, papers, ashes, carcass of any dead
animal or any part thereof, offal or any other offensive or
unsightly matter placed, deposited, dumped or thrown contrary to
the provisions of this section by anyone prior to the date of
such conviction. Upon a third conviction, the alternative
sentence of litter pickup shall be not less than thirty-two hours
nor more than sixty-four hours in lieu of such fine or
incarceration, but not both. For purposes of this subdivision,
the term "court" includes circuit and magistrate courts.
(4) The alternative sentence of litter pickup herein set
forth shall be verified by the conservation officers from the
division of natural resources or environmental inspectors from
the division of environmental protection, office of environmental
enforcement or a regional engineering technician from the
division of environmental protection, pollution prevention and
open dumps program (PPOD) of the county in which the offenseoccurred. Any defendant receiving the herein specified
alternative sentence of litter pickup shall provide within a time
to be set by the court written acknowledgement from said
conservation officers or environmental officers that the sentence
has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section is subject
at the discretion of the court to up to twice the original
penalty provisions available to the court at the time of
conviction.
(6) If any litter is thrown or cast from a motor vehicle or
boat, such action is prima facie evidence that the driver of such
motor vehicle or boat intended to violate the provisions of this
section. If any litter is dumped or discharged from a motor
vehicle or boat, such action is prima facie evidence that the
owner and driver of such motor vehicle or boat intended to
violate the provisions of this section.
(b) Any litter found on any public or private property with
any indication of ownership on it will be evidence creating a
rebuttable inference it was deposited improperly by the person
whose identity is indicated, and any person who improperly
disposes of litter is subject to either a civil fine of up to
five hundred dollars for such litter or required to pay the costs
of removal of such litter if the removal of such litter is
required to be done by the division, at the discretion of thedirector. All such fines and costs shall be deposited to the
litter control fund:
Provided, That no inference shall be drawn
solely from the presence of any logo, trademark, trade name or
other similar mass reproduced identifying character appearing on
litter found.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this
section shall pay the sum of not less than fifty dollars nor more
than five hundred dollars as costs for clean-up, investigation
and prosecution in such case, in addition to any other court
costs that the court is otherwise required by law to impose upon
such convicted person.
The clerk of the circuit court, magistrate court or
municipal court wherein such additional costs are imposed shall,
on or before the last day of each month, transmit all such costs
received under this subsection to the state treasurer for deposit
in the state treasury to the credit of a special revenue fund to
be known as the litter control fund which is hereby continued.
Expenditures for purposes set forth in this section are not
authorized from collections but are to be made only in accordance
with appropriation and in accordance with the provisions of
article three, chapter twelve of this code and upon fulfillment
of the provisions set forth in article two, chapter five-a of
this code:
Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-three,
expenditures shall be authorized from collections. Amountscollected which are found from time to time to exceed the funds
needed for the purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature.
(d) (1) The commissioner of the division of motor vehicles,
upon registering a motor vehicle or issuing an operator's or
chauffeur's license, shall issue to the owner or licensee, as the
case may be, a copy of subsection (a) of this section.
(2) The commissioner of the division of highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a)
of this section.
(e) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be
designated by the director by rule promulgated pursuant to
subdivision (8), subsection (a), section twenty-five of this
article, shall procure and place litter receptacles at its own
expense upon its premises and shall remove and dispose of litter
collected in such litter receptacles. After receiving two
written warnings from any law-enforcement officer or officers to
comply with this subsection or the said rules of the director,
any person who fails to place and maintain such litter
receptacles upon his or her premises in violation of this
subsection or the rules of the director shall be fined fifteendollars per day of such violation.
(f) No portion of this section shall be construed to
restrict a private owner in the use of the owner's own private
property in any manner otherwise authorized by law.
(g) Any law-enforcement officer who shall observe a person
violating the provisions of this section has a mandatory duty to
arrest or otherwise prosecute the violator to the limits provided
herein. The West Virginia division of highways shall investigate
and cause to be prosecuted violations of this section occurring
upon the highways of the state as the term "highways" is defined
in chapter seventeen of this code.
§20-7-28. Litter along streams, criminal penalties, enforcement.
(a) It is unlawful to place, deposit, dump or throw, or
cause to be placed, deposited, dumped or thrown, any litter as
defined in section twenty-four of this article and also any
garbage, refuse, trash, can, bottle, paper, ashes, carcass of any
dead animal or any part thereof, offal or any other offensive or
unsightly matter into any river, stream, creek, branch, brook,
lake or pond, or upon the surface of any land within one hundred
yards thereof, or in such location that high water or normal
drainage conditions will cause any such materials or substances
to be washed into any river, stream, creek, branch, brook, lake
or pond.
(b) No portion of this section restricts an owner, renter or
lessee in the use of his or her own private property or rented or
leased property or to prohibit the disposal of any industrial andother wastes into waters of this state in a manner consistent
with the provisions of article eleven, chapter twenty-two of this
code. But if any owner, renter or lessee, private or otherwise,
knowingly permits any such materials or substances to be placed,
deposited, dumped or thrown in such location that high water or
normal drainage conditions will cause any such materials or
substances to wash into any river, stream, creek, branch, brook,
lake or pond, it is prima facie evidence that such owner, renter
or lessee intended to violate the provisions of this section:
Provided, That if a landowner, renter or lessee, private or
otherwise, reports any such placing, depositing, dumping or
throwing of any such substances or materials upon his or her
property to the prosecuting attorney, county commission, or the
division of natural resources or the division of environmental
protection, then the landowner, renter or lessee will be presumed
to not have knowingly permitted such placing, depositing, dumping
or throwing of such materials or substances.
(c) In addition to enforcement by the director, the director
of the division of environmental protection, the chief of the
office of water resources of the division of environmental
protection, and the division of natural resources' chief law-
enforcement officer, the provisions of this section may be
enforced by all other proper law-enforcement agencies.
(d) (1) Any person violating any provision of this section
is guilty of a misdemeanor, and, upon his or her first
conviction, shall be fined not less than fifty nor more than fivehundred dollars. At the request of the defendant or in the
discretion of the court, the court may sentence the defendant to
pick up and remove from any area of a bank of any river, stream,
creek, branch, brook, lake or pond, or other property with prior
permission of the owner, the area to be specified by the court,
any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of this
section by anyone prior to the date of such conviction. For the
first offense, the alternative sentence of litter pickup shall be
not less than eight hours nor more than sixteen hours in lieu of
a fine. For purposes of this subdivision, the term "court"
includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less than
twenty-four hours nor more than six months. At the request of
the defendant or in the discretion of the court, the court may
sentence the defendant to pick up and remove from any area of a
bank of any river, stream, creek, branch, brook, lake or pond, or
other property with prior permission of the owner, the area to be
specified by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal
or any part thereof, offal or any other offensive or unsightly
matter placed, deposited, dumped or thrown contrary to theprovisions of this section by anyone prior to the date of such
conviction. For the second offense, the alternative sentence of
litter pickup shall be not less than sixteen hours nor more than
thirty-two hours in lieu of such fine or incarceration, but not
both. For purposes of this subdivision, the term "court"
includes circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than five hundred dollars nor more
than two thousand dollars and imprisoned in the county jail not
less than forty-eight hours nor more than one year. At the
request of the defendant or in the discretion of the court, the
court may sentence the defendant to pick up and remove from any
area of a bank of any river, stream, creek, branch, brook, lake
or pond, or other property with prior permission of the owner,
the area to be specified by the court, any and all litter,
garbage, refuse, trash, cans, bottles, papers, ashes, carcass of
any dead animal or any part thereof, offal or any other offensive
or unsightly matter placed, deposited, dumped or thrown contrary
to the provisions of this section by anyone prior to the date of
such conviction. Upon a third conviction the alternative
sentence of litter pickup shall be not less than thirty-two hours
nor more than sixty-four hours in lieu of such fine or
incarceration, but not both. For purposes of this subdivision,
the term "court" includes circuit and magistrate courts.
(4) The alternative sentence of litter pickup herein set
forth shall be verified by division of natural resourcesconservation officers or by environmental inspectors from the
office of environmental enforcement or a regional engineering
technician from the pollution prevention and open dumps program
(PPOD), both of the division of environmental protection, of the
county in which the offense occurred. Any defendant receiving
the herein specified alternative sentence of litter pickup shall
provide within a time to be set by the court written
acknowledgement from said conservation officers or environmental
officers that the sentence has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section is subject
at the discretion of the court to up to twice the original
penalty provisions available to the court at the time of
conviction.
§20-7-29. Assistance to solid waste authorities.
The director may expend funds from the litter control fund
established pursuant to section twenty-six of this article to
assist county and regional solid waste authorities in the
formulation of their comprehensive litter and solid waste control
plans pursuant to section eight, article four, chapter
twenty-two-c of this code and in the construction and maintenance
of approved commercial solid waste facilities and collection
equipment, including the provision of grants as well as bonding
assistance for those authorities which would in the opinion of
the director be unable to construct or maintain an approvedcommercial solid waste facility without grant funds.
ARTICLE 8. GENERAL AND MISCELLANEOUS PROVISIONS.
§20-8-1. Transition in terms; continuity.
Whenever in this code and elsewhere in law the terms "the
Conservation Commission of West Virginia", "conservation
commission", "director of conservation" and similar and related
terms are used and referenced, they shall be read, understood and
construed in the light of the enactment of this chapter by which
the conservation commission and the office of director of
conservation are abolished and the responsibilities, functions
and services thereof are transferred to and absorbed in the
division of natural resources, the natural resources commission
and the office of director of the division of natural resources
as in this chapter provided.
Any litigation instituted, entered into or pending to which
any of the governmental corporations and agencies abolished by
this chapter are named parties may be continued and prosecuted to
completion in such party names or, at the option of the litigants
and by leave of court, such party names may be amended or changed
to correspond with the names of the successor governmental
corporations and agencies as in this chapter provided.
All contracts, compacts and agreements, heretofore entered
into by any of the governmental corporations and agencies hereby
abolished, shall continue to be the obligations of the respective
successor corporations and agencies as in this chapter provided.
No provision of this chapter shall be construed as impairing theobligation of any contract.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-4. Recycling plans.
(a) Each county or regional solid waste authority, as part
of the comprehensive litter and solid waste control plan required
pursuant to the provisions of section eight, article four,
chapter twenty-two-c of this code, shall prepare and adopt a
comprehensive recycling plan to assist in the implementation of
the recycling goals in section three of this article.
(b) Each recycling plan required by this section shall
include, but not be limited to:
(1) Designation of the recyclable materials that can be most
effectively source separated in the region or county, which shall
include at least three recyclable materials; and
(2) Designation of potential strategies for the collection,
marketing and disposition of designated source separated
recyclable materials in each region or county.
§20-11-5a. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a)
Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a recycling assessment fee is
hereby levied and imposed upon the disposal of solid waste at all
solid waste disposal facilities in this state, to be collected at
the rate of two dollars per ton or part thereof of solid waste.
The fee imposed by this section is in addition to all other fees
levied by law.
(b)
Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which becomecollectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice remains in effect until a notice of
cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of the
solid waste facility are jointly and severally responsible and
liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them and against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the feeimposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definitions. -- For purposes of this section, "solid
waste disposal facility" means any approved solid waste facility
or open dump in this state and includes a transfer station when
the solid waste collected at the transfer station is not finally
disposed of at a solid waste facility within this state that
collects the fee imposed by this section.
Nothing herein authorizes in any way the creation or
operation of or contribution to an open dump.
(e)
Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by theperson who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by such person in such person's regular business or
personal activities or by persons utilizing the facility on a
cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
environmental protection by rule as exempt from the fee imposed
pursuant to section eleven, article fifteen, chapter twenty-two
of this code.
(f)
Procedure and administration. -- Notwithstanding
section three, article ten, chapter eleven of this code, each and
every provision of the "West Virginia Tax Procedure and
Administration Act" set forth in article ten, chapter eleven of
this code applies to the fee imposed by this section with like
effect as if said act were applicable only to the fee imposed by
this section and were set forth in extenso herein.
(g)
Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were the only fee imposed by this section and were set forth in
extenso herein.
(h)
Dedication of proceeds. -- The proceeds of the feecollected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, in a special revenue account
designated as the "Recycling Assistance Fund" which is hereby
created. The director of the division of natural resources shall
allocate the proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs and recycling market procurement
efforts, established pursuant to this article. The director of
the division of natural resources shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, containing
application procedures, guidelines for eligibility, reporting
requirements and other matters deemed appropriate;
(2) Twelve and one-half percent of the total proceeds shall
be expended for personal services and benefit expenses of full-
time salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall
be transferred to the West Virginia development office, to be
used in assisting counties and municipalities in the design and
construction of wastewater treatment facilities;
(4) Twelve and one-half percent of the total proceeds shall
be transferred to the solid waste reclamation and environmental
response fund, established pursuant to section eleven, article
fifteen, chapter twenty-two of this code, to be expended by the
division of environmental protection to assist in the funding ofthe pollution prevention and open dumps program (PPOD) which
encourages recycling, reuse, waste reduction and clean-up
activities; and
(5) Twelve and one-half percent of the total proceeds shall
be deposited in the hazardous waste emergency response fund
established in article nineteen, chapter twenty-two of this code.
(i)
Severability. -- If any provision of this section or
the application thereof is for any reason adjudged by any court
of competent jurisdiction to be invalid, such judgment does not
affect, impair or invalidate the remainder of this section, but
is confined in its operation to the provision thereof directly
involved in the controversy in which such judgment is rendered,
and the applicability of such provision to other persons or
circumstances is not affected thereby.
(j)
Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§20-11-5b. Solid and hazardous waste supplemental assessment
fee.
(a)
Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a solid and hazardous waste
supplemental assessment fee is hereby imposed upon the disposal
of solid or hazardous waste at all solid waste or hazardous waste
disposal facilities in this state, to be collected at the rate of
twenty-five cents per ton or part thereof of solid or hazardous
waste. The fee imposed by this section is in addition to all
other fees levied by law.
(b)
Collection, return, payment and records. -- The person
disposing of solid or hazardous waste at the solid or hazardous
waste disposal facility shall pay the fee imposed by this
section, whether or not such person owns the solid or hazardous
waste, and the fee shall be collected by the operator of the
solid or hazardous waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid or hazardous waste is delivered to the solid or hazardous
waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be personally liable for such amount as
he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee asrequired in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice remains in effect until a notice of
cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid or hazardous waste
disposal facility leases the solid or hazardous waste facility to
an operator, the operator is primarily liable for collection and
remittance of the fee imposed by this section and the owner is
secondarily liable for remittance of the fee imposed by this
section. However, if the operator fails, in whole or in part, to
discharge his or her obligations under this section, the owner
and the operator of the solid or hazardous waste disposal
facility are jointly and severally responsible and liable for
compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them and against the association orcorporation which they represent.
(8) Each person disposing of solid or hazardous waste at a
solid or hazardous waste disposal facility and each person
required to collect the fee imposed by this section shall keep
complete and accurate records in such form as the tax
commissioner may require in accordance with the rules and
regulations of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid or hazardous waste subject to the jurisdiction of the
public service commission under chapter twenty-four-a of this
code. Notwithstanding any provision of law to the contrary, upon
the filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid or hazardous
waste removal service. In calculating the amount of said fee to
said motor carrier, the commission shall use the national average
of pounds of waste generated per person per day as determined by
the United States Environmental Protection Agency.
(d)
Definitions. -- For purposes of this section:
(1) "Solid or hazardous waste disposal facility" means any
approved solid or hazardous waste facility or open dump in this
state and includes a transfer station when the solid or hazardous
waste collected at the transfer station is not finally disposed
of at a solid or hazardous waste facility within this state that
collects the fee imposed by this section;
(2) "Coal combustion byproduct" means the residuals,
including fly ash, bottom ash, bed ash and boiler slag produced
by coal-fired or coal/gas-fired electrical or steam generating
units. For nonelectrical steam generating units burning a
combination of solid waste and coal, a carbon monoxide level of
less than or equal to one hundred parts per million on a twenty-
four hour average basis is required for the byproducts to meet
this definition. The carbon monoxide level shall be calculated
on a dry gas basis corrected to seven percent oxygen; and
(3) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
Nothing herein authorizes in any way the creation or
operation of or contribution to an open dump.
(e)
Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste in which the recycling
assessment fee levied and imposed by section five-a of this
article has been paid;
(2) Disposal of sludge or coal combustion byproducts;
(3) Reuse or recycling of any solid or hazardous waste; or
(4) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division ofenvironmental protection by rule as exempt from the fee imposed
pursuant to section eleven, article fifteen, chapter twenty-two
of this code.
(f)
Procedure and administration. -- Notwithstanding
section three, article ten, chapter eleven of this code, each and
every provision of the "West Virginia Tax Procedure and
Administration Act" set forth in said article applies to the fee
imposed by this section with like effect as if said act were
applicable only to the fee imposed by this section and were set
forth in extenso herein.
(g)
Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen of said article shall apply to the fee imposed by this
section with like effect as if said sections were the only fee
imposed by this section and were set forth in extenso herein.
(h)
Dedication of proceeds. -- The proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, to the hazardous waste emergency
response fund established in article nineteen, chapter twenty-two
of this code.
(i)
Severability. -- If any provision of this section or
the application thereof is for any reason adjudged by any court
of competent jurisdiction to be invalid, such judgment does not
affect, impair or invalidate the remainder of this section, but
is confined in its operation to the provision thereof directly
involved in the controversy in which such judgment is rendered,and the applicability of such provision to other persons or
circumstances is not affected thereby.
(j)
Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§20-11-9. Recycled oil advisory committee.
(a) The division of natural resources recycled oil advisory
committee is continued. The recycled oil advisory committee
shall consist of nine members appointed by the governor, for
terms of two years, who serve without compensation. One member
of the committee shall have significant experience in the oil
refining industry, one member shall have significant experience
in the jobbing or distributing of motor oil, one member shall be
a representative of retail gasoline dealers, one member shall be
a representative of retail merchants, one member shall be a
representative of the insurance industry, one member shall be a
member of a county or regional solid waste authority, one member
shall be a member of the general public, one member shall be a
member of the House of Delegates recommended by the speaker of
the House of Delegates and one member shall be a member of the
Senate recommended by the president of the Senate. The director
of the division of natural resources or his or her designated
representative shall be an ex officio member of the committee and
shall serve as chair of the committee. The recycled oil advisory
committee shall meet at least monthly, or upon the call of four
members, to discuss all aspects of the collection, handling,
transportation, storage, disposal and recycling of used motoroil.
(b) The functions of the committee include, but are not
limited to, the following:
(1) Making recommendations to the division of natural
resources, division of environmental protection and the
Legislature concerning the adoption of management standards with
respect to collection, handling, transportation, storage,
disposal and recycling of used motor oil. The committee shall
make the first report of its recommendations on or before the
fifteenth day of January, one thousand nine hundred ninety-two,
and other such reports may be made at such times as the committee
deems appropriate.
(2) Carrying out education and promotional activities
regarding the use of recycled oil.
(3) Identifying areas in the public and private sectors
where recycled oil could be utilized.
(4) Entertaining proposals from citizens, corporations and
businesses related to all aspects of used motor oil.
(5) Identifying administrative requirements at both the
state and local levels to ascertain resources and needs relating
to used motor oil.
(6) Examining federal law and regulations, both existing and
proposed, to assure that West Virginia businesses and individuals
who generate used motor oil may participate in a program of
handling and disposing of used motor oil that complies with
federal statutes and regulatory requirements.
§20-11-12. Recycling facilities exemption.
Facilities which only accept, buy or transfer source
separated material or recycled material for use, resale or
transfer for further processing are exempt from the provisions of
articles fifteen, chapter twenty-two of this code, article four,
chapter twenty-two-c of said code and sections one-c and one-f,
article two, chapter twenty-four of said code.
CHAPTER 21. LABOR.
ARTICLE 3B. EMPLOYER ASSISTANCE FOR ENVIRONMENTAL PROTECTION.
§21-3B-3. Environmental assistance resource board.
There is hereby created within the division of labor an
environmental assistance resource board to advise and assist the
commissioner of labor in developing the technical resources
necessary to administer the provisions of this article. The
board is composed of the commissioner of labor, who serves as
chair; the chief of the office of air quality of the division of
environmental protection; the chief of the office of water
resources of the division of environmental protection; the chief
of the office of waste management of the division of
environmental protection; the director of the division of
environmental protection; one member of the House of Delegates
appointed by the speaker of the House; and one member of the
Senate appointed by the president of the Senate. Terms of
legislative members of the board run concurrent with the member's
legislative term of office.
The board shall meet within thirty days of the effectivedate of this article and thereafter at the call of the chair.
The board shall establish an information network wherein the
commissioner of labor and any consultant advising employers, in
order to provide accurate information regarding compliance with
environmental and hazardous waste rules, may access written
materials or staff having technical expertise within the agencies
represented on the board. At the request of the board, the
secretary of the department of commerce, labor and environmental
resources is authorized to direct the assignment of staff, on a
temporary or permanent basis, from any agency represented on the
board to the division of labor to assist in the implementation of
the employer assistance program set forth in this article.
CHAPTER 22. ENVIRONMENTAL PROTECTION.
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-1. Legislative findings; legislative statement of policy
and purpose.
(a) The Legislature finds that:
(1) Restoring and protecting the environment is fundamental
to the health and welfare of individual citizens, and our
government has a duty to provide and maintain a healthful
environment for our citizens.
(2) The state has the primary responsibility for protecting
the environment; other governmental entities, public and private
organizations and our citizens have the primary responsibility of
supporting the state in its role as protector of the environment.
(3) Governmental decisions on matters which relate to theuse, enhancement, preservation, protection and conservation of
the environment should be made after public participation and
public hearings.
(4) Efficiency in the wise use, enhancement, preservation,
protection and conservation of the environment can best be
accomplished by an integrated and interdisciplinary approach in
decision making and would benefit from the coordination,
consolidation and integration of state programs and agencies
which are significantly concerned with the use, enhancement,
preservation, protection and conservation of the environment.
(5) Those functions of government which regulate the
environment should be consolidated in order to accomplish the
purposes set forth in this article, to carry out the
environmental functions of government in the most efficient and
cost effective manner, to protect human health and safety and, to
the greatest degree practicable, to prevent injury to plant,
animal and aquatic life, improve and maintain the quality of life
of our citizens, and promote economic development consistent with
environmental goals and standards.
(b) The Legislature declares that the establishment of a
division of environmental protection is in the public interest
and will promote the general welfare of the state of West
Virginia without sacrificing social and economic development. It
is the policy of the state of West Virginia, in cooperation with
other governmental agencies, public and private organizations and
the citizens of this state, to use all practicable means andmeasures to prevent or eliminate harm to the environment and
biosphere, to create and maintain conditions under which man and
nature can exist in productive harmony and fulfill the social,
economic and other requirements of present and future
generations. The purposes of this chapter are:
(1) To strengthen the commitment of this state to restore,
maintain and protect the environment;
(2) To consolidate environmental regulatory programs in a
single state agency;
(3) To provide a comprehensive program for the conservation,
protection, exploration, development, enjoyment and use of the
natural resources of the state of West Virginia;
(4) To supplement and complement the efforts of the state by
coordinating state programs with the efforts of other
governmental entities, public and private organizations and the
general public; to improve the quality of the environment, the
public health and public enjoyment of the environment and the
propagation and protection of animal, aquatic and plant life, in
a manner consistent with the benefits to be derived from strong
agricultural, manufacturing, tourism and energy-producing
industries;
(5) Insofar as federal environmental programs require state
participation, to endeavor to obtain and continue state primacy
in the administration of such federally-mandated environmental
programs, and to endeavor to maximize federal funds which may be
available to accomplish the purposes of the state and federalenvironmental programs and to cooperate with appropriate federal
agencies to meet environmental goals;
(6) To encourage the increased involvement of all citizens
in the development and execution of state environmental programs;
(7) To promote improvements in the quality of the
environment through research, evaluation and sharing of
information;
(8) To improve the management and effectiveness of state
environmental protection programs; and
(9) To increase the accountability of state environmental
protection programs to the governor, the Legislature and the
public generally.
§22-1-2. Definitions.
As used in this article, unless otherwise provided or
indicated by the context:
(1) "Department" means the department of commerce, labor and
environmental resources.
(2) "Director" means the director of the division of
environmental protection.
(3) "Division" means the division of environmental
protection.
(4) "Function" includes any duty, obligation, power,
authority, responsibility, right, privilege, activity or program.
(5) "Office" includes any office, board, agency, unit,
organizational entity, or component thereof.
(6) "Secretary" means the secretary of the department ofcommerce, labor and environmental resources.
§22-1-3. Rulemaking generally; relationship to federal programs.
(a) The director has the power and authority to propose
legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code
to carry out and implement the provisions of this chapter and to
carry out and implement any other provision of law relating to
offices or functions of the division.
(b) The requirements and limitations set forth in this
section apply to any rule-making authority granted pursuant to
this chapter or chapters twenty-two-b and twenty-two-c of this
code.
(c) Prior to the proposal of any new rule, the director,
after consultation with the division of environmental protection
advisory council, shall determine whether such rule should be
substantially similar in content to a counterpart federal
authority. If the director determines that such rule should be
substantially similar in content to a counterpart federal
regulation, then to the greatest degree practical such proposed
rule shall incorporate by reference the counterpart federal
regulation. If the director determines that such rule should not
be substantially similar in content to a counterpart federal
regulation, then contemporaneously with the proposal of such
rule, the director shall file, in the same manner as provided in
chapter twenty-nine-a for the proposal of rules, a statement
setting forth the reasons why the proposed rule should bedifferent in content from a counterpart federal regulation.
(d) Whenever any existing rule is modified, amended or
replaced, the provisions of subsection (c) of this section apply
to the proposal of any such modification, amendment or
replacement rule.
(e) Notwithstanding the provisions of article three, chapter
twenty-nine-a of this code, at least one public hearing shall be
held in conjunction with each rulemaking prior to the expiration
of the public comment period for the proposed rules.
§22-1-4. Division of environmental protection; appointment of
director.
The division of environmental protection is continued within
the department of commerce, labor and environmental resources.
The division shall be administered, in accordance with the
provisions of this article, under the supervision and direction
of the director.
§22-1-5. Jurisdiction vested in division.
Except as may be otherwise provided in this code, the
division is hereby designated as the lead regulatory agency for
this state for all purposes of federal legislation relating to
all activities regulated under this chapter.
§22-1-6. Director of the division of environmental protection.
(a) The director is the chief executive officer of the
division. Subject to section seven of this article and other
provisions of law, the director shall organize the division into
such offices, sections, agencies and other units of activity asmay be found by the director to be desirable for the orderly,
efficient and economical administration of the division and for
the accomplishment of its objects and purposes. The director may
appoint assistants, hearing officers, clerks, stenographers, and
other officers, technical personnel and employees needed for the
operation of the division and may prescribe their powers and
duties and fix their compensation within amounts appropriated
therefor.
(b) The director has the power to and may designate
supervisory officers or other officers or employees of the
division to substitute for him or her on any board or commission
established under this code or to sit in his or her place in any
hearings, appeals, meetings or other activities with such
substitute having the same powers, duties, authority and
responsibility as the director. Additionally, the director has
the power to delegate, as he or she considers appropriate, to
supervisory officers or other officers or employees of the
division his or her powers, duties, authority and responsibility
relating to issuing permits, hiring and training inspectors and
other employees of the division, conducting hearings and appeals
and such other duties and functions set forth in this chapter or
elsewhere in this code.
(c) The director has responsibility for the conduct of the
intergovernmental relations of the division, including assuring:
(1) That the division carries out its functions in a manner which
supplements and complements the environmental policies, programsand procedures of the federal government, other state
governments, and other instrumentalities of this state; and (2)
that appropriate officers and employees of the division consult
with individuals responsible for making policy relating to
environmental issues in the federal government, other state
governments, and other instrumentalities of this state concerning
differences over environmental policies, programs and procedures
and concerning the impact of statutory law and rules upon the
environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the director by this chapter, the
director is hereby authorized and empowered to:
(1) Sign and execute in the name of the state by the
"division of environmental protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations,
partnerships or individuals:
Provided, That the powers granted
to the director to enter into agreements or contracts and to make
expenditures and obligations of public funds under this
subdivision shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are
incorporated into each secretary's department pursuant to the
provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protectionmethods and disseminate information to the citizens of this
state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violations
of statutes or rules which the division is charged with
enforcing; to serve and execute warrants and processes; to make
arrests; issue orders, which for the purposes of this chapter
include consent agreements; and to otherwise enforce the statutes
or rules which the division is charged with enforcing;
(4) Acquire for the state in the name of the "division of
environmental protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
division of environmental protection, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property;
(5) Provide for workshops, training programs and other
educational programs, apart from or in cooperation with other
governmental agencies, necessary to insure adequate standards of
public service in the division. The director may also provide
for technical training and specialized instruction of any
employee. Approved educational programs, training and
instruction time may be compensated for as a part of regular
employment. The director is further authorized to pay out of
federal or state funds, or both, as such funds are available,
fees and expenses incidental to such educational programs,training and instruction. Eligibility for participation by
employees will be in accordance with guidelines established by
the director; and
(6) Issue certifications required under 33 U.S.C. §1341.
Prior to issuing any such certification the director shall
solicit from the division of natural resources reports and
comments concerning the possible certification. The reports and
comments shall be directed from the division of natural resources
to the director for consideration.
(e) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and serves at the will
and pleasure of the governor:
Provided, That in lieu of
appointing a director, the governor may order the secretary to
directly exercise the powers of the director. The secretary
shall designate the order in which other officials of the
division shall act for and perform the functions of the secretary
or the director during the absence or disability of both the
secretary and the director or in the event of vacancies in both
of those offices.
(f) At the time of his or her initial appointment, the
director shall be at least thirty years old and shall be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the
energy industry and the conservation and wise use of natural
resources. The director shall have at least a bachelor's degreein a related field and shall have at least three years of
experience in a position of responsible charge in at least one
discipline relating to the duties and responsibilities for which
the director will be responsible upon assumption of the office of
director. The director shall not be a candidate for or hold any
other public office, shall not be a member of any political party
committee and shall immediately forfeit and vacate his or her
office as director in the event he or she becomes a candidate for
or accepts appointment to any other public office or political
party committee.
(g) The director shall receive an annual salary of sixty-
five thousand dollars and shall be allowed and paid necessary
expenses incident to the performance of his or her official
duties. Prior to the assumption of the duties of his or her
office, the director shall take and subscribe to the oath
required of public officers prescribed by section five, article
IV of the constitution of West Virginia and shall execute a bond,
with surety approved by the governor, in the penal sum of ten
thousand dollars, which executed oath and bond shall be filed in
the office of the secretary of state. Premiums on the bond shall
be paid from the division funds.
§22-1-7. Offices within division.
Consistent with the provisions of this article the director
shall, at a minimum, maintain the following offices within the
division:
(1) The office of abandoned mine lands and reclamation,which is charged, at a minimum, with administering and enforcing,
under the supervision of the director, the provisions of article
two of this chapter;
(2) The office of mining and reclamation, which is charged,
at a minimum, with administering and enforcing, under the
supervision of the director the provisions of articles three and
four of this chapter;
(3) The office of air quality, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of article five of this chapter;
(4) The office of oil and gas, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles six, seven, eight,
nine and ten of this chapter;
(5) The office of water resources, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles eleven, twelve,
thirteen and fourteen of this chapter; and
(6) The office of waste management, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles fifteen, sixteen,
seventeen, eighteen, nineteen and twenty of this chapter.
§22-1-8. Supervisory officers.
(a) The director shall appoint a competent and qualified
person to be chief of each office specified in this section. The
chief is the principal administrative officer of that office andis accountable and responsible for the orderly and efficient
performance of the duties, functions and services of his or her
office.
(b) There shall be in the division such other supervisory
officers as the director determines is necessary to administer
the functions of the division. Such supervisory officers are
"administrators" as such term is defined in section two, article
six, chapter twenty-nine of this code, notwithstanding the fact
that the positions filled by such persons are not statutorily
created. Any such supervisory officer may be designated by the
director as a deputy director, assistant director, chief,
administrator, or other administrative title or designation.
Each of the supervisory officers shall be appointed by the
director and serve at the will and pleasure of the director. The
compensation of such supervisory officers shall be fixed by the
director. A single individual may be appointed to serve
simultaneously in two distinct supervisory positions, but in a
case where such dual appointment is made, such supervisory
officer shall not receive additional compensation above that
which would be paid for serving in one supervisory position.
(c) A supervisory officer appointed pursuant to the
provisions of this section shall report directly to the director
and shall, in addition to any functions vested in or required to
be delegated to such officer, perform such additional functions
as the director may prescribe.
(d) The supervisory officers of the division shall, beforeentering upon the discharge of their duties, take the oath of
office prescribed by section five, article IV of the constitution
of West Virginia, and shall execute a bond in the penalty of two
thousand dollars, with security to be approved by the governor,
conditioned upon the faithful discharge of their duties, a
certificate of which oath and which bond shall be filed in the
office of the secretary of state. Premiums on such bond shall be
paid from the division funds.
§22-1-9. Environmental protection advisory council.
(a) There is created within the department of commerce,
labor and environmental resources the environmental protection
advisory council. The environmental protection advisory council
consists of seven members. The director serves as an ex officio
member of the council and as its chair. The remaining six
members are appointed by the governor. Each member serves for a
term of four years and may be reappointed. Of the members of the
council first appointed, two shall be appointed for terms ending
on the thirtieth day of June, one thousand, nine hundred
ninety-five, and two each for terms ending one and two years
thereafter. Vacancies on the council shall be filled within
sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries
regulated by the division or their trade associations. Two
members shall represent organizations advocating environmental
protection. One member shall represent organizations
representing local governments. One member shall representpublic service districts. In making subsequent appointments this
balance of membership shall be maintained.
(c) Appointed members are entitled to one hundred dollars
per day when attending council meetings, in addition to
reimbursement for all reasonable and necessary expenses incurred
in the performance of their duties.
(d) The council shall meet at least once every quarter and
at the call of the chair.
(e) The council shall:
(1) Consult with and advise the director on program and
policy development, problem solving and other appropriate
subjects;
(2) Identify and define problems associated with the
implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups; and
(5) To the extent possible, strive for consensus on the
development of overall environmental policy.
§22-1-10. Allocation of appropriations and effect on personnel.
(a) Except as herein exempted and notwithstanding any other
provisions in this code to the contrary, the director may, with
the exception of the special reclamation fund established in
section eleven, article three of this chapter, expend, inaccordance with the provisions of chapter five-a of this code,
from special revenue accounts, and funds established pursuant to
this chapter and chapters twenty-two-b and twenty-two-c of this
code, amounts necessary to implement and administer the general
powers, duties and responsibilities of the division of
environmental protection:
Provided, That federal funds required
by law to be expended for a specific purpose may not be expended
for any purpose contrary to the laws, rules or regulations of the
federal government.
(b) Notwithstanding the provisions of subsection (a) of this
section and section two, article two, chapter twelve of this code
to the contrary, all moneys received and collected for accounts
established or continued in this chapter or chapters twenty-two-b
and twenty-two-c of this code, shall be credited to those special
revenue accounts created in the state treasury with all earnings
generated by those accounts being deposited in those accounts.
Such moneys and earnings shall be used and expended only for the
purposes for which the same are authorized to be collected by
law.
(c) With respect to employees affected by the creation of
the division or the transfer of functions and offices to the
division the layoff and recall rights of such employees within
the classified service of the state as provided in subsections
(5) and (6), section ten, article six, chapter twenty-nine of
this code are limited to the department of commerce, labor and
environmental resources and further limited to an occupationalgroup substantially similar to the occupational group established
by the classification and compensation plan for the classified
service of the agency or board in which the employee was
employed:
Provided, That the employee has the qualifications
established for the job class. The duration of recall rights
provided in this subsection is limited to two years or the length
of tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section abridges the rights
of employees within the classified service of the state as
provided in sections ten and ten-a of said article.
(d) The director is empowered to authorize the payment of
all or any part of the reasonable expenses of employees of the
division in moving their household furniture and effects as a
result of a reassignment of such employee caused by a transfer of
functions or offices to the division.
§22-1-11. Saving provisions.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted, or allowed
to become effective by the governor, any state department or
agency or official thereof, or by a court of competent
jurisdiction, in the performance of functions which have been
transferred to the director or to the division, and were in
effect on the date such transfer occurred continue in effect, for
the benefit of the division, according to their terms until
modified, terminated, superseded, set aside, or revoked inaccordance with the law by the governor, the secretary, the
director, or other authorized official, a court of competent
jurisdiction, or by operation of law.
(b) Any proceedings, including notices of proposed rule
making, or any application for any license, permit, certificate
or financial assistance pending before any department, division
or other office, functions of which were transferred to the
division are not affected by the transfer. Orders issued in any
such proceedings shall continue in effect until modified,
terminated, superseded, or revoked by the governor, the
secretary, the director, by a court of competent jurisdiction, or
by operation of law. Nothing in this subsection prohibits the
discontinuance or modification of any such proceeding under the
same terms and conditions and to the same extent that such
proceeding could have been discontinued or modified if the
division had not been created or if functions or offices had not
been transferred to the division. The director is authorized to
propose legislative rules in accordance with the provisions of
chapter twenty-nine-a of this code for the orderly transfer of
proceedings continued under the provisions of this subsection.
(c) Except as provided in subsection (e) of this section,
the creation of the division and the subsequent transfer of
functions to it do not affect suits commenced prior to the
effective date of the creation or any transfer of functions or
offices to it, and in all such suits, proceedings shall be had,
appeals taken, and judgments rendered in the same manner and withlike effect as if the creation or transfer had not occurred.
(d) No suit, action, or other proceeding commenced by or
against any officer in the official capacity of such individual
as an officer of any department, division or other office,
functions of which were transferred to the division abates by
reason of such transfer. No cause of action by or against any
department, division or other office, functions of which were
transferred to the division, or by or against any officer thereof
in the official capacity of such officer, abates by reason of the
transfer.
(e) If, before the transfer, any department, division or
other office, or officer thereof in the official capacity of such
officer, was a party to a suit, and any function of such
department, division or other office, or officer was transferred
to the secretary, the director or other officer of the division,
then such suit shall be continued with the secretary, the
director or other appropriate officer substituted or added as a
party.
§22-1-12. Public information.
The division shall collect, organize and from time to time
distribute to the public, through news media or otherwise,
interesting facts, information and data concerning the state's
environment and its environmental regulatory programs. The
director may organize and promote lectures, demonstrations,
symposiums, schools and other educational programs relating to
the state's environment and its protection. Video tapes, motionpictures, slide films and other photographic services may be
provided for instruction on the environment and its protection
for schools, other governmental agencies, and civic organizations
under such rules as may be prescribed by the director.
The director shall select and designate a competent and
qualified person as division public information officer, who is
responsible for the organization and management of the division's
public information and public affairs programs.
§22-1-13. Notification of permitting decisions.
Any person may request the director to notify the person of
a decision to issue or deny a specific permit applied for under
this chapter. The request must be in writing and received by the
director within the public comment period or at a public hearing
held for the specific permit application. If there is no public
comment period or public hearing held for the specific permit
application the director is required to make the notification
under this section only if the request for notification is
received by the director at least two working days prior to
notifying the applicant of the decision. The director shall
notify all persons who have made a timely request under this
section of the decision on the application at the same time the
applicant is notified of the decision. The notification shall
advise the person of any appeal rights under this chapter.
§22-1-14. Stream restoration fund; creation; special account;
purposes and expenditures.
(a) There is hereby created in the state treasury a specialaccount known as the "stream restoration fund". Moneys received
by the division pursuant to transfers from any other account
lawfully transferred, from the federal government and other
sources, from mitigation, moneys, from gifts, bequests, donations
and contributions, and other moneys lawfully received from
whatever source, may be deposited in the state treasury to the
credit of the stream restoration fund.
(b) Notwithstanding the provisions of section two, article
two, chapter twelve of this code to the contrary, all moneys
received and collected for the stream restoration fund shall be
recorded in a separate interest-bearing account, with the amount
of interest earned being credited to the account as it is earned.
The moneys are to be used and expended only for the restoration
and enhancement of the streams and water resources of this state
including those streams and water resources which have been
affected by coal mining or acid mine drainage. Expenditures
shall be made by the director and are authorized first from the
interest accumulated in the fund:
Provided, That nothing herein
limits the authority of the director to expend principal amounts
contained in the fund.
§22-1-15. Laboratory certification; rules; fees; revocation and
suspension; environmental laboratory certification fund;
programs affected; and appeals.
(a) The director shall promulgate rules to require the
certification of laboratories conducting tests and analyses to be
used for purposes of demonstrating compliance under the coveredstatutory programs, including reasonable annual certification
fees for laboratories not to exceed an annual program aggregate
of one hundred fifty thousand dollars, to be assessed against
laboratory owners or operators in such an amount as is necessary
to cover the actual costs of administration of this program and
the processing of certification applications, to be deposited in
the state environmental laboratory certification fund created
pursuant to this section. By the first day of July of each year
beginning the first day of July, one thousand nine hundred
ninety-four, the director shall provide to the secretary a
written report reflecting funds collected, how the funds were
expended, and an assessment of the adequacy of the funding to
administer the program.
(b) After the effective date of the rules promulgated
pursuant to this section, tests and analyses conducted in
laboratories that are not certified for the parameters or
toxicity being tested or analyses shall not be accepted by the
division, except as otherwise provided, as being in compliance
with the requirements, rules or orders of the division issued
under authority of one or more of the covered statutory programs:
Provided, That field tests and remote monitoring or testing
equipment which is conducted or located away from any laboratory
shall not be deemed a laboratory but shall be subject to such
quality assurance and quality control standards as may be
established by the director in rules promulgated pursuant to this
section. The director shall provide by rule for the granting ofcertification for laboratories located outside of West Virginia
without performance testing or assessment of certification fee
pursuant to this section if such laboratories provide written
documentation that approval has been received under requirements
in another state determined by the director to be equivalent to
the West Virginia laboratory certification program. Such
reciprocal certification shall be granted only for testing
methods and parameters for which the laboratory holds a valid
authorization in such other state and only for laboratories in
states which allow reciprocity with respect to laboratories
located in this state.
(c) Application shall be made to the director for approval
or certification by laboratories on forms and in a manner
prescribed by the director.
(d) Certification shall be renewed on an annual basis. The
existing certification shall remain in effect until the director
notifies the applicant for renewal that renewal of certification
has been granted or denied.
(e) Certification shall be granted for those tests or
parameters for which the laboratory demonstrates adequate
performance on performance evaluation tests based on the criteria
established in rules by the director. The director shall, by
rule, establish criteria governing what shall be considered in
any decision to deny or issue a certification.
(f) Failure to comply with the requirements of the
applicable analytical methods and procedures or standardsspecified in the rules of the director shall be grounds for
revocation or suspension of certification for the affected test
procedures or parameters.
(g) No person subject to the covered statutory programs
shall be allowed to use data or test results from tests and
analyses conducted at laboratories lacking certification for
purposes of demonstrating compliance under the covered statutory
programs:
Provided, That any person whose data or test results
are invalidated because such person had relied upon a laboratory
which loses its certification, shall be granted thirty days after
notice thereof by the director during which data or test results
may be repeated or reanalyzed by a certified laboratory for
purposes of demonstrating compliance under the covered statutory
programs, unless waived by the director:
Provided, however, That
such thirty-day period may be extended by the director for good
cause shown.
(h) A special revenue fund designated the "environmental
laboratory certification fund" shall be established in the state
treasury on the first day of July, one thousand nine hundred
ninety-three. The net proceeds of all fees collected pursuant to
this section shall be deposited in the environmental laboratory
certification fund. Upon appropriation by the Legislature, the
director shall expend the proceeds of the environmental
laboratory certification fund solely for the administration of
the requirements of this section:
Provided, That for fiscal year
one thousand nine hundred ninety-four, expenditures are permittedfrom collection without further appropriation by the Legislature.
(i) For purposes of this section, "covered statutory
program" means one of the regulatory programs developed under
statutory authority of one of the following acts of the
Legislature: water pollution control act, article eleven of this
chapter; hazardous waste management act, article eighteen of this
chapter; hazardous waste emergency response fund act, article
nineteen of this chapter; underground storage tank act, article
seventeen of this chapter; the solid waste management act,
article fifteen of this chapter; or the groundwater protection
act, article twelve of this chapter.
(j) Any person adversely affected by an order or action by
the director pursuant to this section, or aggrieved by the
failure or refusal of the director to act within a reasonable
time, or by the action of the director in granting or denying a
certification or renewal thereof, may appeal to the environmental
quality board pursuant to article one, chapter twenty-two-b of
this code.
§22-1-16. Conflicting provisions.
This chapter is intended to supplement and reorganize
existing law and it is not the intention of the Legislature to
repeal, expressly or by implication, any other provision of this
code. In the event that some provision of this chapter is
inconsistent or conflicts with any other provisions of the code,
making it impossible to comply with both, the provisions of this
chapter control.
ARTICLE 2. ABANDONED MINE LANDS AND RECLAMATION ACT.
§22-2-1. Short title.
This article shall be known and cited as the "Abandoned Mine
Lands and Reclamation Act".
§22-2-2. Legislative findings; intent and purpose of article;
jurisdiction and authority of director.
The Legislature finds that there are a substantial number of
acres of land throughout the state that were disturbed by
surface-mining operations prior to the time of present day
effective control and regulation. There was little or no
reclamation conducted and the impacts from these unreclaimed
lands impose social and economic costs on residents in nearby and
adjoining areas as well as continue to impair environmental
quality, prevent or damage the beneficial use of land or water
resources, or endanger the health and safety of the public.
Further, the Legislature finds and declares that, due to the
passage of the federal Surface Mining Control and Reclamation Act
of 1977, certain areas within the boundaries of this state do not
meet present day standards for reclamation.
Further, the Legislature finds that Title IV of the federal
Surface Mining Control and Reclamation Act of 1977, Public Law
95-87, provides for the collection of thirty-five cents per ton
of coal produced from surface-mine operations and fifteen cents
per ton of coal produced from underground mine operations in West
Virginia to be collected by the secretary of the United States
department of the interior until the thirtieth day of September,two thousand four. At least fifty percent of the funds collected
are to be allocated directly to the state of West Virginia to
accomplish reclamation of abandoned coal mining operations, as of
the date the state of West Virginia obtained an approved
abandoned mine reclamation plan in accordance with Sections 405
and 503 of the federal Surface Mining Control and Reclamation Act
of 1977, as amended.
Therefore, it is the intent of the Legislature by this
article to vest jurisdiction and authority in the director of the
division of environmental protection to maintain program approval
by, and receipt of funds from, the United States department of
the interior to accomplish the desired restoration and
reclamation of our land and water resources.
§22-2-3. Definitions.
(a) All definitions set forth in article three of this
chapter apply to those defined terms which also appear in this
article, if applicable.
(b) For the purposes of this article the following words
have the meanings ascribed to them in this subsection:
(1) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to section six or
eight, article one of this chapter;
(2) "Division" means the division of environmental
protection; and
(3) "Secretary" means the secretary of the United StatesDepartment of Interior.
§22-2-4. Abandoned land reclamation fund and objectives of fund;
lands eligible for reclamation.
(a) All abandoned land reclamation funds available under
Title IV of the federal Surface Mining Control and Reclamation
Act of 1977, as amended, private donations received, any state
appropriated or transferred funds, or funds received from the
sale of land by the director, under this article shall be
deposited with the treasurer of the state of West Virginia to the
credit of the abandoned land reclamation fund heretofore created,
and expended pursuant to the requirements of this article.
(b) Moneys in the fund may be used by the director for the
following:
(1) Reclamation and restoration of land and water resources
adversely affected by past coal surface-mining operations,
including, but not limited to, reclamation and restoration of
abandoned surface mine areas, abandoned coal processing areas and
abandoned coal processing waste areas; sealing and filling
abandoned deep mine entries and voids; planting of land adversely
affected by past coal surface-mining operations to prevent
erosion and sedimentation; prevention, abatement, treatment and
control of water pollution created by coal mine drainage,
including restoration of stream beds and construction and
operation of water treatment plants; prevention, abatement and
control of burning coal processing waste areas and burning coal
in situ; prevention, abatement and control of coal minesubsidence; and payment of administrative expenses and all other
necessary expenses incurred to accomplish the purpose of this
article:
Provided, That all expenditures from this fund shall
reflect the following priorities in the order stated:
(A) The protection of public health, safety, general welfare
and property from extreme danger of adverse effects of past
surface-mining practices;
(B) The protection of public health, safety and general
welfare from adverse effects of past coal surface-mining
practices;
(C) The restoration of land and water resources and
environment previously degraded by adverse effects of past coal
surface-mining practices, including measures for the conservation
and development of soil, water (excluding channelization),
woodland, fish and wildlife, recreation resources and
agricultural productivity;
(D) Research and demonstration projects relating to the
development of surface-mining reclamation and water quality
control program methods and techniques;
(E) The protection, repair, replacement, construction or
enhancement of public facilities such as utilities, roads,
recreation and conservation facilities adversely affected by past
coal surface-mining practices; and
(F) The development of publicly owned land adversely
affected by past coal surface-mining practices, including land
acquired as provided in this article for recreation and historicpurposes, conservation and reclamation purposes and open space
benefits.
(2) (A) The director may expend up to thirty percent of the
funds allocated to the state in any year through the grants made
available under paragraphs (1) and (5), subsection (g) of Section
402 of the federal Surface Mining Control and Reclamation Act of
1977, as amended, for the purpose of protecting, repairing,
replacing, constructing or enhancing facilities relating to water
supply, including water distribution facilities and treatment
plants, to replace water supplies adversely affected by coal
surface-mining practices.
(B) If the adverse effects on water supplies referred to in
this subdivision occurred both prior to and after the third day
of August, one thousand nine hundred seventy-seven, subsection
(c) of this section does not prohibit the state from using funds
for the purposes of this subdivision if the director determines
that the adverse effects occurred predominantly prior to the
third day of August, one thousand nine hundred seventy-seven.
(3) The director may receive and retain up to ten percent of
the total of the grants made annually to the state under
paragraphs (1) and (5), subsection (g) of Section 402 of the
federal Surface Mining Control and Reclamation Act of 1977, as
amended, if the amounts are deposited to the credit of either:
(A) The special account in the state treasury designated the
"Reclamation and Restoration Fund" is hereby continued. Moneys
in the fund may be expended by the director to achieve thepriorities stated in subdivision (1) of this subsection after the
thirtieth day of September, one thousand nine hundred ninety-five
and for associated administrative and personnel expenses; or
(B) The special account in the state treasury designated the
"Acid Mine Drainage Abatement and Treatment Fund" is hereby
continued. Moneys in the fund may be expended by the director to
implement, in consultation with the United States soil
conservation service, acid mine drainage abatement and treatment
plans approved by the secretary of the United States department
of interior and for associated administrative and personnel
expenses. The plans shall provide for the comprehensive
abatement of the causes and treatment of the effects of acid mine
drainage within qualified hydrologic units affected by coal
surface-mining practices.
(c) Except as provided for in this subsection, lands and
water eligible for reclamation or drainage abatement expenditures
under this article are those which were mined for coal or which
were affected by the mining, wastebanks, coal processing or other
coal mining processes and abandoned or left in an inadequate
reclamation status prior to the third day of August, one thousand
nine hundred seventy-seven, and for which there is no continuing
reclamation responsibility:
Provided, That moneys from the funds
made available by the secretary of the United States department
of interior pursuant to paragraphs (1) and (5), subsection (g),
Section 402 of the federal Surface Mining Control and Reclamation
Act of 1977, as amended, may be expended for the reclamation ordrainage abatement of a site that: (1) The surface-mining
operation occurred during the period beginning on the fourth day
of August, one thousand nine hundred seventy-seven, and ending on
or before the twenty-first day of January, one thousand nine
hundred eighty-one, and that any funds for reclamation or
abatement which are available pursuant to a bond or other
financial guarantee or from any other source, and not sufficient
to provide for adequate reclamation or abatement of the site; or
(2) the surface-mining operation occurred during the period
beginning on the fourth day of August, one thousand nine hundred
seventy-seven, and ending on or before the fifth day of November,
one thousand nine hundred ninety, and that the surety of the
surface-mining operation became insolvent during that period, and
as of the fifth day of November, one thousand nine hundred
ninety, funds immediately available from proceeding relating to
the insolvency or from any financial guarantees or other sources
are not sufficient to provide for adequate reclamation of the
site:
Provided, however, That the director, with the concurrence
of the secretary, makes either of the above-stated findings, and
that the site is eligible, or more urgent than the reclamation
priorities set forth in paragraphs (A) and (B), subdivision (1),
subsection (b) of this section.
(d) One purpose of this article is to provide additional and
cumulative remedies to abate the pollution of the waters of the
state and nothing contained in this article abridges or alters
rights of action or remedies now or hereafter existing, nor doany provisions in this article or any act done by virtue of this
article estop the state, municipalities, public health officers
or persons as riparian owners or otherwise in the exercise of
their rights to suppress nuisances or to abate any pollution now
or hereafter existing or to recover damages.
(e) Where the governor certifies that the above objectives
of the fund have been achieved and there is a need for
construction of specific public facilities in communities
impacted by coal development, and other sources of federal funds
are inadequate and the secretary concurs, then the director may
expend money from the fund for the construction.
§22-2-5. Powers and duties of director; program plans and
reclamation projects.
(a) The director shall submit to the secretary a state
reclamation plan and annual projects to carry out the purposes of
this article.
(b) That reclamation plan shall generally identify the areas
to be reclaimed, the purposes for which the reclamation is
proposed, the relationship of the lands to be reclaimed and the
proposed reclamation to surrounding areas, the specific criteria
for ranking and identifying projects to be funded and the legal
authority and programatic capability to perform the work in
conformance with the provisions of this article.
(c) On an annual basis the director shall submit to the
secretary an application for the support of the state program and
implementation of specific reclamation projects. The annualrequests shall include information as may be requested by the
secretary including:
(1) A general description of each proposed project;
(2) A priority evaluation of each proposed project;
(3) A statement of the estimated benefits in such terms as
number of acres restored, miles of stream improved, acres of
surface lands protected from subsidence, population protected
from subsidence, air pollution and hazards of mine and coal
refuse disposal area fires;
(4) An estimate of the cost for each proposed project;
(5) In the case of proposed research and demonstration
projects, a description of the specific techniques to be
evaluated or objective to be attained;
(6) An identification of lands or interest therein to be
acquired and the estimated cost; and
(7) In each year after the first in which a plan is filed
under this article, an inventory of each project funded under the
previous year's grant, which inventory shall include details of
financial expenditures on the project together with a brief
description of the project, including the project's location, the
landowner's name, acreage and the type of reclamation performed.
(d) The costs for each proposed project under this section
include actual construction costs, actual operation and
maintenance costs of permanent facilities, planning and
engineering costs, construction inspection costs and other
necessary administrative expenses.
§22-2-6. Acquisition and reclamation of land adversely affected
by past coal surface-mining practices.
(a) If the director makes a finding of fact that:
(1) Land or water resources have been adversely affected by
past coal surface-mining practices;
(2) The adverse effects are at a stage where, in the public
interest, action to restore, reclaim, abate, control or prevent
should be taken;
(3) The owners of the land or water resources where entry
must be made to restore, reclaim, abate, control or prevent the
adverse effects of past coal surface-mining practices are not
known or readily available; or
(4) The owners will not give permission for the director,
his or her agents, employees or contractors to enter upon the
property to restore, reclaim, abate, control or prevent the
adverse effects of past coal surface-mining practices, then, upon
giving notice by mail to the owners, if known, or if not known by
posting notice upon the premises and advertising once in a
newspaper of general circulation in the county in which the land
lies, the director, his or her agents, employees or contractors
have the right to enter upon the property adversely affected by
past coal surface-mining practices and any other property to have
access to the property to do all things necessary or expedient to
restore, reclaim, abate, control or prevent the adverse effects.
The entry shall be construed as an exercise of the police power
of the state for the protection of public health, safety andgeneral welfare and shall not be construed as an act of
condemnation of property nor of trespass thereon. The moneys
expended for the work and the benefits accruing to any premises
so entered upon is chargeable against the land and mitigates or
offsets any claim in or any action brought by any owner of any
interest in the premises for any alleged damages by virtue of the
entry:
Provided, That this provision is not intended to create
new rights of action or eliminate existing immunities.
(b) The director, his or her agents, employees or
contractors have the right to enter upon any property for the
purpose of conducting studies or exploratory work to determine
the existence of adverse effects of past coal surface-mining
practices and to determine the feasibility of restoration,
reclamation, abatement, control or prevention of the adverse
effects. The entry shall be construed as an exercise of the
police power of the state for the protection of public health,
safety and general welfare and shall not be construed as an act
of condemnation of property nor trespass thereon.
(c) The director may acquire any land by purchase, donation
or condemnation, which is adversely affected by past coal
surface-mining practices, if the director determines that
acquisition of the land is necessary to successful reclamation
and that:
(1) The acquired land, after restoration, reclamation,
abatement, control or prevention of the adverse effects of past
coal surface-mining practices will serve recreation, historic,conservation or reclamation purposes or provide open space
benefits;
(2) Permanent facilities such as a treatment plant or a
relocated stream channel will be constructed on the land for the
restoration, reclamation, abatement, control or prevention of the
adverse effects of past coal surface-mining practices; or
(3) Acquisition of coal refuse disposal sites and all coal
refuse thereon will serve the purposes of this article or that
public ownership is desirable to meet emergency situations and
prevent recurrences of the adverse effects of past coal surface-
mining practices.
(d) Title to all lands acquired pursuant to this section
shall be in the name of the state of West Virginia, by the West
Virginia division of environmental protection. The price paid
for land acquired under this section shall reflect the fair
market value of the land as adversely affected by past coal
surface-mining practices.
(e) The director is hereby authorized to transfer land
obtained under subsection (c) of this section to the secretary.
The director may purchase the land from the secretary after
reclamation at the fair market value less the state's original
acquisition price.
(f) The director may accept and local political subdivisions
may transfer to the director land belonging to them to carry out
the purposes set out in this article and in that event they have
a preferential right to purchase the land after reclamation atthe fair market value less the political subdivision's cost of
acquisition, but at no time shall the director sell the land to
a political subdivision at a price less than the cost of the
acquisition and reclamation of the land:
Provided, That if any
land sold to a political subdivision under this subsection is not
used for a valid public purpose as specified by the director in
the terms and conditions of the sales agreement, then all rights,
title and interest in the land revert to the West Virginia
division of environmental protection. Any moneys received from
the sale shall be deposited in the abandoned land reclamation
fund.
(g) Where land acquired pursuant to this section is
considered to be suitable for industrial, commercial, residential
or recreational development, the director may sell the land by
public sale under a system of competitive bidding at not less
than fair market value and pursuant to rules promulgated to
ensure that the lands are put to proper use consistent with state
and local land use plans.
(h) The director, if requested and after appropriate public
notice, shall hold a public hearing in the county in which land
acquired pursuant to this section is located. The hearing shall
be held at a time which affords local citizens and government the
maximum opportunity to participate in the decision concerning the
use and disposition of the land after restoration, reclamation,
abatement, control or prevention of the adverse effects of past
coal surface-mining practices.
(i) In addition to the authority to acquire land under other
provisions of this section, the director is authorized to use
money in the fund to acquire land from any federal, state or
local government or from a political subdivision thereof, or from
any person, firm, association or corporation, if he or she
determines that such is an integral and necessary element of an
economically feasible plan for the project to construct or
rehabilitate housing for persons disabled as the result of
employment in the mines or work incidental thereto, persons
displaced by acquisition of land pursuant to this section, or
persons dislocated as the result of adverse effects of coal
surface-mining practices which constitute an emergency as
provided in Section 410 of the federal Surface Mining Control and
Reclamation Act of 1977, as amended, or persons dislocated as the
result of natural disasters or catastrophic failures from any
cause. The activities shall be accomplished under such terms and
conditions as the director requires, which may include transfers
of land with or without monetary consideration:
Provided, That
to the extent that the consideration is below the fair market
value of the land transferred, no portion of the difference
between the fair market value and the consideration shall accrue
as a profit to such persons, firm, association or corporation.
No part of the funds provided under this article may be used to
pay the actual construction costs of housing. The director may
carry out the purposes of this subsection directly or he or she
may make grants and commitments for grants, and may advance moneyunder such terms and conditions as he or she may require to any
department, agency or political subdivision of this state or any
public body or nonprofit organization designated by the director.
§22-2-7. Liens against reclaimed land; petition by landowner;
appeal; priority of liens.
(a) Within six months after the completion of a project to
restore, reclaim, abate, control or prevent adverse effects of
past coal surface-mining practices on a privately owned land, the
director shall itemize the moneys so expended and may file a
statement thereof in the office of the clerk of the county
commission in the county in which the land lies, together with a
notarized appraisal by an independent appraiser of the value of
the land before the restoration, reclamation, abatement, control
or prevention of adverse effects of past coal surface-mining
practices, if the moneys so expended result in a significant
increase in property value. The statement constitutes a lien
upon the land. The lien shall not exceed the amount determined
by the appraisal to be the increase in the market value of the
land as a result of the restoration, reclamation, abatement,
control or prevention of the adverse effects of past coal
surface-mining practices. No lien may be filed against the
property of any person in accordance with this subsection, who
owned the surface prior to the second day of May, one thousand
nine hundred seventy-seven, and who neither consented to, nor
participated in, nor exercised control over the mining operation
which necessitated the reclamation performed hereunder.
(b) The landowner may petition the director within sixty
days of the filing of the lien to determine the increase in the
market value of the land as a result of the restoration,
reclamation, abatement, control or prevention of the adverse
effects of past coal surface-mining practices. The amount
reported to be the increase in value of the premises is the
amount of lien and shall be recorded with the statement herein
provided. Any party aggrieved by the decision may appeal to the
circuit court of the county in which the land is located.
(c) The statement filed pursuant to subsection (a) of this
section is a lien upon the land as of the date of the expenditure
of the moneys and has priority as a lien second only to the lien
of real estate taxes imposed upon the land.
§22-2-8. Filling voids and sealing tunnels.
(a) The Legislature declares that voids, open and abandoned
tunnels, shafts and entryways and subsidence resulting from any
previous coal surface-mining operation are a hazard to the public
welfare and safety and that surface impacts of any underground or
surface-mining operation may degrade the environment. The
director is authorized to fill the voids, seal the abandoned
tunnels, shafts and entryways and reclaim surface impacts of
underground or surface mines and remove water and other matter
from mines which the director determines could endanger life and
property, are a hazard to the public welfare and safety or
degrade the environment.
(b) In those instances where coal mine waste piles are beingreworked for conservation purposes, the incremental costs of
disposing of the wastes from such operations by filling voids and
sealing tunnels may be eligible for funding, if the disposal of
those wastes meets the purposes of this article.
(c) The director may acquire by purchase, donation, easement
or otherwise such interest in land as he or she determines
necessary to carry out the provisions of this section.
§22-2-9. General and miscellaneous powers and duties of
director; cooperative agreements; injunctive relief; water
treatment plants and facilities; transfer of funds and
interagency cooperation.
(a) The director is authorized to engage in any work and to
do all things necessary and proper, including promulgation of
rules , to implement and administer the provisions of this
article.
(b) The director is authorized to engage in cooperative
projects under this article with any other agency of the United
States of America, any state, county or municipal agency or
subdivision thereof.
(c) The director may request the attorney general, who is
hereby authorized to initiate, in addition to any other remedies
provided for in this article, in any court of competent
jurisdiction, an action in equity for an injunction to restrain
any interference with the exercise of the right to enter or to
conduct any work provided in this article.
(d) The director has the authority to construct and operatea plant or any facilities for the control and treatment of water
pollution resulting from mine drainage. The extent of this
control and treatment may be dependent upon the ultimate use of
the water:
Provided, That this subsection does not repeal or
supersede any portion of the applicable federal or state water
pollution control laws and no control or treatment under this
section may be less than that required under any applicable
federal or state water pollution control law. The construction
of any facilities may include major interceptors and other
facilities appurtenant to the plant.
(e) All departments, boards, commissions and agencies of the
state shall cooperate with the director by providing technical
expertise, personnel, equipment, materials and supplies to
implement and administer the provisions of this article.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-1. Short title.
This article shall be known and cited as the "Surface Coal
Mining and Reclamation Act".
§22-3-2. Legislative findings and purpose; jurisdiction vested
in division of environmental protection; authority of
director; interdepartmental cooperation.
(a) The Legislature finds that it is essential to the
economic and social well-being of the citizens of the state of
West Virginia to strike a careful balance between the protection
of the environment and the economical mining of coal needed to
meet energy requirements.
Further, the Legislature finds that there is great diversity
in terrain, climate, biological, chemical and other physical
conditions in parts of this nation where mining is conducted;
that the state of West Virginia in particular needs an
environmentally sound and economically healthy mining industry;
and by reason of the above it may be necessary for the director
to promulgate rules which vary from federal regulations as is
provided for in Sections 101 (f) and 201 (c)(9) of the federal
Surface Mining Control and Reclamation Act of 1977, as amended,
"Public Law 95-87".
Further, the Legislature finds that unregulated surface coal
mining operations may result in disturbances of surface and
underground areas that burden and adversely affect commerce,
public welfare and safety by destroying or diminishing the
utility of land for commercial, industrial, residential,
recreational, agricultural and forestry purposes; by causing
erosion and landslides; by contributing to floods; by polluting
the water and river and stream beds; by destroying fish, aquatic
life and wildlife habitats; by impairing natural beauty; by
damaging the property of citizens; by creating hazards dangerous
to life and property; and by degrading the quality of life in
local communities, all where proper mining and reclamation is not
practiced.
(b) Therefore, it is the purpose of this article to:
(1) Expand the established and effective statewide program
to protect the public and the environment from the adverseeffects of surface-mining operations;
(2) Assure that the rights of surface and mineral owners and
other persons with legal interest in the land or appurtenances to
land are adequately protected from such operations;
(3) Assure that surface-mining operations are not conducted
where reclamation as required by this article is not feasible;
(4) Assure that surface-mining operations are conducted in
a manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to
reclaim surface areas as contemporaneously as possible with the
surface-mining operations;
(6) Assure that adequate procedures are provided for public
participation where appropriate under this article;
(7) Assure the exercise of the full reach of state common
law, statutory and constitutional powers for the protection of
the public interest through effective control of surface-mining
operations; and
(8) Assure that the coal production essential to the
nation's energy requirements and to the state's economic and
social well-being is provided.
(c) In recognition of these findings and purposes, the
Legislature hereby vests authority in the director of the
division of environmental protection to:
(1) Administer and enforce the provisions of this article as
it relates to surface mining to accomplish the purposes of this
article;
(2) Conduct hearings and conferences or appoint persons to
conduct them in accordance with this article;
(3) Promulgate, administer and enforce rules pursuant to
this article;
(4) Enter into a cooperative agreement with the secretary of
the United States department of the interior to provide for state
regulation of surface-mining operations on federal lands within
West Virginia consistent with Section 523 of the federal Surface
Mining Control and Reclamation Act of 1977, as amended; and
(5) Administer and enforce rules promulgated pursuant to
this chapter to accomplish the requirements of programs under the
federal Surface Mining Control and Reclamation Act of 1977, as
amended.
(d) The director of the division of environmental protection
and the director of the office of miners' health, safety and
training shall cooperate with respect to each agency's programs
and records to effect an orderly and harmonious administration of
the provisions of this article. The director of the division of
environmental protection may avail himself or herself of any
services which may be provided by other state agencies in this
state and other states or by agencies of the federal government,
and may reasonably compensate them for such services. Also, he
or she may receive any federal funds, state funds or any other
funds, and enter into cooperative agreements, for the reclamation
of land affected by surface mining.
§22-3-3. Definitions.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner so that
the treated water does not violate the effluent limitations or
cause a violation of the water quality standards established for
the river, stream or drainway into which such water is released.
(b) "Affected area" means, when used in the context of
surface-mining activities, all land and water resources within
the permit area which are disturbed or utilized during the term
of the permit in the course of surface-mining and reclamation
activities. "Affected area" means, when used in the context of
underground mining activities, all surface land and water
resources affected during the term of the permit: (1) By surface
operations or facilities incident to underground mining
activities; or (2) by underground operations.
(c) "Adjacent areas" means, for the purpose of permit
application, renewal, revision, review and approval, those land
and water resources, contiguous to or near a permit area, upon
which surface-mining and reclamation operations conducted within
a permit area during the life of such operations may have an
impact. "Adjacent areas" means, for the purpose of conducting
surface-mining and reclamation operations, those land and water
resources contiguous to or near the affected area upon which
surface-mining and reclamation operations conducted within a
permit area during the life of such operations may have animpact.
(d) "Applicant" means any person who has or should have
applied for any permit pursuant to this article.
(e) "Approximate original contour" means that surface
configuration achieved by the backfilling and grading of the
disturbed 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 and spoil piles eliminated:
Provided, That water
impoundments may be permitted pursuant to subdivision (8),
subsection (b), section thirteen of this article:
Provided,
however, That minor deviations may be permitted in order to
minimize erosion and sedimentation, retain moisture to assist
revegetation, or to direct surface runoff.
(f) "Assessment officer" means an employee of the division,
other than a surface-mining reclamation supervisor, inspector or
inspector-in-training, appointed by the director to issue
proposed penalty assessments and to conduct informal conferences
to review notices, orders and proposed penalty assessments.
(g) "Breakthrough" means the release of water which has been
trapped or impounded, or the release of air into any underground
cavity, pocket or area as a result of surface-mining operations.
(h) "Coal processing wastes" means earth materials which are
or have been combustible, physically unstable or acid-forming or
toxic-forming, which are wasted or otherwise separated fromproduct coal, and slurried or otherwise transported from coal
processing plants after physical or chemical processing, cleaning
or concentrating of coal.
(i) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one of this chapter.
(j) "Disturbed area" means an area where vegetation, topsoil
or overburden has been removed or placed by surface-mining
operations, and reclamation is incomplete.
(k) "Division" means the division of environmental
protection.
(l) "Imminent danger to the health or safety of the public"
means the existence of such condition or practice, or any
violation of a permit or other requirement of this article, which
condition, practice or violation could reasonably be expected to
cause substantial physical harm or death to any person outside
the permit area before such 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 conditions or practices giving rise to the peril, would not
expose the person to the danger during the time necessary for the
abatement.
(m) "Minerals" means clay, coal, flagstone, gravel,
limestone, manganese, sand, sandstone, shale, iron ore and any
other metal or metallurgical ore.
(n) "Operation" means those activities conducted by an
operator who is subject to the jurisdiction of this article.
(o) "Operator" means any person who is granted or who should
obtain a permit to engage in any activity covered by this article
and any rule promulgated hereunder and includes any person who
engages in surface mining or surface mining and reclamation
operations, or both. The term shall also be construed in a
manner consistent with the federal program pursuant to the
federal Surface Mining Control and Reclamation Act of 1977, as
amended.
(p) "Permit" means a permit to conduct surface-mining
operations pursuant to this article.
(q) "Permit area" means the area of land indicated on the
approved proposal map submitted by the operator as part of the
operator's application showing the location of perimeter markers
and monuments and shall be readily identifiable by appropriate
markers on the site.
(r) "Permittee" means a person holding a permit issued under
this article.
(s) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity
or any agency, unit or instrumentality of federal, state or local
government.
(t) "Prime farmland" has the same meaning as that prescribed
by the United States secretary of agriculture on the basis of
such factors as moisture availability, temperature regime,chemical balance, permeability, surface layer composition,
susceptibility to flooding and erosion characteristics, and which
historically have been used for intensive agricultural purposes
and as published in the federal register.
(u) "Surface mine", "surface mining" or "surface-mining
operations" means:
(1) Activities conducted on the surface of lands for the
removal of coal, or, subject to the requirements of section
fourteen of this article, surface operations and surface impacts
incident to an underground coal mine, including the drainage and
discharge therefrom. Such activities include: Excavation for
the purpose of obtaining coal, including, but not limited to,
such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit and area mining; the uses of
explosives and blasting; reclamation; in situ distillation or
retorting, leaching or other chemical or physical processing; the
cleaning, concentrating or other processing or preparation and
loading of coal for commercial purposes at or near the mine site;
and
(2) The areas upon which the above activities occur or where
such activities disturb the natural land surface. Such 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 such activities and for
haulage; and 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, processing areas,
shipping areas and other areas upon which are sited structures,
facilities or other property or materials on the surface
resulting from or incident to such activities:
Provided, That
such activities do not include the extraction of coal incidental
to the extraction of other minerals where coal does not exceed
sixteen and two-thirds percent of the tonnage of minerals removed
for purposes of commercial use or sale, or coal prospecting
subject to section seven of this article.
(v) "Underground mine" means the surface effects associated
with the shaft, slopes, drifts or inclines connected with
excavations penetrating coal seams or strata and the equipment
connected therewith which contribute directly or indirectly to
the mining, preparation or handling of coal.
(w) "Significant, imminent environmental harm to land, air
or water resources" means the existence of any condition or
practice, or any violation of a permit or other requirement of
this article, which condition, practice or violation could
reasonably be expected to cause significant and imminent
environmental harm to land, air or water resources. The term
"environmental harm" means any adverse impact on land, air or
water resources, including, but not limited to, plant, wildlife
and fish, and the environmental harm is imminent if a condition
or practice exists which is causing such harm or may reasonablybe expected to cause such harm at any time before the end of the
abatement time set by the director. An environmental harm is
significant if that harm is appreciable and not immediately
repairable.
§22-3-4. Reclamation; duties and functions of director.
(a) The director shall administer the provisions of this
article relating to surface-mining operations. The director has
within his or her jurisdiction and supervision all lands and
areas of the state, mined or susceptible of being mined, for the
removal of coal and all other lands and areas of the state
deforested, burned over, barren or otherwise denuded,
unproductive and subject to soil erosion and waste. Included
within such lands and areas are lands seared and denuded by
chemical operations and processes, abandoned coal mining areas,
swamplands, lands and areas subject to flowage easements and
backwaters from river locks and dams, and river, stream, lake and
pond shore areas subject to soil erosion and waste. The
jurisdiction and supervision exercised by the director shall be
consistent with other provisions of this chapter.
(b) The director has the authority to:
(1) Promulgate rules , in accordance with the provisions of
chapter twenty-nine-a of this code, to implement the provisions
of this article:
Provided, That the director shall give notice
by publication of the public hearing required in article three of
said chapter:
Provided, however, That any forms, handbooks or
similar materials having the effect of a rule as defined in saidarticle were issued, developed or distributed by the director
pursuant to or as a result of a rule are subject to the
provisions of said article;
(2) Make investigations or inspections necessary to ensure
complete compliance with the provisions of this code;
(3) Conduct hearings or appoint persons to conduct hearings
under provisions of this article or rules adopted by the
director; and for the purpose of any investigation or hearing
hereunder, the director or his or her designated representative,
may administer oaths or affirmations, subpoena witnesses, compel
their attendance, take evidence and require production of any
books, papers, correspondence, memoranda, agreements or other
documents or records relevant or material to the inquiry;
(4) Enforce the provisions of this article as provided
herein; and
(5) Appoint such advisory committees as may be of assistance
to the director in the development of programs and policies:
Provided, That such advisory committees shall, in each instance,
include members representative of the general public.
(c) (1) After the director has adopted the rules required by
this article, any person may petition the director to initiate a
proceeding for the issuance, amendment or appeal of a rule under
this article.
(2) The petition shall be filed with the director and shall
set forth the facts which support the issuance, amendment or
appeal of a rule under this article.
(3) The director may hold a public hearing or may conduct
such investigation or proceeding as he or she considers
appropriate in order to determine whether the petition should be
granted or denied.
(4) Within ninety days after filing of a petition described
in subdivision (1) of this subsection, the director shall either
grant or deny the petition. If the director grants the petition,
he or she shall promptly commence an appropriate proceeding in
accordance with the provisions of chapter twenty-nine-a of this
code. If the director denies the petition, he or she shall
notify the petitioner in writing setting forth the reasons for
the denial.
§22-3-5. Surface-mining reclamation supervisors and inspectors;
appointment and qualifications; salary.
The director shall determine the number of surface-mining
reclamation supervisors and inspectors needed to carry out the
purposes of this article and appoint them as such. All such
appointees shall be qualified civil service employees, but no
person is eligible for such appointment until he or she has
served in a probationary status for a period of six months to the
satisfaction of the director.
Every surface-mining reclamation supervisor shall be paid
not less than thirty thousand dollars per year. Every surface-
mining reclamation inspector shall be paid not less than twenty-
five thousand dollars per year.
§22-3-6. Duties of surface-mining reclamation inspectors and
inspectors in training.
Except as otherwise provided in this article, surface-mining
reclamation inspectors and inspectors in training shall make all
necessary surveys and inspections of surface-mining operations
required by the provisions of this article, shall administer and
enforce all surface-mining laws and rules and shall perform such
other duties and services as may be prescribed by the director.
Such inspectors shall give particular attention to all conditions
of each permit to ensure complete compliance therewith. Such
inspectors shall note and describe all violations of this article
and immediately report such violations to the director in
writing, furnishing at the same time a copy of such report to the
operator concerned.
§22-3-7. Notice of intention to prospect, requirements therefor;
bonding; director's authority to deny or limit; postponement
of reclamation; prohibited acts; exceptions.
(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
director, 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 such
other information as required by rules promulgated pursuant to
this section:
Provided, That prior to the commencement of suchprospecting, the director may issue an order denying or limiting
permission to prospect where the director 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 director 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; and (2) 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 such
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 such 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 ofnecessary facilities and equipment.
(d) Information submitted to the director 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) No operator shall remove more than two hundred fifty
tons of coal without the specific written approval of the
director. Such approval shall be requested by the operator on
forms prescribed by the director. The director shall promulgate
rules governing such operations and setting forth information
required in the application for approval. Each such application
shall be accompanied by a two thousand dollar filing fee.
(g) The bond accompanying said notice of intention to
prospect shall be released by the director when the operator
demonstrates that a permanent species of vegetative cover is
established.
(h) In the event 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
director may permit the postponement of the reclamation of the
area prospected. Any part of a prospecting operation, wherereclamation 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; permit fees.
No person may engage in surface-mining operations unless
such person has first obtained a permit from the director 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:
Provided, 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 such
specified longer term, the director may extend a permit for such
longer term:
Provided, however, That subject to the prior
approval of the director, with such 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 such 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 andreclamation plan of the original permittee until such 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 such permit within three
years of the date the permit was issued:
Provided, That the
director may grant reasonable extensions of time upon a timely
showing that such extensions are necessary by reason of
litigation precluding such 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, however, 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 deemed
to have commenced surface-mining operations at such time as 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 one
thousand dollars. All permit fees and renewal fees provided for
in this section or elsewhere in this article shall be collected
by the director 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 director, for the
administration of this article.
(5) Prior to the issuance of any permit, the director shall
ascertain from the commissioner of the division of labor
compliance with section fourteen, article five, chapter twenty-
one of this code. Upon issuance of the permit, the director
shall forward a copy to the commissioner of the division of
labor, who shall assure continued compliance under such permit.
§22-3-9. Permit application requirements and contents.
(a) The surface-mining permit application shall contain:
(1) The names and addresses of: (A) The permit applicant;
(B) the owner of record of the property, surface and mineral, to
be mined; (C) the holders of record of any leasehold interest in
the property; (D) any purchaser of record of the property under
a real estate contract; (E) the operator, if different from the
applicant; and (F) if any of these are business entities other
than a single proprietor, the names and addresses of the
principals, officers and resident agent;
(2) The names and addresses of the owners of record of all
surface and subsurface areas contiguous to any part of the
proposed permit area:
Provided, That all residents living on
property contiguous to the proposed permit area shall be notified
by the applicant, by registered or certified mail, of such
application on or before the first day of publication of the
notice provided for in subdivision (6) of this subsection;
(3) A statement of any current surface-mining permits held
by the applicant in the state and the permit number and each
pending application;
(4) If the applicant is a partnership, corporation,
association or other business entity, the following where
applicable: The names and addresses of every officer, partner,
resident agent, director or person performing a function similar
to a director, together with the names and addresses of any
person owning of record ten percent or more of any class of
voting stock of the applicant; and a list of all names under
which the applicant, officer, director, partner or principal
shareholder previously operated a surface-mining operation in the
United States within the five-year period preceding the date of
submission of the application;
(5) A statement of whether the applicant, or any officer,
partner, director, principal shareholder of the applicant, any
subsidiary, affiliate or persons controlled by or under common
control with the applicant, has ever been an officer, partner,
director or principal shareholder in a company which has ever
held a federal or state mining permit which in the five-year
period prior to the date of submission of the application has
been permanently suspended or revoked or has had a mining bond or
similar security deposited in lieu of bond forfeited and, if so,
a brief explanation of the facts involved;
(6) A copy of the applicant's advertisement to be published
in a newspaper of general circulation in the locality of the
proposed permit area at least once a week for four successive
weeks. The advertisement shall contain in abbreviated form the
information required by this section including the ownership andmap of the tract location and boundaries of the proposed site so
that the proposed operation is readily locatable by local
residents, the location of the office of the division where the
application is available for public inspection and stating that
written protests will be accepted by the director until a certain
date which is at least thirty days after the last publication of
the applicant's advertisement;
(7) A description of the type and method of surface-mining
operation that exists or is proposed, the engineering techniques
used or proposed, and the equipment used or proposed to be used;
(8) The anticipated starting and termination dates of each
phase of the surface-mining operation and the number of acres of
land to be affected;
(9) A description of the legal documents upon which the
applicant's legal right to enter and conduct surface-mining
operations on the proposed permit area is based and whether that
right is the subject of pending court litigation:
Provided, That
nothing in this article may be construed as vesting in the
director the jurisdiction to adjudicate property-rights disputes;
(10) The name of the watershed and location of the surface
stream or tributary into which surface and pit drainage will be
discharged;
(11) A determination of the probable hydrologic consequences
of the mining and reclamation operations, both on and off the
mine site, with respect to the hydrologic regime, quantity and
quality of water in surface and ground water systems, includingthe dissolved and suspended solids under seasonal flow conditions
and the collection of sufficient data for the mine site and
surrounding areas so that an assessment can be made by the
director of the probable cumulative impacts of all anticipated
mining in the area upon the hydrology of the area, and
particularly upon water availability:
Provided, That this
determination is not required until such time as hydrologic
information on the general area prior to mining is made available
from an appropriate federal or state agency or, if existing and
in the possession of the applicant, from the applicant:
Provided, however, That the permit application shall not be
approved until the information is available and is incorporated
into the application;
(12) Accurate maps to an appropriate scale clearly showing:
(A) The land to be affected as of the date of application; (B)
the area of land within the permit area upon which the applicant
has the legal right to enter and conduct surface-mining
operations; and (C) all types of information set forth on
enlarged topographical maps of the United States geological
survey of a scale of 1:24,000 or larger, including all man-made
features and significant known archaeological sites existing on
the date of application. In addition to other things specified
by the director, the map shall show the boundary lines and names
of present owners of record of all surface areas abutting the
proposed permit area and the location of all structures within
one thousand feet of the proposed permit area;
(13) Cross-section maps or plans of the proposed affected
area, including the actual area to be mined, prepared by or under
the direction of and certified by a person approved by the
director, showing pertinent elevation and location of test
borings or core samplings, where required by the director, and
depicting the following information: (A) The nature and depth of
the various strata or overburden; (B) the location of subsurface
water, if encountered, and its quality; (C) the nature and
thickness of any coal or rider seams above the seam to be mined;
(D) the nature of the stratum immediately beneath the coal seam
to be mined; (E) all mineral crop lines and the strike and dip of
the coal to be mined, within the area of land to be affected; (F)
existing or previous surface-mining limits; (G) the location and
extent of known workings of any underground mines, including mine
openings to the surface; (H) the location of any significant
aquifers; (I) the estimated elevation of the water table; (J) the
location of spoil, waste or refuse areas and topsoil preservation
areas; (K) the location of all impoundments for waste or erosion
control; (L) any settling or water treatment facility or drainage
system; (M) constructed or natural drainways and the location of
any discharges to any surface body of water on the area of land
to be affected or adjacent thereto; and (N) adequate profiles at
appropriate cross sections of the anticipated final surface
configuration that will be achieved pursuant to the operator's
proposed reclamation plan;
(14) A statement of the result of test borings or coresamples from the permit area, including: (A) Logs of the drill
holes; (B) the thickness of the coal seam to be mined and
analysis of the chemical and physical properties of the coal; (C)
the sulfur content of any coal seam; (D) chemical analysis of
potentially acid or toxic forming sections of the overburden; and
(E) chemical analysis of the stratum lying immediately underneath
the coal to be mined:
Provided, That the provisions of this
subdivision may be waived by the director with respect to the
specific application by a written determination that such
requirements are unnecessary;
(15) For those lands in the permit application which a
reconnaissance inspection suggests may be prime farmlands, a soil
survey shall be made or obtained according to standards
established by the secretary of agriculture in order to confirm
the exact location of such prime farmlands;
(16) A reclamation plan as presented in section ten of this
article;
(17) Information pertaining to coal seams, test borings,
core samplings or soil samples as required by this section shall
be made available to any person with an interest which is or may
be adversely affected:
Provided, That information which pertains
only to the analysis of the chemical and physical properties of
the coal, except information regarding mineral or elemental
content which is potentially toxic to the environment, shall be
kept confidential and not made a matter of public record;
(18) When requested by the director, the climatologicalfactors that are peculiar to the locality of the land to be
affected, including the average seasonal precipitation, the
average direction and velocity of prevailing winds, and the
seasonal temperature ranges; and
(19) Other information that may be required by rules
reasonably necessary to effectuate the purposes of this article.
(b) If the director finds that the probable total annual
production at all locations of any coal surface-mining operator
will not exceed three hundred thousand tons, the determination of
probable hydrologic consequences and the statement of the result
of test borings or core samplings shall, upon the written request
of the operator, be performed by a qualified public or private
laboratory designated by the director and a reasonable cost of
the preparation of such determination and statement shall be
assumed by the division from funds provided by the United States
department of the interior pursuant to the federal Surface Mining
Control and Reclamation Act of 1977, as amended.
(c) Before the first publication of the applicant's
advertisement, each applicant for a surface-mining permit shall
file, except for that information pertaining to the coal seam
itself, a copy of the application for public inspection in the
nearest office of the division as specified in the applicant's
advertisement.
(d) Each applicant for a permit shall be required to submit
to the director as a part of the permit application a certificate
issued by an insurance company authorized to do business in thisstate covering the surface-mining operation for which the permit
is sought, or evidence that the applicant has satisfied state
self-insurance requirements. The policy shall provide for
personal injury and property damage protection in an amount
adequate to compensate any persons damaged as a result of surface
coal mining and reclamation operations, including use of
explosives, and entitled to compensation under the applicable
provisions of state law. The policy shall be maintained in full
force and effect during the terms of the permit or any renewal,
including the length of all reclamation operations.
(e) Each applicant for a surface-mining permit shall submit
to the director as part of the permit application a blasting plan
where explosives are to be used, which shall outline the
procedures and standards by which the operator will meet the
provisions of the blasting performance standards.
(f) The applicant shall file as part of the permit
application a schedule listing all notices of violation, bond
forfeitures, permit revocations, cessation orders or permanent
suspension orders resulting from a violation of the federal
Surface Mining Control and Reclamation Act of 1977, as amended,
this article or any law or regulation of the United States or any
department or agency of any state pertaining to air or
environmental protection received by the applicant in connection
with any surface-mining operation during the three-year period
prior to the date of application, and indicating the final
resolution of any notice of violation, forfeiture, revocation,cessation or permanent suspension.
(g) Within five working days of receipt of an application
for a permit, the director shall notify the operator in writing,
stating whether the application is administratively complete and
whether the operator's advertisement may be published. If the
application is not administratively complete, the director shall
state in writing why the application is not administratively
complete.
§22-3-10. Reclamation plan requirements.
(a) Each reclamation plan submitted as part of a surface-
mining permit application shall include, in the degree of detail
necessary to demonstrate that reclamation required by this
article can be accomplished, a statement of:
(1) The identification of the lands subject to surface
mining over the estimated life of these operations and the size,
sequence and timing of the operations for which it is anticipated
that individual permits for mining will be sought;
(2) The condition of the land to be covered by the permit
prior to any mining, including: (A) The uses existing at the
time of the application and, if such land has a history of
previous mining, the uses which preceded any mining; (B) the
capability of the land prior to any mining to support a variety
of uses, giving consideration to soil and foundation
characteristics, topography and vegetation cover and, if
applicable, a soil survey prepared pursuant to subdivision (15),
subsection (a), section nine of this article; and (C) the bestinformation available on the productivity of the land prior to
mining, including appropriate classification as prime farmlands,
and the average yield of food, fiber, forage or wood products
from such lands obtained under high levels of management;
(3) The use which is proposed to be made of the land
following reclamation, including a discussion of the utility and
capacity of the reclaimed land to support a variety of
alternative uses and the relationship of such use to existing
land use policies and plans, and the comments of any owner of the
surface, other state agencies and local governments, which would
have to initiate, implement, approve or authorize the proposed
use of the land following reclamation;
(4) A detailed description of how the proposed postmining
land use is to be achieved and the necessary support activities
which may be needed to achieve the proposed land use;
(5) The engineering techniques proposed to be used in mining
and reclamation and a description of the major equipment; a plan
for the control of surface water drainage and of water
accumulation; a plan where appropriate, for backfilling, soil
stabilization and compacting, grading, revegetation and a plan
for soil reconstruction, replacement and stabilization pursuant
to the performance standards in subdivision (7), subsection (b),
section thirteen of this article for those food, forage and
forest lands identified therein; and a statement as to how the
operator plans to comply with each of the applicable requirements
set out in section thirteen or fourteen of this article;
(6) A detailed estimated timetable for the accomplishment of
each major step in the reclamation plan;
(7) The consideration which has been given to conducting
surface-mining operations in a manner consistent with surface
owner plans and applicable state and local land use plans and
programs;
(8) The steps to be taken to comply with applicable air and
water quality laws and rules and any applicable health and safety
standards;
(9) The consideration which has been given to developing the
reclamation plan in a manner consistent with local physical
environmental and climatological conditions;
(10) All lands, interests in lands or options on such
interests held by the applicant or pending bids on interests in
lands by the applicant, which lands are contiguous to the area to
be covered by the permit;
(11) A detailed description of the measures to be taken
during the surface-mining and reclamation process to assure the
protection of: (A) The quality of surface and ground water
systems, both on- site and off-site, from adverse effects of the
surface-mining operation; (B) the rights of present users to such
water; and (C) the quantity of surface and ground water systems,
both on-site and off-site, from adverse effects of the surface-
mining operation or to provide alternative sources of water where
such protection of quantity cannot be assured;
(12) The results of tests borings which the applicant hasmade at the area to be covered by the permit, or other equivalent
information and data in a form satisfactory to the director,
including the location of subsurface water and an analysis of the
chemical properties, including acid forming properties of the
mineral and overburden:
Provided, That information which
pertains only to the analysis of the chemical and physical
properties of the coal, except information regarding such mineral
or elemental contents which are potentially toxic in the
environment, shall be kept confidential and not made a matter of
public record;
(13) The consideration which has been given to maximize the
utilization and conservation of the solid fuel resource being
recovered so that reaffecting the land in the future can be
minimized; and
(14) Such other requirements as the director may prescribe
by rule.
(b) The reclamation plan shall be available to the public
for review except for those portions thereof specifically
exempted in subsection (a) of this section.
§22-3-11. Bonds; amount and method of bonding; bonding
requirements; special reclamation tax and fund; prohibited
acts; period of bond liability.
(a) After a surface-mining permit application has been
approved pursuant to this article, but before a permit has been
issued, each operator shall furnish a penal bond, on a form to be
prescribed and furnished by the director, payable to the state ofWest Virginia and conditioned upon the operator faithfully
performing all of the requirements of this article and of the
permit. The penal amount of the bond shall be one thousand
dollars for each acre or fraction thereof. The bond shall cover:
(1) The entire permit area; or (2) that increment of land within
the permit area upon which the operator will initiate and conduct
surface-mining and reclamation operations within the initial term
of the permit. If the operator chooses to use incremental
bonding, as succeeding increments of surface mining and
reclamation operations are to be initiated and conducted within
the permit area, the operator shall file with the director an
additional bond or bonds to cover such increments in accordance
with this section:
Provided, That once the operator has chosen
to proceed with bonding either the entire permit area or with
incremental bonding, the operator shall continue bonding in that
manner for the term of the permit:
Provided, however, That the
minimum amount of bond furnished shall be ten thousand dollars.
(b) The period of liability for bond coverage begins with
issuance of a permit and continues for the full term of the
permit plus any additional period necessary to achieve compliance
with the requirements in the reclamation plan of the permit.
(c) (1) The form of the bond shall be approved by the
director and may include, at the option of the operator, surety
bonding, collateral bonding (including cash and securities),
establishment of an escrow account, self-bonding or a combination
of these methods. If collateral bonding is used, the operatormay elect to deposit cash or collateral securities or
certificates as follows: Bonds of the United States or its
possessions, of the federal land bank, or of the homeowners' loan
corporation; full faith and credit general obligation bonds of
the state of West Virginia, or other states, and of any county,
district or municipality of the state of West Virginia or other
states; or certificates of deposit in a bank in this state, which
certificates shall be in favor of the division. The cash deposit
or market value of such securities or certificates shall be equal
to or greater than the penal sum of the bond. The director
shall, upon receipt of any such deposit of cash, securities or
certificates, promptly place the same with the treasurer of the
state of West Virginia whose duty it is to receive and hold the
same in the name of the state in trust for the purpose for which
the deposit is made when the permit is issued. The operator
making the deposit is entitled from time to time to receive from
the state treasurer, upon the written approval of the director,
the whole or any portion of any cash, securities or certificates
so deposited, upon depositing with him or her in lieu thereof,
cash or other securities or certificates of the classes herein
specified having value equal to or greater than the sum of the
bond.
(2) The director may approve an alternative bonding system
if it will: (A) Reasonably assure that sufficient funds will be
available to complete the reclamation, restoration and abatement
provisions for all permit areas which may be in default at anytime; and (B) provide a substantial economic incentive for the
permittee to comply with all reclamation provisions.
(d) The director may accept the bond of the applicant itself
without separate surety when the applicant demonstrates to the
satisfaction of the director the existence of a suitable agent to
receive service of process and a history of financial solvency
and continuous operation sufficient for authorization to self-
insure.
(e) It is unlawful for the owner of surface or mineral
rights to interfere with the present operator in the discharge of
the operator's obligations to the state for the reclamation of
lands disturbed by the operator.
(f) All bond releases shall be accomplished in accordance
with the provisions of section twenty-three of this article.
(g) The special reclamation fund previously created is
continued. The moneys accrued in the fund, including interest,
are reserved solely and exclusively for the purposes set forth in
this subsection. The fund shall be administered by the director,
and he or she is authorized to expend the moneys in the fund for
the reclamation and rehabilitation of lands which were subjected
to permitted surface-mining operations and abandoned after the
third day of August, one thousand nine hundred seventy-seven,
where the amount of the bond posted and forfeited on such land is
less than the actual cost of reclamation. The director shall
develop a long-range planning process for selection and
prioritization of sites to be reclaimed so as to avoid inordinateshort-term obligations of the assets in the fund of such
magnitude that the solvency of the fund is jeopardized. The
director may use an amount, not to exceed twenty-five percent of
the annual amount of the fees collected, for the purpose of
designing, constructing and maintaining water treatment systems
when they are required for a complete reclamation of the affected
lands described in this subsection. The director may also expend
an amount not to exceed ten percent of the total annual assets in
the fund to implement and administer the provisions of this
article, articles two and four of this chapter and, as they apply
to the surface mine board, articles one and four, chapter twenty-
two-b of this code.
Every person conducting coal surface-mining operations shall
contribute into the fund a sum equal to three cents per ton of
clean coal mined. This fee shall be collected by the state tax
commissioner in the same manner, at the same time and upon the
same tonnage as the minimum severance tax imposed by article
twelve-b, chapter eleven of this code is collected:
Provided,
That under no circumstance shall this tax be construed to be an
increase in either the minimum severance tax imposed by said
article or the severance tax imposed by article thirteen of said
chapter. Every person liable for payment of this special tax
shall pay the amount due without notice or demand for payment.
The tax commissioner shall provide to the director a quarterly
listing of all persons known to be delinquent in payment of the
special tax. The director may take such delinquencies intoaccount in making determinations on the issuance, renewal or
revision of any permit. Such tax shall be collected whenever the
liabilities of the state established in this subsection exceed
the accrued amount in the fund. The tax commissioner shall
deposit the fees collected with the treasurer of the state of
West Virginia to the credit of the special reclamation fund. The
moneys in the fund shall be placed by the treasurer in interest
bearing account with the interest being returned to the fund on
an annual basis. At the beginning of each quarter, the director
shall advise the state tax commissioner and the governor of the
assets, excluding payments, expenditures and liabilities, in the
fund.
§22-3-12. Site-specific bonding; legislative rule; contents of
legislative rule; legislative intent; expiration of rule;
reporting.
(a) Notwithstanding the provisions of section eleven of this
article, the director may establish and implement a site-specific
bonding system in accordance with the provisions of this section.
(b) Such site-specific bonding system shall be established
by a legislative rule proposed by the director. The rule shall
be proposed for promulgation in accordance with the provisions of
article three, chapter twenty-nine-a of this code, except as the
provisions of this section otherwise direct. The notice of the
proposed promulgation and the text of the proposed rule shall be
filed in the state register in compliance with the requirements
of section five of said article:
Provided, That such filingshall be made on or before the thirtieth day of June, one
thousand nine hundred ninety-two:
Provided, however, That a
period for receiving public comment on the merits of such rule
shall be afforded, which period shall extend for not less than
sixty days next following the filing of the proposed rule in the
state register. The notice establishing the period for public
comment shall also fix a date, time and place for a hearing for
public comment at which both written and oral presentations may
be made and such hearing shall be held after the thirtieth day of
the public comment period but before the forty-sixth day of such
comment period. The provisions of section nine of said article
to the contrary notwithstanding, after the close of the public
comment period, the director shall proceed to agency approval and
final adoption of the rule, including any amendments made by the
director prior to such final adoption, without further hearing or
public comment. No such amendment may change the main purpose of
the rule. Such final adoption shall occur on or before the first
day of November, one thousand nine hundred ninety-two, and such
rule shall become effective and have the full force and effect of
law on and after the first day of December, one thousand nine
hundred ninety-two, without submission to the Legislature. Such
rule shall continue in effect until the first day of May, one
thousand nine hundred ninety-three, or until sooner modified,
codified or abrogated by the Legislature. Such rule shall not be
promulgated as an emergency legislative rule.
(c) A legislative rule proposed or promulgated pursuant tothis section must provide, at a minimum, for the following:
(1) The penal amount of a bond shall be not less than one
thousand dollars nor more than five thousand dollars per acre or
fraction thereof.
(2) Any such bond, subject to the limitations of subdivision
(1) of this subsection, shall reflect a relative potential cost
of reclamation associated with the activities proposed to be
permitted, which cost would not otherwise be reflected by bonds
calculated by merely applying a specific dollar amount per acre
for all permits.
(3) Such bond, subject to the provisions of subdivision (1)
of this subsection, shall also reflect an analysis under the
legislative rule of various factors, as applicable, which affect
the cost of reclamation, including, but not limited to: (A) The
general category of mining, whether surface or underground; (B)
mining techniques and methods proposed to be utilized; (C)
support facilities, fixtures, improvements and equipment; (D)
topography and geology; and (E) the potential for degrading or
improving water quality.
(d) A legislative rule proposed or promulgated pursuant to
the provisions of this section may, in addition to the
requirements of subsection (c) of this section, provide for a
consideration of other factors deemed relevant by the director.
For example, such rule may provide for the following:
(1) A consideration as to whether the bond relates to a new
permit application, a renewal of an existing permit, anapplication for an incidental boundary revision or the
reactivation of an inactive permit;
(2) A consideration of factors which may result in
environmental enhancement, as in a case where remining may
improve water quality or reduce or eliminate existing highwalls,
or a permitted operation may create or improve wetlands; or
(3) An analysis of various factors related to the specific
permit applicant, including, but not limited to: (A) The prior
mining experience of the applicant with the activities sought to
be permitted; and (B) the history of the applicant as it relates
to prior compliance with statutory and regulatory requirements
designed to protect, maintain or enhance the environment in this
or any other state.
(e) It is the intent of the Legislature that a legislative
rule proposed or promulgated pursuant to the provisions of this
section shall be constructed so that when the findings of fact by
the division of environmental protection with respect to the
proposed mining activity and the particular permit applicant
coincide with the particular factors or criteria to be considered
and analyzed under the rule, the rule will direct a conclusion as
to the amount of the bond to be required, subject to rebuttal and
refutation of the findings by the applicant. To the extent
practicable, the rule shall limit subjectivity and discretion by
the director and the division in fixing the amount of the bond.
(f) On or before the thirty-first day of December, one
thousand nine hundred ninety-one, and every ninety daysthereafter, the director shall report in writing to the joint
committee on government and finance of the Legislature or its
designated subcommittee as to the progress of the division in
developing or implementing, as the case may be, the provisions of
this section.
§22-3-13. General environmental protection performance standards
for surface mining; variances.
(a) Any permit issued by the director pursuant to this
article to conduct surface-mining operations shall require that
such surface-mining operations will meet all applicable
performance standards of this article and other requirements as
the director promulgates.
(b) The following general performance standards are
applicable to all surface mines and require the operation, at a
minimum to:
(1) Maximize the utilization and conservation of the solid
fuel resource being recovered to minimize reaffecting the land in
the future through surface mining;
(2) Restore the land affected to a condition capable of
supporting the uses which it was capable of supporting prior to
any mining, or higher or better uses of which there is reasonable
likelihood so long as the use or uses do not present any actual
or probable hazard to public health or safety or pose any actual
or probable threat of water diminution or pollution, and the
permit applicants' declared proposed land use following
reclamation is not deemed to be impractical or unreasonable,inconsistent with applicable land use policies and plans,
involves unreasonable delay in implementation, or is violative of
federal, state or local law;
(3) Except as provided in subsection (c) of this section,
with respect to all surface mines, backfill, compact where
advisable to ensure stability or to prevent leaching of toxic
materials, and grade in order to restore the approximate original
contour:
Provided, That in surface mining which is carried out
at the same location over a substantial period of time where the
operation transects the coal deposit, and the thickness of the
coal deposits relative to the volume of the overburden is large
and where the operator demonstrates that the overburden and other
spoil and waste materials at a particular point in the permit
area or otherwise available from the entire permit area is
insufficient, giving due consideration to volumetric expansion,
to restore the approximate original contour, the operator, at a
minimum, shall backfill, grade and compact, where advisable,
using all available overburden and other spoil and waste
materials to attain the lowest practicable grade, but not more
than the angle of repose, to provide adequate drainage and to
cover all acid-forming and other toxic materials, in order to
achieve an ecologically sound land use compatible with the
surrounding region:
Provided, however, That in surface mining
where the volume of overburden is large relative to the thickness
of the coal deposit and where the operator demonstrates that due
to volumetric expansion the amount of overburden and other spoiland waste materials removed in the course of the mining operation
is more than sufficient to restore the approximate original
contour, the operator shall, after restoring the approximate
contour, backfill, grade and compact, where advisable, the excess
overburden and other spoil and waste materials to attain the
lowest grade, but not more than the angle of repose, and to cover
all acid-forming and other toxic materials, in order to achieve
an ecologically sound land use compatible with the surrounding
region and, such overburden or spoil shall be shaped and graded
in such a way as to prevent slides, erosion and water pollution
and is revegetated in accordance with the requirements of this
article:
Provided further, That the director shall promulgate
rules governing variances to the requirements for return to
approximate original contour or highwall elimination and where
adequate material is not available from surface-mining operations
permitted after the effective date of this article for: (A)
Underground mining operations existing prior to the third day of
August, one thousand nine hundred seventy-seven; or (B) for areas
upon which surface mining prior to the first day of July, one
thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil
piles, affected by the surface-mining operation to effectively
control erosion and attendant air and water pollution;
(5) Remove the topsoil from the land in a separate layer,
replace it on the backfill area, or if not utilized immediately,
segregate it in a separate pile from other spoil and, when thetopsoil is not replaced on a backfill area within a time short
enough to avoid deterioration of the topsoil, maintain a
successful vegetative cover by quick growing plants or by other
similar means in order to protect topsoil from wind and water
erosion and keep it free of any contamination by other acid or
toxic material:
Provided, That if topsoil is of insufficient
quantity or of poor quality for sustaining vegetation, or if
other strata can be shown to be more suitable for vegetation
requirements, then the operator shall remove, segregate and
preserve in a like manner such other strata which is best able to
support vegetation;
(6) Restore the topsoil or the best available subsoil which
is best able to support vegetation;
(7) Ensure that all prime farmlands are mined and reclaimed
in accordance with the specifications for soil removal, storage,
replacement and reconstruction established by the United States
secretary of agriculture and the soil conservation service
pertaining thereto. The operator, at a minimum, shall be
required to: (A) Segregate the A horizon of the natural soil,
except where it can be shown that other available soil materials
will create a final soil having a greater productive capacity,
and if not utilized immediately, stockpile this material
separately from other spoil, and provide needed protection from
wind and water erosion or contamination by other acid or toxic
material; (B) segregate the B horizon of the natural soil, or
underlying C horizons or other strata, or a combination of suchhorizons or other strata that are shown to be both texturally and
chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in
sufficient quantities to create in the regraded final soil a root
zone of comparable depth and quality to that which existed in the
natural soil, and if not utilized immediately, stockpile this
material separately from other spoil and provide needed
protection from wind and water erosion or contamination by other
acid or toxic material; (C) replace and regrade the root zone
material described in paragraph (B) above with proper compaction
and uniform depth over the regraded spoil material; and (D)
redistribute and grade in a uniform manner the surface soil
horizon described in paragraph (A) above;
(8) Create, if authorized in the approved surface-mining and
reclamation plan and permit, permanent impoundments of water on
mining sites as part of reclamation activities in accordance with
rules promulgated by the director; and
(9) Where augering is the method of recovery, seal all auger
holes with an impervious and noncombustible material in order to
prevent drainage except where the director determines that the
resulting impoundment of water in such auger holes may create a
hazard to the environment or the public welfare and safety:
Provided, That the director may prohibit augering if necessary to
maximize the utilization, recoverability or conservation of the
mineral resources or to protect against adverse water quality
impacts;
(10) Minimize the disturbances to the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quality and quantity of water in surface and ground water
systems both during and after surface-mining operations and
during reclamation by: (A) Avoiding acid or other toxic mine
drainage by such measures as, but not limited to: (i) Preventing
or removing water from contact with toxic producing deposits;
(ii) treating drainage to reduce toxic content which adversely
affects downstream water upon being released to water courses;
and (iii) casing, sealing or otherwise managing boreholes, shafts
and wells and keep acid or other toxic drainage from entering
ground and surface waters; (B) conducting surface-mining
operations so as to prevent to the extent possible, using the
best technology currently available, additional contributions of
suspended solids to streamflow or runoff outside the permit area,
but in no event shall contributions be in excess of requirements
set by applicable state or federal law; (C) constructing an
approved drainage system pursuant to subparagraph (B) of this
subdivision prior to commencement of surface-mining operations,
such system to be certified by a person approved by the director
to be constructed as designed and as approved in the reclamation
plan; (D) avoiding channel deepening or enlargement in operations
requiring the discharge of water from mines; (E) unless otherwise
authorized by the director, cleaning out and removing temporary
or large settling ponds or other siltation structures after
disturbed areas are revegetated and stabilized, and depositingthe silt and debris at a site and in a manner approved by the
director; (F) restoring recharge capacity of the mined area to
approximate premining conditions; and (G) such other actions as
the director may prescribe;
(11) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine working excavations, stabilize all waste piles in
designated areas through construction in compacted layers,
including the use of noncombustible and impervious materials if
necessary, and assure the final contour of the waste pile will be
compatible with natural surroundings and that the site will be
stabilized and revegetated according to the provisions of this
article;
(12) Design, locate, construct, operate, maintain, enlarge,
modify and remove or abandon, in accordance with standards and
criteria developed pursuant to subsection (f) of this section,
all existing and new coal mine waste piles consisting of mine
wastes, tailings, coal processing wastes or other liquid and
solid wastes, and used either temporarily or permanently as dams
or embankments;
(13) Refrain from surface mining within five hundred feet of
any active and abandoned underground mines in order to prevent
breakthroughs and to protect health or safety of miners:
Provided, That the director shall permit an operator to mine
near, through or partially through an abandoned underground mine
or closer to an active underground mine if: (A) The nature,timing and sequencing of the approximate coincidence of specific
surface-mine activities with specific underground mine activities
are coordinated jointly by the operators involved and approved by
the director; and (B) such operations will result in improved
resource recovery, abatement of water pollution or elimination of
hazards to the health and safety of the public:
Provided,
however, That any breakthrough which does occur shall be sealed;
(14) Ensure that all debris, acid-forming materials, toxic
materials or materials constituting a fire hazard are treated or
buried and compacted, or otherwise disposed of in a manner
designed to prevent contamination of ground or surface waters,
and that contingency plans are developed to prevent sustained
combustion:
Provided, That the operator shall remove or bury all
metal, lumber, equipment and other debris resulting from the
operation before grading release;
(15) Ensure that explosives are used only in accordance with
existing state and federal law and the rules promulgated by the
director, which shall include provisions to: (A) Provide
adequate advance written notice to local governments and
residents who might be affected by the use of the explosives by
publication of the planned blasting schedule in a newspaper of
general circulation in the locality and by mailing a copy of the
proposed blasting schedule to every resident living within one-
half mile of the proposed blasting site:
Provided, That this
notice shall suffice as daily notice to residents or occupants of
the areas; (B) maintain for a period of at least three years andmake available for public inspection, upon written request, a log
detailing the location of the blasts, the pattern and depth of
the drill holes, the amount of explosives used per hole and the
order and length of delay in the blasts; (C) limit the type of
explosives and detonating equipment, the size, the timing and
frequency of blasts based upon the physical conditions of the
site so as to prevent: (i) Injury to persons; (ii) damage to
public and private property outside the permit area; (iii)
adverse impacts on any underground mine; and (iv) change in the
course, channel or availability of ground or surface water
outside the permit area; (D) require that all blasting operations
be conducted by persons certified by the director; and (E)
provide that upon written request of a resident or owner of a
man-made dwelling or structure within one-half mile of any
portion of the permit area, the applicant or permittee shall
conduct a preblasting survey or other appropriate investigation
of the structures and submit the results to the director and a
copy to the resident or owner making the request. The area of
the survey shall be determined by the director in accordance with
rules promulgated by him or her;
(16) Ensure that all reclamation efforts proceed in an
environmentally sound manner and as contemporaneously as
practicable with the surface-mining operations. Time limits
shall be established by the director requiring backfilling,
grading and planting to be kept current:
Provided, That where
surface-mining operations and underground mining operations areproposed on the same area, which operations must be conducted
under separate permits, the director may grant a variance from
the requirement that reclamation efforts proceed as
contemporaneously as practicable to permit underground mining
operations prior to reclamation:
(A) If the director finds in writing that:
(i) The applicant has presented, as part of the permit
application, specific, feasible plans for the proposed
underground mining operations;
(ii) The proposed underground mining operations are
necessary or desirable to assure maximum practical recovery of
the mineral resource and will avoid multiple disturbance of the
surface;
(iii) The applicant has satisfactorily demonstrated that the
plan for the underground mining operations conforms to
requirements for underground mining in the jurisdiction and that
permits necessary for the underground mining operations have been
issued by the appropriate authority;
(iv) The areas proposed for the variance have been shown by
the applicant to be necessary for the implementing of the
proposed underground mining operations;
(v) No substantial adverse environmental damage, either on-
site or off-site, will result from the delay in completion of
reclamation as required by this article; and
(vi) Provisions for the off-site storage of spoil will
comply with subdivision (22), subsection (b) of this section;
(B) If the director has promulgated specific rules to govern
the granting of such variances in accordance with the provisions
of this subparagraph and has imposed such additional requirements
as the director deems necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the director not more than three years
from the date of issuance of the permit:
Provided, That the
underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the
permit was issued, unless extended as set forth in subdivision
(3), section eight of this article; and
(D) If liability under the bond filed by the applicant with
the director pursuant to subsection (b), section eleven of this
article is for the duration of the underground mining operations
and until the requirements of subsection (g), section eleven and
section twenty-three of this article have been fully complied
with;
(17) Ensure that the construction, maintenance and
postmining conditions of access and haulroads into and across the
site of operations will control or prevent erosion and siltation,
pollution of water, damage to fish or wildlife or their habitat,
or public or private property:
Provided, That access roads
constructed for and used to provide infrequent service to surface
facilities, such as ventilators or monitoring devices, are exempt
from specific construction criteria provided adequate
stabilization to control erosion is achieved through alternativemeasures;
(18) Refrain from the construction of roads or other access
ways up a stream bed or drainage channel or in proximity to the
channel so as to significantly alter the normal flow of water;
(19) Establish on the regraded areas, and all other lands
affected, a diverse, effective and permanent vegetative cover of
the same seasonal variety native to the area of land to be
affected or of a fruit, grape or berry producing variety suitable
for human consumption and capable of self-regeneration and plant
succession at least equal in extent of cover to the natural
vegetation of the area, except that introduced species may be
used in the revegetation process where desirable or when
necessary to achieve the approved postmining land use plan;
(20) Assume the responsibility for successful revegetation,
as required by subdivision (19) of this subsection, for a period
of not less than five growing seasons, as defined by the ,
director after the last year of augmented seeding, fertilizing,
irrigation or other work in order to assure compliance with
subdivision (19) of this subsection:
Provided, That when the
director issues a written finding approving a long-term
agricultural postmining land use as a part of the mining and
reclamation plan, the director may grant exception to the
provisions of subdivision (19) of this subsection:
Provided,
however, That when the director approves an agricultural
postmining land use, the applicable five growing seasons of
responsibility for revegetation begins on the date of initialplanting for such agricultural postmining land use;
(21) Protect off-site areas from slides or damage occurring
during surface-mining operations and not deposit spoil material
or locate any part of the operations or waste accumulations
outside the permit area:
Provided, That spoil material may be
placed outside the permit area, if approved by the director after
a finding that environmental benefits will result from such;
(22) Place all excess spoil material resulting from surface-
mining activities in such a manner that: (A) Spoil is
transported and placed in a controlled manner in position for
concurrent compaction and in a way as to assure mass stability
and to prevent mass movement; (B) the areas of disposal are
within the bonded permit areas and all organic matter is removed
immediately prior to spoil placements; (C) appropriate surface
and internal drainage system or diversion ditches are used to
prevent spoil erosion and movement; (D) the disposal area does
not contain springs, natural water courses or wet weather seeps,
unless lateral drains are constructed from the wet areas to the
main underdrains in a manner that filtration of the water into
the spoil pile will be prevented; (E) if placed on a slope, the
spoil is placed upon the most moderate slope among those upon
which, in the judgment of the director, the spoil could be placed
in compliance with all the requirements of this article, and is
placed, where possible, upon, or above, a natural terrace, bench
or berm, if placement provides additional stability and prevents
mass movement; (F) where the toe of the spoil rests on adownslope, a rock toe buttress, of sufficient size to prevent
mass movement, is constructed; (G) the final configuration is
compatible with the natural drainage pattern and surroundings and
suitable for intended uses; (H) design of the spoil disposal area
is certified by a qualified registered professional engineer in
conformance with professional standards; and (I) all other
provisions of this article are met:
Provided, That where the
excess spoil material consists of at least eighty percent, by
volume, sandstone, limestone or other rocks that do not slake in
water and will not degrade to soil material, the director may
approve alternate methods for disposal of excess spoil material,
including fill placement by dumping in a single lift, on a site
specific basis:
Provided, however, That the services of a
qualified registered professional engineer experienced in the
design and construction of earth and rockfill embankment are
utilized:
Provided further, That such approval shall not be
unreasonably withheld if the site is suitable;
(23) Meet such other criteria as are necessary to achieve
reclamation in accordance with the purposes of this article,
taking into consideration the physical, climatological and other
characteristics of the site;
(24) To the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife and related environmental values,
and achieve enhancement of these resources where practicable; and
(25) Retain a natural barrier to inhibit slides and erosionon permit areas where outcrop barriers are required:
Provided,
That constructed barriers may be allowed where: (A) Natural
barriers do not provide adequate stability; (B) natural barriers
would result in potential future water quality deterioration; and
(C) natural barriers would conflict with the goal of maximum
utilization of the mineral resource:
Provided, however, That at
a minimum, the constructed barrier must be of sufficient width
and height to provide adequate stability and the stability factor
must equal or exceed that of the natural outcrop barrier:
Provided further, That where water quality is paramount, the
constructed barrier must be composed of impervious material with
controlled discharge points.
(c) (1) The director may prescribe procedures pursuant to
which he or she may permit surface-mining operations for the
purposes set forth in subdivision (3) of this subsection.
(2) Where an applicant meets the requirements of
subdivisions (3) and (4) of this subsection, a permit without
regard to the requirement to restore to approximate original
contour set forth in subsection (b) or (d) of this section may be
granted for the surface mining of coal where the mining operation
will remove an entire coal seam or seams running through the
upper fraction of a mountain, ridge or hill, except as provided
in subparagraph (A), subdivision (4) of this subsection, by
removing all of the overburden and creating a level plateau or a
gently rolling contour with no highwalls remaining, and capable
of supporting postmining uses in accordance with the requirementsof this subsection.
(3) In cases where an industrial, commercial, woodland,
agricultural, residential or public use is proposed for the
postmining use of the affected land, the director may grant a
permit for a surface-mining operation of the nature described in
subdivision (2) of this subsection where: (A) The proposed
postmining land use is deemed to constitute an equal or better
use of the affected land, as compared with premining use; (B) the
applicant presents specific plans for the proposed postmining
land use and appropriate assurances that the use will be: (i)
Compatible with adjacent land uses; (ii) practicable with respect
to achieving the proposed use; (iii) supported by commitments
from public agencies where appropriate; (iv) practicable with
respect to private financial capability for completion of the
proposed use; (v) planned pursuant to a schedule attached to the
reclamation plan so as to integrate the mining operation and
reclamation with the postmining land use; and (vi) designed by a
person approved by the director in conformance with standards
established to assure the stability, drainage and configuration
necessary for the intended use of the site; (C) the proposed use
would be compatible with adjacent land uses, and existing state
and local land use plans and programs; (D) the director provides
the county commission of the county in which the land is located
and any state or federal agency which the , director in his or
her discretion, determines to have an interest in the proposed
use, an opportunity of not more than sixty days to review andcomment on the proposed use; and (E) all other requirements of
this article will be met.
(4) In granting any permit pursuant to this subsection, the
director shall require that: (A) A natural barrier be retained
to inhibit slides and erosion on permit areas where outcrop
barriers are required:
Provided, That constructed barriers may
be allowed where: (i) Natural barriers do not provide adequate
stability; (ii) natural barriers would result in potential future
water quality deterioration; and (iii) natural barriers would
conflict with the goal of maximum utilization of the mineral
resource:
Provided, however, That, at a minimum, the constructed
barrier must be sufficient width and height to provide adequate
stability and the stability factor must equal or exceed that of
the natural outcrop barrier:
Provided further, That where water
quality is paramount, the constructed barrier must be composed of
impervious material with controlled discharge points; (B) the
reclaimed area is stable; (C) the resulting plateau or rolling
contour drains inward from the outslopes except at specific
points; (D) no damage will be done to natural watercourses; (E)
spoil will be placed on the mountaintop bench as is necessary to
achieve the planned postmining land use:
And provided further,
That all excess spoil material not retained on the mountaintop
shall be placed in accordance with the provisions of subdivision
(22), subsection (b) of this section; and (F) ensure stability of
the spoil retained on the mountaintop and meet the other
requirements of this article.
(5) All permits granted under the provisions of this
subsection shall be reviewed not more than three years from the
date of issuance of the permit; unless the applicant
affirmatively demonstrates that the proposed development is
proceeding in accordance with the terms of the approved schedule
and reclamation plan.
(d) In addition to those general performance standards
required by this section, when surface mining occurs on slopes of
twenty degrees or greater, or on such lesser slopes as may be
defined by rule after consideration of soil and climate, no
debris, abandoned or disabled equipment, spoil material or waste
mineral matter will be placed on the natural downslope below the
initial bench or mining cut:
Provided, That soil or spoil
material from the initial cut of earth in a new surface-mining
operation may be placed on a limited specified area of the
downslope below the initial cut if the permittee can establish to
the satisfaction of the director that the soil or spoil will not
slide and that the other requirements of this section can still
be met.
(e) The director may promulgate rules that permit variances
from the approximate original contour requirements of this
section:
Provided, That the watershed control of the area is
improved:
Provided, however, That complete backfilling with
spoil material is required to completely cover the highwall,
which material will maintain stability following mining and
reclamation.
(f) The director shall promulgate rules for the design,
location, construction, maintenance, operation, enlargement,
modification, removal and abandonment of new and existing coal
mine waste piles. In addition to engineering and other technical
specifications, the standards and criteria developed pursuant to
this subsection must include provisions for review and approval
of plans and specifications prior to construction, enlargement,
modification, removal or abandonment; performance of periodic
inspections during construction; issuance of certificates of
approval upon completion of construction; performance of periodic
safety inspections; and issuance of notices and orders for
required remedial or maintenance work or affirmative action:
Provided, That whenever the director finds that any coal
processing waste pile constitutes an imminent danger to human
life, he or she may, in addition to all other remedies and
without the necessity of obtaining the permission of any person
prior or present who operated or operates a pile or the
landowners involved, enter upon the premises where any such coal
processing waste pile exists and may take or order to be taken
such remedial action as may be necessary or expedient to secure
the coal processing waste pile and to abate the conditions which
cause the danger to human life:
Provided, however, That the cost
reasonably incurred in any remedial action taken by the director
under this subsection may be paid for initially by funds
appropriated to the division for these purposes, and the sums so
expended shall be recovered from any responsible operator orlandowner, individually or jointly, by suit initiated by the
attorney general at the request of the director. For purposes of
this subsection "operates" or "operated" means to enter upon a
coal processing waste pile, or part thereof, for the purpose of
disposing, depositing, dumping coal processing wastes thereon or
removing coal processing waste therefrom, or to employ a coal
processing waste pile for retarding the flow of or for the
impoundment of water.
§22-3-14. General environmental protection performance standards
for the surface effects of underground mining; application
of other provisions of article to surface effects of
underground mining.
(a) The director shall promulgate separate rules directed
toward the surface effects of underground coal mining operations,
embodying the requirements in subsection (b) of this section:
Provided, That in adopting such rules, the director shall
consider the distinct difference between surface coal mines and
underground coal mines in West Virginia. Such rules may not
conflict with or supersede any provision of the federal or state
coal mine health and safety laws or any rule issued pursuant
thereto.
(b) Each permit issued by the director pursuant to this
article and relating to underground coal mining shall require the
operation at a minimum to:
(1) Adopt measures consistent with known technology in order
to prevent subsidence causing material damage to the extenttechnologically and economically feasible, maximize mine
stability and maintain the value and reasonably foreseeable use
of overlying surface lands, except in those instances where the
mining technology used requires planned subsidence in a
predictable and controlled manner:
Provided, That this
subsection does not prohibit the standard method of room and
pillar mining;
(2) Seal all portals, entryways, drifts, shafts or other
openings that connect the earth's surface to the underground mine
workings when no longer needed for the conduct of the mining
operations in accordance with the requirements of all applicable
federal and state law and rules promulgated pursuant thereto;
(3) Fill or seal exploratory holes no longer necessary for
mining and maximize to the extent technologically and
economically feasible, if environmentally acceptable, return of
mine and processing waste, tailings and any other waste incident
to the mining operation to the mine workings or excavations;
(4) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine workings or excavations, stabilize all waste piles
created by the operator from current operations through
construction in compacted layers, including the use of
incombustible and impervious materials, if necessary, and assure
that any leachate therefrom will not degrade surface or ground
waters below water quality standards established pursuant to
applicable federal and state law and that the final contour ofthe waste accumulation will be compatible with natural
surroundings and that the site is stabilized and revegetated
according to the provisions of this section;
(5) Design, locate, construct, operate, maintain, enlarge,
modify and remove or abandon, in accordance with the standards
and criteria developed pursuant to subsection (f), section
thirteen of this article, all existing and new coal mine waste
piles consisting of mine wastes, tailings, coal processing wastes
and solid wastes and used either temporarily or permanently as
dams or embankments;
(6) Establish on regraded areas and all other disturbed
areas a diverse and permanent vegetative cover capable of self-
regeneration and plant succession and at least equal in extent of
cover to the natural vegetation of the area within the time
period prescribed in subdivision (20), subsection (b), section
thirteen of this article;
(7) Protect off-site areas from damages which may result
from such mining operations;
(8) Eliminate fire hazards and otherwise eliminate
conditions which constitute a hazard to health and safety of the
public;
(9) Minimize the disturbance of the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quantity and the quality of water in surface and ground water
systems both during and after mining operations and during
reclamation by: (A) Avoiding acid or other toxic mine drainageby such measures as, but not limited to: (i) Preventing or
removing water from contact with toxic producing deposits; (ii)
treating drainage to reduce toxic content which adversely affects
downstream water before being released to water courses; and
(iii) casing, sealing or otherwise managing boreholes, shafts and
wells to keep acid or other toxic drainage from entering ground
and surface waters; and (B) conducting mining operations so as to
prevent, to the extent possible using the best technology
currently available, additional contributions of suspended solids
to streamflow or runoff outside the permit area, but in no event
shall the contributions be in excess of requirements set by
applicable state or federal law, and avoiding channel deepening
or enlargement in operations requiring the discharge of water
from mines:
Provided, That in recognition of the distinct
differences between surface and underground mining the monitoring
of water from underground coal mine workings shall be in
accordance with the provisions of the Clean Water Act of 1977;
(10) With respect to other surface impacts of underground
mining not specified in this subsection, including the
construction of new roads or the improvement or use of existing
roads to gain access to the site of such activities and for
haulage, repair areas, storage areas, processing areas, shipping
areas, and other areas upon which are sited structures,
facilities or other property or materials on the surface,
resulting from or incident to such activities, operate in
accordance with the standards established under section thirteenof this article for such effects which result from surface-mining
operations:
Provided, That the director shall make such
modifications in the requirements imposed by this subdivision as
are necessary to accommodate the distinct difference between
surface and underground mining in West Virginia;
(11) To the extent possible using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, aquatic life, wildlife and related
environmental values, and achieve enhancement of such resources
where practicable; and
(12) Unless otherwise permitted by the director and in
consideration of the relevant safety and environmental factors,
locate openings for all new drift mines working in acid producing
or iron producing coal seams in a manner as to prevent a gravity
discharge of water from the mine.
(c) In order to protect the stability of the land, the
director shall suspend underground mining under urbanized areas,
cities, towns and communities and adjacent to industrial or
commercial buildings, major impoundments or permanent streams if
he or she finds imminent danger to inhabitants of the urbanized
areas, cities, towns or communities.
(d) The provisions of this article relating to permits,
bonds, insurance, inspections, reclamation and enforcement,
public review and administrative and judicial review are also
applicable to surface operations and surface impacts incident to
an underground mine with such modifications by rule to the permitapplication requirements, permit approval or denial procedures
and bond requirements as are necessary to accommodate the
distinct difference between surface mines and underground mines
in West Virginia.
§22-3-15. Inspections; monitoring; right of entry; inspection
of records; identification signs; progress maps.
(a) The director shall cause to be made such inspections of
surface-mining operations as are necessary to effectively enforce
the requirements of this article and for such purposes the
director or his or her authorized representative shall without
advance notice and upon presentation of appropriate credentials:
(A) Have the right of entry to, upon or through surface-mining
operations or any premises in which any records required to be
maintained under subdivision (1), subsection (b) of this section
are located; and (B) at reasonable times and without delay, have
access to and copy any records and inspect any monitoring
equipment or method of operation required under this article.
(b) For the purpose of enforcement under this article, in
the administration and enforcement of any permit under this
article, or for determining whether any person is in violation of
any requirement of this article:
(1) The commissioner shall, at a minimum, require any
operator to: (A) Establish and maintain appropriate records; (B)
make monthly reports to the division; (C) install, use and
maintain any necessary monitoring equipment or methods consistent
with subdivision (11), subsection (a), section nine of thisarticle; (D) evaluate results in accordance with such methods, at
such locations, intervals and in such manner as the director
prescribes; and (E) provide such other information relative to
surface-mining operations as the director finds reasonable and
necessary; and
(2) For those surface-mining operations which remove or
disturb strata that serve as aquifers which significantly ensure
the hydrologic balance of water use either on or off the mining
site, the director shall require that: (A) Monitoring sites be
established to record the quantity and quality of surface
drainage above and below the mine site as well as in the
potential zone of influence; (B) monitoring sites be established
to record level, amount and samples of ground water and aquifers
potentially affected by the surface mining and also below the
lowermost mineral seam to be mined; (C) records or well logs and
borehole data be maintained; and (D) monitoring sites be
established to record precipitation. The monitoring data
collection and analysis required by this section shall be
conducted according to standards and procedures set forth by the
director in order to assure their reliability and validity.
(c) All surface-mining operations shall be inspected at
least once every thirty days. Such inspections shall be made on
an irregular basis without prior notice to the operator or the
operator's agents or employees, except for necessary on-site
meetings with the operator. The inspections shall include the
filing of inspection reports adequate to enforce therequirements, terms and purposes of this article.
(d) Each permittee shall maintain at the entrances to the
surface-mining operations a clearly visible monument which sets
forth the name, business address and telephone number of the
permittee and the permit number of the surface-mining operations.
(e) Copies of any records, reports, inspection materials or
information obtained under this article by the director shall be
made immediately available to the public at central and
sufficient locations in the county, multicounty or state area of
mining so that they are conveniently available to residents in
the areas of mining unless specifically exempted by this article.
(f) Within thirty days after service of a copy of an order
of the director upon an operator by registered or certified mail,
the operator shall furnish to the director five copies of a
progress map prepared by or under the supervision of a person
approved by the director showing the disturbed area to the date
of such map. Such progress map shall contain information
identical to that required for both the proposed and final maps
required by this article, and shall show in detail completed
reclamation work as required by the director. Such progress map
shall include a geologic survey sketch showing the location of
the operation, shall be properly referenced to a permanent
landmark, and shall be within such reasonable degree of accuracy
as may be prescribed by the director. If no land has been
disturbed by operations during the preceding year, the operator
shall notify the director of that fact.
(g) Whenever on the basis of available information,
including reliable information from any person, the director has
cause to believe that any person is in violation of this article,
any permit condition or any rule promulgated under this article,
the director shall immediately order state inspection of the
surface-mining operation at which the alleged violation is
occurring unless the information is available as a result of a
prior state inspection. The director shall notify any person who
supplied such reliable information when the state inspection will
be carried out. Such person may accompany the inspector during
the inspection.
§22-3-16. Cessation of operation by order of inspector; informal
conference; imposition of affirmative obligations; appeal.
(a) Notwithstanding any other provisions of this article, a
surface-mining reclamation inspector has the authority to issue
a cessation order for any portion of a surface-mining operation
when an inspector determines that any condition or practice
exists, or that any permittee is in violation of any requirements
of this article or any permit condition required by this article,
which condition, practice or violation also creates an imminent
danger to the health or safety of the public, or is causing or
can reasonably be expected to cause significant, imminent
environmental harm to land, air or water resources. The
cessation order takes effect immediately. Unless waived in
writing, an informal conference shall be held at or near the site
relevant to the violation set forth in the cessation order withintwenty-four hours after the order becomes effective or such order
shall expire. The conference shall be held before a surface-
mining reclamation supervisor who shall, immediately upon
conclusion of said hearing, determine when and if the operation
or portion thereof may resume. Operators who believe they are
aggrieved by the decision of the surface-mining reclamation
supervisor may immediately appeal to the director, setting forth
reasons why the operation should not be halted. The director
forthwith shall determine when the operation or portion thereof
may be resumed.
(b) The cessation order remains in effect until the director
determines that the condition, practice or violation has been
abated, or until modified, vacated or released by the director.
Where the director finds that the ordered cessation of any
portion of a surface coal mining operation will not completely
abate the imminent danger to health or safety of the public or
the significant imminent environmental harm to land, air or water
resources, the director shall, in addition to the cessation
order, impose affirmative obligations on the operator requiring
the operator to take whatever steps the director determines
necessary to abate the imminent danger or the significant
environmental harm.
(c) Any cessation order issued pursuant to this section or
any other provision of this article may be released by any
inspector. An inspector shall be readily available to terminate
a cessation order upon abatement of the violation.
§22-3-17. Notice of violation; procedure and actions;
enforcement; permit revocation and bond forfeiture; civil
and criminal penalties; appeals to the board; prosecution;
injunctive relief.
(a) If any of the requirements of this article, rules
promulgated pursuant thereto or permit conditions have not been
complied with, the director shall cause a notice of violation to
be served upon the operator or the operator's duly authorized
agent. A copy of the notice shall be handed to the operator or
the operator's duly authorized agent in person or served by
certified mail addressed to the operator at the permanent address
shown on the application for a permit. The notice shall specify
in what respects the operator has failed to comply with this
article, rules or permit conditions and shall specify a
reasonable time for abatement of the violation not to exceed
thirty days. If the operator has not abated the violation within
the time specified in the notice, or any reasonable extension
thereof, not to exceed sixty days, the director shall order the
cessation of the operation or the portion thereof causing the
violation, unless the operator affirmatively demonstrates that
compliance is unattainable due to conditions totally beyond the
control of the operator. If a violation is not abated within the
time specified or any extension thereof, or any cessation order
is issued, a mandatory civil penalty of not less than seven
hundred fifty dollars per day per violation shall be assessed.
A cessation order remains in effect until the director determinesthat the violation has been abated or until modified, vacated or
terminated by the director or by a court. In any cessation order
issued under this subsection, the director shall determine the
steps necessary to abate the violation in the most expeditious
manner possible and shall include the necessary measures in the
order.
(b) If the director determines that a pattern of violations
of any requirement of this article or any permit condition exists
or has existed, as a result of the operator's lack of reasonable
care and diligence, or that the violations are willfully caused
by the operator, the director shall immediately issue an order
directing the operator to show cause why the permit should not be
suspended or revoked and giving the operator thirty days in which
to request a public hearing. If a hearing is requested, the
director shall inform all interested parties of the time and
place of the hearing. Any hearing under this section shall be
recorded and is subject to the provisions of chapter twenty-nine-
a of this code. Within sixty days following the public hearing,
the director shall issue and furnish to the permittee and all
other parties to the hearing a written decision, and the reasons
therefor, concerning suspension or revocation of the permit.
Upon the operator's failure to show cause why the permit should
not be suspended or revoked, the director shall immediately
suspend or revoke the operator's permit. If the permit is
revoked, the director shall initiate procedures in accordance
with rules promulgated by the director to forfeit the entireamount of the operator's bond, or other security posted pursuant
to section eleven or twelve of this article, and give notice to
the attorney general, who shall collect the forfeiture without
delay:
Provided, That the entire proceeds of such forfeiture
shall be deposited with the treasurer of the state of West
Virginia to the credit of the special reclamation fund. All
forfeitures collected shall be deposited in the special
reclamation fund and shall be expended back upon the areas for
which the bond was posted:
Provided, however, That any excess
therefrom shall remain in the special reclamation fund.
(c) Any person engaged in surface-mining operations who
violates any permit condition or who violates any other provision
of this article or rules promulgated pursuant thereto may also be
assessed a civil penalty. The penalty shall not exceed five
thousand dollars. Each day of continuing violation may be deemed
a separate violation for purposes of penalty assessments. In
determining the amount of the penalty, consideration shall be
given to the operator's history of previous violations at the
particular surface-mining operation, the seriousness of the
violation, including any irreparable harm to the environment and
any hazard to the health or safety of the public, whether the
operator was negligent, and the demonstrated good faith of the
operator charged in attempting to achieve rapid compliance after
notification of the violation.
(d) (1) Upon the issuance of a notice or order pursuant to
this section, the assessment officer shall, within thirty days,set a proposed penalty assessment and notify the operator in
writing of such proposed penalty assessment. The proposed
penalty assessment must be paid in full within thirty days of
receipt or, if the operator wishes to contest either the amount
of the penalty or the fact of violation, an informal conference
with the assessment officer may be requested within fifteen days
or a formal hearing before the surface mine board may be
requested within thirty days. The notice of proposed penalty
assessment shall advise the operator of the right to an informal
conference and a formal hearing pursuant to this section. When
an informal conference is requested, the operator has fifteen
days from receipt of the assessment officer's decision to request
a formal hearing before the board.
(A) When an informal conference is held, the assessment
officer has authority to affirm, modify or vacate the notice,
order or proposed penalty assessment.
(B) When a formal hearing is requested, the amount of the
proposed penalty assessment shall be forwarded to the director
for placement in an escrow account. Formal hearings shall be of
record and subject to the provisions of article five, chapter
twenty-nine-a of this code. Following the hearing the board
shall affirm, modify or vacate the notice, order or proposed
penalty assessment and, when appropriate, incorporate an
assessment order requiring that the assessment be paid.
(2) Civil penalties owed under this section may be recovered
by the director in the circuit court of Kanawha county. Civilpenalties collected under this article shall be deposited with
the treasurer of the state of West Virginia to the credit of the
special reclamation fund established in section eleven of this
article. If, through the administrative or judicial review of
the proposed penalty it is determined that no violation occurred
or that the amount of the penalty should be reduced, the director
shall within thirty days remit the appropriate amount to the
person, with interest at the rate of six percent or at the
prevailing United States department of the treasury rate,
whichever is greater. Failure to forward the money to the
director within thirty days is a waiver of all legal rights to
contest the violation or the amount of the penalty.
(e) Any person having an interest which is or may be
adversely affected by any order of the director or the surface
mine board may file an appeal only in accordance with the
provisions of article one, chapter twenty-two-b of this code,
within thirty days after receipt of the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section does
not stay execution of the order appealed from. Pending
completion of the investigation and conference or hearing
required by this section, the applicant may file with the
director a written request that the director grant temporary
relief from any notice or order issued under section sixteen or
seventeen of this article, together with a detailed statement
giving reasons for granting such relief. The director shallissue an order or decision granting or denying such relief
expeditiously:
Provided, That where the applicant requests
relief from an order for cessation of surface-mining and
reclamation operations, the decision on the request shall be
issued within five days of its receipt. The director may grant
such relief, under such conditions as he or she may prescribe if:
(1) All parties to the proceedings have been notified and
given an opportunity to be heard on a request for temporary
relief;
(2) The person requesting the relief shows that there is a
substantial likelihood that they will prevail on the merits in
the final determination of the proceedings;
(3) The relief will not adversely affect the public health
or safety or cause significant imminent environmental harm to
land, air or water resources; and
(4) The relief sought is not the issuance of a permit where
a permit has been denied, in whole or in part, by the director.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or rules
promulgated pursuant thereto, or fails or refuses to comply with
any order issued under said article and rules or any order
incorporated in a final decision issued by the director, is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than ten
thousand dollars, or imprisoned in the county jail not more than
one year, or both fined and imprisoned.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, rules promulgated
pursuant thereto, or any order incorporated in a final decision
issued by the director, any director, officer or agent of the
corporation who willfully and knowingly authorized, ordered or
carried out the failure or refusal, is subject to the same civil
penalties, fines and imprisonment that may be imposed upon a
person under subsections (c) and (g) of this section.
(i) Any person who knowingly makes any false statement,
representation or certification, or knowingly fails to make any
statement, representation or certification in any application,
petition, record, report, plan or other document filed or
required to be maintained pursuant to this article or rules
promulgated pursuant thereto, is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than ten thousand dollars, or imprisoned in the
county jail not more than one year, or both fined and imprisoned.
(j) Whenever any person: (A) Violates or fails or refuses
to comply with any order or decision issued by the director under
this article; or (B) interferes with, hinders or delays the
director in carrying out the provisions of this article; or (C)
refuses to admit the director to the mine; or (D) refuses to
permit inspection of the mine by the director; or (E) refuses to
furnish any reasonable information or report requested by the
director in furtherance of the provisions of this article; or (F)
refuses to permit access to, and copying of, such records as thedirector determines necessary in carrying out the provisions of
this article; or (G) violates any other provisions of this
article, the rules promulgated pursuant thereto, or the terms and
conditions of any permit, the director, the attorney general or
the prosecuting attorney of the county in which the major portion
of the permit area is located may institute a civil action for
relief, including a permanent or temporary injunction,
restraining order or any other appropriate order, in the circuit
court of Kanawha county or any court of competent jurisdiction to
compel compliance with and enjoin such violations, failures or
refusals. The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.
(k) Any person who, except as permitted by law, willfully
resists, prevents, impedes or interferes with the director or any
of his or her agents in the performance of duties pursuant to
this article is guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by a fine of not more than five
thousand dollars or by imprisonment for not more than one year,
or both.
§22-3-18. Approval, denial, revision and prohibition of permit.
(a) Upon the receipt of a complete surface-mining
application or significant revision or renewal thereof, including
public notification and an opportunity for a public hearing, the
director shall grant, require revision of, or deny theapplication for a permit within sixty days and notify the
applicant in writing of the decision. The applicant for a
permit, or revision of a permit, has the burden of establishing
that the application is in compliance with all the requirements
of this article and the rules promulgated hereunder.
(b) No permit or significant revision of a permit may be
approved unless the applicant affirmatively demonstrates and the
director finds in writing on the basis of the information set
forth in the application or from information otherwise available
which shall be documented in the approval and made available to
the applicant that:
(1) The permit application is accurate and complete and that
all the requirements of this article and rules thereunder have
been complied with;
(2) The applicant has demonstrated that reclamation as
required by this article can be accomplished under the
reclamation plan contained in the permit application;
(3) The assessment of the probable cumulative impact of all
anticipated mining in the area on the hydrologic balance, as
specified in section nine of this article, has been made by the
director and the proposed operation has been designed to prevent
material damage to the hydrologic balance outside the permit
area;
(4) The area proposed to be mined is not included within an
area designated unsuitable for surface mining pursuant to section
twenty-two of this article or is not within an area underadministrative study by the director for such designation; and
(5) In cases where the private mineral estate has been
severed from the private surface estate, the applicant has
submitted: (A) The written consent of the surface owner to the
extraction of coal by surface mining; or (B) a conveyance that
expressly grants or reserves the right to extract the coal by
surface mining; or (C) if the conveyance does not expressly grant
the right to extract coal by surface mining, the surface-
subsurface legal relationship shall be determined in accordance
with applicable law:
Provided, That nothing in this article
shall be construed to authorize the director to adjudicate
property rights disputes.
(c) Where information available to the division indicates
that any surface-mining operation owned or controlled by the
applicant is currently in violation of this article or other
environmental laws or rules, the permit shall not be issued until
the applicant submits proof that such violation has been
corrected or is in the process of being corrected to the
satisfaction of the director or the department or agency which
has jurisdiction over the violation, and no permit may be issued
to any applicant after a finding by the director, after an
opportunity for hearing, that the applicant or the operator
specified in the application controls or has controlled mining
operations with a demonstrated pattern of willful violations of
this article or of other state or federal programs implementing
the federal Surface Mining Control and Reclamation Act of 1977,as amended, of such nature and duration with such irreparable
damage to the environment as to indicate an intent not to comply
with the provisions of this article or the federal Surface Mining
Control and Reclamation Act of 1977, as amended:
Provided, That
if the director finds that the applicant is or has been
affiliated with, or managed or controlled by, or is or has been
under the common control of, other than as an employee, a person
who has had a surface-mining permit revoked or bond or other
security forfeited for failure to reclaim lands as required by
the laws of this state, he or she shall not issue a permit to the
applicant:
Provided, however, That subject to the discretion of
the director and based upon a petition for reinstatement, permits
may be issued to any applicant if: (1) After the revocation or
forfeiture, the operator whose permit has been revoked or bond
forfeited has paid into the special reclamation fund any
additional sum of money determined by the director to be adequate
to reclaim the disturbed area; (2) the violations which resulted
in the revocation or forfeiture have not caused irreparable
damage to the environment; and (3) the director is satisfied that
the petitioner will comply with this article.
(d) (1) In addition to finding the application in compliance
with subsection (b) of this section, if the area proposed to be
mined contains prime farmland, the director may, pursuant to
rules promulgated hereunder, grant a permit to mine on prime
farmland if the operator affirmatively demonstrates that the
operator has the technological capability to restore such minedarea, within a reasonable time, to equivalent or higher levels of
yield as nonmined prime farmland in the surrounding area under
equivalent levels of management, and can meet the soil
reconstruction standards in subdivision (7), subsection (b),
section thirteen of this article. Except for compliance with
subsection (b) of this section, the requirements of this
subdivision apply to all permits issued after the third day of
August, one thousand nine hundred seventy-seven.
(2) Nothing in this subsection applies to any permit issued
prior to the third day of August, one thousand nine hundred
seventy-seven, or to any revisions or renewals thereof, or to any
existing surface-mining operations for which a permit was issued
prior to said date.
(e) If the director finds that the overburden on any part of
the area of land described in the application for a permit is
such that experience in the state with a similar type of
operation upon land with similar overburden shows that one or
more of the following conditions cannot feasibly be prevented:
(1) Substantial deposition of sediment in stream beds; (2)
landslides; or (3) acid-water pollution, the director may delete
such part of the land described in the application upon which
such overburden exists.
§22-3-19. Permit revision and renewal requirements; incidental
boundary revisions; requirements for transfer; assignment
and sale of permit rights; and operator reassignment.
(a) (1) Any valid permit issued pursuant to this articlecarries 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 director 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 section eleven or twelve of this article;
or (E) any additional revised or updated information as required
pursuant to rules promulgated by the director 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 theapplication 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 director and shall be accompanied by a
filing fee of two thousand dollars. The application shall
contain such information as the director requires pursuant to
rule.
(b) (1) During the term of the permit, the permittee may
submit to the director 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.
(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 director may
so amend the original permit:
Provided, That the application for
the new area is subject to all procedures and requirementsapplicable to applications for original permits under this
article.
(c) The director 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 director 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 shall be made
without the prior written approval of the director.
§22-3-20. Public notice; written objections; public hearings;
informal conferences.
(a) At the time of submission of an application for a
surface-mining permit or a significant revision of an existing
permit pursuant to the provisions of this article, the applicant
shall submit to the division a copy of the required
advertisement. At the time of submission, the applicant shall
place the advertisement in a local newspaper of general
circulation in the county of the proposed surface-mining
operation at least once a week for four consecutive weeks. The
director shall notify various appropriate federal and state
agencies as well as local governmental bodies, planning agencies
and sewage and water treatment authorities or water companies inthe locality in which the proposed surface-mining operation will
take place, notifying them of the operator's intention to mine on
a particularly described tract of land and indicating the
application number and where a copy of the proposed mining and
reclamation plan may be inspected. These local bodies, agencies,
authorities or companies may submit written comments within a
reasonable period established by the director on the mining
application with respect to the effect of the proposed operation
on the environment which is within their area of responsibility.
Such comments shall be immediately transmitted by the director to
the applicant and to the appropriate office of the division. The
director shall provide the name and address of each applicant to
the commissioner of the division of labor who shall within
fifteen days from receipt notify the director as to the
applicant's compliance, if necessary, with section fourteen,
article five, chapter twenty-one of this code.
(b) Any person having an interest which is or may be
adversely affected, or the officer or head of any federal, state
or local governmental agency, has the right to file written
objections to the proposed initial or revised permit application
for a surface-mining operation with the director within thirty
days after the last publication of the advertisement required in
subsection (a) of this section. Such objections shall be
immediately transmitted to the applicant by the director and
shall be made available to the public. If written objections are
filed and an informal conference requested within thirty days ofthe last publication of the above notice, the director shall then
hold a conference in the locality of the proposed mining within
three weeks after the close of the public comment period. Those
requesting the conference shall be notified and the date, time
and location of the informal conference shall also be advertised
by the director in a newspaper of general circulation in the
locality at least two weeks prior to the scheduled conference
date. The director may arrange with the applicant, upon request
by any party to the conference proceeding, access to the proposed
mining area for the purpose of gathering information relevant to
the proceeding. An electronic or stenographic record shall be
made of the conference proceeding unless waived by all parties.
Such record shall be maintained and shall be accessible to the
parties at their respective expense until final release of the
applicant's bond or other security posted in lieu thereof. The
director's authorized agent will preside over the conference. In
the event all parties requesting the informal conference
stipulate agreement prior to the conference and withdraw their
request, a conference need not be held.
§22-3-21. Decision of director on permit application; hearing
thereon.
(a) If an informal conference has been held, the director
shall issue and furnish the applicant for a permit and persons
who were parties to the informal conference with the written
finding granting or denying the permit, in whole or in part, and
stating the reasons therefor within thirty days of the informalconference, notwithstanding the requirements of subsection (a),
section eighteen of this article.
(b) If the application is approved, the permit shall be
issued. If the application is disapproved, specific reasons
therefor must be set forth in the notification. Within thirty
days after the applicant is notified of the director's decision,
the applicant or any person with an interest which is or may be
adversely affected may request a hearing before the surface mine
board as provided in article one, chapter twenty-two-b of this
code to review the director's decision.
§22-3-22. Designation of areas unsuitable for surface mining;
petition for removal of designation; prohibition of surface
mining on certain areas; exceptions; taxation of minerals
underlying land designated unsuitable.
(a) The director shall establish a planning process to
enable objective decisions based upon competent and
scientifically sound data and information as to which, if any,
land areas of this state are unsuitable for all or certain types
of surface-mining operations pursuant to the standards set forth
in subdivisions (1) and (2) of this subsection:
Provided, That
such designation shall not prevent prospecting pursuant to
section seven of this article on any area so designated.
(1) Upon petition pursuant to subsection (b) of this
section, the director shall designate an area as unsuitable for
all or certain types of surface-mining operations, if it
determines that reclamation pursuant to the requirements of thisarticle is not technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this
section, a surface area may be designated unsuitable for certain
types of surface-mining operations, if the operations: (A)
Conflict with existing state or local land use plans or programs;
(B) affect fragile or historic lands in which the operations
could result in significant damage to important historic,
cultural, scientific and aesthetic values and natural systems;
(C) affect renewable resource lands, including significant
aquifers and aquifer recharge areas, in which the operations
could result in a substantial loss or reduction of long-range
productivity of water supply, food or fiber products; or (D)
affect natural hazard lands in which the operations could
substantially endanger life and property. Such lands shall
include lands subject to frequent flooding and areas of unstable
geology.
(3) The director shall develop a process which includes:
(A) The review of surface-mining lands; (B) a data base and an
inventory system which will permit proper evaluation of the
capacity of different land areas of the state to support and
permit reclamation of surface-mining operations; (C) a method for
implementing land use planning decisions concerning surface-
mining operations; and (D) proper notice and opportunities for
public participation, including a public hearing prior to making
any designation or redesignation pursuant to this section.
(4) Determinations of the unsuitability of land for surfacemining, as provided for in this section, shall be integrated as
closely as possible with present and future land use planning and
regulation processes at federal, state and local levels.
(5) The requirements of this section do not apply to lands
on which surface-mining operations were being conducted on the
third day of August, one thousand nine hundred seventy-seven, or
under a permit issued pursuant to this article, or where
substantial legal and financial commitments in the operations
were in existence prior to the fourth day of January, one
thousand nine hundred seventy-seven.
(b) Any person having an interest which is or may be
adversely affected has the right to petition the director to have
an area designated as unsuitable for surface-mining operations or
to have such a designation terminated. The petition shall
contain allegations of fact with supporting evidence which would
tend to establish the allegations. After receipt of the
petition, the director shall immediately begin an administrative
study of the area specified in the petition. Within ten months
after receipt of the petition, the director shall hold a public
hearing in the locality of the affected area after appropriate
notice and publication of the date, time and location of the
hearing. After the director or any person having an interest
which is or may be adversely affected has filed a petition and
before the hearing required by this subsection, any person may
intervene by filing allegations of fact with supporting evidence
which would tend to establish the allegations. Within sixty daysafter the hearing, the director shall issue and furnish to the
petitioner and any other party to the hearing, a written decision
regarding the petition and the reasons therefor. In the event
that all the petitioners stipulate agreement prior to the
requested hearing and withdraw their request, the hearing need
not be held.
(c) Prior to designating any land areas as unsuitable for
surface-mining operations, the director shall prepare a detailed
statement on: (1) The potential coal resources of the area; (2)
the demand for the coal resources; and (3) the impact of the
designation on the environment, the economy and the supply of
coal.
(d) After the third day of August, one thousand nine hundred
seventy-seven, and subject to valid existing rights, no surface-
mining operations, except those which existed on that date, shall
be permitted:
(1) On any lands in this state within the boundaries of
units of the national park system, the national wildlife refuge
systems, the national system of trails, the national wilderness
preservation system, the wild and scenic rivers system, including
study rivers designated under section five-a of the wild and
scenic rivers act, and national recreation areas designated by
act of Congress;
(2) Which will adversely affect any publicly owned park or
places included in the national register of historic sites, or
national register of natural landmarks unless approved jointly bythe director and the federal, state or local agency with
jurisdiction over the park, the historic site or natural
landmark;
(3) Within one hundred feet of the outside right-of-way line
on any public road, except where mine access roads or haulage
roads join such right-of-way line, and except that the director
may permit the roads to be relocated or the area affected to lie
within one hundred feet of the road if, after public notice and
an opportunity for a public hearing in the locality, the director
makes a written finding that the interests of the public and the
landowners affected thereby will be protected;
(4) Within three hundred feet from any occupied dwelling,
unless waived by the owner thereof, or within three hundred feet
of any public building, school, church, community or
institutional building, public park, or within one hundred feet
of a cemetery; or
(5) On any federal lands within the boundaries of any
national forest:
Provided, That surface coal mining operations
may be permitted on the lands if the secretary of the interior
finds that there are no significant recreational, timber,
economic or other values which may be incompatible with the
surface-mining operations:
Provided, however, That the surface
operations and impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the
coal underlying any lands designated unsuitable for surface-
mining operations under any provisions of this article orunderlying any land upon which mining is prohibited by any
provisions of this article shall be assessed for taxation
purposes according to their value and the Legislature hereby
finds that the coal has no value for the duration of the
designation or prohibition unless suitable for underground mining
not in violation of this article:
Provided, That the owner of
the coal shall forthwith notify the proper assessing authorities
if the designation or prohibition is removed so that the coal may
be reassessed.
§22-3-23. Release of bond or deposits; application; notice;
duties of director; public hearings; final maps on grade
release.
(a) The permittee may file a request with the director for
the release of a bond or deposit. The permittee shall publish an
advertisement regarding such request for release in the same
manner as is required of advertisements for permit applications.
A copy of such advertisement shall be submitted to the director
as part of any bond release application and shall contain a
notification of the precise location of the land affected, the
number of acres, the permit and the date approved, the amount of
the bond filed and the portion sought to be released, the type
and appropriate dates of reclamation work performed and a
description of the results achieved as they relate to the
permittee's approved reclamation plan. In addition, as part of
any bond release application, the permittee shall submit copies
of letters which the permittee has sent to adjoining propertyowners, local government bodies, planning agencies, sewage and
water treatment authorities or water companies in the locality in
which the surface-mining operation is located, notifying them of
the permittee's intention to seek release from the bond. Any
request for grade release shall also be accompanied by final
maps.
(b) Upon receipt of the application for bond release, the
director, within thirty days, taking into consideration existing
weather conditions, shall conduct an inspection and evaluation of
the reclamation work involved. Such evaluation shall consider,
among other things, the degree of difficulty to complete any
remaining reclamation, whether pollution of surface and
subsurface water is occurring, the probability of continuance or
future occurrence of such pollution and the estimated cost of
abating such pollution. The director shall notify the permittee
in writing of his or her decision to release or not to release
all or part of the bond or deposit within sixty days from the
date of the initial publication of the advertisement if no public
hearing is requested. If a public hearing is held, the
director's decision shall be issued within thirty days
thereafter.
(c) If the director is satisfied that reclamation covered by
the bond or deposit or portion thereof has been accomplished as
required by this article, he or she may release said bond or
deposit, in whole or in part, according to the following
schedule:
(1) When the operator completes the backfilling, regrading
and drainage control of a bonded area in accordance with the
operator's approved reclamation plan, the release of sixty
percent of the bond or collateral for the applicable bonded area:
Provided, That a minimum bond of ten thousand dollars shall be
retained after grade release;
(2) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the
release of an additional twenty-five percent of the bond or
collateral for the applicable bonded area:
Provided, That a
minimum bond of ten thousand dollars shall be retained after the
release provided for in this subdivision; and
(3) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen
of this article:
Provided, That the revegetation has been
established on the regraded mined lands in accordance with the
approved reclamation plan:
Provided, however, That such a
release may be made where the quality of the untreated post-
mining water discharged is better than or equal to the premining
water quality discharged from the mining site.
No part of the bond or deposit may be released under this
subsection so long as the lands to which the release would be
applicable are contributing additional suspended solids tostreamflow or runoff outside the permit area in excess of the
requirements set by section thirteen of this article, or until
soil productivity for prime farmlands has returned to equivalent
levels of yield as nonmined land of the same soil type in the
surrounding area under equivalent management practices as
determined from the soil survey performed pursuant to section
nine of this article. Where a sediment dam is to be retained as
a permanent impoundment pursuant to section thirteen of this
article, or where a road or minor deviation is to be retained for
sound future maintenance of the operation, the portion of the
bond may be released under this subsection so long as provisions
for sound future maintenance by the operator or the landowner
have been made with the director.
(d) If the director disapproves the application for release
of the bond or portion thereof, the director shall notify the
permittee, in writing, stating the reasons for disapproval and
recommending corrective actions necessary to secure said release
and notifying the operator of the right to a hearing.
(e) When any application for total or partial bond release
is filed with the director, he or she shall notify the
municipality in which a surface-mining operation is located by
registered or certified mail at least thirty days prior to the
release of all or a portion of the bond.
(f) Any person with a valid legal interest which is or may
be adversely affected by release of the bond or the responsible
officer or head of any federal, state or local governmentalagency which has jurisdiction by law or special expertise with
respect to any environmental, social or economic impact involved
in the operation, or is authorized to develop and enforce
environmental standards with respect to such operations, has the
right to file written objections to the proposed bond release and
request a hearing with the director within thirty days after the
last publication of the permittee's advertisement. If written
objections are filed and a hearing requested, the director shall
inform all of the interested parties of the time and place of the
hearing and shall hold a public hearing in the locality of the
surface-mining operation proposed for bond release within three
weeks after the close of the public comment period. The date,
time and location of such public hearing shall also be advertised
by the director in a newspaper of general circulation in the same
locality.
(g) Without prejudice to the rights of the objectors, the
applicant, or the responsibilities of the director pursuant to
this section, the director may hold an informal conference to
resolve any written objections and satisfy the hearing
requirements of this section thereby.
(h) For the purpose of such hearing, the director has the
authority and is hereby empowered to administer oaths, subpoena
witnesses and written or printed materials, compel the attendance
of witnesses, or production of materials, and take evidence
including, but not limited to, inspections of the land affected
and other surface-mining operations carried on by the applicantin the general vicinity. A verbatim record of each public
hearing required by this section shall be made and a transcript
made available on the motion of any party or by order of the
director at the cost of the person requesting the transcript.
§22-3-24. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects in any way the rights of
any person to enforce or protect, under applicable law, the
person's interest in water resources affected by a surface-mining
operation.
(b) Any operator shall replace the water supply of an owner
of interest in real property who obtains all or part of the
owner's supply of water for domestic, agricultural, industrial or
other legitimate use from an underground or surface source where
such supply has been affected by contamination, diminution or
interruption proximately caused by such surface-mining operation,
unless waived by said owner.
§22-3-25. Citizen suits; order of court; damages.
(a) Except as provided in subsection (b) of this section,
any person having an interest which is or may be adversely
affected may commence a civil action in the circuit court of the
county to which the surface-mining operation is located on the
person's own behalf to compel compliance with this article:
(1) Against the state of West Virginia or any other
governmental instrumentality or agency thereof, to the extent
permitted by the West Virginia constitution and by law, which is
alleged to be in violation of the provisions of this article orany rule, order or permit issued pursuant thereto, or against any
other person who is alleged to be in violation of any rule, order
or permit issued pursuant to this article; or
(2) Against the director, division, surface mine board or
appropriate division employees, to the extent permitted by the
West Virginia constitution and by law, where there is alleged a
failure of the above to perform any act or duty under this
article which is not discretionary.
(b) No action may be commenced:
(1) Under subdivision (1), subsection (a) of this section:
(A) Prior to sixty days after the plaintiff has given notice in
writing of the violation to the director or to any alleged
violator; or (B) if the director has commenced and is diligently
prosecuting a civil action in a circuit court to require
compliance with the provisions of this article or any rule, order
or permit issued pursuant to this article; or
(2) Under subdivision (2), subsection (a) of this section
prior to sixty days after the plaintiff has given notice in
writing of such action to the director, except that such action
may be brought immediately after such notification in the case
where the violation or order complained of constitutes an
imminent threat to the health or safety of the plaintiff or would
immediately affect a legal interest of the plaintiff.
(c) Any action respecting a violation of this article or the
rules thereunder may be brought in any appropriate circuit court.
In such action under this section, the director, if not a party,may intervene as a matter of right.
(d) The court in issuing any final order in any action
brought pursuant to subsection (a) of this section may award
costs of litigation, including reasonable attorney and expert
witness fees, to any party whenever the court determines such
award is appropriate. The court may, if a temporary restraining
order or preliminary injunction is sought, require the filing of
a bond or equivalent security.
(e) Nothing in this section restricts any right which any
person or class of persons may have under any statute or common
law to seek enforcement of any of the provisions of this article
and the rules thereunder or to seek any other relief.
(f) Any person or property who is injured through the
violation by any operator of any rule, order or permit issued
pursuant to this article may bring an action for damages,
including reasonable attorney and expert witness fees, in any
court of competent jurisdiction. Nothing in this subsection
affects the rights established by or limits imposed under state
workers' compensation laws.
(g) This section applies to violations of this article and
the rules promulgated thereto, or orders or permits issued
pursuant to said article insofar as said violations, rules,
orders and permits relate to surface-mining operations.
§22-3-26. Surface-mining operations not subject to article.
The provisions of this article do not apply to any of the
following activities:
(a) The extraction of coal by a landowner for the
landowner's own noncommercial use from land owned or leased by
the landowner.
(b) The extraction of coal as an incidental part of federal,
state, county, municipal or other local government-financed
highway or other construction:
Provided, That the provisions of
the construction contract require the furnishing of a suitable
bond which provides for reclamation, wherever practicable, of the
area affected by such extraction.
§22-3-27. Leasing of lands owned by state for surface mining of
coal.
No land or interest in land owned by the state may be
leased, and no present lease may be renewed by the state, nor any
agency of the state, for the purpose of conducting surface-mining
operations thereon unless said lease or renewal has been first
authorized by an act of the Legislature:
Provided, That the
provisions of this section do not apply to underground mining on
such land.
§22-3-28. Special permits for reclamation of existing abandoned
coal processing waste piles.
(a) Except where exempted by section twenty-six of this
article, it is unlawful for any person to engage in surface
mining as defined in this article as an incident to the
development of land for commercial, residential, industrial or
civic use without having first obtained from the director a
permit therefor as provided in section eight of this article,unless a special permit therefor has been first obtained from the
director as provided in this section.
Application for a special permit to engage in surface mining
as an incident to the development of land for commercial,
residential, industrial or civic use shall be made in writing on
forms prescribed by the director and shall be signed and verified
by the applicant. The application shall be accompanied by:
(1) A site preparation plan, prepared and certified by or
under the supervision of a person approved by the director,
showing the tract of land which the applicant proposes to develop
for commercial, residential, industrial or civic use; the
probable boundaries and areas of the coal deposit to be mined and
removed from said tract of land incident to the proposed
commercial, residential, industrial or civic use thereof; and
such other information as prescribed by the director;
(2) A development plan for the proposed commercial,
residential, industrial or civic use of said land;
(3) The name of owner of the surface of the land to be
developed;
(4) The name of owner of the coal to be mined incident to
the development of the land;
(5) A reasonable estimate of the number of acres of coal
that would be mined as a result of the proposed development of
said land:
Provided, That in no event may such number of acres
to be mined, excluding roadways, exceed five acres; and
(6) Such other information as the director may require tosatisfy and assure the director that the surface mining under
special permit is incidental or secondary to the proposed
commercial, residential, industrial or civic use of said land.
(b) There shall be attached to the application for the
special permit a certificate of insurance certifying that the
applicant has in force a public liability insurance policy issued
by an insurance company authorized to do business in this state
affording personal injury protection in accordance with
subsection (d), section nine of this article.
The application for the special permit shall also be
accompanied by a bond, or cash or collateral securities or
certificates of the same type, in the form as prescribed by the
director and in the minimum amount of two thousand dollars per
acre, for a maximum disturbance of five acres.
The bond shall be payable to the state of West Virginia and
conditioned that the applicant complete the site preparation for
the proposed commercial, residential, industrial or civic use of
said land. At the conclusion of the site preparation, in
accordance with the site preparation plan submitted with the
application, the bond conditions are satisfied and the bond and
any cash, securities or certificates furnished with said bond may
be released and returned to the applicant. The filing fee for
the special permit is five hundred dollars. The special permit
is valid until work permitted is completed.
(c) The purpose of this section is to vest jurisdiction in
the director, where the surface mining is incidental or secondaryto the preparation of land for commercial, residential,
industrial or civic use and where, as an incident to such
preparation of land, minerals must be removed, including, but not
limited to, the building and construction of railroads, shopping
malls, factory and industrial sites, residential and building
sites and recreational areas. Anyone who has been issued a
special permit shall not be issued an additional special permit
on the same or adjacent tract of land unless satisfactory
evidence has been submitted to the director that such permit is
necessary to subsequent development or construction. As long as
the operator complies with the purpose and provisions of this
section, the other sections of this article are not applicable to
the operator holding a special permit:
Provided, That the
director shall promulgate rules establishing applicable
performance standards for operations permitted under this
section.
(d) The director may, in the exercise of his or her sound
discretion, when not in conflict with the purposes and findings
of this article and to bring about a more desirable land use or
to protect the public and the environment, issue a special permit
solely for the removal of existing abandoned coal processing
waste piles. The director shall promulgate specific rules for
such operations:
Provided, That a bond and a reclamation plan is
required for such operations.
§22-3-29. Experimental practices.
In order to encourage advances in surface mining andreclamation practices or to allow postmining land use for
industrial, commercial, residential, agricultural or public use,
including recreational facilities, the director may authorize
departures, in individual cases and on an experimental basis,
from the environmental protection performance standards
promulgated under this article. Such departures may be
authorized if the experimental practices are potentially more or
at least as environmentally protective during and after surface-
mining operations as those required by promulgated standards; the
surface-mining operations approved for particular land use or
other purposes are not larger or more numerous than necessary to
determine the effectiveness and economic feasibility of the
experimental practices; and the experimental practices do not
reduce the protection afforded health or safety of the public
below that provided by promulgated standards.
§22-3-30. Certification and training of blasters.
The director is responsible for the training, examination
and certification of persons engaging in or directly responsible
for blasting or use of explosives in surface-mining operations.
§22-3-31. Conflict of interest prohibited; criminal penalties
therefor; employee protection.
(a) No employee of the division engaged in the enforcement
or administration of this article or employee of the surface mine
board performing any function or duty under this article shall
have a direct or indirect financial interest in any surface-
mining operation. Whoever knowingly violates the provisions ofthis subsection is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than two thousand five hundred
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned. The director shall establish
methods by which the provisions of this subsection will be
monitored and enforced, including appropriate provisions for the
filing and the review of statements and supplements thereto
concerning any financial interest which may be affected by this
subsection.
(b) No person shall discharge or in any other way
discriminate against, or cause to be fired or discriminated
against, any employee or any authorized representative of
employees by reason of the fact that the employee or
representative has filed, instituted, or caused to be filed or
instituted, any proceeding under this article, or has testified
or is about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this article.
(c) Any employee or a representative of employees who has
reason to believe that he or she has been fired or otherwise
discriminated against by any person in violation of subsection
(b) of this section may, within thirty days after the alleged
violation occurs, petition to the surface mine board for a review
of the firing or discrimination. The employee or representative
is the petitioner and shall serve a copy of the petition upon the
person or operator who will be the respondent. The participants
shall be given ten days' written notice of the hearing before theboard and the hearing shall be held within thirty days of the
filing of the petition. The board shall have the same powers and
shall hear the petition in the same manner as provided in article
one, chapter twenty-two-b of this code.
(d) If the board finds that the alleged violation did occur,
it shall issue an order incorporating therein findings of fact
and conclusions requiring the participant committing the
violation to take such affirmative action to abate the violation
by appropriate action, including, but not limited to, the hiring
or reinstatement of the employee or representative to his former
position with compensation. If the board finds no violation, it
shall issue a finding to that effect. Orders issued by the board
under this section shall be subject to judicial review in the
same manner as other orders of the board issued under this
article or article one, chapter twenty-two-b of this code.
(e) Whenever an order is issued under this section to abate
any violation, at the request of the petitioner a sum equal to
the aggregate costs and expenses, including attorneys' fees to
have been reasonably incurred by the petitioner for, or in
connection with, the institution and prosecution of the
proceedings, shall be assessed against the person committing the
violation.
§22-3-32. Special tax on coal production; mines and minerals
operations fund.
(a)
Imposition of tax. -- Upon every person in this state
engaging in the privilege of severing, extracting, reducing topossession or producing coal for sale, profit or commercial use,
there is hereby imposed an annual tax equal to two cents per ton
of coal produced by such person for sale, profit or commercial
use during such person's taxable year. The special tax imposed
by this section is in addition to all other taxes levied by law.
In no event may a ton of coal be taxed more than once under the
provisions of this section.
(b)
Payment and collection of tax. -- The tax imposed by
this section shall be collected by the tax commissioner in the
same manner, at the same time, and upon the same tonnage as the
minimum severance tax imposed by article twelve-b, chapter eleven
of this code is collected:
Provided, That under no circumstance
shall this tax be construed to be an increase in either the
minimum severance tax imposed by said article twelve-b or the
severance tax imposed by article thirteen of said chapter eleven.
Every person liable for payment of this special tax shall pay the
amount due without notice or demand for payment. The tax
commissioner shall provide to the director a quarterly listing of
all persons known to be delinquent in payment of the special tax.
The director may take such delinquencies into account in making
determinations on the issuance, renewal or revision of any
permit.
(c)
Mines and minerals operations fund. -- The special fund
previously created in the state treasury known as the "Mines and
Minerals Operations Fund" is renamed the "Mining and Reclamation
Operations Fund". The tax commissioner shall, at leastquarterly, deposit the net amount of tax collected by him or her
under this section, including any additions to tax, penalties and
interest collected with respect thereto into the fund. The
treasurer shall deposit all moneys deposited in or credited to
this fund in an interest-bearing account, with the amount of
interest earned being credited to this fund as it is earned. The
moneys in this special fund shall be expended solely for the
purposes of carrying out those statutory duties relating to the
enforcement of environmental regulatory programs for the coal
industry as imposed by this chapter and the federal Surface
Mining Control and Reclamation Act of 1977 and any amendments
thereto. Expenditures from the fund are not authorized from
collections but are to be made only in accordance with
appropriations by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code.
(d)
General procedure and administration. -- Each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of the code applies
to the special tax imposed by this section with like effect as if
such act were applicable only to the special tax imposed by this
section and were set forth in extenso in this article,
notwithstanding the provisions of section three of said article
ten.
(e)
Crimes and penalties. -- Each and every provision ofthe "West Virginia Tax Crimes and Penalties Act" set forth in
article nine of said chapter eleven applies to the special tax
imposed by this section with like effect as if such act were
applicable only to the special tax imposed by this section and
set forth in extenso in this article, notwithstanding the
provisions of section two of said article nine.
(f)
Effective date. -- The special tax imposed by this
section applies to all coal produced in this state after the
thirtieth day of September, one thousand nine hundred ninety-one.
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER THAN
COAL.
§22-4-1. Jurisdiction vested in division of environmental
protection; legislative purpose; apportionment of
responsibility.
Except as otherwise provided in section thirty-eight,
article one, chapter twenty-two-a of this code the division of
environmental protection is hereby vested with jurisdiction over
all aspects of surface mining and with jurisdiction and control
over land, water and soil aspects pertaining to surface-mining
operations, and the restoration and reclamation of lands surface
mined and areas affected thereby.
The Legislature finds that, although surface mining provides
much needed employment and has produced good safety records,
unregulated surface mining causes soil erosion, pyritic shales
and materials, landslides, noxious materials, stream pollution
and accumulation of stagnant water, increases the likelihood offloods and slides, destroys the value of some lands for
agricultural purposes and some lands for recreational purposes,
destroys aesthetic values, counteracts efforts for the
conservation of soil, water and other natural resources, and
destroys or impairs the health, safety, welfare and property
rights of the citizens of West Virginia, where proper mining and
reclamation is not practiced.
The Legislature also finds that there are wide variations
regarding location and terrain conditions surrounding and arising
out of the surface mining primarily in topographical and
geological conditions, and by reason thereof, it is necessary to
provide the most effective, beneficial and equitable solution to
the problems involved.
The Legislature further finds that authority should be
vested in the director of the division of environmental
protection to administer and enforce the provisions of this
article.
The director of the division of environmental protection and
the director of the office of miners' health, safety and training
shall cooperate with respect to each agency's programs and
records so as to effect an orderly and harmonious administration
of the provisions of this article. The director of the division
of environmental protection may avail himself or herself of any
services which may be provided by other state agencies in this
state and other states or by agencies of the federal government,
and may reasonably compensate them for such services. He or shemay also receive any federal funds, state funds or any other
funds for the reclamation of land affected by surface mining.
No public officer or employee in the division of
environmental protection, the office of miners' health, safety
and training, or in the office of attorney general, having any
responsibility or duty either directly or of a supervisory nature
with respect to the administration or enforcement of this article
shall: (1) Engage in surface mining as a sole proprietor or as
a partner; or (2) be an officer, director, stockholder, owner or
part owner of any corporation or other business entity engaged in
surface mining; or (3) be employed as an attorney, agent or in
any other capacity by any person, partnership, firm, association,
trust or corporation engaged in surface mining. Any violation of
this paragraph by any such public officer or employee shall
constitute grounds for his or her removal from office or
dismissal from his or her employment, as the case may be.
§22-4-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner that
will cause the analyzed pH level of the treated water to be 6.0 -
9.0 and analyzed content of iron of the treated water to be
seven milligrams per liter or less, or approved treatment which
will not lower the water quality standards established for the
river, stream or drainway into which such water is released.
(b) "Breakthrough" means the release of water which has been
trapped or impounded underground, or the release of air into any
underground cavity, pocket or area.
(c) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to section six or
eight, article one of this chapter.
(d) "Disturbed land" or "land disturbed" means: (1) The
area from which overburden has been removed in surface-mining
operations; (2) the area covered by the spoil; and (3) any areas
used in surface-mining operations which by virtue of their use
are susceptible to excessive erosion including all lands
disturbed by the construction or improvement of haulageways,
roads or trails.
(e) "Minerals" means clay, flagstone, gravel, limestone,
manganese, sand, sandstone, shale, iron ore and any other metal
or metallurgical ore:
Provided, That the term minerals does not
include coal.
(f) "Mulch" means any natural or plant residue, organic or
inorganic material, applied to the surface of the earth to retain
moisture and curtail or limit soil erosion.
(g) "Operator" means any individual, partnership, firm,
association, trust or corporation who or which is granted or
should obtain a permit to engage in any activity covered by this
article.
(h) "Permit area" means the area of land indicated on theapproved map submitted by the operator with the reclamation plan
as specified in section seven of this article showing the exact
location of end strip markers, permit markers and monuments.
(i) "Person" means any individual, partnership, firm,
association, trust or corporation.
(j) "Surface mine" means all areas surface mined or being
surface mined, as well as adjacent areas ancillary to the
operation, together with preparation and processing plants,
storage areas and haulageways, roads or trails.
(k) "Surface mining" means all activity for the recovery of
minerals, and all plants and equipment used in processing said
minerals:
Provided, That the bonding and reclamation provisions
of this article do not apply to surface mining of limestone,
sandstone and sand:
Provided, however, That the surface mining
of limestone, sandstone and sand is subject to separate rules to
be promulgated by the director.
(l) "Surface of a regraded bench" means the top portion or
part of any regraded area.
§22-4-3. Director of the division of environmental protection;
duties and functions.
Except as otherwise provided in this article, the director
shall administer all of the laws of this state relating to
surface mining and shall exercise all of the powers and perform
all of the duties by law vested in and imposed upon him or her in
relation to said operations.
§22-4-4. Surface-mining reclamation supervisors and inspectors;
appointment and qualifications; salary.
The director shall determine the number of surface-mining
reclamation supervisors and inspectors needed to carry out the
purposes of this article and appoint them as such. All such
appointees shall be eligible civil service employees, but no
person is qualified for such appointment until he or she has
served in a probationary status for a period of one year to the
satisfaction of the director.
Every surface-mining reclamation supervisor or inspector
shall be paid not less than sixteen thousand dollars per year.
§22-4-5. Duties of surface-mining reclamation inspectors.
The surface-mining reclamation inspectors shall make all
necessary surveys and inspections of surface-mining operations,
shall administer and enforce all surface-mining laws and rules,
and shall perform such other duties and services as may be
prescribed by the director. Such inspectors shall give
particular attention to all conditions of each permit to ensure
complete compliance therewith. The director shall cause
inspections to be made of each active surface-mining operation in
this state by a surface-mining reclamation inspector at least
once every fifteen days. Said inspector shall note and describe
violations of this article and immediately report such violations
to the director in writing, furnishing at the same time a copy of
such report to the operator concerned.
§22-4-6. Permit required; applications; issuance and renewals;
fees and use of proceeds.
It is unlawful for any person to engage in surface mining
without having first obtained from the division of environmental
protection a permit therefor as provided in this section.
Application for a surface-mining permit shall be made in writing
on forms prescribed by the director, and shall be signed and
verified by the applicant. The application, in addition to such
other information as may be reasonably required by the director,
shall contain the following information: (1) The common name and
geologic title, where applicable, of the mineral or minerals to
be extracted; (2) maps and plans as provided in section seven
hereof; (3) the owner or owners of the surface of the land to be
mined; (4) the owner or owners of the mineral to be mined; (5)
the source of the operator's legal right to enter and conduct
operations on the land to be covered by the permit; (6) a
reasonable estimate of the number of acres of land that will be
disturbed by mining on the area to be covered by the permit; (7)
the permanent and temporary post-office addresses of the
applicant and of the owners of the surface and the mineral; (8)
whether any surface-mining permits are now held and the numbers
thereof; (9) the names and post-office addresses of every
officer, partner, director (or person performing a similar
function), of the applicant, together with all persons, if any,
owning of record or beneficially (alone or with associates), if
known, ten percent or more of any class of stock of the
applicant:
Provided, That if such list be so large as to cause
undue inconvenience, the director may waive the requirements thatsuch list be made a part of such application, except the names
and current addresses of every officer, partner, director and
applicant must accompany such application; (10) if known, whether
applicant, any subsidiary or affiliate or any person controlled
by or under common control with applicant, or any person required
to be identified by item (9) above, has ever had a surface-mining
permit issued under the laws of this state revoked or has ever
had a surface-mining bond, or security deposited in lieu of bond,
forfeited; and (11) names and addresses of the reputed owner or
owners of all surface area within five hundred feet of any part
of proposed disturbed land, which such owners shall be notified
by registered or certified mail of such application and such
owners shall be given ten days within which to file written
objections thereto, if any, with the director. There shall be
attached to the application a true copy of an original policy of
insurance issued by an insurance company authorized to do
business in this state covering all surface-mining operations of
the applicant in this state and affording personal injury
protection in an amount not less than one hundred thousand
dollars and property damage, including blasting damage protection
in an amount of not less than three hundred thousand dollars.
The director shall upon receipt of the application for a
permit cause to be published, as a Class III legal advertisement
in accordance with the provisions of article three, chapter
fifty-nine of this code, a notice of the application for the
permit. Such notice shall contain in abbreviated form theinformation required by this section, together with the
director's statement that written protests to such application
will be received by him or her until a specified date, which date
is at least thirty days after the first publication of the
notice.
The publication area of the notices required by this section
is the county or counties in which the proposed permit area is
located. The cost of all publications required by this section
shall be borne by the applicant.
Upon the filing of an application in proper form,
accompanied by the fees and bond required by this article and
said true copy of the policy of insurance, and after
consideration of the merits of the application and written
protests, if any, the director may issue the permit applied for
if the applicant has complied with all of the provisions of this
article. If the director finds that the applicant is or has been
affiliated with or managed or controlled by, or is or has been
under the common control of, other than as an employee, a person
who or which has had a surface-mining permit revoked or bond or
other security forfeited for failure to reclaim lands as required
by the laws of this state, he or she shall not issue a permit to
the applicant:
Provided, That no surface-mining permit shall be
refused because of any past revocation of a permit and forfeiture
of a bond or other security if such revocation and forfeiture
occurred before the first day of July, one thousand nine hundred
seventy-one, and if, after such revocation and forfeiture, theoperator whose permit has been revoked and bond forfeited has
paid into the surface-mining reclamation fund the full amount of
the bond so forfeited, and any additional sum of money determined
by the director to be adequate to reclaim the land covered by
such forfeited bond:
Provided, however, That in no event shall
such additional sum be less than sixty dollars per acre.
The permit is valid for one year from its date of issue.
Upon verified application, containing such information as the
director may reasonably require, accompanied by such fees and
bond as are required by this article, and a true copy of the
policy of insurance as aforesaid, the director shall from year to
year renew the permit, if the operation is in compliance with the
provisions of this article.
The registration fee for all permits for surface mining, is
five hundred dollars. The annual renewal fee for permits for
surface mining is one hundred dollars payable on the anniversary
date of said permit upon renewal.
The permit of any operator who fails to pay any fees
provided for in this article shall be revoked.
All registration and renewal fees for surface mining shall
be collected by the director and shall be 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 director, for the administration of this article.
§22-4-7. Preplans.
Under the provisions of this article, and rules adopted bythe director, the operator shall prepare a complete reclamation
and mining plan for the area of land to be disturbed. Said
reclamation and mining plan shall include a proposed method of
operation, prepared by a registered professional engineer or a
person approved by the director, for grading, backfilling, soil
preparation, mining and planting and such other proposals as may
be necessary to develop the complete reclamation and mining plan
contemplated by this article. In developing this complete
reclamation and mining plan all reasonable measures shall be
taken to eliminate damages to members of the public, their real
and personal property, public roads, streams and all other public
property from soil erosion, rolling stones and overburden, water
pollution and hazards dangerous to life and property. The plan
shall be submitted to the director and the director shall notify
the applicant by certified mail within thirty days after receipt
of the plan and complete application if it is or is not
acceptable. If the plan is not acceptable, the director shall
set forth the reasons why the plan is not acceptable, and he or
she may propose modifications, delete areas or reject the entire
plan. Should the applicant disagree with the decision of the
director, the applicant may, by written notice, request a hearing
before the director. The director shall hold such hearing within
thirty days after receipt of this notice. When a hearing is held
by the director, he or she shall notify the applicant of his or
her decision by certified mail within twenty days after the
hearing. Any person aggrieved by a final order of the directormade after the hearing or without a hearing may appeal to the
surface mine board.
The application for a permit shall be accompanied by copies
of an enlarged United States geological survey topographic map
meeting the requirements of the subdivisions below. Aerial
photographs of the area are acceptable if the plan for
reclamation can be shown to the satisfaction of the director.
The maps shall:
(a) Be prepared and certified by or under the supervision of
a registered professional civil engineer, or a registered
professional mining engineer, or a registered land surveyor, who
shall submit to the director a certificate of registration as a
qualified engineer or land surveyor;
(b) Identify the area to correspond with application;
(c) Show probable limits of adjacent deep-mining operations,
probable limits of adjacent inactive or mined-out deep-mined
areas and the boundaries of surface properties and names of
surface and mineral owners of the surface area within five
hundred feet of any part of the proposed disturbed area;
(d) Be of such scale as may be prescribed by the director;
(e) Show the names and locations of all streams, creeks or
other bodies of public water, roads, buildings, cemeteries,
active, abandoned or plugged oil and gas wells, and utility lines
on the area of land to be disturbed and within five hundred feet
of such area;
(f) Show by appropriate markings the boundaries of the areaof land to be disturbed, the crop line of the seam to be mined,
if any, and the total number of acres involved in the area of
land to be disturbed;
(g) Show the date on which the map was prepared, the north
point and the quadrangle sketch and exact location of the
operation;
(h) Show the drainage plan on and away from the area of land
to be disturbed. Such plan shall indicate the directional flow
of water, constructed drainways, natural waterways used for
drainage, and the streams or tributaries receiving or to receive
this discharge. Upon receipt of such drainage plan, the director
may furnish the office of water resources of the division a copy
of all information required by this subdivision, as well as the
names and locations of all streams, creeks or other bodies of
public water within five hundred feet of the area to be
disturbed; and
(i) Show the presence of any acid-producing materials which
when present in the overburden, may cause spoil with a pH factor
below 3.5, preventing effective revegetation. The presence of
such materials, wherever occurring in significant quantity, shall
be indicated on the map, filed with the application for permit.
The operator shall also indicate the manner in which acid-bearing
spoil will be suitably prepared for revegetation and
stabilization, whether by application of mulch or suitable soil
material to the surface or by some other type of treatment,
subject to approval of the director.
The operator shall also indicate the manner in which all
permanent overburden disposal sites will be stabilized.
The certification of the maps shall read as follows: "I,
the undersigned, hereby certify that this map is correct, and
shows to the best of my knowledge and belief all the information
required by the surface-mining laws of this state." The
certification shall be signed and notarized. The director may
reject any map as incomplete if its accuracy is not so attested.
In addition to the information and maps required above, each
application for a permit shall be accompanied by a detailed
reclamation plan as required by this article.
A monument as prescribed by the director shall be placed in
an approved location near the operation. If the operations under
a single permit are not geographically continuous, the operator
shall locate additional monuments and submit additional maps
before mining other areas.
Upon an order of the director, the operator shall, within
thirty days after service of a copy of said order upon said
operator by certified United States mail, furnish to the director
four copies of a progress map prepared by or under the
supervision of a registered professional civil engineer or
registered professional mining engineer, or by a registered land
surveyor, showing the area disturbed by operations to the date of
such map. Such progress map shall contain information identical
to that required for both the proposed and final maps, required
by this article, and shall show in detail completed reclamationwork, as required by the director. Such progress map shall
include a geologic survey sketch showing the location of the
operation, shall be properly referenced to a permanent landmark,
and shall be within such reasonable degree of accuracy as may be
prescribed by the director. If no land has been disturbed by
operations during the preceding year, the operator shall notify
the director of this fact. A final map shall be submitted within
sixty days after completion of mining operations. Failure to
submit maps or aerial photographs or notices at specified times
shall cause the permit in question to be suspended.
§22-4-8. Installation of drainage system.
Prior to the beginning of surface-mining operations, the
operator shall complete and shall thereafter maintain a drainage
system including any necessary settling ponds in accordance with
the rules as established by the director.
§22-4-9. Alternative plans; time.
An operator may propose alternative plans not calling for
backfilling where a water impoundment is desired, if such
restoration will be consistent with the purpose of this article.
Such plans shall be submitted to the director, and if such plans
are approved by the director and complied with within such time
limits as may be determined by him or her as being reasonable for
carrying out such plans, the backfilling requirements of this
article may be modified.
By rule of the director, time limits shall be established
requiring backfilling, grading and planting to be kept current. All backfilling and grading shall be completed before equipment
necessary for such backfilling and grading is moved from the
operation.
If the operator or other person desires to conduct deep
mining upon the premises or use a deep-mine opening for
haulageways or other lawful purposes, the operator may designate
locations to be used for such purposes at which places it will
not be necessary to backfill as herein provided for until such
deep mining or other use is completed, during which time the bond
on file for that portion of that operation shall not be released.
Such locations shall be described and designated on the map
required by the provisions of section seven of this article.
Where applicable, suitable soil material shall be used to
cover the surface of the regraded and backfilled area of
operation in an amount sufficient to support vegetation.
When the backfilling and grading have been completed and
approved by the director, the director shall release that portion
of the bond which was filed and designated to cover the
backfilling and grading requirements of this article, the
remaining portion of the bond in an amount equal to two hundred
fifty dollars per acre, but not less than a total amount of five
thousand dollars being retained by the treasurer until such time
as the planting and revegetation is done according to law and is
approved by the director, at which time the director shall
release the remainder of the bond.
All fill and cut slopes shall be seeded during the firstplanting or seeding season after the construction of a haulageway
to the area. Upon abandonment of any haulageway, the haulageway
shall be seeded and every effort made to prevent its erosion by
means of culverts, waterbars or other devices required by the
director. In proper season, all fill and cut slopes of the
operation and haulageways shall be seeded and planted in a manner
as prescribed by the director, as soil tests indicate soil
suitability and in accordance with accepted agricultural and
reforestation practices.
In any such area where surface mining is being conducted,
mulch is required on all disturbed areas where the remaining
slope exceeds twenty degrees from horizontal as shown on the
preplan map filed with the director as required by the provisions
of section seven of this article.
After the operation has been backfilled, graded and approved
by the director, the operator shall prepare or cause to be
prepared a final planting plan for the planting of trees, shrubs,
vines, grasses or legumes upon the area of the land affected in
order to provide a suitable vegetative cover. The seed or plant
mixtures, quantities, method of planting, type and amount of
lime, fertilizer, mulch, and any other measures necessary to
provide a suitable vegetative cover shall be defined by the rules
of the director.
The planting called for by the final planting plan shall be
carried out in a manner so as to establish a satisfactory cover
of trees, shrubs, grasses, legumes or vines upon the disturbedarea covered by the planting plan within a reasonable period of
time. Such planting shall be done by the operator or such
operator may contract in writing with the soil conservation
district for the district in which the operation covered by such
permit is located or with a private contractor approved by the
director to have such planting done by such district or private
contractor. The director shall not release the operator's bond
until all haulageways, roads and trails within the permit area
have been abandoned according to the provisions of this article
and the rules promulgated thereunder or such operator or any
other person has secured a permit to deep mine such area as
required by article three of this chapter.
The purpose of this section is to require restoration of
land disturbed by surface mining to a desirable purpose and use.
The director may, in the exercise of his or her sound discretion
when not in conflict with such purpose, modify such requirements
to bring about a more desirable land use, including, but not
limited to, industrial sites, sanitary landfills, recreational
areas, building sites:
Provided, That the person or agency
making such modifications will execute contracts, post bond or
otherwise ensure full compliance with the provisions of this
section in the event such modified program is not carried to
completion within a reasonable length of time.
§22-4-10. Limitations; mandamus.
The Legislature finds that there are certain areas in the
state of West Virginia which are impossible to reclaim either bynatural growth or by technological activity and that if surface
mining is conducted in these certain areas such operations may
naturally cause stream pollution, landslides, the accumulation of
stagnant water, flooding, the destruction of land for
agricultural purposes, the destruction of aesthetic values, the
destruction of recreational areas and future use of the area and
surrounding areas, thereby destroying or impairing the health and
property rights of others, and in general creating hazards
dangerous to life and property so as to constitute an imminent
and inordinate peril to the welfare of the state, and that such
areas shall not be mined by the surface-mining process.
Therefore, authority is hereby vested in the director to
delete certain areas from all surface-mining operations.
No application for a permit shall be approved by the
director if there is found on the basis of the information set
forth in the application or from information available to the
director and made available to the applicant that the
requirements of this article or rules hereafter adopted will not
be observed or that there is not probable cause to believe that
the proposed method of operation, backfilling, grading or
reclamation of the affected area can be carried out consistent
with the purpose of this article.
If the director finds that the overburden on any part of the
area of land described in the application for a permit is such
that experience in the state of West Virginia with a similar type
of operation upon land with similar overburden shows that one ormore of the following conditions cannot feasibly be prevented:
(1) Substantial deposition of sediment in stream beds; (2)
landslides; or (3) acid-water pollution, the director may delete
such part of the land described in the application upon which
such overburden exists.
If the director finds that the operation will constitute a
hazard to a dwelling house, public building, school, church,
cemetery, commercial or institutional building, public road,
stream, lake or other public property, then he or she shall
delete such areas from the permit application before it can be
approved.
The director shall not give approval to surface mine any
area which is within one hundred feet of any public road, stream,
lake or other public property, and shall not approve the
application for a permit where the surface-mining operation will
adversely affect a state, national or interstate park unless
adequate screening and other measures approved by the commission
are to be utilized and the permit application so provides:
Provided, That the one-hundred-foot restriction aforesaid does
not include ways used for ingress and egress to and from the
minerals as herein defined and the transportation of the removed
minerals, nor does it apply to the dredging and removal of
minerals from the streams or watercourses of this state.
Whenever the director finds that ongoing surface-mining
operations are causing or are likely to cause any of the
conditions set forth in the first paragraph of this section, heor she may order immediate cessation of such operations and he or
she shall take such other action or make such changes in the
permit as he or she may deem necessary to avoid said described
conditions.
The failure of the director to discharge the mandatory duty
imposed by this section is subject to a writ of mandamus, in any
court of competent jurisdiction by any private citizen affected
thereby.
§22-4-11. Blasting restriction; formula; filing preplan;
penalties; notice.
Where blasting of overburden or mineral is necessary, such
blasting shall be done in accordance with established principles
for preventing vibration damage to residences, buildings and
communities. Such blasting is in compliance with provisions of
this article if the following measures are followed:
(1) The weight in pounds of explosive charge detonated at
any one time shall conform with the following scaled distance
formula: W = (D/50)(to the second power). Where W equals weight
in pounds of explosives detonated at any one instant time, then
D equals distance in feet from nearest point of blast to nearest
residence, building, or structure, other than operation
facilities of the mine:
Provided, That explosive charges are
detonated at one time if their detonation occurs within eight
milliseconds or less of each other.
(2) Where blast sizes would exceed the limits under
subdivision (1) of this section, blasts shall be detonated by theuse of delay detonators (either electric or nonelectric) to
provide detonation times separated by nine milliseconds or more
for each section of the blast complying with the scaled distance
of the formula.
(3) A plan of each operation's methods for compliance with
this section (blast delay design) for typical blasts which shall
be adhered to in all blasting at each operation, shall be
submitted to the director with the application for a permit. It
shall be accepted if it meets the scaled distance formula
established in subdivision (1) of this section.
(4) Records of each blast shall be kept in a log to be
maintained for at least three years, which will show for each
blast other than secondary (boulder-breaking) blasts the
following information:
(a) Date and time of blast;
(b) Number of holes;
(c) Typical explosive weight per delay period;
(d) Total explosives in blast at any one time;
(e) Number of delays used;
(f) Weather conditions; and
(g) Signature of operator employee in charge of the blast.
(5) Where inspection by the director establishes that the
scaled distance formula and the approved preplan are not being
adhered to, the following penalties shall be imposed:
(a) For the first offense in any one permit year under this
section, the permit holder shall be assessed not less than fivehundred dollars nor more than one thousand dollars;
(b) For the second offense in any one permit year under this
section, the permit holder shall be assessed not less than one
thousand dollars nor more than five thousand dollars; and
(c) For the third offense in any one permit year under this
section or for the failure to pay any assessment hereinabove set
forth within a reasonable time established by the director, the
permit shall be revoked.
All such assessments as set forth in this section shall be
assessed by the director, collected by him or her and deposited
with the treasurer of the state of West Virginia, to the credit
of the operating permit fees fund.
The director shall promulgate rules a which shall provide
for a warning of impending blasting to the owners, residents or
other persons who may be present on property adjacent to the
blasting area.
§22-4-12. Time in which reclamation shall be done.
It is the duty of an operator to commence the reclamation of
the area of land disturbed by the operator's operation after the
beginning of surface mining of that area in accordance with plans
previously approved by the director and to complete such
reclamation within twelve months after the permit has expired,
except that such grading, backfilling and water-management
practices as are approved in the plans shall be kept current with
the operations as defined by rules of the director and no permit
or supplement to a permit shall be issued or renewed, if in thediscretion of the director, these practices are not current.
§22-4-13. Obligations of the operator.
In addition to the method of operation, grading, backfilling
and reclamation requirements of this article and rules adopted
pursuant thereto, the operator is required to perform the
following:
(1) Cover the face of the coal and the disturbed area with
material suitable to support vegetative cover and of such
thickness as may be prescribed by the director, or with a
permanent water impoundment.
(2) Bury under adequate fill, all materials determined by
the director to be acid-producing materials, toxic material or
materials constituting a fire hazard.
(3) Seal off any breakthrough of acid water caused by the
operator:
Provided, That any breakthrough caused by the operator
during the course of the operator's operations shall be sealed
immediately and reported immediately to the director. If the
breakthrough is one that allows air to enter a mine, the seal
shall either prevent any air from entering the mine by way of the
breakthrough, or prevent any air from entering the breakthrough
while allowing the water to flow from the breakthrough. If the
breakthrough is one that allows acid water to escape, the seal
shall prevent the acid water from flowing. Seals shall be
constructed of stone, brick, block, earth or similar impervious
materials which are acid resistant. Any cement or concrete
employed in the construction of these seals shall also be of anacid resistant, impervious type.
(4) Impound, drain or treat all runoff water so as to reduce
soil erosion, damage to agricultural lands and pollution of
streams and other waters.
In the case of storm water accumulations or any breakthrough
of water, adequate treatment shall be undertaken by the operator
so as to prevent pollution occurring from the release of such
water into the natural drainway or stream. Treatment may include
check-dams, settling ponds and chemical or physical treatment.
In the case of a breakthrough of water, where it is possible, the
water released shall be impounded immediately. All water so
impounded shall receive adequate treatment by the operator before
it is released into the natural drainway or stream.
Storm water or water which escapes, including that which
escapes after construction of the seals, and is polluted as
defined in this code, or as defined in the rules promulgated
under this code, is subject to the requirements of article eleven
of this chapter.
(5) Remove or bury all metal, lumber, equipment and other
refuse resulting from the operation. No operator shall throw,
dump or pile; or permit the throwing, dumping, piling or
otherwise placing of any overburden, stones, rocks, coal,
mineral, earth, soil, dirt, debris, trees, wood, logs or other
materials or substances of any kind or nature beyond or outside
the area of land which is under permit and for which bond has
been posted; nor shall any operator place any of the foregoinglisted materials in such a way that normal erosion or slides
brought about by natural physical causes will permit the same to
go beyond or outside the area of land which is under permit and
for which bond has been posted.
The operator shall show on the map, filed with the
application for a permit, the percent of slope of original
surface within each two-hundred-foot interval along the contour
of the operation, the first measurement to be taken at the
starting point of the operation. The flagged field measurement
shall be made from the estimated crop line or proposed mineral
seam down slope to the estimated toe of the outer spoil. All
reasonable measures shall be taken so as not to overload the fill
bench during the first cut. No overburden material in excess of
the first cut shall be placed over the fill bench. With the
exception of haulageways and auger-mining operations, trees and
brush shall be removed from the upper one half of all fill
sections prior to excavation, and no trees or brush removed from
the cut section shall be placed therein or thereon.
No fill bench shall be produced on slopes of more than
sixty-five percent, except for construction of haulageways, and
such haulageways shall not exceed thirty-five feet in width, with
very scattered forty-five-foot passing areas permitted.
Lateral drainage ditches connecting to natural or
constructed waterways shall be constructed to control water
runoff and prevent erosion whenever required by the director.
There shall be no depressions that will accumulate water exceptthose the director may specify and approve. The depth and width
of natural drainage ditches and any other diversion ditches may
vary depending on the length and degree of slope.
With the exception of limestone, sandstone and sand,
complete backfilling is required, not to exceed the approximate
original contour of the land. Such backfilling shall eliminate
highwalls and spoil peaks. Whenever directed by the director,
the operator shall construct, in the final grading, such
diversion ditches or terraces as will control the water runoff.
Additional restoration work may be required by the director,
according to rules adopted by the director.
§22-4-14. Cessation of operation by inspector.
Notwithstanding any other provisions of this article, a
surface-mining reclamation inspector has authority to order the
immediate cessation of any operation where: (1) Any of the
requirements of this article or the rules promulgated pursuant
thereto or the orders of the director have not been complied
with: or (2) the public welfare or safety calls for the immediate
cessation of the operation. Such cessation of operation shall
continue until corrective steps have been started by the operator
to the satisfaction of the surface-mining reclamation inspector.
Operators who believe they are aggrieved by the actions of the
surface-mining reclamation inspector may immediately appeal to
the director, setting forth reasons why their operations should
not be halted. The director shall determine immediately when and
if an operation may continue.
§22-4-15. Completion of planting; inspection and evaluation.
When the planting of an area has been completed, the
operator shall file or cause to be filed a planting report with
the director on a form to be prescribed and furnished by the
director providing the following information: (1) Identification
of the operation; (2) the type of planting or seeding, including
mixtures and amounts; (3) the date of planting or seeding; (4)
the area of land planted; and (5) such other relevant information
as the director may require. All planting reports shall be
certified by the operator, or by the party with whom the operator
contracted for such planting, as aforesaid.
§22-4-16. Performance bonds.
Each operator who makes application for a permit under
section six of this article shall, at the time such permit is
requested, furnish bond, on a form to be prescribed and furnished
by the director, payable to the state of West Virginia and
conditioned that the operator shall faithfully perform all of the
requirements of this article. The amount of the bond shall be
not less than six hundred dollars for each acre or fraction
thereof of the land to be disturbed:
Provided, That the director
has the discretion to determine the amount per acre of the bond
that is required before a permit is issued, such amount to be
based upon the estimated reclamation costs per acre, not to
exceed a maximum of one thousand dollars per acre or fraction
thereof. The minimum amount of bond furnished shall be ten
thousand dollars. Such bond shall be executed by the operatorand a corporate surety licensed to do business in the state of
West Virginia:
Provided, however, That in lieu of corporate
surety, the operator may elect to deposit with the director cash,
or collateral securities or certificates as follows: Bonds of
the United States or its possessions, of the federal land banks,
or of the home owners' loan corporation; full faith and credit
general obligation bonds of the state of West Virginia, or other
states, and of any county, district or municipality of the state
of West Virginia or other states; or certificates of deposit in
a bank in this state, which certificates shall be in favor of the
director. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the sum of the
bond. The director shall, upon receipt of any such deposit of
cash, securities or certificates, immediately place the same with
the treasurer of the state of West Virginia whose duty it is to
receive and hold the same in the name of the state in trust for
the purpose for which such deposit is made. The operator making
the deposit is entitled from time to time to receive from the
state treasurer, upon the written order of the director, the
whole or any portion of any cash, securities or certificates so
deposited, upon depositing with the treasurer in lieu thereof,
cash or other securities or certificates of the classes herein
specified having value equal to or greater than the sum of the
bond.
It is unlawful for the owner or owners of surface rights or
the owner or owners of mineral rights to interfere with theoperator in the discharge of the operator's obligation to the
state for the reclamation of lands disturbed by the operator. If
the owner or owners of the surface rights or the owner or owners
of the mineral rights desire another operator or other operators
to conduct mining operations on lands disturbed by the operator
furnishing bond hereunder, it is the duty of said owner or owners
to require the other operator or operators to secure the
necessary mining permit and furnish suitable bond as herein
provided. The director may then release an equivalent amount of
the bond of the operator originally furnishing bond on the
disturbed area.
The director shall not release that portion of any bond
filed by any operator which is designated to assure faithful
performance of, and compliance with, the backfilling and
regrading requirements of the reclamation plan until all acid-
bearing or acid-producing spoil within the permit area has
received adequate treatment as specified in section nine of this
article.
§22-4-17. Exception as to highway construction projects for
reclamation requirements.
Any provision of this article to the contrary
notwithstanding, a person or operator is not subject to any duty
or requirement whatever with respect to reclamation requirements
when engaged in the removal of borrow and fill material for
grading in federal and state highway construction projects:
Provided, That the provisions of the highway constructioncontract require the furnishing of a suitable bond which provides
for reclamation wherever practicable of the area affected by such
recovery activity.
§22-4-18. Rules.
The director shall promulgate rules , in accordance with the
provisions of chapter twenty-nine-a of said code, for the
effective administration of this article.
§22-4-19. Noncompliance.
If any of the requirements of this article or rules
promulgated pursuant thereto or the orders of the director have
not been complied with within the time limits set by the director
or by this article, the director shall cause a notice of
noncompliance to be served upon the operator, which notice shall
order the operation to cease, or where found necessary, the
director shall order the suspension of a permit. A copy of such
notice or order shall be handed to the operator in person or
served by certified mail addressed to the operator at the
permanent address shown on the application for a permit. The
notice of noncompliance or order of suspension shall specify in
what respects the operator has failed to comply with this article
or the rules or orders of the director. If the operator has not
reached an agreement with the director or has not complied with
the requirements set forth in the notice of noncompliance or
order of suspension within the time limits set therein, the
permit may be revoked by order of the director and the
performance bond shall then be forfeited. If an agreementsatisfactory to the director has not been reached within thirty
days after suspension of any permit, any and all suspended
permits shall then be declared revoked and the performance bonds
with respect thereto forfeited.
When any bond is forfeited pursuant to the provisions of
this article, the director shall give notice to the attorney
general who shall collect the forfeiture without delay.
§22-4-20. Adjudications, findings, etc., to be by written order;
contents; notice.
Every adjudication, determination or finding by the director
affecting the rights, duties or privileges of any person subject
to this article shall be made by written order and shall contain
a written finding by the director of the facts upon which the
adjudication, determination or finding is based. Notice of the
making of such order shall be given to the person whose rights,
duties or privileges are affected thereby by mailing a true copy
thereof to such person by certified mail.
§22-4-21. Appeals to board.
Any person claiming to be aggrieved or adversely affected by
any rule or order of the director or his or her failure to enter
an order may appeal to the surface mine board, pursuant to the
provisions of article one, chapter twenty-two-b of this code, for
an order vacating or modifying such rule or order, or for such
order as the director should have entered.
§22-4-22. Offenses; penalties; prosecutions; treble damages;
injunctive relief.
(a) Any person who conducts any surface-mining operation, or
any part thereof, without a permit or without having furnished
the required bond, or who carries on such operation or be a party
thereto on land not covered by a permit, or who falsely
represents any material fact in an application for a permit or in
an application for the renewal of a permit, or who willfully
violates any provision of this article, is guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than one hundred nor more than one thousand
dollars or by imprisonment not exceeding six months, or by both.
Any person who deliberately violates any provision of this
article or conducts surface-mining operations without a permit is
guilty of a misdemeanor, and, upon conviction thereof, shall be
punished by a fine of not less than one thousand nor more than
ten thousand dollars or by imprisonment not exceeding six months,
or by both. Each day of violation is a separate offense. It is
the duty of the director to institute prosecutions for violations
of the provisions hereof. Any person convicted under the
provisions of this section shall, in addition to any fine
imposed, pay to the director for deposit in the surface-mining
reclamation fund an amount sufficient to reclaim the area with
respect to which such conviction relates. The commissioner shall
institute any suit or other legal action necessary for the
effective administration of the provisions of this article.
(b) In addition to and notwithstanding any other penalties
provided by law, any operator who directly causes damage to theproperty of others as a result of surface mining is liable to
them, in an amount not in excess of three times the provable
amount of such damage, if and only if such damage occurs before
or within one year after such operator has completed all
reclamation work with respect to the land on which such surface
mining was carried out and all bonds of such operator with
respect to such reclamation work are released. Such damages are
recoverable in an action at law in any court of competent
jurisdiction. The director shall require, in addition to any
other bonds and insurance required by other provisions of this
article, that any person engaged in the business of surface
mining shall file with the director a certificate of insurance,
or other security in an amount of not less than ten thousand
dollars, to cover possible damage to property for which a
recovery may be sought under the provisions of this subsection.
(c) Upon application by the director, the attorney general,
or the prosecuting attorney of the county in which the major
portion of the permit area is located, any court of competent
jurisdiction may by injunction compel compliance with and enjoin
violations of the provisions of this article. The court or the
judge thereof in vacation may issue a preliminary injunction in
any case pending a decision on the merits of any application
filed.
An application for an injunction under the provisions of
this section may be filed and injunctive relief granted
notwithstanding that all of the administrative remedies providedfor in this article have not been pursued or invoked against the
person or persons against whom such relief is sought and
notwithstanding that the person or persons against whom such
relief is sought have not been prosecuted or convicted under the
provisions of this article.
The judgment of the circuit court upon any application filed
under the provisions of this article is final unless reversed,
vacated or modified on appeal to the supreme court of appeals.
Any such appeal shall be sought in the manner provided by law for
appeals from circuit courts in other civil cases, except that the
petition seeking such review must be filed with said supreme
court of appeals within thirty days from the date of entry of the
judgment of the circuit court.
§22-4-23. Validity and construction of existing surface-mining
permits.
Any valid surface-mining permit existing on the effective
date of this article shall remain in full force and effect until
such permit expires under its terms or is otherwise terminated
under the provisions of this article. The provisions of this
section do not require the regrading or replanting of any area on
which such work was satisfactorily performed prior to the
effective date of this article.
ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-1. Declaration of policy and purpose.
It is hereby declared to be the public policy of this state
and the purpose of this article to achieve and maintain suchlevels of air quality as will protect human health and safety,
and to the greatest degree practicable, prevent injury to plant
and animal life and property, foster the comfort and convenience
of the people, promote the economic and social development of
this state and facilitate the enjoyment of the natural
attractions of this state.
To these ends it is the purpose of this article to provide
for a coordinated statewide program of air pollution prevention,
abatement and control; to facilitate cooperation across
jurisdictional lines in dealing with problems of air pollution
not confined within single jurisdictions; and to provide a
framework within which all values may be balanced in the public
interest.
Further, it is the public policy of this state to fulfill
its primary responsibility for assuring air quality pursuant to
the "Federal Clean Air Act", as amended.
§22-5-2. Definitions.
The terms used in this article are defined as follows:
(1) "Air pollutants" means solids, liquids or gases which,
if discharged into the air, may result in a statutory air
pollution.
(2) "Board" means the air quality board continued pursuant
to the provisions of article two, chapter twenty-two-b of this
code.
(3) "Director" means the director of the division of
environmental protection or such other person the director hasdelegated authority or duties to pursuant to section six or
eight, article one, chapter twenty-two of this code.
(4) "Discharge" means any release, escape or emission of air
pollutants into the air.
(5) "Person" means any and all persons, natural or
artificial, including the state of West Virginia or any other
state, the United States of America, any municipal, statutory,
public or private corporation organized or existing under the
laws of this or any other state or country, and any firm,
partnership or association of whatever nature.
(6) "Statutory air pollution" means and is limited to the
discharge into the air by the act of man of substances (liquid,
solid, gaseous, organic or inorganic) in a locality, manner and
amount as to be injurious to human health or welfare, animal or
plant life, or property, or which would interfere with the
enjoyment of life or property.
§22-5-3. Causing statutory pollution unlawful; article not to
provide persons with additional legal remedies.
It is unlawful for any person to cause a statutory air
pollution, to violate the provisions of this article, to violate
any rules promulgated pursuant to this article to operate any
facility subject to the permit requirements of the director
without a valid permit, or to knowingly misrepresent to any
person in the state of West Virginia that the sale of air
pollution control equipment will meet the standards of this
article or any rules promulgated pursuant to this article. Nothing contained in this article provides any person with a
legal remedy or basis for damages or other relief not otherwise
available to such person immediately prior to enactment of this
article.
§22-5-4. Powers and duties of director; and legal services;
rules.
(a) The director is authorized:
(1) To develop ways and means for the regulation and control
of pollution of the air of the state;
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries, and with affected
groups in furtherance of the declared purposes of this article;
(3) To encourage and conduct such studies and research
relating to air pollution and its control and abatement as the
director may deem advisable and necessary;
(4) To promulgate legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code not inconsistent
with the provisions of this article, relating to the control of
air pollution:
Provided, That no rule of the director shall
specify a particular manufacturer of equipment nor a single
specific type of construction nor a particular method of
compliance except as specifically required by the "Federal Clean
Air Act", as amended, nor shall any such rule apply to any aspect
of an employer-employee relationship:
Provided, however, That no
legislative rule or program of the director hereafter adoptedshall be any more stringent than any federal rule or program
except to the limited extent that the director first makes a
specific written finding for any such departure that there exists
scientifically supportable evidence for such rule or program
reflecting factors unique to West Virginia or some area thereof;
(5) To enter orders requiring compliance with the provisions
of this article and the rules lawfully promulgated hereunder;
(6) To consider complaints, subpoena witnesses, administer
oaths, make investigations and hold hearings relevant to the
promulgation of rules and the entry of compliance orders
hereunder;
(7) To encourage voluntary cooperation by municipalities,
counties, industries and others in preserving the purity of the
air within the state;
(8) To employ personnel, including specialists and
consultants, purchase materials and supplies, and enter into
contracts necessary, incident or convenient to the accomplishment
of the purpose of this article;
(9) To enter and inspect any property, premise or place on
or at which a source of air pollutants is located or is being
constructed, installed or established at any reasonable time for
the purpose of ascertaining the state of compliance with this
article and rules promulgated under the provisions of this
article. No person shall refuse entry or access to any
authorized representative of the director who requests entry for
purposes of inspection, and who presents appropriate credentials;nor shall any person obstruct, hamper or interfere with any such
inspection:
Provided, That nothing contained in this article
eliminates any obligation to follow any process that may be
required by law;
(10) Upon reasonable evidence of a violation of this
article, which presents an imminent and serious hazard to public
health, to give notice to the public or to that portion of the
public which is in danger by any and all appropriate means;
(11) To cooperate with, receive and expend money from the
federal government and other sources; and the director may
cooperate with any public or private agency or person and receive
therefrom and on behalf of the state gifts, donations, and
contributions, which shall be deposited to the credit of the "Air
Pollution Education and Environment Fund" which is hereby
continued in the state treasury. The moneys collected pursuant
to this article which are directed to be deposited in the air
pollution education and environment fund must be deposited in a
separate account in the state treasury and expenditures for
purposes set forth in this article are not authorized from
collection but are to be made only in accordance with
appropriation and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the
provisions set forth in article two, chapter five-a of this code.
Amounts collected which are found from time to time to exceed the
funds needed for the purposes set forth in this article may be
transferred to other accounts or funds and redesignated for otherpurposes by appropriation of the Legislature;
(12) To represent the state in any and all matters
pertaining to plans, procedures and negotiations for interstate
compacts in relation to the control of air pollution;
(13) To appoint advisory councils from such areas of the
state as he or she may determine. The members shall possess some
knowledge and interest in matters pertaining to the regulation,
control and abatement of air pollution. The council may advise
and consult with the director about all matters pertaining to the
regulation, control and abatement of air pollution within such
area;
(14) To require any and all persons who are directly or
indirectly discharging air pollutants into the air to file with
the director such information as the director may require in a
form or manner prescribed by him or her for such purpose,
including, but not limited to, location, size and height of
discharge outlets, processes employed, fuels used and the nature
and time periods of duration of discharges. Such information
shall be filed with the director, when and in such reasonable
time, and in such manner as the director may prescribe;
(15) To require the owner or operator of any stationary
source discharging air pollutants to install such monitoring
equipment or devices as the director may prescribe and to submit
periodic reports on the nature and amount of such discharges to
the director;
(16) To do all things necessary and convenient to prepareand submit a plan or plans for the implementation, maintenance
and enforcement of the "Federal Clean Air Act", as amended:
Provided, That in preparing and submitting each such plan the
director shall establish in such plan that such standard shall be
first achieved, maintained and enforced by limiting and
controlling emissions of pollutants from commercial and
industrial sources and locations and shall only provide in such
plans for limiting and controlling emissions of pollutants from
private dwellings and the curtilage thereof as a last resort:
Provided, however, That nothing herein contained affects plans
for achievement, maintenance and enforcement of motor vehicle
emission standards and of standards for fuels used in dwellings;
(17) To promulgate legislative rules, in accordance with the
provisions of chapter twenty-nine-a of this code, providing for
the following:
(A) Procedures and requirements for permit applications,
transfers and modifications and the review thereof;
(B) Imposition of permit application and transfer fees;
(C) Establishment of criteria for construction,
modification, relocation and operating permits;
(D) Imposition of permit fees and of certificate fees:
Provided, That any person subject to operating permit fees
pursuant to section twelve of this article is exempt from
imposition of the certificate fee; and
(E) Imposition of penalties and interest for the nonpayment
of fees.
The fees, penalties and interest shall be deposited in a
special account in the state treasury designated the "Air
Pollution Control Fund", formerly the "Air Pollution Control
Commission Fund", which is hereby continued to be appropriated
for the sole purpose of paying salaries and expenses of the
board, the office of air quality and their employees to carry out
the provisions of this article:
Provided, That the fees,
penalties and interest collected for operating permits required
by section twelve of this article shall be expended solely to
cover all reasonable direct and indirect costs required to
administer the operating permit program. For fiscal year one
thousand nine hundred ninety-three, expenditures are permitted
from collections without appropriation by the Legislature; and
(18) Receipt of any money by the director as a result of the
entry of any consent order shall be deposited in the state
treasury to the credit of the air pollution education and
environment fund.
(b) The attorney general and his or her assistants and the
prosecuting attorneys of the several counties shall render to the
director without additional compensation such legal services as
the director may require of them to enforce the provisions of
this article.
§22-5-5. Issuance of cease and desist orders by director;
service; permit suspension, modification and revocation;
appeals to board.
If, from any investigation made by the director or from anycomplaint filed with him or her, the director is of the opinion
that a person is violating the provisions of this article, or any
rules promulgated pursuant thereto, he or she shall make and
enter an order directing such person to cease and desist such
activity. The director shall fix a reasonable time in such order
by which such activity must stop or be prevented. The order
shall contain the findings of fact upon which the director
determined to make and enter such order.
If, after any investigation made by the director, or from
any complaint filed with him or her, the director is of the
opinion that a permit holder is violating the provisions of this
article, or any rules promulgated pursuant thereto, or any order
of the director, or any provision of a permit, the director may
issue notice of intent to suspend, modify or revoke and reissue
such permit. Upon notice of the director's intent to suspend,
modify or revoke a permit, the permit holder may request a
conference with the director to show cause why the permit should
not be suspended, modified or revoked. The request for
conference must be received by the director within fifteen days
following receipt of notice. After conference or fifteen days
after issuance of notice of intent, if no conference is
requested, the director may enter an order suspending, modifying
or revoking the permit and send notice to the permit holder.
Such order is a cease and desist order for purposes of
administrative and judicial review and shall contain findings of
fact upon which the director determined to make and enter suchorder. If an appeal of the director's order is filed, the order
of the director shall be stayed from the date of issuance pending
a final decision of the board.
The director shall cause a copy of any such order to be
served upon such person by registered or certified mail or by any
proper law-enforcement officer.
Any person upon whom a copy of such final order has been
served may appeal such order to the air quality board pursuant to
the provisions of article one, chapter twenty-two-b of this code.
§22-5-6. Penalties; recovery and disposition; duties of
prosecuting attorneys.
(a) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
or article one, chapter twenty-two-b of this code is subject to
a civil penalty not to exceed ten thousand dollars for each day
of such violation, which penalty shall be recovered in a civil
action brought by the director in the name of the state of West
Virginia in the circuit court of any county wherein such person
resides or is engaged in the activity complained of or in the
circuit court of Kanawha county. The amount of the penalty shall
be fixed by the court without a jury.
Provided, That any such
person is not subject to such civil penalties unless such person
has been given written notice thereof by the director:
Provided,
however, That for the first such minor violation, if such person
corrects the violation within such time as was specified in thenotice of violation issued by the director, no such civil penalty
may be recovered:
Provided further, That if such person fails to
correct such minor violation or for any serious or subsequent
serious or minor violation, such person is subject to civil
penalties imposed pursuant to this section from the first day of
such violation notwithstanding the date of the issuance or
receipt of the notice of violation. The director shall, by rule
subject to the provisions of chapter twenty-nine-a of this code,
determine the definitions of serious and minor violations. The
amount of any such penalty collected by the director shall be
deposited in the general revenue of the state treasury according
to law.
(b) (1) Any person who knowingly misrepresents any material
fact in an application, record, report, plan or other document
filed or required to be maintained under the provisions of this
article or any rules promulgated under this article is guilty of
a misdemeanor, and, upon conviction thereof, shall be fined not
more than twenty-five thousand dollars or imprisoned in the
county jail not more than six months or both fined and
imprisoned.
(2) Any person who knowingly violates any provision of this
article, any permit or any rule or order issued pursuant to this
article or article one, chapter twenty-two-b of this code is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than twenty-five thousand dollars for each day of
such violation or imprisoned in the county jail not more than oneyear or both fined and imprisoned.
(c) Upon a request in writing from the director it is the
duty of the attorney general and the prosecuting attorney of the
county in which any such action for penalties accruing under this
section or section seven of this article may be brought to
institute and prosecute all such actions on behalf of the
director.
(d) For the purpose of this section, violations on separate
days are separate offenses.
§22-5-7. Applications for injunctive relief.
The director may seek an injunction against any person in
violation of any provision of this article or any permit, rule or
order issued pursuant to this article or article one, chapter
twenty-two-b of this code. In seeking an injunction, it is not
necessary for the director to post bond nor to allege or prove at
any stage of the proceeding that irreparable damage will occur if
the injunction is not issued or that the remedy at law is
inadequate. An application for injunctive relief brought under
this section or for civil penalty brought under section six of
this article may be filed and relief granted notwithstanding the
fact that all administrative remedies provided in this article
have not been exhausted or invoked against the person or persons
against whom such relief is sought.
In any action brought pursuant to the provisions of section
six or of this section, the state, or any agency of the state
which prevails, may be awarded costs and reasonable attorney'sfees.
§22-5-8. Emergencies.
Whenever air pollution conditions in any area of the state
become such as, in the opinion of the director, to create an
emergency and to require immediate action for the protection of
the public health, the director may, with the written approval of
the governor, so find and enter such order as it deems necessary
to reduce or prevent the emission of air pollutants substantially
contributing to such conditions. In any such order the director
shall also fix a time, not later than twenty-four hours
thereafter, and place for a hearing to be held before it for the
purpose of investigating and determining the factors causing or
contributing to such conditions. A true copy of any such order
shall be served upon persons whose interests are directly
prejudiced thereby in the same manner as a summons in a civil
action may be served, and a true copy of such order shall also be
posted on the front door of the courthouse of the county in which
the alleged conditions originated. All persons whose interests
are prejudiced or affected in any manner by any such order shall
have the right to appear in person or by counsel at the hearing
and to present evidence relevant to the subject of the hearing.
Within twenty-four hours after completion of the hearing the
director shall affirm, modify or set aside said order in
accordance and consistent with the evidence adduced. Any person
aggrieved by such action of the director may thereafter apply by
petition to the circuit court of the county for a review of thedirector's action. The circuit court shall forthwith fix a time
for hearing de novo upon the petition and shall, after such
hearing, by order entered of record, affirm, modify or set aside
in whole or in part the order and action of the director. Any
person whose interests shall have been substantially affected by
the final order of the circuit court may appeal the same to the
supreme court of appeals in the manner prescribed by law.
§22-5-9. Powers reserved to secretary of the department of
health and human resources, commissioner of bureau of public
health, local health boards and political subdivisions;
conflicting statutes repealed.
Nothing in this article affects or limits the powers or
duties heretofore conferred by the provisions of chapter sixteen
of this code upon the the secretary of the department of health
and human resources, the commissioner of the bureau of public
health, county health boards, county health officers, municipal
health boards, municipal health officers, combined boards of
health or any other health agency or political subdivision of
this state except insofar as such powers and duties might
otherwise apply to the control, reduction or abatement of air
pollution. All existing statutes or parts of statutes are, to
the extent of their inconsistencies with the provisions of this
article and to the extent that they might otherwise apply to the
control, reduction or abatement of air pollution, hereby
repealed:
Provided, That no ordinance previously adopted by any
municipality relating to the control, reduction or abatement ofair pollution is repealed by this article.
§22-5-10. Records, reports, data or information;
confidentiality; proceedings upon request to inspect or
copy.
All air quality data, emission data, permits, compliance
schedules, orders of the director, board orders and any other
information required by a federal implementation program (all for
convenience hereinafter referred to in this section as "records,
reports, data or information") obtained under this article shall
be available to the public, except that upon a showing
satisfactory to the director, by any person, that records,
reports, data or information or any particular part thereof, to
which the director has access under this article if made public,
would divulge methods or processes entitled to protection as
trade secrets of such person, the director shall consider such
records, reports, data or information or such particular portion
thereof confidential:
Provided, That such confidentiality does
not apply to the types and amounts of air pollutants discharged
and that such records, reports, data or information may be
disclosed to other officers, employees or authorized
representatives of the state or of the federal environment
protection agency concerned with enforcing this article, the
federal Clean Air Act, as amended, or the federal Resource
Conservation and Recovery Act, as amended, when relevant to any
official proceedings thereunder:
Provided, however, That such
officers, employees or authorized representatives of the state orfederal environmental protection agency protect such records,
reports, data or information to the same degree required of the
director by this section. The director shall promulgate
legislative rules regarding the protection of records, reports,
data or information, or trade secrets, as required by this
section.
All requests to inspect or copy documents must state with
reasonable specificity the documents or type of documents sought
to be inspected or copied. Within five business days of the
receipt of such a request, the director or his or her designate
shall: (a) Advise the person making such request of the time and
place at which the person may inspect and copy the documents; or
(b) deny the request, stating in writing the reasons for such
denial. For purposes of judicial appeal, a written denial by the
director shall be deemed an exhaustion of administrative
remedies. Any person whose request for information is denied in
whole or in part may appeal from such denial by filing with the
director a notice of appeal. Such notice shall be filed within
thirty days from the date the request for information was denied,
and shall be signed by the person whose request was denied or the
person's attorney. The appeal shall be taken to the circuit
court of Kanawha county, where it shall be heard without a jury.
The scope of review is limited to the question of whether the
records, reports, data or other information, or any particular
part thereof (other than emission data), sought to be inspected
or copied, would, if made public, divulge methods or processesentitled to protection as trade secrets. The said court shall
make findings of fact and conclusions of law based upon the
evidence and testimony. The director, the person whose request
was denied, or any other person whose interest has been
substantially affected by the final order of the circuit court
may appeal to the supreme court of appeals in the manner
prescribed by law.
§22-5-11. Construction, modification or relocation permits
required for stationary sources of air pollutants.
No person shall construct, modify or relocate any stationary
source of air pollutants without first obtaining a construction,
modification or relocation permit as provided in this section.
The director shall by rule specify the class or categories
of stationary sources to which this section applies. Application
for permits shall be made upon such form, in such manner, and
within such time as the rule prescribes and shall include such
information, as in the judgment of the director, will enable him
or her to determine whether such source will be so designed as to
operate in conformance with the provisions of this article or any
rules of the director.
The director shall, within a reasonable time not to exceed
twelve months for major sources, as defined by the director, and
six months for all other sources after the receipt of a complete
application, issue such permit unless he or she determines that
the proposed construction, modification or relocation will not be
in accordance with this article or rules promulgated thereunder,in which case the director shall issue an order for the
prevention of such construction, modification or relocation. For
the purposes of this section, a modification is deemed to be any
physical change in, or change in the method of operation of, a
stationary source which increases the amount of any air pollutant
discharged by such source above a de minimis level set by the
director.
§22-5-12. Operating permits required for stationary sources of
air pollution.
No person may operate a stationary source of air pollutants
without first obtaining an operating permit as provided in this
section. The director shall promulgate legislative rules, in
accordance with chapter twenty-nine-a of this code, which specify
classes or categories of stationary sources which are required to
obtain an operating permit. The legislative rule shall provide
for the form and content of the application procedure including
time limitations for obtaining the required permits. Any person
who has filed a timely and complete application for a permit or
renewal thereof required by this section, and who is abiding by
the requirements of this article and the rules promulgated
pursuant thereto is in compliance with the requirements of this
article and any rule promulgated thereunder until a permit is
issued or denied. Any legislative rule promulgated pursuant to
the authority granted by this section shall be equivalent to and
consistent with rules and regulations adopted by the
administrator of United States environmental protection agencypursuant to Title IV and Title V of the Clean Air Act Amendments
of 1990, 42 U.S.C §7651 et seq. and 42 U.S.C. §7661 et seq.,
respectively:
Provided, That such legislative rule may deviate
from the federal rules and regulations where a deviation is
appropriate to implement the policy and purpose of this article
taking into account such factors unique to West Virginia.
§22-5-13. Consolidation of permits.
For permits required by sections eleven and twelve of this
article, the director may incorporate the required permits with
an existing permit or consolidate the required permits into a
single permit.
§22-5-14. Administrative review of permit actions.
Any person whose interest may be affected, including, but
not necessarily limited to the applicant and any person who
participated in the public comment process, by a permit issued,
modified or denied by the director may appeal such action of the
director to the air quality board pursuant to article one,
chapter twenty-two-b of this code.
§22-5-15. Motor vehicle pollution, inspection and maintenance.
(a) As the state of knowledge and technology relating to the
control of emissions from motor vehicles may permit or make
appropriate, and in furtherance of the purposes of this article,
the director may provide by legislative rule for the control of
emissions from motor vehicles. Such legislative rule may
prescribe requirements for the installation and use of equipment
designed to reduce or eliminate emissions and for the propermaintenance of such equipment and of vehicles. Any legislative
rule pursuant to this section shall be consistent with provisions
of federal law, if any, relating to control of emissions from the
vehicles concerned. The director shall not require, as a
condition precedent to the initial sale of a vehicle or vehicular
equipment, the inspection, certification or other approval of any
feature or equipment designed for the control of emissions from
motor vehicles, if such feature or equipment has been certified,
approved, or otherwise authorized pursuant to federal law.
(b) Except as permitted or authorized by law or legislative
rule, no person shall fail to maintain in good working order or
remove, dismantle, or otherwise cause to be inoperative any
equipment or feature constituting an operational element of the
air pollution control system or mechanism of a motor vehicle
required by rules of the director to be maintained in or on the
vehicle. Any such failure to maintain in good working order or
removal, dismantling, or causing of inoperability subjects the
owner or operator to suspension or cancellation of the
registration for the vehicle by the department of transportation,
division of motor vehicles. The vehicle is not thereafter
eligible for registration until all parts and equipment
constituting operational elements of the motor vehicle have been
restored, replaced or repaired and are in good working order.
(c) The department of transportation, division of motor
vehicles, department of administration, information and
communication services division, and the department of publicsafety shall make available technical information and records to
the director to implement the legislative rule regarding motor
vehicle pollution, inspection and maintenance. The director
shall promulgate a legislative rule establishing motor vehicle
pollution, inspection and maintenance standards and imposing an
inspection fee at a rate sufficient to implement the motor
vehicle inspection program.
(d) The director shall promulgate a legislative rule
requiring maintenance of features of equipment in or on motor
vehicles for the purpose of controlling emissions therefrom, and
no motor vehicle may be issued a division of motor vehicles
registration certificate, or the existing registration
certificate shall be revoked, unless the motor vehicle has been
found to be in compliance with the director's legislative rule.
(e) The remedies and penalties provided in this section and
section one, article three, chapter seventeen-a of this code,
apply to violations hereof, and the provisions of sections six or
seven of this article do not apply thereto.
(f) As used in this section "motor vehicle" has the same
meaning as in chapter seventeen-c of this code.
§22-5-16. Small business environmental compliance assistance
program, compliance advisory panel.
The secretary of the department of commerce, labor, and
environmental resources shall establish a small business
stationary source technical and environmental compliance
assistance program which meets the requirements of Title V of theClean Air Act Amendments of 1990, 42 U.S.C. §7661 et seq. A
compliance advisory panel composed of seven members appointed as
follows shall be created to periodically review the effectiveness
and results of this assistance program:
(a) Two members who are not owners, nor representatives of
owners, of small business stationary sources, selected by the
governor to represent the general public;
(b) One member selected by the speaker of the House of
Delegates who is an owner or who represents owners of small
business stationary sources;
(c) One member selected by the minority leader of the House
of Delegates who is an owner or who represents owners of small
business stationary sources;
(d) One member selected by the president of the Senate who
is an owner or who represents owners of small business stationary
sources;
(e) One member selected by the minority leader of the Senate
who is an owner or who represents owners of small business
stationary sources; and
(f) One member selected by the director to represent the
director.
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS;
ADMINISTRATION; ENFORCEMENT.
§22-6-1. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Casing" means a string or strings of pipe commonly
placed in wells drilled for natural gas or petroleum or both;
(b) "Cement" means hydraulic cement properly mixed with
water;
(c) "Chair" means the chair of the West Virginia shallow gas
well review board as provided for in section four, article eight,
chapter twenty-two-c of this code;
(d) "Coal operator" means any person or persons, firm,
partnership, partnership association or corporation that proposes
to or does operate a coal mine;
(e) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in
thickness, unless a seam of less thickness is being commercially
worked, or can in the judgment of the department foreseeably be
commercially worked and will require protection if wells are
drilled through it;
(f) "Director" means the director of the division of
environmental protection as established in article one of this
chapter or such other person as the director has delegated
authority or duties to pursuant to sections six or eight, article
one of this chapter;
(g) "Deep well" means any well other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(h) "Expanding cement" means any cement approved by the
office of oil and gas which expands during the hardening process,including, but not limited to, regular oil field cements with the
proper additives;
(i) "Facility" means any facility utilized in the oil and
gas industry in this state and specifically named or referred to
in this article or in article eight or nine of this chapter,
other than a well or well site;
(j) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in this section;
(k) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoirs;
(l) "Owner" when used with reference to any well, shall
include any person or persons, firm, partnership, partnership
association or corporation that owns, manages, operates, controls
or possesses such well as principal, or as lessee or contractor,
employee or agent of such principal;
(m) "Owner" when used with reference to any coal seam, shall
include any person or persons who own, lease or operate such coal
seam;
(n) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(o) "Plat" means a map, drawing or print showing the
location of a well or wells as herein defined;
(p) "Review board" means the West Virginia shallow gas well
review board as provided for in section four, article eight,
chapter twenty-two-c of this code;
(q) "Safe mining through of a well" means the mining of coal
in a workable coal bed up to a well which penetrates such
workable coal bed and through such well so that the casing or
plug in the well bore where the well penetrates the workable coal
bed is severed;
(r) "Shallow well" means any gas well drilled and completed
in a formation above the top of the uppermost member of the
"Onondaga Group":
Provided, That in drilling a shallow well the
operator may penetrate into the "Onondaga Group" to a reasonable
depth, not in excess of twenty feet, in order to allow for
logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(s) "Stimulate" means any action taken by a well operator to
increase the inherent productivity of an oil or gas well,
including, but not limited to, fracturing, shooting or acidizing,
but excluding cleaning out, bailing or workover operations;
(t) "Waste" means: (i) Physical waste, as the term is
generally understood in the oil and gas industry; (ii) the
locating, drilling, equipping, operating or producing of any oil
or gas well in a manner that causes, or tends to cause asubstantial reduction in the quantity of oil or gas ultimately
recoverable from a pool under prudent and proper operations, or
that causes or tends to cause a substantial or unnecessary or
excessive surface loss of oil or gas; or (iii) the drilling of
more deep wells than are reasonably required to recover
efficiently and economically the maximum amount of oil and gas
from a pool; (iv) substantially inefficient, excessive or
improper use, or the substantially unnecessary dissipation of,
reservoir energy, it being understood that nothing in this
chapter shall be construed to authorize any agency of the state
to impose mandatory spacing of shallow wells except for the
provisions of section eight, article nine, chapter twenty-two-c
this code and the provisions of article eight of said chapter;
(v) inefficient storing of oil or gas:
Provided, That storage in
accordance with a certificate of public convenience issued by the
federal energy regulatory commission shall be conclusively
presumed to be efficient; and (vi) other underground or surface
waste in the production or storage of oil, gas or condensate,
however caused. Waste does not include gas vented or released
from any mine areas as defined in section two, article one,
chapter twenty-two-a of this code or from adjacent coal seams
which are the subject of a current permit issued under article
two of chapter twenty-two-a of this code:
Provided, however,
That nothing in this exclusion is intended to address ownership
of the gas;
(u) "Well" means any shaft or hole sunk, drilled, bored ordug into the earth or into underground strata for the extraction
or injection or placement of any liquid or gas, or any shaft or
hole sunk or used in conjunction with such extraction or
injection or placement. The term "well" does not include any
shaft or hole sunk, drilled, bored or dug into the earth for the
sole purpose of core drilling or pumping or extracting therefrom
potable, fresh or usable water for household, domestic,
industrial, agricultural or public use;
(v) "Well work" means the drilling, redrilling, deepening,
stimulating, pressuring by injection of any fluid, converting
from one type of well to another, combining or physically
changing to allow the migration of fluid from one formation to
another or plugging or replugging of any well;
(w) "Well operator" or "operator" means any person or
persons, firm, partnership, partnership association or
corporation that proposes to or does locate, drill, operate or
abandon any well as herein defined;
(x) "Pollutant" shall have the same meaning as provided in
subsection (17), section three, article eleven of this chapter;
and
(y) "Waters of this state" shall have the same meaning as
the term "waters" as provided in subsection (23), section three,
article eleven of this chapter.
§22-6-2. Director -- Powers and duties generally; division
records open to public; inspectors.
(a) The director shall have as his or her duty thesupervision of the execution and enforcement of matters related
to oil and gas set out in this article and in articles eight and
nine of this chapter.
(b) The director is authorized to enact rules necessary to
effectuate the above stated purposes.
(c) The director shall have full charge of the oil and gas
matters set out in this article and in articles eight and nine of
this chapter. In addition to all other powers and duties
conferred upon him, the director shall have the power and duty
to:
(1) Supervise and direct the activities of the office of oil
and gas and see that the purposes set forth in subsections (a)
and (b) of this section are carried out;
(2) Employ a supervising oil and gas inspector and oil and
gas inspectors;
(3) Supervise and direct such oil and gas inspectors and
supervising inspector in the performance of their duties;
(4) Suspend for good cause any oil and gas inspector or
supervising inspector without compensation for a period not
exceeding thirty days in any calendar year;
(5) Prepare report forms to be used by oil and gas
inspectors or the supervising inspector in making their findings,
orders and notices, upon inspections made in accordance with this
article and articles seven, eight, nine and ten of this chapter;
(6) Employ a hearing officer and such clerks, stenographers
and other employees, as may be necessary to carry out his dutiesand the purposes of the office of oil and gas and fix their
compensation;
(7) Hear and determine applications made by owners, well
operators and coal operators for the annulment or revision of
orders made by oil and gas inspectors or the supervising
inspector, and to make inspections, in accordance with the
provisions of this article and articles eight and nine of this
chapter;
(8) Cause a properly indexed permanent and public record to
be kept of all inspections made by the director or by oil and gas
inspectors or the supervising inspector;
(9) Conduct such research and studies as the director shall
deem necessary to aid in protecting the health and safety of
persons employed within or at potential or existing oil or gas
production fields within this state, to improve drilling and
production methods and to provide for the more efficient
protection and preservation of oil and gas-bearing rock strata
and property used in connection therewith;
(10) Collect a permit fee of two hundred fifty dollars for
each permit application filed:
Provided, That no permit
application fee shall be required when an application is
submitted solely for the plugging or replugging of a well. All
application fees required hereunder shall be in addition to any
other fees required by the provisions of this article;
(11) Perform all other duties which are expressly imposed
upon the director by the provisions of this chapter;
(12) Perform all duties as the permit issuing authority for
the state in all matters pertaining to the exploration,
development, production, storage and recovery of this state's oil
and gas;
(13) Adopt rules with respect to the issuance, denial,
retention, suspension or revocation of permits, authorizations
and requirements of this chapter, which rules shall assure that
the rules, permits and authorizations issued by the director are
adequate to satisfy the purposes of this article and articles
seven, eight, nine and ten of this chapter particularly with
respect to the consolidation of the various state and federal
programs which place permitting requirements on the exploration,
development, production, storage and recovery of this state's oil
and gas:
Provided, That notwithstanding any provisions of this
article and articles seven, eight, nine and ten of this chapter
to the contrary, the environmental quality board shall have the
sole authority pursuant to section three, article three, chapter
twenty-two-b to promulgate rules setting standards of water
quality applicable to waters of the state; and
(14) Perform such acts as may be necessary or appropriate to
secure to this state the benefits of federal legislation
establishing programs relating to the exploration, development,
production, storage and recovery of this state's oil and gas,
which programs are assumable by the state.
(d) The director shall have authority to visit and inspect
any well or well site and any other oil or gas facility in thisstate and may call for the assistance of any oil and gas
inspector or inspectors or supervising inspector whenever such
assistance is necessary in the inspection of any such well or
well site or any other oil or gas facility. Similarly, all oil
and gas inspectors and the supervising inspector shall have
authority to visit and inspect any well or well site and any
other oil or gas facility in this state. Any well operator, coal
operator operating coal seams beneath the tract of land, or the
coal seam owner or lessee, if any, if said owner or lessee is not
yet operating said coal seams beneath said tract of land may
request the director to have an immediate inspection made. The
operator or owner of every well or well site or any other oil or
gas facility shall cooperate with the director, all oil and gas
inspectors and the supervising inspector in making inspections or
obtaining information.
(e) Oil and gas inspectors shall devote their full time and
undivided attention to the performance of their duties, and they
shall be responsible for the inspection of all wells or well
sites or other oil or gas facilities in their respective
districts as often as may be required in the performance of their
duties.
(f) All records of the office shall be open to the public.
§22-6-3. Findings and orders of inspectors concerning
violations; determination of reasonable time for abatement;
extensions of time for abatement; special inspections;
notice of findings and orders.
(a) If an oil and gas inspector, upon making an inspection
of a well or well site or any other oil or gas facility, finds
that any provision of this article is being violated, the
inspector shall also find whether or not an imminent danger to
persons exists, or whether or not there exists an imminent danger
that a fresh water source or supply will be contaminated or lost.
If the inspector finds that such imminent danger exists, an order
requiring the operator of such well or well site or other oil or
gas facility to cease further operations until such imminent
danger has been abated shall be issued by the inspector. If the
inspector finds that no such imminent danger exists, the
inspector shall determine what would be a reasonable period of
time within which such violation should be totally abated. Such
findings shall contain reference to the provisions of this
article which the inspector finds are being violated, and a
detailed description of the conditions which cause and constitute
such violation.
(b) The period of time so found by such oil and gas
inspector to be a reasonable period of time shall not exceed
seven days. Such period may be extended by such inspector, or by
any other oil and gas inspector duly authorized by the director,
from time to time, for good cause, but not to exceed a total of
thirty days, upon the making of a special inspection to ascertain
whether or not such violation has been totally abated:
Provided,
That such thirty day period may be extended beyond thirty days by
such inspectors where abatement is shown to be incapable ofaccomplishment because of circumstances or conditions beyond the
control of the well operator. The director shall cause a special
inspection to be made: (A) Whenever an operator of a well or
well site or any other oil or gas facility, prior to the
expiration of any such period of time, requests the director to
cause a special inspection to be made at such well or well site
or any other oil or gas facility; and (B) upon expiration of such
period of time as originally fixed or as extended, unless the
director is satisfied that the violation has been abated. Upon
making such special inspection, such oil and gas inspector shall
determine whether or not such violation has been totally abated.
If the inspector determines that such violation has not been
totally abated, the inspector shall determine whether or not such
period of time as originally fixed, or as so fixed and extended,
should be extended. If the inspector determines that such period
of time should be extended, the inspector shall determine what a
reasonable extension would be. If the inspector determines that
such violation has not been totally abated, and if such period of
time as originally fixed, or as so fixed and extended, has then
expired, and if the inspector also determines that such period of
time should not be further extended, the inspector shall
thereupon make an order requiring the operator of such well or
well site or other oil or gas facility to cease further
operations of such well, well site or facility, as the case may
be. Such findings and order shall contain reference to the
specific provisions of this article which are being violated.
(c) Notice of each finding and order made under this section
shall promptly be given to the operator of the well or well site
or other oil or gas facility to which it pertains by the person
making such finding or order.
(d) No order shall be issued under the authority of this
section which is not expressly authorized herein.
§22-6-4. Review of findings and orders by director; special
inspection; annulment, revision, etc., of order; notice.
(a) Any well operator, complaining coal operator, owner or
lessee, if any, aggrieved by findings or an order made by an oil
or gas inspector pursuant to section three of this article, may
within fifteen days apply to the director for annulment or
revision of such order. Upon receipt of such application the
director shall make a special inspection of the well, well site
or other oil and gas facility affected by such order, or cause
two duly authorized oil and gas inspectors, other than the oil
and gas inspector who made such order or the supervising
inspector and one duly authorized oil and gas inspector other
than the oil and gas inspector who made such order, to make such
inspection of such well, or well site or other oil or gas
facility and to report thereon to them. Upon making such special
inspection , or upon receiving the report of such special
inspection, as the case may be, the director shall make an order
which shall include the director's findings and shall annul,
revise or affirm the order of the oil and gas inspector.
(b) The director shall cause notice of each finding andorder made under this section to be given promptly to the
operator of the well, well site or other oil or gas facility to
which such findings and order pertain, and the complainant under
section three, if any.
(c) At any time while an order made pursuant to section
three of this article is in effect, the operator of the well,
well site or other oil or gas facility affected by such order may
apply to the director for annulment or revision of such order.
The director shall thereupon proceed to act upon such application
in the manner provided in this section.
(d) In view of the urgent need for prompt decision of
matters submitted to the director under this article, all actions
which the director, or oil and gas inspectors or the supervising
inspector are required to take under this article, shall be taken
as rapidly as practicable, consistent with adequate consideration
of the issues involved.
§22-6-5. Requirements for findings, orders and notices; posting
of findings and orders; judicial review of final orders of
director.
(a) All findings and orders made pursuant to section three
or four of this article, and all notices required to be given of
the making of such findings and orders, shall be in writing. All
such findings and orders shall be signed by the person making
them, and all such notices shall be signed by the person charged
with the duty of giving the notice. All such notices shall
contain a copy of the findings and orders referred to therein.
(b) Notice of any finding or order required by section three
or four of this article to be given to an operator shall be given
by causing such notice, addressed to the operator of the well,
well site or other oil and/or gas facility to which such finding
or order pertains, to be delivered to such operator by causing a
copy thereof to be sent by registered mail to the permanent
address of such operator as filed with the division and by
causing a copy thereof to be posted upon the drilling rig or
other equipment at the well, well site or other oil and/or gas
facility, as the case may be. The requirement of this article
that a notice shall be "addressed to the operator of the well,
well site or other oil and/or gas facility to which such finding
or order pertains", shall not require that the name of the
operator for whom it is intended shall be specifically set out in
such address. Addressing such notice to "Operator of
______________," specifying the well, well site or other oil
and/or gas facility sufficiently to identify it, shall satisfy
such requirement.
(c) Any well operator, complaining coal operator, owner or
lessee, if any, adversely affected by a final order issued by the
director under section four of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code
shall apply to and govern such judicial review with like effect
as if the provisions of said section four were set forth in
extenso in this section.
(d) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.(e) Legal counsel and
services for the director in all appeal proceedings in any
circuit court and the supreme court of appeals shall be provided
by the attorney general or his or her assistants and in any
circuit court by the prosecuting attorney of the county as well,
all without additional compensation. The director, with written
approval of the attorney general, may employ special counsel to
represent the director at any such appeal proceedings.
§22-6-6. Permit required for well work; permit fee; application;
soil erosion control plan.
(a) It is unlawful for any person to commence any well work,
including site preparation work which involves any disturbance of
land, without first securing from the director a well work
permit. An application may propose and a permit may approve two
or more activities defined as well work.
(b) The application for a well work permit shall be
accompanied by applicable bond as prescribed by section twelve,
fourteen or twenty-three of this article, and the applicable plat
required by section twelve or fourteen of this article.
(c) Every permit application filed under this section shall
be verified and shall contain the following:
(1) The names and addresses of: (i) The well operator; (ii)
the agent required to be designated under subsection (e) of thissection; and (iii) every person whom the applicant must notify
under any section of this article together with a certification
and evidence that a copy of the application and all other
required documentation has been delivered to all such persons;
(2) The name and address of every coal operator operating
coal seams under the tract of land on which the well is or may be
located, and the coal seam owner of record and lessee of record
required to be given notice by section twelve, if any, if said
owner or lessee is not yet operating said coal seams;
(3) The number of the well or such other identification as
the director may require;
(4) The type of well;
(5) The well work for which a permit is requested;
(6) The approximate depth to which the well is to be drilled
or deepened, or the actual depth if the well has been drilled;
(7) Any permit application fee required by law;
(8) If the proposed well work will require casing or tubing
to be set, the entire casing program for the well, including the
size of each string of pipe, the starting point and depth to
which each string is to be set, and the extent to which each such
string is to be cemented;
(9) If the proposed well work is to convert an oil well or
a combination well or to drill a new well for the purpose of
introducing pressure for the recovery of oil as provided in
section twenty-five of this article, specifications in accordance
with the data requirements of section fourteen of this article;
(10) If the proposed well work is to plug or replug the
well: (i) Specifications in accordance with the data
requirements of section twenty-three of this article; (ii) a copy
of all logs in the operator's possession as the director may
require; and (iii) a work order showing in detail the proposed
manner of plugging or unplugging the well, in order that a
representative of the director and any interested persons may be
present when the work is done. In the event of an application to
drill, redrill or deepen a well, if the well work is unsuccessful
so that the well must be plugged and abandoned, and if the well
is one on which the well work has been continuously progressing
pursuant to a permit, the operator may proceed to plug the well
as soon as the operator has obtained the verbal permission of the
director or the director's designated representative to plug and
abandon the well, except that the operator shall make reasonable
effort to notify as soon as practicable the surface owner and the
coal owner, if any, of the land at the well location, and shall
also timely file the plugging affidavit required by section
twenty-three of this article;
(11) If the proposed well work is to stimulate an oil or gas
well, specifications in accordance with the data requirements of
section thirteen of this article;
(12) The erosion and sediment control plan required under
subsection (d) of this section for applications for permits to
drill; and
(13) Any other relevant information which the director mayrequire by rule.
(d) An erosion and sediment control plan shall accompany
each application for a well work permit except for a well work
permit to plug or replug any well. Such plan shall contain
methods of stabilization and drainage, including a map of the
project area indicating the amount of acreage disturbed. The
erosion and sediment control plan shall meet the minimum
requirements of the West Virginia erosion and sediment control
manual as adopted and from time to time amended by the division,
in consultation with the several soil conservation districts
pursuant to the control program established in this state through
section 208 of the federal Water Pollution Control Act Amendments
of 1972 (33 U.S.C.1288). The erosion and sediment control plan
shall become part of the terms and conditions of a well work
permit, except for a well work permit to plug or replug any well,
which is issued and the provisions of the plan shall be carried
out where applicable in the operation. The erosion and sediment
control plan shall set out the proposed method of reclamation
which shall comply with the requirements of section thirty of
this article.
(e) The well operator named in such application shall
designate the name and address of an agent for such operator who
shall be the attorney-in-fact for the operator and who shall be
a resident of the state of West Virginia upon whom notices,
orders or other communications issued pursuant to this article or
article eleven of this chapter, may be served, and upon whomprocess may be served. Every well operator required to designate
an agent under this section shall within five days after the
termination of such designation notify the director of such
termination and designate a new agent.
(f) The well owner or operator shall install the permit
number as issued by the director in a legible and permanent
manner to the well upon completion of any permitted work. The
dimensions, specifications and manner of installation shall be in
accordance with the rules of the director.
(g) The director may waive the requirements of this section
and sections nine, ten and eleven of this article in any
emergency situation, if the director deems such action necessary.
In such case the director may issue an emergency permit which
would be effective for not more than thirty days, but which would
be subject to reissuance by the director.
(h) The director shall deny the issuance of a permit if the
director determines that the applicant has committed a
substantial violation of a previously issued permit, including
the erosion and sediment control plan, or a substantial violation
of one or more of the rules promulgated hereunder, and has failed
to abate or seek review of the violation within the time
prescribed by the director pursuant to the provisions of sections
three and four of this article and the rules promulgated
hereunder, which time may not be unreasonable:
Provided, That in
the event that the director does find that a substantial
violation has occurred and that the operator has failed to abateor seek review of the violation in the time prescribed, the
director may suspend the permit on which said violation exists,
after which suspension the operator shall forthwith cease all
well work being conducted under the permit:
Provided, however,
That the director may reinstate the permit without further
notice, at which time the well work may be continued. The
director shall make written findings of any such determination
and may enforce the same in the circuit courts of this state and
the operator may appeal such suspension pursuant to the
provisions of section forty of this article. The director shall
make a written finding of any such determination.
(i) Any person who violates any provision of this section
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars, or be
imprisoned in the county jail not more than twelve months, or
both fined and imprisoned.
§22-6-7. Water pollution control permits; powers and duties of
the director; penalties.
(a) In addition to a permit for well work, the director,
after public notice and an opportunity for public hearings, may
either issue a separate permit, general permit or a permit
consolidated with the well work permit for the discharge or
disposition of any pollutant or combination of pollutants into
waters of this state upon condition that such discharge or
disposition meets or will meet all applicable state and federal
water quality standards and effluent limitations and all otherrequirements of the director.
(b) It shall be unlawful for any person conducting
activities which are subject to the requirements of this article,
unless that person holds a water pollution control permit
therefor from the director, which is in full force and effect to:
(1) Allow pollutants or the effluent therefrom, produced by
or emanating from any point source, to flow into the water of
this state;
(2) Make, cause or permit to be made any outlet, or
substantially enlarge or add to the load of any existing outlet,
for the discharge of pollutants or the effluent therefrom, into
the waters of this state;
(3) Acquire, construct, install, modify or operate a
disposal system or part thereof for the direct or indirect
discharge or deposit of treated or untreated pollutants or the
effluent therefrom, into the waters of this state, or any
extension to or addition to such disposal system;
(4) Increase in volume or concentration any pollutants in
excess of the discharges or disposition specified or permitted
under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration
of any pollutants discharging or flowing into the waters of the
state; and
(6) Operate any disposal well for the injection or
reinjection underground of any pollutant, including, but notlimited to, liquids or gasses, or convert any well into such a
disposal well or plug or abandon any such disposal well.
(c) Notwithstanding any provision of this article or
articles seven, eight, nine or ten of this chapter to the
contrary, the director shall have the same powers and duties
relating to inspection and enforcement as those granted under
article eleven of this chapter in connection with the issuance of
any water pollution control permit or any person required to have
such permit.
(d) Any person who violates any provision of this section,
any order issued under this section or any permit issued pursuant
to this section or any rule of the director relating to water
pollution or who willfully or negligently violates any provision
of this section or any permit issued pursuant to this section or
any rule or order of the director relating to water pollution or
who fails or refuses to apply for and obtain a permit or who
intentionally misrepresents any material fact in an application,
record, report, plan or other document files or required to be
maintained under this section shall be subject to the same
penalties for such violations as are provided for in sections
twenty-two and twenty-four, article eleven of this chapter:
Provided, That the provisions of section twenty-six, article
eleven of this chapter relating to exceptions to criminal
liability shall also apply.
All applications for injunction filed pursuant to section
twenty-two, article eleven of this chapter shall take priority onthe docket of the circuit court in which pending, and shall take
precedence over all other civil cases.
(e) Any water pollution control permit issued pursuant to
this section or any order issued in connection with such permit
for the purpose of implementing the "national pollutant discharge
elimination system" established under the federal Clean Water Act
shall be issued by the chief of the office of water resources of
the division in consultation with the chief of the office of oil
and gas of the division and shall be appealable to the
environmental quality board pursuant to the provisions of section
twenty-five, article eleven of this chapter and section seven,
article one, chapter twenty-two-b of this code.
§22-6-8. Permits not to be on flat well royalty leases;
legislative findings and declarations; permit requirements.
(a) The Legislature hereby finds and declares:
(1) That a significant portion of the oil and gas underlying
this state is subject to development pursuant to leases or other
continuing contractual agreements wherein the owners of such oil
and gas are paid upon a royalty or rental basis known in the
industry as the annual flat well royalty basis, in which the
royalty is based solely on the existence of a producing well, and
thus is not inherently related to the volume of the oil and gas
produced or marketed;
(2) That continued exploitation of the natural resources of
this state in exchange for such wholly inadequate compensation is
unfair, oppressive, works an unjust hardship on the owners of theoil and gas in place, and unreasonably deprives the economy of
the state of West Virginia of the just benefit of the natural
wealth of this state;
(3) That a great portion, if not all, of such leases or
other continuing contracts based upon or calling for an annual
flat well royalty, have been in existence for a great many years
and were entered into at a time when the techniques by which oil
and gas are currently extracted, produced or marketed, were not
known or contemplated by the parties, nor was it contemplated by
the parties that oil and gas would be recovered or extracted or
produced or marketed from the depths and horizons currently being
developed by the well operators; and
(4) That while being fully cognizant that the provisions of
section 10, article I of the United States constitution and of
section 4, article III of the constitution of West Virginia,
proscribe the enactment of any law impairing the obligation of a
contract, the Legislature further finds that it is a valid
exercise of the police powers of this state and in the interest
of the state of West Virginia and in furtherance of the welfare
of its citizens, to discourage as far as constitutionally
possible the production and marketing of oil and gas located in
this state under the type of leases or other continuing contracts
described above.
(b) In the light of the foregoing findings, the Legislature
hereby declares that it is the policy of this state, to the
extent possible, to prevent the extraction, production ormarketing of oil or gas under a lease or leases or other
continuing contract or contracts providing a flat well royalty or
any similar provisions for compensation to the owner of the oil
and gas in place, which is not inherently related to the volume
of oil or gas produced or marketed, and toward these ends, the
Legislature further declares that it is the obligation of this
state to prohibit the issuance of any permit required by it for
the development of oil or gas where the right to develop,
extract, produce or market the same is based upon such leases or
other continuing contractual agreements.
(c) In addition to any requirements contained in this
article with respect to the issuance of any permit required for
the drilling, redrilling, deepening, fracturing, stimulating,
pressuring, converting, combining or physically changing to allow
the migration of fluid from one formation to another, no such
permit shall be hereafter issued unless the lease or leases or
other continuing contract or contracts by which the right to
extract, produce or market the oil or gas is filed with the
application for such permit. In lieu of filing the lease or
leases or other continuing contract or contracts, the applicant
for a permit described herein may file the following:
(1) A brief description of the tract of land including the
district and county wherein the tract is located;
(2) The identification of all parties to all leases or other
continuing contractual agreements by which the right to extract,
produce or market the oil or gas is claimed;
(3) The book and page number wherein each such lease or
contract by which the right to extract, produce or market the oil
or gas is recorded; and
(4) A brief description of the royalty provisions of each
such lease or contract.
(d) Unless the provisions of subsection (e) of this section
are met, no such permit shall be hereafter issued for the
drilling of a new oil or gas well, or for the redrilling,
deepening, fracturing, stimulating, pressuring, converting,
combining or physically changing to allow the migration of fluid
from one formation to another, of an existing oil or gas
production well, where or if the right to extract, produce or
market the oil or gas is based upon a lease or leases or other
continuing contract or contracts providing for flat well royalty
or any similar provision for compensation to the owner of the oil
or gas in place which is not inherently related to the volume of
oil and gas so extracted, produced and marketed.
(e) To avoid the permit prohibition of subsection (d) of
this section, the applicant may file with such application an
affidavit which certifies that the affiant is authorized by the
owner of the working interest in the well to state that it shall
tender to the owner of the oil or gas in place not less than one
eighth of the total amount paid to or received by or allowed to
the owner of the working interest at the wellhead for the oil or
gas so extracted, produced or marketed before deducting the
amount to be paid to or set aside for the owner of the oil or gasin place, on all such oil or gas to be extracted, produced or
marketed from the well. If such affidavit be filed with such
application, then such application for permit shall be treated as
if such lease or leases or other continuing contract or contracts
comply with the provisions of this section.
(f) The owner of the oil or gas in place shall have a cause
of action to enforce the owner's rights established by this
section.
(g) The provisions of this section shall not affect or apply
to any lease or leases or other continuing contract or contracts
for the underground storage of gas or any well utilized in
connection therewith or otherwise subject to the provisions of
article nine of this chapter.
(h) The director shall enforce this requirement irrespective
of when the lease or other continuing contract was executed.
(i) The provisions of this section shall not adversely
affect any rights to free gas.
§22-6-9. Notice to property owners.
(a) No later than the filing date of the application, the
applicant for a permit for any well work shall deliver by
personal service or by certified mail, return receipt requested,
copies of the application, well plat and erosion and sediment
control plan required by section six of this article to each of
the following persons:
(1) The owners of record of the surface of the tract on
which the well is, or is to be located; and
(2) The owners of record of the surface tract or tracts
overlying the oil and gas leasehold being developed by the
proposed well work, if such surface tract is to be utilized for
roads or other land disturbance as described in the erosion and
sediment control plan submitted pursuant to section six of this
article.
(b) If more than three tenants in common or other co-owners
of interests described in subsection (a) of this section hold
interests in such lands, the applicant may serve the documents
required upon the person described in the records of the sheriff
required to be maintained pursuant to section eight, article one,
chapter eleven-a of this code, or publish in the county in which
the well is located or to be located a Class II legal
advertisement as described in section two, article three, chapter
fifty-nine of this code, containing such notice and information
as the director shall prescribe by rule, with the first
publication date being at least ten days prior to the filing of
the permit application:
Provided, That all owners occupying the
tracts where the well work is, or is proposed to be located at
the filing date of the permit application shall receive actual
service of the documents required by subsection (a) of this
section.
(c) Materials served upon persons described in subsections
(a) and (b) of this section shall contain a statement of the
methods and time limits for filing comments, who may file
comments and the name and address of the director for the purposeof filing comments and obtaining additional information and a
statement that such persons may request, at the time of
submitting comments, notice of the permit decision and a list of
persons qualified to test water as provided in this section.
(d) Any person entitled to submit comments shall also be
entitled to receive a copy of the permit as issued or a copy of
the order denying the permit if such person requests the receipt
thereof as a part of the comments concerning said permit
application.
(e) Persons entitled to notice may contact the district
office of the division to ascertain the names and location of
water testing laboratories in the area capable and qualified to
test water supplies in accordance with standard accepted methods.
In compiling such list of names the division shall consult with
the state bureau of public health and local health departments.
§22-6-10. Procedure for filing comments; certification of
notice.
(a) All persons described in subsections (a) and (b),
section nine of this article may file comments with the director
as to the location or construction of the applicant's proposed
well work within fifteen days after the application is filed with
the director.
(b) Prior to the issuance of any permit for well work, the
applicant shall certify to the director that the requirements of
section nine of this article have been completed by the
applicant. Such certification may be by affidavit of personalservice or the return receipt card, or other postal receipt for
certified mailing.
§22-6-11. Review of application; issuance of permit in the
absence of objections; copy of permits to county assessor.
The director shall review each application for a well work
permit and shall determine whether or not a permit shall be
issued.
No permit shall be issued less than fifteen days after the
filing date of the application for any well work except plugging
or replugging; and no permit for plugging or replugging shall be
issued less than five days after the filing date of the
application except a permit for plugging or replugging a dry
hole:
Provided, That if the applicant certifies that all persons
entitled to notice of the application under the provisions of
this article have been served in person or by certified mail,
return receipt requested, with a copy of the well work
application, including the erosion and sediment control plan, if
required, and the plat required by section six of this article,
and further files written statements of no objection by all such
persons, the director may issue the well work permit at any time.
The director may cause such inspections to be made of the
proposed well work location as to assure adequate review of the
application. The permit shall not be issued, or shall be
conditioned including conditions with respect to the location of
the well and access roads prior to issuance if the director
determines that:
(1) The proposed well work will constitute a hazard to the
safety of persons; or
(2) The plan for soil erosion and sediment control is not
adequate or effective; or
(3) Damage would occur to publicly owned lands or resources;
or
(4) The proposed well work fails to protect fresh water
sources or supplies.
The director shall promptly review all comments filed. If
after review of the application and all comments received, the
application for a well work permit is approved, and no timely
objection or comment has been filed with the director or made by
the director under the provisions of section fifteen, sixteen or
seventeen of this article, the permit shall be issued, with
conditions, if any. Nothing in this section shall be construed
to supersede the provisions of sections six, twelve, thirteen,
fourteen, fifteen, sixteen, and seventeen of this article.
The director shall mail a copy of the permit as issued or a
copy of the order denying a permit to any person who submitted
comments to the director concerning said permit and requested
such copy.
Upon the issuance of any permit pursuant to the provisions
of this article, the director shall transmit a copy of such
permit to the office of the assessor for the county in which the
well is located.
§22-6-12. Plats prerequisite to drilling or fracturing wells;
preparation and contents; notice and information furnished
to coal operators, owners or lessees; issuance of permits;
performance bonds or securities in lieu thereof; bond
forfeiture.
(a) Before drilling for oil or gas, or before fracturing or
stimulating a well on any tract of land, the well operator shall
have a plat prepared by a licensed land surveyor or registered
engineer showing the district and county in which the tract of
land is located, the name and acreage of the same, the names of
the owners of adjacent tracts, the proposed or actual location of
the well determined by survey, the courses and distances of such
location from two permanent points or landmarks on said tract and
the number to be given the well and the date of drilling
completion of a well when it is proposed that such well be
fractured and shall forward by registered or certified mail a
copy of the plat to the director. In the event the tract of land
on which the said well proposed to be drilled or fractured is
located is known to be underlaid with one or more coal seams,
copies of the plat shall be forwarded by registered or certified
mail to each and every coal operator operating said coal seams
beneath said tract of land, who has mapped the same and filed
such maps with the office of miners' health, safety and training
in accordance with chapter twenty-two-a of this code and the coal
seam owner of record and lessee of record, if any, if said owner
or lessee has recorded the declaration provided in section
thirty-six of this article, and if said owner or lessee is notyet operating said coal seams beneath said tract of land. With
each of such plats there shall be enclosed a notice (form for
which shall be furnished on request by the director) addressed to
the director and to each such coal operator, owner and lessee, if
any, at their respective addresses, informing them that such plat
and notice are being mailed to them respectively by registered or
certified mail, pursuant to the requirements of this article.
(b) If no objections are made, or are found by the director,
to such proposed location or proposed fracturing within fifteen
days from receipt of such plat and notice by the director, the
same shall be filed and become a permanent record of such
location or fracturing subject to inspection at any time by any
interested person, and the director may forthwith issue to the
well operator a permit reciting the filing of such plat, that no
objections have been made by the coal operators, owners and
lessees, if any, or found thereto by the director, and
authorizing the well operator to drill at such location, or to
fracture the well. Unless the director has objections to such
proposed location or proposed fracturing or stimulating, such
permit may be issued prior to the expiration of such fifteen-day
period upon the obtaining by the well operator of the consent in
writing of the coal operator or operators, owners and lessees, if
any, to whom copies of the plat and notice shall have been mailed
as herein required, and upon presentation of such written consent
to the director. The notice above provided for may be given to
the coal operator by delivering or mailing it by registered orcertified mail as above to any agent or superintendent in actual
charge of mines.
(c) A permit to drill, or to fracture or stimulate an oil or
gas well, shall not be issued unless the application therefor is
accompanied by a bond as provided in section twenty-six of this
article.
§22-6-13. Notice to coal operators, owners or lessees and
director of intention to fracture certain other wells;
contents of such notice; bond; permit required.
Before fracturing any well the well operator shall, by
registered or certified mail, forward a notice of intention to
fracture such well to the director and to each and every coal
operator operating coal seams beneath said tract of land, who has
mapped the same and filed such maps with the office of miners'
health, safety and training in accordance with chapter twenty-
two-a of this code, and the coal seam owner and lessee, if any,
if said owner of record or lessee of record has recorded the
declaration provided in section thirty-six of this article, and
if said owner or lessee is not yet operating said coal seams
beneath said tract of land.
The notice shall be addressed to the director and to each
such coal operator at their respective addresses, shall contain
the number of the drilling permit for such well and such other
information as may be required by the director to enable the
division and the coal operators to locate and identify such well
and shall inform them that such notice is being mailed to them,respectively, by registered or certified mail, pursuant to the
requirements of this article. The form for such notice of
intention shall be furnished on request by the director.
If no objections are made, or are found by the director to
such proposed fracturing within fifteen days from receipt of such
notice by the director, the same shall be filed and become a
permanent record of such fracturing, subject to inspection at any
time by any interested person, and the director shall forthwith
issue to the well operator a permit reciting the filing of such
notice, that no objections have been made by the coal operators,
or found thereto by the director, and authorizing the well
operator to fracture such well. Unless the director has
objections to such proposed fracturing, such permit shall be
issued prior to the expiration of such fifteen-day period upon
the obtaining by the well operator of the consent in writing of
the coal operator or operators, owners or lessees, if any, to
whom notice of intention to fracture shall have been mailed as
herein required, and upon presentation of such written consent to
the director. The notice above provided for may be given to the
coal operator by delivering or mailing it by registered or
certified mail as above to any agent or superintendent in actual
charge of mines.
§22-6-14. Plats prerequisite to introducing liquids or waste
into wells; preparation and contents; notice and information
furnished to coal operators, owners or lessees and director;
issuance of permits; performance bonds or security in lieu
thereof.
(a) Before drilling a well for the introduction of liquids
for the purposes provided for in section twenty-five of this
article or for the introduction of liquids for the disposal of
pollutants or the effluent therefrom on any tract of land, or
before converting an existing well for such purposes, the well
operator shall have a plat prepared by a registered engineer or
licensed land surveyor showing the district and county in which
the tract of land is located, the name and acreage of the same,
the names of the owners of all adjacent tracts, the proposed or
actual location of the well or wells determined by a survey, the
courses and distances of such location from two permanent points
of land marked on said tract and the number to be given to the
well, and shall forward by registered or certified mail the
original and one copy of the plat to the director. In addition,
the well operator shall provide the following information on the
plat or by way of attachment thereto to the director in the
manner and form prescribed by the director's rules : (1) The
location of all wells, abandoned or otherwise located within the
area to be affected; (2) where available, the casing records of
all such wells; (3) where available, the drilling log of all such
wells; (4) the maximum pressure to be introduced; (5) the
geological formation into which such liquid or pressure is to be
introduced; (6) a general description of the liquids to be
introduced; (7) the location of all water-bearing horizons above
and below the geological formation into which such pressure,liquid or waste is to be introduced; and (8) such other
information as the director by rule may require.
(b) In the event the tract of land on which said well
proposed to be drilled or converted for the purposes provided for
in this section is located is known to be underlaid with coal
seams, copies of the plat and all information required by this
section shall be forwarded by the operator by registered or
certified mail to each and every coal operator operating coal
seams beneath said tract of land, who has mapped the same and
filed such maps with the office of miners' health, safety and
training in accordance with chapter twenty-two-a of this code,
and the coal seam owner of record and lessee of record, if any,
if said owner or lessee has recorded the declaration provided in
section thirty-six of this article, and if said owner or lessee
is not yet operating said seams beneath said tract of land. With
each of such plats, there shall be enclosed a notice (form for
which shall be furnished on request by the director) addressed to
the director and to each such coal operator, owner or lessee, if
any, at their respective addresses, informing them that such plat
and notice are being mailed to them, respectively, by registered
or certified mail, pursuant to the requirements of this section.
(c) If no objections are made by any such coal operator,
owner or lessee, or thedirector such proposed drilling or
converting of the well or wells for the purposes provided for in
this section within thirty days from the receipt of such plat and
notice by the director, the same shall be filed and become apermanent record of such location or well, subject to inspection
at any time by any interested person, and the director may after
public notice and opportunity to comment, issue such permit
authorizing the well operator to drill at such location or
convert such existing well or wells for the purposes provided for
in this section. The notice above provided for may be given to
the coal operator by delivering or mailing it by registered or
certified mail as above to any agent or superintendent in actual
charge of the mines.
(d) A permit to drill a well or wells or convert an existing
well or wells for the purposes provided for in this section shall
not be issued until all of the bonding provisions required by the
provisions of section twelve of this article have been fully
complied with and all such bonding provisions shall apply to all
wells drilled or converted for the purposes provided for in this
section as if such wells had been drilled for the purposes
provided for in section twelve of this article, except that such
bonds shall be conditioned upon full compliance with all laws and
rules relating to the drilling of a well or the converting of an
existing well for the purposes provided for in said section
twenty-five, or introducing of liquids for the disposal of
pollutants including the redrilling, deepening, casing, plugging
or abandonment of all such wells.
§22-6-15. Objections to proposed drilling of deep wells and oil
wells; objections to fracturing; notices and hearings;
agreed locations or conditions; indication of changes on
plats,
etc.; issuance of permits.
(a) When a proposed deep well drilling site or oil well
drilling site or any site is above a seam or seams of coal, then
the coal operator operating said coal seams beneath the tract of
land, or the coal seam owner or lessee, if any, if said owner or
lessee is not yet operating said coal seams, may within fifteen
days from the receipt by the director of the plat and notice
required by section twelve of this article, or within fifteen
days from the receipt by the director of notice required by
section thirteen of this article, file objections in writing
(forms for which will be furnished by the director on request) to
such proposed drilling or fracturing with the director, setting
out therein as definitely as is reasonably possible the ground or
grounds on which such objections are based.
If any objection is filed, or if any objection is made by
the director, the director shall notify the well operator of the
character of the objections and by whom made and fix a time and
place, not less than fifteen days from the end of said fifteen-
day period, at which such objections will be considered of which
time and place the well operator and all objecting coal
operators, owners or lessees, if any, shall be given at least ten
days' written notice by the director, by registered or certified
mail, and summoned to appear. At the time and place so fixed the
well operator and the objecting coal operators, owners or
lessees, if any, or such of them as are present or represented,
shall proceed to consider the objections. In the case ofproposed drilling, such parties present or represented may agree
upon either the location as made or so moved as to satisfy all
objections and meet the approval of the director, and any change
in the original location so agreed upon and approved by the
director shall be indicated on said plat on file with the
director, and the distance and direction of the new location from
the original location shall be shown, and as so altered, the plat
shall be filed and become a permanent record, and in the case of
proposed fracturing, such parties present or represented may
agree upon conditions under which the well is to be fractured
which will protect life and property and which will satisfy all
objections and meet the approval of the director, at which time
the plat and notice required by section twelve or the notice
required by section thirteen, as the case may be, shall be filed
and become a permanent record. Whereupon the director shall
forthwith issue to the well operator a drilling or fracturing
permit, as the case may be, reciting the filing of the plat and
notice required by said section twelve, or the notice required by
said section thirteen, as the case may be, that at a hearing duly
held a location as shown on the plat or the conditions under
which the fracturing is to take place for the protection of life
and property were agreed upon and approved, and that the well
operator is authorized to drill at such location or to fracture
at the site shown on such plat, or to fracture the well
identified in the notice required by section thirteen, as the
case may be.
(b) In the event the well operator and the objecting coal
operators, owners or lessees, if any, or such as are present or
represented at such hearing are unable to agree upon a drilling
location, or upon a drilling location that meets the approval of
the director, then the director shall proceed to hear the
evidence and testimony in accordance with sections one and two,
article five, chapter twenty-nine-a of this code, except where
such provisions are inconsistent with the article. The director
shall take into consideration in arriving at his decision:
(1) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, travelway, airway,
haulageway, drainageway or passageway, or to any proposed
extension thereof in any operated or abandoned or operating coal
mine or coal mines already surveyed and platted, but not yet
being operated;
(2) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(3) Whether a well can be drilled safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances due to the extraction of coal; and
(4) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal, oil and
gas.
At the close of the hearing or within ten days thereafterthe director shall issue an order:
(1) Refusing to issue a permit;
(2) Issuing a permit for the proposed drilling location; or
(3) Issuing a permit for a drilling location different from
that requested by the well operator.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that a permit will be issued, the director
shall issue a permit effective ten days after such order is
mailed, except that for good cause shown, the director may stay
the issuance of a permit for a period not to exceed thirty days.
If a permit is issued, the director shall indicate the new
drilling location on the plat on file and shall number and keep
an index of and docket each plat and notice received by mail as
provided in section twelve of this article, and each notice
mailed as provided in section thirteen of this article, entering
in such docket the name of the well operator, and the names and
addresses of all persons notified, the dates of hearings and all
actions taken by the director. The director shall also prepare
a record of the proceedings, which record shall include all
applications, plats and other documents filed with the director,
all notices given and proof of service thereof, all orders
issued, all permits issued and a transcript of the hearing. The
record prepared by the director shall be open to inspection by
the public.
(c) In the event the well operator and the objecting coal
operators, owners or lessees, if any, or such as are present or
represented at such hearing, are unable to agree upon the
conditions under which the well is to be fractured as to protect
life and property, or upon conditions of fracturing that meet
with the approval of the director, then the director shall
proceed to hear the evidence and testimony in accordance with
sections one and two, article five, chapter twenty-nine-a of this
code, except where such provisions are inconsistent with this
article.
The director shall take into consideration whether the well
can be fractured safely, taking into consideration the dangers
from creeps, squeezes or other disturbances.
At the close of the hearing, or within ten days thereafter,
the director shall issue an order stating the conditions under
which the well is to be fractured, provided the well can be
fractured safely, taking into consideration the dangers from
creeps, squeezes or other disturbances. If such fracturing
cannot be done safely, the director shall issue an order stating
with particularity the reasons for refusing to issue a permit.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that a permit will be issued, the director
shall issue a permit effective ten days after such order is
mailed, except that for good cause shown, the director may staythe issuance of a permit for a period not to exceed thirty days.
If a permit is issued, the director shall indicate the well
to be fractured on the plat on file and shall number and keep an
index of and docket each plat and notice received by mail as
provided in section twelve of this article, and each notice
received by mail as provided in section thirteen of this article,
entering in such docket the name of the well operator, the names
and addresses of all persons notified, the dates of hearings and
all actions taken by the director. The director shall also
prepare a record of the proceedings, which record shall include
all applications, plats and other documents filed with the
director, all notices given and proof of service thereof, all
orders issued, all permits issued and a transcript of the
hearing. The record prepared by the director shall be open to
inspection by the public.
§22-6-16. Objections to proposed drilling or converting for
introducing liquids or waste into wells; notices and
hearings; agreed location or conditions; indication of
changes on plats, etc.; issuance of permits; docket of
proceeding.
(a) When a well is proposed to be drilled or converted for
the purposes provided for in section fourteen of this article,
and is above a seam or seams of coal, then the coal operator
operating said coal seams beneath the tract of land, or the coal
seam owner or lessee, if any, if said owner or lessee is not yet
operating said coal seams, may within fifteen days from thereceipt by the director of the plat and notice required by
section fourteen of this article, file objections in writing
(forms for which will be furnished by the director on request) to
such proposed drilling or conversion.
(b) In any case wherein a well proposed to be drilled or
converted for the purposes provided for in section fourteen of
this article shall, in the opinion of the chief of the office of
water resources, affect detrimentally the reasonable standards of
purity and quality of the waters of the state, such chief shall,
within the time period established by the director for the
receipt of public comment on such proposed drilling conversion,
file with the director such objections in writing to such
proposed drilling or conversion, setting out therein as
definitely as is reasonably possible the ground or grounds upon
which such objections are based and indicating the conditions,
consistent with the provisions of this article and the rules
promulgated thereunder, as may be necessary for the protection of
the reasonable standards of the purity and quality of such waters
under which such proposed drilling or conversion may be completed
to overcome such objections, if any.
(c) If any objection or objections are so filed, or are made
by the director, the director shall notify the well operator of
the character of the objections and by whom made and fix a time
and place, not less than thirty days from the end of said thirty-
day period, at which such objections will be considered, of which
time and place the well operator and all objecting coaloperators, the owners or lessees, if any, or such chief, shall be
given at least ten days' written notice by the director by
registered or certified mail, and summoned to appear. At the
time and place so fixed the well operator and the objecting coal
operators, owners or lessees, if any, or such of them as are
present or represented, or such chief, shall proceed to consider
the objections. In the case of proposed drilling or converting
of a well for the purposes provided for in section fourteen of
this article, such parties present or represented may agree upon
either the location as made or so moved as to satisfy all
objections and meet the approval of the director, and any change
in the original location so agreed upon and approved by the
director shall be indicated on said plat on file with the
director, and the distance and direction of the new location from
the original location shall be shown, and, as so altered, the
plat shall be filed and become a permanent record. In the case
of proposed conversion, such parties present or represented may
agree upon conditions under which the conversion is to take place
for the protection of life and property or for protection of
reasonable standards of purity and quality of the waters of the
state. At which time the plat and notice required by section
fourteen shall be filed and become a permanent record. Whereupon
the director may issue to the well operator a permit to drill or
convert, as the case may be, reciting the filing of the plat and
notice required by said section fourteen that at a hearing duly
held a location as shown on the plat or the conditions underwhich the conversion is to take place for the protection of life
and property and reasonable standards of purity and quality of
the waters of the state where agreed upon and approved, and that
the well operator is authorized to drill at such location or to
convert at the site shown on such plat, as the case may be.
(d) (1) In the case the well operator and the objecting coal
operators, owners or lessees, if any, and such chief, or such as
are present or represented at such hearing are unable to agree
upon a drilling location, or upon a drilling location that meets
the approval of the director, then the director shall proceed to
hear the evidence and testimony in accordance with sections one
and two, article five, chapter twenty-nine-a of this code, except
where such provisions are inconsistent with this article. The
director shall take into consideration upon decision:
(A) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, traveling, air
haulage, drainage or passageway, or to any proposed extension
thereof, in any operated or abandoned or operating coal mine, or
coal mine already surveyed and platted, but not yet being
operated;
(B) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(C) Whether a well can be drilled safely, taking into
consideration the dangers from creeps, squeezes or otherdisturbances, due to the extraction of coal; and
(D) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal, oil and
gas.
(2) At the close of the hearing or within ten days
thereafter the director shall issue an order:
(A) Refusing to issue a permit;
(B) Issuing a permit for the proposed drilling location; or
(C) Issuing a permit for a drilling location different than
that requested by the well operator.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that a permit will be issued, the director
shall issue a permit effective ten days after such order is
mailed: Except that for good cause shown, the director may stay
the issuance of a permit for a period not to exceed thirty days.
(3) If a permit is issued, the director shall indicate the
new drilling location on the plat on file with the director and
shall number and keep an index of and docket each plat and notice
mailed to the director as provided in section twelve of this
article, and each notice mailed to the director as provided in
section thirteen of this article, entering in such docket the
name of the well operator, and the names and addresses of all
persons notified, the dates of hearings and all actions taken by
the director, permits issued or refused, the papers filed and atranscript of the hearing. This shall constitute a record of the
proceedings before the director and shall be open to inspection
by the public.
(e) (1) In the case, the well operator and the objecting
coal operators, owners or lessees, if any, and such chief, or
such as are present or represented at such hearing, are unable to
agree upon the conditions under which the well is to be converted
as to protect life and property, and the reasonable standards of
purity and quality of the waters of the state, or upon conditions
of converting that meet with the approval of the director, then
the director shall proceed to hear the evidence and testimony in
accordance with sections one and two, article five, chapter
twenty-nine-a of this code, except where such provisions are
inconsistent with this article. The director shall take into
consideration upon decision:
(A) Whether the well can be converted safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances; and
(B) Whether the well can be converted, taking into
consideration the reasonable standards of the purity and quality
of the waters of the state.
(2) At the close of the hearing, or within ten days
thereafter, the director shall issue an order stating the
conditions under which the conversion is to take place, providing
the well can be converted safely, taking into consideration the
dangers from creeps, squeezes or other disturbances and thereasonable standards of purity and quality of the waters of this
state. If such converting cannot be done safely, or if the
reasonable standards of purity and quality of such waters will be
endangered, the director shall issue an order stating with
particularity the reasons for refusing to issue a permit.
(3) The order shall state with particularity the reasons for
the director's order and shall be mailed by registered or
certified mail to the parties present or represented at such
hearing. If the director has ruled that a permit will be issued,
such permit shall become effective ten days after the division
has mailed such order: Except for good cause shown, the director
may stay the issuance of a permit for a period not to exceed
thirty days.
(4) If a permit is issued, the director shall indicate the
well to be converted on the plat on file with the director, and
shall number and keep an index of and docket each plat and notice
mailed to the director as provided in section fourteen of this
article, entering in such docket the name of the well operator,
and the names and addresses of all persons notified, the dates of
hearings and all actions taken by the director, permits issued or
refused, the papers filed and a transcript of the hearings. This
shall constitute a record of the proceedings before the director
and shall be open to inspection by the public.
§22-6-17. Objections to proposed drilling of shallow gas wells;
notice to chair of review board; indication of changes on
plats; issuance of permits.
When a proposed shallow well drilling site is above a seam
or seams of coal, then the owner of any such coal seam may,
within fifteen days from the receipt by the director of the plat
and notice required by section twelve of this article, file
objections in writing (forms for which will be furnished by the
director on request) to such proposed drilling with the director,
setting out therein as definitely as is reasonably possible the
ground or grounds on which such objections are based.
If any such objection is filed, or if any objection is made
by the director , the director shall forthwith mail, by
registered or certified mail, to the chair of the review board,
a notice that an objection to the proposed drilling or deepening
of a shallow well has been filed with or made by the director,
and shall enclose in such notice a copy of all objections and of
the application and plat filed with the director in accordance
with the provisions of section twelve of this article.
Thereafter, no further action shall be taken on such
application by the director until an order is received from the
review board directing the director to:
(a) Refuse a drilling permit; or
(b) Issue a drilling permit for the proposed drilling
location; or
(c) Issue a drilling permit for an alternate drilling
location different from that requested by the well operator; or
(d) Issue a drilling permit either for the proposed drilling
location or for an alternate drilling location different fromthat requested by the well operator, but not allow the drilling
of the well for a period of not more than one year from the date
of issuance of such permit.
Upon receipt of such board order, the director shall
promptly undertake the action directed by the review board,
except that the director shall not issue a drilling permit unless
all other provisions of this article (except section fifteen)
pertaining to the application for and approval of a drilling
permit have been complied with. All permits issued by the
director pursuant to this section shall be effective ten days
after issuance unless the review board orders the director to
stay the effectiveness of a permit for a period not to exceed
thirty days from the date of issuance.
If a permit is issued, the director shall indicate the
approved drilling location on the plat filed with the director in
accordance with the provisions of section twelve of this article
and shall number and keep an index of and docket each plat and
notice mailed to the director as provided in section twelve of
this article, and each notice mailed to the director as provided
in section thirteen of this article, entering in such docket the
name of the well operator, and the names and addresses of all
persons notified, the dates of conferences, hearings and all
other actions taken by the director and the review board. The
director shall also prepare a record of the proceedings, which
record shall include all applications, plats and other documents
filed with the director, all notices given and proof of servicethereof, all orders issued, all permits issued and a transcript
of the hearing. The record prepared by the director shall be
open to inspection by the public.
§22-6-18. Protective devices -- When well penetrates workable
coal bed; when gas is found beneath or between workable coal
beds.
(a) When a well penetrates one or more workable coal beds,
the well operator shall run and cement a string of casing in the
hole through the workable coal bed or beds in such a manner as
will exclude all oil, gas or gas pressure from the coal bed or
beds, except such oil, gas or gas pressure as may be found in
such coal bed or beds. Such string of casing shall be run to a
point at least thirty feet below the lowest workable coal bed
which the well penetrates and shall be circulated and cemented
from such point to the surface in such a manner as provided for
in reasonable rules promulgated by the director in accordance
with the provisions of chapter twenty-nine-a. After any such
string of casing has been so run and cemented to the surface,
drilling may proceed to the permitted depth.
(b) In the event that gas is found beneath a workable coal
bed before the hole has been reduced from the size it had at the
coal bed, a packer shall be placed below the coal bed, and above
the gas horizon, and the gas by this means diverted to the inside
of the adjacent string of casing through perforations made in
such casing, and through it passed to the surface without contact
with the coal bed. Should gas be found between two workable bedsof coal, in a hole, of the same diameter from bed to bed, two
packers shall be placed, with perforations in the casing between
them, permitting the gas to pass to the surface inside the
adjacent casing. In either of the cases here specified, the
strings of casing shall extend from their seats to the top of the
well.
§22-6-19. Same -- Continuance during life of well; dry or
abandoned wells.
In the event that a well becomes productive of natural gas
or petroleum, or is drilled for or converted for the introduction
of pressure, whether liquid or gas, or for the introduction of
liquid for the purposes provided for in section twenty-five of
this article or for the disposal of pollutants or the effluent
therefrom, all coal-protecting strings of casing and all water-
protecting strings of casing shall remain in place until the well
is plugged or abandoned. During the life of the well the annular
spaces between the various strings of casing adjacent to workable
beds of coal shall be kept open, and the top ends of all such
strings shall be provided with casing heads, or such other
suitable devices as will permit the free passage of gas and
prevent filling of such annular spaces with dirt or debris.
Any well which is completed as a dry hole or which is not in
use for a period of twelve consecutive months shall be presumed
to have been abandoned and shall promptly be plugged by the
operator in accordance with the provisions of this article,
unless the operator furnishes satisfactory proof to the directorthat there is a bona fide future use for such well.
§22-6-20. Same -- When well is drilled through horizon of coal
bed from which coal has been removed.
When a well is drilled through the horizon of a coal bed
from which the coal has been removed, the hole shall be drilled
at least thirty feet below the coal bed, of a size sufficient to
permit the placing of a liner which shall start not less than
twenty feet beneath the horizon of the coal bed and extend not
less than twenty feet above it. Within this liner, which may be
welded to the casing to be used, shall be centrally placed the
largest sized casing to be used in the well, and the space
between the liner and casing shall be filled with cement as they
are lowered into the hole. Cement shall be placed in the bottom
of the hole to a depth of twenty feet to form a sealed seat for
both liner and casing. Following the setting of the liner,
drilling shall proceed in the manner provided above. Should it
be found necessary to drill through the horizon of two or more
workable coal beds from which the coal has been removed, such
liner shall be started not less than twenty feet below the lowest
such horizon penetrated and shall extend to a point not less than
twenty feet above the highest such horizon.
§22-6-21. Same -- Installation of fresh water casings.
When a permit has been issued for the drilling of an oil or
gas well or both, each well operator shall run and permanently
cement a string of casing in the hole through the fresh water
bearing strata in such a manner and to the extent provided for inrules promulgated by the director in accordance with the
provisions of this chapter.
No oil or gas well shall be drilled nearer than two hundred
feet from an existing water well or dwelling without first
obtaining the written consent of the owner of such water well or
dwelling.
§22-6-22. Well log to be filed; contents; authority to
promulgate rules.
Within a reasonable time after the completion of the
drilling of a well, the well operator shall file with the
director an accurate log. Such log shall contain the character,
depth and thickness of geological formations encountered,
including fresh water, coal seams, mineral beds, brine, and oil
and gas bearing formations and such other information as the
director may require to effectuate the purposes of this chapter.
The director may promulgate such reasonable rules in
accordance with article three, chapter twenty-nine-a of this
code, as he may deem necessary to insure that the character,
depth and thickness of geological formations encountered are
accurately logged:
Provided, That the director shall not require
logging by the use of an electrical logging device.
§22-6-23. Plugging, abandonment and reclamation of well; notice
of intention; bonds; affidavit showing time and manner.
All dry or abandoned wells or wells presumed to be abandoned
under the provisions of section nineteen of this article shall be
plugged and reclaimed in accordance with this section and theother provisions of this article and in accordance with the rules
promulgated by the director.
Prior to the commencement of plugging operations and the
abandonment of any well, the well operator shall either: (a)
Notify, by registered or certified mail, the director and the
coal operator operating coal seams, the coal seam owner of record
or lessee of record, if any, to whom notices are required to be
given by section twelve of this article, and the coal operators
to whom notices are required to be given by section thirteen of
this article, of its intention to plug and abandon any such well
(using such form of notice as the director may provide), giving
the number of the well and its location and fixing the time at
which the work of plugging and filling will be commenced, which
time shall be not less than five days after the day on which such
notice so mailed is received or in due course should be received
by the director, in order that a representative or
representatives of the director and such coal operator, owner or
lessee, if any, may be present at the plugging and filling of the
well:
Provided, That whether such representatives appear or do
not appear, the well operator may proceed at the time fixed to
plug and fill the well in the manner hereinafter described; or
(b) first obtain the written approval of the director and such
coal operator, owner or lessee, if any; or (c) in the event the
well to be plugged and abandoned is one on which drilling or
reworking operations have been continuously progressing pursuant
to authorization granted by the director, first obtain the verbalpermission of the director or the director's designated
representative to plug and abandon such well, except that the
well operator shall, within a reasonable period not to exceed
five days after the commencement of such plugging operations,
give the written notices required by subdivision (a) above.
No well may be plugged or abandoned unless prior to the
commencement of plugging operations and the abandonment of any
well the director is furnished a bond as provided in section
twenty-six of this article.
When the plugging, filling and reclamation of a well have
been completed, an affidavit, in triplicate, shall be made (on a
form to be furnished by the director) by two experienced persons
who participated in the work, the director or the director's
designated representative, in which affidavit shall be set forth
the time and manner in which the well was plugged and filled and
the land reclaimed. One copy of this affidavit shall be retained
by the well operator, another (or true copies of same) shall be
mailed to the coal operator or operators, if any, and the third
to the director.
§22-6-24. Methods of plugging well.
Upon the abandonment or cessation of the operation of any
well drilled for natural gas or petroleum, or drilled or
converted for the introduction of pressure, whether liquid or
gas, or for the introduction of liquid for the purposes provided
for in section twenty-five of this article or for the disposal of
pollutants or the effluent therefrom the well operator, at thetime of such abandonment or cessation, shall fill and plug the
well in the following manner:
(a) Where the well does not penetrate workable coal beds, it
shall either be filled with mud, clay or other nonporous material
from the bottom of the well to a point twenty feet above the top
of its lowest oil, gas or water-bearing stratum; or a permanent
bridge shall be anchored thirty feet below its lowest oil, gas or
water-bearing stratum, and from such bridge it shall be filled
with mud, clay or other nonporous material to a point twenty feet
above such stratum; at this point there shall be placed a plug of
cement or other suitable material which will completely seal the
hole. Between this sealing plug and a point twenty feet above
the next higher oil, gas or water-bearing stratum, the hole shall
be filled, in the manner just described; and at such point there
shall be placed another plug of cement or other suitable material
which will completely seal the hole. In like manner the hole
shall be filled and plugged, with reference to each of its oil,
gas or water-bearing strata. However, whenever such strata are
not widely separated and are free from water, they may be grouped
and treated as a single sand, gas or petroleum horizon, and the
aforesaid filling and plugging be performed as though there were
but one horizon. After the plugging of all oil, gas or water-
bearing strata, as aforesaid, a final cement plug shall be placed
approximately ten feet below the bottom of the largest casing in
the well; from this point to the surface the well shall be filled
with mud, clay or other nonporous material. In case any of theoil or gas-bearing strata in a well shall have been shot, thereby
creating cavities which cannot readily be filled in the manner
above described, the well operator shall follow either of the
following methods:
(1) Should the stratum which has been shot be the lowest one
in the well, there shall be placed, at the nearest suitable
point, but not less than twenty feet above the stratum, a plug of
cement or other suitable material which will completely seal the
hole. In the event, however, that the shooting has been done
above one or more oil or gas-bearing strata in the well, plugging
in the manner specified shall be done at the nearest suitable
point, but not less than twenty feet below and above the stratum
shot; or (2), when such cavity shall be in the lowest oil or gas-
bearing stratum in the well, a liner shall be placed which shall
extend from below the stratum to a suitable point, but not less
than twenty feet above the stratum in which shooting has been
done. In the event, however, that the shooting has been done
above one or more oil or gas-bearing strata in the well, the
liner shall be so placed that it will extend not less than twenty
feet above, nor less than twenty feet below, the stratum in which
shooting has been done. Following the placing of the liner in
the manner here specified it shall be compactly filled with
cement, mud, clay or other nonporous sealing material;
(b) Where the well penetrates one or more workable coal beds
and a coal protection string of casing has been circulated and
cemented in to the surface, the well shall be filled and securelyplugged in the manner provided in subsection (a) of this section,
except that expanding cement shall be used instead of regular
hydraulic cement, to a point approximately one hundred feet below
the bottom of the coal protection string of casing. A one
hundred foot plug of expanding cement shall then be placed in the
well so that the top of such plug is located at a point just
below the coal protection string of casing. After such plug has
been securely placed in the well, the coal protection string of
casing shall be emptied of liquid from the surface to a point one
hundred feet below the lowest workable coal bed or to the bottom
of the coal protection string of casing, whichever is shallower.
A vent or other device approved by the director shall then be
installed on the top of the coal protection string of casing in
such a manner that will prevent liquids and solids from entering
the well but will permit ready access to the full internal
diameter of the coal protection string of casing when required.
The coal protection string of casing and the vent or other device
approved by the director shall extend, when finally in place, a
distance of not less than thirty inches above ground level and
shall be permanently marked with the well number assigned by the
director;
(c) Where the well penetrates one or more workable coal beds
and a coal protection string of casing has not been circulated
and cemented in to the surface, the well shall be filled and
securely plugged in the manner provided in subsection (a) of this
section to a point fifty feet below the lowest workable coal bed. Thereafter, a plug of cement shall be placed in the well at a
point not less than forty feet below the lowest workable coal
bed. After the cement plug has been securely placed in the well,
the well shall be filled with cement to a point twenty feet above
the lowest workable coal bed. From this point the well shall be
filled with mud, clay or other nonporous material to a point
forty feet beneath the next overlying workable coal bed, if such
there be, and the well shall then be filled with cement from this
point to a point twenty feet above such workable coal bed, and
similarly, in case there are more overlying workable coal beds.
After the filling and plugging of the well to a point above the
highest workable coal bed, filling and plugging of the well shall
continue in the manner provided in subsection (a) of this section
to a point fifty feet below the surface, and a plug of cement
shall be installed from the point fifty feet below the surface to
the surface with a monument installed therein extending thirty
inches above ground level;
(d) (1) Where the well penetrates one or more workable coal
beds and a coal protection string of casing has not been
circulated and cemented in to the surface, a coal operator or
coal seam owner may request that the well be plugged in the
manner provided in subdivision (3) of this subsection rather than
by the method provided in subsection (c) of this section. Such
request (forms for which shall be provided by the director) must
be filed in writing with the director prior to the scheduled
plugging of the well, and must include the number of the well tobe plugged and the name and address of the well operator. At the
time such request is filed with the director, a copy of such
request must also be mailed by registered or certified mail to
the well operator named in the request.
(2) Upon receipt of such request, the director shall issue
an order staying the plugging of the well and shall promptly
determine the cost of plugging the well in the manner provided in
subdivision (3) of this subsection and the cost of plugging the
well in the manner provided in subsection (c) of this section.
In making such determination, the director shall take into
consideration any agreement previously made between the well
operator and the coal operator or coal seam owner making the
request. If the director determines that the cost of plugging
the well in the manner provided in subsection (c) of this section
exceeds the cost of plugging the well in the manner provided in
subdivision (3) of this subsection, the director shall grant the
request of the coal operator or owner and shall issue an order
requiring the well operator to plug the well in the manner
provided in subdivision (3) of this subsection. If the director
determines that the cost of plugging the well in the manner
provided in subsection (c) of this section is less than the cost
of plugging the well in the manner provided in subdivision (3) of
this subsection, the director shall request payment into escrow
of the difference between the determined costs by the coal
operator or coal seam owner making the request. Upon receipt of
satisfactory notice of such payment, or upon receipt of noticethat the well operator has waived such payment, the director
shall grant the request of the coal operator or coal seam owner
and shall issue an order requiring the well operator to plug the
well in the manner provided in subdivision (3) of this
subsection. If satisfactory notice of payment into escrow, or
notice that the well operator has waived such payment, is not
received by the director within fifteen days after the request
for payment into escrow, the director shall issue an order
permitting the plugging of the well in the manner provided in
subsection (c) of this section. Copies of all orders issued by
the director shall be sent by registered or certified mail to the
coal operator or coal seam owner making the request and to the
well operator. When the escrow agent has received certification
from the director of the satisfactory completion of the plugging
work and the reimbursable extra cost thereof (that is, the
difference between the director's determination of plugging cost
in the manner provided in subsection (c) of this section and the
well operator's actual plugging cost in the manner provided in
subdivision (3) of this subsection), the escrow agent shall pay
the reimbursable sum to the well operator or the well operator's
nominee from the payment into escrow to the extent available.
The amount by which the payment into escrow exceeds the
reimbursable sum plus the escrow agent's fee, if any, shall be
repaid to the coal owner. If the amount paid to the well
operator or the well operator's nominee is less than the actual
reimbursable sum, the escrow agent shall inform the coal owner,who shall pay the deficiency to the well operator or the well
operator's nominee within thirty days. If the coal operator
breaches this duty to pay the deficiency, the well operator shall
have a right of action and be entitled to recover damages as if
for wrongful conversion of personalty, and reasonable attorney
fees.
(3) Where a request of a coal operator or coal seam owner
filed pursuant to subdivision (1) of this subsection has been
granted by the director, the well shall be plugged in the manner
provided in subsection (a) of this section, except that expanding
cement shall be used instead of regular hydraulic cement, to a
point approximately two hundred feet below the lowest workable
coal bed. A one hundred foot plug of expanding cement shall then
be placed in the well beginning at the point approximately two
hundred feet below the lowest workable coal bed and extending to
a point approximately one hundred feet below the lowest workable
coal bed. A string of casing with an outside diameter no less
than four and one-half inches shall then be run into the well to
a point approximately one hundred feet below the lowest workable
coal bed and such string of casing shall be circulated and
cemented in to the surface. The casing shall then be emptied of
liquid from a point approximately one hundred feet below the
lowest workable coal bed to the surface, and a vent or other
device approved by the director shall be installed on the top of
the string of casing in such a manner that it will prevent
liquids and solids from entering the well but will permit readyaccess to the full internal diameter of the coal protection
string of casing when required. The string of casing and the
vent or other device approved by the director shall extend, when
finally in place, a distance of no less than thirty inches above
ground level and shall be permanently marked with the well number
assigned by the director. Notwithstanding the foregoing
provisions of this subdivision, if under particular circumstances
a different method of plugging is required to obtain the approval
of another governmental agency for the safe mining through of
said well, the director may approve such different method of
plugging if the director finds the same to be as safe for mining
through and otherwise adequate to prevent gas or other fluid
migration from the oil and gas reservoirs as the method above
specified.
(e) Any person may apply to the director for an order to
clean out and replug a previously plugged well in a manner which
will permit the safe mining through of such well. Such
application shall be filed with the director and shall contain
the well number, a general description of the well location, the
name and address of the owner of the surface land upon which the
well is located, a copy of or record reference to a deed, lease
or other document which entitles the applicant to enter upon the
surface land, a description of the methods by which the well was
previously plugged, and a description of the method by which such
applicant proposes to clean out and replug the well. At the time
an application is filed with the director, a copy shall be mailedby registered or certified mail to the owner or owners of the
land, and the oil and gas lessee of record, if any, of the site
upon which the well is located. If no objection to the
replugging of the well is filed by any such landowner or oil and
gas lessee within thirty days after the filing of the
application, and if the director determines that the method
proposed for replugging the well will permit the safe mining
through of such well, the director shall grant the application by
an order authorizing the replugging of the well. Such order
shall specify the method by which the well shall be replugged,
and copies thereof shall be mailed by certified or registered
mail to the applicant and to the owner or owners of the land, and
the oil and gas lessee, if any, of the site upon which such well
is located. If any such landowner or oil and gas lessee objects
to the replugging of the well, the director shall notify the
applicant of such objection. Thereafter, the director shall
schedule a hearing to consider the objection, which hearing shall
be held after notice by registered or certified mail to the
objectors and the applicant. After consideration of the evidence
presented at the hearing, the director shall issue an order
authorizing the replugging of the well if the director determines
that replugging of the well will permit the safe mining through
of such well. Such order shall specify the manner in which the
well shall be replugged and copies thereof shall be sent by
registered or certified mail to the applicant and objectors. The
director shall issue an order rejecting the application if thedirector determines that the proposed method for replugging the
well will not permit the safe mining through of such well;
(f) All persons adversely affected, by a determination or
order of the director issued pursuant to the provisions of this
section shall be entitled to judicial review in accordance with
the provisions of articles five and six, chapter twenty-nine-a of
this code.
§22-6-25. Introducing liquid pressure into producing strata to
recover oil contained therein.
The owner or operator of any well or wells which produce oil
or gas may allow such well or wells to remain open for the
purpose of introducing water or other liquid pressure into and
upon the producing strata for the purpose of recovering the oil
contained therein, and may drill additional wells for like
purposes, provided that the introduction of such water or other
liquid pressure shall be controlled as to volume and pressure and
shall be through casing or tubing which shall be so anchored and
packed that no water-bearing strata or other oil, or gas-bearing
sand or producing stratum, above or below the producing strata
into and upon which such pressure is introduced, shall be
affected thereby, fulfilling requirements as set forth under
section fourteen.
§22-6-26. Performance bonds; corporate surety or other security.
(a) No permit shall be issued pursuant to this article
unless a bond as described in subsection (d) of this section
which is required for a particular activity by this article is orhas been furnished as provided in this section.
(b) A separate bond as described in subsection (d) of this
section may be furnished for a particular oil or gas well, or for
a particular well for the introduction of liquids for the
purposes provided in section twenty-five of this article. A
separate bond as described in subsection (d) of this section
shall be furnished for each well drilled or converted for the
introduction of liquids for the disposal of pollutants or the
effluent therefrom. Every such bond shall be in the sum of ten
thousand dollars, payable to the state of West Virginia,
conditioned on full compliance with all laws and rules relating
to the drilling, redrilling, deepening, casing and stimulating of
oil and gas wells (or, if applicable, with all laws, rules
relating to drilling or converting wells for the introduction of
liquids for the purposes provided for in section twenty-five of
this article or for the introduction of liquids for the disposal
of pollutants or the effluent therefrom) and to the plugging,
abandonment and reclamation of wells and for furnishing such
reports and information as may be required by the director.
(c) When an operator makes or has made application for
permits to drill or stimulate a number of oil and gas wells or to
drill or convert a number of wells for the introduction of
liquids for the purposes provided in section twenty-five of this
article, the operator may in lieu of furnishing a separate bond
furnish a blanket bond in the sum of fifty thousand dollars,
payable to the state of West Virginia, and conditioned asaforesaid in subsection (b) of this section.
(d) The form of the bond required by this article shall be
approved by the director and may include, at the option of the
operator, surety bonding, collateral bonding (including cash and
securities) letters of credit, establishment of an escrow
account, self-bonding or a combination of these methods. If
collateral bonding is used, the operator may elect to deposit
cash, or collateral securities or certificates as follows: Bonds
of the United States or its possessions, of the federal land
bank, or the homeowners' loan corporation; full faith and credit
general obligation bonds of the state of West Virginia, or other
states, and of any county, district or municipality of the state
of West Virginia or other states; or certificates of deposit in
a bank in this state, which certificates shall be in favor of the
division. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the amount of the
bond. The director shall, upon receipt of any such deposit of
cash, securities or certificates, promptly place the same with
the treasurer of the state of West Virginia whose duty it shall
be to receive and hold the same in the name of the state in trust
for the purpose of which the deposit is made when the permit is
issued. The operator shall be entitled to all interest and
income earned on the collateral securities filed by such
operator. The operator making the deposit shall be entitled from
time to time to receive from the state treasurer, upon the
written approval of the director, the whole or any portion of anycash, securities or certificates so deposited, upon depositing
with the treasurer in lieu thereof, cash or other securities or
certificates of the classes herein specified having value equal
to or greater than the amount of the bond.
(e) When an operator has furnished a separate bond from a
corporate bonding or surety company to drill, fracture or
stimulate an oil or gas well and the well produces oil or gas or
both, its operator may deposit with the director cash from the
sale of the oil or gas or both until the total deposited is ten
thousand dollars. When the sum of the cash deposited is ten
thousand dollars, the separate bond for the well shall be
released by the director. Upon receipt of such cash, the
director shall immediately deliver the same to the treasurer of
the state of West Virginia. The treasurer shall hold such cash
in the name of the state in trust for the purpose for which the
bond was furnished and the deposit was made. The operator shall
be entitled to all interest and income which may be earned on the
cash deposited so long as the operator is in full compliance with
all laws, rules relating to the drilling, redrilling, deepening,
casing, plugging, abandonment and reclamation of the well for
which the cash was deposited and so long as the operator has
furnished all reports and information as may be required by the
director. If the cash realized from the sale of oil or gas or
both from the well is not sufficient for the operator to deposit
with the director the sum of ten thousand dollars within one year
of the day the well started producing, the corporate or suretycompany which issued the bond on the well may notify the operator
and the director of its intent to terminate its liability under
its bond. The operator then shall have thirty days to furnish a
new bond from a corporate bonding or surety company or collateral
securities or other forms of security, as provided in the next
preceding paragraph of this section with the director. If a new
bond or collateral securities or other forms of security are
furnished by the operator, the liability of the corporate bonding
or surety company under the original bond shall terminate as to
any acts and operations of the operator occurring after the
effective date of the new bond or the date the collateral
securities or other forms of security are accepted by the
treasurer of the state of West Virginia. If the operator does
not furnish a new bond or collateral securities or other forms of
security, as provided in the next preceding paragraph of this
section, with the director, the operator shall immediately plug,
fill and reclaim the well in accordance with all of the
provisions of law and rules applicable thereto. In such case,
the corporate or surety company which issued the original bond
shall be liable for any plugging, filling or reclamation not
performed in accordance with such laws and rules.
(f) Any separate bond furnished for a particular well prior
to the effective date of this chapter shall continue to be valid
for all work on the well permitting prior to the eleventh day of
July, one thousand nine hundred eighty-five; but no permit shall
hereafter be issued on such a particular well without a bondcomplying with the provisions of this section. Any blanket bond
furnished prior to the eleventh day of July, one thousand nine
hundred eighty-five shall be replaced with a new blanket bond
conforming to the requirements of this section, at which time the
prior bond shall be discharged by operation of law; and if the
director determines that any operator has not furnished a new
blanket bond, the director shall notify the operator by certified
mail, return receipt requested, of the requirement for a new
blanket bond; and failure to submit a new blanket bond within
sixty days after receipt of the notice from the director shall
work a forfeiture under subsection (i) of this section of the
blanket bond furnished prior to the eleventh day of July, one
thousand nine hundred eighty-five.
(g) Any such bond shall remain in force until released by
the director and the director shall release the same upon
satisfaction that the conditions thereof have been fully
performed. Upon the release of any such bond, any cash or
collateral securities deposited shall be returned by the director
to the operator who deposited same.
(h) Whenever the right to operate a well is assigned or
otherwise transferred, the assignor or transferor shall notify
the department of the name and address of the assignee or
transferee by certified mail, return receipt requested, not later
than five days after the date of the assignment or transfer. No
assignment or transfer by the owner shall relieve the assignor or
transferor of the obligations and liabilities unless and untilthe assignee or transferee files with the department the well
name and the permit number of the subject well, the county and
district in which the subject well is located, the names and
addresses of the assignor or transferor, and assignee or
transferee, a copy of the instrument of assignment or transfer
accompanied by the applicable bond, cash, collateral security or
other forms of security, described in section twelve, fourteen,
twenty-three or twenty-six of this article, and the name and
address of the assignee's or transferee's designated agent if
assignee or transferee would be required to designate such an
agent under section six of this article, if assignee or
transferee were an applicant for a permit under said section six.
Every well operator required to designate an agent under this
section shall within five days after the termination of such
designation notify the department of such termination and
designate a new agent.
Upon compliance with the requirements of this section by
assignor or transferor and assignee or transferee, the director
shall release assignor or transferor from all duties and
requirements of this article, and the deputy director shall give
written notice of release unto assignor or transferor of any bond
and return unto assignor or transferor any cash or collateral
securities deposited pursuant to section twelve, fourteen,
twenty-three or twenty-six of this article.
(i) If any of the requirements of this article or rules
promulgated pursuant thereto or the orders of the director havenot been complied with within the time limit set by the violation
notice as defined in sections three, four and five of this
article, the performance bond shall then be forfeited.
(j) When any bond is forfeited pursuant to the provisions of
this article or rules promulgated pursuant thereto, the director
shall give notice to the attorney general who shall collect the
forfeiture without delay.
(k) All forfeitures shall be deposited in the treasury of
the state of West Virginia in the special reclamation fund as
defined in section twenty-nine of this article.
§22-6-27. Cause of action for damages caused by explosions.
Any person suffering personal injury or property damage due
to any explosion caused by any permittee, shall have a cause of
action against such permittee for three years after the explosion
regardless of when the explosion occurred.
§22-6-28. Supervision by director over drilling and reclamation
operations; complaints; hearings; appeals.
(a) The director shall exercise supervision over the
drilling, casing, plugging, filling and reclamation of all wells
and shall have such access to the plans, maps and other records
and to the properties of the well operators as may be necessary
or proper for this purpose, and, either as the result of its own
investigations or pursuant to charges made by any well operator
or coal operator, the director may enter, or shall permit any
aggrieved person to file before the director, a formal complaint
charging any well operator with not drilling or casing, or notplugging or filling, or reclaiming any well in accordance with
the provisions of this article, or to the order of the director.
True copies of any such complaints shall be served upon or mailed
by registered mail to any person so charged, with notice of the
time and place of hearing, of which the operator or operators so
charged shall be given at least five days' notice. At the time
and place fixed for hearing, full opportunity shall be given any
person so charged or complaining to be heard and to offer such
evidence as desired, and after a full hearing, at which the
director may offer in evidence the results of such investigations
as the director may have made, the director shall make findings
of fact and enter such order as in the director's judgment is
just and right and necessary to secure the proper administration
of this article, and if the director deems necessary, restraining
the well operator from continuing to drill or case any well or
from further plugging, filling or reclaiming the same, except
under such conditions as the director may impose in order to
ensure a strict compliance with the provisions of this article
relating to such matters.
(b) Except as provided in subsection (c) of this section,
any well operator or coal operator adversely affected by a final
decision or order of the director, may appeal in the manner
prescribed in section four, article five, chapter twenty-nine-a
of this code.
(c) Any person having an interest which is or may be
adversely affected, or who is aggrieved by an order of thedirector, or by the issuance or denial of a permit, or by the
permit's terms and conditions, where the subject to such order,
permits or terms and conditions is solid waste, may appeal to the
environmental quality board in the same manner as appeals are
taken under the solid waste management act, section sixteen,
article fifteen of this chapter. For the purpose of this
subsection the term solid waste has the same meaning as would be
given that term pursuant to section two, article fifteen of this
chapter but for the exemption related to waste or material
regulated by this chapter, chapter twenty-two-b or chapter
twenty-two-c of this code.
§22-6-29. Operating permit and processing fund; special
reclamation fund; fees.
(a) There is hereby continued within the treasury of the
state of West Virginia the special fund known as the oil and gas
operating permit and processing fund, and the director shall
deposit with the state treasurer to the credit of such special
fund all fees collected under the provisions of subdivision (10),
subsection (c), section two of this article.
The oil and gas operating permit and processing fund shall
be administered by the director for the purposes of carrying out
the provisions of this chapter.
The director shall make an annual report to the governor and
to the Legislature on the use of the fund, and shall make a
detailed accounting of all expenditures from the oil and gas
operating permit and processing fund.
(b) In addition to any other fees required by the provisions
of this article, every applicant for a permit to drill a well
shall, before the permit is issued, pay to the director a special
reclamation fee of one hundred dollars for each well to be
drilled. Such special reclamation fee shall be paid at the time
the application for a drilling permit is filed with the director
and the payment of such reclamation fee shall be a condition
precedent to the issuance of said permit.
There is hereby continued within the treasury of the state
of West Virginia the special fund known as the oil and gas
reclamation fund, and the director shall deposit with the state
treasurer to the credit of such special fund all special
reclamation fees collected. The proceeds of any bond forfeited
under the provisions of this article shall inure to the benefit
of and shall be deposited in such oil and gas reclamation fund.
The oil and gas reclamation fund shall be administered by
the director. The director shall cause to be prepared plans for
the reclaiming and plugging of abandoned wells which have not
been reclaimed or plugged or which have been improperly reclaimed
or plugged. The director, as funds become available in the oil
and gas reclamation fund, shall reclaim and properly plug wells
in accordance with said plans and specifications and in
accordance with the provisions of this article relating to the
reclaiming and plugging of wells and all rules promulgated
thereunder. Such funds may also be utilized for the purchase of
abandoned wells, where such purchase is necessary, and for thereclamation of such abandoned wells, and for any engineering,
administrative and research costs as may be necessary to properly
effectuate the reclaiming and plugging of all wells, abandoned or
otherwise.
The director may avail the division of any federal funds
provided on a matching basis that may be made available for the
purpose of reclaiming or plugging any wells.
The director shall make an annual report to the governor and
to the Legislature setting forth the number of wells reclaimed or
plugged through the use of the oil and gas reclamation fund
provided for herein. Such report shall identify each such
reclamation and plugging project, state the number of wells
reclaimed or plugged thereby, show the county wherein such wells
are located and shall make a detailed accounting of all
expenditures from the oil and gas reclamation fund.
All wells shall be reclaimed or plugged by contract entered
into by the director on a competitive bid basis as provided for
under the provisions of article three, chapter five-a of this
code and the rules promulgated thereunder.
§22-6-30. Reclamation requirements.
The operator of a well shall reclaim the land surface within
the area disturbed in siting, drilling, completing or producing
the well in accordance with the following requirements:
(a) Within six months after the completion of the drilling
process, the operator shall fill all the pits for containing
muds, cuttings, salt water and oil that are not needed forproduction purposes, or are not required or allowed by state or
federal law or rule and remove all concrete bases, drilling
supplies and drilling equipment. Within such period, the
operator shall grade or terrace and plant, seed or sod the area
disturbed that is not required in production of the well where
necessary to bind the soil and prevent substantial erosion and
sedimentation. No pit may be used for the ultimate disposal of
salt water. Salt water and oil shall be periodically drained or
removed, and properly disposed of, from any pit that is retained
so the pit is kept reasonably free of salt water and oil.
(b) Within six months after a well that has produced oil or
gas is plugged, or after the plugging of a dry hole, the operator
shall remove all production and storage structures, supplies and
equipment, and any oil, salt water and debris, and fill any
remaining excavations. Within such period, the operator shall
grade or terrace and plant, seed or sod the area disturbed where
necessary to bind the soil and prevent substantial erosion and
sedimentation.
The director may, upon written application by an operator
showing reasonable cause, extend the period within which
reclamation shall be completed, but not to exceed a further six-
month period.
If the director refuses to approve a request for extension,
the refusal shall be by order.
(c) It shall be the duty of an operator to commence the
reclamation of the area of land disturbed in siting, drilling,completing or producing the well in accordance with soil erosion
and sediment control plans approved by the director or the
director's designate.
(d) The director shall promulgate rules setting forth
requirements for the safe and efficient installation and burying
of all production and gathering pipelines where practical and
reasonable except that such rules shall not apply to those
pipelines regulated by the public service commission.
§22-6-31. Preventing waste of gas; plan of operation required
for wasting gas in process of producing oil; rejection
thereof.
Natural gas shall not be permitted to waste or escape from
any well or pipeline, when it is reasonably possible to prevent
such waste, after the owner or operator of such gas, or well, or
pipeline, has had a reasonable length of time to shut in such gas
in the well, or make the necessary repairs to such well or
pipeline to prevent such waste:
Provided, That: (a) If, in the
process of drilling a well for oil or gas, or both, gas is found
in such well, and the owner or operator thereof desires to
continue to search for oil or gas, or both, by drilling deeper in
search of lower oil or gas-bearing strata; or (b) if it becomes
necessary to make repairs to any well producing gas, commonly
known as "cleaning out", and if in either event it is necessary
for the gas in such well to escape therefrom during the process
of drilling or making repairs, as the case may be, then the owner
or operator of such well shall prosecute such drilling or repairswith reasonable diligence, so that the waste of gas from the well
shall not continue longer than reasonably necessary, and if,
during the progress of such deeper drilling or repairs, any
temporary suspension thereof becomes necessary, the owner or
operator of such well shall use all reasonable means to shut in
the gas and prevent its waste during such temporary suspension:
Provided, however, That in all cases where both oil and gas are
found and produced from the same oil and gas-bearing stratum, and
where it is necessary for the gas therefrom to waste in the
process of producing the oil, the owner or operator shall use all
reasonable diligence to conserve and save from waste so much of
such gas as it is reasonably possible to save, but in no case
shall such gas from any well be wasted in the process of
producing oil therefrom until the owner or operator of such well
shall have filed with the director a plan of operation for said
well showing, among other things, the gas-oil production ratio
involved in such operation, which plan shall govern the operation
of said well unless the director shall, within ten days from the
date on which such plan is submitted to the director, make a
finding that such plan fails, under all the facts and
circumstances, to propose the exercise of all reasonable
diligence to conserve and save from waste so much of such gas as
it is reasonably possible to save, in which event production of
oil at such well by the wasting of gas shall cease and desist
until a plan of operation is approved by the director.
Successive plans of operation may be filed by the owner oroperator of any such well with the director.
§22-6-32. Right of adjacent owner or operator to prevent waste
of gas; recovery of cost.
If the owner or operator of any such well shall neglect or
refuse to drill, case and equip, or plug and abandon, or shut in
and conserve from waste the gas produced therefrom, as required
to be done and performed by the preceding sections of this
article, for a period of twenty days after a written notice so to
do, which notice may be served personally upon the owner or
operator, or may be posted in a conspicuous place at or near the
well, it shall be lawful for the owner or operator of any
adjacent or neighboring lands or the director to enter upon the
premises where such well is situated and properly case and equip
such well, or, in case the well is to be abandoned, to properly
plug and abandon it, or in case the well is wasting gas, to
properly shut it in and make such needed repairs to the well to
prevent the waste of gas, in the manner required to be done by
the preceding sections of this article; and the reasonable cost
and expense incurred by an owner or operator or the director in
so doing shall be paid by the owner or operator of such well and
may be recovered as debts of like amount are by law recoverable.
The director may utilize funds and procedures established
pursuant to section twenty-nine of this article for the purposes
set out in the section. Amounts recovered by the director
pursuant to this section shall be deposited in the oil and gas
reclamation fund established pursuant to section twenty-nine ofthis article.
§22-6-33. Restraining waste.
Aside from and in addition to the imposition of any
penalties under this article, it shall be the duty of any circuit
court in the exercise of its equity jurisdiction to hear and
determine any action which may be filed to restrain the waste of
natural gas in violation of this article, and to grant relief by
injunction or by other decrees or orders, in accordance with the
principles and practice in equity. The plaintiff in such action
shall have sufficient standing to maintain the same if the
plaintiff shall aver and prove that the plaintiff is interested
in the lands situated within the distance of one mile from such
well, either as an owner of such land, or of the oil or gas, or
both, thereunder, in fee simple, or as an owner of leases thereof
or of rights therein for the production of oil and gas or either
of them or as the director.
§22-6-34. Offenses; penalties.
(a) Any person or persons, firm, partnership, partnership
association or corporation who willfully violates any provision
of this article or any rule or order promulgated hereunder shall
be subject to a civil penalty not exceeding two thousand five
hundred dollars. Each day a violation continues after notice by
the division constitutes a separate offense. The penalty shall
be recovered by a civil action brought by the division, in the
name of the state, before the circuit court of the county in
which the subject well or facility is located. All such civilpenalties collected shall be credited to the general fund of the
state.
(b) Any person or persons, firm, partnership, partnership
association or corporation willfully violating any of the
provisions of this article which prescribe the manner of drilling
and casing or plugging and filling any well, or which prescribe
the methods of conserving gas from waste, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
a fine not exceeding five thousand dollars, or imprisonment in
jail for not exceeding twelve months, or both, in the discretion
of the court, and prosecutions under this section may be brought
in the name of the state of West Virginia in the court exercising
criminal jurisdiction in the county in which the violation of
such provisions of the article or terms of such order was
committed, and at the instance and upon the relation of any
citizens of this state.
§22-6-35. Civil action for contamination or deprivation of fresh
water source or supply; presumption.
In any action for contamination or deprivation of a fresh
water source or supply within one thousand feet of the site of
drilling for an oil or gas well, there shall be a rebuttable
presumption that such drilling, and such oil or gas well, or
either, was the proximate cause of the contamination or
deprivation of such fresh water source or supply.
§22-6-36. Declaration of oil and gas notice by owners and
lessees of coal seams.
For purposes of notification under this article, any owner
or lessee of coal seams shall file a declaration of the owner's
or lessee's interest in such coal seams with the clerk of the
county commission in the county where such coal seams are
located. Said clerk shall file and index such declaration in
accordance with section two, article one, chapter thirty-nine of
this code, and shall index the name of the owner or lessee of
such coal seams in the grantor index of the record maintained for
the indexing of leases.
The declaration shall entitle such owner or lessee to the
notices provided in sections twelve, thirteen, fourteen and
twenty-three of this article:
Provided, That the declaring owner
shall be the record owner of the coal seam, and the declaring
lessee shall be the record lessee with the owner's or lessee's
source or sources of title recorded prior to recording such
lessee's declaration.
The declaration shall be acknowledged by such owner or
lessee, and in the case of a lessee, may be a part of the coal
lease under which the lessee claims. Such declaration may be in
the following language:
"DECLARATION OF OIL AND GAS NOTICE"
The undersigned hereby declares:
(1) The undersigned is the ('owner' or 'lessee') of one or
more coal seams or workable coal beds as those terms are defined
in section one of this article.
(2) The coal seam(s) or workable coal bed(s) owned or leasedpartly or wholly by the undersigned lie(s) under the surface of
lands described as follows:
(Here insert a description legally adequate for a deed,
whether by metes and bounds or other locational description, or
by title references such as a book and page legally sufficient to
stand in lieu of a locational description.)
(3) The undersigned desires to be given all notices of oil
and gas operations provided by sections twelve, thirteen,
fourteen and twenty-three, of this article, addressed as follows:
(Here insert the name and mailing address of the undersigned
owner or lessee.)
_______________________________
(Signature)
(Here insert an acknowledgment legally adequate for a
deed)."
The benefits of the foregoing declaration shall be personal
to the declaring owner or lessee, and not transferable or
assignable in any way.
§22-6-37. Rules, orders and permits remain in effect.
The rules promulgated and all orders and permits in effect
upon the effective date of this article pursuant to the
provisions of former article one, chapter twenty-two-b of this
code, shall remain in full force and effect as if such rules,
orders and permits were adopted by the director established in
this chapter but all such rules, orders and permits shall be
subject to review by the director to ensure they are consistentwith the purposes and policies set forth in this chapter.
§22-6-38. Application of article; exclusions.
This article shall not apply to or affect any well work
permitted prior to the effective date of this article under
former article one, chapter twenty-two-b of this code, unless
such well is, after completion, whether such completion is prior
to or subsequent to the effective date of this article, deepened
subsequent to the effective date of this article through another
coal seam to another formation above the top of the uppermost
member of the "Onondaga Group" or to a depth of less than six
thousand feet, whichever is shallower.
§22-6-39. Injunctive relief.
(a) In addition to other remedies, and aside from various
penalties provided by law, whenever it appears to the director
that any person is violating or threatening to violate any
provision of this article, any order or final decision of the
director, or any lawful rule promulgated hereunder, the director
may apply in the name of the state to the circuit court of the
county in which the violations or any part thereof has occurred,
is occurring or is about to occur, or the judge thereof in
vacation, for an injunction against such persons and any other
other persons who have been, are or are about to be involved in
any practices, acts or admissions so in violation, enjoining such
person or persons from any violation or violations. Such
application may be made and prosecuted to conclusion, whether or
not any violation or violations have resulted or shall result, inprosecution or conviction under the provisions of this article.
(b) Upon application by the director, the circuit courts of
this state may, by mandatory or prohibitory injunction compel
compliance with the provisions of this article, and all orders
and final decisions of the director. The court may issue a
temporary injunction in any case pending a decision on the merits
of any application filed. Any other section of this code to the
contrary notwithstanding, the state shall not be required to
furnish bond or other undertaking as a prerequisite to obtaining
mandatory, prohibitory or temporary injunctive relief under the
provisions of this article.
(c) The judgment of the circuit court upon application
permitted by the provisions of this section, shall be final
unless reversed, vacated or modified on appeal to the supreme
court of appeals. Any such appeal shall be sought in the manner
and within the time provided by law for appeals from circuit
courts in other civil actions.
(d) The director shall be represented in all such
proceedings by the attorney general or the attorney general's
assistants or in such proceedings in the circuit courts by the
prosecuting attorney of the several counties as well, all without
additional compensation. The director, with the written approval
of the attorney general, may employ special counsel to represent
the director in any such proceedings.
(e) If the director shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of anyprovision of this article, any order or final decision of the
director, or any rules promulgated hereunder, within ten days
after receipt of a written request to do so by any well operator,
coal operator, operating coal seams beneath the tract of land, or
the coal seam owner or lessee, if any, if said owner or lessee is
not yet operating said coal seams beneath said tract of land,
adversely affected by such violation or threatened violation, the
person making such request may apply on their own behalf for an
injunction to enjoin such violation or threatened violation in
any court in which the director might have brought suit. The
director shall be made party defendant in such application in
addition to the person or persons violating or threatening to
violate any provisions of this article, any final order or
decision of the director, or any rule promulgated hereunder. The
application shall proceed and injunctive relief may be granted in
the same manner as if the application had been made by the
director: Except that the court may require a bond or other
undertaking from the plaintiff.
§22-6-40. Appeal from order of issuance or refusal of permit to
drill or fracture; procedure.
Any party to the proceeding under section fifteen of this
article or section seven, article eight, chapter twenty-two-c of
this code, adversely affected by the issuance of a drilling
permit or to the issuance of a fracturing permit or the refusal
of the director to grant a drilling permit or fracturing permit
is entitled to judicial review thereof. All of the pertinentprovisions of section four, article five, chapter twenty-nine-a
of this code shall apply to and govern such judicial review with
like effect as if the provisions of said section four were set
forth in extenso in this section.
The judgment of the circuit court shall be final unless reversed,
vacated or modified on appeal to the supreme court of appeals in
accordance with the provisions of section one, article six,
chapter twenty-nine-a of this code.
§22-6-41. Appeal from order of issuance or refusal of permit for
drilling location for introduction of liquids or waste or
from conditions of converting procedure.
Any party to the proceedings under section sixteen of this
article adversely affected by the order of issuance of a drilling
permit or to the issuance of a fracturing permit or the refusal
of the director to grant a drilling permit or fracturing permit
is entitled to judicial review thereof. All of the pertinent
provisions of section four, article five, chapter twenty-nine-a
of this code shall apply to and govern such judicial review with
like effect as if the provisions of section four were set forth
in extenso in this section.The judgment of the circuit court
shall be final unless reversed, vacated or modified on appeal to
the supreme court of appeals in accordance with the provisions of
section one, article six, chapter twenty-nine-a of this code.
ARTICLE 7. OIL AND GAS PRODUCTION DAMAGE COMPENSATION.
§22-7-1. Legislative findings and purpose.
(a) The Legislature finds the following:
(1) Exploration for and development of oil and gas reserves
in this state must coexist with the use, agricultural or
otherwise, of the surface of certain land and that each
constitutes a right equal to the other.
(2) Modern methods of extraction of oil and gas require the
use of substantially more surface area than the methods commonly
in use at the time most mineral estates in this state were
severed from the fee tract; and, specifically, the drilling of
wells by the rotary drilling method was virtually unknown in this
state prior to the year one thousand nine hundred sixty, so that
no person severing their oil and gas from their surface land and
no person leasing their oil and gas with the right to explore for
and develop the same could reasonably have known nor could it
have been reasonably contemplated that rotary drilling operations
imposed a greater burden on the surface than the cable tool
drilling method heretofore employed in this state; and since the
year one thousand nine hundred sixty, the use of rotary drilling
methods has spread slowly but steadily in this state, with
concomitant public awareness of its impact on surface land; and
that the public interest requires that the surface owner be
entitled to fair compensation for the loss of the use of surface
area during the rotary drilling operation, but recognizing the
right of the oil and gas operator to conduct rotary drilling
operations as allowed by law.
(3) Prior to the first day of January, one thousand nine
hundred sixty, the rotary method of drilling oil or gas wells wasvirtually unknown to the surface owners of this state nor was
such method reasonably contemplated during the negotiations which
occasioned the severance of either oil or gas from the surface.
(4) The Legislature further finds and creates a rebuttable
presumption that even after the thirty-first day of December, one
thousand nine hundred fifty-nine, and prior to the ninth day of
June, one thousand nine hundred eighty-three, it was unlikely
that any surface owner knew or should have known of the rotary
method of drilling oil or gas wells, but, that such knowledge was
possible and that the rotary method of drilling oil or gas wells
could have, in some instances, been reasonably contemplated by
the parties during the negotiations of the severance of the oil
and gas from the surface. This presumption against knowledge of
the rotary drilling method may be rebutted by a clear
preponderance of the evidence showing that the surface owner or
the surface owner's predecessor of record did in fact know of the
rotary drilling method at the time the owner or the owner's
predecessor executed a severance deed or lease of oil and gas and
that the owner or owner's predecessor fairly contemplated the
rotary drilling method and received compensation for the same.
(b) Any surface owner entitled to claim any finding or any
presumption which is not rebutted as provided in this section
shall be entitled to the compensation and damages of this
article.
(c) The Legislature declares that the public policy of this
state shall be that the compensation and damages provided in thisarticle for surface owners may not be diminished by any provision
in a deed, lease or other contract entered into after the ninth
day of June, one thousand nine hundred eighty-three.
(d) It is the purpose of this article to provide
constitutionally permissible protection and compensation to
surface owners of lands on which oil and gas wells are drilled
from the burden resulting from drilling operations commenced
after the ninth day of June, one thousand nine hundred eighty-
three. This article is to be interpreted in the light of the
legislative intent expressed herein. This article shall be
interpreted to benefit surface owners, regardless of whether the
oil and gas mineral estate was separated from the surface estate
and regardless of who executed the document which gave the oil
and gas developer the right to conduct drilling operations on the
land. Section four of this article shall be interpreted to
benefit all persons.
§22-7-2. Definitions.
(a) In this article, unless the context or subject matter
otherwise requires:
(1) "Agricultural production" means the production of any
growing grass or crop attached to the surface of the land,
whether or not the grass or crop is to be sold commercially, and
the production of any farm animals, whether or not the animals
are to be sold commercially;
(2) "Drilling operations" means the actual drilling or
redrilling of an oil or gas well commenced subsequent to theninth day of June, one thousand nine hundred eighty-three, and
the related preparation of the drilling site and access road,
which requires entry, upon the surface estate;
(3) "Oil and gas developer" means the person who secures the
drilling permit required by article six of this chapter;
(4) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or agency thereof;
(5) "Surface estate" means an estate in or ownership of the
surface of a particular tract of land overlying the oil or gas
leasehold being developed; and
(6) "Surface owner" means a person who owns an estate in fee
in the surface of land, either solely or as a co-owner.
§22-7-3. Compensation of surface owners for drilling operations.
(a) The oil and gas developer shall be obligated to pay the
surface owner compensation for: (1) Lost income or expenses
incurred as a result of being unable to dedicate land actually
occupied by the driller's operation or to which access is
prevented by such drilling operation to the uses to which it was
dedicated prior to commencement of the activity for which a
permit was obtained measured from the date the operator enters
upon the land until the date reclamation is completed; (2) the
market value of crops destroyed, damaged or prevented from
reaching market; (3) any damage to a water supply in use prior tothe commencement of the permitted activity; (4) the cost of
repair of personal property up to the value of replacement by
personal property of like age, wear and quality; and (5) the
diminution in value, if any, of the surface lands and other
property after completion of the surface disturbance done
pursuant to the activity for which the permit was issued
determined according to the actual use made thereof by the
surface owner immediately prior to the commencement of the
permitted activity.
The amount of damages may be determined by any formula
mutually agreeable between the surface owner and the oil and gas
developer.
(b) Any reservation or assignment of the compensation
provided in this section apart from the surface estate except to
a tenant of the surface estate is prohibited.
(c) In the case of surface lands owned by more than one
person as tenants in common, joint tenants or other co-ownership,
any claim for compensation under this article shall be for the
benefit of all such co-owners. The resolution of a claim for
compensation provided in this article shall operate as a bar to
the assertion of additional claims under this section arising out
of the same drilling operations.
§22-7-4. Common law right of action preserved; offsets.
(a) Nothing in section three or elsewhere in this article
shall be construed to diminish in any way the common law
remedies, including damages, of a surface owner or any otherperson against the oil and gas developer for the unreasonable,
negligent or otherwise wrongful exercise of the contractual
right, whether express or implied, to use the surface of the land
for the benefit of the developer's mineral interest.
(b) An oil and gas developer shall be entitled to offset
compensation agreed to be paid or awarded to a surface owner
under section three of this article against any damages sought by
or awarded to the surface owner through the assertion of common
law remedies respecting the surface land actually occupied by the
same drilling operation.
(c) An oil and gas developer shall be entitled to offset
damages agreed to be paid or awarded to a surface owner through
the assertion of common-law remedies against compensation sought
by or awarded to the surface owner under section three of this
article respecting the surface land actually occupied by the same
drilling operation.
§22-7-5. Notification of claim.
Any surface owner, to receive compensation under section
three of this article, shall notify the oil and gas developer of
the damages sustained by the person within two years after the
date that the oil and gas developer files notice that reclamation
is commencing under section thirty, article six of this chapter.
Such notice shall be given to surface owners by registered or
certified mail, return receipt requested, and shall be complete
upon mailing. If more than three tenants in common or other co-
owners hold interests in such lands, the developer may give suchnotice to the person described in the records of the sheriff
required to be maintained pursuant to section eight, article one,
chapter eleven-a of this code or publish in the county in which
the well is located or to be located a Class II legal
advertisement as described in section two, article three, chapter
fifty-nine of this code, containing such notice and information
as the director shall prescribe by rule.
§22-7-6. Agreement; offer of settlement.
Unless the parties provide otherwise by written agreement,
within sixty days after the oil and gas developer received the
notification of claim specified in section five of this article,
the oil and gas developer shall either make an offer of
settlement to the surface owner seeking compensation, or reject
the claim. The surface owner may accept or reject any offer so
made.
§22-7-7. Rejection; legal action; arbitration; fees and costs.
(a) Unless the oil and gas developer has paid the surface
owner a negotiated settlement of compensation within sixty days
after the date the notification of claim was mailed under section
five of this article, the surface owner may, within eighty days
after the notification mail date, either: (i) Bring an action
for compensation in the circuit court of the county in which the
well is located; or (ii) elect instead, by written notice
delivered by personal service or by certified mail, return
receipt requested, to the designated agent named by the oil and
gas developer under the provisions of section six, article six ofthis chapter, to have his compensation finally determined by
binding arbitration pursuant to article ten, chapter fifty-five
of this code.
Settlement negotiations, offers and counter-offers between
the surface owner and the oil and gas developer shall not be
admissible as evidence in any arbitration or judicial proceeding
authorized under this article, or in any proceeding resulting
from the assertion of common law remedies.
(b) The compensation to be awarded to the surface owner
shall be determined by a panel of three disinterested
arbitrators. The first arbitrator shall be chosen by the surface
owner in such party's notice of election under this section to
the oil and gas developer; the second arbitrator shall be chosen
by the oil and gas developer within ten days after receipt of the
notice of election; and the third arbitrator shall be chosen
jointly by the first two arbitrators within twenty days
thereafter. If they are unable to agree upon the third
arbitrator within twenty days, then the two arbitrators are
hereby empowered to and shall forthwith submit the matter to the
court under the provisions of section one, article ten, chapter
fifty-five of this code, so that, among other things, the third
arbitrator can be chosen by the judge of the circuit court of the
county wherein the surface estate lies.
(c) The following persons shall be deemed interested and not
be appointed as arbitrators: Any person who is personally
interested in the land on which rotary drilling is beingperformed or has been performed, or in any interest or right
therein, or in the compensation and any damages to be awarded
therefor, or who is related by blood or marriage to any person
having such personal interest, or who stands in the relation of
guardian and ward, master and servant, principal and agent, or
partner, real estate broker, or surety to any person having such
personal interest, or who has enmity against or bias in favor of
any person who has such personal interest or who is the owner of,
or interested in, such land or the oil and gas development
thereof. No person shall be deemed interested or incompetent to
act as arbitrator by reason of being an inhabitant of the county,
district or municipal corporation wherein the land is located, or
holding an interest in any other land therein.
(d) The panel of arbitrators shall hold hearings and take
such testimony and receive such exhibits as shall be necessary to
determine the amount of compensation to be paid to the surface
owner. However, no award of compensation shall be made to the
surface owner unless the panel of arbitrators has first viewed
the surface estate in question. A transcript of the evidence may
be made but shall not be required.
(e) Each party shall pay the compensation of such party's
arbitrator and one half of the compensation of the third
arbitrator, or such party's own court costs as the case may be.
§22-7-8. Application of article.
The remedies provided by this article shall not preclude any
person from seeking other remedies allowed by law.
ARTICLE 8. TRANSPORTATION OF OILS.
§22-8-1. Scope of article.
Every person, corporation or company now engaged, or which
shall hereafter engage, in the business of transporting or
storing petroleum, by means of pipeline or lines or storage by
tanks, shall be subject to the provisions of this article and
shall conduct such business in conformity herewith:
Provided,
That the provisions of this article shall be subject to all
federal laws regulating interstate commerce on the same subject.
§22-8-2. Duty of pipeline companies to accept and transport oil.
Any company heretofore or hereafter organized for the
purpose of transporting petroleum or other oils or liquids by
means of pipeline or lines shall be required to accept all
petroleum offered to it in merchantable order in quantities of
not less than two thousand gallons at the wells where the same is
produced, making at its own expense all necessary connections
with the tanks or receptacles containing such petroleum, and to
transport and deliver the same at any delivery station, within or
without the state, on the route of its line of pipes, which may
be designated by the owners of the petroleum so offered.
§22-8-3. Oil of 35 degrees Baume at 60 degrees Fahrenheit;
inspection, grading and measurement; receipt; deduction for
waste.
All petroleum of a gravity of thirty-five degrees Baume or
under, at a temperature of sixty degrees Fahrenheit, offered for
transportation by means of pipeline or lines, shall, before thesame is transported, as provided by section two of this article,
be inspected, graded and measured at the expense of the pipeline
company, and the company accepting the same for transportation
shall give to the owner thereof a receipt stating therein the
number of barrels or gallons so received, and the grade, gravity
and measurement thereof, and within a reasonable time thereafter,
upon demand of the owner or the owner's assigns, shall deliver to
the owner or the owner's assigns at the point of delivery a like
quantity and grade or gravity of petroleum in merchantable
condition as specified in such receipt; except that the company
may deduct for waste one percent of the amount of petroleum
specified in such receipt.
§22-8-4. Oil over 35 degrees Baume at 60 degrees Fahrenheit;
inspection and measurement; loss.
All petroleum of a gravity exceeding thirty-five degrees
Baume, at a temperature of sixty degrees Fahrenheit, offered for
transportation by means of pipeline or lines, shall be inspected
and measured at the expense of the company transporting the same,
before the same is transported. The company accepting the same
for transportation shall give to the owner thereof, or to the
person in charge of the well or wells from which such petroleum
has been produced and run, a ticket signed by its gauger, stating
the number of feet and inches of petroleum which were in the tank
or receptacle containing the same before the company began to run
the contents from such tank, and the number of feet and inches of
petroleum which remained in the tank after such run wascompleted. All deductions made for water, sediment or the like
shall be made at the time such petroleum is measured. Within a
reasonable time thereafter the company shall, upon demand,
deliver from the petroleum in its custody to the owner thereof,
or to the owner's assignee, at such delivery station on the route
of its line of pipes as the owner or the owner's assignee may
elect, a quantity of merchantable petroleum, equal to the
quantity of petroleum run from such tank, or receptacle, which
shall be ascertained by computation; except that the company
transporting such petroleum may deduct for evaporation and waste
two percent of the amount of petroleum so run, as shown by such
run ticket, and except that in case of loss of any petroleum
while in the custody of the company caused by fire, lightning,
storm or other like unavoidable cause, such loss shall be borne
pro rata by all the owners of such petroleum at the time thereof.
But the company shall be liable for all petroleum that is lost
while in its custody by the bursting of pipes or tanks, or by
leakage from pipes or tanks; and it shall also be liable for all
petroleum lost from tanks at the wells produced before the same
has been received for transportation, if such loss be due to
faulty connections made to such tanks; and the company shall be
liable for all petroleum lost by the overflow of any tanks with
which pipeline connections have been made, if such overflow be
due to the negligence of such company, and for all the petroleum
lost by the overflow of any tanks with which pipeline connections
should have been made under the provisions of this article, butwere not so made by reason of negligence or delay on the part of
the company.
§22-8-5. Lien for charges.
Any company engaged in transporting or storing petroleum
shall have a lien upon such petroleum until all charges for
transporting and storing the same are paid.
§22-8-6. Accepted orders and certificates for oil --
Negotiability.
Accepted orders and certificates for petroleum, issued by
any company engaged in the business of transporting and storing
petroleum in this state by means of pipeline or lines and tanks,
shall be negotiable, and may be transferred by indorsement either
in blank or to the order of another, and any person to whom such
accepted orders and certificates shall be so transferred shall be
deemed and taken to be the owner of the petroleum therein
specified.
§22-8-7. Same -- Further provisions.
No receipt, certificate, accepted order or other voucher
shall be issued or put in circulation, nor shall any order be
accepted or liability incurred for the delivery of any petroleum,
crude or refined, unless the amount of such petroleum represented
in or by such receipt, certificate, accepted order, or other
voucher or liability, shall have been actually received by and
shall then be in the tanks and lines, custody and control of the
company issuing or putting in circulation such receipt,
certificate, accepted order or voucher, or written evidence ofliability. No duplicate receipt, certificate, accepted order or
other voucher shall be issued or put in circulation, or any
liability incurred for any petroleum, crude or refined, while any
former liability remains in force, or any former receipt,
certificate, accepted order or other voucher shall be outstanding
and uncanceled, except such original papers shall have been lost,
in which case a duplicate, plainly marked "duplicate" upon the
face, and dated and numbered as the lost original was dated and
numbered, may be issued. No receipt, voucher, accepted order,
certificate or written evidence of liability of such company on
which petroleum, crude or refined, has been delivered, shall be
reissued, used or put in circulation. No petroleum, crude or
refined, for which a receipt, voucher, accepted order,
certificate or liability incurred, shall have been issued or put
in circulation, shall be delivered, except upon the surrender of
the receipt, voucher, order or liability representing such
petroleum, except upon affidavit of loss of such instrument made
by the former holder thereof. No duplicate receipt, certificate,
voucher, accepted order or other evidence of liability, shall be
made, issued or put in circulation until after notice of the loss
of the original, and of the intention to apply for a duplicate
thereof, shall have been given by advertisement over the
signature of the owner thereof as a Class II legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area for such
publication shall be the county where such duplicate is to beissued. Every receipt, voucher, accepted order, certificate or
evidence of liability, when surrendered or the petroleum
represented thereby delivered, shall be immediately canceled by
stamping and punching the same across the face in large and
legible letters with the word "canceled", and giving the date of
such cancellation; and it shall then be filed and preserved in
the principal office of such company for a period of six years.
§22-8-8. Dealing in oil without consent of owner.
No company, its officers or agents, or any person or persons
engaged in the transportation or storage of petroleum, crude or
refined, shall sell or encumber, ship, transfer, or in any manner
remove or procure, or permit to be sold, encumbered, shipped,
transferred, or in any manner removed from the tanks or pipes of
such company engaged in the business aforesaid, any petroleum,
crude or refined, without the written order of the owner or a
majority of the owners in interest thereof.
§22-8-9. Monthly statements.
Every company now or hereafter engaged in the business of
transporting by pipelines or storing crude or refined petroleum
in this state shall, on or before the tenth day of each month,
make or cause to be made and posted in its principal business
office in this state, in an accessible and convenient place for
the examination thereof by any person desiring such examination,
and shall keep so posted continuously until the next succeeding
statement is so posted, a statement plainly written or printed,
signed by the officer, agent, person or persons having charge ofthe pipes and tanks of such company, and also by the officer or
officers, person or persons, having charge of the books and
accounts thereof, which statement shall show in legible and
intelligible form the following details of the business: (a) How
much petroleum, crude or refined, was in the actual and immediate
custody of such company at the beginning and close of the
previous month, and where the same was located or held;
describing in detail the location and designation of each tank or
place of deposit, and the name of its owner; (b) how much
petroleum, crude or refined, was received by such company during
the previous month; (c) how much petroleum, crude or refined, was
delivered by such company during the previous month; (d) for how
much petroleum, crude or refined, such company was liable for the
delivery or custody of to other corporations, companies or
persons at the close of the month; (e) how much of such liability
was represented by outstanding receipts or certificates, accepted
orders or other vouchers, and how much was represented by credit
balances; and (f) that all the provisions of this article have
been faithfully observed and obeyed during the previous month.
The statement so required to be made shall also be sworn to by
such officer, agent, person or persons before some officer
authorized by law to administer oaths, which shall be in writing,
and shall assert the familiarity and acquaintance of the deponent
with the business and condition of such company, and with the
facts sworn to, and that the statements made in such report are
true.
§22-8-10. Statements of amount of oil.
All amounts in the statements required by this article, when
the petroleum is handled in bulk, shall be given in barrels and
hundredths of barrels, reckoning forty-two gallons to each
barrel, and when such petroleum is handled in barrels or
packages, the number of such barrels or packages shall be given,
and such statements shall distinguish between crude and refined
petroleum, and give the amount of each. Every company engaged in
the business aforesaid shall at all times have in their pipes and
tanks an amount of merchantable oil equal to the aggregate of
outstanding receipts, certificates, accepted orders, vouchers,
acknowledgments, evidences of liability, and credit balances, on
the books thereof.
§22-8-11. Penalty -- Wrongful issuance, sale or alteration of
receipts, orders, etc.
Any company, or its officers or agents, who shall make or
cause to be made, sign or cause to be signed, issue or cause to
be issued, put in circulation or cause to be put in circulation,
any receipt, accepted order, certificate, voucher or evidence of
liability, or shall sell, transfer or alter the same, or cause
such sale, transfer or alteration, contrary to the provisions of
this article, or shall do or cause to be done any of the acts
prohibited by section seven of this article, or omit to do any of
the acts by said section directed, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
exceeding one thousand dollars, and, if the offender be a naturalperson, imprisoned not less than ten days nor exceeding one year.
§22-8-12. Same -- Dealing in oil without consent of owner in
interest.
Any company, its officers or agents, who shall sell,
encumber, transfer or remove, or cause or procure to be sold,
transferred or removed from the tanks or pipes of such company,
any petroleum, crude or refined, without the written consent of
the owner or a majority of the owners in interest thereof, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined one thousand dollars and, if the offender be a natural
person, imprisoned in the county jail not less than ninety days
nor more than one year.
§22-8-13. Same -- Failure to make report and statement.
Any company engaged in the business of transporting by
pipelines or storing petroleum, crude or refined, and each and
every officer or agent of such company, who shall neglect or
refuse to make the report and statement required by section nine
of this article, within the time and the manner directed by said
section, shall forfeit and pay the sum of one thousand dollars,
and in addition thereto the sum of five hundred dollars for each
day after the tenth day of the month that the report and
statement required by said section nine shall remain unposted as
therein directed.
ARTICLE 9. UNDERGROUND GAS STORAGE RESERVOIRS.
§22-9-1. Definitions.
In this article unless the context otherwise requires:
(1) The term "coal mine" means those operations in a coal
seam which include the excavated and abandoned portions as well
as the places actually being worked; also all underground
workings and shafts, slopes, tunnels, and other ways and openings
and all such shafts, slopes, tunnels and other openings in the
course of being sunk or driven, together with all roads and
facilities connected with them below the surface.
(2) The term "operating coal mine" means: (a) A coal mine
which is producing coal or has been in production of coal at any
time during the twelve months immediately preceding the date its
status is put in question under this article and any worked out
or abandoned coal mine connected underground with or contiguous
to such operating coal mine as herein defined; and (b) any coal
mine to be established or reestablished as an operating coal mine
in the future pursuant to section four of this article.
(3) The term "outside coal boundaries" when used in
conjunction with the term "operating coal mine" means the
boundaries of the coal acreage assigned to such coal mine and
which can be practicably and reasonably expected to be mined
through such coal mine.
(4) The term "well" means a borehole drilled or proposed to
be drilled within the storage reservoir boundary or reservoir
protective area for the purpose of or to be used for producing,
extracting or injecting any gas, petroleum or other liquid but
excluding boreholes drilled to produce potable water to be used
as such.
(5) The term "gas" means any gaseous substance.
(6) The term "storage reservoir" means that portion of any
subterranean sand or rock stratum or strata into which gas is or
may be injected for the purpose of storage or for the purpose of
testing whether said stratum is suitable for storage.
(7) The term "bridge" means an obstruction placed in a well
at any specified depth.
(8) The term "linear foot" means a unit of measurement in a
straight line on a horizontal plane.
(9) The term "person" means any individual, association,
partnership or corporation.
(10) The term "reservoir protective area" means all of that
area outside of and surrounding the storage reservoir boundary
but within two thousand linear feet thereof.
(11) The term "retreat mining" means the removal of such
coal, pillars, ribs and stumps as remain after the development
mining has been completed in that section of a coal mine.
(12) The term "pillar" means a solid block of coal
surrounded by either active mine workings or a mined out area.
(13) The term "inactivate" means to shut off all flow of gas
from a well by means of a temporary plug, or other suitable
device or by injecting aquagel or other such equally nonporous
material into the well.
(14) The term "storage operator" means any person as herein
defined who proposes to or does operate a storage reservoir,
either as owner or lessee.
(15)The term "workable coal seam" has the same meaning as
the term "workable coal bed" as set out in section one, article
six of this chapter.
(16) The terms "owner", "coal operator", "well operator",
"plat", "casing", "oil" and "cement" shall have the meanings set
out in section one, article six of this chapter.
§22-9-2. Filing of maps and data by persons operating or
proposing to operate gas storage reservoirs.
(a) Any person who, on the eighth day of June, one thousand
nine hundred fifty-five, is injecting gas into or storing gas in
a storage reservoir which underlies or is within three thousand
linear feet of an operating coal mine which is operating in a
coal seam that extends over the storage reservoir or the
reservoir protective area shall, within sixty days thereafter,
file with the division a copy of a map and certain data in the
form and manner provided in this subsection.
Any person who, on the eighth day of June, one thousand nine
hundred fifty-five, is injecting gas into or storing gas in a
storage reservoir which is not at such date under or within three
thousand linear feet, but is less than ten thousand linear feet
from an operating coal mine which is operating in a coal seam
that extends over the storage reservoir or the reservoir
protective area, shall file such map and data within such time in
excess of sixty days as the director may fix.
Any person who, after the eighth day of June, one thousand
nine hundred fifty-five, proposes to inject or store gas in astorage reservoir located as above shall file the required map
and data with the director not less than six months prior to the
starting of actual injection or storage.
The map provided for herein shall be prepared by a competent
engineer or geologist. It shall show the stratum or strata in
which the existing or proposed storage reservoir is or is to be
located, the geographic location of the outside boundaries of the
said storage reservoir and the reservoir protective area, the
location of all known oil or gas wells which have been drilled
into or through the storage stratum within the reservoir or
within three thousand linear feet thereof, indicating which of
these wells have been, or are to be cleaned out and plugged or
reconditioned for storage and also indicating the proposed
location of all additional wells which are to be drilled within
the storage reservoir or within three thousand linear feet
thereof.
The following information, if available, shall be furnished
for all known oil or gas wells which have been drilled into or
through the storage stratum within the storage reservoir or
within three thousand linear feet thereof; name of the operator,
date drilled, total depth, depth of production if the well was
productive of oil or gas, the initial rock pressure and volume,
the depths at which all coal seams were encountered and a copy of
the driller's log or other similar information. At the time of
the filing of the aforesaid maps and data such person shall file
a detailed statement of what efforts have been made to determine: (1) That the wells shown on said map are accurately located
thereon; and (2) that to the best of such person's knowledge the
wells are all the oil or gas wells which have ever been drilled
into or below the storage stratum within the proposed storage
reservoir or within the reservoir protective area. This
statement shall also include information as to whether or not the
initial injection is for testing purposes, the maximum pressures
at which injection and storage of gas is contemplated, and a
detailed explanation of the methods to be used or which
theretofore have been used in drilling, cleaning out,
reconditioning or plugging wells in the storage reservoir or
within the reservoir protective area. The map and data required
to be filed hereunder shall be amended or supplemented
semiannually in case any material changes have occurred:
Provided, That the director may require a storage operator to
amend or supplement such map or data at more frequent intervals
if material changes have occurred justifying such earlier filing.
At the time of the filing of the above maps and data, and
the filing of amended or supplemental maps or data, the director
shall give written notice of said filing to all persons who may
be affected under the provisions of this subsection by the
storage reservoir described in such maps or data. Such notices
shall contain a description of the boundaries of such storage
reservoir. When a person operating a coal mine or owning an
interest in coal properties which are or may be affected by the
storage reservoir, requests in writing a copy of any map or datafiled with the director such copy shall be furnished by the
storage operator.
(b) Any person who, on the eighth day of June, one thousand
nine hundred fifty-five, is injecting gas into or storing gas in
any other storage reservoir in this state not subject to
subsection (a) of this section shall, on or before the first day
of July, one thousand nine hundred eighty-three, file with the
division a map in the same detail as the map required for a
storage reservoir subject to said subsection; and, if the initial
injection of gas into the storage reservoir by such person or any
predecessor occurred after the thirty-first day of December, one
thousand nine hundred seventy, data in the same detail as the
data required for a storage reservoir shall be filed subject to
said subsection:
Provided, That in the case of a storage
reservoir the operation of which has been certified by the
federal power commission or the federal energy regulatory
commission under section seven of the federal Natural Gas Act,
the person may, in lieu of the data, submit copies of the
application and all amendments and supplements of record in the
federal docket, together with the certificate of public
convenience and necessity and any amendments thereto.
Any person who, after the eighth day of June, one thousand
nine hundred fifty-five, proposes to inject or store gas in any
other storage reservoir in this state not subject to subsection
(a) of this section shall file with the division a map and data
in the same detail as the map and data required for a storagereservoir subject to said subsection not less than six months
prior to the starting of actual injection or storage:
Provided,
That in the case of a storage reservoir the operation of which
will be required to be certificated by the federal energy
regulatory commission, the person may, in lieu of the data,
submit copies of the application and all amendments and
supplementals filed in the federal docket, together with the
certificate of public convenience and necessity and any
amendments thereto, within twenty days after the same have been
filed by such person or issued by the federal energy regulatory
commission.
At the time of the filing of the above maps and data or
documents in lieu of data and filing of amended or supplemental
maps or data or documents in lieu of data, or upon receipt of an
application filed with the federal energy regulatory commission
for a new storage reservoir, the director shall give notice of
said filing by a Class II legal advertisement in accordance with
the provisions of article three, chapter fifty-nine of this code,
the publication area for which shall be the county or counties in
which the storage reservoir is located. Such legal
advertisements shall contain a description of the boundaries of
such storage reservoir. The storage operator shall pay for the
legal advertisement upon receipt of the invoice therefor from the
division. When any person owning an interest in land which is or
may be affected by the storage reservoir requests in writing a
copy of any map or data or documents in lieu of data filed withthe division, such copy shall be furnished by the storage
operator.
(c) The director shall also intervene in the federal docket,
and participate in the proceedings for the purpose of assuring
that the certificate of public convenience and necessity issued
by the federal energy regulatory commission does not authorize
operations or practices in conflict with the provisions of this
article. The director may cooperate with the public service
commission if the commission also intervenes. The attorney
general is hereby directed to provide legal representation to the
director to achieve the purposes of this subsection.
(d) For all purposes of this article, the outside boundaries
of a storage reservoir shall be defined by the location of those
wells around the periphery of the storage reservoir which had no
gas production when drilled in said storage stratum:
Provided,
That the boundaries as thus defined shall be originally fixed or
subsequently changed where, based upon the number and nature of
such wells, upon the geological and production knowledge of the
storage stratum, its character, permeability, and distribution,
and operating experience, it is determined in a conference or
hearing under section ten of this article that modification
should be made.
§22-9-3. Filing of maps and data by persons operating coal
mines.
(a) Any person owning or operating a coal mine, who has not
already done so pursuant to the former provisions of articlefour, chapter twenty-two-b of this code, shall, within thirty
days from the effective date of this article, file with the
director a map, prepared by a competent engineer, showing the
outside coal boundaries of the said operating coal mine, the
existing workings and exhausted areas and the relationship of
said boundaries to identifiable surface properties and landmarks.
Any person who is storing or contemplating the storage of gas in
the vicinity of such operating coal mines shall, upon written
request, be furnished a copy of the aforesaid map by the coal
operator and such person and the director shall thereafter be
informed of any boundary changes at the time such changes occur.
The director shall keep a record of such information and shall
promptly notify both the coal operator and the storage operator
if it is found that the coal mine and the storage reservoir are
within ten thousand linear feet of each other.
(b) Any person owning or operating any coal mine which, on
the tenth day of March, one thousand nine hundred fifty-five, is
or which thereafter comes within ten thousand linear feet of a
storage reservoir, and where the coal seam being operated extends
over the storage reservoir or the reservoir protective area,
shall within forty-five days after such person has notice from
the director of such fact, file with the director and furnish to
the person operating such storage reservoir, a map in the form
hereinabove provided and showing in addition, the existing and
projected excavations and workings of such operating coal mine
for the ensuing eighteen-month period, and also the location ofany oil or gas wells of which said coal operator has knowledge.
Such person owning or operating said coal mine shall each six
months thereafter file with the director and furnish to the
person operating such storage reservoir a revised map showing any
additional excavations and workings, together with the projected
excavations and workings for the then ensuing eighteen-month
period which may be within ten thousand linear feet of said
storage reservoir:
Provided, That the director may require a
coal operator to file such revised map at more frequent intervals
if material changes have occurred justifying such earlier filing.
Such person owning or operating said coal mine shall also file
with the director and furnish the person operating said reservoir
prompt notice of any wells which have been cut into, together
with all available pertinent information.
§22-9-4. Notice by persons operating coal mines.
(a) Any person owning or operating a coal mine on the eighth
day of June, one thousand nine hundred fifty-five, and having
knowledge that it overlies or is within two thousand linear feet
of a gas storage reservoir, shall within thirty days notify the
director and the storage operator of such fact unless such
notification has already been provided to the director pursuant
to the provisions of former article four, chapter twenty-two-b of
this code.
(b) When any person owning or operating a coal mine
hereafter expects that within the ensuing nine-month period such
coal mine will be extended to a point which will be within twothousand linear feet of any storage reservoir, such person shall
notify the director and the storage operator in writing of such
fact.
(c) Any person hereafter intending to establish or
reestablish an operating coal mine which when established or
reestablished will be over a storage reservoir or within two
thousand linear feet of a storage reservoir, or which upon being
established or reestablished may within nine months thereafter be
expected to be within two thousand linear feet of a storage
reservoir, shall notify the director and the storage operator in
writing before doing so and such notice shall include the date on
which it is intended the operating coal mine will be established
or reestablished.
Any person who serves such notice of an intention to
establish or reestablish an operating coal mine under this
subsection, without intending in good faith to establish or
reestablish such mine, shall be liable for continuing damages to
any storage operator injured by the serving of such improper
notice and shall be guilty of a misdemeanor under this article
and subject to the same penalties as set forth in section twelve
of this article.
§22-9-5. Obligations to be performed by persons operating
storage reservoirs.
(a) Any person who, on or after June eighth, one thousand
nine hundred fifty-five, is operating a storage reservoir which
underlies or is within two thousand linear feet of an operatingcoal mine which is operating in a coal seam that extends over the
storage reservoir or the reservoir protective area, shall:
(1) Use every known method which is reasonable under the
circumstances for discovering and locating all wells which have
or may have been drilled into or through the storage stratum in
that acreage which is within the outside coal boundaries of such
operating coal mine and which overlies the storage reservoir or
the reservoir protective area;
(2) Plug or recondition, in the manner provided by sections
twenty-three and twenty-four, article six of this chapter and
subsection (e) of this section, all known wells (except to the
extent otherwise provided in subsections (e), (f), (g) and (h) of
this section) drilled into or through the storage stratum and
which are located within that portion of the acreage of the
operating coal mine overlying the storage reservoir or the
reservoir protective area:
Provided, That where objection is
raised as to the use of any well as a storage well, and after a
conference or hearing in accordance with section ten of this
article it is determined, taking into account all the
circumstances and conditions, that such well should not be used
as a storage well, such well shall be plugged:
Provided,
however, That if, in the opinion of the storage operator, the
well to which such objection has been raised may at some future
time be used as a storage well, the storage operator may
recondition and inactivate such well instead of plugging it, if
such alternative is approved by the director after taking intoaccount all of the circumstances and conditions.
The requirements of subdivision (2) of this subsection shall
be deemed to have been fully complied with if, as the operating
coal mine is extended, all wells which, from time to time, come
within the acreage described in said subdivision are
reconditioned or plugged as provided in subsection (e) or (f) of
this section and in section twenty-four, article six of this
chapter so that by the time the coal mine has reached a point
within two thousand linear feet of any such wells, they will have
been reconditioned or plugged so as to meet the requirements of
said subsection (e) or (f) and of said section.
(b) Any person operating a storage reservoir referred to in
subsection (a) of this section who has not already done so
pursuant to the provisions of former article four, chapter
twenty-two-b of this code, shall within sixty days after the
effective date of this article file with the director and furnish
a copy to the person operating the affected operating coal mine,
a verified statement setting forth:
(1) That the map and any supplemental maps required by
subsection (a), section two of this article have been prepared
and filed in accordance with section two;
(2) A detailed explanation of what the storage operator has
done to comply with the requirements of clauses (1) and (2),
subsection (a) of this section and the results thereof;
(3) Such additional efforts, if any, as the storage operator
is making and intends to make to locate all oil and gas wells;and
(4) Any additional wells that are to be plugged or
reconditioned to meet the requirements of clause (2), subsection
(a) of this section.
If such statement is not filed by the storage reservoir
operator within the time specified herein, the director shall
summarily order such operator to file such statement.
(c) Within one hundred twenty days after the receipt of any
such statement, the director may, and shall, if so requested by
either the storage operator or the coal operator affected, direct
that a conference be held in accordance with section ten of this
article to determine whether the information as filed indicates
that the requirements of section two of this article and of
subsection (a) of this section have been fully complied with. At
such conference, if any person shall be of the opinion that such
requirements have not been fully complied with, the parties shall
attempt to agree on what additional things are to be done and the
time within which they are to be completed, subject to the
approval of the director, to meet the said requirements.
If such agreement cannot be reached, the director shall
direct that a hearing be held in accordance with section ten of
this article. At such hearing the director shall determine
whether the requirements of said section two of this article and
of subsection (a) of this section have been met and shall issue
an order setting forth such determination. If the director shall
determine that any of the said requirements have not been met,the order shall specify, in detail, both the extent to which such
requirements have not been met, and the things which the storage
operator must do to meet such requirements. The order shall
grant to the storage operator such time as is reasonably
necessary to complete each of the things which such operator is
directed to do. If, in carrying out said order, the storage
operator encounters conditions which were not known to exist at
the time of the hearing and which materially affect the validity
of said order or the ability of the storage operator to comply
with the order, the storage operator may apply for a rehearing or
modification of said order.
(d) Whenever, in compliance with subsection (a) of this
section, a storage operator, after the filing of the statement
provided for in subsection (b) of this section, plugs or
reconditions a well, such operator shall so notify the director
and the coal operator affected in writing, setting forth such
facts as will indicate the manner in which the plugging or
reconditioning was done. Upon receipt thereof, the coal operator
affected or the director may request a conference or hearing in
accordance with section ten of this article.
(e) In order to meet the requirements of subsection (a) of
this section, wells which are to be plugged shall be plugged in
the manner specified in section twenty-four, article six of this
chapter. When a well located within the storage reservoir or the
reservoir protective area has been plugged prior to the tenth day
of March, one thousand nine hundred fifty-five, and on the basisof the data, information and other evidence submitted to the
director, it is determined that: (1) Such plugging was done in
the manner required in section twenty-four, article six of this
chapter; and (2) said plugging is still sufficiently effective to
meet the requirements of this article, the obligations imposed by
subsection (a) of this section as to plugging said well shall be
considered fully satisfied.
(f) In order to meet the requirements of subsection (a) of
this section, wells which are to be reconditioned shall be
cleaned out from the surface through the storage horizon and the
following casing strings shall be pulled and replaced with new
casing, using the same procedure as is applicable to drilling a
new well as provided for in sections eighteen, nineteen and
twenty, article six of this chapter: (1) The producing casing;
(2) the largest diameter casing passing through the lowest
workable coal seam unless such casing extends at least twenty-
five feet below the bottom of such coal seam and is determined to
be in good physical condition:
Provided, That the storage
operator may, instead of replacing the largest diameter casing,
replace the next largest casing string if such casing string
extends at least twenty-five feet below the lowest workable coal
seam; and (3) such other casing strings which are determined not
to be in good physical condition. In the case of wells to be
used for gas storage, the annular space between each string of
casing, and the annular space behind the largest diameter casing
to the extent possible, shall be filled to the surface withcement or aquagel or such equally nonporous material as is
approved by the director pursuant to section eight of this
article. At least fifteen days prior to the time when a well is
to be reconditioned the storage operator shall give notice
thereof to the coal operator or owner and to the director setting
forth in such notice the manner in which it is planned to
recondition such well and any pertinent data known to the storage
operator which will indicate the then existing condition of such
well. In addition the storage operator shall give the coal
operator or owner and such representative of the director as the
director shall have designated at least seventy-two hours notice
of the time when such reconditioning is to begin. The coal
operator or owner shall have the right to file, within ten days
after the receipt of the first notice required herein, objections
to the plan of reconditioning as submitted by the storage
operator. If no such objections are filed or if none is raised
by the director within such ten-day period, the storage operator
may proceed with the reconditioning in accordance with the plan
as submitted. If any such objections are filed by the coal
operator or owner or are made by the director, the director shall
fix a time and place for a conference in accordance with section
ten of this article at which conference the well operator and the
person who has filed such objections shall endeavor to agree upon
a plan of reconditioning which meets the requirements herein and
which will satisfy such objections. If no plan is approved at
such conference, the director shall direct that a hearing be heldin accordance with section ten of this article and, after such
hearing, shall by an appropriate order determine whether the plan
as submitted meets the requirements set forth herein, or what
changes, if any, should be made to meet such requirements. If,
in reconditioning a well in accordance with said plan, physical
conditions are encountered which justify or necessitate a change
in said plan, the storage operator or the coal operator may
request that the plan be changed. If the storage operator and
the coal operator cannot agree upon such change, the director
shall arrange for a conference or hearing in accordance with
section ten of this article to determine the matter in the same
manner as set forth herein in connection with original objections
to said plan. Application may be made to the director in the
manner prescribed in section eight of this article for approval
of an alternative method of reconditioning a well. When a well
located within the storage reservoir or the reservoir protective
area has been reconditioned prior to the tenth day of March, one
thousand nine hundred fifty-five, or was so drilled and equipped
previously and on the basis of the data, information and other
evidence submitted to the director, it is determined that: (1)
Such reconditioning or previous drilling and equipping was done
in the manner required in this subsection, or in a manner
approved as an alternative method in accordance with section
eight of this article; and (2) such reconditioning or previous
drilling and equipping is still sufficiently effective to meet
the requirements of this article, the obligations imposed bysubsection (a) as to reconditioning said well shall be considered
fully satisfied. Where a well requires emergency repairs this
subsection shall not be construed to require the storage operator
to give the notices specified herein before making such repairs.
(g) When a well located within the reservoir protective area
is a producing well in a stratum below the storage stratum the
obligations imposed by subsection (a) of this section shall not
begin until such well ceases to be a producing well.
(h) When a well within a storage reservoir or the reservoir
protective area penetrates the storage stratum but does not
penetrate the coal seam being mined by an operating coal mine the
director may, upon application of the operator of such storage
reservoir, exempt such well from the requirements of this
section. Either party affected may request a conference and
hearing with respect to the exemption of any such well in
accordance with section ten of this article.
(i) In fulfilling the requirements of clause (2), subsection
(a) of this section with respect to a well within the reservoir
protective area, the storage operator shall not be required to
plug or recondition such well until he has received from the coal
operator written notice that the mine workings will within the
period stated in such notice, be within two thousand linear feet
of such well. Upon the receipt of such notice the storage
operator shall use due diligence to complete the plugging or
reconditioning of such well in accordance with the requirements
of this section and of section twenty-four, article six of thischapter. If the said mine workings do not, within a period of
three years after said well has been plugged, come within two
thousand linear feet of said well, the coal operator shall
reimburse the storage operator for the cost of said plugging,
provided such well is still within the reservoir protective area
as of that time.
(j) When retreat mining approaches a point where within
ninety days it is expected that such retreat work will be at the
location of the pillar surrounding an active storage well the
coal operator shall give written notice of such approach to the
storage operator and by agreement said parties shall determine
whether it is necessary or advisable to inactivate effectively
said well temporarily. The well shall not be reactivated until
a reasonable period has elapsed, such reasonable period to be
determined by the said parties. In the event that the said
parties cannot agree upon either of the foregoing matters, such
question shall be submitted to the director for decision in
accordance with section ten of this article. The number of wells
required to be temporarily inactivated during the retreat period
shall not be such as to materially affect the efficient operation
of such storage pool. This provision shall not preclude the
temporary inactivation of a particular well where the practical
effect of inactivating such well is to render the pool
temporarily inoperative.
(k) The requirements of subsections (a), (l) and (m) of this
section shall not apply to the injection of gas into any stratumwhen the sole purpose of such injection (such purpose being
herein referred to as testing) is to determine whether the said
stratum is suitable for storage purposes:
Provided, That such
testing shall be conducted only in compliance with the following
requirements:
(1) The person testing or proposing to test shall comply
with all the provisions and requirements of section two of this
article and shall verify the statement required to be filed
thereby;
(2) If any part of the proposed storage reservoir is under
or within two thousand linear feet of an operating coal mine
which is operating in a coal seam that extends over the proposed
storage reservoir or the reservoir protective area, the storage
operator shall give at least six months' written notice to the
director and to the coal operator of the fact that injection of
gas for testing purposes is proposed;
(3) The coal operator affected may at any time file
objections with the director in accordance with subsection (d),
section nine of this article. If any such objections are filed
by the coal operator or if the director shall have any
objections, the director shall fix a time and place for a
conference in accordance with section ten of this article, not
more than ten days from the date of the notice to the storage
operator, at which conference the storage operator and the person
who has filed such objections shall attempt to agree, subject to
the approval of the director, on the questions involved. If suchagreement cannot be reached at such conference, the director
shall direct that a hearing be held in accordance with section
ten of this article. At such hearing the director shall
determine and set forth in an appropriate order the conditions
and requirements which the director shall deem necessary or
advisable in order to prevent gas from such storage reservoir
from entering any operating coal mine. The storage operator
shall comply with such conditions and requirements throughout the
period of the testing operations. In determining such conditions
and requirements the director shall take into account the extent
to which the matters referred to in subsection (a) of this
section have been performed. If, in carrying out said order,
either the storage operator or the coal operator encounters or
discovers conditions which were not known to exist at the time of
the hearing and which materially affect said order or the ability
of the storage operator to comply with the order, either operator
may apply for a rehearing or modification of said order;
(4) Where, at any time, a proposed storage reservoir being
tested comes under or within two thousand linear feet of an
operating coal mine either because of the extension of the
storage reservoir being tested or because of the extension or
establishment or reestablishment of the operating coal mine, then
and at the time of any such event the requirements of this
subsection shall become applicable to such testing.
(l) Any person who proposes to establish a storage reservoir
under, or within two thousand linear feet of an operating coalmine which is operating in a coal seam that extends over the
storage reservoir or the reservoir protective area, shall, prior
to establishing such reservoir, in addition to complying with the
requirements of section two of this article and subsection (a) of
this section, file the verified statement required by subsection
(b) of this section and fully comply with such order or orders,
if any, as the director may issue in the manner provided for
under subsection (b) or (c) of this section before beginning the
operation of such storage reservoir. After the person proposing
to operate such storage reservoir shall have complied with such
requirements and shall have thereafter begun to operate such
reservoir, such person shall continue to be subject to all of the
provisions of this article.
(m) When a gas storage reservoir: (1) Was in operation on
the eighth day of June, one thousand nine hundred fifty-five, and
at any time thereafter it is under or within two thousand linear
feet of an operating coal mine; or (2) when a gas storage
reservoir is put in operation after the eighth day of June, one
thousand nine hundred fifty-five, and at any time after such
storage operations begin it is under or within two thousand
linear feet of an operating coal mine, then and in either such
event, the storage operator shall comply with all of the
provisions of this section except that the time for filing the
verified statement under subsection (b) shall be sixty days after
the date stated in the notice filed by the coal operator under
subsection (b) or (c), section four of this article as to whenthe operating coal mine will be at a point within two thousand
linear feet of such reservoir:
Provided, That if the extending
of the projected workings or the proposed establishment or
reestablishment of the operating coal mine is delayed after the
giving of the notice provided in subsections (b) and (c), section
four of this article, the coal operator shall give notice of such
delay to the director and the director shall, upon the request of
the storage operator, extend the time for filing such statement
by the additional time which will be required to extend or
establish or reestablish such operating coal mine to a point
within two thousand linear feet of such reservoir. Such verified
statement shall also indicate that the map referred to in
subsection (a), section two of this article has been currently
amended as of the time of the filing of such statement. The
person operating any such storage reservoir shall continue to be
subject to all of the provisions of this article.
(n) If, in any proceeding under this article, the director
shall determine that any operator of a storage reservoir has
failed to carry out any lawful order of the director issued under
this article, the director shall have authority to require such
storage operator to suspend the operation of such reservoir and
to withdraw the gas therefrom until such violation is remedied.
In such an event the gas shall be withdrawn under the following
conditions. The storage operator shall remove the maximum amount
of gas which is required by the director to be removed from the
storage reservoir that can be withdrawn in accordance withrecognized engineering and operating procedures and shall proceed
with due diligence insofar as existing facilities used to remove
gas from the reservoir will permit.
(o) In addition to initial compliance with the other
provisions of this article and any lawful orders issued
thereunder, it shall be the duty at all times of the person
owning or operating any storage reservoir which is subject to the
provisions of this article to keep all wells drilled into or
through the storage stratum in such condition and to operate the
same in such manner as to prevent the escape of gas into any coal
mine therefrom, and to operate and maintain such storage
reservoir and its facilities in such manner and at such pressures
as will prevent gas from escaping from such reservoir or its
facilities into any coal mine:
Provided, That this duty shall
not be construed to include the inability to prevent the escape
of gas where such escape results from an act of God or an act of
any person not under the control of the storage operator other
than in connection with any well which the storage operator has
failed to locate and to make known to the director:
Provided,
however, That if any escape of gas into a coal mine does result
from an act of God or an act of any person not under the control
of the storage operator, the storage operator shall be under the
duty of taking such action thereafter as is reasonably necessary
to prevent further escape of gas into the coal mine.
§22-9-6. Inspection of facilities and records; reliance on maps;
burden of proof.
(a) In determining whether a particular coal mine or
operating coal mine is or will be within any distance material
under this article from any storage reservoir, the owner or
operator of such coal mine and the storage operator may rely on
the most recent map of the storage reservoir or coal mine filed
by the other with the director.
(b) In any proceeding under this article where the accuracy
of any map or data filed by any person pursuant to the
requirements of this article is in issue, the person filing the
same shall at the request of any party to such proceeding be
required to disclose the information and method used in compiling
such map and data and such information as is available to such
person that might affect the current validity of such map or
data. If any material question is raised in such proceeding as
to the accuracy of such map or data with respect to any
particular matter or matters contained therein, the person filing
such map or data shall then have the burden of proving the
accuracy of the map or data with respect to such matter or
matters.
(c) The person operating any storage reservoir affected by
the terms of this article shall, at all reasonable times, be
permitted to inspect the applicable records and facilities of any
coal mine overlying such storage reservoir or the reservoir
protective area, and the person operating any such coal mine
affected by the terms of this article, shall similarly, at all
reasonable times, be permitted to inspect the applicable recordsand facilities of any such storage reservoir underlying any such
coal mine. In the event that either such storage operator or
coal operator shall refuse to permit any such inspection of
records or facilities, the director shall, on the director's own
motion, or on application of the party seeking the inspection
after reasonable written notice, and a hearing thereon, if
requested by either of the parties affected, make an order
providing for such inspection.
§22-9-7. Exemptions.
(a) The provisions of this article shall not apply to strip
mines and auger mines operating from the surface.
(b) Injection of gas for storage purposes in any workable
coal seam, whether or not such seam is being or has been mined,
shall be prohibited. Nothing in this article shall be construed
to prohibit the original extraction of natural gas, crude oil or
coal. No storage operator shall have authority to appropriate
any coal or coal measure whether or not being mined, or any
interest therein.
§22-9-8. Alternative method.
(a) Whenever provision is made in this article by reference
to this section for using an alternative method or material in
carrying out any obligation imposed by the article, the person
seeking the authority to use such alternative method or material
shall file an application with the director describing such
proposed alternative method or material in reasonable detail.
Notice of filing of any such application shall be given byregistered mail to any coal operator or operators affected. Any
such coal operator may within ten days following such notice,
file objections to such proposed alternative method or material.
If no objections are filed within said ten-day period or if none
is raised by the director, the director shall forthwith issue a
permit approving such proposed alternative method or material.
(b) If any such objections are filed by any coal operator or
are raised by the director, the director shall direct that a
conference be held in accordance with section ten of this article
within the ten days following the filing of such objections. At
such conferences the person seeking approval of the alternative
method or material and the person who has filed such objections
shall attempt to agree on such alternative method or material or
any modification thereof, and if such agreement is reached and
approved by the director, the director shall forthwith issue a
permit approving the alternative method or material. If no such
agreement is reached and approved, the director shall direct that
a hearing be held in accordance with section ten of this article:
Provided, That if the alternative method or material involves a
new development in technology or technique the director may,
before such a hearing is held, grant such affected parties a
period not to exceed ninety days to study and evaluate said
proposed alternative method or material. Following such hearing,
if the director shall find that such proposed alternative method
or material will furnish adequate protection to the workable coal
seams, the director shall by order approve such alternativemethod or material; otherwise the director shall deny the said
application.
§22-9-9. Powers and duties of director.
(a) The director may review the maps and data filed under
sections two and three hereof for the purpose of determining the
accuracy thereof. Where any material question is raised by any
interested storage operator or coal operator or owner as to the
accuracy of any such map or data, the director shall hold
hearings thereon and shall by an appropriate order require the
person filing such map or data to correct the same if they are
found to be erroneous.
(b) It shall be the duty of the director to receive and keep
in a safe place for public inspection any map, data, report, well
log, notice or other writing required to be filed with it
pursuant to the provisions of this article. The director shall
keep such indices of all such information as will enable any
person using the same to readily locate such information either
by the identity of the person who filed the same or by the person
or persons affected by such filing or by the geographic location
of the subject matter by political subdivision. The director
shall also keep a docket for public inspection of all
proceedings, in which shall be entered the dates of any notices,
the names of all persons notified and their addresses, the dates
of hearings, conferences and all orders, decrees, decisions,
determinations, rulings or other actions issued or taken by the
director and such docket shall constitute the record of each andevery proceeding before the director.
(c) The director shall have authority to make any
inspections and investigations of records and facilities which
are deemed necessary or desirable to perform the director's
functions under this article.
(d) Where in any section of this article provision is made
for the filing of objections, such objections shall be filed in
writing with the director, by the person entitled to file the
same or by the director, and shall state as definitely as is
reasonably possible the reasons for such objections. The person
filing such objections shall send a copy thereof by registered
mail to the person or persons affected thereby.
§22-9-10. Conferences, hearings and appeals.
(a) The director or any person having a direct interest in
the subject matter of this article may at any time request that
a conference be held for the purpose of discussing and
endeavoring to resolve by mutual agreement any matter arising
under the provisions of this article. Prompt notice of any such
conference shall be given by the director to all such interested
parties. At such conference a representative of the director
shall be in attendance, and the director may make such
recommendations as are deemed appropriate. Any agreement reached
at such conference shall be consistent with the requirements of
this article and, if approved by such representative of the
director, it shall be reduced to writing and shall be effective
unless reviewed and rejected by the director within ten daysafter the close of the conference. The record of any such
agreement approved by the director shall be kept on file by the
director with copies furnished to the parties. The conference
shall be deemed terminated as of the date any party refuses to
confer thereafter. Such a conference shall be held in all cases
prior to conducting any hearing under this section.
(b) Within ten days after termination of the conference
provided for in this section at which no approved agreement has
been reached or within ten days after the rejection by the
director of any agreement approved at any such conference, any
person who has a direct interest in the subject matter of the
conference may submit the matter or matters, or any part thereof,
considered at the conference, to the director for determination
at a public hearing. The hearing procedure shall be formally
commenced by the filing of a petition with the director upon
forms prescribed by the director or by specifying in writing the
essential elements of the petition, including name and address of
the petitioner and of all other persons affected thereby, a clear
and concise statement of the facts involved, and a specific
statement of the relief sought. The hearing shall thereafter be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code and with such rules and such
provisions as to reasonable notice as the director may prescribe.
Consistent with the requirements for reasonable notice all
hearings under this article shall be held by the director
promptly. All testimony taken at such hearings shall be underoath and shall be reduced to writing by a reporter appointed by
the director, and the parties shall be entitled to appear and be
heard in person or by attorney. The director may present at such
hearing any evidence which is material to the matter under
consideration and which has come to the director's attention in
any investigation or inspection made pursuant to provisions of
this article.
(c) After the conclusion of hearings, the director shall
make and file the director's findings and order with the
director's opinion, if any. A copy of such order shall be served
by registered mail upon the person against whom it runs, or such
person's attorney of record, and notice thereof shall be given to
the other parties to the proceedings, or their attorney of
record.
(d) The director may, at any time after notice and after
opportunity to be heard as provided in this section, rescind or
amend any approved agreement or order made by the director. Any
order rescinding or amending a prior agreement or order shall,
when served upon the person affected, and after notice thereof is
given to the other parties to the proceedings, have the same
effect as is herein provided for original orders; but no such
order shall affect the legality or validity of any acts done by
such person in accordance with the prior agreement or order
before receipt by such person of the notice of such change.
(e) The director shall have power, either personally or by
any of the director's authorized representatives, to subpoenawitnesses and take testimony, and administer oaths to any witness
in any hearing, proceeding or examination instituted before the
director or conducted by the director with reference to any
matter within the jurisdiction of the director. In all hearings
or proceedings before the director the evidence of witnesses and
the production of documentary evidence may be required at any
designated place of hearing; and in case of disobedience to a
subpoena or other process the director or any party to the
proceedings before the director may invoke the aid of any circuit
court in requiring the evidence and testimony of witnesses and
the production of such books, records, maps, plats, papers,
documents and other writings as the director may deem necessary
or proper in and pertinent to any hearing, proceeding or
investigation held or had by the director. Such court, in case
of the refusal of any such person to obey the subpoena, shall
issue an order requiring such person to appear before the
director and produce the required documentary evidence, if so
ordered, and give evidence touching the matter in question. Any
failure to obey such order of the court may be punished by such
court as contempt thereof. A claim that any such testimony or
evidence may tend to incriminate the person giving the same shall
not excuse such witness from testifying, but such witness shall
not be prosecuted for any offense concerning which the witness
compelled hereunder to testify.
(f) With the consent of the director, the testimony of any
witness may be taken by deposition at the instance of a party toany hearing before the director at any time after hearing has
been formally commenced. The director may, of the director's own
motion, order testimony to be taken by deposition at any stage in
any hearing, proceeding or investigation pending before the
director. Such deposition shall be taken in the manner
prescribed by the laws of West Virginia for taking depositions in
civil cases in courts of record.
(g) Whether or not it be so expressly stated, an appeal from
any final order, decision or action by the director in
administering the provisions of this article may be taken by any
aggrieved person within ten days of notice of such order,
decision or action, to the circuit court of the county in which
the subject matter of such order, decision or action is located,
and in all cases of appeals to the circuit court, that court
shall certify its decisions to the director. The circuit court
to which the appeal is taken shall hear the appeal without a jury
on the record certified by the director. In any such appeal the
findings of the director shall, if supported by substantial
evidence, be conclusive. If the order of the director is not
affirmed, the court may set aside or modify it, in whole or in
part, or may remand the proceedings to the director for further
disposition in accordance with the order of the court. From all
final decisions of the circuit court an appeal shall lie to the
supreme court of appeals as is now provided by law in cases in
equity, by the director as well as by any other party of record
before the circuit court.
Any party feeling aggrieved by the final order of the
circuit court affecting him, may present his petition in writing
to the supreme court of appeals, or to a judge thereof in
vacation, within twenty days after the entry of such order,
praying for the suspension or modification of such final order.
The applicant shall deliver a copy of such petition to the
director and to all other parties of record before presenting the
same to the court or judge. The court or judge shall fix a time
for the hearing on the application, but such hearing shall not be
held sooner than seven days after its presentation unless by
agreement of the parties, and notice of the time and place of
such hearing shall be forthwith given to the director and to all
other parties of record. If the court or judge, after such
hearing, be of opinion that such final order should be suspended
or modified, the court or the judge may require bond, upon such
conditions and in such penalty, and impose such terms and
conditions upon the petitioner as are just and reasonable. For
such hearing the entire record before the circuit court, or a
certified copy thereof, shall be filed in the supreme court, and
that court, upon such papers, shall promptly decide the matter in
controversy as may seem to it to be just and right, and may award
costs in each case as to it may seem just and equitable.
§22-9-11. Enforcement.
(a) The director or any person having a direct interest in
the subject matter of this article may complain in writing
setting forth that any person is violating or is about toviolate, any provisions of this article, or has done, or is about
to do, any act, matter or thing therein prohibited or declared to
be unlawful, or has failed, omitted, neglected or refused, or is
about to fail, omit, neglect or refuse, to perform any duty
enjoined upon him by this article. Upon the filing of a
complaint against any person, the director shall cause a copy
thereof to be served upon such person by registered mail
accompanied by a notice from the director setting such complaint
for hearing at a time and place specified in such notice. At
least five days' notice of such hearing shall be given to the
parties affected and such hearing shall be held in accordance
with the provisions of section ten of this article. Following
such hearing, the director shall, if the director finds that the
matter alleged in the complaint is not in violation of this
article, dismiss the complaint, but if the director shall find
that the complaint is justified, the director shall by
appropriate order compel compliance with this article.
(b) Whenever the director shall be of the opinion that any
person is violating, or is about to violate, any provisions of
this article, or has done, or is about to do, any act, matter or
thing therein prohibited or declared to be unlawful, or has
failed, omitted, neglected or refused, or is about to fail, omit,
neglect or refuse, to perform any duty enjoined upon the director
by this article, or has failed, omitted, neglected or refused, or
is about to fail, omit, neglect or refuse to obey any lawful
requirement or order made by the director, or any final judgment,order or decree made by any court pursuant to this article, then
and in every such case the director may institute in the circuit
court of the county or counties wherein the operation is
situated, injunction, mandamus or other appropriate legal
proceedings to restrain such violations of the provisions of this
article or of orders of the director to enforce obedience
therewith. No injunction bond shall be required to be filed in
any such proceeding. Such persons or corporations as the court
may deem necessary or proper to be joined as parties in order to
make its judgment, order or writ effective may be joined as
parties. The final judgment in any such action or proceeding
shall either dismiss the action or proceeding or direct that the
writ of mandamus or injunction or other order, issue or be made
permanent as prayed for in the petition or in such modified or
other form as will afford appropriate relief. An appeal may be
taken as in other civil actions.
(c) In addition to the other remedies herein provided, any
storage operator or coal operator affected by the provisions of
this article may proceed by injunction or other appropriate
remedy to restrain violations or threatened violations of the
provisions of this article or of orders of the director or the
judgments, orders or decrees of any court or to enforce obedience
therewith.
(d) Each remedy prescribed in this section shall be deemed
concurrent or contemporaneous with any other remedy prescribed
herein and the existence or exercise of any one such remedy shallnot prevent the exercise of any other such remedy.
§22-9-12. Penalties.
Any person who shall willfully violate any order of the
director issued pursuant to the provisions of this article shall
be guilty of a misdemeanor, and, on conviction thereof, shall be
punished by a fine not exceeding two thousand dollars, or
imprisoned in jail for not exceeding twelve months, or both, in
the discretion of the court, and prosecutions under this section
may be brought in the name of the state of West Virginia in the
court exercising criminal jurisdiction in the county in which the
violation of such provisions of the article or terms of such
order was committed, and at the instance and upon the relation of
any citizen of this state.
§22-9-13. Orders remain in effect.
All orders in effect upon the effective date of this article
pursuant to the provisions of former article four, chapter
twenty-two-b of this code, shall remain in full force and effect
as if such orders were adopted by the division established in
this chapter but all such orders shall be subject to review by
the director to ensure they are consistent with the purposes and
policies set forth in this chapter.
ARTICLE 10. ABANDONED WELL ACT.
§22-10-1. Short title.
This article may be cited as "The Abandoned Well Act".
§22-10-2. Legislative findings; legislative statement of policy
and purpose.
(a) The Legislature finds and declares that:
(1) Oil and gas have been continuously produced in West
Virginia for over one hundred years, during which time operators
of wells have been required by the laws of this state to plug
wells upon cessation of use;
(2) The plugging requirements for certain older oil and gas
and other wells may not have been sufficient to protect
underground water supplies, to prevent the movement of fluids
between geologic horizons, to allow coal operators to mine
through such wells safely, nor to allow for enhanced recovery of
oil, gas or other mineral resources of this state;
(3) Many wells may exist in West Virginia which are
abandoned and either not plugged or not properly plugged in a
manner to protect underground water supplies, to prevent the
movement of fluids between geologic horizons, to allow coal
operators to mine through such wells safely, to allow for
enhanced recovery of oil, gas and other mineral resources, and
generally to protect the environment and mineral resources of
this state, as aforesaid;
(4) Requirements for financial responsibility to assure
plugging of abandoned wells have not been required in this state
for older wells, and adequate financial responsibility should be
established with respect to all wells;
(5) Programs and policies should be implemented to foster,
encourage and promote through the fullest practical means the
proper plugging of abandoned wells to protect the environment andmineral resources of this state;
(6) Criteria should be established with respect to
priorities for the expenditure of moneys available for plugging
abandoned wells and identifying those abandoned wells which, as
a matter of public policy, should be plugged first; and
(7) The plugging of many abandoned wells may be accomplished
through the establishment of rights and procedures allowing
interested persons to apply for a permit to plug an abandoned
well.
(b) The Legislature hereby declares that it is in the public
interest and it is the public policy of this state, to foster,
encourage and promote the proper plugging of all wells at the
time of their abandonment to protect the environment and mineral
resources of this state.
§22-10-3. Definitions.
Unless the context in which it is used clearly requires a
different meaning, as used in this article:
(a) "Abandoned well" means any well which is required to be
plugged under the provisions of section nineteen, article six of
this chapter and rules promulgated pursuant thereto.
(b) "Director" means for the purpose of this article, the
director of the division of environmental protection as
established in article one of this chapter or such other person
as the director may delegate authority or duties to pursuant to
section six or eight, article one of this chapter.
(c) "Interested party" means, for the purpose of thisarticle, any owner, operator or lessee of the surface, oil, gas,
water, coal or other mineral resource under, on, adjacent or in
close proximity to any lands upon which an abandoned well exists,
and whose lands, rights or interests are or might be affected by
such abandoned well.
§22-10-4. Financial responsibility -- Applicability.
(a) Operators of all wells, not otherwise required to
demonstrate financial responsibility through bonding or otherwise
in accordance with the provisions of article six of this chapter,
shall, no later than the first day of July, one thousand nine
hundred ninety-three, demonstrate financial responsibility in
accordance with the methods and in the amounts prescribed by this
article.
(b) If the operator demonstrates to the satisfaction of the
director that an unjust hardship to an operator will occur as a
result of the financial responsibility requirements of this
article:
(1) The director may suspend such financial responsibility
requirements to a date no later than the first day of July, one
thousand nine hundred ninety-five; or
(2) The director may authorize an operator to demonstrate
such financial responsibility by supplying twenty percent of any
required amount by no later than the first day of July, one
thousand nine hundred ninety-four; forty percent no later than
the first day of July, one thousand nine hundred ninety-five;
sixty percent no later than the first day of July, one thousandnine hundred ninety-six; eighty percent by the first day of July,
one thousand nine hundred ninety-seven; and one hundred percent
by the first day of July, one thousand nine hundred ninety-eight.
(c) The operator making a demonstration of financial
responsibility pursuant to this section shall provide the
director with information sufficient to establish the location
and identification of the well, any well completion, recompletion
and reworking records which may exist and such other information
as the director may reasonably require.
§22-10-5. Financial responsibility -- Amount.
The financial responsibility requirements applicable to all
wells shall be as set forth in section twenty-six, article six of
this chapter, except that the amount of financial responsibility
through bonding or otherwise, as provided for in said section,
for an individual well shall be in the amount of five thousand
dollars. In lieu of separate, single well bonds, an operator may
either furnish a blanket bond in the sum of fifty thousand
dollars in accordance with the provisions of subsection (c) of
section twenty-six, article six of this chapter, or if the
operator has previously provided a blanket bond in the sum of
fifty thousand dollars which remains in effect, the operator may
cover wells subject to this article by such existing blanket
bond.
§22-10-6. Establishment of priorities for plugging expenditures.
(a) Within one year of the effective date of this article,
the director shall promulgate legislative rules establishing apriority system by which available funds from the oil and gas
reclamation fund, established pursuant to section twenty-nine,
article six of this chapter, will be expended to plug abandoned
wells. The rules shall, at a minimum, establish three primary
classifications to be as follows:
(1) Wells which are an immediate threat to the environment
or which may hinder or impede the development of mineral
resources of this state so as to require immediate plugging;
(2) Wells which are not an immediate threat to the
environment or which do not hinder or impede the development of
mineral resources of this state but which should be plugged
consistent with available resources; and
(3) Wells which are not a threat to the environment and
which do not hinder or impede the development of mineral
resources of this state and for which plugging may be deferred
for an indefinite period.
(b) Such classifications shall, among other things, take
into consideration the following factors, as appropriate:
(1) The age of the well;
(2) The length of time the well has been abandoned;
(3) The casing remaining in the well;
(4) The presence of any leaks either at the surface or
underground;
(5) The possibility or existence of groundwater
contamination;
(6) Whether the well is located in an area to be developedfor enhanced recovery;
(7) Whether the well hinders or impedes mineral development;
and
(8) Whether the well is located in close proximity to
population.
§22-10-7. Right of interested person to plug, replug and reclaim
abandoned wells.
(a) Upon twenty days' advance written notice, it shall be
lawful for any interested person, the operator or the director to
enter upon the premises where any abandoned well is situated and
properly plug or replug such abandoned well, and to reclaim any
area disturbed by such plugging or replugging in the manner
required by article six of this chapter. Such notice shall be
served by certified mail, returned receipt requested, or such
other manner as is sufficient for service of process in a civil
action, upon any owner of the surface of the land upon which such
abandoned well exists, upon any oil and gas lessee of record with
the director and upon any owner or operator of such abandoned
well of record with the director, or in the event there is no
such lessee, owner or operator of record with the director, by
posting such notice in a conspicuous place at or near such
abandoned well. The notice given the surface owner shall include
a statement advising the surface owner of the right to repairs or
damages as provided in this section and the potential right to
take any casing, equipment or other salvage. Such notice shall
be on forms approved by the director.
(b) Any interested person who plugs a well pursuant to the
provisions of this section shall, to the extent damage or
disturbance results from such plugging, either repair the damage
or disturbance or compensate the surface owner for: (i) The
reasonable cost of repairing or replacing any water well; (ii)
the reasonable value of any crops destroyed, damaged or prevented
from reaching market; (iii) the reasonable cost of repair to
personal property up to the value of the replacement value of
personal property of like age, wear and quality; (iv) lost income
or expense incurred; and (v) reasonable costs to reclaim or
repair real property including roads.
(c) The interested person who is plugging the well pursuant
to the provisions of this section, may elect to take any casing,
equipment or other salvage which may result from the plugging of
such abandoned well by including notice of such election in the
written notice mandated by subsection (a) of this section.
Should such interested person who is plugging the well not give
such notice of election, the surface owner may elect to take any
casing, equipment or other salvage which may result from the
plugging of such abandoned well by giving written notice of such
election to the interested person who is plugging the well at
least ten days in advance of such plugging. In the event such
notice is given, such interested person who is plugging the well
may leave such casing, equipment or salvage at a location which
will not adversely affect any reclamation of a disturbed area.
In the event the surface owner does not give notice of anelection to take such casing, equipment or salvage as provided
herein, such interested person who plugs the well shall properly
dispose thereof. Nothing in this subsection shall be construed
to require or create a duty upon such interested person who plugs
the well to protect or pull casing or otherwise take any action
or incur any expense to retrieve or protect any casing, equipment
or salvageable material:
Provided, That nothing contained in
this section may be construed to relieve the interested person
from the responsibility to perform in accordance with the
requirements of this article, article six of this chapter, or any
condition of the permit.
(d) Prior to releasing any bond which is obtained in
connection with plugging or replugging an abandoned well under
the provisions of this section, the director shall obtain from
the interested person who has obtained the bond a copy of a
letter that such interested person has sent to the surface owner
advising that reclamation has been completed.
(e) Where an interested person who intends to plug an
abandoned well pursuant to this section is unable to obtain a
bond in the full amount required by section twenty-six, article
six of this chapter, the director may authorize a bond in a
lesser amount; which lesser amount shall be equal or greater than
the estimated cost of reclaiming the surface areas disturbed by
the plugging operation:
Provided, That an owner or operator of
a well shall comply with the financial responsibility provisions
of section five of this article and section twenty-six, articlesix of this chapter.
(f) In the event the owner or operator of a well fails or
has failed to plug a well in accordance with laws and rules in
effect at the time the well is or was first subject to plugging
requirements, any interested person who plugs or replugs such
well pursuant to the provisions of this section may recover from
the owner or operator of such well all reasonable costs
incidental to such plugging or replugging, including any
compensation provided for in this section. In the event funds
from the oil and gas reclamation fund established pursuant to
section twenty-nine, article six of this chapter are used to plug
or replug such well, the director shall be entitled to recover
from the owner or operator of such well any amounts so expended
from the fund. Any amounts so recovered by the director shall be
deposited in said fund.
§22-10-8. Arbitration; fees and costs.
(a) If the interested person who plugs a well and the
surface owner are unable to agree as to the adequacy of the
repairs performed or the amount of compensation to which the
surface owner may be entitled, either party upon written notice
to the other may elect to have such issue finally determined by
binding arbitration pursuant to article ten, chapter fifty-five
of this code.
(b) The adequacy of the repairs or compensation to which the
surface owner may be entitled shall, if such election is made, be
determined by a panel of three disinterested arbitrators. Thefirst arbitrator shall be chosen by the party electing to
arbitrate in such person's notice of election; the second
arbitrator shall be chosen by the other party within ten days
after receipt of the notice of election; and the third arbitrator
shall be chosen jointly by the first two arbitrators within
twenty days thereafter. If they are unable to agree upon the
third arbitrator within twenty days, then the two arbitrators are
hereby empowered to and shall forthwith submit the matter to the
court under the provisions of section one, article ten, chapter
fifty-five of this code, so that, among other things, the third
arbitrator can be chosen by the judge of the circuit court of the
county wherein the surface estate lies.
(c) The following persons shall be deemed interested and not
be appointed as arbitrators: Any person who is personally
interested in the land on which the plugging is being performed
or has been performed, or in any interest or right therein, or in
the compensation and any damages to be awarded therefor, or who
is related by blood or marriage to any person having such
personal interest, or who stands in the relation of guardian and
ward, master and servant, principal and agent, or partner, real
estate broker, or surety to any person having such personal
interest, or who has enmity against or bias in favor of any
person who has such personal interest or who is the owner of, or
interested in, such land or the oil and gas development thereof.
No person shall be deemed interested or incompetent to act as
arbitrator by reason of being an inhabitant of the county,district or municipal corporation wherein the land is located, or
holding an interest in any other land therein.
(d) The panel of arbitrators shall hold hearings and take
such testimony and receive such exhibits as shall be necessary to
determine the required repairs or the amount of compensation to
be paid to the surface owner. However, no award requiring
repairs or compensation shall be made to the surface owner unless
the panel of arbitrators has first viewed the surface estate in
question. A transcript of the evidence may be made but shall not
be required.
(e) Each party shall pay the compensation of such party's
own arbitrator and one half of the compensation of the third
arbitrator, and such party's own costs.
§22-10-9. Civil penalties.
(a) Any person who fails to plug an abandoned well within
thirty days, or upon a showing of good cause, within a longer
period as determined by the director not to exceed one hundred
eighty days, from the date such plugging is ordered by the
director, shall be liable for a civil penalty of twenty-five
thousand dollars which penalty shall be recovered in a civil
action in the circuit court wherein the abandoned well is
located.
(b) The net proceeds of all civil penalties collected
pursuant to subsection (a) of this section shall be deposited
into the oil and gas reclamation fund established pursuant to
section twenty-nine, article six of this chapter.
§22-10-10. Rulemaking; procedure; judicial review.
(a) The director shall have the power and authority to
promulgate legislative rules, procedural rules and interpretive
rules in accordance with the provisions of chapter twenty-nine-a
of this code in order to carry out and implement the provisions
of this article.
(b) Any hearings or proceedings before the director on any
matter other than rule making shall be conducted and heard by the
director or a representative designated by the director and shall
be in accordance with the provisions of article five, chapter
twenty-nine-a of this code.
(c) Any person having an interest which is or may be
adversely affected, who is aggrieved by an order of the director
issued pursuant to this article, or by the issuance or denial of
a permit pursuant to this article or by the permit's terms or
conditions, is entitled to judicial review thereof. All of the
pertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in extenso in this section.(d) The
judgment of the circuit court shall be final unless reversed,
vacated or modified on appeal to the supreme court of appeals in
accordance with the provisions of section one, article six,
chapter twenty-nine-a of this code.
§22-10-11. Existing rights and remedies preserved.
(a) It is the purpose of this article to provide additionaland cumulative remedies to address abandoned wells in this state
and nothing herein contained shall abridge or alter rights of
action or remedies now or hereafter existing, nor shall any
provisions in this article, or any act done by virtue of this
article, be construed as estopping the state, municipalities,
public health officers or persons in the exercise of their rights
to suppress nuisance or to abate any pollution now or hereafter
existing, or to recover damages.
(b) An order of the director, the effect of which is to find
that an abandoned well exists, or in ordering an abandoned well
to be plugged, or any other order, or any violation of any of the
provisions of this article shall give rise to no presumptions of
law or findings of fact inuring to or for the benefit of persons
other than the state of West Virginia.
(c) Nothing contained in this article shall be construed to
place any duty or responsibility on the landowner, well owner or
operator or lessee to plug a well in addition to those set forth
in article six of this chapter.
§22-10-12. Provisions of article supplemental.
The provisions of this article shall be in addition to and
supplement all other provisions of article eight of this chapter
and rights with respect to plugging or replugging wells. Nothing
in this article shall be construed to eliminate the permit
requirement for plugging and replugging wells.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-1. Short title.
This article may be known and cited as the "Water Pollution
Control Act".
§22-11-2. Declaration of policy.
(a) It is declared to be the public policy of the state of
West Virginia to maintain reasonable standards of purity and
quality of the water of the state consistent with: (1) Public
health and public enjoyment thereof; (2) the propagation and
protection of animal, bird, fish, aquatic and plant life; and (3)
the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanent
foundation for healthy industrial development.
(b) It is also the public policy of the state of West
Virginia that the water resources of this state with respect to
the quantity thereof be available for reasonable use by all of
the citizens of this state.
§22-11-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Activity" or "activities" means any activity or
activities for which a permit is required by the provisions of
section seven of this article;
(2) "Board" means the environmental quality board, provided for
in article three, chapter twenty-two-b of this code;
(3) "Chief" means the chief of the office of water resources
of the division of environmental protection;
(4) "Code" means the code of West Virginia, one thousandnine hundred thirty-one, as amended;
(5) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one of this chapter;
(6) "Disposal system" means a system for treating or
disposing of sewage, industrial wastes or other wastes, or the
effluent therefrom, either by surface or underground methods, and
includes sewer systems, the use of subterranean spaces, treatment
works, disposal wells and other systems;
(7) "Disposal well" means any well drilled or used for the
injection or disposal of treated or untreated sewage, industrial
wastes or other wastes into underground strata;
(8) "Division" means the division of environmental
protection;
(9) "Effluent limitation" means any restriction established
on quantities, rates and concentrations of chemical, physical,
biological and other constituents which are discharged into the
waters of this state;
(10) "Establishment" means an industrial establishment,
mill, factory, tannery, paper or pulp mill, mine, colliery,
breaker or mineral processing operation, quarry, refinery, well
and each and every industry or plant or works in the operation or
process of which industrial wastes, sewage or other wastes are
produced;
(11) "Industrial user" means those industries identified inthe standard industrial classification manual, United States
Bureau of the Budget, 1967, as amended and supplemented, under
the category "division d--manufacturing" and other classes of
significant waste producers identified under regulations issued
by the director or the administrator of the United States
environmental protection agency;
(12) "Industrial wastes" means any liquid, gaseous, solid or
other waste substance, or a combination thereof, resulting from
or incidental to any process of industry, manufacturing, trade or
business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as hereinafter
defined, is also "industrial waste" within the meaning of this
article;
(13) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues
resulting from secondary processing; sand, lime, cinders, ashes,
offal, night soil, silt, oil, tar, dyestuffs, acids, chemicals,
heat or all other materials and substances not sewage or
industrial wastes which may cause or might reasonably be expected
to cause or to contribute to the pollution of any of the waters
of the state;
(14) "Outlet" means the terminus of a sewer system or the
point of emergence of any water-carried sewage, industrial wastes
or other wastes, or the effluent therefrom, into any of the
waters of this state, and includes a point source;
(15) "Person", "persons" or "applicant" means any industrial
user, public or private corporation, institution, association,
firm or company organized or existing under the laws of this or
any other state or country; state of West Virginia; governmental
agency, including federal facilities; political subdivision;
county commission; municipal corporation; industry; sanitary
district; public service district; drainage district; soil
conservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or any
legal entity whatever;
(16) "Point source" means any discernible, confined and
discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock or vessel or other floating craft, from
which pollutants are or may be discharged;
(17) "Pollutant" means industrial wastes, sewage or other
wastes as defined in this section;
(18) "Pollution" means the man-made or man-induced
alteration of the chemical, physical, biological and radiological
integrity of the waters of the state;
(19) "Publicly owned treatment works" means any treatment
works owned by the state or any political subdivision thereof,
any municipality or any other public entity, for the treatment of
pollutants;
(20) "Sewage" means water-carried human or animal wastesfrom residences, buildings, industrial establishments or other
places, together with such groundwater infiltration and surface
waters as may be present;
(21) "Sewer system" means pipelines or conduits, pumping
stations, force mains and all other constructions, facilities,
devices and appliances appurtenant thereto, used for collecting
or conducting sewage, industrial wastes or other wastes to a
point of disposal or treatment;
(22) "Treatment works" means any plant, facility, means,
system, disposal field, lagoon, pumping station, constructed
drainage ditch or surface water intercepting ditch, diversion
ditch above or below the surface of the ground, settling tank or
pond, earthen pit, incinerator, area devoted to sanitary
landfills or other works not specifically mentioned herein,
installed for the purpose of treating, neutralizing, stabilizing,
holding or disposing of sewage, industrial wastes or other wastes
or for the purpose of regulating or controlling the quality and
rate of flow thereof;
(23) "Water resources", "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and includes, without limiting the generality of
the foregoing, natural or artificial lakes, rivers, streams,
creeks, branches, brooks, ponds (except farm ponds, industrial
settling basins and ponds and water treatment facilities),impounding reservoirs, springs, wells, watercourses and wetlands;
and
(24) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction
or injection or placement of any liquid or gas, or any shaft or
hole sunk or used in conjunction with such extraction or
injection or placement. The term "well" does not include any
shaft or hole sunk, drilled, bored or dug into the earth for the
sole purpose of core drilling or pumping or extracting therefrom
potable, fresh or usable water for household, domestic,
industrial, agricultural or public use.
§22-11-4. General powers and duties of director with respect to
pollution.
(a) In addition to all other powers and duties the director
has and may exercise, subject to specific grants of authority to
the chief or the board in this article or elsewhere in this code,
the following powers and authority and shall perform the
following duties:
(1) To perform any and all acts necessary to carry out the
purposes and requirements of this article and of the "Federal
Water Pollution Control Act", as amended, relating to this
state's participation in the "National Pollutant Discharge
Elimination System" established under that act;
(2) To encourage voluntary cooperation by all persons in the
conservation, improvement and development of water resources and
in controlling and reducing the pollution of the waters of thisstate, and to advise, consult and cooperate with all persons, all
agencies of this state, the federal government or other states,
and with interstate agencies in the furtherance of the purposes
of this article, and to this end and for the purpose of studies,
scientific or other investigations, research, experiments and
demonstrations pertaining thereto, the division may receive
moneys from such agencies, officers and persons on behalf of the
state. The division shall pay all moneys so received into a
special fund hereby created in the state treasury, which fund
shall be expended under the direction of the director solely for
the purpose or purposes for which the grant, gift or contribution
was made;
(3) To encourage the formulation and execution of plans by
cooperative groups or associations of municipal corporations,
industries, industrial users, and other users of waters of the
state, who, jointly or severally, are or may be the source of
pollution of such waters, for the control and reduction of
pollution;
(4) To encourage, participate in, or conduct or cause to be
conducted studies, scientific or other investigations, research,
experiments and demonstrations relating to the water resources of
the state and water pollution and its causes, control and
reduction, and to collect data with respect thereto, all as may
be deemed advisable and necessary to carry out the purposes of
this article;
(5) To study and investigate all problems concerning waterflow, water pollution and the control and reduction of pollution
of the waters of the state, and to make reports and
recommendations with respect thereto;
(6) To collect and disseminate information relating to water
pollution and the control and reduction thereof;
(7) To develop a public education and promotion program to
aid and assist in publicizing the need for, and securing support
for, pollution control and abatement;
(8) To sample ground and surface water with sufficient
frequency to ascertain the standards of purity or quality from
time to time of the waters of the state;
(9) To develop programs for the control and reduction of the
pollution of the waters of the state;
(10) To exercise general supervision over the administration
and enforcement of the provisions of this article, and all rules,
permits and orders issued pursuant to the provisions of this
article and articles one and three, chapter twenty-two-b of this
code;
(11) In cooperation with the college of engineering at West
Virginia university and the schools and departments of
engineering at other institutions of higher education operated by
this state, to conduct studies, scientific or other
investigations, research, experiments and demonstrations in an
effort to discover economical and practical methods for the
elimination, disposal, control and treatment of sewage,
industrial wastes, and other wastes, and the control andreduction of water pollution, and to this end, the director may
cooperate with any public or private agency and receive
therefrom, on behalf of the state, and for deposit in the state
treasury, any moneys which such agency may contribute as its part
of the expenses thereof, and all gifts, donations or
contributions received as aforesaid shall be expended by the
director according to the requirements or directions of the donor
or contributor without the necessity of an appropriation
therefor, except that an accounting thereof shall be made in the
fiscal reports of the division;
(12) To require the prior submission of plans,
specifications, and other data relative to, and to inspect the
construction and operation of, any activity or activities in
connection with the issuance and revocation of such permits as
are required by this article or the rules promulgated hereunder
or pursuant to article three, chapter twenty-two-b of this code;
(13) To require any and all persons directly or indirectly
discharging, depositing or disposing of treated or untreated
sewage, industrial wastes or other wastes, or the effluent
therefrom, into or near any waters of the state or into any
underground strata, and any and all persons operating an
establishment which produces or which may produce or from which
escapes, releases or emanates or may escape, release or emanate
treated or untreated sewage, industrial wastes or other wastes,
or the effluent therefrom, into or near any waters of the state
or into any underground strata, to file with the division suchinformation as the director may require in a form or manner
prescribed for such purpose, including, but not limited to, data
as to the kind, characteristics, amount and rate of flow of any
such discharge, deposit, escape, release or disposition;
(14) To adopt, modify, or repeal procedural rules and
interpretive rules in accordance with the provisions of chapter
twenty-nine-a of this code administering and implementing the
powers, duties and responsibilities vested in the director by the
provisions of this article;
(15) To cooperate with interstate agencies for the purpose
of formulating, for submission to the Legislature, interstate
compacts and agreements relating to: (A) The control and
reduction of water pollution; and (B) the state's share of waters
in watercourses bordering the state;
(16) To adopt, modify, repeal and enforce rules , in
accordance with the provisions of chapter twenty-nine-a of this
code: (A) Implementing and making effective the declaration of
policy contained in section one of this article and the powers,
duties and responsibilities vested in the director and the chief
by the provisions of this article and otherwise by law; (B)
preventing, controlling and abating pollution; and (C)
facilitating the state's participation in the "National Pollutant
Discharge Elimination System" pursuant to the "Federal Water
Pollution Control Act", as amended:
Provided, That no rule
adopted by the director shall specify the design of equipment,
type of construction or particular method which a person shalluse to reduce the discharge of a pollutant; and
(17) To advise all users of water resources as to the
availability of water resources and the most practicable method
of water diversion, use, development and conservation.
(b) Whenever required to carry out the objectives of this
article the director shall require the owner or operator of any
point source or establishment to: (i) Establish and maintain
such records; (ii) make such reports; (iii) install, use and
maintain such monitoring equipment or methods; (iv) sample such
effluents in accordance with such methods, at such locations, at
such intervals and in such manner as the director shall
prescribe; and (v) provide such other information as the director
may reasonably require.
(c) The director upon presentation of credentials: (i) Has
a right of entry to, upon or through any premises in which an
effluent source is located or in which any records required to be
maintained under subsection (b) of this section are located; and
(ii) may at reasonable times have access to and copy any records,
inspect any monitoring equipment or method required under
subsection (b) of this section and sample any streams in the area
as well as sample any effluents which the owner or operator of
such source is required to sample under subsection (b) of this
section. Nothing in this subsection eliminates any obligation to
follow any process that may be required by law.
(d) The director is hereby authorized and empowered to
investigate and ascertain the need and factual basis for theestablishment of public service districts as a means of
controlling and reducing pollution from unincorporated
communities and areas of the state, investigate and ascertain,
with the assistance of the public service commission, the
financial feasibility and projected financial capability of the
future operation of any such public service district or
districts, and to present reports and recommendations thereon to
the county commissions of the areas concerned, together with a
request that such county commissions create a public service
district or districts, as therein shown to be needed and required
and as provided in article thirteen-a, chapter sixteen of this
code. In the event a county commission fails to act to establish
a county-wide public service district or districts, the director
shall act jointly with the commissioner of the bureau of public
health to further investigate and ascertain the financial
feasibility and projected financial capability and, subject to
the approval of the public service commission, order the county
commission to take action to establish such public service
district or districts as may be necessary to control, reduce or
abate the pollution, and when so ordered the county commission
members must act to establish such a county-wide public service
district or districts.
(e) The director has the authority to enter at all
reasonable times upon any private or public property for the
purpose of making surveys, examinations, investigations and
studies needed in the gathering of facts concerning the waterresources of the state and their use, subject to responsibility
for any damage to the property entered. Upon entering, and
before making any survey, examination, investigation and study,
such person shall immediately present himself or herself to the
occupant of the property. Upon entering property used in any
manufacturing, mining or other commercial enterprise, or by any
municipality or governmental agency or subdivision, and before
making any survey, examination, investigation and study, such
person shall immediately present himself or herself to the person
in charge of the operation, and if he or she is not available, to
a managerial employee. All persons shall cooperate fully with
the person entering such property for such purposes. Upon
refusal of the person owning or controlling such property to
permit such entrance or the making of such surveys, examinations,
investigations and studies, the director may apply to the circuit
court of the county in which such property is located, or to the
judge thereof in vacation, for an order permitting such entrance
or the making of such surveys, examinations, investigations and
studies; and jurisdiction is hereby conferred upon such court to
enter such order upon a showing that the relief asked is
necessary for the proper enforcement of this article:
Provided,
That nothing in this subsection eliminates any obligation to
follow any process that may be required by law.
§22-11-5. Water areas beautification; investigations; law
enforcement.
The division shall maintain a program and practices in thehusbandry of waters of the state and the lands immediately
adjacent thereto. The director shall make such investigations
and surveys, conduct such schools and public meetings and take
such other steps as may be expedient in the conservation,
beautification, improvement and use of all such water areas of
the state. The director shall cooperate with the division of
natural resources' chief law-enforcement officer in enforcing the
provisions of law prohibiting the disposal of litter in, along
and near such water areas.
§22-11-6. Requirement to comply with standards of water quality
and effluent limitations.
All persons affected by rules establishing water quality
standards and effluent limitations shall promptly comply
therewith:
Provided, That where necessary and proper, the chief
may specify a reasonable time for persons not complying with such
standards and limitations to comply therewith, and upon the
expiration of any such period of time, the chief shall revoke or
modify any permit previously issued which authorized the
discharge of treated or untreated sewage, industrial wastes or
other wastes into the waters of this state which result in
reduction of the quality of such waters below the standards and
limitations established therefor by rules of the board or
director.
§22-11-7. Cooperation with other governments and agencies.
The office of water resources is hereby designated as the
water pollution control agency for this state for all purposes offederal legislation and is hereby authorized to take all action
necessary or appropriate to secure to this state the benefits of
said legislation. In carrying out the purposes of this section,
the chief is hereby authorized to cooperate with the United
States environmental protection agency and other agencies of the
federal government, other states, interstate agencies and other
interested parties in all matters relating to water pollution,
including the development of programs for controlling and
reducing water pollution and improving the sanitary conditions of
the waters of the state; to apply for and receive, on behalf of
this state, funds made available under the aforesaid federal
legislation on condition that all moneys received from any
federal agency as herein provided shall be paid into the state
treasury and shall be expended, under the direction of the
director, solely for purposes for which the grants are made; to
approve projects for which applications for loans or grants under
the federal legislation are made by any municipality (including
any city, town, district or other public body created by or
pursuant to the laws of this state and having jurisdiction over
the disposal of sewage, industrial wastes or other wastes) or
agency of this state or by any interstate agency; and to
participate through authorized representatives in proceedings
under the federal legislation to recommend measures for the
abatement of water pollution originating in this state. The
governor may give consent on behalf of this state to requests by
the administrator of the United States environmental protectionagency to the attorney general of the United States for the
bringing of actions for the abatement of such pollution.
Whenever a federal law requires the approval or recommendation of
a state agency or any political subdivision of the state in any
matter relating to the water resources of the state, the
director, subject to approval of the Legislature, is hereby
designated as the sole person to give the approval or
recommendation required by the federal law, unless the federal
law specifically requires the approval or recommendation of some
other state agency or political subdivision of the state.
§22-11-8. Prohibitions; permits required.
(a) The chief may, after public notice and opportunity for
public hearing, issue a permit for the discharge or disposition
of any pollutant or combination of pollutants into waters of this
state upon condition that such discharge or disposition meets or
will meet all applicable state and federal water quality
standards and effluent limitations and all other requirements of
this article and article three, chapter twenty-two-b of this
code.
(b) It is unlawful for any person, unless the person holds
a permit therefor from the division, which is in full force and
effect, to:
(1) Allow sewage, industrial wastes or other wastes, or the
effluent therefrom, produced by or emanating from any point
source, to flow into the waters of this state;
(2) Make, cause or permit to be made any outlet, orsubstantially enlarge or add to the load of any existing outlet,
for the discharge of sewage, industrial wastes or other wastes,
or the effluent therefrom, into the waters of this state;
(3) Acquire, construct, install, modify or operate a
disposal system or part thereof for the direct or indirect
discharge or deposit of treated or untreated sewage, industrial
wastes or other wastes, or the effluent therefrom, into the
waters of this state, or any extension to or addition to such
disposal system;
(4) Increase in volume or concentration any sewage,
industrial wastes or other wastes in excess of the discharges or
disposition specified or permitted under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration
of any sewage, industrial wastes or other wastes discharging or
flowing into the waters of the state;
(6) Construct, install, modify, open, reopen, operate or
abandon any mine, quarry or preparation plant, or dispose of any
refuse or industrial wastes or other wastes from any such mine or
quarry or preparation plant:
Provided, That the division's
permit is only required wherever the aforementioned activities
cause, may cause or might reasonably be expected to cause a
discharge into or pollution of waters of the state, except that
a permit is required for any preparation plant:
Provided,
however, That unless waived in writing by the chief, every
application for a permit to open, reopen or operate any mine,quarry or preparation plant or to dispose of any refuse or
industrial wastes or other wastes from any such mine or quarry or
preparation plant shall contain a plan for abandonment of such
facility or operation, which plan shall comply in all respects to
the requirements of this article. Such plan of abandonment is
subject to modification or amendment upon application by the
permit holder to the chief and approval of such modification or
amendment by the chief;
(7) Operate any disposal well for the injection or
reinjection underground of any industrial wastes, including, but
not limited to, liquids or gases, or convert any well into such
a disposal well or plug or abandon any such disposal well.
(c) Where a person has a number of outlets emerging into the
waters of this state in close proximity to one another, such
outlets may be treated as a unit for the purposes of this
section, and only one permit issued for all such outlets.
(d) For water pollution control and national pollutant
discharge elimination system permits issued for activities
regulated by the office of mining and reclamation and the office
of oil and gas, the chief of the office of water resources may
delegate functions, procedures and activities to the respective
chiefs of those offices. Permits for such activities shall be
issued under the supervision of and with the signature and
approval of the chief of the office of water resources who shall
review and approve all procedures, effluent limits and other
conditions of such permits.
§22-11-9. Form of application for permit; information required.
The chief shall prescribe a form of application for all
permits for any activity specified in section eight of this
article and, notwithstanding any other provision of law to the
contrary, no other discharge permit or discharge authorization
from any other state department, agency, commission, board or
officer is required for such activity except that which is
required from the office of miners' health, safety and training
pursuant to section seventy-six, article two, chapter twenty-two-
a of this code. All applications must be submitted on a form as
prescribed above. An applicant shall furnish all information
reasonably required by any such form, including without limiting
the generality of the foregoing, a plan of maintenance and
proposed method of operation of the activity or activities.
Until all such required information is furnished, an application
is not a complete application. The division shall protect any
information (other than effluent data) contained in such permit
application form, or other records, reports or plans as
confidential upon a showing by any person that such information,
if made public, would divulge methods or processes entitled to
protection as trade secrets of such person. If, however, the
information being considered for confidential treatment is
contained in a national pollutant discharge elimination form, the
chief or board shall forward such information to the regional
administrator of the United States environmental protection
agency for concurrence in any determination of confidentiality.
§22-11-10. Water quality management fund established; permit
application fees; annual permit fees; dedication of
proceeds; rules.
(a) A special revenue fund designated the "Water Quality
Management Fund" shall be established in the state treasury on
the first day of July, one thousand nine hundred eighty-nine.
(b) The permit application fees and annual permit fees
established and collected pursuant to this section shall be
deposited into the water quality management fund. The director
shall expend the proceeds of the water quality management fund
for the review of initial permit applications, renewal permit
applications and permit issuance activities.
(c) The director shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code, to
establish a schedule of application fees for which the
appropriate fee shall be submitted by the applicant to the
division with the application filed pursuant to this article for
any state water pollution control permit or national pollutant
discharge elimination system permit. Such schedule of
application fees shall be designed to establish reasonable
categories of permit application fees based upon the complexity
of the permit application review process required by the division
pursuant to the provisions of this article and the rules
promulgated thereunder:
Provided, That no initial application
fee shall exceed seven thousand five hundred dollars for any
facility nor shall any permit renewal application fee exceed twothousand five hundred dollars. The division shall not process
any permit application pursuant to this article until said permit
application fee has been received.
(d) The director shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code, to
establish a schedule of permit fees which shall be assessed
annually upon each person holding a state water pollution control
permit or national pollutant discharge elimination system permit
issued pursuant to this article. Each person holding such a
permit shall pay the prescribed annual permit fee to the division
pursuant to the rules promulgated hereunder. Such schedule of
annual permit fees shall be designed to establish reasonable
categories of annual permit fees based upon the relative
potential of such categories or permits to degrade the waters of
the state:
Provided, That no annual permit fee may exceed two
thousand five hundred dollars. Any such permit issued pursuant
to this article is void when the annual permit fee is more than
one hundred eighty days past due pursuant to the rules
promulgated hereunder.
(e) The provisions of this section are not applicable to
fees required for permits issued under article three of this
chapter.
§22-11-11. Procedure concerning permits required under article;
transfer of permits; prior permits.
(a) The chief or his or her duly authorized representatives
shall conduct such investigation as is deemed necessary andproper in order to determine whether any such application should
be granted or denied. In making such investigation and
determination as to any application pertaining solely to sewage,
the chief shall consult with the director of the office of
environmental health services of the state bureau of public
health, and in making such investigation and determination as to
any application pertaining to any activity specified in
subdivision (7), subsection (b), section eight of this article,
the chief shall consult with the director of the state geological
and economic survey and the chief of the office of oil and gas of
the division , and all such persons shall cooperate with the
chief and assist him or her in carrying out the duties and
responsibilities imposed upon him or her under the provisions of
this article and the rules of the director and board; such
cooperation shall include, but not be limited to, a written
recommendation approving or disapproving the granting of the
permit and the reason or reasons for such recommendation, which
recommendation and the reason or reasons therefor shall be
submitted to the chief within the specified time period
prescribed by rules of the director.
(b) The division's permit shall be issued upon such
reasonable terms and conditions as the chief may direct if: (1)
The application, together with all supporting information and
data and other evidence, establishes that any and all discharges
or releases, escapes, deposits and disposition of treated or
untreated sewage, industrial wastes or other wastes, or theeffluent therefrom, resulting from the activity or activities for
which the application for a permit was made will not cause
pollution of the waters of this state or violate any effluent
limitations or any rules of the board or director:
Provided,
That the chief may issue a permit whenever in his or her judgment
the water quality standards of the state may be best protected by
the institution of a program of phased pollution abatement which
under the terms of the permit may temporarily allow a limited
degree of pollution of the waters of the state; and (2) in cases
wherein it is required, such applicant shall include the name and
address of the responsible agent as set forth in subsection (e),
section six, article six of this chapter.
(c) Each permit issued under this article shall have a fixed
term not to exceed five years:
Provided, That when the
applicant, in accordance with agency rules, has made a timely and
complete application for permit reissuance, the permit term may
be extended by the chief, at his or her discretion, for a period
not to exceed one hundred twenty months beyond its expiration
date. Upon expiration of a permit, a new permit may be issued by
the chief upon condition that the discharges or releases,
escapes, deposits and disposition thereunder meet or will meet
all applicable state and federal water quality standards,
effluent limitations and all other requirements of this article.
(d) An application for a permit incident to remedial action
in accordance with the provisions of section sixteen of this
article shall be processed and decided as any other applicationfor a permit required under the provisions of section eight of
this article.
(e) A complete application for any permit shall be acted
upon by the chief, and the division's permit delivered or mailed,
or a copy of any order of the chief denying any such application
delivered or mailed to the applicant by the chief, within a
reasonable time period as prescribed by rules of the director.
(f) When it is established that an application for a permit
should be denied, the chief shall make and enter an order to that
effect, which order shall specify the reasons for such denial,
and shall cause a copy of such order to be served on the
applicant by registered or certified mail. The chief shall also
cause a notice to be served with a copy of such order, which
notice shall advise the applicant of the right to appeal to the
board by filing a notice of appeal on the form prescribed by the
board for such purpose, with the board, in accordance with the
provisions of, and within the time specified in, section seven,
article one, chapter twenty-two-b of this code. However, an
applicant may alter the plans and specifications for the proposed
activity and submit a new application for any such permit, in
which event the procedure hereinbefore outlined with respect to
an original application shall apply.
(g) A permit is transferable to another person upon proper
notification to the chief and in accordance with applicable
rules. Such transfer does not become effective until it is
reflected in the records of the office of water resources.
(h) All permits for the discharge of sewage, industrial
wastes or other wastes into any waters of the state issued by the
water resources board prior to July one, one thousand nine
hundred sixty-four, and all permits heretofore issued under the
provisions of former article five-a, chapter twenty of this code,
and which have not been heretofore revoked, are subject to
review, revocation, suspension, modification and reissuance in
accordance with the terms and conditions of this article and the
rules promulgated thereunder. Any order of revocation,
suspension or modification made and entered pursuant to this
subsection shall be upon at least twenty days' notice and shall
specify the reasons for such revocation, suspension or
modification and the chief shall cause a copy of such order,
together with a copy of a notice of the right to appeal to the
board as provided for in section twelve of this article, to be
served upon the permit holder as specified in said section.
§22-11-12. Inspections; orders to compel compliance with
permits; service of orders.
After issuance of the division's permit for any activity the
director may make field inspections of the work on the activity,
and, after completion thereof, may inspect the completed
activity, and, from time to time, may inspect the maintenance and
operation of the activity.
To compel compliance with the terms and conditions of the
division's permit for any activity, the director is hereby
authorized, after at least twenty days' notice, to make and enteran order revoking, suspending or modifying in whole or in part
such permit for cause including, but not limited to, the
following:
(1) Violation of any term or condition of the permit;
(2) Obtaining a permit by misrepresentation, or failure to
disclose fully all relevant facts; or
(3) Change in any condition that requires either a temporary
or permanent reduction or elimination of the permitted discharge,
release, escape, deposit or disposition.
The director shall cause a copy of any such order to be
served by registered or certified mail or by a law-enforcement
officer upon the person to whom any such permit was issued. The
director shall also cause a notice to be served with a copy of
such order, which notice shall advise such person of the right to
appeal to the board by filing a notice of appeal on the form
prescribed by the board for such purpose, with the board, in
accordance with the provisions of, and within the time specified
in, section seven, article one, chapter twenty-two-b of this
code.
§22-11-13. Voluntary water quality monitors; appointment;
duties; compensation.
The director is hereby authorized to appoint voluntary water
quality monitors to serve at the will and pleasure of the
director. All such monitors appointed pursuant hereto shall be
eighteen years of age or over and shall be bona fide residents of
this state.
Such monitors are authorized to take water samples of the
waters of this state at such times and at such places as the
director shall direct and to forward such water samples to the
director for analysis.
The director is authorized to provide such monitors with
such sampling materials and equipment as he or she deems
necessary:
Provided, That such equipment and materials shall at
all times remain the property of the state and shall be
immediately returned to the director upon his or her direction.
Such monitors shall not be construed to be employees of this
state for any purpose except that the director is hereby
authorized to pay such monitors a fee not to exceed fifty cents
for each sample properly taken and forwarded to the director as
hereinabove provided.
The director shall conduct schools to instruct said monitors
in the methods and techniques of water sample taking and issue to
said monitors an identification card or certificate showing their
appointment and training.
Upon a showing that any water sample as herein provided was
taken and analyzed in conformity with standard and recognized
procedures, such sample and analysis is admissible in any court
of this state for the purpose of enforcing the provisions of this
article.
§22-11-14. Information to be filed by certain persons with
division; tests.
Any and all persons directly or indirectly discharging ordepositing treated or untreated sewage, industrial wastes, or
other wastes, or the effluent therefrom, into or near any waters
of the state shall file with the director such information as the
director may reasonably require on forms prescribed for such
purpose, including but not limited to, data as to the kind,
characteristics, amount and rate of flow of such discharge or
deposit. If the director has reasonable cause to believe that
any establishment is, or may be, polluting the waters of the
state, the director may require any person owning, operating or
maintaining such establishment to furnish such information as may
reasonably be required to ascertain whether such establishment
is, or may be causing such pollution, and the director may
conduct any test or tests that he or she may deem necessary or
useful in making his or her investigation and determination.
§22-11-15. Orders of director to stop or prevent discharges or
deposits or take remedial action; service of orders.
If the director, on the basis of investigations, inspections
and inquiries, determines that any person who does not have a
valid permit issued pursuant to the provisions of this article is
causing the pollution of any of the waters of the state, or does
on occasions cause pollution or is violating any rule or effluent
limitation of the board or the director, he or she shall either
make and enter an order directing such person to stop such
pollution or the violation of the rule or effluent limitation of
the board or director, or make and enter an order directing such
person to take corrective or remedial action. Such order shallcontain findings of fact upon which the director based the
determination to make and enter such order. Such order shall
also direct such person to apply forthwith for a permit in
accordance with the provisions of sections eight, nine and eleven
of this article. The director shall fix a time limit for the
completion of such action. Whether the director shall make and
enter an order to stop such pollution or shall make and enter an
order to take remedial action, in either case the person so
ordered may elect to cease operations of the establishment deemed
to be the source of such discharge or deposits causing pollution,
if the pollution referred to in the director's order shall be
stopped thereby.
The director shall cause a copy of any such order to be
served by registered or certified mail or by a law-enforcement
officer upon such person. The director shall also cause a notice
to be served with the copy of such order, which notice shall
advise such person of the right to appeal to the board by filing
a notice of appeal, on the form prescribed by the board for such
purpose, with the board, in accordance with the provisions of
article one, chapter twenty-two-b of this code.
§22-11-16. Compliance with orders of director.
Any person upon whom any order of the director or any order
of the board in accordance with the provisions of section fifteen
of this article, or article one, chapter twenty-two-b of this
code has been served shall fully comply therewith.
When such person is ordered to take remedial action and doesnot elect to cease operation of the establishment deemed to be
the source of such pollution, or when such ceasing does not stop
the pollution, he or she shall forthwith apply for a permit under
and in accordance with the provisions of sections eight, nine and
eleven of this article. No such remedial action shall be taken
until a permit therefor has been issued; however, receipt of a
permit does not in and of itself constitute remedial action.
§22-11-17. Power of eminent domain; procedures; legislative
finding.
(a) When any person who is owner of an establishment is
ordered by the director to stop or prevent pollution or the
violation of the rules of the board or director or to take
corrective or remedial action, compliance with which order will
require the acquisition, construction or installation of a new
treatment works or the extension or modification of or an
addition to an existing treatment works, (which acquisition,
construction, installation, extension, modification or addition
of or to a treatment works pursuant to such order is referred to
in this section as "such compliance") such person may exercise
the power of eminent domain in the manner provided in chapter
fifty-four of this code, to acquire such real property or
interests in real property as may be determined by the director
to be reasonably necessary for such compliance.
(b) Upon application by such person and after twenty days'
written notice to all persons whose property may be affected, the
director shall make and enter an order determining the specificreal property or interests in real property, if any, which are
reasonably necessary for such compliance. In any proceeding
under this section, the person seeking to exercise the right of
eminent domain herein conferred shall establish the need for the
amount of land sought to be condemned and that such land is
reasonably necessary for the most practical method for such
compliance.
(c) The right of eminent domain herein conferred does not
apply to the taking of any dwelling house or for the taking of
any land within five hundred feet of any such dwelling house.
(d) The Legislature hereby declares and finds that the
taking and use of real property and interests in real property
determined to be reasonably necessary for such compliance
promotes the health, safety and general welfare of the citizens
of this state by reducing and abating pollution in the waters of
this state in which the public at large has an interest and
otherwise; that such taking and use are necessary to provide and
protect a safe, pure and adequate water supply to the
municipalities and citizens of the state; that because of
topography, patterns of land development and ownership and other
factors it is impossible in many cases to effect such compliance
without the exercise of the power of eminent domain and that the
use of real property or interests in real property to effect such
compliance is a public use for which private property may be
taken or destroyed.
§22-11-18. Duty to proceed with remedial action promptly upon
receipt of permit; progress reports required; finances and
funds.
When any person is ordered to take remedial action and does
not elect to cease operation of the establishment deemed to be
the source of such pollution or when ceasing does not stop the
pollution, such person shall immediately upon issuance of the
permit required under section sixteen of this article take or
begin appropriate steps or proceedings to carry out such remedial
action. In any such case it is the duty of each individual
offender, each member of a partnership, each member of the
governing body of a municipal corporation and each member of the
board of directors or other governing body of a private
corporation, association or other legal entity whatever, to see
that appropriate steps or proceedings to comply with such order
are taken or begun immediately. The director may require
progress reports, at such time intervals as he or she deems
necessary, setting forth the steps taken, the proceedings started
and the progress made toward completion of such remedial action.
All such remedial action shall be diligently prosecuted to
completion.
Failure of the governing body of a municipal corporation, or
the board of directors or other governing body of any private
corporation, association or other legal entity whatever, to
provide immediately for the financing and carrying out of such
remedial action, as may be necessary to comply with said order,
constitutes failure to take or begin appropriate steps orproceedings to comply with such order. If such person is a
municipal corporation, the cost of all such remedial action as is
necessary to comply with said order shall be paid out of funds on
hand available for such purpose, or out of the general funds of
such municipal corporation, not otherwise appropriated, and if
there is not sufficient funds on hand or unappropriated, then the
necessary funds shall be raised by the issuance of bonds. Any
direct general obligation bond issue is subject to the approval
of the municipal bond commission and the attorney general of the
state of West Virginia.
If the estimated cost of the remedial action to be taken by
a municipal corporation to comply with such order is such that
any bond issue necessary to finance such action would not raise
the total outstanding bonded indebtedness of such municipal
corporation in excess of the constitutional limit imposed upon
such indebtedness by the constitution of this state, then and in
that event the necessary bonds may be issued as a direct
obligation of such municipal corporation, and retired by a
general tax levy to be levied against all property within the
limit of such municipal corporation listed and assessed for
taxation. If the amount of such bonds necessary to be issued
would raise the total outstanding bonded indebtedness of such
municipal corporation above said constitutional limitation on
such indebtedness, or if such municipal corporation by its
governing body shall decide against the issuance of direct
obligation bonds, then such municipal corporation shall issuerevenue bonds and provide for the retirement thereof in the same
manner and subject to the same conditions as provided for the
issuance and retirement of bonds in article thirteen, chapter
sixteen of this code:
Provided, That the provisions of section
six of said article, allowing objections to be filed with the
governing body, and providing that a written protest of thirty
percent or more of the owners of real estate requires a four-
fifths vote of the governing body for the issuance of said
revenue bonds, does not apply to bond issues proposed by any
municipal corporation to comply with an order made and entered
under the authority of this article, and such objections and
submission of written protest is not authorized, nor does the
same, if made or had, operate to justify or excuse failure to
comply with such order.
The funds made available by the issuance of either direct
obligation bonds or revenue bonds, as herein provided, does
constitute a "sanitary fund", and shall be used for no other
purpose than for carrying out such order; no public money so
raised shall be expended by any municipal corporation for any
purpose enumerated in this article, unless such expenditure and
the amount thereof have been approved by the director. The
acquisition, construction or installation, use and operation,
repair, modification, alteration, extension, equipment, custody
and maintenance of any disposal system by any municipal
corporation, as herein provided, and the rights, powers and
duties with respect thereto, of such municipal corporation andthe respective officers and departments thereof, whether the same
is financed by the issuance of revenue or direct obligation
bonds, shall be governed by the provisions of article thirteen,
chapter sixteen of this code.
§22-11-19. Emergency orders.
Whenever the director finds that any discharge, release,
escape, deposit or disposition of treated or untreated sewage,
industrial wastes or other wastes into any waters within this
state, when considered alone or in conjunction with other
discharges, releases, escapes, deposits or dispositions,
constitutes a clear, present and immediate danger to the health
of the public, or to the fitness of a private or public water
supply for drinking purposes, the director may, with the
concurrence in writing of the commissioner of the bureau of
public health, without notice or hearing, issue an order or
orders requiring the immediate cessation or abatement of any such
discharge, release, escape, deposit or disposition, and the
cessation of any drilling, redrilling, deepening, casing,
fracturing, pressuring, operating, plugging, abandoning,
converting or combining of any well, or requiring such other
action to be taken as the director, with the concurrence
aforesaid, deems necessary to abate such danger.
Notwithstanding the provisions of any other section of this
article, any order issued under the provisions of this section is
effective immediately and may be served in the same manner as a
notice may be served under the provisions of section two, articleseven, chapter twenty-nine-a of the code. Any person to whom
such order is directed shall comply therewith immediately, but on
notice of appeal to the board shall be afforded a hearing as
promptly as possible, and not later than ten days after the board
receives such notice of appeal. On the basis of such hearing,
and within five days thereafter, the board shall make and enter
an order continuing the order of the director in effect, revoking
it, or modifying it. For the purpose of such appeal and judicial
review of the order entered following an appeal hearing, all
pertinent provisions of article one, chapter twenty-two-b of this
code shall govern.
§22-11-20. Control by state as to pollution; continuing
jurisdiction.
No right to violate the rules of the board or director or to
continue existing pollution of any of the waters of the state
exists nor may such right be acquired by virtue of past or future
pollution by any person. The right and control of the state in
and over the quality of all waters of the state are hereby
expressly reserved and reaffirmed. It is recognized that with
the passage of time, additional efforts may have to be made by
all persons toward control and reduction of the pollution of the
waters of the state, irrespective of the fact that such persons
may have previously complied with all orders of the director or
board. It is also recognized that there should be continuity and
stability respecting pollution control measures taken in
cooperation with, and with the approval of, the director, orpursuant to orders of the director or board. When a person is
complying with the terms and conditions of a permit granted
pursuant to the provisions of section eleven of this article or
when a person has completed remedial action pursuant to an order
of the director or board, additional efforts may be required
wherever and whenever the rules of the board or director or
effluent limitations are violated or the waters of the state are
polluted by such person.
§22-11-21. Appeal to environmental quality board.
Any person adversely affected by an order made and entered by
the director in accordance with the provisions of this article,
or aggrieved by failure or refusal of the chief to act within the
specified time as provided in subsection (e) of section eleven of
this article on an application for a permit or aggrieved by the
terms and conditions of a permit granted under the provisions of
this article, may appeal to the environmental quality board,
pursuant to the provisions of article one, chapter twenty-two-b
of this code.
§22-11-22. Civil penalties and injunctive relief.
Any person who violates any provision of any permit issued
under or subject to the provisions of this article is subject to
a civil penalty not to exceed ten thousand dollars per day of
such violation, and any person who violates any provision of this
article or of any rule or who violates any standard or order
promulgated or made and entered under the provisions of this
article or articles one or three, chapter twenty-two-b of thiscode is subject to a civil penalty not to exceed ten thousand
dollars per day of such violation. Any such civil penalty may be
imposed and collected only by a civil action instituted by the
director in the circuit court of the county in which the
violation occurred or is occurring or of the county in which the
waters thereof are polluted as the result of such violation.
Upon application by the director, the circuit courts of this
state or the judges thereof in vacation may by injunction compel
compliance with and enjoin violations of the provisions of this
article, the rules of the board or director, effluent
limitations, the terms and conditions of any permit granted under
the provisions of this article, or any order of the director or
board, and the venue of any such action shall be the county in
which the violation or noncompliance exists or is taking place or
in any county in which the waters thereof are polluted as the
result of such violation or noncompliance. The court or the
judge thereof in vacation may issue a temporary or preliminary
injunction in any case pending a decision on the merits of any
injunctive application filed. Any other section of this code to
the contrary notwithstanding, the state is not required to
furnish bond as a prerequisite to obtaining injunctive relief
under this article. An application for an injunction under the
provisions of this section may be filed and injunctive relief
granted notwithstanding that all of the administrative remedies
provided for in this article have not been pursued or invoked
against the person or persons against whom such relief is soughtand notwithstanding that the person or persons against whom such
relief is sought have not been prosecuted or convicted under the
provisions of this article.
The judgment of the circuit court upon any application filed
or in any civil action instituted under the provisions of this
section is final unless reversed, vacated or modified on appeal
to the supreme court of appeals. Any such appeal shall be sought
in the manner provided by law for appeals from circuit courts in
other civil cases, except that the petition seeking review in any
injunctive proceeding must be filed with said supreme court of
appeals within ninety days from the date of entry of the judgment
of the circuit court.
Legal counsel and services for the chief, director or the
board in all civil penalty and injunction proceedings in the
circuit court and in the supreme court of appeals of this state
shall be provided by the attorney general or his or her
assistants and by the prosecuting attorneys of the several
counties as well, all without additional compensation, or the
chief, director or the board, with the written approval of the
attorney general, may employ counsel to represent him or her or
it in a particular proceeding.
§22-11-23. Priority of actions.
All applications under section twenty-two of this article
and all proceedings for judicial review under article one,
chapter twenty-two-b of this code shall take priority on the
docket of the circuit court in which pending, and shall takeprecedence over all other civil cases. Where such applications
and proceedings for judicial review are pending in the same court
at the same time, such applications shall take priority on the
docket and shall take precedence over proceedings for judicial
review.
§22-11-24. Violations; criminal penalties.
Any person who causes pollution or who fails or refuses to
discharge any duty imposed upon such person by this article or by
any rule of the board or director, promulgated pursuant to the
provisions and intent of this article or article three, chapter
twenty-two-b of this code, or by an order of the director or
board, or who fails or refuses to apply for and obtain a permit
as required by the provisions of this article, or who fails or
refuses to comply with any term or condition of such permit, is
guilty of a misdemeanor, and, upon conviction thereof, shall be
punished by a fine of not less than one hundred dollars nor more
than one thousand dollars, or by imprisonment in the county jail
for a period not exceeding six months, or by both such fine and
imprisonment.
Any person who intentionally misrepresents any material fact
in an application, record, report, plan or other document filed
or required to be maintained under the provisions of this article
or any rules promulgated by the director thereunder is guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than one thousand dollars nor more than ten
thousand dollars or by imprisonment in the county jail notexceeding six months or by both such fine and imprisonment.
Any person who willfully or negligently violates any
provision of any permit issued under or subject to the provisions
of this article or who willfully or negligently violates any
provision of this article or any rule of the board or director or
any effluent limitation or any order of the director or board is
guilty of a misdemeanor, and, upon conviction thereof, shall be
punished by a fine of not less than two thousand five hundred
dollars nor more than twenty-five thousand dollars per day of
violation or by imprisonment in the county jail not exceeding one
year or by both such fine and imprisonment.
Any such person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the
administrative remedies provided for in this article have been
pursued or invoked against said person and notwithstanding that
a civil action for the imposition and collection of a civil
penalty or an application for an injunction under the provisions
of this article has not been filed against such person.
Where a person holding a permit is carrying out a program of
pollution abatement or remedial action in compliance with the
conditions and terms of such permit, the person is not subject to
criminal prosecution for pollution recognized and authorized by
such permit.
§22-11-25. Civil liability; natural resources game fish and
aquatic life fund; use of funds.
If any loss of game fish or aquatic life results from aperson's or persons' failure or refusal to discharge any duty
imposed upon such person by this article or section seven,
article six of this chapter, either the West Virginia division of
natural resources or the division of environmental protection, or
both jointly may initiate a civil action on behalf of the state
of West Virginia to recover from such person or persons causing
such loss a sum equal to the cost of replacing such game fish or
aquatic life. Any moneys so collected shall be deposited in a
special revenue fund entitled "natural resources game fish and
aquatic life fund" and shall be expended as hereinafter provided.
The fund shall be expended to stock waters of this state with
game fish and aquatic life. Where feasible, the director of the
division of natural resources shall use any sum collected in
accordance with the provisions of this section to stock waters in
the area in which the loss resulting in the collection of such
sum occurred. Any balance of such sum shall remain in said fund
and be expended to stock state-owned and operated fishing lakes
and ponds, wherever located in this state, with game fish and
aquatic life.
§22-11-26. Exceptions as to criminal liabilities.
The criminal liabilities may not be imposed pursuant to
section twenty-four of this article for violations resulting from
accident or caused by an act of God, war, strike, riot or other
catastrophe as to which negligence or wilful misconduct on the
part of such person was not the proximate cause.
§22-11-27. Existing rights and remedies preserved; article for
benefit of state only.
It is the purpose of this article to provide additional and
cumulative remedies to abate the pollution of the waters of the
state and nothing herein contained shall abridge or alter rights
of action or remedies now or hereafter existing, nor shall any
provisions in this article, or any act done by virtue of this
article, be construed as estopping the state, municipalities,
public health officers, or persons as riparian owners or
otherwise, in the exercise of their rights to suppress nuisances
or to abate any pollution now or hereafter existing, or to
recover damages.
The provisions of this article inure solely to and are for
the benefit of the people generally of the state of West
Virginia, and this article is not intended to in any way create
new, or enlarge existing rights of riparian owners or others. An
order of the chief or of the board, the effect of which is to
find that pollution exists, or that any person is causing
pollution, or any other order, or any violation of any of the
provisions of this article shall give rise to no presumptions of
law or findings of fact inuring to or for the benefit of persons
other than the state of West Virginia.
§22-11-28. Functions, services and reports of director of the
division; obtaining information from others.
The director shall make surveys and investigations of the
water resources of the state and shall maintain an inventory of
the water resources of the state and to the extent practicableshall divide the state into watershed drainage areas in making
this inventory. The director shall investigate and study the
problems of agriculture, industry, conservation, health, water
pollution, domestic and commercial uses and allied matters as
they relate to the water resources of the state, and shall make
and formulate comprehensive plans and recommendations for the
further development, improvement, protection, preservation,
regulation and use of such water resources, giving proper
consideration to the hydrologic cycle in which water moves. The
director shall provide to the Legislature a biennial report on
the quality of the state's waters, including an evaluation of the
information which has been obtained in accordance with the
requirements of this section and shall include in this report the
plans and recommendations which have been formulated pursuant to
the requirements of this section. Where possible the timing and
content of this report shall be structured so that it may also be
used to fulfill any federal program reporting requirements. The
report shall include reasons for such plans and recommendations,
as well as any changes in the law which are deemed desirable to
effectuate such plans and recommendations. Such report shall be
made available to the public at a reasonable price to be
determined by the director.
The director may request, and, upon request, is entitled to
receive from any agency of the state or any political subdivision
thereof, or from any other person who engages in a commercial use
or controls any of the water resources of the state, suchnecessary information and data as will assist in obtaining a
complete picture of the water resources of the state and the
existing control and commercial use thereof. The director shall
reimburse such agencies, political subdivisions and other persons
for any expenses, which would not otherwise have been incurred,
in making such information and data available.
ARTICLE 12. GROUNDWATER PROTECTION ACT.
§22-12-1. Short title.
This article may be known and cited as the "Groundwater
Protection Act".
§22-12-2. Legislative findings, public policy and purposes.
(a) The Legislature finds that:
(1) West Virginia has relatively pure groundwater resources
which are abundant and readily available;
(2) Over fifty percent of West Virginia's overall
population, and over ninety percent of the state's rural
population, depend on groundwater for drinking water;
(3) A rural lifestyle has created a quality of life in many
parts of West Virginia which is highly valued. Maintaining this
lifestyle depends upon protecting groundwater to avoid increased
expenses associated with providing treated drinking water
supplies to rural households;
(4) West Virginia's groundwater resources are geologically
complex, with the nature and vulnerability of groundwater
aquifers and recharge areas not fully known;
(5) Contamination of groundwater is generally much moredifficult and expensive to clean up than is the case with surface
water;
(6) Groundwaters and surface waters can be highly
interconnected. The quality of any given groundwater can have a
significant impact on the quality of groundwaters and surface
waters to which it is hydrologically connected;
(7) A diverse array of human activities can adversely impact
groundwater, making it necessary to develop regulatory programs
that utilize a variety of approaches;
(8) Various agencies of state government currently exercise
regulatory control over activities which may impact on
groundwater. Coordination and streamlining of the regulatory
activities of these agencies is necessary to assure that the
state's groundwater is maintained and protected through an
appropriate groundwater protection program;
(9) Disruption of existing state regulatory programs should
be avoided to the maximum extent practical;
(10) The maintenance and protection of the state's
groundwater resources can be achieved consistent with the
maintenance and expansion of employment opportunities,
agriculture, and industrial development; and
(11) A state groundwater management program will provide
economic, social, and environmental benefits for the citizens of
West Virginia now and in the future.
(b) Therefore, the Legislature establishes that it is the
public policy of the state of West Virginia to maintain andprotect the state's groundwater so as to support the present and
future beneficial uses and further to maintain and protect
groundwater at existing quality where the existing quality is
better than that required to maintain and protect the present and
future beneficial uses. Such existing quality shall be
maintained and protected unless it is established that: (1) The
measures necessary to preserve existing quality are not
technically feasible or economically practical; and (2) a change
in groundwater quality is justified based upon economic or
societal objectives. Such a change shall maintain and protect
groundwater quality so as to support the present and future
beneficial uses of such groundwater.
(c) The purposes of this article are to:
(1) Maintain and protect the state's groundwater resources
consistent with this article to protect the present and future
beneficial uses of the groundwater.
(2) Provide for the establishment of a state groundwater
management program which will:
(i) Define the roles of agencies of the state and political
subdivisions with respect to the maintenance and protection of
groundwater, and designate a lead agency for groundwater
management;
(ii) Designate a state agency responsible for establishment
of groundwater quality standards;
(iii) Provide for the establishment of standards of purity
and quality for all groundwater;
(iv) Provide for the establishment of groundwater protection
programs consistent with this article;
(v) Establish groundwater protection and groundwater
remediation funds;
(vi) Provide for the mapping and analysis of the state's
groundwater resources and coordination of the agencies involved;
and
(vii) Provide for public education on groundwater resources
and methods for preventing contamination.
(3) Provide such enforcement and compliance mechanisms as
will assure the implementation of the state's groundwater
management program.
(4) Assure that actions taken to implement this article are
consistent with the policies set forth in section two, article
eleven of this chapter.
§22-12-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Agency action" means the issuance, renewal or denial of
any permit, license or other required agency approval, or any
terms or conditions thereof, or any order or other directive
issued by the division of environmental protection, bureau of
public health, department of agriculture or any other agency of
the state or a political subdivision to the extent that such
action relates directly to the implementation, administration or
enforcement of this article.
(b) "Beneficial uses" means those uses which are protective
of human health and welfare and the environment. Pollution of
groundwater is not considered a beneficial use.
(c) "Board" means the state water resources environmental
quality board.
(d) "Constituent" means any chemical or biological substance
found in groundwater due to either natural or man-made
conditions.
(e) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one of this chapter.
(f) "Groundwater" means the water occurring in the zone of
saturation beneath the seasonal high water table, or any perched
water zones.
(g) "Groundwater certification" means an assurance issued by
the director of the division of environmental protection that a
permit or other approval issued by a state, county or local
government body regarding an activity that affects or is
reasonably anticipated to affect groundwater complies with all
requirements of this chapter, the legislative rules promulgated
pursuant to this chapter in accordance with chapter twenty-nine-a
of this code and any other requirements of state law, rules or
agreements regarding groundwater.
(h) "Person" means any industrial user, public or private
corporation, institution, association, firm or company organizedor existing under the laws of this or any other state or country;
state of West Virginia; governmental agency, including federal
facilities; political subdivision; county commission; municipal
corporation; industry; sanitary district; public service
district; soil conservation district; watershed improvement
district; partnership; trust; estate; person or individual; group
of persons or individuals acting individually or as a group; or
any legal entity whatever.
(i) "Pollution" means the man-made or man-induced alteration
of the chemical, physical, biological or radiological integrity
of the groundwater.
(j) "Preventative action limit" means a numerical value
expressing the concentration of a substance in groundwater that,
if exceeded, causes action to be taken to assure that standards
of purity and quality of groundwater are not violated.
(k) "Water" means any and all water on or beneath the
surface of the ground, whether percolating, standing, diffused or
flowing, wholly or partially within this state, or bordering this
state and within its jurisdiction, and includes without limiting
the generality of the foregoing, natural or artificial lakes,
rivers, streams, creeks, branches, brooks, ponds (except farm
ponds, industrial settling basins and ponds and water treatment
facilities), impounding reservoirs, springs, wells, watercourses
and wetlands.
§22-12-4. Authority of environmental quality board to promulgate
standards of purity and quality.
(a) The environmental quality board has the sole and
exclusive authority to promulgate standards of purity and quality
for groundwater of the state and shall promulgate such standards
following a public hearing within one year from the effective
date of this article, by legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code.
(b) Such standards shall establish the maximum contaminant
levels permitted for groundwater, but in no event shall such
standards allow contaminant levels in groundwater to exceed the
maximum contaminant levels adopted by the United States
Environmental Protection Agency pursuant to the federal Safe
Drinking Water Act. The board may set standards more restrictive
than the maximum contaminant levels where it finds that such
standards are necessary to protect drinking water use where
scientifically supportable evidence reflects factors unique to
West Virginia or some area thereof, or to protect other
beneficial uses of the groundwater. For contaminants not
regulated by the federal Safe Drinking Water Act, standards for
such contaminants shall be established by the board to be no less
stringent than may be reasonable and prudent to protect drinking
water or any other beneficial use. Where the concentration of a
certain constituent exceeds such standards due to natural
conditions, the natural concentration is the standard for that
constituent. Where the concentration of a certain constituent
exceeds such standard due to human-induced contamination, no
further contamination by that constituent is allowed, and everyreasonable effort shall be made to identify, remove or mitigate
the source of such contamination, and to strive where practical
to reduce the level of contamination over time to support
drinking water use. (c) The standards of purity and quality for
groundwater promulgated by the board shall recognize the degree
to which groundwater is hydrologically connected with surface
water and other groundwater and such standards shall provide
protection for such surface water and other groundwater. (d) In
the promulgation of such standards the board shall consult with
the division of environmental protection, department of
agriculture and the bureau of public health, as appropriate. (e)
Any groundwater standard of the board that is in effect on the
effective date of this article shall remain in effect until
modified by the board. Notwithstanding any other provisions of
this code to the contrary, the authority of the board to adopt
standards of purity and quality for groundwater granted by the
provisions of this article is exclusive, and to the extent that
any other provisions of this code grant such authority to any
person, body, agency or entity other than the board, those other
provisions are void.
§22-12-5. Authority of other agencies; applicability.
(a) Notwithstanding any other provision of this code to the
contrary, no agency of state government or any political
subdivision may regulate any facility or activities for the
purpose of maintaining and protecting the groundwater except as
expressly authorized pursuant to this article.
(b) To the extent that such agencies have the authority
pursuant to any provision of this code, other than this article,
to regulate facilities or activities, the division of
environmental protection, the department of agriculture, the
bureau of public health, and such agencies of the state or any
political subdivision as may be specifically designated by the
director with the concurrence of such designated agencies or
political subdivisions, as appropriate, are hereby authorized to
be groundwater regulatory agencies for purposes of regulating
such facilities or activities to satisfy the requirements of this
article. In addition, the department of agriculture is hereby
authorized to be the groundwater regulatory agency for purposes
of regulating the use or application of pesticides and
fertilizers. Where the authority to regulate facilities or
activities which may adversely impact groundwater is not
otherwise assigned to the division of environmental protection,
the department of agriculture, the bureau of public health or
such other specifically designated agency pursuant to any other
provision of this code, the division of environmental protection
is hereby authorized to be the groundwater regulatory agency with
respect to such unassigned facilities or activities. The
division of environmental protection shall cooperate with the
department of agriculture and the bureau of public health, as
appropriate, in the regulation of such unassigned facilities or
activities.
(c) Within one year of the effective date of this article,the department of agriculture, bureau of public health and
division of environmental protection shall promulgate in
accordance with the provisions of chapter twenty-nine-a of this
code such legislative rules as may be necessary to implement the
authority granted them by this article.
(d) Groundwater regulatory agencies shall develop
groundwater protection practices to prevent groundwater
contamination from facilities and activities within their
respective jurisdictions consistent with this article. Such
practices shall include, but not be limited to, criteria related
to facility design, operational management, closure, remediation
and monitoring. Such agencies shall issue such rules, permits,
policies, directives or any other appropriate regulatory devices,
as necessary, to implement the requirements of this article.
(e) Groundwater regulatory agencies shall take such action
as may be necessary to assure that facilities or activities
within their respective jurisdictions maintain and protect
groundwater at existing quality, where the existing quality is
better than that required to maintain and protect the standards
of purity and quality promulgated by the board to support the
present and future beneficial uses of the state's groundwater.
(f) Where a person establishes to the director that: (1)
The measures necessary to preserve existing quality are not
technically feasible or economically practical; and (2) a change
in groundwater quality is justified based upon economic or
societal objectives, the director may allow for a deviation fromsuch existing quality. Upon the director's finding of (1) and
(2) above, the director may grant or deny such a deviation for a
specific site, activity or facility or for a class of activities
or facilities which have impacts which are substantially similar
and exist in a defined geographic area. The director's reasons
for granting or denying such a deviation shall be set forth in
writing and the director has the exclusive authority to determine
the terms and conditions of such a deviation. To insure that
groundwater standards promulgated by the board are not violated
and that the present and future beneficial uses of groundwater
are maintained and protected, the director shall evaluate the
cumulative impacts of all facilities and activities on the
groundwater resources in question prior to any granting of such
deviation from existing quality. The director shall consult with
the department of agriculture and the bureau of public health as
appropriate in the implementation of this subsection. The
director shall, upon a written request for such information,
provide notice of any deviations from existing quality granted
pursuant to this subsection.
(g) Should the approval required in subsection (f) of this
section be granted allowing for a deviation from existing
quality, the groundwater regulatory agencies shall take such
alternative action as may be necessary to assure that facilities
and activities within their respective jurisdictions maintain and
protect the standards of purity and quality promulgated by the
board to support the present and future beneficial uses for thatgroundwater. In maintaining and protecting such standards of the
board, such agencies shall establish preventative action limits
which, once reached, shall require action to control a source of
contamination to assure that such standards are not violated.
The director shall provide guidelines to the groundwater
regulatory agencies with respect to the establishment of such
preventative action limits.
(h) Subsections (e), (f) and (g) of this section do not
apply to coal extraction and earth disturbing activities directly
involved in coal extraction that are subject to either or both
article three or eleven of this chapter. Such activities are
subject to all other provisions of this article.
(i) This article is not applicable to groundwater within
areas of geologic formations which are site specific to:
(1) The production or storage zones of crude oil or natural
gas and which are utilized for the exploration, development or
production of crude oil or natural gas permitted pursuant to
articles six, seven, eight, nine or ten of this chapter; and
(2) The injection zones of Class II or III wells permitted
pursuant to the statutes and rules governing the underground
injection control program.
All groundwater outside such areas remain subject to the
provisions of this article. Groundwater regulatory agencies have
the right to require the submission of data with respect to the
nature of the activities subject to this subsection.
(j) Those agencies regulating the activities specified insubsections (h) and (i), of this section retain their groundwater
regulatory authority as provided for in the relevant statutes and
rules governing such activities, other than this article.
(k) The director has authority to modify the requirements of
subsection (g) of this section with respect to noncoal mining
activities subject to article four of this chapter. Such
modification shall assure protection of human health and the
environment. Those agencies regulating such noncoal mining
activities shall retain their groundwater regulatory authority as
provided for in the relevant statutes and rules governing such
activities other than this article.
(l) If the director proposes a need for a variance for
classes of activities which by their nature cannot be conducted
in compliance with the requirements of subsection (g) of this
section, then the director shall promulgate legislative rules in
accordance with chapter twenty-nine-a of this code, following
public hearing on the record. The rules so promulgated shall set
forth the director's findings to substantiate such need and the
criteria by which such variances shall be granted or denied.
Should any person petition or request the director to undertake
such a determination, that person will give contemporaneous
notice of such petition or request by Class I advertisement in a
newspaper of general circulation in the area to be affected by
the request.
(m) All rules, permits, policies, directives and orders of
the department of agriculture, the bureau of public health anddivision of environmental protection, in effect on the effective
date of this article and which are consistent with this article
shall remain in full force and effect as if they were issued
pursuant to this article unless and until modified pursuant to
this article.
§22-12-6. Lead agency designation; additional powers and duties.
(a) The division of environmental protection is hereby
designated to be the lead agency for groundwater and is
authorized and shall perform the following additional powers and
duties:
(1) To maintain the state groundwater management strategy;
(2) To develop, as soon as practical, a central groundwater
data management system for the purpose of providing information
needed to manage the state's groundwater program;
(3) To provide a biennial report to the Legislature on the
status of the state's groundwater and groundwater management
program, including detailed reports from each groundwater
regulatory agency;
(4) To coordinate with other agencies to develop a uniform
groundwater program;
(5) To perform any and all acts necessary to obtain the
benefits to the state of any federal program related to
groundwater;
(6) To receive grants, gifts or contributions for purposes
of implementing this article from federal agencies, state
agencies or any other persons interested in the management ofgroundwater resources; and
(7) To promulgate legislative rules implementing this
subsection in accordance with the provisions of chapter twenty-
nine-a of this code, including rules relating to monitoring and
analysis of groundwater.
(b) The division of environmental protection, bureau of
public health, and department of agriculture shall participate in
the data management system developed by the division of
environmental protection pursuant to subsection (a) of this
section and shall provide the director with such information as
the director shall reasonably request in support of his or her
promulgation of rules pursuant to this article.
(c) The division of environmental protection, bureau of
public health, and department of agriculture are hereby
authorized:
(1) To engage the voluntary cooperation of all persons in
the maintenance and protection of groundwater, and to advise,
consult and cooperate with all persons, all agencies of this
state, universities and colleges, the federal government or other
states, and with interstate agencies in the furtherance of the
purposes of this article, and to this end and for the purposes of
studies, scientific or other investigations, research,
experiments and demonstrations pertaining thereto, receive and
spend funds as appropriated by the Legislature, and from such
agencies and other officers and persons on behalf of the state;
(2) To encourage the formulation and execution of plans tomaintain and protect groundwater by cooperative groups or
associations of municipal corporations, industries, industrial
users and other users of groundwaters of the state, who, jointly
or severally, are or may be impacting on the maintenance and
protection of groundwater;
(3) To encourage, participate in, or conduct or cause to be
conducted studies, scientific or other investigations, research,
experiments and demonstrations relating to the maintenance and
protection of groundwater, and to collect data with respect
thereto, all as may be deemed advisable and necessary to carry
out the purposes of this article, and to make reports and
recommendations with respect thereto;
(4) To conduct groundwater sampling, data collection,
analyses and evaluation with sufficient frequency so as to
ascertain the characteristics and quality of groundwater, and the
sufficiency of the groundwater protection programs established
pursuant to this article; and
(5) To develop a public education and promotion program to
aid and assist in publicizing the need of and securing support
for the maintenance and protection of groundwater.
§22-12-7. Groundwater coordinating committee; creation.
(a) The state groundwater coordinating committee is
continued. It consists of the commissioner of the bureau of
public health, the commissioner of agriculture, the chair of the
environmental quality board, the chief of the office of water
resources of the division of environmental protection and thedirector of the division of environmental protection who shall
serve as its chair.
(b) The groundwater coordinating committee shall consult,
review and make recommendations on the implementation of this
article by each of the groundwater regulatory agencies. Such
committee shall require the periodic submittal to it of the
groundwater protection programs of each groundwater regulatory
agency including all rules, permits, policies, directives and any
other regulatory devices employed to implement this article.
(c) Upon a review of such programs, the groundwater
coordinating committee shall recommend to the director approval
of such programs, in whole or in part, and identify in writing
any aspect of such programs that are not sufficient to satisfy
the requirements of this article and specify a reasonable time
period for correcting those portions of the program that are
found not to be sufficient.
(d) The director may accept the recommendation of the
committee, in whole or in part, and identify in writing any
additional aspects of such programs that are not sufficient to
satisfy the requirements of this article and specify a time
period for correcting those portions of the program that are
found not to be sufficient.
(e) In the biennial report to the Legislature required by
this article, the director shall identify all portions of
groundwater protection programs which have been determined not to
be sufficient to satisfy the requirements of this article andwhich have not been adequately addressed within the time period
specified by the director.
(f) No agency shall modify any aspect of its groundwater
protection program as approved by the director without the prior
written approval of the director of such modification. This
requirement does not relieve such agency of any other
requirements of law that may be applicable to such a
modification.
(g) The groundwater coordinating committee is authorized and
empowered to promulgate such legislative rules as may be
necessary to implement this section in accordance with the
provisions of chapter twenty-nine-a of this code.
§22-12-8. Groundwater certification.
(a) To ensure a comprehensive, consistent and unfragmented
approach to the management and protection of groundwater,
including evaluation of the cumulative effects of all activities
that have the potential to impact on groundwater, the director
shall oversee and coordinate the implementation of this article
by each of the groundwater regulatory agencies through a
groundwater certification program as hereby established.
(b) Every state, county or local government body which
reviews or issues permits, licenses, registrations, certificates
of other forms of approval, or renewal thereof, for activities or
practices which may affect groundwater quality shall first submit
to the director for review and approval an application for
certification. Such application shall include a copy of theapproval proposed by such body, including any terms and
conditions which have been imposed by it. Upon receipt of this
application, the director shall act within thirty days to
determine whether to waive or exercise his or her certification
powers. If no decision is made or communicated by the director
within said thirty day period, groundwater certification is
approved. If the director decides to exercise his or her
certification powers, he or she may utilize additional time, not
to exceed an additional sixty days, to further review the
materials submitted or to conduct such investigations as he or
she deems necessary.
(c) The director may waive, grant, grant with conditions, or
deny groundwater certification. Groundwater certification, and
all conditions required under such certification, shall become a
condition on any permit, approval, or renewal thereof, issued by
any state, county or local government body. Where appropriate,
the director may provide general groundwater certification for or
may waive certification for classes or categories of activities
or approvals.
§22-12-9. Groundwater protection fees authorized; director to
promulgate rules; dedication of fee proceeds; groundwater
protection fund established; groundwater remediation fund
established.
(a) The director of the division of environmental protection
shall promulgate legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code establishing aschedule of groundwater protection fees applicable to persons who
own or operate facilities or conduct activities subject to the
provisions of this article. The schedule of fees shall be
calculated by the director to recover the reasonable and
necessary costs of implementing the provisions of this article as
it relates to a particular facility or activity. In addition,
the fee may include an appropriate assessment of other program
costs not otherwise attributable to any particular facility or
activity. Such fees in the aggregate shall not exceed one
million dollars per year and shall be deposited into the
groundwater protection fund established pursuant to this article:
Provided, That any unexpended balance in the groundwater
protection fund at the end of each fiscal year may, by an act of
the Legislature, be transferred to the groundwater remediation
fund created by this article:
Provided, however, That if no
action is taken to transfer the unexpended balance to the
remediation fund, such moneys shall not be transferred to the
general revenue fund, but shall remain in the groundwater
protection fund. Such fees imposed by this section are in
addition to all other fees and taxes levied by law. The director
shall require such fees to be paid at the time of certification
pursuant to section eight of this article, or at such more
frequent time as the director may deem to be appropriate. The
director may withhold certification pursuant to section eight of
this article where such fees have not been timely paid.
(b) The director of the division of environmental protectionshall also promulgate legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code establishing a
schedule of groundwater remediation fees which in the aggregate
shall not exceed two hundred fifty thousand dollars. Such
groundwater remediation fees shall be assessed over a time period
not to exceed two years from effective date of such rules and
shall be deposited into the groundwater remediation fund
established pursuant to this article. Such fees shall be
assessed against persons who own or operate facilities or conduct
activities subject to the provisions of this article in
proportion to the groundwater protection fees assessed pursuant
to subsection (a) of this section for the year in which such
groundwater remediation fees, or any portion thereof, are
assessed.
(c) The following two special revenue accounts are continued
in the state treasury:
(1) The "Groundwater Protection Fund", the moneys of which
shall be expended by the director in the administration,
certification, enforcement, inspection, monitoring, planning,
research, and other activities of the environmental quality
board, division of environmental protection, bureau of public
health and department of agriculture in accordance with
legislative rules promulgated pursuant to the provisions of
chapter twenty-nine-a of this code. The moneys, including the
interest thereon, in said fund shall be kept and maintained by
the director and expended without appropriation by theLegislature for the purpose of implementing the provisions of
this article. The director may withhold the payment of any such
moneys to any agency whose groundwater protection program has
been determined by the director, in consultation with the
groundwater coordinating committee, not to be sufficient to
satisfy the requirements of this article and where such agency
has failed to adequately address such determination within the
time period specified by the director. At the end of each fiscal
year, any unexpended balance of said fund may not be transferred
to the general revenue fund, but shall remain in the groundwater
protection fund.
(2) The "Groundwater Remediation Fund", the moneys of which,
to the extent that moneys are available, shall be expended by the
director for the purposes of investigation, clean-up and remedial
action intended to identify, minimize or mitigate damage to the
environment, natural resources, public and private water
supplies, surface waters and groundwaters and the public health,
safety and general welfare which may result from contamination of
groundwater or the related environment. The director or other
authorized agency officials are authorized to recover through
civil action or cooperative agreements with responsible persons
the full amount of any and all groundwater remediation fund
moneys expended pursuant to this article. All moneys expended
from such fund which are so recovered shall be deposited in such
fund. The director may expend moneys from said fund and the
interest thereon without necessity of appropriation by theLegislature. All civil penalties and assessments of civil
administrative penalties collected pursuant to this article shall
be deposited into the said fund. In addition, said fund may
receive proceeds from any gifts, grants, contributions or other
moneys accruing to the state which are specifically designated
for inclusion in the fund.
§22-12-10. Civil and criminal penalties; civil administrative
penalties; dedication of penalty proceeds; injunctive
relief; enforcement orders; hearings.
(a) Any person who violates any provision of this article,
or any permit or agency approval, rule or order issued to
implement this article, is subject to civil penalties in
accordance with the provisions of section twenty-two, article
eleven of this chapter:
Provided, That such penalties are in
lieu of civil penalties which may be imposed under other
provisions of this code for the same violation.
(b) Any person who willfully or negligently violates any
provision of this article, or any provision of a permit or agency
approval, rule or order issued to implement this article, is
subject to criminal penalties in accordance with the provisions
of section twenty-four, article eleven of this chapter:
Provided, That such penalties are in lieu of other criminal
penalties which may be imposed under other provisions of this
code for the same violation.
(c) Any person who violates any provision of this article,
or any permit or rule or order issued to implement this article,is subject to a civil administrative penalty to be levied by the
director, the commissioner of agriculture or the commissioner of
the bureau of public health, as appropriate, of not more than
five thousand dollars for each day of such violation, not to
exceed a maximum of twenty thousand dollars. In assessing any
such penalty, any such official shall take into account the
seriousness of the violation and any good faith efforts to comply
with applicable requirements as well as any other appropriate
factors as may be established by such official by legislative
rules promulgated pursuant to this article and the provisions of
chapter twenty-nine-a of this code. No assessment may be levied
pursuant to this subsection until after the alleged violator has
been notified by such official by certified mail or personal
service. The notice shall include a reference to the section of
the statute, rule, order or statement of permit conditions that
was allegedly violated, a concise statement of the facts alleged
to constitute the violation, a statement of the amount of the
administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged
violator shall have twenty calendar days from receipt of the
notice within which to deliver to such official a written request
for an informal hearing. If no hearing is requested, the notice
becomes a final order after the expiration of the twenty-day
period. If a hearing is requested, such official shall inform
the alleged violator of the time and place of the hearing. Such
official may appoint an assessment officer to conduct theinformal hearing who shall make a written recommendation to such
official concerning the assessment of a civil administrative
penalty. Within thirty days following the informal hearing, such
official shall issue and furnish to the violator a written
decision, and the reasons therefor, concerning the assessment of
a civil administrative penalty. Within thirty days after
notification of such official's decision, the alleged violator
may request a formal hearing before the board in accordance with
the provisions of section eleven of this article. Any
administrative civil penalty assessed pursuant to this section is
in lieu of any other civil penalty which may be assessed under
any provision of this code for the same violation. No
combination of assessments against any violator under this
section may exceed twenty-five thousand dollars per day of each
such violation. All administrative penalties shall be levied in
accordance with legislative rules promulgated by such official in
accordance with the provisions of chapter twenty-nine-a of this
code.
(d) The net proceeds of all civil penalties collected
pursuant to subsection (a) of this section and all assessments of
any civil administrative penalties collected pursuant to
subsection (c) of this section shall be deposited into the
groundwater remediation fund established pursuant to this
article.
(e) Any such official may seek an injunction, or may
institute a civil action against any person in violation of anyprovision of this article or any permit, agency approval, rule or
order issued to implement this article. In seeking an
injunction, it is not necessary for such official to post bond
nor to allege or prove at any point in the proceeding that
irreparable damage will occur if the injunction is not issued or
that the remedy at law is inadequate. An application for
injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not
been exhausted or invoked against the person or persons against
whom such relief is sought.
(f) If any such official upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, or any permit, order or rules
issued to implement the provisions of this article, he or she may
issue an order stating with reasonable specificity the nature of
the violation and requiring compliance immediately or within a
specified time. An order under this section includes, but is not
limited to, any or all of the following: Orders implementing
this article which: (1) Suspend, revoke or modify permits; (2)
require a person to take remedial action; or (3) are cease and
desist orders.
(g) Any person issued a cease and desist order under
subsection (f) of this section may file a notice of request for
reconsideration with such official not more than seven days from
the issuance of such order and shall have a hearing before suchofficial to contest the terms and conditions of such order within
ten days after filing such notice of a request for
reconsideration. The filing of a notice of request for
reconsideration does not stay or suspend the execution or
enforcement of such cease and desist order.
§22-12-11. Appeal procedures.
Any person having an interest which is or may be adversely
affected, or who is aggrieved by an order of the director or any
public official authorized to take or implement an agency action,
or by the issuance or denial of a permit issued to implement this
article or by such permit's term or conditions, or by the failure
or refusal to act within a reasonable time, may appeal to the
environmental quality board as provided in article one, chapter
twenty-two-b of this code.
§22-12-12. Rule-making petition.
Any person may petition the appropriate rule-making agency
for rule making on an issue arising under this article. The
appropriate rule-making agency, if it believes such issue to
merit rule making, may initiate rule making in accordance with
the provisions of chapter twenty-nine-a of this code. A decision
by the appropriate rule-making agency not to pursue rule making
must set forth in writing reasons for refusing to do so. Any
person may petition an agency to issue a declaratory ruling
pursuant to section one, article four, chapter twenty-nine-a of
this code with respect to the applicability to any person,
property or state of facts of any rules promulgated by thatagency pursuant to this article.
§22-12-13. Existing rights and remedies preserved; effect of
compliance.
(a) It is the purpose of this article to provide additional
and cumulative remedies to address the quality of the groundwater
of the state. This article does not alter the authority of any
agency with respect to water other than groundwater. Except as
expressly stated in this article, it is not the intention of the
Legislature in enacting this article to repeal any other
provision of this code.
(b) Nothing contained in this article abridges or alters
rights of action or remedies now or hereafter existing, nor do
any provisions in this article, or any act done by virtue of this
article, estop the state, municipalities, public health officers
or persons as riparian owners or otherwise, in the exercise of
their rights to suppress nuisances or to abate any pollution now
or hereafter existing, or to recover damages.
(c) Where a person is operating a source or conducting an
activity in compliance with the terms and conditions of a permit,
rule, order, directive, or other authorization issued by a
groundwater regulatory agency pursuant to this article, such
person is not subject to criminal prosecution for pollution
recognized and authorized by such permit, rule, order, directive,
or other authorization.
§22-12-14. Effective dates of provisions subject to federal
approval.
To the extent that this article modifies any powers, duties,
functions and responsibilities of any state agency that may
require approval of one or more federal agencies or officials in
order to avoid disruption of the federal-state relationship
involved in the implementation of federal regulatory programs by
the state, any such modifications become effective upon a
proclamation by the governor stating either that final approval
of such modifications has been given by the appropriate federal
agency or official or that final approval of such modification is
not necessary to avoid disruption of the federal-state
relationship under which such regulatory programs are
implemented.
ARTICLE 13. NATURAL STREAMS PRESERVATION ACT.
§22-13-1. Short title.
This article may be known and cited as the "Natural Streams
Preservation Act".
§22-13-2. Declaration of public policy.
In order to assure that an increasing population,
accompanied by expanding settlement and growing mechanization,
does not impound, flood or divert all streams within the state of
West Virginia, leaving no streams designated for preservation and
protection in their natural condition, it is hereby declared to
be the public policy of this state to secure for the citizens of
West Virginia of present and future generations the benefits of
an enduring resource of free-flowing streams possessing
outstanding scenic, recreational, geological, fish and wildlife,botanical, historical, archeological, or other scientific or
cultural values.
§22-13-3. Definitions.
Unless the context, in which used, clearly requires a
different meaning, as used in this article:
(1) "Board" means the environmental quality board;
(2) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to section six or
eight, article one of this chapter;
(3) "Free-flowing" means existing or flowing in natural
condition without impoundment, by diversion, or flooding of the
waterway;
(4) "Modification" means the impounding, diverting or
flooding of a stream within the natural stream preservation
system;
(5) "Modify" means to impound, divert or flood a stream
within the natural stream preservation system;
(6) "Permit" means a permit required by section seven of
this article;
(7) "Person", "persons" or "applicants" means any public or
private corporation, institution, association, firm or company
organized or existing under the laws of this or any other state
or country; state of West Virginia; governmental agencies;
political subdivision; county court; municipal corporations;
industries; sanitary district; public service district; drainagedistrict; soil conservation district; watershed improvement
district; partnership; trust; estate; person or individual; group
of persons or individuals acting individually or as a group; or
any other legal entity whatever;
(8) "Protected stream" means any stream designated as such
in section five of this article, but does not include tributaries
or branches unless specifically designated or described in
section five of this article; and
(9) "Stream" means a flowing body of water or a section or
portion thereof, including rivers, streams, creeks, branches or
small lakes.
§22-13-4. Establishment of natural stream preservation system.
For the purpose of implementing the public policy declared
in section two of this article, there is hereby established a
natural stream preservation system to be composed of streams
designated by the Legislature as "protected streams", and these
shall be administered for the use and enjoyment of the citizens
of West Virginia in such manner as will leave them unimpaired for
future use and enjoyment as free-flowing streams, and so as to
provide for the protection and the preservation of these streams
in their natural character.
§22-13-5. Designation of protected streams.
The following streams are hereby designated as protected
streams within the natural streams preservation system, namely:
(a) Greenbrier River from its confluence with Knapps Creek
to its confluence with the New River.
(b) Anthony Creek from its headwaters to its confluence with
the Greenbrier River.
(c) Cranberry River from its headwaters to its confluence
with the Gauley River.
(d) Birch River from the Cora Brown bridge in Nicholas
county to the confluence of the river with the Elk River.
(e) New River from its confluence with the Gauley River to
its confluence with the Greenbrier River.
§22-13-6. General powers and duties of director with respect to
protected streams.
(a) In addition to all other powers and duties of the
director, as prescribed in this article or elsewhere by law, the
director shall exercise supervision over the administration and
enforcement of the provisions of this article, and all orders and
permits issued pursuant to the provisions of this article.
(b) In addition to all other powers and duties of the
director, as prescribed in this article or elsewhere by law, the
director has authority to promulgate rules , in accordance with
the provisions of chapter twenty-nine-a of this code, to
implement and make effective the powers, duties and
responsibilities vested in the director by the provisions of this
article and otherwise by law:
Provided, That all such rules
shall be consistent with the declaration of public policy set
forth in section two of this article.
(c) The director and duly authorized representatives, have
the power and authority to make investigations, inspections andinquiries concerning compliance with the provisions of this
article, any order made and entered in accordance with the
provisions of this article, any rules promulgated by the
director, and with the terms and conditions of any permit issued
in accordance with the provisions of section nine of this
article. In order to make such investigations, inspections and
inquiries, the director and duly authorized representatives, have
the power and authority to enter at all reasonable times upon any
private or public property, subject to responsibility for any
damage to the property entered. Upon entering, and before making
any investigation, inspection and inquiry, such person shall
immediately present himself or herself to the occupant of the
property. Upon entering property used in any manufacturing,
mining or other commercial enterprise, or by any municipality or
governmental agency or a subdivision, and before making any
investigation, inspection and inquiry, such person shall
immediately present himself or herself to the person in charge of
the operation, and if he or she is not available, to a managerial
employee. All persons shall cooperate fully with the person
entering such property for such purposes. Upon a refusal of the
person owning or controlling such property to permit such
entrance or the making of such inspections, investigations and
inquiries, the director may apply to the circuit court of the
county in which such property is located, or to the judge thereof
in vacation, for an order permitting such entrance and the making
of such inspections, investigations, and inquiries; andjurisdiction is hereby conferred upon such court to enter such
order upon a showing that the relief asked is necessary for the
proper enforcement of this article. Nothing contained in this
section eliminates any obligation to follow any process that may
be required by law.
§22-13-7. When permits required; when permits not to be issued.
It is unlawful for any person, until the division's permit
therefor has been granted, to modify any protected stream or any
part thereof. No permit shall be issued unless the work proposed
to be done under such permit: (a) Will not materially alter or
affect the free-flowing characteristics of a substantial part of
a protected stream or streams; (b) is necessary to prevent an
undue hardship; and (c) meets with the approval of the director.
§22-13-8. Application for permit; form of application;
information required; fees.
The director shall prescribe a form of application for all
permits. All applications for permits shall be submitted to the
division and shall be on the prescribed form.
A permit fee of ten dollars shall accompany the application
when filed with the division. The permit fee shall be deposited
in the state treasury to the credit of the state general fund.
§22-13-9. Procedure for issuance or denial of permit; transfer
of permits.
(a) Before issuing a permit, a public hearing shall be held.
The director shall consider the application and shall fix a time
and place for hearing on such application. The hearing shall beheld in a county in which the proposed modification is to be made
and, if the proposed modification is to be made in more than one
county, then a separate hearing shall be held in each county in
which the proposed modification is to be made. The applicant
shall cause a notice of the time and place of such hearing and
the purpose thereof to be published as a Class III-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication is the county or counties in which the proposed
modification is to be made. Publication of the notice shall be
completed at least fifteen days before such hearing. The
applicant shall also cause to be served, at least fifteen days
before such hearings, in the manner provided by law for the
service of notice and process, a notice showing the time, place
and purpose of such hearing, upon every owner of property, and
every person holding a lien thereon, abutting on that portion of
the stream on which the modification is to be made, or abutting
on any portion of such stream within two miles above or below the
proposed modification. The affidavit of publication of such
notice shall be filed with the director or his or her duly
designated hearing examiner at or before the hearing as a part of
the record in the proceedings.
(b) At the time and place fixed for the hearings, the
director or his or her duly designated hearing examiner shall
hear any evidence relating to the proposed modification, the
necessity therefor, the effect of such modification on the streamand any and all other matters relevant to the application and the
proposed modification. If the director concludes and finds upon
the record and evidence in the proceedings that the proposed
modification should be permitted, he or she shall proceed to
issue the permit:
Provided, That the director may attach such
conditions, qualifications or limitations to such permit as he or
she finds appropriate.
(c) An application for any such permit shall be acted upon
by the director and the division's permit delivered or mailed, or
a copy of any order of the director denying any such application
mailed as hereinafter specified, as the case may be, to the
applicant by the director within forty-five days after the
hearings have been completed.
(d) When it is established that an application for a permit
should be denied, the director shall make and enter an order to
that effect, which order shall specify the reasons for such
denial, and shall cause a copy of such order to be served on the
applicant by registered or certified mail. The director shall
also cause a notice to be served with the copy of such order,
which notice shall advise the applicant of his or her right to
appeal to the board by filing a notice of appeal, on a form
prescribed by the board for such purpose, with the board, within
the time specified in and in accordance with the provisions of
section seven, article one, chapter twenty-two-b of this code.
However, an applicant may offer the plans and specifications for
the proposed modification and submit a new application for anysuch permit, in which event the procedure hereinbefore outlined
with respect to an original application shall apply.
(e) Upon the sale of property which includes an activity for
which the division's permit was granted, the permit is
transferable to the new owner, but the transfer does not become
effective until it is made in the records of the division.
§22-13-10. Inspections; orders to compel compliance with
permits; service of order.
After issuance of the division's permit for any such
modification, the director and duly authorized representatives
may make field inspections of the work on the modification, and,
after completion thereof, may inspect the completed modification,
and, from time to time, may inspect the maintenance and operation
of such modification.
To compel compliance with the terms and conditions of the
division's permit for any such modification and with the plans
and specifications therefor and the plan of maintenance and
method of operation thereof, the director is hereby authorized
after reasonable notice to make and enter an order revoking or
suspending such permit and directing the person to whom such
permit was issued to stop or suspend any and all work on such
activity or, to take affirmative action to correct the
deficiencies specified in such order so there will be full
compliance with the terms and conditions of such permit and with
the plans and specifications therefor, and the plan of
maintenance and method of operation thereof.
The director shall cause a copy of any such order to be
served by registered or certified mail or by a law-enforcement
officer upon the person to whom any such permit was issued. The
director shall also cause a notice to be served with the copy of
such order, which notice shall advise such person of his or her
right to appeal to the board by filing a notice of appeal on the
form prescribed by the board for such purpose, with the board,
within the time specified in and in accordance with the
provisions of section seven, article one, chapter twenty-two-b of
this code.
§22-13-11. Appeal to environmental quality board.
(a) Any person adversely affected by an order made and
entered by the director in accordance with the provisions of this
article, or aggrieved by failure or refusal of the director to
act within the time required by section nine of this article on
an application for a permit or aggrieved by the terms and
conditions of a permit granted under the provisions of this
article, may appeal to the environmental quality board for an
order vacating or modifying such order, or for such order, action
or terms and conditions as the director should have entered,
taken or imposed.
(b) Notwithstanding the provisions of section nine, article
one, chapter twenty-two-b of this code:
(1) Appeals from orders of the board in cases involving an
order denying an application for a permit, or approving or
modifying the terms and conditions of a permit, shall be filed,within the time specified in said section, in the circuit court
of any county in which such modification is proposed to be made.
(2) Appeals from orders of the board in cases involving an
order revoking or suspending a permit and directing any and all
work on such modification to stop, or directing that affirmative
action be taken to correct alleged and specified deficiencies
concerning any such modification, shall be filed, within the time
specified in said section, in the circuit court of any county in
which any part of such modification is proposed to be made.
§22-13-12. Actions to abate nuisances; injunctive relief.
Whether any violation of the provisions of this article or
any final order of the director or the board results in
prosecution or conviction or not, any such violation is a
nuisance which may be abated upon application by the director to
the circuit court of the county in which such nuisance or any
part thereof exists, or to the judge thereof in vacation. Upon
application by the director, the circuit courts of this state may
by mandatory or prohibitive injunction compel compliance with all
final orders of the director or board. Any application for an
injunction to compel compliance with any final order of the
director or board shall be made to the circuit court of any
county in which the modification to which the order relates is
proposed to be made, or in which the modification to which the
order relates is situate or would be situate upon completion
thereof. Upon application by the director to the circuit court
of the county in which a municipal corporation is located, or inwhich any person resides or does business, or to the judge
thereof in vacation, such court may by injunction require the
performance of any duty imposed upon such municipal corporation
or person by the provisions of this article. The court may issue
a temporary injunction in any case pending a decision on the
merits of any application filed. In cases of modifications where
irreparable damage will result from any delay incident to the
administrative procedures set forth in this article, the director
may forthwith apply to the circuit court of any county in which
the modification is taking place for a temporary injunction.
Such court may issue a temporary injunction pending final
disposition of the case by the director or the board, in the
event an appeal is taken to the board.
The judgment of the circuit court upon any application
permitted by the provisions of this section is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in a manner provided by
law for appeals for circuit courts in other civil cases, except
that the petition seeking such review must be filed with said
supreme court of appeals within ninety days from the date of
entry of the judgment of the circuit court.
The director shall be represented in all such proceedings by
the attorney general or his or her assistant and in such
proceedings in the circuit court by the prosecuting attorneys of
the several counties as well, all without additional
compensation.
§22-13-13. Priority of actions.
All applications under section twelve of this article and
all proceedings for judicial review under article one, chapter
twenty-two-b of this code shall take priority on the docket of
the circuit court in which pending, and shall take precedence
over all other civil cases. Where such applications and
proceedings for judicial review are pending at the same time,
such applications shall take priority on the docket and shall
take precedence over proceedings for judicial review.
§22-13-14. Violations; criminal penalties.
Any person who fails or refuses to discharge any duty
imposed upon him or her by this article or by any final order of
the director or board, or who fails or refuses to apply for and
obtain a permit as required by the provisions of this article, is
guilty of a misdemeanor, and, upon conviction thereof, shall be
punished for a first offense by a fine of not less than twenty-
five dollars nor more than one hundred dollars, and for a second
offense by a fine of not less than two hundred dollars nor more
than five hundred dollars, and for a third offense and each
subsequent offense by a fine of not less than five hundred
dollars nor more than one thousand dollars or by imprisonment for
a period not to exceed six months, or in the discretion of the
court by both such fine and imprisonment.
§22-13-15. Exceptions as to criminal liabilities.
The criminal liabilities provided for in section fourteen of
this article may not be imposed for any violation resulting fromaccident or caused by an act of God, war, strike, riot or other
catastrophe as to which negligence or wilful conduct on the part
of such person was not the proximate cause.
ARTICLE 14. DAM CONTROL ACT.
§22-14-1. Short title.
This article shall be known and cited as the "Dam Control
and Safety Act".
§22-14-2. Legislative findings; intent and purpose of article.
The Legislature finds that dams may constitute a potential
hazard to people and property; therefore, dams in this state must
be properly regulated and controlled to protect the health,
safety and welfare of people and property in this state. It is
the intent of the Legislature by this article to provide for the
regulation and supervision of dams in this state to the extent
necessary to protect the public health, safety and welfare. The
Legislature has ordained this article to fulfill its
responsibilities to the people of this state and to protect their
lives and private and public property from the danger of a
potential or actual dam failure. The Legislature finds and
declares that in light of the limited state resources available
for the purposes of this article, and in view of the high
standards to which the United States soil conservation service
designs dams, independent state review of the plans and
specifications for dams designed by the soil conservation service
and construction oversight should not be required. The
Legislature further finds and declares that dams designed andconstructed by the soil conservation service but not owned or
operated by it should be subject to the same provisions of
inspection, after construction and certification by the soil
conservation service, as other dams covered by this article, so
long as any dam under the soil conservation service program is
designed with standards equal to or exceeding state requirements
under this article.
§22-14-3. Definition of terms used in article.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Alterations" or "repairs" means only those changes in
the structure or integrity of a dam which may affect its safety,
which determination shall be made by the director.
(b) "Application for a certificate of approval" means the
request in writing by a person to the director requesting that
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility
which is an adjunct of, or connected, appended or annexed to a
dam, including, but not limited to, spillways, a reservoir and
its rim, low level outlet works or water conduits such as
tunnels, pipelines and penstocks either through the dam or its
abutments.
(d) "Certificate of approval" means the approval in writing
issued by the director to a person who has applied to the
director for a certificate of approval which authorizes the
person to place, construct, enlarge, alter, repair or remove adam and specifies the conditions or limitations under which the
work is to be performed by that person.
(e) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to section six or
eight, article one of this chapter.
(f) "Division" means the division of environmental
protection.
(g) "Dam" means an artificial barrier or obstruction,
including any works appurtenant to it and any reservoir created
by it, which is or will be placed, constructed, enlarged, altered
or repaired so that it does or will impound or divert water and:
(1) Is or will be twenty-five feet or more in height from the
natural bed of the stream or watercourse measured at the
downstream toe of the barrier and which does or can impound
fifteen acre-feet or more of water; or (2) is or will be six feet
or more in height from the natural bed of the stream or
watercourse measured at the downstream toe of the barrier and
which does or can impound fifty acre-feet or more of water:
Provided, That the term "dam" does not include: (A) Any dam
owned by the federal government; (B) any dam for which the
operation and maintenance thereof is the responsibility of the
federal government; (C) farm ponds constructed and used primarily
for agricultural purposes, including, but not limited to,
livestock watering, irrigation, retention of animal wastes and
fish culture, and which have no potential to cause loss of humanlife in the event of embankment failure; or (D) structures which
do not or will not impound water under normal conditions and
which have a designed culvert or similar conveyance or such
capacity as would be used under a highway at the same location:
Provided, however, That the director may apply the provisions of
section ten of this article for hazardous, nonimpounding
structures which are brought to his or her attention.
(h) "Enlargement" means any change in or addition to an
existing dam which: (1) Raises the height of the dam; (2) raises
or may raise the water storage elevation of the water impounded
by the dam; (3) increases or may increase the amount of water
impounded by the dam; or (4) increases or may increase the
watershed area from which water is impounded by the dam.
(i) "Person" means any public or private corporation,
institution, association, society, firm, organization or company
organized or existing under the laws of this or any other state
or country; the state of West Virginia; any state governmental
agency; any political subdivision of the state or of its counties
or municipalities; sanitary district; public service district;
drainage district; soil conservation district; watershed
improvement district; partnership; trust; estate; person or
individual; group of persons or individuals acting individually
or as a group; or any other legal entity whatever. The term
"person", when used in this article, includes and refers to any
authorized agent, lessee or trustee of any of the foregoing or
receiver or trustee appointed by any court for any of theforegoing.
(j) "Reservoir" means any basin which contains or will
contain impounded water.
(k) "Soil conservation service" means the soil conservation
service of the United States department of agriculture or any
successor agency.
(l) "Water" means any liquid, including any solids or other
matter which may be contained therein, which is or may be
impounded by a dam.
(m) "Water storage elevation" means the maximum elevation
that water can reach behind a dam without encroaching on the
freeboard approved for the dam under flood conditions.
§22-14-4. General powers and duties of director; maximum fee
established for certificates of approval and annual
registration.
The director has the following powers and duties:
(a) To control and exercise regulatory jurisdiction over
dams as provided for in this article;
(b) To review all applications for a certificate of approval
for the placement, construction, enlargement, alteration, repair
or removal of any dam;
(c) To grant, modify, amend, revoke, restrict or refuse to
grant any certificate of approval if proper or necessary to
protect life and property as provided in this article;
(d) To adopt, modify, repeal and enforce rules and issue
orders, in such manner as the director may otherwise do, toimplement and make effective the powers and duties vested in it
by the provisions of this article;
(e) To take any lawful action considered necessary for the
effective enforcement of the provisions of this article;
(f) To establish and charge reasonable fees not to exceed
three hundred dollars for the review of applications for
certificates of approval and the issuance thereof and for
assessment of an annual registration fee not to exceed one
hundred dollars for persons holding a certificate of approval for
existing dams. The director shall promulgate rules to establish
a schedule of application fees and to establish annual
registration fees:
Provided, That no fee shall be assessed for
dams designed and constructed by the soil conservation service
for soil conservation districts;
(g) To employ qualified consultants or additional persons as
necessary to review applications for certificates of approval and
to recommend whether they should be approved, to inspect dams and
to enforce the provisions of this article;
(h) To cooperate and coordinate with agencies of the federal
government, this state and counties and municipalities of this
state to improve, secure, study and enforce dam safety and dam
technology within this state;
(i) To investigate and inspect dams as is necessary to
implement or enforce the provisions of this article and when
necessary to enter the public or private property of any dam
owner. The director may investigate, inspect or enter private orpublic property after notifying the dam owner or other person in
charge of the dam of an intent to investigate, inspect or enter:
Provided, That where the owner or person in charge of the dam is
not available, the director may investigate, inspect and enter
without notice; and
(j) To prepare and publish within a reasonable time,
criteria to govern the design, construction, repair, inspection
and maintenance of proposed dams herein defined, and to review
these criteria annually in order to consider improved technology
for inclusion in such criteria.
§22-14-5. Unlawful to place, construct, enlarge, alter, repair,
remove or abandon dam without certificate of approval;
application required to obtain certificate.
It is unlawful for any person to place, construct, enlarge,
alter, repair, remove or abandon any dam under the jurisdiction
of the director until he or she has first: (a) Filed an
application for a certificate of approval with the division; and
(b) obtained from the division a certificate of approval:
Provided, That routine repairs which do not affect the safety of
a dam are not subject to the application and approval
requirements. A separate application for a certificate of
approval must be submitted by a person for each dam he or she
desires to place, construct, enlarge, alter, repair, remove or
abandon. One application may be valid for more than one dam
involved in a single project or in the formation of a reservoir.
Each application for a certificate of approval shall be madein writing on a form prescribed by the director and shall be
signed and verified by the applicant. The application shall
contain and provide information which may be reasonably required
by the director to administer the provisions of this article.
In the case of dams designed by the soil conservation
service for transfer to any political subdivision, the director
shall, within sixty days after receipt of a completed application
therefor, issue a certificate of approval without review of the
plans and specifications.
§22-14-6. Plans and specifications for dams to be in charge of
registered professional engineer.
Plans and specifications for the placement, construction,
enlargement, alteration, repair or removal of dams shall be in
the charge of a registered professional engineer licensed to
practice in West Virginia. Any plans or specifications submitted
to the division shall bear the seal of a registered professional
engineer.
§22-14-7. Granting or rejecting applications for certificate of
approval by division; publication of notice of application;
hearing upon application.
Upon receipt of an application for a certificate of approval
and the fee required under the provisions of this article, the
director shall proceed to consider the application for
sufficiency. The director shall approve or disapprove the
application within sixty days after receipt.
If an application is defective, it shall be returned to theapplicant by certified or registered mail, return receipt
requested, in order that the applicant may correct any defect:
Provided, That a defective application must be returned to the
division by the applicant within thirty days after it has been
returned to the applicant or it shall be treated as a new
application:
Provided, however, That for good cause shown, the
director may extend the thirty-day period.
Upon approval by the director of the sufficiency of the
application, the applicant shall immediately publish the
application as a Class I legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area for the publication is the county in
which the proposed dam is to be located or in which the existing
dam is located. The notice shall include, but not be limited to,
the name and address of the owner of the dam and the location of
the dam for which the application was filed.
Any person who may be adversely affected by the issuance of
a certificate of approval has a right to a hearing before the
director if the person demands the hearing in writing within
fifteen days of publication of the certificate of approval. The
written request for hearing shall include specific objections to
the certificate of approval.
Upon receipt by the director of the written request for
hearing, the director shall immediately set a date for the
hearing and shall notify the person or persons demanding a
hearing. The hearing shall be held within ten days after receiptof the written request. The director shall hear evidence from
all interested parties and shall either: (1) Refuse to issue a
certificate of approval; or (2) issue a certificate of approval
which shall be subject to terms, conditions and limitations as
the director may consider necessary to protect life and property.
Unless otherwise extended by the director, a certificate of
approval is valid for a period of not more than one year.
§22-14-8. Content of certificates of approval for dams;
revocation or suspension of certificates.
Each certificate of approval issued by the director under
the provisions of this article may contain other terms and
conditions as the director may prescribe.
The director may revoke or suspend any certificate of
approval whenever it is determined that the dam for which the
certificate was issued constitutes a danger to life and property.
If necessary to safeguard life and property, the director may
also amend the terms and conditions of any certificate by issuing
a new certificate containing the revised terms and conditions.
Before any certificate of approval is amended or revoked by
the director, the director shall hold a hearing in accordance
with the provisions of article five, chapter twenty-nine-a of
this code.
Any person adversely affected by an order entered following
the hearing has the right to appeal to the environmental quality
board pursuant to the provisions of article one, chapter
twenty-two-b of this code.
§22-14-9. Inspections during progress of work on dam.
During the placement, construction, enlargement, repair,
alteration or removal of any dam, the director shall, either with
the division's own engineers or by consulting engineers or
engineering organizations, make periodic inspections for the
purpose of ascertaining compliance with the certificate of
approval. The director shall require the owner at his or her
expense to perform work or tests as necessary and to provide
adequate supervision during the placement, construction,
enlargement, repair, alteration or removal of a dam:
Provided,
That with respect to dams designed by and constructed under the
supervision of the soil conservation service, as to such dams no
state inspections are required.
If at any time during placement, construction, enlargement,
repair, alteration or removal of any dam, the director finds that
the work is not being done in accordance with the provisions of
the original or revised certificate of approval, the director
shall notify the owner by certified or registered mail, return
receipt requested, to correct the deficiency, cease and desist
work or to show cause as to why the certificate of approval
should not be revoked.
The notice shall state the reason or reasons why the work is
not in accordance with the certificate of approval. The director
may order that work on the dam cease until the owner has complied
with the notice.
If the director finds that amendments, modifications orchanges are necessary to ensure the safety of the dam, the
director may order the owner to revise his or her plans and
specifications. If conditions are revealed which will not permit
the placement, construction, enlargement, repair, alteration or
removal of the dam in a safe manner, the certificate of approval
may be revoked.
Immediately upon completion of a new dam or enlargement,
repair or alteration of a dam, the owner shall notify the
director:
Provided, That immediately upon completion of a dam
constructed under the supervision of the soil conservation
service, a certification of completion shall be sent to the
director by the soil conservation service, and a complete set of
design documents "as built" plans, and specifications and safety
plan of evacuation shall be provided to the director within
ninety days after completion of the dam.
§22-14-10. Procedures for handling emergencies involving dams;
remedial actions to alleviate emergency; payment of costs of
remedial actions to be paid by dam owner.
The owner of a dam has the primary responsibility for
determining when an emergency involving a dam exists. When the
owner of a dam determines an emergency does exist, the owner
shall take necessary remedial action and shall notify the
director and the owner shall also notify any persons who may be
endangered if the dam should fail.
The director shall notify any persons, not otherwise
notified, who may be endangered if the dam should fail. Thedirector may take any remedial action necessary to protect life
and property if: (a) The condition of the dam so endangers life
and property that time is not sufficient to permit the issuance
and enforcement of an order for the owner to correct the
condition; or (b) passing or imminent floods or other conditions
threaten the safety of the dam. Remedial actions may include,
but are not limited to:
(1) Taking full charge and control of the dam.
(2) Lowering the level of water impounded by the dam by
releasing such impounded water.
(3) Completely releasing all water impounded by the dam.
(4) Performing any necessary remedial or protective work at
the site of the dam.
(5) Taking any other steps necessary to safeguard life and
property.
Once the director has taken full charge of the dam, the
director shall remain in charge and control until in the
director's opinion it has been rendered safe or the emergency
occasioning the action has ceased and the director concludes that
the owner is competent to reassume control of the dam and its
operation. The assumption of control of the dam will not relieve
the owner of a dam of liability for any negligent act or acts of
the owner or the owner's agent or employee.
When the director declares that making repairs to the dam or
breaching the dam is necessary to safeguard life and property,
repairs or breaching shall be started immediately by the owner,or by the director at the owner's expense, if the owner fails to
do so. The owner shall notify the director at once of any
emergency repairs or breaching the owner proposes to undertake
and of work he or she has under way to alleviate the emergency.
The proposed repairs, breaching and work shall be made to conform
with orders of the director. The director may obtain equipment
and personnel for emergency work from any person as is necessary
and expedient to accomplish the required work. Any person
undertaking work at the request of the division shall be paid by
the division and is immune from civil liability under the
provisions of section fifteen, article seven, chapter fifty-five
of this code.
The costs reasonably incurred in any remedial action taken
by the director shall be paid out of funds appropriated to the
division. All costs incurred by the division shall be promptly
repaid by the owner upon request or, if not repaid, the division
may recover costs and damages from the owner by appropriate civil
action.
§22-14-11. Requirements for dams completed prior to effective
date of this section.
The director shall give notice to file an application for a
certificate of approval to every owner of a dam which was
completed prior to the effective date of this section:
Provided,
That no such notice need be given to a person who has applied for
and obtained a certificate of approval on or after the first day
of July, one thousand nine hundred seventy-three, in accordancewith the provisions of the prior enactment of section five of
this article. Such notice shall be given by certified or
registered mail, return receipt requested, to the owner at his or
her last address of record in the office of the county assessor
of the county in which the dam is located and such mailing shall
constitute service. A separate application for each dam a person
owns shall be filed with the director in writing upon forms
supplied by him or her and shall include or be accompanied by
appropriate information concerning the dam as the director
requires.
The director shall make inspections of such dams or
reservoirs at state expense. The director shall require owners
of such dams to perform at their expense such work or tests as
may reasonably be required to disclose information sufficient to
enable the director to determine whether to issue a certificate
of approval or to issue an order directing further work at the
owner's expense necessary to safeguard life and property. For
this purpose, the director may require an owner to lower the
water level of, or to empty, water impounded by the dam adjudged
by the director to be unsafe. If, upon inspection or upon
completion to the satisfaction of the director of all work that
he or she ordered, the director finds that the dam is safe to
impound water, a certificate of approval shall be issued.
§22-14-12. Dam owner not relieved of legal responsibilities by
any provision of article.
Nothing in this article relieves the owner of a dam of thelegal duties, obligations or liabilities incident to the
ownership or operation of a dam.
§22-14-13. Offenses and penalties.
(a) Any person who violates any of the provisions of this
article or any certificate of approval, order, rule or
requirement of the director or division is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than one thousand dollars,
or imprisoned in the county jail not more than six months, or
both fined and imprisoned.
(b) Any person who willfully obstructs, hinders or prevents
the director or division or its agents or employees from
performing the duties imposed on them by the provisions of this
article or who willfully resists the exercise of the control and
supervision conferred by the provisions of this article upon the
director or division or its agents or employees or any owner or
any person acting as a director, officer, agent or employee of an
owner, or any contractor or agent or employee of a contractor who
engages in the placement, construction, enlargement, repair,
alteration, maintenance or removal of any dam who knowingly does
work or permits work to be executed on the dam without a
certificate of approval or in violation of or contrary to any
approval as provided for by the provisions of this article; and
any inspector, agent or employee of the division who has
knowledge of and who fails to notify the director of unapproved
modifications to a dam is guilty of a misdemeanor, and, uponconviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars, or imprisoned in the
county jail not more than one year, or both fined and imprisoned.
§22-14-14. Enforcement orders; hearings.
(a) If the director, upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, any certificate of approval,
notice, order or rules issued or promulgated hereunder, he or she
may:
(1) Issue an order stating with reasonable specificity the
nature of the violation and requiring compliance immediately or
within a specified time. An order under this section includes,
but is not limited to, any or all of the following: Orders
suspending, revoking or amending certificates of approval, orders
requiring a person to take remedial action or cease and desist
orders;
(2) Seek an injunction in accordance with subsection (c),
section fifteen of this article;
(3) Institute a civil action in accordance with subsection
(c), section fifteen of this article; or
(4) Request the attorney general, or the prosecuting
attorney of the county in which the alleged violation occurred,
to bring a criminal action in accordance with section twelve of
this article.
(b) Any person issued a cease and desist order may file a
notice of request for reconsideration with the director not morethan seven days from the issuance of the order and shall have a
hearing before the director contesting the terms and conditions
of the order within ten days of the filing of the notice of a
request for reconsideration. The filing of a notice of request
for reconsideration does not stay or suspend the execution or
enforcement of the cease and desist order.
§22-14-15. Civil penalties and injunctive relief.
(a) Any person who violates any provision of this article,
any certificate of approval or any rule, notice or order issued
pursuant to this article is subject to a civil administrative
penalty, to be levied by the director, of not more than two
hundred dollars for each day of the violation, not to exceed a
maximum of four hundred dollars. In assessing any penalty, the
director shall take into account the seriousness of the violation
and any good faith efforts to comply with applicable requirements
as well as any other appropriate factors as may be established by
rules promulgated by the director. No assessment shall be levied
pursuant to this subsection until after the alleged violator has
been notified by certified mail or personal service. The notice
shall include a reference to the section of the statute, rule,
notice, order or statement of the certificate of approval's terms
that was allegedly violated, a concise statement of the facts
alleged to constitute the violation, a statement of the amount of
the administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged
violator has twenty calendar days from receipt of the noticewithin which to deliver to the director a written request for an
informal hearing. If no hearing is requested, the notice becomes
a final order after the expiration date of the twenty-day period.
If a hearing is requested, the director shall inform the alleged
violator of the time and place of the hearing. Within thirty
days following the informal hearing, the director shall issue and
furnish to the violator a written decision, and the reasons
therefor, concerning the assessment of a civil administrative
penalty. The authority to levy an administrative penalty is in
addition to all other enforcement provisions of this article and
the payment of any assessment does not affect the availability of
any other enforcement provision in connection with the violation
for which the assessment is levied:
Provided, That no
combination of assessments against a violator shall exceed four
hundred dollars per day of each violation:
Provided, however,
That any violation for which the violator has paid a civil
administrative penalty assessed under this subsection is not
subject to a separate civil penalty action under this article to
the extent of the amount of the civil administrative penalty
paid. Civil administrative penalties shall be levied in
accordance with the rules promulgated under the authority of
section four of this article. The net proceeds of assessments
collected pursuant to this subsection shall be deposited in the
dam safety fund established pursuant to section seventeen of this
article. Any person adversely affected by the assessment of a
civil administrative penalty has the right to appeal to theenvironmental quality board pursuant to the provisions of article
one, chapter twenty-two-b of this code.
(b) No assessment levied pursuant to subsection (a) of this
section is due and payable until the procedures for review of the
assessment as set out in said subsection have been completed.
(c) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any certificate of approval, rule, notice or
order issued pursuant to this article. In seeking an injunction,
it is not necessary for the director to post bond or to allege or
prove at any stage of the proceeding that irreparable damage will
occur if the injunction is not issued or that the remedy at law
is inadequate. An application for injunctive relief or a civil
penalty action under this section may be filed and relief granted
notwithstanding the fact that all administrative remedies
provided for in this article have not been exhausted or invoked
against the person or persons against whom the relief is sought.
(d) Upon request of the director, the attorney general or
the prosecuting attorney of the county in which the violation
occurs, shall assist the director in any civil action under this
section.
(e) In any action brought pursuant to the provisions of this
section, the state or any agency of the state which prevails, may
be awarded costs and reasonable attorney's fees.
§22-14-16. Schedule of application fees established.
The director shall promulgate rules in accordance with theprovisions of section four of this article, to establish a
schedule of application fees for which the appropriate fee shall
be submitted by the applicant to the division together with the
application for a certificate of approval filed pursuant to this
article. The schedule of application fees shall be designed to
establish reasonable categories of certificate application fees
based upon the complexity of the permit application review
process required by the director pursuant to the provisions of
this article and the rules promulgated under this article. The
director shall not process any certificate application pursuant
to this article until the certificate application fee has been
received.
§22-14-17. Schedule of annual registration fees established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a
schedule of annual registration fees which shall be assessed
annually upon each person holding a certificate of approval
issued pursuant to this article. Each person holding a
certificate of approval shall pay the prescribed annual
registration fee to the division pursuant to the rules
promulgated under this article. The schedule of annual
registration fees shall be designed to establish reasonable
categories of annual registration fees, including, but not
limited to, the size of the dam and its classification. Any
certificate of approval issued pursuant to this article becomes
void without notification to the person holding a certificate ofapproval when the annual registration fee is more than one
hundred eighty days past due pursuant to the rules promulgated
under this section.
§22-14-18. Continuation of dam safety fund; components of fund.
(a) The special fund designated "The Dam Safety Fund"
hereinafter referred to as "the fund" shall be continued.
(b) All certificate application fees and annual registration
fee assessments, any interest or surcharge assessed and collected
by the division, interest accruing on investments and deposits of
the fund, and any other moneys designated by the division shall
be paid into the fund. Accrual of funds shall not exceed three
hundred thousand dollars per year, exclusive of application fees.
The division shall expend the proceeds of the fund for the review
of applications, inspection of dams, payment of costs of remedial
emergency actions and enforcement of the provisions of this
article.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-1. Purpose and legislative findings.
(a) The purpose of this article is to establish a
comprehensive program of controlling all phases of solid waste
management.
(b) The Legislature finds that uncontrolled, inadequately
controlled and improper collection, transportation, processing
and disposal of solid waste: (1) Is a public nuisance and a
clear and present danger to people; (2) provides harborages and
breeding places for disease-carrying, injurious insects, rodentsand other pests harmful to the public health, safety and welfare;
(3) constitutes a danger to livestock and domestic animals; (4)
decreases the value of private and public property, causes
pollution, blight and deterioration of the natural beauty and
resources of the state and has adverse economic and social
effects on the state and its citizens; (5) results in the
squandering of valuable nonrenewable and nonreplenishable
resources contained in solid waste; (6) that materials recovery
and recycling reduces the need for landfills and extends their
life; and that (7) proper disposal, materials recovery or
recycling of solid waste is for the general welfare of the
citizens of this state.
(c) The Legislature further finds that disposal in West
Virginia of solid waste of unknown composition threatens the
environment and the public health, safety and welfare, and
therefore, it is in the interest of the public to identify the
type, amount and origin of solid waste accepted for disposal at
West Virginia solid waste facilities.
(d) The Legislature further finds that other states of these
United States of America have imposed stringent standards for the
proper collection and disposal of solid waste and that the
relative lack of such standards and enforcement for such
activities in West Virginia has resulted in the importation and
disposal in the state of increasingly large amounts of
infectious, dangerous and undesirable solid wastes and hazardous
waste by persons and firms who wish to avoid the costs andrequirements for proper, effective and safe disposal of such
wastes.
(e) The Legislature further finds that Class A facilities
often have capacities far exceeding the needs of the state or the
areas of the state which they serve and that such landfills
create special environmental problems that require statewide
coordination of the management of such landfills.
§22-15-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(1) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership,
common management or family relationships as the director may
specify, including the following: Spouses, parents and children
and siblings.
(2) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(3) "Backhauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(4) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten thousand and
thirty thousand tons of solid waste per month. Class A facilityincludes two or more Class B solid waste landfills owned or
operated by the same person in the same county, if the aggregate
tons of solid waste handled per month by such landfills exceeds
nine thousand nine hundred ninety-nine tons of solid waste per
month.
(5) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(6) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other
than the owner or operator of the facility and does not include
an approved solid waste facility owned and operated by a person
for the sole purpose of disposing of solid wastes created by that
person or such person and other persons on a cost-sharing or
nonprofit basis and does not include the legitimate reuse and
recycling of materials for structural fill, road base, mine
reclamation and similar applications.
(7) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one of this chapter.
(8) "Division" means the division of environmental
protection.
(9) "Energy recovery incinerator" means any solid wastefacility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(10) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation or any other method by which solid waste is
incinerated.
(11) "Incinerator" means an enclosed device using controlled
flame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(12) "Materials recovery facility" means any solid waste
facility at which solid wastes are manually or mechanically
shredded or separated so that materials are recovered from the
general waste stream for purposes of reuse and recycling.
(13) "Municipal solid waste incineration" means the burning
of any solid waste collected by any municipal or residential
solid waste disposal company.
(14) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(15) "Person" or "persons" mean any industrial user, publicor private corporation, institution, association, firm or company
organized or existing under the laws of this or any other state
or country; state of West Virginia; governmental agency,
including federal facilities; political subdivision; county
commission; municipal corporation; industry; sanitary district;
public service district; drainage district; soil conservation
district; watershed improvement district; partnership; trust;
estate; person or individual; group of persons or individuals
acting individually or as a group; or any legal entity whatever.
(16) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(17) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article eleven of this chapter, or source, special
nuclear or byproduct material as defined by the Atomic Energy Actof 1954, as amended, including any nuclear or byproduct material
considered by federal standards to be below regulatory concern,
or a hazardous waste either identified or listed under article
eighteen of this chapter or refuse, slurry, overburden or other
wastes or material resulting from coal-fired electric power or
steam generation, the exploration, development, production,
storage and recovery of coal, oil and gas, and other mineral
resources placed or disposed of at a facility which is regulated
under article two, three, four, six, seven, eight, nine or ten of
this chapter, chapter twenty-two-a, or article two, seven, eight
or nine, chapter twenty-two-c of this code, so long as such
placement or disposal is in conformance with a permit issued
pursuant to such chapters. "Solid waste" does not include
materials which are recycled by being used or reused in an
industrial process to make a product, as an effective substitute
for commercial products, or are returned to the original process
as a substitute for raw material feedstock.
(18) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwing
or causing to be placed, deposited, dumped or thrown any solid
waste.
(19) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in
the state register pursuant to section nine, article three,
chapter twenty-two-c of this code.
(20) "Solid waste facility" means any system, facility,land, contiguous land, improvements on the land, structures or
other appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities and other such facilities not
herein specified. Such facility shall be deemed to be situated,
for purposes of this article, in the county where the majority of
the spatial area of such facility is located.
§22-15-3. Special provision for wood waste.
(a) The purpose of this section is to allow for the
combustion of wood waste without a solid waste facility permit
and to allow facilities to use wood waste as an alternative fuel.
(b) "Wood waste" means wood residues from logging
operations, sawmills, wood product manufacturing, furniture
making operations, recycling of wood products and other
industrial processes, but does not include wood waste which
contains hazardous constituents, including copper chromium
arsenate, which would cause such wood waste to be regulated
pursuant to article eighteen of this chapter.
(c) For purposes of section two of this article and section
two, article four, chapter twenty-two-c of this code:
(1) Wood waste is not "solid waste" unless disposed of at a
solid waste facility or an open dump; and
(2) Wood waste is a material which may be used as an
effective substitute for commercial products or raw material
feedstock.
(d) The use of incineration technologies in an energyrecovery incinerator for the purposes of combusting wood waste is
not prohibited and no solid waste facility permit is required.
The provisions of this section do not allow the combustion of
wood waste without a source permit from the director if such
permit is required by article five of this chapter or the rules
promulgated under the provisions of said article five.
(e) The division may promulgate legislative rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, to effectuate the purposes of this section.
§22-15-4. Authority of commissioner of bureau of public health.
Although the director is primarily responsible for the
permitting and regulating of solid wastes, the commissioner of
the bureau of public health may enforce the public health laws
over solid waste management which presents an imminent and
substantial endangerment to the public health.
§22-15-5. Powers and duties; rules and rulemaking.
In addition to all other powers, duties, responsibilities
and authority granted and assigned to the director in this code
and elsewhere described by law, they are hereby empowered as
follows:
(a) The director shall adopt rules in compliance with the
West Virginia administrative procedures act to carry out the
provisions of this article including modifying any existing rules
and establishing permit application fees up to an amount
sufficient to defray the costs of permit review. In promulgating
rules the director shall consider and establish requirementsbased on the quantity of solid waste to be handled, including
different requirements for solid waste facilities or approved
solid waste facilities which handle more than one hundred tons of
solid waste per day, the environmental impact of solid waste
disposal, the nature, origin or characteristics of the solid
waste, potential for contamination of public water supply,
requirements for public roadway standards and design for access
to the facilities with approval by the commissioner of the
division of highways, public sentiment, the financial capability
of the applicant, soil and geological considerations and other
natural resource considerations.
(b) The director, after public notice and opportunity for
public hearing near the affected community, may issue a permit
with reasonable terms and conditions for installation,
establishment, modification, operation or closure of a solid
waste facility:
Provided, That the director may deny the
issuance of a permit on the basis of information in the
application or from other sources including public comment, if
the solid waste facility is likely to cause adverse impacts on
the environment. The director may also prohibit the installation
or establishment of specific types and sizes of solid waste
facilities in a specified geographical area of the state based on
the above cited factor and may delete such geographical area from
consideration for that type and size solid waste facility.
(c) The director may refuse to grant any permit if he or she
has reasonable cause to believe, as indicated by documentedevidence, that the applicant, or any officer, director or
manager, thereof, or person owning a five percent or more
interest, beneficial or otherwise, or other person conducting or
managing the affairs of the applicant or of the proposed licensed
premises, in whole or in part:
(1) Has demonstrated, either by his or her police record or
by his or her record as a former permittee under articles eleven
through nineteen of this chapter or chapter twenty of this code,
a lack of respect for law and order, generally, or for the laws
and rules governing the disposal of solid wastes;
(2) Has misrepresented a material fact in applying to the
director for a permit;
(3) Has been convicted of a felony or other crime involving
moral turpitude;
(4) Has exhibited a pattern of violating environmental laws
in any state or the United States or combination thereof; or
(5) Has had any permit revoked under the environmental laws
of any state or the United States.
(d) The director or any authorized representative, employee
or agent of the division may, at reasonable times, enter onto any
approved solid waste facility, open dump or property where solid
waste is present for the purpose of making an inspection or
investigation of solid waste disposal.
(e) The director or any authorized representative, employee
or agent of the division may, at reasonable times, enter any
approved solid waste facility, open dump or property where solidwaste is present and take samples of the waste, soils, air or
water or may, upon issuance of an order, require any person to
take and analyze samples of such waste, soil, air or water.
(f) The director may also perform or require a person, by
order, to perform any and all acts necessary to carry out the
provisions of this article or the rules promulgated thereunder.
(g) The director or his or her authorized representative,
employee or agent shall make periodic inspections at every
approved solid waste facility to effectively implement and
enforce the requirements of this article or its rules and may, in
coordination with the commissioner of the division of highways,
conduct at weigh stations or any other adequate site or facility
inspections of solid waste in transit.
(h) The director shall require and set the amount of
performance bonds for persons engaged in the practice of solid
waste disposal in this state, pursuant to section twelve of this
article.
(i) The director shall require: (1) That persons disposing
of solid waste at commercial solid waste facilities within the
state file with the operator of the commercial solid waste
facility records concerning the type, amount and origin of solid
waste disposed of by them; and (2) that operators of commercial
solid waste facilities within the state maintain records and file
them with the director concerning the type, amount and origin of
solid waste accepted by them.
(j)
Identification of interests. -- The director shallrequire an applicant for a solid waste facility permit to provide
the following information:
(1) The names, addresses and telephone numbers of:
(A) The permit applicant;
(B) Any other person conducting or managing the affairs of
the applicant or of the proposed permitted premises, including
any contractor for gas or energy recovery from the proposed
operation, if the contractor is a person other than the
applicant; and
(C) Parties related to the applicant by blood, marriage or
business association, including the relationship to the
applicant.
(2) The names and addresses of the owners of record of
surface and subsurface areas within, and contiguous to, the
proposed permit area.
(3) The names and addresses of the holders of record to a
leasehold interest in surface or subsurface areas within, and
contiguous to, the proposed permit area.
(4) A statement of whether the applicant is an individual,
corporation, partnership, limited partnership, government agency,
proprietorship, municipality, syndicate, joint venture or other
entity. For applicants other than sole proprietorships, the
application shall contain the following information, if
applicable:
(A) Names and addresses of every officer, general and
limited partner, director and other persons performing a functionsimilar to a director of the applicant;
(B) For corporations, the principal shareholders;
(C) For corporations, the names, principal places of
businesses and Internal Revenue Service tax identification
numbers of United States parent corporations of the applicant,
including ultimate parent corporations and United States
subsidiary corporations of the applicant and the applicant's
parent corporations; and
(D) Names and addresses of other persons or entities having
or exercising control over any aspect of the proposed facility
that is regulated by the division, including, but not limited to,
associates and agents.
(5) If the applicant or an officer, principal shareholder,
general or limited partner or other related party to the
applicant, has a beneficial interest in, or otherwise manages or
controls another person or municipality engaged in the business
of solid waste collection, transportation, storage, processing,
treatment or disposal, the application shall contain the
following information:
(A) The name, address and tax identification number or
employer identification number of the corporation or other person
or municipality; and
(B) The nature of the relationship or participation with the
corporation or other person or municipality.
(6) An application shall list permits or licenses, issued by
the division or other environmental regulatory agency to eachperson or municipality identified in paragraph (1) and to other
related parties to the applicant, that are currently in effect or
have been in effect in at least part of the previous ten years.
This list shall include the type of permit or license, number,
location, issuance date and when applicable, the expiration date.
(7) An application shall identify the solid waste facilities
in the state which the applicant or a person or municipality
identified in paragraph (1) of this subdivision and other related
parties to the applicant currently owns or operates, or owned or
operated in the previous ten years. For each facility, the
applicant shall identify the location, type of operation and
state or federal permits under which they operate or have
operated. Facilities which are no longer permitted or which were
never under permit shall also be listed.
(k)
Compliance information. -- An application shall contain
the following information for the ten-year period prior to the
date on which the application is filed:
(1) A description of notices of violation, including the
date, location, nature and disposition of the violation, that
were sent by the division to the applicant or a related party,
concerning any environmental law, rule or order of the division,
or a condition of a permit or license. In lieu of a description
the applicant may provide a copy of notices of violation.
(2) A description of administrative orders, civil penalty
assessments and bond forfeiture actions by the division, and
civil penalty actions adjudicated by the state, against theapplicant or a related party concerning any environmental law,
rule or order of the division, or a condition of a permit or
license. The description shall include the date, location,
nature and disposition of the actions. In lieu of a description,
the applicant may provide a copy of the orders, assessments and
actions.
(3) A description of a summary, misdemeanor or felony
conviction, a plea of guilty or plea of no contest that has been
obtained in this state against the applicant or a related party
under any environmental law or rule concerning the storage,
collection, treatment, transportation, processing or disposal of
solid waste. The description shall include the date, location,
nature and disposition of the actions.
(4) A description of a court proceeding concerning any
environmental law or rule that was not described under paragraph
(3) of this subdivision in which the applicant or a related party
has been party. The description shall include the date,
location, nature and disposition of the proceedings.
(5) A description of a consent order, consent adjudication,
consent decree or settlement agreement involving the applicant or
a related party concerning any environmental law or rule in which
the division, other governmental agencies, the United States
Environmental Protection Agency, or a county health department
was a party. The description shall include the date, location,
nature and disposition of the action. In lieu of a description,
the applicant may provide a copy of the order, adjudication, adecree or agreement.
(6) For facilities and activities identified under paragraph
(1) of this subdivision, a statement of whether the facility or
activity was the subject of an administrative order, consent
agreement, consent adjudication, consent order, settlement
agreement, court order, civil penalty, bond forfeiture
proceeding, criminal conviction, guilty or no contest plea to a
criminal charge or permit or license suspension or revocation
under the act or the environmental protection acts. If the
facilities or activities were subject to these actions, the
applicant shall state the date, location, nature and disposition
of the violation. In lieu of a description, the applicant may
provide a copy of the appropriate document. The application
shall also state whether the division has denied a permit
application filed by the applicant or a related party, based on
compliance status.
(7) When the applicant is a corporation, a list of the
principal shareholders that have also been principal shareholders
of other corporations which have committed violations of any
environmental law or rule. The list shall include the date,
location, nature and disposition of the violation, and shall
explain the relationship between the principal shareholder and
both the applicant and the other corporation.
(8) A description of a misdemeanor or felony conviction, a
plea of guilty and a plea of no contest, by the applicant or a
related party for violations outside of this state of anyenvironmental protection laws or regulations. The description
shall include the date of the convictions or pleas, and the date,
location and nature of the offense.
(9) A description of final administrative orders, court
orders, court decrees, consent decrees or adjudications, consent
orders, final civil penalty adjudications, final bond forfeiture
actions or settlement agreements involving the applicant or a
related party for violations outside of this state of any
environmental protection laws or regulations. The description
shall include the date of the action and the location and nature
of the underlying violation. In lieu of a description, the
applicant may provide a copy of the appropriate document.
(l) All of the information provided by the applicant
pursuant to this section is not confidential and is disclosable
pursuant to the provisions of chapter twenty-nine-b of this code.
§22-15-6. Fee for filing a certificate of site approval.
The fee for the certificate of site approval is twenty-five
dollars payable upon the filing of the application therefor with
the county, county solid waste authority or regional solid waste
authority, as the case may be.
§22-15-7. Special provision for residential solid waste
disposal.
All commercial and public solid waste facilities shall
establish and publish a yearly schedule providing for one day per
month on which a person not in the business of hauling or
disposing of solid waste, who is a resident of the wasteshed inwhich the facility is located, may dispose of an amount of
residential solid waste up to one pick-up truckload or its
equivalent, free of all charges and fees.
§22-15-8. Limit on the size of solid waste facilities.
(a) On and after the first day of October, one thousand nine
hundred ninety-one, it is unlawful to operate any commercial
solid waste facility that handles between ten thousand and thirty
thousand tons of solid waste per month, except as provided in
section nine of this article and sections twenty-six,
twenty-seven and twenty-eight, article four, chapter twenty-two-c
of this code.
(b) Except as provided in section nine of this article, the
maximum quantity of solid waste which may lawfully be handled at
any commercial solid waste facility is thirty thousand tons per
month.
§22-15-9. Exemption for solid waste facility handling in excess
of thirty thousand tons per month.
(a) Notwithstanding any provision in this article, article
four, chapter twenty-two-c, article two, chapter twenty-four of
this code, any other section of this code, or any prior enactment
of the code to the contrary, and notwithstanding any defects in
or challenges to any actions which were or are required to be
performed in satisfaction of the following criteria, any person
who on the first day of October, one thousand nine hundred
ninety-one, has:
(1) Obtained site approval for a commercial solid wastefacility from a county or regional solid waste authority or
county commission pursuant to a prior enactment of this code, or
has otherwise satisfied the requirements of subsection (a),
section twenty-five, article four, chapter twenty-two-c of this
code;
(2) Entered into a contract with a county commission
regarding the construction and operation of a solid waste
facility, which contract contains rates for the disposal of solid
waste originating within the county;
(3) Obtained, pursuant to section one-f, article two,
chapter twenty-four of this code, following a public hearing, an
order from the public service commission approving the rates
established in the contract with the county commission; and
(4) An application for a permit for a commercial solid waste
facility pending with the division of environmental protection,
or is operating under a permit or compliance order, is permitted
to handle in excess of the limitation established in section
eight of this article up to fifty thousand tons of solid waste
per month at a commercial solid waste facility so long as the
person complies with the provisions of this section.
(b) Any person desiring to operate a commercial solid waste
facility which handles an amount of solid waste per month in
excess of the limitation established in section eight of this
article, but not exceeding the tonnage limitation described in
subsection (a) of this section may file a notice with the county
commission of the county in which the facility is or is to belocated requesting a countywide referendum. Upon receipt of such
notice, the county commission shall order a referendum be placed
upon the ballot, not less than fifty-six days before the next
primary or general election.
(1) Such referendum will be to determine whether it is the
will of the voters of the county that a commercial solid waste
facility be permitted to handle more than the limitation
established in section eight of this article not to exceed fifty
thousand tons per month. Any such election shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply
to voting and elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall a commercial solid waste facility, permitted to
handle up to, but no more than fifty thousand tons of solid waste
per month be located within _________________ county, West
Virginia?
//For the facility
//Against the facility
(Place a cross mark in the square opposite your choice.)"
If a majority of the legal votes cast upon the question is
against the facility handling an amount of solid waste of up to
fifty thousand tons per month then the division shall not proceed
any further with the application. If a majority of the legalvotes cast upon the question is in favor of permitting the
facility within the county, then the application process as set
forth in this article may proceed:
Provided, That such vote is
not binding on or require the division to issue a permit.
(c) If a person submits to a referendum in accordance with
this section, all approvals, certificates, and permits granted
and all actions undertaken by a regional or county solid waste
authority or county commission with regard to the person's
commercial solid waste facility within the county under this
article or article four, chapter twenty-two-c, or previously
enacted sections of articles five-f and nine, chapter twenty of
this code are shall be deemed valid, complete and in full
compliance with all the requirements of law and any defects
contained in such approvals, certificates, permits or actions are
cured and such defects may not be invoked to invalidate any such
approval, certificate, permit or action.
(d) Notwithstanding any provision of this code to the
contrary, any person described in subsection (a) of this section
who complies with the referendum requirement of this section and
complies with the permitting requirements of the division
provided in section ten of this article, shall not be required to
comply with the requirements of sections twenty-five, twenty-six,
twenty-seven and twenty-eight, article four, chapter twenty-two-c
of this code:
Provided, That such person is entitled to receive
a certificate of need pursuant to the provisions of subsection
(a), section one-c, article two, chapter twenty-four of this codeto handle the tonnage level authorized pursuant to subsection (a)
of this section.
(e) The purpose of this section is to allow any person who
satisfies the four criteria contained in subsection (a),
notwithstanding any defects in or challenges to any actions which
were or are required to be performed in satisfaction of such
criteria, to submit the question of siting a facility that
accepts up to fifty thousand tons within the county to a
referendum in order to obtain a decision at the county or
regional level regarding the siting of the facility and that
submission of this question at the county level is the only
approval, permit or action required at the county or regional
level to establish and site the proposed facility.
§22-15-10. Prohibitions; permits required; priority of disposal.
(a) Open dumps are prohibited and it is unlawful for any
person to create, contribute to or operate an open dump or for
any landowner to allow an open dump to exist on the landowner's
property unless that open dump is under a compliance schedule
approved by the director. Such compliance schedule shall contain
an enforceable sequence of actions leading to compliance and
shall not exceed two years. Open dumps operated prior to the
first day of April, one thousand nine hundred eighty-eight, by a
landowner or tenant for the disposal of solid waste generated by
the landowner or tenant at his or her residence or farm are not
a violation of this section if such open dump did not constitute
a violation of law on the first day of January, one thousand ninehundred eighty-eight, and unauthorized dumps which were created
by unknown persons do not constitute a violation of this section:
Provided, That no person shall contribute additional solid waste
to any such dump after the first day of April, one thousand nine
hundred eighty-eight, except that the owners of the land on which
unauthorized dumps have been or are being made are not liable for
such unauthorized dumping unless such landowners refuse to
cooperate with the division in stopping such unauthorized
dumping.
(b) It is unlawful for any person, unless the person holds
a valid permit from the division to install, establish,
construct, modify, operate or abandon any solid waste facility.
All approved solid waste facilities shall be installed,
established, constructed, modified, operated or abandoned in
accordance with this article, plans, specifications, orders,
instructions and rules in effect.
(c) Any permit issued under this article shall be issued in
compliance with the requirements of this article, its rules and
article eleven of this chapter and the rules promulgated
thereunder, so that only a single permit is required of a solid
waste facility under these two articles. Each permit issued
under this article shall have a fixed term not to exceed five
years:
Provided, That the director may administratively extend
a permit beyond its five-year term if the approved solid waste
facility is in compliance with this article, its rules and
article eleven of this chapter and the rules promulgatedthereunder:
Provided, however, That such administrative
extension may not be for more than one year. Upon expiration of
a permit, renewal permits may be issued in compliance with rules
promulgated by the director.
(d) For existing solid waste facilities which formerly held
division of health permits which expired by law and for which
complete permit applications for new permits pursuant to this
article were submitted as required by law, the division may enter
an administrative order to govern solid waste activities at such
facilities, which may include a compliance schedule, consistent
with the requirements of the division's solid waste management
rules, to be effective until final action is taken to issue or
deny a permit for such facility pursuant to this article, or
until further order of the division.
(e) No person may dispose in the state of any solid waste,
whether such waste originates in state or out of state, in a
manner which endangers the environment or the public health,
safety or welfare as determined by the director: :
Provided,
That the carcasses of dead animals may be disposed of in any
solid waste facility or in any other manner as provided for in
this code. Upon request by the director, the commissioner of the
bureau of public health shall provide technical advice concerning
the disposal of solid waste or carcasses of dead animals within
the state.
(f) To the extent permissible by law, a commercial solid
waste facility shall first ensure that the disposal needs of thecounty, or if applicable the region, in which it is located are
met. If the county solid waste authority, or regional solid
waste authority if applicable, in which the facility is located
determines that the present or future disposal needs of the
county, or if applicable the region, are not being, or will not
be, met by the commercial solid waste facility, such authority
may apply to the director to modify the applicable permit in
order to reduce the total monthly tonnage of out of county waste,
or if applicable, out of region waste, the facility is permitted
to accept by an amount that shall not exceed the total monthly
tonnage generated by the county, or if applicable the region, in
which the facility is located.
(g) In addition to all the requirements of this article and
the rules promulgated hereunder, a permit to construct a new
commercial solid waste facility or to expand the spatial area of
an existing facility, not otherwise allowed by an existing
permit, may not be issued unless the public service commission
has granted a certificate of need, as provided in section one-c,
article two, chapter twenty-four of this code. If the director
approves a permit or permit modification, the certificate of need
shall become a part of the permit and all conditions contained in
the certificate of need shall be conditions of the permit and may
be enforced by the division in accordance with the provisions of
this article.
(h) The director shall promulgate legislative rules pursuant
to chapter twenty-nine-a of this code which reflect the purposesas set forth in this article.
§22-15-11. Solid waste assessment fee; penalties.
(a)
Imposition. -- A solid waste assessment fee is hereby
imposed upon the disposal of solid waste at any solid waste
disposal facility in this state in the amount of two dollars and
twenty-five cents per ton or part thereof of solid waste. The
fee imposed by this section is in addition to all other fees and
taxes levied by law and shall be added to and constitute part of
any other fee charged by the operator or owner of the solid waste
disposal facility.
(b)
Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator is required to file returns
on forms and in the manner as prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice remains in effect until a notice of
cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of the
solid waste facility are jointly and severally responsible and
liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting thefee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section and section twenty-two, article five, chapter seven of
this code is considered a necessary and reasonable cost for motor
carriers of solid waste subject to the jurisdiction of the public
service commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definition of solid waste disposal facility. -- Forpurposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump in
this state, and includes a transfer station when the solid waste
collected at the transfer station is not finally disposed of at
a solid waste disposal facility within this state that collects
the fee imposed by this section. Nothing herein authorizes in
any way the creation or operation of or contribution to an open
dump.
(e)
Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director is exempt from the
solid waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste byweight. Such records must be made available to the appropriate
inspectors from the division or solid waste authority, upon
request.
(f)
Procedure and administration. -- Notwithstanding
section three, article ten, chapter eleven of this code, each and
every provision of the "West Virginia Tax Procedure and
Administration Act" set forth in article ten, chapter eleven of
this code shall apply to the fee imposed by this section with
like effect as if said act were applicable only to the fee
imposed by this section and were set forth in extenso herein.
(g)
Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(h)
Dedication of proceeds. -- The net proceeds of the fee
collected by the tax commissioner pursuant to this section shall
be deposited at least monthly in an account designated by the
director. The director shall allocate twenty-five cents for each
ton of solid waste disposed of in this state upon which the fee
imposed by this section is collected and shall deposit the total
amount so allocated into the "Solid Waste Reclamation and
Environmental Response Fund" to be expended for the purposes
hereinafter specified. The first one million dollars of the net
proceeds of the fee imposed by this section collected in eachfiscal year shall be deposited in the "Solid Waste Enforcement
Fund" and expended for the purposes hereinafter specified. The
next two hundred fifty thousand dollars of the net proceeds of
the fee imposed by this section collected in each fiscal year
shall be deposited in the "Solid Waste Management Board Reserve
Fund", and expended for the purposes hereinafter specified:
Provided, That in any year in which the water development
authority determines that the solid waste management board
reserve fund is adequate to defer any contingent liability of the
fund, the water development authority shall so certify to the
director and the director shall then cause no less than fifty
thousand dollars nor more than two hundred fifty thousand dollars
to be deposited to the fund:
Provided, however, That in any year
in which the water development authority determines that the
solid waste management board reserve fund is inadequate to defer
any contingent liability of the fund, the water development
authority shall so certify to the director and the director shall
then cause not less than two hundred fifty thousand dollars nor
more than five hundred thousand dollars to be deposited in the
fund:
Provided further, That if a facility owned or operated by
the state of West Virginia is denied site approval by a county or
regional solid waste authority, and if such denial contributes,
in whole or in part, to a default, or drawing upon a reserve
fund, on any indebtedness issued or approved by the solid waste
management board, then in that event the solid waste management
board or its fiscal agent may withhold all or any part of anyfunds which would otherwise be directed to such county or
regional authority and shall deposit such withheld funds in the
appropriate reserve fund. The director shall allocate the
remainder, if any, of said net proceeds among the following three
special revenue accounts for the purpose of maintaining a
reasonable balance in each special revenue account, which are
hereby continued in the state treasury:
(1) The "Solid Waste Enforcement Fund" which shall be
expended by the director for administration, inspection,
enforcement and permitting activities established pursuant to
this article;
(2) The "Solid Waste Management Board Reserve Fund" which
shall be exclusively dedicated to providing a reserve fund for
the issuance and security of solid waste disposal revenue bonds
issued by the solid waste management board pursuant to article
three, chapter twenty-two-c of this code;
(3) The "Solid Waste Reclamation and Environmental Response
Fund" which may be expended by the director for the purposes of
reclamation, cleanup and remedial actions intended to minimize or
mitigate damage to the environment, natural resources, public
water supplies, water resources and the public health, safety and
welfare which may result from open dumps or solid waste not
disposed of in a proper or lawful manner.
(i)
Findings. -- In addition to the purposes and
legislative findings set forth in section one of this article,
the Legislature finds as follows:
(1) In-state and out-of-state locations producing solid
waste should bear the responsibility of disposing of said solid
waste or compensate other localities for costs associated with
accepting such solid waste;
(2) The costs of maintaining and policing the streets and
highways of the state and its communities are increased by long
distance transportation of large volumes of solid waste; and
(3) Local approved solid waste facilities are being
prematurely depleted by solid waste originating from other
locations.
§22-15-12. Performance bonds; amount and method of bonding;
bonding requirements; period of bond liability.
(a) After a solid waste permit application has been approved
pursuant to this article, or once operations have commenced
pursuant to a compliance order, but before a permit has been
issued, each operator of a commercial solid waste facility shall
furnish bond, on a form to be prescribed and furnished by the
director, payable to the state of West Virginia and conditioned
upon the operator faithfully performing all of the requirements
of this article, rules promulgated hereunder and the permit:
Provided, That the director has the discretion to waive the
requirement of a bond from the operator of a commercial solid
waste facility, other than a Class A facility, which is operating
under a compliance order. The amount of the bond required is one
thousand dollars per acre and may include an additional amount
determined by the director based upon the total estimated cost tothe state of completing final closure according to the permit
granted to such facility and such measures as are necessary to
prevent adverse effects upon the environment; such measures
include, but are not limited to, satisfactory monitoring,
post-closure care and remedial measures:
Provided, however, That
the amount of the bond shall not exceed eight thousand dollars
per acre. All permits shall be bonded for at least ten thousand
dollars. The bond shall cover either: (1) The entire area to be
used for the disposal of solid waste; or (2) that increment of
land within the permit area upon which the operator will initiate
and conduct commercial solid waste facility operations within the
initial term of the permit pursuant to legislative rules
promulgated by the director pursuant to chapter twenty-nine-a of
this code. If the operator chooses to use incremental bonding,
as succeeding increments of commercial solid waste facility
operations are to be initiated and conducted within the permit
area, the operator shall file with the director an additional
bond or bonds to cover such increments in accordance with this
section:
Provided further, That once the operator has chosen to
proceed with bonding either the entire area to be used for the
disposal of solid waste or with incremental bonding, the operator
shall continue bonding in that manner for the term of the permit.
(b) The period of liability for performance bond coverage
shall commence with issuance of a permit and continue for the
full term of the permit and for a period of up to thirty full
years after final closure of the permit site:
Provided, That anyfurther time period necessary to achieve compliance with the
requirements in the closure plan of the permit is considered an
additional liability period.
(c) The form of the performance bond shall be approved by
the director and may include, at the option of the director,
surety bonding, collateral bonding (including cash and
securities), establishment of an escrow account, letters of
credit, performance bonding fund participation (as established by
the director), self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to deposit
cash, or collateral securities or certificates as follows: Bonds
of the United States or its possessions, of the federal land
bank, or of the homeowners' loan corporation; full faith and
credit general obligation bonds of the state of West Virginia, or
other states, and of any county, district or municipality of the
state of West Virginia or other states; or certificates of
deposit in a bank in this state, which certificates shall be in
favor of the division. The cash deposit or market value of such
securities or certificates shall be equal to or greater than the
sum of the bond. The director shall, upon receipt of any such
deposit of cash, securities or certificates, promptly place the
same with the treasurer of the state of West Virginia whose duty
it is to receive and hold the same in the name of the state in
trust for the purpose for which the deposit is made when the
permit is issued. The operator making the deposit is entitled
from time to time to receive from the state treasurer, upon thewritten approval of the director, the whole or any portion of any
cash, securities or certificates so deposited, upon depositing
with the treasurer in lieu thereof, cash or other securities or
certificates of the classes herein specified having value equal
to or greater than the sum of the bond.
(d) Within twelve months prior to the expiration of the
thirty-year period following final closure, the division will
conduct a final inspection of the facility. The purpose of the
inspection is to determine compliance with this article, the
division's rules, the terms and conditions of the permit, orders
of the division and the terms and conditions of the bond. Based
upon this determination, the division will either forfeit the
bond prior to the expiration of the thirty-year period following
final closure, or release the bond at the expiration of the
thirty-year period following final closure. Bond release
requirements shall be provided in rules promulgated by the
director.
(e) If the operator of a commercial solid waste facility
abandons the operation of a solid waste disposal facility for
which a permit is required by this article or if the permittee
fails or refuses to comply with the requirements of this article
in any respect for which liability has been charged on the bond,
the director shall declare the bond forfeited and shall certify
the same to the attorney general who shall proceed to enforce and
collect the amount of liability forfeited thereon, and where the
operation has deposited cash or securities as collateral in lieuof corporate surety, the secretary shall declare said collateral
forfeited and shall direct the state treasurer to pay said funds
into a waste management fund to be used by the director to effect
proper closure and to defray the cost of administering this
article. Should any corporate surety fail to promptly pay, in
full, forfeited bond, it is disqualified from writing any further
surety bonds under this article.
§22-15-13. Pre-siting notice.
Any person investigating an area for the purpose of siting
a commercial solid waste facility where no current solid waste
permit exists, in order to determine a feasible, approximate
location, shall prior to filing an application for a solid waste
permit publish a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is to be
located. Such notice shall inform the public of the location,
nature and other details of the proposed activity as prescribed
in rules to be promulgated as soon as practicable by the
director. Within five days of such publication such person shall
file with the director a pre-siting notice, which shall be made
in writing on forms prescribed by the director and shall be
signed and verified by the applicant. Such notice shall contain
a certification of publication from a qualified newspaper,
description of the area, the period of investigative review, a
United States geological survey topographic map and a map showing
the location of property boundaries of the area proposed for
siting and other such information as required by rulespromulgated pursuant to this section. The director shall hold a
public hearing on the pre-siting notice in the area affected.
The director shall define pre-siting activities by promulgating
legislative rules pursuant to chapter twenty-nine-a of this code.
On or after the first day of January, one thousand nine hundred
eighty-nine, the pre-siting notice, as prescribed by the
director, shall also be filed with the county or regional solid
waste authority, established pursuant to article four, chapter
twenty-two-c of this code, in which the proposed site is located
within five days of the publication of the notice.
§22-15-14. Limitations on permits; encouragement of recycling.
(a) The director shall by rules promulgated in accordance
with chapter twenty-nine-a of this code establish standards and
criteria applicable to commercial solid waste facilities for the
visual screening of such facilities from any interstate highway,
turnpike, federal and state primary highway or scenic parkway.
The director shall not issue a permit under this article to
install, establish, construct or operate any commercial solid
waste facility without proper visual screening from any
interstate highway, turnpike, federal or state primary highway or
scenic parkway:
Provided, That the director may renew such
permits, and may also issue permits to renew those certificates
of approval previously issued by the director of the department
of health, for those solid waste facilities holding such a valid
permit or certificate pursuant to this article on the first day
of July, one thousand nine hundred eighty-eight:
Provided,however, That no such permits or certificates of approval shall
be renewed for a period extending beyond the first day of July,
one thousand nine hundred ninety-three.
(b) The director shall give substantial deference and
consideration to the county or regional litter and solid waste
control plan approved pursuant to article four, chapter
twenty-two-c of this code and to the comprehensive county plan
adopted by the county commission pursuant to article seventeen,
chapter eight of this code in the issuance or the renewal of any
permit under this article:
Provided, That the authority and
discretion of the director under this article is not diminished
or modified by this subsection.
(c) The director is authorized and directed to promulgate
legislative rules pursuant to chapter twenty-nine-a of this code
encouraging each commercial solid waste facility and each person,
partnership, corporation and governmental agency engaged in the
commercial collection, transportation, processing and disposal of
solid waste to recycle paper, glass, plastic and aluminum
materials and such other solid wastes as the director may
specify.
(d) The director is authorized and directed to promulgate
legislative rules pursuant to chapter twenty-nine-a of this code
encouraging each person, partnership, corporation and
governmental agency subscribing to solid waste collection
services to segregate paper, glass, plastic and aluminum
material, and such other solid waste material as the director mayspecify, prior to collection of such wastes at their source for
purposes of recycling.
(e) Under no condition shall transloading solid waste
materials be permitted within a municipality except those
facilities owned or operated on behalf of the municipality in
which the facility is located.
§22-15-15. Orders, inspections and enforcement; civil and
criminal penalties.
(a) If the director, upon inspection or investigation by
duly authorized representatives or through other means observes,
discovers or learns of a violation of this article, its rules,
article eleven of this chapter or its rules, or any permit or
order issued under this article, he or she may:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under this
section includes, but is not limited to, any or all of the
following: Orders suspending, revoking or modifying permits,
orders requiring a person to take remedial action or cease and
desist orders;
(2) Seek an injunction in accordance with subsection (e) of
this section;
(3) Institute a civil action in accordance with subsection
(e) of this section; or
(4) Request the attorney general, or the prosecuting
attorney of the county wherein the alleged violation occurred, tobring an appropriate action, either civil or criminal in
accordance with subsection (b) of this section.
(b) Any person who willfully or negligently violates the
provisions of this article, any permit or any rule or order
issued pursuant to this article is subject to the same criminal
penalties as set forth in section twenty-four, article eleven of
this chapter.
(c) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
is subject to civil administrative penalty, to be levied by the
director, of not more than five thousand dollars for each day of
such violation, not to exceed a maximum of twenty thousand
dollars.
(1) In assessing any such penalty, the director shall take
into account the seriousness of the violation and any good faith
efforts to comply with the applicable requirements as well as any
other appropriate factors as may be established by the director
by rules promulgated pursuant to this article and article three,
chapter twenty-nine-a of this code. No assessment shall be
levied pursuant to this subsection until after the alleged
violator has been notified by certified mail or personal service.
The notice shall include a reference to the section of the
statute, rule, order or statement of permit conditions that was
allegedly violated, a concise statement of the facts alleged to
constitute the violation, a statement of the amount of the
administrative penalty to be imposed and a statement of thealleged violator's right to an informal hearing. The alleged
violator has twenty calendar days from receipt of the notice
within which to deliver to the director a written request for an
informal hearing. If no hearing is requested, the notice becomes
a final order after the expiration of the twenty-day period. If
a hearing is requested, the director shall inform the alleged
violator of the time and place of the hearing. The director may
appoint an assessment officer to conduct the informal hearing and
then make a written recommendation to the director concerning the
assessment of a civil administrative penalty. Within thirty days
following the informal hearing, the director shall issue and
furnish to the alleged violator a written decision, and the
reasons therefor, concerning the assessment of a civil
administrative penalty. Within thirty days after notification of
the director's decision, the alleged violator may request a
formal hearing before the environmental quality board in
accordance with the provisions of section sixteen of this
article. The authority to levy a civil administrative penalty is
in addition to all other enforcement provisions of this article
and the payment of any assessment does not affect the
availability of any other enforcement provision in connection
with the violation for which the assessment is levied:
Provided,
That no combination of assessments against a violator under this
section shall exceed twenty-five thousand dollars for each day of
such violation:
Provided, however, That any violation for which
the violator has paid a civil administrative penalty assessedunder this section shall not be the subject of a separate civil
penalty action under this article to the extent of the amount of
the civil administrative penalty paid. All administrative
penalties shall be levied in accordance with rules issued
pursuant to subsection (a), section five of this article. The
net proceeds of assessments collected pursuant to this subsection
shall be deposited in the solid waste reclamation and
environmental response fund established in subdivision (3),
subsection (h), section eleven of this article.
(2) No assessment levied pursuant to subdivision (1),
subsection (c) above becomes due and payable until the procedures
for review of such assessment as set out in said subsection have
been completed.
(d) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
is subject to a civil penalty not to exceed twenty-five thousand
dollars for each day of such violation, which penalty shall be
recovered in a civil action either in the circuit court wherein
the violation occurs or in the circuit court of Kanawha county.
(e) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any permit, rule or order issued pursuant to this
article. In seeking an injunction, it is not necessary for the
director to post bond nor to allege or prove at any stage of the
proceeding that irreparable damage will occur if the injunction
is not issued or that the remedy at law is inadequate. Anapplication for injunctive relief or a civil penalty action under
this section may be filed and relief granted notwithstanding the
fact that all administrative remedies provided for in this
article have not been exhausted or invoked against the person or
persons against whom such relief is sought.
(f) Upon request of the director, the attorney general or
the prosecuting attorney of the county in which the violation
occurs shall assist the director in any civil action under this
section.
(g) In any civil action brought pursuant to the provisions
of this section, the state, or any agency of the state which
prevails, may be awarded costs and reasonable attorney's fees.
(h) In addition to all other grounds for revocation, the
director may revoke a permit for any of the following reasons:
(1) Fraud, deceit or misrepresentation in securing the
permit, or in the conduct of the permitted activity;
(2) Offering, conferring or agreeing to confer any benefit
to induce any other person to violate the provisions of this
chapter, or of any other law relating to the collection,
transportation, treatment, storage, or disposal of solid waste,
or of any rule adopted pursuant thereto;
(3) Coercing a customer by violence or economic reprisal or
the threat thereof to utilize the services of any permittee; or
(4) Preventing, without authorization of the division, any
permittee from disposing of solid waste at a licensed treatment,
storage or disposal facility.
§22-15-16. Appeal procedures.
Any person having an interest which is or may be adversely
affected, or who is aggrieved by an order of the director, or by
the issuance or denial of a permit or by the permit's terms or
conditions, may appeal to the environmental quality board as
provided in article one, chapter twenty-two-b of this code.
§22-15-17. Limited extension of solid waste facility closure
deadline.
(a) The director shall grant an extension of the closure
deadline up to the thirty-first day of March, one thousand nine
hundred ninety-three, to a solid waste facility required by solid
waste management rules to close by the thirtieth day of November,
one thousand nine hundred ninety-one, unless the director
determines by a preponderance of the evidence that such extension
will pose a significant risk to human health or safety or cause
irreparable harm to the environment.
(b) No later than the first day of November, one thousand
nine hundred ninety-one, any facility seeking an extension of its
closure deadline must submit to the division an application
sufficient to support the requirements of subsection (a) of this
section.
(c) The director shall grant or deny the extension no later
than the twenty-first day of November, one thousand nine hundred
ninety-one. If the director denies an extension, the facility
shall cease accepting solid waste on the thirtieth day of
November, one thousand nine hundred ninety-one. No personseeking judicial review, pursuant to subsection (d) of this
section, of the director's denial of an extension shall accept
solid waste at the facility during the pendency of the judicial
review process.
(d) Any party who is aggrieved by an order of the director
regarding the grant or denial of an extension of the closure
deadline for a solid waste facility pursuant to this section may
obtain judicial review thereof in the same manner as provided in
section four, article five, chapter twenty-nine-a of this code,
which provisions shall apply to and govern such review with like
effect as if the provisions of said section were set forth in
extenso in this section, except that the petition shall be filed,
within the time specified in said section, in the circuit court
of Kanawha county:
Provided, That the court shall not in any
manner permit the continued acceptance of solid waste at the
facility pending review of the decision of the director.
(e) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section, the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(f) The director shall grant an extension of the closure
deadline not to exceed the thirtieth day of September, onethousand nine hundred ninety-three, to a solid waste facility
required by solid waste management rules to close by the
thirtieth day of November, one thousand nine hundred ninety-two.
§22-15-18. Condition on receiving permit.
(a) Notwithstanding any other provision of this code, a
permit application for a solid waste landfill facility submitted
by any person who has owned, operated or held a permit for a
solid waste landfill upon which funds have been, or are to be,
expended on pursuant to the provisions of article sixteen of this
chapter, may be approved under the provisions of this article
only if all funds so expended are repaid in full, plus interest,
or arrangements, satisfactory to the director, are made for the
repayment of the funds and the interest. The repayment shall be
made a specific condition of a permit.
(b) In the case where a permittee has entered into a
repayment arrangement with the director in order to obtain a
permit under this article, the repayment of the funds shall be
considered by the public service commission a reasonable cost of
operating the newly permitted landfill in determining rates to be
charged at the landfill.
§22-15-19. Municipal solid waste incineration and backhauling
prohibited; exceptions.
(a) Notwithstanding any other provision of this code to the
contrary, it is unlawful to install, establish or construct a new
solid waste facility for the purpose of municipal solid waste
incineration prior to the first day of May, one thousand ninehundred ninety-three:
Provided, That such prohibition does not
include the development of small-scale demonstration or pilot
projects designed to analyze the efficiency or environmental
impacts of incineration technologies.
(b) It is unlawful to engage in the practice of backhauling
as such term is defined in section two of this article.
§22-15-20. County assessment for Class A facilities; amount;
restrictions; purposes.
Notwithstanding any provision of this code to the contrary,
the county commission of any county containing a Class A facility
may, in addition to any fee otherwise imposed by law, impose a
fee, not to exceed five dollars per ton of solid waste disposed
in said facility:
Provided, That any moneys received by a county
commission pursuant to this section shall be expended exclusively
for capital improvements to the infrastructure within the county,
including, but not limited to, water supply treatment, waste
treatment, sewage systems and road maintenance, as well as the
expenses associated therewith.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-1. Legislative findings and purpose.
The Legislature finds that:
There are numerous landfills throughout the state that must
be closed because they cannot be operated in an environmentally
sound manner;
The permittees of many of the landfills that will be closing
do not have the financial resources to close their landfills ina manner that is timely and environmentally sound;
As long as these landfills remain open, the threat of
continuing harm to the environment and the health and safety of
the citizens of West Virginia exists, and the cost to remediate
their adverse effects will continue to grow;
The untimely and disorderly closure of these landfills
represents a significant threat to the health and safety of the
people of West Virginia and its environment; and
It is in the best interests of all the citizens of this
state to provide a mechanism to assist the permittees of these
landfills in properly closing them.
Therefore, it is the purpose of this article to provide an
assistance program that will be available to permittees of
landfills that will facilitate the closure of these landfills in
a timely and environmentally sound manner.
§22-16-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility;
(2) "Cost of project" includes the cost of the services
authorized in sections three and fifteen of this article,
property, material and labor which are essential thereto,financing charges, interest during construction and all other
expenses, including legal fees, trustees', engineers' and
architects' fees which are necessarily or properly incidental to
the program;
(3) "Director" means the director of the division of
environmental protection or such other person the director has
delegated duties or authority to pursuant to sections six or
eight, article one of this chapter;
(4) "Landfill" means any solid waste facility for the
disposal of solid waste on land. Such facility is situated, for
purposes of this article, in the county where the majority of the
spatial area of such facility is located;
(5) "Permittee" means a person who has or should obtain a
permit for a commercial solid waste facility that is a landfill;
(6) "Project" means the providing of closure assistance to
one or more landfills under this article.
The definitions provided in section two, article fifteen of
this chapter, to the extent they are applicable, apply in this
article.
§22-16-3. Commercial solid waste landfill closure assistance
program.
(a) There is established within the division of
environmental protection the commercial solid waste landfill
closure assistance program. The purpose of the program is to
provide assistance for the closure of landfills which are
required to cease operations pursuant to the closure deadlinesprovided for in this chapter.
(b) Upon the acceptance of an application of the permittee
of a solid waste landfill that satisfies the requirements in
section six of this article, the director shall provide, in
accordance with the provisions of this article, and to the extent
that funds are available, the following closure related services:
(1) Closure design, including an analysis of the effects of
the landfill on groundwater and the design of measures necessary
to protect and monitor the groundwater;
(2) Construction of all closure-related structures necessary
to provide sufficient leachate management, sediment and erosion
control, gas management, groundwater monitoring and final cover
and cap, all to meet the closure-related requirements of article
fifteen of this chapter and rules promulgated pursuant thereto;
and
(3) All surface water and groundwater monitoring activities
required pursuant to articles eleven and fifteen of this chapter
and applicable rules promulgated thereunder.
(c) To the extent that there are funds available in the fund
established in section twelve of this article or subdivision (3),
subsection (h), section eleven, article fifteen of this chapter,
the director may take remedial actions necessary to protect the
groundwater and surface water, other natural resources and the
health and safety of the citizens of this state.
§22-16-4. Solid waste assessment fee; penalties.
(a)
Imposition. -- A solid waste assessment fee is herebylevied and imposed upon the disposal of solid waste at any solid
waste disposal facility in this state in the amount of four
dollars per ton or like ratio on any part thereof of solid waste,
except as provided in subsection (e) of this section:
Provided,
That any solid waste disposal facility may deduct from this
assessment fee an amount, not to exceed the fee, equal to the
amount that such facility is required by the public service
commission to set aside for the purpose of closure of that
portion of the facility required to close by article fifteen of
this chapter. The fee imposed by this section is in addition to
all other fees and taxes levied by law and shall be added to and
constitute part of any other fee charged by the operator or owner
of the solid waste disposal facility.
(b)
Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms
and in the manner prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain in effect until a notice
of cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of thesolid waste facility are jointly and severally responsible and
liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the UnitedStates Environmental Protection Agency.
(d)
Definitions. -- For purposes of this section, the term
"solid waste disposal facility" means any approved solid waste
facility or open dump in this state, and includes a transfer
station when the solid waste collected at the transfer station is
not finally disposed of at a solid waste facility within this
state that collects the fee imposed by this section. Nothing in
this section authorizes in any way the creation or operation of
or contribution to an open dump.
(e)
Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director as exempt from the
solid waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recyclermust keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division or solid waste authority, upon
request.
(f)
Procedure and administration. -- Notwithstanding
section three, article ten, chapter eleven of this code, each and
every provision of the "West Virginia Tax Procedure and
Administration Act" set forth in article ten, chapter eleven of
this code applies to the fee imposed by this section with like
effect as if said act were applicable only to the fee imposed by
this section and were set forth in extenso herein.
(g)
Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(h)
Dedication of proceeds. -- Fifty percent of the
proceeds of the fee collected pursuant to this article in excess
of thirty thousand tons per month from any landfill which is
permitted to accept in excess of thirty thousand tons per month
pursuant to section nine, article fifteen of this chapter shall
be remitted, at least monthly, to the county commission in the
county in which the landfill is located. The remainder of the
proceeds of the fee collected pursuant to this section shall be
deposited in the closure cost assistance fund establishedpursuant to section twelve of this article.
§22-16-5. Solid waste management board empowered to issue solid
waste closure revenue bonds, renewal notes and refunding
bonds; requirements and manner of such issuance.
The solid waste management board is hereby empowered to
issue, from time to time, solid waste closure revenue bonds and
notes of the state in such principal amounts as the board deems
necessary to pay the cost of or finance, in whole or in part, the
closure of solid waste landfills by the division pursuant to the
provisions of this article, but the aggregate amount of all
issues of bonds and notes outstanding at one time for all
projects authorized hereunder shall not exceed that amount
capable of being serviced by revenues pledged for the payment of
bonds and notes issued pursuant to this section, and shall not
exceed in the aggregate the sum of one hundred fifty million
dollars.
The board may, from time to time, issue renewal notes, issue
bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of solid waste
closure revenue refunding bonds of the state. Except as may
otherwise be expressly provided in this article or by the board,
every issue of its bonds or notes are obligations of the board
payable out of the revenues and reserves created for such
purposes by the board, which are pledged for such payment,
without preference or priority of the first bonds issued, subject
only to any agreements with the holders of particular bonds ornotes pledging any particular revenues. Such pledge is valid and
binding from the time the pledge is made and the revenue so
pledged and thereafter received by the board is immediately
subject to the lien of such pledge without any physical delivery
thereof or further act and the lien of any such pledge is valid
and binding as against all parties having claims of any kind in
tort, contract or otherwise against the board irrespective of
whether such parties have notice thereof. All such bonds and
notes shall have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
board, shall bear such dates and shall mature at such times, in
the case of any such note or any renewals thereof not exceeding
five years from the date of issue of such original note, and in
the case of any such bond not exceeding fifty years from the date
of issue, as such resolution may provide. The bonds and notes
shall bear interest at such rate, be in such denominations, be in
such form, either coupon or registered, carry such registration
privileges, be payable in such medium of payment, at such place
and be subject to such terms of redemption as the board may
authorize. The board may sell such bonds and notes at public or
private sale, at the price the board determines. The bonds and
notes shall be executed by the chair and vice chair of the board,
both of whom may use facsimile signatures. The official seal of
the board or a facsimile thereof shall be affixed thereto or
printed thereon and attested, manually or by facsimile signature,
by the secretary-treasurer of the board, and any coupons attachedthereto shall bear the signature or facsimile signature of the
chair of the board. In case any officer whose signature, or a
facsimile of whose signature, appears on any bonds, notes or
coupons ceases to be such officer before delivery of such bonds
or notes, such signature or facsimile is nevertheless sufficient
for all purposes the same as if he or she had remained in office
until such delivery and, in case the seal of the board has been
changed after a facsimile has been imprinted on such bonds or
notes, such facsimile seal will continue to be sufficient for all
purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the board to secure
the payment of the bonds or notes or of any issue thereof; the
use and disposition of revenues of the board; a covenant to fix,
alter and collect rentals, fees, service charges and other
charges so that pledged revenues will be sufficient to pay the
cost of projects as provided in this article, related to closure
activities, pay principal of and interest on bonds or notes
secured by the pledge of such revenues and provide such reserves
as may be required by the applicable resolution; the setting
aside of reserve funds, sinking funds or replacement and
improvement funds and the regulation and disposition thereof; the
crediting of the proceeds of the sale of bonds or notes to andamong the funds referred to or provided for in the resolution
authorizing the issuance of the bonds or notes; the use, lease,
sale or other disposition of any solid waste disposal project or
any other assets of the board; limitations on the purpose to
which the proceeds of sale of bonds or notes may be applied and
pledging such proceeds to secure the payment of the bonds or
notes or of any issue thereof; agreement of the board to do all
things necessary for the authorization, issuance and sale of
bonds in such amounts as may be necessary for the timely
retirement of notes issued in anticipation of the issuance of
bonds; limitations on the issuance of additional bonds or notes;
the terms upon which additional bonds or notes may be issued and
secured; the refunding of outstanding bonds or notes; the
procedure, if any, by which the terms of any contract with
bondholders or noteholders may be amended or abrogated, the
holders of which must consent thereto, and the manner in which
such consent may be given; limitations on the amount of moneys to
be expended by the board for operating, administrative or other
expenses of the board; and any other matters, of like or
different character, which in any way affect the security or
protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes are less than the minimum reserve
requirements established in any resolution or resolutions
authorizing the issuance of such bonds or notes, the chair of the
board shall certify, on or before the first day of December ofeach year, the amount of such deficiency to the governor of the
state, for inclusion, if the governor shall so elect, of the
amount of such deficiency in the budget to be submitted to the
next session of the Legislature for appropriation to the board to
be pledged for payment of such bonds or notes:
Provided, That
the Legislature is not required to make any appropriation so
requested, and the amount of such deficiencies does not
constitute a debt or liability of the state.
Neither the members of the board nor any person executing
the bonds or notes are liable personally on the bonds or notes or
be subject to any personal liability or accountability by reason
of the issuance thereof.
§22-16-6. Establishment of reserve funds, replacement and
improvement funds and sinking funds; fiscal agent; purposes
for use of bond proceeds; application of surplus.
(a) Before issuing any revenue bonds in accordance with the
provisions of this article, the solid waste management board
shall consult with and be advised by the West Virginia water
development authority as to the feasibility and necessity of the
proposed issuance of revenue bonds.
(b) Prior to issuing revenue bonds under the provisions of
this article, the board shall enter into agreements satisfactory
to the West Virginia water development authority with regard to
the selection of all consultants, advisors and other experts to
be employed in connection with the issuance of such bonds and the
fees and expenses to be charged by such persons, and to establishany necessary reserve funds and replacement and improvement
funds, all such funds to be administered by the water development
authority, and, so long as any such bonds remain outstanding, to
establish and maintain a sinking fund or funds to retire such
bonds and pay the interest thereon as the same may become due.
The amounts in any such sinking fund, as and when so set apart by
the board, shall be remitted to the West Virginia water
development authority at least thirty days previous to the time
interest or principal payments become due, to be retained and
paid out by the water development authority, as agent for the
board, in a manner consistent with the provisions of this article
and with the resolution pursuant to which the bonds have been
issued. The water development authority shall act as fiscal
agent for the administration of any sinking fund and reserve fund
established under each resolution authorizing the issuance of
revenue bonds pursuant to the provisions of this article, and
shall invest all funds not required for immediate disbursement in
the same manner as funds are invested pursuant to the provisions
of section fifteen, article one, chapter twenty-two-c of this
code.
(c) Notwithstanding any other provision of this article to
the contrary, no revenue bonds shall be issued, nor the proceeds
thereof expended or distributed, pursuant to the provisions of
this article, without the prior approval of the water development
authority.
(d) If the proceeds of revenue bonds issued for any solidwaste landfill closure project exceed the cost thereof, the
surplus shall be paid into the fund herein provided for the
payment of principal and interest upon such bonds. Such fund may
be used by the fiscal agent for the purchase or redemption of any
of the outstanding bonds payable from such fund at the market
price, but not at a price exceeding the price at which any of
such bonds are in the same year redeemable, as fixed by the board
in its said resolution, and all bonds redeemed or purchased shall
forthwith be canceled, and shall not again be issued.
§22-16-7. Legal remedies of bondholders.
Any holder of solid waste disposal revenue bonds issued
under the authority of this article or any of the coupons
appertaining thereto, except to the extent the rights given by
this article may be restricted by the applicable resolution, may
by civil action, mandamus or other proceeding, protect and
enforce any rights granted under the laws of this state or
granted under this article, by the resolution authorizing the
issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
resolution, to be performed by the board or any officer or
employee thereof, including the fixing, charging and collecting
of sufficient rentals, fees, service charges or other charges.
§22-16-8. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Solid waste closure revenue bonds and notes and solid wasteclosure revenue refunding bonds issued under authority of this
article and any coupons in connection therewith are not a debt or
a pledge of the faith and credit or taxing power of this state or
of any county, municipality or any other political subdivision of
this state, and the holders or owners thereof have no right to
have taxes levied by the Legislature or taxing authority of any
county, municipality or any other political subdivision of this
state for the payment of the principal thereof or interest
thereon, but such bonds and notes are payable solely from the
revenues and funds pledged for their payment as authorized by
this article unless the notes are issued in anticipation of the
issuance of bonds or the bonds are refunded by refunding bonds
issued under authority of this article, which bonds or refunding
bonds are payable solely from revenues and funds pledged for
their payment as authorized by this article. All such bonds and
notes shall contain on the face thereof a statement to the effect
that the bonds or notes, as to both principal and interest, are
not debts of the state or any county, municipality or political
subdivision thereof, but are payable solely from revenues and
funds pledged for their payment.
All expenses incurred in carrying out the provisions of this
article are payable solely from funds provided under authority of
this article. This article does not authorize the board to incur
indebtedness or liability on behalf of or payable by the state or
any county, municipality or political subdivision thereof.
§22-16-9. Solid waste closure revenue bonds lawful investments.
The provisions of sections ten and eleven, article six,
chapter twelve of this code notwithstanding, all solid waste
closure revenue bonds issued pursuant to this article are lawful
investments for the West Virginia state board of investments and
are also lawful investments for financial institutions as defined
in section two, article one, chapter thirty-one-a of this code,
and for insurance companies.
§22-16-10. Limitation on assistance.
The director may provide closure assistance only to
permittees who meet the following requirements:
(1) The permittee of a landfill that does not have a liner
and ceases accepting solid waste on or before the thirtieth day
of November, one thousand nine hundred ninety-one, except for
those landfills allowed to accept solid waste pursuant to the
provisions of section seventeen, article fifteen of this chapter
and ceases accepting solid waste on or before the extension
deadline as determined by the director; or the permittee of a
landfill that has only a single liner and ceases accepting solid
waste on or before the thirtieth day of September, one thousand
nine hundred ninety-three;
(2) The permittee of the landfill must demonstrate to the
satisfaction of the director that it does not have the financial
resources on hand or the ability to generate the amounts needed
to comply, in a timely manner, with the closure requirements
provided in article fifteen of this chapter and any rules
promulgated pursuant thereto; and
(3) The permittee must maintain a permit for the landfill
pursuant to the provisions of section ten, article fifteen of
this chapter and maintain the full amount of the bond required to
be submitted pursuant to section twelve, article fifteen of this
chapter.
§22-16-11. Application for closure assistance.
(a) The director shall provide an application and
application procedure for all permittees of solid waste landfills
desiring to receive closure assistance under this article. At a
minimum the procedure shall require that:
(1) The permittee of a landfill that does not have a liner
system must submit its application no later than the fifteenth
day of September, one thousand nine hundred ninety-two, except
the permittee of a landfill that has been allowed to accept solid
waste pursuant to the provisions of section seventeen, article
fifteen of this chapter must submit its application no later than
the eleven months following the expiration of the extension; and
(2) The permittee of a landfill that has only a single liner
system must submit its application no later than eleven months
following the date of closure of the landfill.
(b) The director shall, within a reasonable time after
receipt of a complete application, notify the applicant of the
acceptance or rejection of the application. If the application
is rejected the notice shall contain the reasons for the
rejection.
§22-16-12. Closure cost assistance fund.
(a) The "Closure Cost Assistance Fund" is continued as a
special revenue account in the state treasury. The fund shall
operate as a special fund whereby all deposits and payments
thereto do not expire to the general revenue fund, but remain in
such account and be available for expenditure in the succeeding
fiscal year. Separate sub-accounts may be established within the
special account for the purpose of identification of various
revenue resources and payment of specific obligations.
(b) Interest earned on any money in the fund shall be
deposited to the credit of the fund.
(c) The fund consists of the following:
(1) Moneys collected and deposited in the state treasury
which are specifically designated by acts of the Legislature for
inclusion in the fund, including moneys collected and deposited
into the fund pursuant to section four of this article;
(2) Contributions, grants and gifts from any source, both
public and private, which may be used by the director for any
project or projects;
(3) Amounts repaid by permittees pursuant to section
eighteen, article fifteen of this chapter; and
(4) All interest earned on investments made by the state
from moneys deposited in this fund.
(d) The solid waste management board, upon written approval
of the director, has the authority to pledge all or such part of
the revenues paid into the closure cost assistance fund as may be
needed to meet the requirements of any revenue bond issue orissues of the solid waste management board authorized by this
article, including the payment of principal of interest and
redemption premium, if any, on such revenue bonds and the
establishing and maintaining of a reserve fund or funds for the
payment of the principal of, interest and redemption premium, if
any, on such revenue bond issue or issues when other moneys
pledged may be insufficient therefor. Any pledge of moneys in
the closure cost assistance fund for revenue bonds shall be a
prior and superior charge on such fund over the use of any of the
moneys in such fund to pay for the cost of any project on a cash
basis. Expenditures from the fund, other than for the retirement
of revenue bonds, may only be made in accordance with the
provisions of this article.
(e) The amounts deposited in the fund may be expended only
on the cost of projects as provided for in sections three and
fifteen of this article and the amounts may be expended for
payment of bonds and notes issued pursuant to section five of
this article:
Provided, That no more than one percent of the
annual deposits to such fund may be used for administrative
purposes.
§22-16-13. Promulgation of rules by director.
The director shall promulgate rules that are necessary for
the efficient and orderly implementation and administration of
this article.
§22-16-14. Liability of owner or operator.
Nothing in this article relieves the owner, operator orpermittee of a landfill of the legal duties, obligations or
liabilities incident to the ownership or operation of a landfill,
except that the performance by the director of any of the
activities set forth in subsection (b), section three of this
article relieves the operator from the requirement to perform
such activities.
§22-16-15. Procedures for handling remedial actions; payment of
costs of remedial actions to be paid by owner or operator.
When the director, in performing activities pursuant to this
article determines action, not set forth in subsection (b),
section three of this article, is necessary to prevent or
remediate any adverse effects of the landfill he or she shall
notify the permittee and make and enter an order directing the
permittee to take corrective or remedial action. The order shall
contain findings of fact upon which the director based his or her
determination to make and enter such order. The director shall
fix a time limit for the completion of such action.
The director shall cause a copy of any such order to be
served by registered or certified mail or by a law-enforcement
officer upon such person.
If the corrective action is not taken within the time limit
or the permittee notifies the director that it is unable to
comply with the order, the director may expend amounts, as
provided herein, to make the remediation.
The costs reasonably incurred in any remedial action taken
by the director as provided in this article may be paid forinitially by amounts available to the director in the fund
created in subdivision (3), subsection (h), section eleven,
article fifteen of this chapter or, to the extent funds are
available, from the fund created in section twelve of this
article, and such sums so expended, if not promptly repaid by the
permittee upon request of the director, may be recovered from the
permittee by appropriate civil action to be initiated by the
attorney general upon request of the director. All funds so
recovered shall be deposited in the fund from which said funds
were expended.
§22-16-16. Right of entry.
The director or his or her duly authorized representatives
have the right, upon presentation of proper identification, to
enter upon any property for the purpose of conducting studies or
exploratory work to determine the existence of adverse effects of
a landfill, to determine the feasibility of the remediation or
prevention of such adverse effects and to perform the activities
set forth in sections three and fifteen of this article. Such
entry is as an exercise of the police power of the state for the
protection of public health, safety and general welfare and is
not an act of condemnation of property or trespass thereon.
Nothing contained in this section eliminates any obligation to
follow any process that may be required by law.
§22-16-17. Authority of director to accept grants and gifts.
The director has the authority, on behalf of the division of
environmental protection, to accept for deposit in the closurecost assistance fund established in section twelve of this
article, all gifts, grants, property, funds, security interest,
money, materials, labor, supplies or services from the United
States of America or from any governmental unit or any person,
firm or corporation, and to carry out the terms or provisions of,
or make agreements with respect to, or pledge, any gifts or
grants, and to do any and all things necessary, useful, desirable
or convenient in connection with the procuring, acceptance or
disposition of gifts or grants.
§22-16-18. Management and control of project.
(a) The director shall manage and control all projects, and
may make and enter into all contracts or agreements necessary and
incidental to the performance of the duties imposed under this
article.
(b) On or before the thirty-first day of December, one
thousand nine hundred ninety-two, the director, in consultation
with the public service commission, shall complete a statewide
closure plan, a comprehensive analysis of the total costs of
closure anticipated under such statewide closure plan, and a
proposal for implementation of closure assistance funding. The
director, in consultation with the public service commission,
shall prepare and issue a report which shall include the
following:
(1) An identification of specific landfills expected to be
closed during the three-year period next following the completion
of the plan;
(2) An estimate of the projected closure costs associated
with each such identified landfill, including such engineering
and technical analysis as may be necessary to provide a
reasonable estimate;
(3) The extent to which closure assistance will be needed
for each such specific landfill; and
(4) An assessment of the order of priority which should be
established for closure of landfills and all moneys potentially
available therefor.
The plan and report required pursuant to the provisions of
this section shall be submitted to the Legislature for its
approval or rejection by a concurrent resolution.
ARTICLE 17. UNDERGROUND STORAGE TANK ACT.
§22-17-1. Short title.
This article may be known and cited as the "Underground
Storage Tank Act".
§22-17-2. Declaration of policy and purpose.
The Legislature recognizes that large quantities of
petroleum and hazardous substances are stored in underground
storage tanks within the state of West Virginia and that
emergency situations involving these substances can and will
arise which may present a hazard to human health, safety or the
environment. The Legislature also recognizes that some of these
substances have been stored in underground storage tanks in the
state in a manner insufficient to protect human health, safety or
the environment. The Legislature further recognizes that thefederal government has enacted Subtitle I of the federal Resource
Conservation and Recovery Act of 1976, as amended, which provides
for a federal program to remove the threat and remedy the effects
of releases from leaking underground storage tanks and authorizes
federal assistance to respond to releases of petroleum from
underground storage tanks. The Legislature declares that the
state of West Virginia desires to produce revenue for matching
the federal assistance provided under the federal act; to create
a program to control the installation, operation and abandonment
of underground storage tanks and to provide for corrective action
to remedy releases of regulated substances from these tanks.
Therefore, the Legislature hereby enacts the West Virginia
underground storage tank act to create an underground storage
tank program and to assume regulatory primacy for such federal
programs in this state.
§22-17-3. Definitions.
(a) "Change in status" means causing an underground storage
tank to be no longer in use or a change in the reported uses,
contents or ownership of an underground storage tank.
(b) "Director" means the director of the West Virginia
division of environmental protection or such other person the
director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter.
(c) "Nonoperational storage tank" means an underground
storage tank in which regulated substances will not be deposited
or from which regulated substances will not be dispensed afterthe eighth day of November, one thousand nine hundred eighty-
four.
(d) "Operator" means any person in control of, or having
responsibility for, the daily operation of an underground storage
tank.
(e) "Owner" means:
(1) In the case of an underground storage tank in use on the
eighth day of November, one thousand nine hundred eighty-four, or
brought into use after that date, a person who owns an
underground storage tank used for the storage, use or dispensing
of a regulated substance.
(2) In the case of an underground storage tank in use before
the eighth day of November, one thousand nine hundred eighty-
four, but no longer in use on that date, a person who owned such
a tank immediately before the discontinuation of its use.
(f) "Person" means any individual, trust, firm, joint stock
company, corporation (including government corporations),
partnership, association, state, municipality, commission,
political subdivision of a state, interstate body, consortium,
joint venture, commercial entity and the United States
government.
(g) "Petroleum" means petroleum, including crude oil or any
fraction thereof which is liquid at a temperature of sixty
degrees Fahrenheit and a pressure of fourteen and seven-tenths
pounds per square inch absolute.
(h) "Regulated substance" means:
(1) Any substance defined in section 101 (14) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, but not including any substance regulated as a
hazardous waste under Subtitle C of the federal Resource
Conservation and Recovery Act of 1976, as amended; or
(2) Petroleum.
(i) "Release" means any spilling, leaking, emitting,
discharging, escaping, leaching or disposing from an underground
storage tank into groundwater, surface water or subsurface soils.
(j) "Subtitle I" means Subtitle I of the federal Resource
Conservation and Recovery Act of 1976, as amended.
(k) "Underground storage tank" means one tank or a
combination of tanks, and the underground pipes connected
thereto, which is used to contain an accumulation of regulated
substances and the volume of which, including the volume of the
underground pipes connected thereto, is ten percent or more
beneath the surface of the ground, but does not include:
(1) Farm or residential tanks with a capacity of eleven
hundred gallons or less and used for storing motor fuel for
noncommercial purposes;
(2) Tanks used for storing heating oil for consumptive use
on the premises where stored;
(3) Septic tanks;
(4) A pipeline facility, including gathering lines,
regulated under the Natural Gas Pipeline Safety Act of 1968, or
the Hazardous Liquid Pipeline Safety Act of 1968, or anintrastate pipeline facility regulated under state laws
comparable to the provisions of either of those acts;
(5) Surface impoundments, pits, ponds or lagoons;
(6) Storm water or waste water collection systems;
(7) Flow-through process tanks;
(8) Liquid traps or associated gathering lines directly
related to oil or gas production and gathering operations; or
(9) Storage tanks situated in an underground area such as a
basement, cellar, mineworking, drift, shaft or tunnel, if the
storage tank is situated upon or above the surface of the floor.
The term "underground storage tank" does not include any
pipes connected to any tank which is described in subparagraphs
(1) through (9).
§22-17-4. Designation of division of environmental protection
as the state underground storage tank program lead agency.
The division of environmental protection is hereby
designated as the state underground storage tank program lead
agency for purposes of Subtitle I and is hereby authorized to
take all actions necessary or appropriate to secure to this state
the benefits of said legislation. In carrying out the purposes
of this article, the director is hereby authorized to cooperate
with the United States environmental protection agency, other
agencies of the federal government, agencies of this state or
other states, and other interested persons in all matters
relating to underground storage tank regulation.
§22-17-5. Powers and duties of director; integration with other
acts.
(a) In addition to all other powers and duties prescribed in
this article or otherwise by law, and unless otherwise
specifically set forth in this article, the director shall
perform any and all acts necessary to carry out the purposes and
requirements of Subtitle I.
(b) The director shall cooperate with and may receive and
expend money from the federal government or other source.
(c) The director may enter into any agreements, including
reimbursement for services rendered, contracts and cooperative
arrangements under such terms and conditions as he or she deems
appropriate, with other state agencies, educational institutions
or other organizations and individuals as necessary to implement
the provisions of this article.
§22-17-6. Promulgation of rules and standards by director.
(a) The director has overall responsibility for the
promulgation of rules under this article. In promulgating and
revising such rules the director shall comply with the provisions
of chapter twenty-nine-a of this code. Such rules shall be no
more stringent than the rules and regulations promulgated by the
United States environmental protection agency pursuant to
Subtitle I.
(b) The director shall promulgate rules applicable to owners
or operators of underground storage tanks or other affected
persons, as appropriate, as follows:
(1) A requirement for a yearly registration fee forunderground storage tanks;
(2) A requirement that an owner or operator register with
the director each underground storage tank after the effective
date of the rules and that an owner or operator report annually
on changes in status of any underground storage tank;
(3) Such release detection, prevention and correction rules
applicable to underground storage tanks as may be necessary to
protect human health and the environment;
(4) Requirements for maintaining a leak detection system,
inventory control systems together with tank testing, or a
comparable system or method designed to identify releases from
underground storage tanks in a manner consistent with the
protection of human health and the environment;
(5) Requirements for maintaining records of any monitoring
or leak detection system or inventory control system or tank
testing system;
(6) Rules for procedures and amount of fees to be assessed
for the underground storage tank administrative fund, the leaking
underground storage tank response fund and the underground
storage tank insurance fund established pursuant to this article,
which shall include a capitalization fee to be assessed against
all owners or operators of underground tanks to be used for
initial establishment of the underground storage tank insurance
fund;
(7) Procedures for making expenditures from the underground
storage tank administrative fund, the leaking underground storagetank response fund and the underground storage tank insurance
fund;
(8) Acceptable methods by which an owner or operator may
demonstrate financial responsibility;
(9) Requirements for reporting of releases and corrective
action taken in response to a release;
(10) Requirements for taking corrective action in response
to a release from an underground storage tank;
(11) Requirements for the closure of tanks to prevent future
releases of regulated substances to the environment;
(12) Requirements for certification of installation,
removal, retrofit, testing and inspection of underground storage
tanks and leak detection systems by a registered professional
engineer or other qualified person;
(13) Requirements for public participation in the
enforcement of the state underground storage tank program;
(14) Procedures establishing when and how the director
determines if information obtained by any agency under this
article is confidential;
(15) Standards of performance for new underground storage
tanks; or
(16) Any other rules or standards necessary and appropriate
for the effective implementation and administration of this
article.
§22-17-7. Underground storage tank advisory committee; purpose.
The underground storage tank advisory committee iscontinued. The committee is composed of seven members, which
shall include a member of the West Virginia petroleum council, a
member of the West Virginia service station dealers association,
a member of the West Virginia petroleum marketers association,
the director, a member of the West Virginia manufacturers
association, the West Virginia insurance commissioner, and a
representative from the citizenry-at-large who is appointed by
the governor.
The committee is advisory to the director and the division
of environmental protection regarding the expenditure of funds
from the leaking underground storage tank response fund and the
underground storage tank insurance fund created by this article.
The director shall deliver to the committee annually a report on
expenditures made from each fund. The committee shall consider
any matter brought before it by the director or any member of the
committee and may consider any matter referred to it by a person
not a member of the committee. At the conclusion of its
consideration of any proposal, the committee shall make its
recommendation to the director. The director is not bound by any
recommendations of the committee. The committee may also
formulate general or long-range plans for improvements in the
administration of the funds for the consideration of the
director.
By the second Wednesday of January of each year the
committee shall prepare and deliver to the director and to the
Legislature a report of all matters it considered,recommendations it made and plans it formulated during the
preceding calendar year. The report shall include any
recommendation it may have for changes in the law which would be
necessary to implement any of its administrative recommendations.
§22-17-8. Notification requirements.
(a) Underground storage tank owners shall notify the
director of any underground storage tank brought into use on or
after the tenth day of June, one thousand nine hundred
eighty-eight within thirty days of such use, on a form prescribed
by the director. The notice shall specify the date of tank
installation, tank location, type of construction, size and age
of such tank and the type of regulated substance to be stored
therein. If, at the time this information is required to be
submitted, the director has not prepared the form required by
this section, the owner shall nevertheless submit the information
in writing to the director.
(b) A person who sells a tank intended to be used as an
underground storage tank shall reasonably notify the owner or
operator of such tank of the owner's notification requirements of
this section.
(c) A new owner of any underground storage tank shall notify
the director in writing of the transfer of ownership of any
underground storage tank. The new owner upon the effective date
of such transfer becomes subject to all provisions of this
article. The director may prescribe by rule the appropriate form
and timing for such notification.
§22-17-9. Registration requirements; undertaking activities
without registration.
(a) No person may operate any underground storage tank for
the purpose of storing any regulated substance identified or
listed under this article without registering with the director
and paying a registration fee for such underground storage tank.
(b) No person may install any underground storage tank after
the effective date of this article without first registering said
tank in a form and manner prescribed by the director.
§22-17-10. Financial responsibility.
The director shall promulgate rules, as provided in section
six of this article, containing requirements for maintaining
evidence of financial responsibility as deemed necessary and
desirable for taking reasonable corrective action and for
compensating third parties for bodily injury and property damage
caused by sudden and nonsudden accidental releases arising from
operating an underground storage tank. Such means of financial
responsibility may include, but not be limited to, insurance,
guarantee, surety bond, letter of credit, proof of assets or
qualification as a self-insurer. In promulgating rules under
this section, the director is authorized to specify policy or
other contractual terms, conditions or defenses which are
necessary or are unacceptable in establishing such evidence of
financial responsibility in order to effectuate the purposes of
this article.
§22-17-11. Performance standards for new underground storage
tanks.
(a) The director shall promulgate performance standards for
new underground storage tanks as provided in section six of this
article. The performance standards for new underground storage
tanks shall include, but not be limited to, design, construction,
installation, release detection and compatibility standards.
(b) New underground storage tank construction standards must
include at least the following requirements:
(1) That an underground storage tank will prevent releases
of regulated substances stored therein, which may occur as a
result of corrosion or structural failure, for the operational
life of the tank;
(2) That an underground storage tank will be cathodically
protected against corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive material or designed in
a manner to prevent the release or threatened release of stored
regulated substances; and
(3) That materials used in the construction or lining of an
underground storage tank are compatible with the regulated
substances to be stored therein.
§22-17-12. Confidentiality.
(a) Any records, reports or information obtained from any
persons under this article shall be available to the public,
except that upon a showing satisfactory to the director by any
person that records, reports or information, or a particular part
thereof, to which the director or any officer, employee, orrepresentative thereof has access under this section, if made
public, would divulge information entitled to protection under
Section 1905 of Title 18 of the United States Code, such
information or particular portion thereof is confidential in
accordance with the purposes of this section, except that such
record, report, document, or information may be disclosed to
other officers, employees, or authorized representatives of this
state implementing the provisions of this article.
(b) Any person who knowingly and willfully divulges or
discloses any information entitled to protection under this
section is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars, or imprisoned
in the county jail for not more than one year, or both fined and
imprisoned.
(c) In submitting data under this article, a person required
to provide such data may designate the data which he or she
believes is entitled to protection under this section and submit
such designated data separately from other data submitted under
this article. A designation under this subsection shall be made
in writing and in such manner as the director may prescribe.
§22-17-13. Inspections, monitoring and testing.
(a) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking any
corrective action or enforcing the provisions of this article,
any owner or operator of an underground storage tank shall, upon
request of the director, furnish information relating to suchtanks, their associated equipment and contents, conduct
reasonable monitoring or testing, permit the director or his or
her authorized representative at all reasonable times to have
access to, and to copy all records relating to such tanks and
permit the director or his or her authorized representative to
have access to the underground storage tank for corrective
action.
(b) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking corrective
action or enforcing the provisions of this article, the director
or his or her authorized representative may:
(1) Enter at reasonable times any establishment or other
place where an underground storage tank is located;
(2) Inspect and obtain samples from any person of any
regulated substances contained in such tank;
(3) Conduct monitoring or testing of the tanks, associated
equipment, contents or surrounding soils, air, surface, water or
groundwater; and
(4) Take corrective action as specified in this article.
Each such inspection shall be commenced and completed with
reasonable promptness.
§22-17-14. Corrective action for underground petroleum storage
tanks.
(a) Prior to the effective date of rules promulgated
pursuant to subdivision (9) or (10), subsection (b), section six
of this article, the director is authorized to:
(1) Require the owner or operator of an underground storage
tank to undertake corrective action with respect to any release
of petroleum from said tank when the director determines that
such corrective action shall be done properly and promptly by the
owner or operator if, in the judgment of the director, such
action is necessary to protect human health and the environment;
or
(2) Undertake corrective action with respect to any release
of petroleum into the environment from an underground storage
tank if, in the judgment of the director, such action is
necessary to protect human health and the environment.
The corrective action undertaken or required under this
subsection shall be such as may be necessary to protect human
health and the environment. The director shall use funds in the
leaking underground storage tank response fund established
pursuant to this article for payment of costs incurred for
corrective action taken under subparagraph (2) of this subsection
in the manner set forth in subsection (e), section twenty-one of
this article. The director shall give priority in undertaking
corrective actions under this subsection, and in issuing orders
requiring owners or operators to undertake such actions, to
releases of petroleum from underground storage tanks which pose
the greatest threat to human health and the environment and where
the director cannot identify a solvent owner or operator of the
tank who will undertake action properly.
(b) Following the effective date of rules promulgated undersubdivision (9) or (10), subsection (b), section six of this
article, all actions or orders of the director described in
subsection (a) of this section shall be in conformity with such
rules. Following such effective date the director may undertake
corrective action with respect to any release of petroleum into
the environment from an underground storage tank only if, in the
judgment of the director, such action is necessary to protect
human health and environment and one or more of the following
situations exists:
(1) If no person can be found within ninety days, or such
shorter period as may be necessary to protect human health and
the environment, who is an owner or operator of the tank
concerned, subject to such corrective action rules and capable of
carrying out such corrective action properly.
(2) A situation exists which requires prompt action by the
director under this subsection to protect human health and the
environment.
(3) Corrective action costs at a facility exceed the amount
of coverage required pursuant to the provisions of section ten of
this article and, considering the class or category of
underground storage tank from which the release occurred,
expenditures from the leaking underground storage tank response
fund are necessary to assure an effective corrective action.
(4) The owner or operator of the tank has failed or refused
to comply with an order of the director under this section or of
the environmental quality board under article one, chaptertwenty-two-b of this code to comply with the corrective action
rules.
(c) The director is authorized to draw upon the leaking
underground storage tank response fund in order to take action
under subdivision (1) or (2), subsection (b) of this section if
the director has made diligent good faith efforts to determine
the identity of the party or parties responsible for the release
or threatened release and:
(1) He or she is unable to determine the identity of the
responsible party or parties in a manner consistent with the need
to take timely corrective action; or
(2) The party or parties determined by the director to be
responsible for the release or threatened release have been
informed in writing of the director's determination and have been
requested by the director to take appropriate corrective action
but are unable or unwilling to take such action in a timely
manner.
(d) The written notice to a responsible party must inform
the responsible party that if that party is subsequently found
liable for releases pursuant to subsection (a) or (b) of this
section, he or she will be required to reimburse the leaking
underground storage tank response fund for the costs of the
investigation, information gathering and corrective action taken
by the director.
(e) If the director determines that immediate response to an
imminent threat to public health and welfare or the environmentis necessary to avoid substantial injury or damage to persons,
property or resources, corrective action may be taken pursuant to
subsections (a) and (b) of this section without the prior written
notice required by subdivision (2), subsection (c) of this
section. In such a case the director must give subsequent
written notice to the responsible party within fifteen days after
the action is taken describing the circumstances which required
the action to be taken without prior notice.
(f) As used in this section, the term "owner" does not
include any person who, without participating in the management
of an underground storage tank and otherwise not engaged in
petroleum production, refining or marketing, holds indicia of
ownership primarily to protect the person's security interest in
the tank.
§22-17-15. Administrative orders; injunctive relief; requests
for reconsideration.
(a) Whenever on the basis of any information, the director
determines that any person is in violation of any requirement of
this article, he or she may issue an order stating with
reasonable specificity the nature of the violation and requiring
compliance within a reasonable specified time period or the
director may commence a civil action in the circuit court of the
county in which the violation occurred or in the circuit court of
Kanawha county for appropriate relief, including a temporary or
permanent injunction. The director may, except as provided in
subsection (b) of this section, stay any order he or she issuesupon application, until the order is reviewed by the
environmental quality board.
(b) Any person issued an order may file a notice of request
for reconsideration with the director not more than seven days
from the issuance of such order. The notice of request for
reconsideration shall identify the order to be reconsidered and
shall set forth in detail the reasons for which reconsideration
is requested. The director shall grant or deny the request for
reconsideration within twenty days of the filing of the notice of
request of reconsideration.
§22-17-16. Civil penalties.
(a) Any violator who fails to comply with an order of the
director issued under subsection (a), section fifteen of this
article within the time specified in the order is liable for a
civil penalty of not more than twenty-five thousand dollars for
each day of continued noncompliance.
(b) Any owner who knowingly fails to register or knowingly
submits false information pursuant to this article is liable for
a civil penalty not to exceed ten thousand dollars for each tank
which is not registered or for which false information is
submitted.
(c) Any owner or operator of an underground storage tank who
fails to comply with any requirement or standard promulgated by
the director under section six of this article is subject to a
civil penalty not to exceed ten thousand dollars for each tank
for each day of violation.
§22-17-17. Public participation.
Any adversely affected person may intervene in any civil or
administrative proceeding under this article when such person
claims an interest relating to the property or transaction which
is the subject of the action and such person is so situated that
the disposition of the action may as a practical matter impair or
impede his or her ability to protect that interest.
§22-17-18. Appeal to environmental quality board.
Any person aggrieved or adversely affected by an order of
the director made and entered in accordance with the provisions
of this article may appeal to the environmental quality board,
pursuant to the provisions of article one, chapter twenty-two-b
of this code.
§22-17-19. Disclosures required in deeds and leases.
(a) The grantor in any deed or other instrument of
conveyance or any lessor in any lease or other instrument whereby
any real property is let for a period of time shall disclose in
such deed, lease or other instrument the fact that such property,
or the substrata of such property whether or not the grantor or
lessor is at time of such conveyance or lease the owner of such
substrata, contains an underground storage tank. The provisions
of this subsection only apply to those grantors or lessors who
owned or had an interest in the real property when the same or
the substrata thereof contained an underground storage tank which
was being actively used for storing any regulated substance or
who have actual knowledge or reason to believe that such realproperty or the substrata thereof contains an underground storage
tank.
(b) Any lessee of real estate or of any substratum
underlying said real estate who intends to install an underground
storage tank in the leased real estate or any substratum
underlying the same shall disclose in writing at the time of such
lease, or within thirty days prior to such installation, such
fact to the lessor of such real estate or substratum. Such
disclosure shall describe the proposed location upon said
property where the tank is to be located and all other
information required by the director.
§22-17-20. Appropriation of funds; underground storage tank
administrative fund.
(a) The director shall collect annual registration fees from
owners of underground storage tanks. The registration fee
collected under this section shall not exceed twenty-five dollars
per tank per year. All such registration fees and the net
proceeds of all fines, penalties and forfeitures collected under
this article including accrued interest shall be paid into the
state treasury into a special fund designated "the underground
storage tank administrative fund" to be used to defray the cost
of administering this article in accordance with rules
promulgated pursuant to section six of this article.
(b) The total fee assessed shall be sufficient to assure a
balance in the fund of not to exceed four hundred thousand
dollars at the beginning of each year.
(c) Any amount received pursuant to subsection (a) of this
section which exceeds the annual balance required in subsection
(b) of this section shall be deposited into the leaking
underground storage tank response fund established pursuant to
this article to be used for the purposes set forth therein.
(d) The net proceeds of all fines, penalties and forfeitures
collected under this article shall be appropriated as directed by
section five, article XII of the constitution of West Virginia.
For the purposes of this section, the net proceeds of such fines,
penalties and forfeitures are the proceeds remaining after
deducting therefrom those sums appropriated by the Legislature
for defraying the cost of administering this article. In making
the appropriation for defraying the cost of administering this
article, the Legislature shall first take into account the sums
included in such special fund prior to deducting such additional
sums as may be needed from the fines, penalties and forfeitures
collected pursuant to this article. At the end of each fiscal
year any unexpended balance of such collected fines, penalties,
forfeitures and registration fees shall not be transferred to the
general revenue fund but shall remain in the fund.
§22-17-21. Leaking underground storage tank response fund.
(a) Each underground petroleum storage tank owner within
this state shall pay an annual fee, if assessed by the director,
to establish a fund to assure adequate response to leaking
underground petroleum storage tanks. The fees assessed pursuant
to this section shall not exceed twenty-five dollars per tank peryear. The proceeds of such assessment shall be paid into the
state treasury into a special fund designated "the leaking
underground storage tank response fund", which is hereby
continued.
(b) Each owner of an underground petroleum storage tank
subject to a fee assessment under subsection (a) of this section
shall pay a fee based on the number of underground petroleum
storage tanks he or she owns. The director shall vary the fees
annually to a level necessary to produce a fund of at least seven
hundred fifty thousand dollars at the beginning of each calendar
year taking into account those amounts deposited in the fund
pursuant to subsection (c), section twenty of this article. In
no event shall the fees assessed in this section be set to
produce revenues exceeding two hundred fifty thousand dollars in
any year.
(c) When the unobligated balance of the leaking underground
storage tank response fund exceeds one million dollars at the end
of a calendar year, fee assessment under this section shall cease
until such time as the unobligated balance at the end of any year
is less than seven hundred fifty thousand dollars.
(d) At the end of each fiscal year, any unexpended balance
including accrued interest of such collected fees shall not be
transferred to the general revenue fund but shall remain in the
fund.
(e) The director is authorized to enter into agreements and
contracts and to expend the moneys in the fund for the followingpurposes:
(1) Responding to underground petroleum storage tank
releases when, based on readily available information, the
director determines that immediate action may prevent or mitigate
significant risk of harm to human health, safety or the
environment from regulated substances in situations for which no
federal funds are immediately available for such response,
cleanup or containment:
Provided, That the director shall apply
for and diligently pursue available federal funds for such
releases at the earliest possible time.
(2) Reimbursing any person for reasonable cleanup costs
incurred with the authorization of the director in responding to
an underground petroleum storage tank release.
(3) Reimbursing any person for reasonable costs incurred
with the authorization of the director responding to perceived,
potential or threatened releases from underground petroleum
storage tanks where response activities do not indicate that any
release has occurred.
(4) Financing the nonfederal share of the cleanup and site
reclamation activities pursuant to Subtitle I of the federal
Resource Conservation and Recovery Act, as amended, as well as
future operation and maintenance costs for these sites:
Provided, That no portion of the moneys in the leaking
underground storage tank response fund shall be used for
defraying the costs of administering this article.
(5) Financing the nonfederal share of costs incurred incompensating third parties, including payment of judgments, for
bodily injury and property damage, caused by release of petroleum
into the environment from an underground storage tank.
§22-17-22. Underground storage tank insurance fund.
(a) The director may establish an underground storage tank
insurance fund for the purpose of satisfying the financial
responsibility requirements established pursuant to section ten
of this article. In addition to the capitalization fee to be
assessed against all owners or operators of underground storage
tanks provided by subdivision (6), subsection (b), section six of
this article, the director shall promulgate rules establishing an
annual financial responsibility assessment to be assessed on and
paid by owners or operators of underground storage tanks who are
unable to obtain insurance or otherwise meet the financial
responsibility requirements established pursuant to section ten
of this article. Such assessments shall be paid into the state
treasury into a special fund designated "the underground storage
tank insurance fund".
(b) At the end of each fiscal year, any unexpended balance
of such assessment shall not be transferred to the general
revenue fund but shall remain in the underground storage tank
insurance fund.
§22-17-23. Duplicative enforcement prohibited.
No enforcement proceeding brought pursuant to this article may
be duplicated by an enforcement proceeding subsequently commenced
under some other article of this code with respect to the sametransaction or event unless such subsequent proceeding involves
the violation of a permit or permitting requirement of such other
article.
ARTICLE 18. HAZARDOUS WASTE MANAGEMENT ACT.
§22-18-1. Short title.
This article may be known and cited as the "Hazardous Waste
Management Act".
§22-18-2. Declaration of policy.
(a) The Legislature finds that:
(1) Continuing technological progress and increases in the
amount of manufacture and the abatement of air and water
pollution have resulted in ever increasing quantities of
hazardous wastes;
(2) The public health and safety and the environment are
threatened where hazardous wastes are not managed in an
environmentally sound manner;
(3) The knowledge and technology necessary for alleviating
adverse health, environmental and aesthetic impacts resulting
from current hazardous waste management and disposal practices
are generally available;
(4) The manufacture, refinement, processing, treatment and
use of coal, raw chemicals, ores, petroleum, gas and other
natural and synthetic products are activities that make a
significant contribution to the economy of this state; and
(5) The problem of managing hazardous wastes has become a
matter of statewide concern.
(b) Therefore, it is hereby declared that the purposes of
this article are:
(1) To protect the public health and safety, and the
environment from the effects of the improper, inadequate or
unsound management of hazardous wastes;
(2) To establish a program of regulation over the storage,
transportation, treatment and disposal of hazardous wastes;
(3) To assure the safe and adequate management of hazardous
wastes within this state; and
(4) To assume regulatory primacy through Subtitle C of the
Resource Conservation and Recovery Act.
§22-18-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one of this chapter;
(2) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking or placing of any hazardous waste into
or on any land or water so that such hazardous waste or any
constituent thereof may enter the environment or be emitted into
the air, or discharged into any waters, including groundwaters;
(3) "Division" means the division of environmental
protection;
(4) "Generation" means the act or process of producinghazardous waste materials;
(5) "Hazardous and Solid Waste Amendments of 1984" means the
federal Hazardous and Solid Waste Amendments of 1984 (P.L. 98-
616) amending the Resource Conservation and Recovery Act;
(6) "Hazardous waste" means a waste or combination of
wastes, which because of its quantity, concentration or physical,
chemical or infectious characteristics, may: (A) Cause, or
significantly contribute to, an increase in mortality or an
increase in serious irreversible, or incapacitating reversible,
illness; or (B) pose a substantial present or potential hazard to
human health or the environment when improperly treated, stored,
transported, disposed of or otherwise managed;
(7) "Hazardous waste fuel" means fuel produced from any
hazardous waste identified or listed pursuant to subdivision (2),
subsection (a), section six of this article, or produced from any
hazardous waste identified or listed pursuant to section six;
(8) "Hazardous waste management" means the systematic
control of the collection, source separation, storage,
transportation, processing, treatment, recovery and disposal of
hazardous wastes;
(9) "Land disposal" means any placement of hazardous waste
in a landfill, surface impoundment, waste pile, injection well,
land treatment facility, salt dome formation, salt bed formation,
or underground mine or cave;
(10) "Manifest" means the form used for identifying the
quantity, composition and the origin, routing and destination ofhazardous waste during its transportation from the point of
generation to the point of disposal, treatment or storage;
(11) "Person" means any individual, trust, firm, joint stock
company, public, private or government corporation, partnership,
association, state or federal agency, the United States
government, this state or any other state, municipality, county
commission or any other political subdivision of a state or any
interstate body;
(12) "Resource Conservation and Recovery Act" means the
federal Resource Conservation and Recovery Act of 1976, 90 Stat.
2806, as amended;
(13) "Storage" means the containment of hazardous waste,
either on a temporary basis or for a period of years, in such a
manner as not to constitute disposal of such hazardous waste;
(14) "Subtitle C" means Subtitle C of the Resource Conservation
and Recovery Act;
(15) "Treatment" means any method, technique or process,
including neutralization, designed to change the physical,
chemical or biological character or composition of any hazardous
waste so as to neutralize such waste or so as to render such
waste nonhazardous, safer for transport, amenable to recovery,
amenable to storage or reduced in volume. Such term includes any
activity or processing designed to change the physical form or
chemical composition of hazardous waste so as to render it
nonhazardous;
(16) "Waste" means any garbage, refuse, sludge from a wastetreatment plant, water supply treatment plant or air pollution
control facility and other discarded material including solid,
liquid, semisolid or contained gaseous material resulting from
industrial, commercial, mining and agricultural operations, and
from community activities, but does not include solid or
dissolved material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges
which are point sources subject to permits under Section 402 of
the federal Water Pollution Control Act, as amended, or source,
special nuclear or by-product material as defined by the federal
Atomic Energy Act of 1954, as amended.
§22-18-4. Designation of division of environmental protection
as the state hazardous waste management lead agency.
The division of environmental protection is hereby
designated as the hazardous waste management lead agency for this
state for purposes of Subtitle C of the Resource Conservation and
Recovery Act, and is hereby authorized to take all action
necessary or appropriate to secure to this state the benefits of
said legislation. In carrying out the purposes of this article,
the director is hereby authorized to cooperate with the federal
environmental protection agency and other agencies of the federal
government, this state and other states, and other interested
persons in all matters relating to hazardous waste management.
§22-18-5. Powers and duties of director; integration with other
acts; establishment of study of hazardous waste management.
(a) In addition to all other powers and duties prescribed inthis article or otherwise by law, and unless otherwise
specifically set forth in this article, the director shall
perform any and all acts necessary to carry out the purposes and
requirements of Subtitle C of the Resource Conservation and
Recovery Act.
(b) The director shall integrate all provisions of this
article for purposes of administration and enforcement and shall
avoid duplication to the maximum extent practicable, with the
appropriate provisions of: the public health laws in chapter
sixteen of this code; article sixteen-a, chapter nineteen of this
code; this chapter; and chapters twenty-two-b and twenty-two-c of
this code.
(c) The director may enter into any agreements, including
reimbursement for services rendered, contracts or cooperative
arrangements, under such terms and conditions as he or she deems
appropriate, with other state agencies, educational institutions
or other organizations and individuals as necessary to implement
the provisions of this article.
(d) The director shall cooperate with and may receive and
expend money from the federal government and other sources.
(e) The director shall: (1) Encourage, participate in and
conduct an ongoing investigation and analysis of methods,
incentives, technologies of source reduction, reuse, recycling or
recovery of potentially hazardous waste and a strategy for
encouraging the utilization or reduction of hazardous waste; and
(2) investigate the feasibility of operating an informationclearinghouse for hazardous wastes.
(f) The director shall provide for the continuing education
and training of appropriate division personnel in matters of
hazardous waste management.
§22-18-6. Promulgation of rules by director.
(a) The director has overall responsibility for the
promulgation of rules under this article. The director shall
promulgate the following rules, in consultation with the
department of health and human resources, the office of emergency
services, the public service commission, the state fire marshal,
the department of public safety, the division of highways, the
department of agriculture, and the environmental quality board.
In promulgating and revising such rules, the director shall
comply with the provisions of chapter twenty-nine-a of this code,
shall avoid duplication to the maximum extent practicable with
the appropriate provisions of the acts and laws set out in
subsection (b), section five of this article and shall be
consistent with but no more expansive in coverage nor more
stringent in effect than the rules and regulations promulgated by
the federal environmental protection agency pursuant to the
Resource Conservation and Recovery Act:
(1) Rules establishing a plan for the safe and effective
management of hazardous wastes within the state;
(2) Rules establishing criteria for identifying the
characteristics of hazardous waste, identifying the
characteristics of hazardous waste and listing particularhazardous wastes which are subject to the provisions of this
article:
Provided, That:
(A) Each waste listed below shall, except as provided in
paragraph (B) of this subdivision, be subject only to regulation
under other applicable provisions of federal or state law in lieu
of this article until proclamation by the governor finding that
at least six months have elapsed since the date of submission of
the applicable study required to be conducted under Section 8002
of the federal Solid Waste Disposal Act, as amended, and that
regulations have been promulgated with respect to such wastes in
accordance with Section 3001 (b)(3)(C) of the Resource
Conservation and Recovery Act, and finding in the case of the
wastes identified in subparagraph (iv) of this paragraph that the
regulation of such wastes has been authorized by an act of
Congress in accordance with Section 3001 (b)(2) of the Resource
Conservation and Recovery Act:
(i) Fly ash waste, bottom ash waste, slag waste and flue gas
emission control waste generated primarily from the combustion of
coal or other fossil fuels;
(ii) Solid waste from the extraction, beneficiation and
processing of ores and minerals, including phosphate rock and
overburden from the mining of uranium ore;
(iii) Cement kiln dust waste; and
(iv) Drilling fluids, produced waters and other wastes
associated with the exploration, development or production of
crude oil or natural gas or geothermal energy.
(B) Owners and operators of disposal sites for wastes listed
in paragraph (A) of this subdivision may be required by the
director through rule prescribed under authority of this section:
(i) As to disposal sites for such wastes which are to be
closed, to identify the locations of such sites through
surveying, platting or other measures, together with recordation
of such information on the public record, to assure that the
locations where such wastes are disposed of are known and can be
located in the future; and
(ii) To provide chemical and physical analysis and
composition of such wastes, based on available information, to be
placed on the public record;
(3) Rules establishing such standards applicable to
generators of hazardous waste identified or listed under this
article as may be necessary to protect public health and safety
and the environment, which standards shall establish requirements
respecting: (A) Record-keeping practices that accurately
identify the quantities of such hazardous waste generated, the
constituents thereof which are significant in quantity or in
potential harm to public health or the environment and the
disposition of such wastes; (B) labeling practices for any
containers used for the storage, transport or disposal of such
hazardous waste such as will identify accurately such waste; (C)
use of appropriate containers for such hazardous waste; (D)
furnishing of information on the general chemical composition of
such hazardous wastes to persons transporting, treating, storingor disposing of such wastes; (E) use of a manifest system and any
other reasonable means necessary to assure that all such
hazardous waste generated is designated for treatment, storage or
disposal in, and arrives at treatment, storage or disposal
facilities (other than facilities on the premises where the waste
is generated) with respect to which permits have been issued
which are required: (i) By this article or any rule required by
this article to be promulgated; (ii) by Subtitle C of the
Resource Conservation and Recovery Act; (iii) by the laws of any
other state which has an authorized hazardous waste program
pursuant to Section 3006 of the Resource Conservation and
Recovery Act; or (iv) by Title I of the federal Marine
Protection, Research and Sanctuaries Act; and (F) the submission
of reports to the director at such times as the director deems
necessary setting out the quantities of hazardous wastes
identified or listed under this article that the generator has
generated during a particular time period, and the disposition of
all such hazardous waste;
(4) Rules establishing such performance standards applicable
to owners and operators of facilities for the treatment, storage
or disposal of hazardous waste identified or listed under this
article as may be necessary to protect public health and safety
and the environment, which standards shall, where appropriate,
distinguish in such standards between requirements appropriate
for new facilities and for facilities in existence on the date of
promulgation of such rules and shall include, but need not belimited to, requirements respecting: (A) Maintaining records of
all hazardous wastes identified or listed under this article
which are treated, stored or disposed of, as the case may be, and
the manner in which such wastes were treated, stored or disposed
of; (B) satisfactory reporting, monitoring and inspection and
compliance with the manifest system referred to in subdivision
(3) of subsection (a) of this section; (C) treatment, storage or
disposal of all such waste received by the facility pursuant to
such operating methods, techniques and practices as may be
satisfactory to the director; (D) the location, design and
construction of such hazardous waste treatment, disposal or
storage facilities; (E) contingency plans for effective action to
minimize unanticipated damage from any treatment, storage or
disposal of any such hazardous waste; (F) the maintenance of
operation of such facilities and requiring such additional
qualifications as to ownership, continuity of operation, training
for personnel and financial responsibility as may be necessary or
desirable; however, no private entity may be precluded by reason
of criteria established under this subsection from the ownership
or operation of facilities providing hazardous waste treatment,
storage or disposal services where such entity can provide
assurances of financial responsibility and continuity of
operation consistent with the degree and duration of risks
associated with the treatment, storage or disposal of specified
hazardous waste; and (G) compliance with the requirements of
section eight of this article respecting permits for treatment,storage or disposal;
(5) Rules specifying the terms and conditions under which
the chief shall issue, modify, suspend, revoke or deny such
permits as may be required by this article;
(6) Rules for the establishment and maintenance of records;
the making of reports; the taking of samples and the performing
of tests and analyses; the installing, calibrating, operating and
maintaining of monitoring equipment or methods; and the providing
of any other information as may be necessary to achieve the
purposes of this article;
(7) Rules establishing standards and procedures for the
certification of personnel at hazardous waste treatment, storage
or disposal facilities or sites.
(8) Rules for public participation in the implementation of
this article;
(9) Rules establishing procedures and requirements for the
use of a manifest during the transport of hazardous wastes;
(10) Rules establishing procedures and requirements for the
submission and approval of a plan, applicable to owners or
operators of hazardous waste storage, treatment and disposal
facilities, as necessary or desirable for closure of the
facility, post-closure monitoring and maintenance, sudden and
accidental occurrences and nonsudden and accidental occurrences;
(11) Rules establishing a schedule of fees to recover the
costs of processing permit applications and permit renewals;
(12) Rules , including exemptions and variances, asappropriate: (A) Establishing standards and prohibitions
relating to the management of hazardous waste by land disposal
methods; (B) establishing standards and prohibitions relating to
the land disposal of liquid hazardous wastes or free liquids
contained in hazardous wastes and any other liquids which are not
hazardous wastes; (C) establishing standards applicable to
producers, distributors or marketers of hazardous waste fuels;
and (D) as are otherwise necessary to allow the state to assume
primacy for the administration of the federal hazardous waste
management program under the Resource Conservation and Recovery
Act and in particular, the Hazardous and Solid Waste Amendments
of 1984:
Provided, That such rules authorized by this
subdivision shall be consistent with but no more expansive in
coverage nor more stringent in effect than rules and regulations
promulgated by the federal environmental protection agency under
Subtitle C;
(13) Rules:
(A) Establishing air pollution performance standards and
permit requirements and procedures as may be necessary to comply
with the requirements of this article and in accordance with the
provisions of article five of this chapter. Such permits shall
be in addition to those permits required by section eight of this
article;
(B) for the monitoring and control of air emissions at hazardous
waste treatment storage and disposal facilities, including, but
not limited to, open tanks, surface impoundments and landfills,as may be necessary to protect human health and the environment;
and
(C) establishing standards applicable to the owners and
operators of facilities which burn, for purposes of energy
recovery, any fuel produced from any hazardous waste identified
or listed pursuant to subdivision (2), subsection (a) of this
section or which is produced from any hazardous waste identified
or listed pursuant to said subdivision and any other material, as
may be necessary to protect human health and the environment:
Provided, That such legislative rules shall be consistent with
Subtitle C.
Any person aggrieved or adversely affected by an order of the
director made and entered to implement or enforce the rules
required by this subdivision or by the failure or refusal of said
director to act within a reasonable time on an application for a
permit or by the issuance or denial of or by the terms and
conditions of a permit granted under the provisions of the rules
required by this subdivision, may appeal to the air quality board
in accordance with the procedure set forth in article one,
chapter twenty-two-b of this code, and orders made and entered by
said board are subject to judicial review in accordance with the
procedures set forth in said article, except that as to cases
involving an order granting or denying an application for a
permit, revoking or suspending a permit or approving or modifying
the terms and conditions of a permit or the failure to act within
a reasonable time on an application for a permit, the petitionfor judicial review shall be filed in the circuit court of
Kanawha county.
(14) Rules developing performance standards and other
requirements under this section as may be necessary to protect
public health and the environment from any hazard associated with
the management of used oil and recycled oil. The director shall
ensure that such rules do not discourage the recovery or
recycling of used oil. For these purposes, "used oil" shall mean
any oil that has been refined from crude oil, or any synthetic
oil, that has been used and as a result of such use is
contaminated by physical or chemical impurities.
(15) Such other rules as are necessary to effectuate the
purposes of this article.
(b) The rules required by this article to be promulgated
shall be reviewed and, where necessary, revised not less
frequently than every three years. Additionally, the rules
required to be promulgated by this article shall be revised, as
necessary, within two years of the effective date of any
amendment of the Resource Conservation and Recovery Act and
within six months of the effective date of any adoption or
revision of rules required to be promulgated by the Resource
Conservation and Recovery Act.
(c) Notwithstanding any other provision in this article, the
director shall not promulgate rules which are more properly
within the jurisdiction and expertise of any of the agencies
empowered with rule-making authority pursuant to section seven ofthis article.
§22-18-7. Authority and jurisdiction of other state agencies.
(a) The commissioner of the division of highways, in
consultation with the director, and avoiding inconsistencies with
and avoiding duplication to the maximum extent practicable with
legislative rules required to be promulgated pursuant to this
article by the director or any other rule-making authority, and
in accordance with the provisions of chapter twenty-nine-a of
this code, shall promulgate, as necessary, legislative rules
governing the transportation of hazardous wastes by vehicle upon
the roads and highways of this state. Such legislative rules
shall be consistent with applicable rules issued by the federal
department of transportation and consistent with this article:
Provided, That such legislative rules apply to the interstate
transportation of hazardous waste within the boundaries of this
state, as well as the intrastate transportation of such waste.
In lieu of those enforcement and inspection powers conferred
upon the commissioner of the division of highways elsewhere by
law with respect to the transportation of hazardous waste, the
commissioner of the division of highways has the same enforcement
and inspection powers as those granted to the director, or
authorized representative or agent, or any authorized employee or
agent of the division, as the case may be, under sections twelve,
thirteen, fourteen, fifteen, sixteen, seventeen and eighteen of
this article. The limitations of this subsection do not affect
in any way the powers of the division of highways with respect toweight enforcement.
(b) The public service commission, in consultation with the
director, and avoiding inconsistencies with and avoiding
duplication to the maximum extent practicable with rules required
to be promulgated pursuant to this article by the director or any
other rule-making authority, and in accordance with the
provisions of chapter twenty-nine-a of this code, shall
promulgate, as necessary, rules governing the transportation of
hazardous wastes by railroad in this state. Such rules shall be
consistent with applicable rules and regulations issued by the
federal department of transportation and consistent with this
article:
Provided, That such rules apply to the interstate
transportation of hazardous waste within the boundaries of this
state, as well as the intrastate transportation of such waste.
In lieu of those enforcement and inspection powers conferred
upon the public service commission elsewhere by law with respect
to the transportation of hazardous waste, the public service
commission has the same enforcement and inspection powers as
those granted to the director or authorized representative or
agent or any authorized employee or agent of the division, as the
case may be, under sections twelve, thirteen, fourteen, fifteen,
sixteen, seventeen and eighteen of this article.
(c) The rules required to be promulgated pursuant to
subsections (a) and (b) of this section apply equally to those
persons transporting hazardous wastes generated by others and to
those transporting hazardous wastes they have generatedthemselves or combinations thereof. Such rules shall establish
such standards, applicable to transporters of hazardous waste
identified or listed under this article, as may be necessary to
protect public health, safety and the environment. Such
standards shall include, but need not be limited to, requirements
respecting: (A) Recordkeeping concerning such hazardous waste
transported, and its source and destination; (B) transportation
of such waste only if properly labeled; (C) compliance with the
manifest system referred to in subdivision (3), subsection (a),
section six of this article; and (D) transportation of all such
hazardous waste only to the hazardous waste treatment, storage or
disposal facilities which the shipper designates on the manifest
form to be a facility holding a permit issued under: (1) This
article or any rule required by this article to be promulgated;
(2) Subtitle C; (3) the laws of any other state which has an
authorized hazardous waste program pursuant to section 3006 of
the Resource Conservation and Recovery Act; or (4) Title I of the
Federal Marine Protection, Research and Sanctuaries Act.
(d) The secretary of the department of health and human
resources, in consultation with the director, and avoiding
inconsistencies with and avoiding duplication to the maximum
extent practicable with legislative rules required to be
promulgated pursuant to this article by the director or any other
rule-making authority, shall promulgate rules pursuant to article
five-j, chapter twenty of this code. The secretary of the
department of health and human resources shall have the sameenforcement and inspection powers as those granted to the
director or agent or any authorized employee or agent of the
division, as the case may be, under sections twelve, thirteen,
fourteen, fifteen, sixteen, seventeen and eighteen of this
article, and in addition thereto, the department of health and
human resources shall have those inspection and enforcement
powers with respect to hazardous waste with infectious
characteristics as provided for in article five-j, chapter twenty
of this code.
(e) The environmental quality board, in consultation with
the director, and in accordance with the provisions of chapter
twenty-nine-a of this code, shall, as necessary, promulgate water
quality standards governing discharges into the waters of this
state of hazardous waste resulting from the treatment, storage or
disposal of hazardous waste as may be required by this article.
The standards shall be consistent with this article.
(f) All legislative rules promulgated pursuant to this
section shall be consistent with rules and regulations
promulgated by the federal environmental protection agency
pursuant to the resource conservation and recovery act.
(g) The director shall submit written comments to the
legislative rule-making review committee regarding all
legislative rules promulgated pursuant to this article.
§22-18-8. Permit process; undertaking activities without a
permit.
(a) No person may own, construct, modify, operate or closeany facility or site for the treatment, storage or disposal of
hazardous waste identified or listed under this article, nor
shall any person store, treat or dispose of any such hazardous
waste without first obtaining a permit from the director for such
facility, site or activity and all other permits as required by
law. Such permit shall be issued, after public notice and
opportunity for public hearing, upon such reasonable terms and
conditions as the director may direct if the application,
together with all supporting information and data and other
evidence establishes that the construction, modification,
operation or closure, as the case may be, of the hazardous waste
facility, site or activity will not violate any provisions of
this article or any of the rules promulgated by the director as
required by this article:
Provided, That in issuing the permits
required by this subsection, the director shall not regulate
those aspects of a hazardous waste treatment, storage or disposal
facility which are the subject of the permitting or licensing
requirements of: (1) Section seven of this article, and which
need not be regulated in order for the director to perform his or
her duties under this article; or (2) subdivision (13),
subsection (a), section six of this article, which need not be
regulated under any other provision of this article.
(b) The director shall prescribe a form of application for
all permits issued by the director.
(c) The director may require a plan for the closure of such
facility or site to be submitted along with an application for apermit which plan for closure shall comply in all respects with
the requirements of this article and any rules promulgated
hereunder. Such plan of closure is subject to modification upon
application by the permit holder to the director and approval of
such modification by the director.
(d) An environmental analysis shall be submitted with the
permit application for all hazardous waste treatment, storage or
disposal facilities which are major facilities as that term may
be defined by rules promulgated by the director:
Provided, That
facilities in existence on the nineteenth day of November, one
thousand nine hundred eighty, need not comply with this
subsection. Such environmental analysis shall contain
information of the type, quality and detail that will permit
adequate consideration of the environmental, technical and
economic factors involved in the establishment and operation of
such facilities:
(1) The portion of the applicant's environmental analysis
dealing with environmental assessments shall contain, but not be
limited to:
(A) The potential impact of the method and route of
transportation of hazardous waste to the site and the potential
impact of the establishment and operation of such facilities on
air and water quality, existing land use, transportation and
natural resources in the area affected by such facilities;
(B) A description of the expected effect of such facilities;
and
(C) Recommendations for minimizing any adverse impact.
(2) The portion of the applicant's environmental analysis
dealing with technical and economic assessments shall contain,
but not be limited to:
(A) Detailed descriptions of the proposed site and facility,
including site location and boundaries and facility purpose,
type, size, capacity and location on the site and estimates of
the cost and charges to be made for material accepted, if any;
(B) Provisions for managing the site following cessation of
operation of the facility; and
(C) Qualifications of owner and operation, including a
description of the applicant's prior experience in hazardous
waste management operations.
(e) Any person undertaking, without a permit, any of the
activities for which a permit is required under this section or
under section seven of this article, or any person violating any
term or condition under which a permit has been issued pursuant
to this section or pursuant to section seven of this article, is
subject to the enforcement procedures of this article.
(f) Notwithstanding any provision to the contrary in
subsections (a) through (e) of this section or section seven of
this article, any surface coal mining and reclamation operation
that has a permit covering any coal mining wastes or overburden
which has been issued or approved under article three of this
chapter, shall be considered to have all necessary permits issued
pursuant to this article with respect to the treatment, storageor disposal of such wastes or overburden. Rules promulgated
under this article are not applicable to treatment, storage or
disposal of coal mining wastes and overburden which are covered
by such a permit.
§22-18-9. Corrective action.
(a) All permits issued after the date the state is delegated
authority by the federal environmental protection agency to
administer the portion of the federal hazardous waste program
covered under the Hazardous and Solid Waste Amendments of 1984
shall contain conditions requiring corrective action for all
releases of hazardous waste or constituents from any solid waste
management unit at a treatment, storage or disposal facility
seeking a permit under this article regardless of the time at
which waste was placed in such unit. Permits issued under this
article shall contain schedules of compliance for such corrective
action (where such corrective action cannot be completed prior to
issuance of the permit) and assurances of financial
responsibility for completing such corrective action.
(b) The director shall amend the standards under subdivision
(4), subsection (a), section six of this article, regarding
corrective action required at facilities for the treatment,
storage, or disposal of hazardous waste listed or identified in
rules promulgated pursuant to subdivision (2) of said subsection,
to require that corrective action be taken beyond the facility
boundary where necessary to protect human health and the
environment unless the owner or operator of the facilityconcerned demonstrates to the satisfaction of the director that,
despite the owner or operator's best efforts, the owner or
operator was unable to obtain the necessary permission to
undertake such action. Such rules shall take effect immediately
upon promulgation, and shall apply to:
(1) All facilities operating under permits issued under
subdivision (4), subsection (a), section six of this article; and
(2) All landfills, surface impoundments and waste pile units
(including any new units, replacement of existing units or
lateral expansions of existing units) which receive hazardous
waste after the twenty-sixth day of July, one thousand nine
hundred eighty-two. Pending promulgation of such rules the
director shall issue corrective action orders for facilities
referred to in subdivisions (1) and (2) above on a case-by-case
basis consistent with the purposes of this subsection.
§22-18-10. Public participation in permit process.
Before the issuing of a permit to any person with respect to
any facility for the treatment, storage or disposal of hazardous
waste under section seven or eight of this article, the director
or other permit issuing authority shall:
(a) Cause to be published as a Class I-O legal advertisement
in a newspaper of general circulation, and the publication area
is the county wherein the real estate or greater portion thereof
is situate, and broadcast over local radio stations notice of the
director's or other permit issuing authority's intention to issue
such permit; and
(b) Transmit written notice of the director's or other
permit issuing authority's intention to issue such permit to each
unit of local government having jurisdiction over the area in
which such facility is proposed to be located and to each state
agency having any authority under state law with respect to the
construction or operation of such facility.
If within forty-five days the director or other permit
issuing authority receives written notice of opposition to the
chief's or other permit issuing authority's intention to issue
such permit and a request for a hearing, or if the chief or other
permit issuing authority determines on his or her own initiative,
to have a hearing he or she shall hold an informal public hearing
(including an opportunity for presentation of written and oral
views) on whether he or she should issue a permit for the
proposed facility. Whenever possible the chief or other permit
issuing authority shall schedule such hearing at a location
convenient to the nearest population center to such proposed
facility and give notice in the aforementioned manner of the
date, time and subject matter of such hearing.
§22-18-11. Transition program for existing facilities.
Any person who owns or operates a facility required to have
any permit under this article, which facility was in existence on
the ninth day of July, one thousand nine hundred eighty-one,
shall be treated as having been issued such permit until such
time as final administrative disposition is made with respect to
an application for such permit:
Provided, That on said date suchfacility is operating and continues to operate in compliance with
the interim status requirement of the federal environmental
protection agency established pursuant to section 3005 of the
federal Solid Waste Disposal Act, as amended, if applicable, and
in such a manner as will not cause or create a substantial risk
of a health hazard or public nuisance or a significant adverse
effect upon the environment:
Provided, however, That the owner
or operator of such facility shall make a timely and complete
application for such permit in accordance with rules promulgated
pursuant to this article specifying procedures and requirements
for obtaining such permit.
§22-18-12. Confidential information.
Information obtained by any agency under this article shall
be available to the public unless the director certifies such
information to be confidential. The director may make such
certification where any person shows, to the satisfaction of the
director, that the information or parts thereof, if made public,
would divulge methods, processes or activities entitled to
protection as trade secrets. Nothing in this section may be
construed as limiting the disclosure of information by the
division to any officer, employee or authorized representative of
the state or federal government concerned with effecting the
purposes of this article.
Any person who knowingly and willfully divulges or discloses
any information entitled to protection under this section is
guilty of a misdemeanor, and, upon conviction thereof, shall befined not more than five thousand dollars, or imprisoned in the
county jail for not more than six months, or both fined and
imprisoned.
§22-18-13. Inspections; right of entry; sampling; reports and
analyses; subpoenas.
(a) The director or any authorized representative, employee
or agent of the division, upon the presentation of proper
credentials and at reasonable times, may enter any building,
property, premises, place, vehicle or permitted facility where
hazardous wastes are or have been generated, treated, stored,
transported or disposed of for the purpose of making an
investigation with reasonable promptness to ascertain the
compliance by any person with the provisions of this article or
the rules promulgated by the director or permits issued by the
director hereunder. Nothing contained in this section eliminates
any obligation to follow any process that may be required by law.
(b) The director or his or her authorized representative,
employee or agent shall make periodic inspections at every
permitted facility as necessary to effectively implement and
enforce the requirements of this article or the rules promulgated
by the director or permits issued by the director hereunder.
After an inspection is made, a report shall be prepared and filed
with the director and a copy of such inspection report shall be
promptly furnished to the person in charge of such building,
property, premises, place, vehicle or facility. Such inspection
reports shall be available to the public in accordance with theprovisions of article one, chapter twenty-nine-b of this code.
(c) Whenever the director has cause to believe that any
person is in violation of any provision of this article, any
condition of a permit issued by the director, any order or any
rule promulgated by the director under this article, he or she
shall immediately order an inspection of the building, property,
premises, place, vehicle or permitted facility at which the
alleged violation is occurring.
(d) The director or any authorized representative, employee
or agent of the division may, upon presentation of proper
credentials and at reasonable times, enter any establishment,
building, property, premises, vehicle or other place maintained
by any person where hazardous wastes are being or have been
generated, transported, stored, treated or disposed of to inspect
and take samples of wastes, soils, air, surface water and
groundwater and samples of any containers or labelings for such
wastes. In taking such samples, the division may utilize such
sampling methods as it determines to be necessary, including, but
not limited to, soil borings and monitoring wells. If the
representative, employee or agent obtains any such samples, prior
to leaving the premises, he or she shall give to the owner,
operator or agent in charge a receipt describing the sample
obtained and, if requested, a portion of each such sample equal
in volume or weight to the portion retained. The division shall
promptly provide a copy of any analysis made to the owner,
operator or agent in charge.
(e) Upon presentation of proper credentials and at
reasonable times, the director or any authorized representative,
employee or agent of the division shall be given access to all
records relating to the generation, transportation, storage,
treatment or disposal of hazardous wastes in the possession of
any person who generates, stores, treats, transports, disposes
of, or otherwise handles or has handled such waste, the director
or an authorized representative, employee or agent shall be
furnished with copies of all such records or given the records
for the purpose of making copies. If the director, upon
inspection, investigation or through other means, observes or
learns of a violation or probable violation of this article, he
or she is authorized to issue subpoenas and subpoenas duces tecum
and to order the attendance and testimony of witnesses and to
compel the production of any books, papers, documents, manifests
and other physical evidence pertinent to such investigation or
inspection.
§22-18-14. Monitoring, analysis and testing.
(a) If the director determines, upon receipt of any
information, that: (1) The presence of any hazardous waste at a
facility or site at which hazardous waste is, or has been,
stored, treated or disposed of; or (2) the release of any such
waste from such facility or site may present a substantial hazard
to human health or the environment, he or she may issue an order
requiring the owner or operator of such facility or site to
conduct such monitoring, testing, analysis and reporting withrespect to such facility or site as the director deems reasonable
to ascertain the nature and extent of such hazard.
(b) In the case of any facility or site not in operation at
the time a determination is made under subsection (a) of this
section with respect to the facility or site, if the director
finds that the owner of such facility or site could not
reasonably be expected to have actual knowledge of the presence
of hazardous waste at such facility or site and of its potential
for release, he or she may issue an order requiring the most
recent previous owner or operator of such facility or site who
could reasonably be expected to have such actual knowledge to
carry out the actions referred to in said subsection.
(c) An order under subsection (a) or (b) of this section
shall require the person to whom such order is issued to submit
to the director within thirty days from the issuance of such
order a proposal for carrying out the required monitoring,
testing, analysis and reporting. The director may, after
providing such person with an opportunity to confer with the
director respecting such proposal, require such person to carry
out such monitoring, testing, analysis and reporting in
accordance with such proposal, and such modifications in such
proposal as the director deems reasonable to ascertain the nature
and extent of the hazard.
(d) The following duties shall be carried out by the
director:
(1) If the director determines that no owner or operatorreferred to in subsection (a) or (b) of this section is able to
conduct monitoring, testing, analysis or reporting satisfactory
to the director, if the director deems any such action carried
out by an owner or operator to be unsatisfactory or if the
director cannot initially determine that there is an owner or
operator referred to in subsection (a) or (b) of this section who
is able to conduct such monitoring, testing, analysis or
reporting, he or she may conduct monitoring, testing or analysis
(or any combination thereof) which he or she deems reasonable to
ascertain the nature and extent of the hazard associated with the
site concerned, or authorize a state or local authority or other
person to carry out any such action, and require, by order, the
owner or operator referred to in subsection (a) or (b) of this
section to reimburse the director or other authority or person
for the costs of such activity.
(2) No order may be issued under this subsection requiring
reimbursement of the costs of any action carried out by the
director which confirms the results of the order issued under
subsection (a) or (b) of this section.
(e) If the monitoring, testing, analysis and reporting
conducted pursuant to this section indicates that a potential
hazard to human health or the environment may or does exist, the
director may issue an appropriate order requiring that the hazard
or risk of hazard be eliminated.
(f) The director may commence a civil action against any
person who fails or refuses to comply with any order issued underthis section. Such action shall be brought in the circuit court
in which the defendant is located, resides or is doing business.
Such court has jurisdiction to require compliance with such order
and to assess a civil penalty of not to exceed five thousand
dollars for each day during which such failure or refusal occurs.
§22-18-15. Enforcement orders; hearings.
(a) If the director, upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, any permit, order or rules
issued or promulgated hereunder, he or she may:
(1) Issue an order stating with reasonable specificity the
nature of the violation and requiring compliance immediately or
within a specified time. An order under this section includes,
but is not limited to, any or all of the following: Orders
suspending, revoking or modifying permits, orders requiring a
person to take remedial action or cease and desist orders;
(2) Seek an injunction in accordance with subsection (c) of
section seventeen of this article;
(3) Institute a civil action in accordance with subsection
(c) of section seventeen of this article; or
(4) Request the attorney general, or the prosecuting
attorney of the county in which the alleged violation occurred,
to bring a criminal action in accordance with section sixteen of
this article.
(b) Any person issued a cease and desist order may file a
notice of request for reconsideration with the director not morethan seven days from the issuance of such order and shall have a
hearing before the director contesting the terms and conditions
of such order within ten days of the filing of such notice of a
request for reconsideration. The filing of a notice of request
for reconsideration does not stay or suspend the execution or
enforcement of such cease and desist order.
§22-18-16. Criminal penalties.
(a) Any person who knowingly: (1) Transports any hazardous
waste identified or listed under this article to a facility which
does not have a permit required by this article, Section 3005 of
the Federal Solid Waste Disposal Act, as amended, the laws of any
other state which has an authorized hazardous waste program
pursuant to Section 3006 of the federal Solid Waste Disposal Act,
as amended, or Title I of the federal Marine Protection, Research
and Sanctuaries Act; or (2) treats, stores or disposes of any
such hazardous waste either: (A) Without having obtained a
permit required by this article, or by Title I of the federal
Marine Protection, Research and Sanctuaries Act, or by Section
3005 or 3006 of the federal Solid Waste Disposal Act, as amended;
or (B) in knowing violation of a material condition or
requirement of such permit, is guilty of a felony, and, upon
conviction thereof, shall be fined not to exceed fifty thousand
dollars for each day of violation or confined in the penitentiary
not less than one nor more than two years, or both such fine and
imprisonment or, in the discretion of the court, be confined in
jail not more than one year in addition to the above fine.
(b) Any person who knowingly: (1) Makes any false material
statement or representation in any application, label, manifest,
record, report, permit or other document filed, maintained or
used for purposes of compliance with this article; or (2)
generates, stores, treats, transports, disposes of or otherwise
handles any hazardous waste identified or listed under this
article (whether such activity took place before or takes place
after the effective date of this article) and who knowingly
destroys, alters or conceals any record required to be maintained
under rules promulgated by the director pursuant to this article,
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not to exceed twenty-five thousand dollars, or sentenced
to imprisonment for a period not to exceed one year, or both
fined and sentenced to imprisonment for each violation.
(c) Any person convicted of a second or subsequent violation
of subsections (a) and (b) of this section, is guilty of a
felony, and, upon such conviction, shall be confined in the
penitentiary not less than one nor more than three years, or
fined not more than fifty thousand dollars for each day of
violation, or both such fine and imprisonment.
(d) Any person who knowingly transports, treats, stores or
disposes of any hazardous waste identified or listed pursuant to
this article in violation of subsection (a) of this section, or
having applied for a permit pursuant to subdivision (13),
subsection (a), section six or sections seven and eight of this
article, and knowingly either: (1) Fails to include in a permitapplication any material information required pursuant to this
article, or rules promulgated hereunder; or (2) fails to comply
with applicable interim status requirements as provided in
section eleven of this article and who thereby exhibits an
unjustified and inexcusable disregard for human life or the
safety of others and he or she thereby places another person in
imminent danger of death or serious bodily injury, is guilty of
a felony, and, upon conviction thereof, shall be fined not more
than two hundred fifty thousand dollars or imprisoned not less
than one year nor more than four years or both such fine and
imprisonment.
(e) As used in subsection (d) of this section, the term
"serious bodily injury" means:
(1) Bodily injury which involves a substantial risk of
death;
(2) Unconsciousness;
(3) Extreme physical pain;
(4) Protracted and obvious disfigurement; or
(5) Protracted loss or impairment of the function of a
bodily member, organ or mental faculty.
§22-18-17. Civil penalties and injunctive relief.
(a) (1) Any person who violates any provision of this
article, any permit or any rule or order issued pursuant to this
article is subject to a civil administrative penalty, to be
levied by the director, of not more than seventy-five hundred
dollars for each day of such violation, not to exceed a maximumof twenty-two thousand five hundred dollars. In assessing any
such penalty, the director shall take into account the
seriousness of the violation and any good faith efforts to comply
with applicable requirements as well as any other appropriate
factors as may be established by the director by rules
promulgated pursuant to this article and article three, chapter
twenty-nine-a of this code. No assessment shall be levied
pursuant to this subsection until after the alleged violator has
been notified by certified mail or personal service. The notice
shall include a reference to the section of the statute, rule,
order or statement of permit conditions that was allegedly
violated, a concise statement of the facts alleged to constitute
the violation, a statement of the amount of the administrative
penalty to be imposed and a statement of the alleged violator's
right to an informal hearing. The alleged violator has twenty
calendar days from receipt of the notice within which to deliver
to the director a written request for an informal hearing. If no
hearing is requested, the notice becomes a final order after the
expiration of the twenty-day period. If a hearing is requested,
the director shall inform the alleged violator of the time and
place of the hearing. The director may appoint an assessment
officer to conduct the informal hearing and then make a written
recommendation to the director concerning the assessment of a
civil administrative penalty. Within thirty days following the
informal hearing, the director shall issue and furnish to the
violator a written decision, and the reasons therefor, concerningthe assessment of a civil administrative penalty. Within thirty
days after notification of the director's decision, the alleged
violator may request a formal hearing before the environmental
quality board in accordance with the provisions of article one,
chapter twenty-two-b of this code. The authority to levy an
administrative penalty is in addition to all other enforcement
provisions of this article and the payment of any assessment does
not affect the availability of any other enforcement provision in
connection with the violation for which the assessment is levied:
Provided, That no combination of assessments against a violator
under this section shall exceed twenty-five thousand dollars per
day of each such violation:
Provided, however, That any
violation for which the violator has paid a civil administrative
penalty assessed under this section shall not be the subject of
a separate civil penalty action under this article to the extent
of the amount of the civil administrative penalty paid. All
administrative penalties shall be levied in accordance with rules
issued pursuant to subsection (a) of section six of this article.
The net proceeds of assessments collected pursuant to this
subsection shall be deposited in the hazardous waste emergency
response fund established pursuant to section three, article
nineteen of this chapter.
(2) No assessment levied pursuant to subdivision (1),
subsection (a) above becomes due and payable until the procedures
for review of such assessment as set out in said subsection have
been completed.
(b) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
is subject to a civil penalty not to exceed twenty-five thousand
dollars for each day of such violation, which penalty shall be
recovered in a civil action either in the circuit court wherein
the violation occurs or in the circuit court of Kanawha county.
(c) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any permit, rule or order issued pursuant to this
article. In seeking an injunction, it is not necessary for the
director to post bond nor to allege or prove at any stage of the
proceeding that irreparable damage will occur if the injunction
is not issued or that the remedy at law is inadequate. An
application for injunctive relief or a civil penalty action under
this section may be filed and relief granted notwithstanding the
fact that all administrative remedies provided for in this
article have not been exhausted or invoked against the person or
persons against whom such relief is sought.
(d) Upon request of the director, the attorney general, or
the prosecuting attorney of the county in which the violation
occurs, shall assist the director in any civil action under this
section.
(e) In any action brought pursuant to the provisions of this
section, the state, or any agency of the state which prevails,
may be awarded costs and reasonable attorney's fees.
§22-18-18. Imminent and substantial hazards; orders; penalties;
hearings.
(a) Notwithstanding any provision of this article to the
contrary, the director, upon receipt of information, or upon
observation or discovery that the handling, storage,
transportation, treatment or disposal of any hazardous waste may
present an imminent and substantial endangerment to public
health, safety or the environment, may:
(1) Request the attorney general or the appropriate
prosecuting attorney to commence an action in the circuit court
of the county in which the hazardous condition exists to
immediately restrain any person contributing to such handling,
storage, transportation, treatment or disposal to stop such
handling, storage, transportation, treatment or disposal or to
take such other action as may be necessary; or
(2) Take other action under this section including, but not
limited to, issuing such orders as may be necessary to protect
public health and the environment.
(b) Any person who willfully violates, or fails or refuses
to comply with, any order of the director under subsection (a) of
this section may, in an action brought in the appropriate circuit
court to enforce such orders, be fined not more than five
thousand dollars for each day in which such violation occurs or
such failure to comply continues.
§22-18-19. Citizen suits; petitions for rulemaking;
intervention.
(a) Any person may commence a civil action on his or her ownbehalf against any person who is alleged to be in violation of
any provision of this article or any condition of a permit issued
or rules promulgated hereunder, except that no action may be
commenced under this section prior to sixty days after the
plaintiff has given notice to the appropriate enforcement, permit
issuing or rule-making authority and to the person against whom
the action will be commenced, or if the state has commenced and
is diligently prosecuting a civil or criminal action pursuant to
this article:
Provided, That such person may commence a civil
action immediately upon notification in the case of an action
under subsection (b) of this section. Such actions may be
brought in the circuit court in the county in which the alleged
violation occurs or in the circuit court of Kanawha county.
(b) Any person may commence a civil action against the
appropriate enforcement, permit issuing or rule-making authority
where there is alleged a failure of such authority to perform any
nondiscretionary duty or act under this article. Such actions
may be brought only in the circuit court of Kanawha county.
(c) Any person may petition the appropriate rule-making
authority for rulemaking on an issue arising under this article.
The appropriate rule-making authority, if it believes such issue
to merit rulemaking, may commence any studies and investigations
necessary to issue rules. A decision by the appropriate rule-
making authority not to pursue rulemaking must be set forth in
writing with substantial reasons for refusing to do so.
(d) Nothing in this article restricts any rights of anyperson or class of persons under statute or common law.
(e) In issuing any final order in any action brought
pursuant to this section any court with jurisdiction may award
costs of litigation, including reasonable attorney's fees and
expert witnesses fees, to any party whenever the court determines
such award to be appropriate.
(f) Any enforcement, permit issuing or rule-making authority
may intervene as a matter of right in any suit brought under this
section.
(g) Any person may intervene as a matter of right in any
civil action or administrative action instituted under this
article.
(h) Notwithstanding any provision of this article to the
contrary, any person may maintain an action to enjoin a nuisance
against any permit holder or other person subject to the
provisions of this article and may seek damages in said action,
all to the same extent and for all intents and purposes as if
this article were not enacted, if such person maintaining such
action and seeking such damages would otherwise have standing to
maintain such action and be entitled to damages by any other rule
of law.
§22-18-20. Appeal to environmental quality board.
Any person aggrieved or adversely affected by an order of
the director made and entered in accordance with the provisions
of this article, or by the failure or refusal of the director to
act within a reasonable time on an application for a permit or bythe issuance or denial of or by the terms and conditions of a
permit granted by the director under the provisions of this
article, may appeal to the environmental quality board, in
accordance with the provisions of article one, chapter
twenty-two-b of this code.
§22-18-21. Disclosures required in deeds and leases.
(a) The grantor in any deed or other instrument of
conveyance or any lessor in any lease or other instrument whereby
any real property is let for a period of time shall disclose in
such deed, lease or other instrument the fact that such property
or the subsurface of such property, (whether or not the grantor
or lessor is at the time of such conveyance or lease the owner of
such subsurface) was used for the storage, treatment or disposal
of hazardous waste. The provisions of this subsection only apply
to those grantors or lessors who owned or had an interest in the
real property when the same or the subsurface thereof was used
for the purpose of storage, treatment or disposal of hazardous
waste or who have actual knowledge that such real property or the
subsurface thereof was used for such purpose or purposes at any
time prior thereto.
(b) Any grantee of real estate or of any substrata
underlying said real estate or any lessee for a term who intends
to use the real estate conveyed or let or any substrata
underlying the same for the purpose of storing, treating or
disposing of hazardous waste shall disclose in writing at the
time of such conveyance or lease or within thirty days priorthereto such fact to the grantor or lessor of such real estate or
substrata. Such disclosure shall describe the proposed location
upon said property of the site to be used for the storage,
treatment or disposal of hazardous waste, the identity of such
waste, the proposed method of storage, treatment or disposal to
be used with respect to such waste and any and all other
information required by rules of the director.
§22-18-22. Appropriation of funds; hazardous waste management
fund.
The net proceeds of all fines, penalties and forfeitures
collected under this article shall be appropriated as directed by
section five, article XII of the constitution of West Virginia.
For the purposes of this section, the net proceeds of such fines,
penalties and forfeitures shall be deemed the proceeds remaining
after deducting therefrom those sums appropriated by the
Legislature for defraying the cost of administering this article.
All permit application fees collected under this article shall be
paid into the state treasury into a special fund designated "The
Hazardous Waste Management Fund". In making the appropriation
for defraying the cost of administering this article, the
Legislature shall first take into account the sums included in
such special fund prior to deducting such additional sums as may
be needed from the fines, penalties and forfeitures collected
pursuant to this article.
§22-18-23. State program to be consistent with and equivalent
to federal program.
The program for the management of hazardous waste pursuant
to this article shall be equivalent to and consistent with the
federal program established pursuant to Subtitle C of the federal
Solid Waste Disposal Act, as amended.
§22-18-24. Duplication of enforcement prohibited.
No enforcement proceeding brought pursuant to this article
may be duplicated by an enforcement proceeding subsequently
commenced under some other article of this code with respect to
the same transaction or event unless such subsequent proceeding
involves the violation of a permit or permitting requirement of
such other article.
§22-18-25. Financial responsibility provisions.
(1) Financial responsibility required by subdivision (4),
subsection (a), section six of this article may be established in
accordance with rules promulgated by the director by any one, or
any combination, of the following: Insurance, guarantee, surety
bond, letter of credit or qualification as a self-insurer. In
promulgating requirements under this section, the director is
authorized to specify policy or other contractual terms,
conditions or defenses which are necessary or are unacceptable in
establishing such evidence of financial responsibility in order
to effectuate the purposes of this act.
(2) In any case where the owner or operator is in bankruptcy
reorganization, or arrangement pursuant to the federal bankruptcy
code or where (with reasonable diligence) jurisdiction in any
state court or any federal court cannot be obtained over an owneror operator likely to be solvent at the time of judgment, any
claim arising from conduct for which evidence of financial
responsibility must be provided under this section may be
asserted directly against the guarantor providing such evidence
of financial responsibility. In the case of any action pursuant
to this subsection, such guarantor is entitled to invoke all
rights and defenses which would have been available to the owner
or operator if any action had been brought against the owner or
operator by the claimant and which would have been available to
the guarantor if an action had been brought against the guarantor
by the owner or operator.
(3) The total liability of any guarantor is limited to the
aggregate amount which the guarantor has provided as evidence of
financial responsibility to the owner or operator under this act.
Nothing in this subsection limits any other state or federal
statutory contractual or common law liability of a guarantor to
its owner or operator including, but not limited to, the
liability of such guarantor for bad faith either in negotiating
or in failing to negotiate the settlement of any claim. Nothing
in this subsection diminishes the liability of any person under
Section 107 or 111 of the Comprehensive Environmental Response
Compensation and Liability Act of 1980 or other applicable law.
(4) For the purposes of this section, the term "guarantor"
means any person other than the owner or operator who provides
evidence of financial responsibility for an owner or operator
under this section.
ARTICLE 19. HAZARDOUS WASTE EMERGENCY RESPONSE FUND.
§22-19-1. Findings; purpose.
The Legislature recognizes that large quantities of
hazardous waste are generated within the state, and that
emergency situations involving hazardous waste can and will arise
which may present a hazard to human health, safety or the
environment. The Legislature also recognizes that some hazardous
waste has been stored, treated or disposed of at sites in the
state in a manner insufficient to protect human health, safety or
the environment. The Legislature further recognizes that the
federal government has enacted the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, which provides
for federal assistance to respond to hazardous substance
emergencies and to remove and remedy the threat of damage to the
public health or welfare or to the environment, and declares that
West Virginia desires to produce revenue for matching the federal
assistance provided under the federal act. Therefore, the
Legislature hereby creates a hazardous waste emergency fund to
provide state funds for responding to hazardous waste
emergencies, matching federal financial assistance for restoring
hazardous waste sites and other costs or expenses incurred in the
administration of this article.
§22-19-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Cleanup" means such actions as may be necessary tomonitor, assess and evaluate the threat of release of hazardous
waste, the containment, collection, control, identification,
treatment, dispersal, removal or disposal of hazardous waste or
other such actions as may be necessary to respond to hazardous
waste emergencies or to prevent, minimize or mitigate damage to
the public health, safety, welfare or to the environment, and
includes, where necessary, replacement of existing, or provision
of alternative, drinking water supplies that have been
contaminated with hazardous waste as a result of an emergency;
(2) "Cleanup costs" means all costs incurred by the
director, or with the approval of the director, by any state
agency or person participating in the cleanup of a hazardous
waste emergency or remedial action;
(3) "Generator" means any person, corporation, partnership,
association or other legal entity, by site location, whose act or
process produces hazardous waste as identified or listed by the
director in rules promulgated pursuant to section six, article
eighteen of this chapter, in an amount greater than twelve
thousand kilograms per year;
All other terms have the meaning as prescribed in the rules
promulgated by the director pursuant to the provisions of section
six, article eighteen of this chapter.
§22-19-3. Hazardous waste emergency response fund; components
of fund.
(a) The special fund designated "The Hazardous Waste
Emergency Response Fund", hereinafter referred to as "the fund",shall be continued in the state treasury.
(b) All generator fee assessments, any interest or surcharge
assessed and collected by the director, interest accruing on
investments and deposits of the fund, and any other moneys
designated shall be paid into the fund.
§22-19-4. Fee assessments; tonnage fees; due dates of payments;
interest on unpaid fees.
(a) Each generator of hazardous waste within this state
shall pay an annual fee based upon the amount of hazardous waste
generated as reported to the director by the generator on a fee
assessment form prescribed by the director submitted pursuant to
article eighteen of this chapter. The director shall establish
a fee schedule according to the following: Full assessment for
generated hazardous waste disposed or treated off-site; ninety
percent of the full assessment for generated hazardous waste
either treated or disposed on-site; seventy-five percent of the
full assessment for generated hazardous waste treated off-site so
that such waste is rendered nonhazardous; and twenty-five percent
of the full assessment for generated hazardous waste treated on-
site so that such waste is rendered nonhazardous:
Provided, That
the generator fee assessment does not apply to the following:
(1) Those wastes listed in paragraph (A), subdivision two,
subsection (a), section six, article eighteen of this chapter;
(2) sludge from any publicly owned treatment works in the state;
(3) any discharge to waters of the state of hazardous waste
pursuant to a valid water pollution control permit issued underfederal or state law; (4) any hazardous wastes beneficially used
or reused or legitimately recycled or reclaimed; (5) hazardous
wastes which are created or retrieved pursuant to an emergency or
remedial action plan; (6) hazardous wastes whose sole
characteristic as a hazardous waste is based on corrosivity and
which are subjected to on-site elementary neutralization in
containers or tanks.
(b) Each generator of hazardous waste within the state
subject to a fee assessment under subsection (a) of this section
shall pay a fee based on its annual tonnage of generated
hazardous waste. Any unexpended balance of such collected fees
shall not be transferred to the general revenue fund, but shall
remain in the fund. The director shall vary the fees annually to
a level necessary to produce a fund of at least one million
dollars at the beginning of each calendar year, but in no event
shall the fees established be set to produce revenue exceeding
five hundred thousand dollars in any year. When the fund's
unobligated balance exceeds one million five hundred thousand
dollars at the end of the calendar year, generator assessments
under this article shall cease until such time as the fund's
unobligated balance at the end of any year is less than one
million dollars.
(c) Generator fee assessments are due and payable to the
division of environmental protection on the fifteenth day of
January of each year. Such payments shall be accompanied by
information in such form as the director may prescribe.
(d) If the fees or any portion thereof are not paid by the
date prescribed, interest accrues upon the unpaid amount at the
rate of ten percent per annum from the date due until payment is
actually made. Such interest payments shall be deposited in the
fund. If any generator fails to pay the fees imposed before the
first day of April of the year in which they are due, there is
imposed in addition to the fee and interest determined to be owed
a surcharge equivalent to the total amount of the fee which shall
also be collected and deposited in the fund.
§22-19-5. Director's responsibilities; fee schedules; authorized
expenditures; other powers of director; authorizing civil
actions; assistance of attorney general or prosecuting
attorney.
(a) The director shall collect all fees assessed pursuant to
this article and administer the fund. The fee schedule shall be
published in the state register by the first day of August of
each year. Each generator who filed the fee assessment form
prescribed by the director shall be notified and provided with a
copy of the fee schedule by certified mail. In the event the fee
schedule is not published by the first day of August, the date
prescribed for payment in section four of this article shall be
advanced by the same number of days that the publication of the
fee schedule is delayed. The interest and surcharge provisions
of section four of this article shall be similarly advanced.
(b) The director is authorized to enter into agreements and
contracts and to expend the moneys in the fund for the followingpurposes:
(1) Responding to hazardous waste emergencies when, based on
readily available information, the director determines that
immediate action may prevent or mitigate significant risk of harm
to human health, safety or the environment from hazardous wastes
in situations for which no federal funds are immediately
available for such response clean up or containment:
Provided,
That the director shall apply for and diligently pursue available
federal funds for such emergencies at the earliest possible time:
Provided, however, That funds shall not be expended under this
subsection to cleanup or contain off-site releases of hazardous
waste which are classified as such only as a result of such
releases;
(2) Reimbursing any person for reasonable clean-up costs
incurred with the authorization of the director in responding to
a hazardous waste emergency pursuant to authorization of the
director;
(3) Financing the nonfederal share of the clean-up and site
reclamation activities pursuant to the federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as well as future operation and maintenance costs for these
sites; and
(4) Financing any and all preparations necessary for
responding to hazardous waste activities and emergencies within
the state, including, but not limited to, the purchase or lease
of hazardous waste emergency response equipment:
Provided, Thatafter the fifteenth of January, one thousand nine hundred eighty-
seven, no funds shall be expended under this subdivision unless
the fund is greater than one million dollars and any expenditure
will not reduce the fund below one million dollars.
(c) Prior to making expenditures from the fund pursuant to
subdivision (1), (2) or (3), subsection (b) of this section, the
director will make reasonable efforts to secure agreements to pay
the costs of cleanup and remedial actions from owners or
operators of sites or other responsible persons.
(d) The director is authorized to promulgate and revise
rules in compliance with chapter twenty-nine-a of this code to
implement and effectuate the powers, duties and responsibilities
vested in him or her under this article. Prior to the assessment
of any fees under this article, the director shall promulgate
rules which account for the mixture of hazardous and nonhazardous
constituents in the hazardous waste which is generated. The
director shall not assess a fee on the nonhazardous portion,
including, but not limited to, the weight of water.
(e) The director is authorized to recover through civil
action or cooperative agreements with responsible persons the
full amount of any funds expended for purposes enumerated in
subdivision (1), (2) or (3), subsection (b) of this section. All
moneys expended from the fund which are so recovered shall be
deposited in the fund. Any civil action instituted pursuant to
this subsection may be brought in either Kanawha county or the
county in which the hazardous waste emergency occurs or thecounty in which remedial action is taken.
(f) The director is authorized to institute a civil action
against any generator for failure to pay any fee assessed
pursuant to this article. Any action instituted against a
generator pursuant to this subsection may be brought in either
Kanawha county or the county in which the generator does
business. The generator shall pay all attorney fees and costs of
such action if the director prevails.
(g) Upon request by the director, the attorney general or
prosecuting attorney for the county in which an action was
brought shall assist the director in any civil action instituted
pursuant to this section and any proceedings relating thereto.
(h) The director is authorized to enter into contracts or
cooperative agreements with the federal government to secure to
the state the benefits of funding for action taken pursuant to
the requirements of the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
(i) The director is authorized to accept gifts, donations,
contributions, bequests or devises of money, security or property
for deposit in the fund.
(j) The director is authorized to invest the fund to earn a
reasonable rate of return on the unexpended balance.
§22-19-6. State hazardous waste contingency plan.
The director shall promulgate rules in compliance with
chapter twenty-nine-a of this code, establishing a state
hazardous waste contingency plan which shall set forth proceduresand standards for responding to hazardous waste emergencies, for
conducting remedial cleanup and maintenance of hazardous waste
sites and for making expenditures from the fund after the date of
promulgation of the plan. The plan shall include:
(a) Methods for discovering, reporting and investigating
sites at which hazardous waste may present significant risk of
harm to the public health and safety or to the environment;
(b) Methods and criteria for establishing priority responses
and for determining the appropriate extent of clean up,
containment and other measures authorized by this article;
(c) Appropriate roles for governmental, interstate and
nongovernmental entities in effectuating the plan;
(d) Methods for identifying, procuring, maintaining, and
storing hazardous waste response equipment and supplies; and
(e) Methods to identify the most appropriate and cost-
effective emergency and remedial actions in view of the relative
risk or danger presented by each case or event.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-1. Continuation of the office of miners' health, safety
and training; purpose.
(a) The office of miners' health, safety and training is
continued and is a separate office within the department of
commerce, labor and environmental resources. The office shall be
administered, in accordance with the provisions of this article,under the supervision and direction of the director of the office
of miners' health, safety and training.
(b) The division of health, safety and training shall have
as its purpose the supervision of the execution and enforcement
of the provisions of this chapter and, in carrying out the
aforesaid purposes, it shall give prime consideration to the
protection of the safety and health of persons employed within or
at the mines of this state. In addition, the division shall,
consistent with the aforesaid prime consideration, protect and
preserve mining property and property used in connection
therewith.
§22A-1-2. Definitions.
Unless the context in which used clearly requires a
different meaning, the following definitions apply to this
chapter:
(a)
General. --
(1) "Accident" means any mine explosion, mine ignition, mine
fire, or mine inundation, or injury to, or death of any person.
(2) "Agent" means any person charged with responsibility for
the operation of all or a part of a mine or the supervision of
the miners in a mine.
(3) "Approved" means in strict compliance with mining law,
or, in the absence of law, accepted by a recognized standardizing
body or organization whose approval is generally recognized as
authoritative on the subject.
(4) "Face equipment" means mobile or portable miningmachinery having electric motors or accessory equipment normally
installed or operated in by the last open crosscut in an entry or
room.
(5) "Imminent danger" means the existence of any condition
or practice in a coal mine which could reasonably be expected to
cause death or serious physical harm before such condition or
practice can be abated.
(6) "Mine" includes the shafts, slopes, drifts or inclines
connected with, or intended in the future to be connected with,
excavations penetrating coal seams or strata, which excavations
are ventilated by one general air current or divisions thereof,
and connected by one general system of mine haulage over which
coal may be delivered to one or more points outside the mine, and
the surface structures or equipment connected or associated
therewith which contribute directly or indirectly to the mining,
preparation or handling of coal, or construction thereof.
(7) "Miner" means any individual working in a coal mine.
(8) "Operator" means any firm, corporation, partnership or
individual operating any coal mine or part thereof, or engaged in
the construction of any facility associated with a coal mine.
(9) "Permissible" means any equipment, device or explosive
that has been approved as permissible by the federal mine safety
and health administration and/or the United States Bureau of
Mines and meets all requirements, restrictions, exceptions,
limitations and conditions attached to such classification by
that agency or the bureau.
(10) "Person" means any individual, partnership,
association, corporation, firm, subsidiary of a corporation or
other organization.
(11) "Work of preparing the coal" means the breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing and
loading of bituminous coal or lignite, and such other work of
preparing such coal as is usually done by the operator of the
coal mine.
(b)
Office of miners' health, safety and training. --
(1) "Board of appeals" means as provided for in article five
of this chapter.
(2) "Director" means the director of the office of miners'
health, safety and training provided for in section three of this
article.
(3) "Mine inspector" means a state mine inspector provided
for in section eight of this article.
(4) "Mine inspectors' examining board" shall mean the mine
inspectors' examining board provided for in article nine of this
chapter.
(5) "Office" means, when referring to a specific office, the
office of miners' health, safety and training provided for in
this article. The term "office", when used generically, includes
any office, board, agency, unit, organizational entity or
component thereof.
(c)
Mine areas. --
(1) "Abandoned workings" means excavation, either caved orsealed, that is deserted and in which further mining is not
intended, or open workings which are ventilated and not inspected
regularly.
(2) "Active workings" means all places in a mine that are
ventilated and inspected regularly.
(3) "Drift" means a horizontal or approximately horizontal
opening through the strata or in a coal seam and used for the
same purposes as a shaft.
(4) "Excavations and workings" means any or all parts of a
mine excavated or being excavated, including shafts, slopes,
drifts, tunnels, entries, rooms and working places, whether
abandoned or in use.
(5) "Inactive workings" includes all portions of a mine in
which operations have been suspended for an indefinite period,
but have not been abandoned.
(6) "Mechanical working section" means an area of a mine:
(A) In which coal is loaded mechanically; (B) which is comprised
of a number of working places that are generally contiguous; and
(C) which is of such size to permit necessary supervision during
shift operation, including pre-shift and on-shift examinations
and tests required by law.
(7) "Panel" means workings that are or have been developed
off of submain entries which do not exceed three thousand feet in
length.
(8) "Return air" means a volume of air that has passed
through and ventilated all the working places in a mine section.
(9) "Shaft" means a vertical opening through the strata that
is or may be used for the purpose of ventilation, drainage, and
the hoisting and transportation of individuals and material, in
connection with the mining of coal.
(10) "Slope" means a plane or incline roadway, usually
driven to a coal seam from the surface and used for the same
purposes as a shaft.
(11) "Working face" means any place in a coal mine in which
work of extracting coal from its natural deposit in the earth is
performed during the mining cycle.
(12) "Working place" means the area of a coal mine inby the
last open crosscut.
(13) "Working section" means all areas of the coal mine from
the loading point of the section to and including the working
faces.
(14) "Working unit" means an area of a mine in which coal is
mined with a set of production equipment; a conventional mining
unit by a single loading machine; a continuous mining unit by a
single continuous mining machine, which is comprised of a number
of working places.
(d)
Mine personnel. --
(1) "Assistant mine foreman" means a certified person
designated to assist the mine foreman in the supervision of a
portion or the whole of a mine or of the persons employed
therein.
(2) "Certified electrician" means any person who isqualified as a mine electrician and who has passed an examination
given by the office, or has at least three years of experience in
performing electrical work underground in a coal mine, in the
surface work areas of an underground coal mine, in a surface coal
mine, in a noncoal mine, in the mine equipment manufacturing
industry, or in any other industry using or manufacturing similar
equipment, and has satisfactorily completed a coal mine
electrical training program approved by the office.
(3) "Certified person", when used to designate the kind of
person to whom the performance of a duty in connection with the
operation of a mine shall be assigned, means a person who is
qualified under the provisions of this law to perform such duty.
(4) "Interested persons" includes the operator, members of
any mine safety committee at the mine affected and other duly
authorized representatives of the mine workers and the office.
(5) "Mine foreman" means the certified person whom the
operator or superintendent shall place in charge of the inside
workings of the mine and of the persons employed therein.
(6) "Qualified person" means a person who has completed an
examination and is considered qualified on record by the office.
(7) "Shot firer" means any person having had at least two
years of practical experience in coal mines, who has a knowledge
of ventilation, mine roof and timbering, and who has demonstrated
his or her knowledge of mine gases, the use of a flame safety
lamp, and other approved detecting devices by examination and
certification given him or her by the office.
(8) "Superintendent" means the person who has, on behalf of
the operator, immediate supervision of one or more mines.
(9) "Supervisor" means a superintendent, mine foreman,
assistant mine foreman, or any person specifically designated by
the superintendent or mine foreman to supervise work or employees
and who is acting pursuant to such specific designation and
instructions.
(e)
Electrical. --
(1) "Armored cable" means a cable provided with a wrapping
of metal, usually steel wires or tapes, primarily for the purpose
of mechanical protection.
(2) "Borehole cable" means a cable designed for vertical
suspension in a borehole or shaft and used for power circuits in
the mine.
(3) "Branch circuit" means any circuit, alternating current
or direct current, connected to and leading from the main power
lines.
(4) "Cable" means a standard conductor (single conductor
cable) or a combination of conductors insulated from one another
(multiple conductor cable).
(5) "Circuit breaker" means a device for interrupting a
circuit between separable contacts under normal or abnormal
conditions.
(6) "Delta connected" means a power system in which the
windings or transformers or a.c. generators are connected to
form a triangular phase relationship, and with phase conductorsconnected to each point of the triangle.
(7) "Effectively grounded" is an expression which means
grounded through a grounding connection of sufficiently low
impedance (inherent or intentionally added or both) so that fault
grounds which may occur cannot build up voltages in excess of
limits established for apparatus, circuits or systems so
grounded.
(8) "Flame-resistant cable, portable" means a portable
flame-resistant cable that has passed the flame tests of the
Federal Mine Safety and Health Administration.
(9) "Ground or grounding conductor (mining)", also referred
to as a safety ground conductor, safety ground and frame ground,
means a metallic conductor used to connect the metal frame or
enclosure of any equipment, device or wiring system with a mine
track or other effective grounding medium.
(10) "Grounded (earthed)" means that the system, circuit or
apparatus referred to is provided with a ground.
(11) "High voltage" means voltages of more than one thousand
volts.
(12) "Lightning arrestor" means a protective device for
limiting surge voltage on equipment by discharging or by passing
surge current; it prevents continued flow of follow current to
ground and is capable of repeating these functions as specified.
(13) "Low voltage" means up to and including six hundred
sixty volts.
(14) "Medium voltage" means voltages from six hundred sixty-one to one thousand volts.
(15) "Mine power center or distribution center" means a
combined transformer or distribution unit, complete within a
metal enclosure from which one or more low-voltage power circuits
are taken.
(16) "Neutral (derived)" means a neutral point or connection
established by the addition of a "zig-zag" or grounding
transformer to a normally underground power system.
(17) "Neutral point" means the connection point of
transformer or generator windings from which the voltage to
ground is nominally zero, and is the point generally used for
system groundings in wye-connected a.c. power system.
(18) "Portable (trailing) cable" means a flexible cable or
cord used for connecting mobile, portable or stationary equipment
in mines to a trolley system or other external source of electric
energy where permanent mine wiring is prohibited or is
impracticable.
(19) "Wye-connected" means a power system connection in
which one end of each phase windings or transformers or a.c.
generators are connected together to form a neutral point, and a
neutral conductor may or may not be connected to the neutral
point, and the neutral point may or may not be grounded.
(20) "Zig-zag transformer (grounding transformer)" means a
transformer intended primarily to provide a neutral point for
grounding purposes.
§22A-1-3. Director of the office of miners' health, safety and
training.
(a) The director of the office of miners' health, safety and
training is responsible for surface and underground safety
inspections of coal mines, the administration of the office of
miners' health, safety and training and of such other matters as
are delegated or assigned to the director by the secretary of the
department of commerce, labor and environmental resources.
(b) The director is the chief executive officer of the
office. Subject to provisions of law, he or she shall organize
the office into such offices, sections, agencies and other units
of activity as may be found by the director to be desirable for
the orderly, efficient and economical administration of the
office. The director may appoint such other employees needed for
the operation of the office and may prescribe their powers and
duties and fix their compensation within amounts appropriated
therefor.
(c) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and shall serve at the
will and pleasure of the governor:
Provided, That, in lieu of
appointing a director, the governor may order the secretary to
directly exercise the powers of the director. The secretary
shall designate the order in which other officials of the office
shall act for and perform the functions of the secretary or the
director during the absence or disability of both the secretary
or the director or in the event of vacancies in both of those
offices.
(d) The director of the office of miners' health, safety and
training shall be a citizen of West Virginia, shall be a
competent person of good repute and temperate habits with a
demonstrated interest and five years' experience in underground
coal mining and shall have at least three years of experience in
a position of responsible charge in at least one discipline
relating to the duties and responsibilities for which the
director will be responsible upon assumption of the office of
director. Special reference shall be given to his or her
administrative experience and ability. The director shall devote
all of his or her time to the duties of the position of director
and shall not be directly interested financially in any mine in
this or any other state nor shall the director, either directly
or indirectly, be a majority owner of, or have control of or a
controlling interest in, a mine in this or any other state. The
director shall not be a candidate for or hold any other public
office, shall not be a member of any political party committee
and shall immediately forfeit and vacate his or her office as
director in the event he or she becomes a candidate for or
accepts appointment to any other public office or political party
committee.
(e) The director shall receive an annual salary of
sixty-five thousand dollars and shall be allowed and paid
necessary expenses incident to the performance of his or her
official duties. Prior to the assumption of his or her official
duties, the director shall take the oath required of publicofficials prescribed by section five, article IV of the
constitution of West Virginia and shall execute a bond, with
surety approved by the governor, in the penal sum of ten thousand
dollars, which executed oath and bond shall be filed in the
office of the secretary of state. Premiums on the bond shall be
paid from office funds.
§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 articleas 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 year.
(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 this article.
(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 the thirtieth day of June. 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:
Provided,
That no inspector is identified by name in this report. Such
reports shall be filed with the governor and the Legislature on
or before the thirty-first day of December 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 forty dollars per diem and shall receive mileage at the
rate of fifteen cents 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 witness.
(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) Make all records of the office open for inspection of
interested persons and the public.
§22A-1-5. Offices continued in the office of miners' health,
safety and training.
(a) There are hereby continued in the office of miners'
health, safety and training the following offices:
(1) The board of coal mine health and safety established
pursuant to article six of this chapter;
(2) The coal mine safety and technical review committee
established pursuant to article six of this chapter;
(3) The board of miner training, education and certification
established pursuant to article seven of this chapter;
(4) The mine inspectors' examining board established
pursuant to article nine of this chapter; and
(5) The board of appeals provided for pursuant to the
provisions of article five of this chapter.
(b) Nothing in this article may authorize the director or
the secretary of the department of commerce, labor andenvironmental resources to alter, discontinue or abolish any
office, board or commission or the functions thereof, which are
established by statute.
§22A-1-6. Director's authority to promulgate rules.
The director has the power and authority to propose or
promulgate rules to organize the office and to carry out and
implement the provisions of this chapter relating to health and
safety inspections and enforcement. All rules in effect on the
effective date of this article which pertain to the provisions of
this chapter as they relate to health and safety inspection and
enforcement shall remain in effect until changed or superseded by
the director, or as appropriate. Except when specifically
exempted by the provisions of this chapter, all rules or changes
thereto shall be proposed or promulgated by the director in
accordance with the provisions of chapter twenty-nine-a of this
code.
§22A-1-7. Savings provisions.
All orders, determinations, rules, permits, grants,
contracts, certificates, licenses and privileges which have been
issued, made, granted, or allowed to become effective by the
governor, any state department or agency or official thereof, or
by a court of competent jurisdiction, in the performance of
functions which were transferred from the division of energy to
the secretary of the department of commerce, labor and
environmental resources, to the director, or to the office, and
which were in effect on the date such transfer occurred, shallcontinue in effect according to their terms until modified,
terminated, superseded, set aside or revoked in accordance with
law by the governor, the secretary, the director, or other
authorized official, a court of competent jurisdiction or by
operation of law.
§22A-1-8. Mine inspectors; districts and divisions; employment;
tenure; oath; bond.
Notwithstanding any other provisions of law, mine inspectors
shall be selected, serve and be removed as in this article
provided.
The director shall divide the state into not more than
forty-five mining districts and not more than five mining
divisions, so as to equalize, as far as practical, the work of
each inspector. The director may assign inspectors to districts,
designate and assign not more than one inspector-at-large to each
division and one assistant inspector-at-large. The director
shall designate the places of abode of inspectors at points
convenient to the mines of their respective districts, and, in
the case of inspectors and assistant inspectors-at-large, their
respective divisions.
Except as in the next preceding paragraph provided, all mine
inspectors appointed after the mine inspectors' examining board
has certified to the director an adequate register of qualified
eligible candidates in accordance with section eleven of this
article, so long as such register contains the names of at least
three qualified eligible candidates, shall be appointed from thenames on such register. Each original appointment shall be made
by the director for a probationary period of not more than one
year.
The director shall make each appointment from among the
three qualified eligible candidates on the register having the
highest grades:
Provided, That the director may, for good cause,
at least thirty days prior to making an appointment, strike any
name from the register. Upon striking any name from the
register, the director shall immediately notify in writing each
member of the mine inspectors' examining board of the action,
together with a detailed statement of the reasons therefor.
Thereafter, the mine inspectors' examining board, after hearing,
if it finds that the action of the director was arbitrary or
unreasonable, may order the name of any candidate so stricken
from the register to be reinstated thereon. Such reinstatement
is effective from the date of removal from the register.
Any candidate passed over for appointment for three years
shall be automatically stricken from the register.
After having served for a probationary period of one year to
the satisfaction of the director, a mine inspector has permanent
tenure, subject only to dismissal for cause in accordance with
the provisions of section twelve of this article. No mine
inspector, while in office, shall be directly or indirectly
interested as owner, lessor, operator, stockholder,
superintendent or engineer of any coal mine. Before entering
upon the discharge of the duties as a mine inspector, he or sheshall take the oath of office prescribed by section five, article
IV of the constitution of West Virginia and shall execute a bond
in the penalty of two thousand dollars, with security to be
approved by the director, conditioned upon the faithful discharge
of his or her duties, a certificate of which oath and bond shall
be filed in the office of the secretary of state.
The district inspectors, inspectors-at-large and assistant
inspectors-at-large, together with the director, shall make all
inspections authorized by this article and article two of this
chapter and shall perform such other duties as are imposed upon
mine inspectors by this article and articles two, four and eight
of this chapter.
§22A-1-9. Mine safety instructors; qualifications; employment;
compensation; tenure; oath; bond.
The office shall employ eleven or more mine safety
instructors. To be eligible for employment as a mine safety
instructor, the applicant shall be: (1) A citizen of West
Virginia, in good health, not less than twenty-five years of age,
and of good character, reputation and temperate habits; and (2)
a person who has had at least five years' experience in first aid
and mine rescue work and who has had practical experience with
dangerous gases found in coal mines, and who has a practical
knowledge of mines, mining methods, mine ventilation, sound
safety practices and applicable mining laws.
In order to qualify for appointment as a mine safety
instructor, an eligible applicant shall submit to a written andoral examination, given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by a
safety instructor and may, subject to the approval of the mine
inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that
the applicant: (1) Is eligible for appointment; and (2) has
passed all oral and written examinations with a grade of at least
eighty percent, the board shall add such applicant's name and
grade to a register of qualified eligible candidates and certify
its action to the director. The director may then appoint one of
the candidates from the three having the highest grades.
The salary for a mine safety instructor shall be not less
than twenty-one thousand six hundred seventy-two dollars per
year, and shall be fixed by the director, who shall take into
consideration ability, performance of duty and experience. Such
instructor shall devote all of his or her time to the duties of
the office. No reimbursement for traveling expenses shall be
made except on an itemized accounting for such expenses submitted
by the instructor, who shall verify upon oath that such expenses
were actually incurred in the discharge of his or her official
duties.
Except as expressly provided in this section to the
contrary, all provisions of this article relating to the
eligibility, qualification, appointment, tenure and removal of
mine inspectors are applicable to mine safety instructors.
§22A-1-10. Mine inspectors may be appointed to fill vacancy in
division.
Notwithstanding any other provisions of law, if a vacancy
occurs in any appointive position within the office, any mine
inspector having permanent tenure, if qualified, may be appointed
to such appointive position by the director.
§22A-1-11. Employment of electrical inspectors; qualifications;
salary and expenses; tenure; oath; bond.
The office shall employ five or more electrical inspectors.
To be eligible for employment as an electrical inspector, the
applicant shall be: (1) A citizen and resident of West Virginia,
in good health, not less than twenty-five years of age, and of
good character, reputation and of temperate habits; and (2) a
person who has had seven years' practical electrical experience
in coal mines, or a degree in electrical engineering from an
accredited electrical engineering school and one year's practical
experience in underground coal mining.
In order to qualify for appointment as a mine electrical
inspector, an eligible applicant shall submit to a written and
oral examination given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by an
electrical inspector. If the board finds after investigation and
examination that the applicant: (1) Is eligible for appointment;
and (2) has passed all oral and written examinations with a grade
of at least ninety percent, the board shall add such applicant's
name and grade to a register of qualified eligible candidates and
certify its action to the director. The director may thenappoint one of the candidates from the three having the highest
grade.
The salary of a mine electrical inspector shall be not less
than thirty thousand four hundred eighty dollars per year, and
shall be fixed by the director, who shall take into consideration
ability, performance of duty and experience. No reimbursement
for traveling expenses shall be made except on an itemized
accounting for such expense submitted by the electrical
inspector, who shall verify upon oath that such expenses were
actually incurred in the discharge of his or her official duties.
Mine electrical inspectors, before entering upon the
discharge of their duties, shall take and subscribe to the oath
and shall execute a bond in the same penal sum, with surety
approved by the director, all as is required by this article in
the case of mine inspectors.
Except as expressly provided in this section to the
contrary, all provisions of this article relating to the
eligibility, qualifications, appointment, tenure and removal of
mine inspectors are applicable to mine electrical inspectors.
§22A-1-12. Eligibility for appointment as mine inspector;
qualifications; salary and expenses; removal.
(a) No person is eligible for appointment as a mine
inspector unless, at the time of his or her probationary
appointment, he or she: (1) Is a citizen of West Virginia, in
good health, not less than twenty-four years of age, and of good
character, reputation and temperate habits; (2) has had at leastsix years' practical experience in coal mines, at least three
years of which, immediately preceding his or her original
appointment, shall have been in mines of this state:
Provided,
That graduation from any accredited college of mining engineering
shall be considered the equivalent of two years' practical
experience; (3) has had practical experience with dangerous gases
found in coal mines; and (4) has a good theoretical and practical
knowledge of mines, mining methods, mine ventilation, sound
safety practices and applicable mining laws.
(b) In order to qualify for appointment as a mine inspector,
an eligible applicant shall submit to a written and oral
examination by the mine inspectors' examining board and furnish
such evidence of good health, character and other facts
establishing eligibility as the board may require. If the board
finds after investigation and examination that an applicant: (1)
Is eligible for appointment and (2) has passed all written and
oral examinations, with a grade of at least eighty percent, the
board shall add such applicant's name and grade to the register
of qualified eligible candidates and certify its action to the
director. No candidate's name shall remain in the register for
more than three years without requalifying.
(c) Salaries of district inspectors shall not be less than
twenty-eight thousand fifty-six dollars per year; assistant
inspector-at-large, not less than thirty thousand one hundred
eight dollars per year; inspectors-at-large, not less than
thirty-one thousand five hundred seventy-two dollars per year,and they shall receive mileage at the rate of not less than
twenty cents for each mile actually traveled in the discharge of
their official duties in a privately owned vehicle. Within the
limits provided by law, the salary of each inspector shall be
fixed by the director, subject to the approval of the mine
inspectors' examining board. In fixing salaries of mine
inspectors, the director shall consider ability, performance of
duty and experience. No reimbursement for traveling expenses
shall be made except on an itemized account of such expenses
submitted by the inspector, who shall verify upon oath, that such
expenses were actually incurred in the discharge of his or her
official duties. Every inspector shall be afforded compensatory
time or compensation of at least his or her regular rate for all
time in excess of forty-two hours per week.
(d) Any mine inspector who has fulfilled the requirements of
this section with respect to employment and who has served
satisfactorily as a mine inspector for a minimum period of one
year and who has terminated his or her employment as a mine
inspector, upon successfully passing a physical examination, may
be reinstated as a mine inspector within two years after
terminating his or her employment with the approval of the
examining board and the director.
(e) A mine inspector, after having received a permanent
appointment, shall be removed from office only for physical or
mental impairment, incompetency, neglect of duty, drunkenness,
malfeasance in office, or other good cause.
Proceedings for the removal of a mine inspector may be
initiated by the director whenever there is reasonable cause to
believe that adequate cause exists, warranting removal. Such a
proceeding shall be initiated by a verified petition, filed with
the board by the director, setting forth with particularity the
facts alleged. Not less than twenty reputable citizens, who are
operators or employees in mines in the state, may petition the
director for the removal of a mine inspector. If such petition
is verified by at least one of the petitioners, based on actual
knowledge of the affiant and alleged facts, which, if true,
warrant the removal of the inspector, the director shall cause an
investigation of the facts to be made. If, after such
investigation, the director finds that there is substantial
evidence, which, if true, warrants removal of the inspector, the
director shall file a petition with the board requesting removal
of the inspector.
On receipt of a petition by the director seeking removal of
a mine inspector, the board shall promptly notify the inspector
to appear before it at a time and place designated in said
notice, which time shall be not less than fifteen days
thereafter. There shall be attached to the copy of the notice
served upon the inspector a copy of the petition filed with the
board.
At the time and place designated in said notice, the board
shall hear all evidence offered in support of the petition and on
behalf of the inspector. Each witness shall be sworn, and atranscript shall be made of all evidence taken and proceedings
had at any such hearing. No continuance shall be granted except
for good cause shown. The chair of the board and the director
have power to administer oaths and subpoena witnesses.
Any mine inspector who willfully refuses or fails to appear
before the board, or having appeared, refuses to answer under
oath any relevant question on the ground that the testimony or
answer might incriminate him or her or refuses to waive immunity
from prosecution on account of any relevant matter about which
the inspector may be asked to testify at any such hearing before
the board, shall forfeit his or her position.
If, after hearing, the board finds that the inspector should
be removed, it shall enter an order to that effect. The decision
of the board is final and is not subject to judicial review.
§22A-1-13. Eligibility for appointment as surface mine
inspector; qualifications; salary and expenses; removal.
In order to qualify for an appointment as a surface mine
inspector, under the provisions of this article, an eligible
applicant shall have had at least five years' practical
experience in surface mines, at least one year of which,
immediately preceding his or her original appointment, shall have
been in surface mines in this state, and submit to a written and
oral examination given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by a
surface mine inspector and may, subject to the approval of the
mine inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that
the applicant: (1) Is eligible for appointment; and (2) has
passed all oral and written examinations with a grade of at least
eighty percent, the board shall add such applicant's name and
grade to a register of qualified eligible candidates and certify
its action to the director. The director may then appoint one of
the candidates from the three having the highest grades.
All such appointees shall be citizens of West Virginia, in
good health, not less than twenty-five years of age, of good
character and reputation and temperate in habits. No person is
eligible for permanent appointment as a surface mine inspector
until he or she has served in a probationary status for a period
of one year to the satisfaction of the director.
In the performance of duties devolving upon surface mine
inspectors, they shall be responsible to the director.
The salary of the surface mine inspector supervisor shall be
not less than twenty-four thousand four hundred eighty dollars
per year. Salaries of surface mine inspectors shall be not less
than twenty-one thousand seven hundred eighty dollars per year.
In the discharge of their official duties in privately owned
vehicles, surface mine inspectors and the surface mine inspector
supervisor shall receive mileage at the rate of not less than
twenty cents per mile.
A surface mine inspector, after having received a permanent
appointment, shall be removed from office only for physical or
mental impairment, incompetency, neglect of duty, drunkenness,malfeasance in office, or other good cause.
§22A-1-14. Director and inspectors authorized to enter mines;
duties of inspectors to examine mines; no advance notice;
reports after fatal accidents.
The director, or his or her authorized representative, has
authority to visit, enter, and examine any mine, whether
underground or on the surface, and may call for the assistance of
any district mine inspector or inspectors whenever such
assistance is necessary in the examination of any mine. The
operator of every coal mine shall furnish the director or his or
her authorized representative proper facilities for entering such
mine and making examination or obtaining information.
If miners or one of their authorized representatives, have
reason to believe, at any time, that dangerous conditions are
existing or that the law is not being complied with, they may
request the director to have an immediate investigation made.
Mine inspectors shall devote their full time and undivided
attention to the performance of their duties, and they shall
examine all of the mines in their respective districts at least
four times annually, and as often, in addition thereto, as the
director may direct, or the necessities of the case or the
condition of the mine or mines may require, with no advance
notice of inspection provided to any person, and they shall make
a personal examination of each working face and all entrances to
abandoned parts of the mine where gas is known to liberate, for
the purpose of determining whether an imminent danger, referredto in section fifteen of this article, exists in any such mine,
or whether any provision of article two of this chapter is being
violated or has been violated within the past forty-eight hours
in any such mine.
In addition to the other duties imposed by this article and
article two of this chapter, it is the duty of each inspector to
note each violation he or she finds and issue a finding, order,
or notice, as appropriate for each violation so noted. During
the investigation of any accident, any violation may be noted
whether or not the inspector actually observes the violation and
whether or not the violation exists at the time the inspector
notes the violation, so long as the inspector has clear and
convincing evidence the violation has occurred or is occurring.
The mine inspector shall visit the scene of each fatal
accident occurring in any mine within his or her district and
shall make an examination into the particular facts of such
accident; make a report to the director, setting forth the
results of such examination, including the condition of the mine
and the cause or causes of such fatal accident, if known, and all
such reports shall be made available to the interested parties,
upon written requests.
At the commencement of any inspection of a coal mine by an
authorized representative of the director, the authorized
representative of the miners at the mine at the time of such
inspection shall be given an opportunity to accompany the
authorized representative of the director on such inspection.
§22A-1-15. Findings, orders and notices.
(a) If, upon any inspection of a coal mine, an authorized
representative of the director finds that an imminent danger
exists, such representative shall determine the area throughout
which such danger exists, and thereupon shall issue forthwith an
order requiring the operator of the mine or the operator's agent
to cause immediately all persons, except those referred to in
subdivisions (1), (2), (3) and (4), subsection (c) of this
section, to be withdrawn from and to be prohibited from entering
such area until an authorized representative of the director
determines that such imminent danger no longer exists.
All employees on the inside and outside of a mine who are
idled as a result of the posting of a withdrawal order by a mine
inspector shall be compensated by the operator at their regular
rates of pay for the period they are idled, but not more than the
balance of such shift. If such order is not terminated prior to
the next working shift, all such employees on that shift who are
idled by such order are entitled to full compensation by the
operator at their regular rates of pay for the period they are
idled, but for not more than four hours of such shift.
(b) If, upon any inspection of a coal mine, an authorized
representative of the director finds that there has been a
violation of the law, but the violation has not created an
imminent danger, he or she shall issue a notice to the operator
or the operator's agent, fixing a reasonable time for the
abatement of the violation. If, upon the expiration of theperiod of time, as originally fixed or subsequently extended, an
authorized representative of the director finds that the
violation has not been totally abated, and if the director also
finds that the period of time should not be further extended, the
director shall find the extent of the area affected by the
violation and shall promptly issue an order requiring the
operator of such mine or the operator's agent to cause
immediately all persons, except those referred to in subdivisions
(1), (2), (3) and (4), subsection (c) of this section, to be
withdrawn from, and to be prohibited from entering such area
until an authorized representative of the director determines
that the violation has been abated.
(c) The following persons are not required to be withdrawn
from or prohibited from entering any area of the coal mine
subject to an order issued under this section:
(1) Any person whose presence in such area is necessary, in
the judgment of the operator or an authorized representative of
the director, to eliminate the condition described in the order;
(2) Any public official whose official duties require him or
her to enter such area;
(3) Any representative of the miners in such mine who is, in
the judgment of the operator or an authorized representative of
the director, qualified to make coal mine examinations or who is
accompanied by such a person and whose presence in such area is
necessary for the investigation of the conditions described in
the order; and
(4) Any consultant to any of the foregoing.
(d) Notices and orders issued pursuant to this section shall
contain a detailed description of the conditions or practices
which cause and constitute an imminent danger or a violation of
any mandatory health or safety standard and, where appropriate,
a description of the area of the coal mine from which persons
must be withdrawn and prohibited from entering.
(e) Each notice or order issued under this section shall be
given promptly to the operator of the coal mine or the operator's
agent by an authorized representative of the director issuing
such notice or order, and all such notices and orders shall be in
writing and shall be signed by such representative and posted on
the bulletin board at the mine.
(f) A notice or order issued pursuant to this section may be
modified or terminated by an authorized representative of the
director.
(g) Each finding, order, and notice made under this section
shall promptly be given to the operator of the mine to which it
pertains by the person making such finding, order or notice.
§22A-1-16. Powers and duties of electrical inspectors as to
inspections, findings and orders; reports of electrical
inspectors.
In order that the electrical inspector may properly perform
the duties required of him or her, he or she shall devote his or
her whole time and attention to the duties of the office, and the
inspector has the right to enter any coal mine for the purpose ofinspecting electrical equipment, and if he or she finds during an
inspection any defects in the electrical equipment which are
covered by law and may be detrimental to the lives or health of
the workmen, the inspector has the authority to order the
operator, in writing, to remedy such defects within a prescribed
time, and to prohibit the continued operation of such electrical
equipment after such time, unless such defects have been
corrected.
The electrical inspector shall examine each mine in his or
her division at least once each year or as often as the director
may deem necessary.
It is the duty of the electrical inspector, after completing
the examination of a mine, to prepare a report describing his or
her findings in said mine in a manner and form designated by the
director. The original report shall be forwarded to the operator
or the operator's representative whose duty it is to post it in
some conspicuous place open to examination by any interested
person or persons. The report shall show the date of inspection,
a list of equipment, and any other information that the director
may deem necessary.
§22A-1-17. Review of orders and notices by the director.
(a) (1) An operator, issued an order pursuant to the
provisions of section fifteen of this article, or any
representative of miners in any mine affected by such order or by
any modification or termination of such order, may apply to the
director for review of the order within thirty days of receiptthereof or within thirty days of its modification or termination.
An operator, issued a notice pursuant to subsection (b), section
fifteen of this article, or any representative of miners in any
mine affected by such notice, may, if the operator believes that
the period of the time fixed in such notice for the abatement of
the violation is unreasonable, apply to the director for review
of the notice within thirty days of the receipt thereof. The
applicant shall send a copy of such application to the
representative of miners in the affected mine, or the operator,
as appropriate. Upon receipt of such application, the director
shall cause such investigation to be made as the director deems
appropriate. Such investigation shall provide an opportunity for
a public hearing, at the request of the operator or the
representative of miners in such mine, to enable the operator and
the representative of miners in such mine to present information
relating to the issuance and continuance of such order or the
modification or termination thereof or to the time fixed in such
notice. The filing of an application for review under this law
does not operate as a stay of any order or notice.
(2) The operator and the representative of the miners shall
be given written notice of the time and place of the hearing at
least five days prior to the hearing.
(b) Upon receiving the report of such investigation, the
director shall make findings of fact, and issue a written
decision, incorporating therein an order vacating, affirming,
modifying or terminating the order, or the modification ortermination of such order, or the notice complained of and
incorporate findings therein.
(c) In view of the urgent need for prompt decision of
matters submitted to the director under this law, all actions
which the director takes under this section shall be taken as
promptly as practicable, consistent with adequate consideration
of the issues involved.
(d) Pending completion of the investigation required by this
section, the applicant may file with the director a written
request that the director grant temporary relief from any
modification or termination of any order, or from any order
issued under section fifteen of this article, except an order
issued under section sixteen of this article, together with a
detailed statement giving reasons for granting such relief. The
director may grant such relief, under such conditions as he or
she may prescribe, if:
(1) A hearing has been held in which all parties were given
an opportunity to be heard;
(2) The applicant shows that there is substantial likelihood
that the findings of the director will be favorable to the
applicant; and
(3) Such relief will not adversely affect the health and
safety of miners in the coal mine.
No temporary relief shall be granted in the case of a notice
issued under section fifteen of this article.
§22A-1-18. Posting of notices, orders and decisions; delivery
to
agent of operator; names and addresses to be filed by
operators.
(a) At each coal mine there shall be maintained an office
with a conspicuous sign designating it as the office of the mine,
and a bulletin board at such office or at some conspicuous place
near an entrance of the mine, in such manner that notices, orders
and decisions required by this law or rule to be posted on the
mine bulletin board may be posted thereon, be easily visible to
all persons desiring to read them, and be protected against
damage by weather and against unauthorized removal. A copy of
any notice, order or decision required by this law to be given to
an operator shall be delivered to the office of the affected
mine, and a copy shall be immediately posted on the bulletin
board of such mine by the operator or the operator's agent.
(b) The director shall cause a copy of any notice, order or
decision required by this law to be given to an operator to be
mailed immediately to a representative of the miners. Such
notice, order or decision shall be available for public
inspection.
(c) In order to ensure prompt compliance with any notice,
order or decision issued under this law, the authorized
representative of the director may deliver such notice, order or
decision to an agent of the operator and such agent shall
immediately take appropriate measures to ensure compliance with
such notice, order or decision.
(d) Each operator of a coal mine shall file with thedirector the name and address of such mine and the name and
address of the person who controls or operates the mine. Any
revisions in such names or addresses shall be promptly filed with
the director. Each operator of a coal mine shall designate a
responsible official at such mine as the principal officer in
charge of health and safety at such mine, and such official shall
receive a copy of any notice, order or decision issued under this
law affecting such mine. In any case, where the coal mine is
subject to the control of any person not directly involved in the
daily operations of the coal mine, there shall be filed with the
director the name and address of such person and the name and
address of a principal official of such person who has overall
responsibility for the conduct of an effective health and safety
program at any coal mine subject to the control of such person
and such official shall receive a copy of any notice, order or
decision issued affecting any such mine. The mere designation of
a health and safety official under this subsection does not make
such official subject to any penalty under this law.
§22A-1-19. Judicial review.
(a) Any order or decision issued by the director under this
law, except an order or decision under section fifteen of this
article is subject to judicial review by the circuit court of the
county in which the mine affected is located or the circuit court
of Kanawha county upon the filing in such court or with the judge
thereof in vacation of a petition by any person aggrieved by the
order or decision praying that the order or decision be modifiedor set aside in whole or in part, except that the court shall not
consider such petition unless such person has exhausted the
administrative remedies available under this law and files within
thirty days from date of such order or decision.
(b) The party making such appeal shall forthwith send a copy
of such petition for appeal, by registered mail, to the other
party. Upon receipt of such petition for appeal, the director
shall promptly certify and file in such court a complete
transcript of the record upon which the order or decision
complained of was issued. The court shall hear such petition on
the record made before the director. The findings of the
director, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. The court may
affirm, vacate or modify any order or decision or may remand the
proceedings to the director for such further action as it may
direct.
(c) In the case of a proceeding to review any order or
decision issued by the director under this law, except an order
or decision pertaining to an order issued under subsection (a),
section fifteen of this article or an order or decision
pertaining to a notice issued under subsection (b) of said
section, the court may, under such conditions as it may
prescribe, grant such temporary relief as it deems appropriate
pending final determination of the proceedings if:
(A) All parties to the proceeding have been notified and
given an opportunity to be heard on a request for temporaryrelief;
(B) The person requesting such relief shows that there is a
substantial likelihood that the person will prevail on the merits
of the final determination of the proceeding; and
(C) Such relief will not adversely affect the health and
safety of miners in the coal mine.
(d) The judgment of the court is subject to review only by
the supreme court of appeals of West Virginia upon a writ of
certiorari filed in such court within sixty days from the entry
of the order and decision of the circuit court upon such appeal
from the director.
(e) The commencement of a proceeding under this section
shall not, unless specifically ordered by the court, operate as
a stay of the order or decision of the director.
(f) Subject to the direction and control of the attorney
general, attorneys appointed for the director may appear for and
represent the director in any proceeding instituted under this
section.
§22A-1-20. Injunctions.
The director may institute a civil action for relief,
including a permanent or temporary injunction, restraining order,
or any other appropriate order in the circuit court of the county
in which the mine is located or the circuit court of Kanawha
county, whenever the operator or the operator's agent: (a)
Violates or fails or refuses to comply with any order or decision
issued under this law; or (b) interferes with, hinders or delaysthe director or his or her authorized representative in carrying
out the provisions of this law; or (c) refuses to admit such
representatives to the mine; or (d) refuses to permit the
inspection of the mine, or the investigation of an accident or
occupational disease occurring in, or connected with, such mine;
or (e) refuses to furnish any information or report requested by
the director in furtherance of the provisions of this law; or (f)
refuses to permit access to, and copying of, such records as the
director determines necessary in carrying out the provisions of
this law. Each court shall have jurisdiction to provide such
relief as may be appropriate. Except as otherwise provided
herein, any relief granted by the court to enforce an order under
clause (a) of this section shall continue in effect until the
completion or final termination of all proceedings for review of
such order under this law, unless, prior thereto, the circuit
court granting such relief sets it aside or modifies it. In any
action instituted under this section to enforce an order or
decision issued by the director after a public hearing, the
findings of the director, if supported by substantial evidence on
the record considered as a whole, shall be conclusive.
§22A-1-21. Penalties.
(a) (1) Any operator of a coal mine in which a violation
occurs of any health or safety rule or who violates any other
provisions of this law, shall be assessed a civil penalty by the
director under subdivision (3) of this subsection, which penalty
shall be not more than three thousand dollars, for each suchviolation. Each such violation shall constitute a separate
offense. In determining the amount of the penalty, the director
shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of
the operator charged, the gravity of the violation and the
demonstrated good faith of the operator charged in attempting to
achieve rapid compliance after notification of a violation.
(2) Any miner who knowingly violates any health or safety
provision of this chapter or health or safety rule promulgated
pursuant to this chapter is subject to a civil penalty assessed
by the director under subdivision (3) of this subsection which
penalty shall not be more than two hundred fifty dollars for each
occurrence of such violation.
(3) A civil penalty shall be assessed by the director only
after the person charged with a violation under this chapter or
rule promulgated pursuant to this chapter has been given an
opportunity for a public hearing and the director has determined,
by a decision incorporating his findings of fact therein, that a
violation did occur, and the amount of the penalty which is
warranted, and incorporating, when appropriate, an order therein
requiring that the penalty be paid. Any hearing under this
section shall be of record.
(4) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in such
order, the director shall file a petition for enforcement of such
order in any appropriate circuit court. The petition shalldesignate the person against whom the order is sought to be
enforced as the respondent. A copy of the petition shall
forthwith be sent by certified mail, return receipt requested, to
the respondent and to the representative of the miners at the
affected mine or the operator, as the case may be, and thereupon
the director shall certify and file in such court the record upon
which such order sought to be enforced was issued. The court
shall have jurisdiction to enter a judgment enforcing, modifying,
and enforcing as so modified, or setting aside, in whole or in
part, the order and decision of the director or it may remand the
proceedings to the director for such further action as it may
direct. The court shall consider and determine de novo all
relevant issues, except issues of fact which were or could have
been litigated in review proceedings before a circuit court under
section twenty of this article, and upon the request of the
respondent, such issues of fact which are in dispute shall be
submitted to a jury. On the basis of the jury's findings the
court shall determine the amount of the penalty to be imposed.
Subject to the direction and control of the attorney general,
attorneys appointed for the director may appear for and represent
the director in any action to enforce an order assessing civil
penalties under this subdivision.
(b) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule promulgated
pursuant to this chapter, or knowingly violates or fails or
refuses to comply with any order issued under section fifteen ofthis article, or any order incorporated in a final decision
issued under this article, except an order incorporated in a
decision under subsection (a) of this section or subsection (b),
section twenty-two of this article, shall be assessed a civil
penalty by the director under subdivision (3), subsection (a) of
this section, of not more than five thousand dollars, and for a
second or subsequent violation assessed a civil penalty of not
more than ten thousand dollars.
(c) Whenever a corporate operator knowingly violates a
health or safety provision of this chapter or health or safety
rules promulgated pursuant to this chapter, or knowingly violates
or fails or refuses to comply with any order issued under this
law or any order incorporated in a final decision issued under
this law, except an order incorporated in a decision issued under
subsection (a) of this section or subsection (b), section twenty-
two of this article, any director, officer or agent of such
corporation who knowingly authorized, ordered or carried out such
violation, failure or refusal, is subject to the same civil
penalties that may be imposed upon a person under subsections (a)
and (b) of this section.
(d) Whoever knowingly makes any false statement,
representation or certification in any application, record,
report, plan or other document filed or required to be maintained
pursuant to this law or any order or decision issued under this
law, is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars or imprisonedin the county jail not more than six months, or both fined and
imprisoned. The conviction of any person under this subsection
shall result in the revocation of any certifications held by the
person under this chapter which certified or authorized the
person to direct other persons in coal mining by operation of law
and bars the person from being issued any such license under this
chapter, except a miner's certification, for a period of not less
than one year or for such longer period as may be determined by
the director.
(e) Whoever willfully distributes, sells, offers for sale,
introduces or delivers in commerce any equipment for use in a
coal mine, including, but not limited to, components and
accessories of such equipment, who willfully misrepresents such
equipment as complying with the provisions of this law, or with
any specification or rule of the director applicable to such
equipment, and which does not so comply, is guilty of a
misdemeanor, and, upon conviction thereof, is subject to the same
fine and imprisonment that may be imposed upon a person under
subsection (d) of this section.
(f) There is hereby created under the treasury of the state
of West Virginia a special health, safety and training fund. All
civil penalty assessments collected under section twenty-one of
this article shall be collected by the director and deposited
with the treasurer of the state of West Virginia to the credit of
the special health, safety and training fund. The fund shall be
used by the director and he or she is authorized to expend themoneys in the fund for the administration of this chapter.
§22A-1-22. Discrimination.
(a) No person shall discharge or in any other way
discriminate against or cause to be discharged or discriminated
against any miner or any authorized representative of miners by
reason of the fact that the person believes or knows that such
miner or representative: (1) Has notified the director, his or
her authorized representative, or an operator, directly or
indirectly, of any alleged violation or danger; (2) has filed,
instituted or caused to be filed or instituted any proceeding
under this law; (3) has testified or is about to testify in any
proceeding resulting from the administration or enforcement of
the provisions of this law. No miner or representative shall be
discharged or in any other way discriminated against or caused to
be discriminated against because a miner or representative has
done (1), (2) or (3) above.
(b) Any miner or a representative of miners who believes
that he or she has been discharged or otherwise discriminated
against, or any miner who has not been compensated by an operator
for lost time due to the posting of a withdrawal order, may,
within thirty days after such violation occurs, apply to the
appeals board for a review of such alleged discharge,
discrimination, or failure to compensate. A copy of the
application shall be sent to such person who shall be the
respondent. Upon receipt of such application, the appeals board
shall cause such investigation to be made as it deemsappropriate. Such investigation shall provide an opportunity for
a public hearing at the request of any party to enable the
parties to present information relating to such violation. The
parties shall be given written notice of the time and place of
the hearing at least five days prior to the hearing. Mailing of
the notice of hearing to the charged party at the party's last
address of record as reflected in the records of the office is
adequate notice to the charged party. Such notice shall be by
certified mail, return receipt requested. Any such hearing shall
be of record. Upon receiving the report of such investigation,
the board shall make findings of fact. If it finds that such
violation did occur, it shall issue a decision within forty-five
days, incorporating an order therein, requiring the person
committing such violation to take such affirmative action to
abate the violation as the board deems appropriate, including,
but not limited to, the rehiring or reinstatement of the miner or
representative of miners to his or her former position with back
pay, and also pay compensation for the idle time as a result of
a withdrawal order. If it finds that there was no such
violation, it shall issue an order denying the application. Such
order shall incorporate the board's finding therein. If the
proceedings under this section relative to discharge are not
completed within forty-five days of the date of discharge due to
delay caused by the operator, the miner shall be automatically
reinstated until the final determination. If such proceedings
are not completed within forty-five days of the date of dischargedue to delay caused by the board, then the board may, at its
option, reinstate the miner until the final determination. If
such proceedings are not completed within forty-five days of the
date of discharge due to delay caused by the miner the board
shall not reinstate the miner until the final determination.
(c) Whenever an order is issued under this section, at the
request of the applicant, a sum equal to the aggregate amount of
all costs and expenses including the attorney's fees as
determined by the board to have been reasonably incurred by the
applicant for, or in connection with, the institution and
prosecution of such proceedings, shall be assessed against the
person committing such violation.
§22A-1-23. Records and reports.
In addition to such records as are specifically required by
this law, every operator of a coal mine shall establish and
maintain such records, make such reports, and provide such
information, as the director may reasonably require from time to
time to enable the director to perform his or her functions under
this law. The director is authorized to compile, analyze, and
publish, either in summary or detailed form, such reports or
information so obtained. Except to the extent otherwise
specifically provided by this law, all records, information,
reports, findings, notices, orders, or decisions required or
issued pursuant to or under this law may be published from time
to time, may be released to any interested person, and shall be
made available for public inspection.
§22A-1-24. Mine foreman examiner for mine foremen-fire bosses
and assistant mine foremen-fire bosses; salary.
The director shall appoint a mine foreman examiner to
examine and certify mine foremen-fire bosses, assistant mine
foremen-fire bosses and mine examiners or fire bosses. Such mine
foremen examiners shall be paid a minimum salary of thirty-one
thousand thirty-two dollars per year.
§22A-1-25. Duties of mine foreman examiner.
The duties of the mine foreman examiner are to:
(a) Prepare and conduct examinations of mine foremen,
assistant mine foremen and fire bosses;
(b) Prepare and certify to the director a register of all
persons who successfully completed the examination with a passing
grade of eighty percent.
§22A-1-26. Place and time for examinations.
The director shall determine the location where the mine
foreman examiner shall meet for the purpose of holding
examinations, and at least two weeks' notice of the time and
place where the examinations are to be held shall be given.
The examinations shall be given at any location where there
are at least five men to be tested, and adequate facilities to
conduct such examination. The office of the secretary to the
mine foreman examiner shall be located in the capitol complex in
Charleston. All records pertaining to the examinations shall be
kept at such office.
§22A-1-27. Preparation of examinations; notice of intention to
take examination; investigation of applicants.
The mine foreman examiner shall, with the approval of the
director, prepare, and from time to time, modify examinations to
be administered applicants for certification as mine foremen and
fire bosses.
All persons who desire to appear for examination shall
notify the mine foreman examiner of their intentions to appear,
if possible, not less than ten days prior to the date set for the
examination. The mine foreman examiner shall inquire into the
character and qualifications of the applicants who present
themselves for examination.
§22A-1-28. Certificates of qualification heretofore granted.
Certificates of qualification of service heretofore granted
shall have equal value with certificates of qualifications
granted under this law.
§22A-1-29. Mine foreman examiner to certify successful
applicants to director.
The mine foreman examiner shall certify to the director, on
a form furnished by the director, every person whose examination
shall disclose the person's fitness for the duties of mine
foreman, assistant mine foreman, and fire boss, as above
classified, and the director shall prepare certificates of
qualification for the successful applicants and send them to the
mine foreman examiner for distribution.
§22A-1-30. Record of examination.
The mine foreman examiner shall send to the director theanswers and all other papers of the applicants, together with the
tally sheets and a list of the questions and answers as prepared
by the mine foreman examiner which shall be filed in the office
as public documents.
§22A-1-31. Withdrawal of certification.
(a)
Charge of breach of duty. -- A mine inspector or the
director may charge a mine foreman, assistant mine foreman, fire
boss or any other certified person with neglect or failure to
perform any duty mandated pursuant to this article or article two
of this chapter. The charge shall state the name of the person
charged, the duty or duties he or she is alleged to have
violated, the approximate date and place so far as is known of
the violation of duty, the capacity of the person making the
charge, and shall be verified on the basis of information and
belief or personal knowledge. The charge is initiated by filing
it with the director or with the board of appeals. A copy of any
charge filed with the board of appeals or any member thereof,
shall be transmitted promptly to the director. The director
shall maintain a file of each charge and of all related documents
which shall be open to the public.
(b)
Evaluation of charge by board of appeals. -- Within
twenty days after receipt of the charge the board shall evaluate
the charge and determine whether or not a violation of duty has
been stated. In making such a determination the board shall
evaluate all documents submitted to it by all persons to
determine as nearly as possible the substance of the charge andif the board of appeals is unable to determine the substance of
the charge it may request the director to investigate the charge.
Upon request, the director shall cause the charge to be
investigated and report the results of the investigation to the
board of appeals within ten days of the director's receipt of the
charge. If the board determines that probable cause exists to
support the allegation that the person charged has violated his
or her duty, the board by the end of the twenty-day period shall
set a date for hearing which date shall be within eighty days of
the filing of the charge. Notice of the hearing or notice of
denial of the hearing for failure to state a charge and a copy of
the charge shall be mailed by certified mail, return receipt
requested, to the charging party, the charged party, the
commissioner, the director, the representative of the miner or
miners affected, and to any interested person of record.
Thereafter the board shall maintain the file of the charge which
shall contain all documents, testimony and other matters filed
which shall be open for public inspection.
(c)
Hearing. -- The board of appeals shall hold a hearing,
may appoint a hearing examiner to take evidence and report to the
board of appeals within the time allotted, may direct or
authorize taking of oral depositions under oath by any
participant, or adopt any other method for the gathering of sworn
evidence which affords the charging party, the charged party, the
director and any interested party of record due process of law
and a fair opportunity to present and make a record of evidence. Any member of the board shall have the power to administer oaths.
The board may subpoena witnesses and require production of any
books, papers, records, or other documents relevant or material
to the inquiry. The board shall consider all evidence offered in
support of the charge and on behalf of the persons so charged at
the time and place designated in the notice. Each witness shall
be sworn and a transcript shall be made of all evidence presented
in any such hearing. No continuance shall be granted except for
good cause shown.
At the conclusion of the hearing the board shall proceed to
determine the case upon consideration of all the evidence offered
and shall render a decision containing its findings of fact and
conclusions of law. If the board finds by a preponderance of the
evidence that the certificate or certificates of the charged
person should be suspended or revoked, as hereinafter provided,
it shall enter an order to that effect. No renewal of the
certificate shall be granted except as herein provided.
(d)
Failure to cooperate. -- Any person charged who without
just cause refuses or fails to appear before the board or
cooperate in the investigation or gathering of evidence shall
forfeit his or her certificate or certificates for a period to be
determined by the board, not to exceed five years, and such
certificate or certificates may not be renewed except upon a
successful completion of the examination prescribed by the law
for mine foremen, assistant mine foremen, fire bosses or other
certified persons.
(e)
Penalties. -- The board may suspend or revoke the
certificate or certificates of a charged party for a minimum of
thirty days or more including an indefinite period or may revoke
permanently the certificate or certificates of the charged party,
as it sees fit, subject to the prescribed penalties and monetary
fines imposed elsewhere in this chapter.
(f)
Integrity of penalties imposed. -- No person whose
certification is suspended or revoked under this provision can
perform any duties under any other certification issued under
this chapter, during the period of the suspension imposed herein.
(g) Any party adversely affected by a final order or
decision issued by the board hereunder is entitled to judicial
review thereof pursuant to section four, article five, chapter
twenty-nine-a of this code.
§22A-1-32. Certification of mine foreman or assistant mine
foreman whose license to engage in similar activities
suspended in another state.
Any person whose license, certificate or similar authority
to perform any supervisory or fire boss duties in another state
has been suspended or revoked by that state cannot be certified
under any provision of this chapter during the period of such
suspension or revocation in the other state.
§22A-1-33. Mine rescue stations; equipment.
The director is hereby authorized to purchase, equip and
operate for the use of said office such mine rescue stations and
equipment as he or she may deem necessary.
§22A-1-34. Mine rescue crews.
The director is hereby authorized to have trained and
employed at the rescue stations, operated by the office within
the state, such rescue crews as he or she may deem necessary.
Each member of a rescue crew shall devote four hours each month
for training purposes and shall be available at all times to
assist in rescue work at explosions and mine fires. Regular
members shall receive for such services the sum of thirty-two
dollars per month, and captains shall receive thirty-five dollars
per month, payable on requisition approved by the director. The
director may remove any member of a rescue crew at any time.
§22A-1-35. Mine rescue teams.
(a) It is the responsibility of the operator to provide mine
rescue coverage at each active underground mine.
(b) Mine rescue coverage may be provided by:
(1) Establishing at least two mine rescue teams which are
available at all times when miners are underground; or
(2) Entering into an arrangement for mine rescue services
which assures that at least two mine rescue teams are available
at all times when miners are underground.
(c) As used in this section, mine rescue teams shall be
considered available where teams are capable of presenting
themselves at the mine site(s) within a reasonable time after
notification of an occurrence which might require their services.
Rescue team members will be considered available even though
performing regular work duties or while in an off-duty capacity. The requirement that mine rescue teams be available does not
apply when teams are participating in mine rescue contests or
providing rescue services to another mine.
(d) In the event of a fire, explosion or recovery operations
in or about any mine, the director is hereby authorized to assign
any mine rescue team to said mine to protect and preserve life
and property. The director may also assign mine rescue and
recovery work to inspectors, instructors or other qualified
employees of the office as he or she deems necessary.
(e) The ground travel time between any mine rescue station
and any mine served by that station shall not exceed two hours.
To ensure adequate rescue coverage for all underground mines, no
mine rescue station may provide coverage for more than seventy
mines within the two-hour ground travel limit as defined in this
subsection.
(f) Each mine rescue team shall consist of five members and
one alternate, who are fully qualified, trained and equipped for
providing emergency mine rescue service. Each mine rescue team
shall be trained by a state certified mine rescue instructor.
(g) Each member of a mine rescue team must have been
employed in a underground mine for a minimum of one year. For
the purpose of mine rescue work only, miners who are employed on
the surface but work regularly underground meet the experience
requirement. The underground experience requirement is waived
for those members of a mine rescue team on the effective date of
this statute.
(h) An applicant for initial mine rescue training must not
have reached his or her fiftieth birthday, and shall pass, on at
least an annual basis, a physical examination by a licensed
physician certifying his or her fitness to perform mine rescue
work. A record that such examination was taken, together with
pertinent data relating thereto, shall be kept on file by the
operator and a copy shall be furnished to the director.
(i) Upon completion of the initial training, all mine rescue
team members shall receive at least forty hours of refresher
training annually. This training shall be given at least four
hours each month, or for a period of eight hours every two
months, and shall include:
(1) Sessions underground at least once every six months;
(2) The wearing and use of a breathing apparatus by team
members for a period of at least two hours, while under oxygen,
once every two months;
(3) Where applicable, the use, care, capabilities and
limitations of auxiliary mine rescue equipment, or a different
breathing apparatus;
(4) Mine map training and ventilation procedures.
(j) When engaged in rescue work required by an explosion,
fire or other emergency at a mine, all members of mine rescue
teams assigned to rescue operations shall, during the period of
their rescue work, be employees of the operator of the mine where
the emergency exists, and shall be compensated by the operator at
the rate established in the area for such work. In no case shallthis rate be less than the prevailing wage rate in the industry
for the most skilled class of inside mine labor. During the
period of their emergency employment, members of mine rescue
teams shall be protected by the workers' compensation
subscription of such emergency employer.
(k) During the recovery work and prior to entering any mine
at the start of each shift, all rescue or recovery teams shall be
properly informed of existing conditions and work to be performed
by the designated company official in charge.
(1) For every two teams performing rescue or recovery work
underground, one six-member team shall be stationed at the mine
portal.
(2) Each rescue or recovery team performing work with a
breathing apparatus shall be provided with a backup team of equal
number, stationed at each fresh air base.
(3) Two-way communication and a lifeline or its equivalent
shall be provided at each fresh air base for all mine rescue or
recovery teams and no mine rescue team member shall advance more
than one thousand feet inby the fresh air base:
Provided, That
if a life may possibly be saved and existing conditions do not
create an unreasonable hazard to mine rescue team members, the
rescue team may advance a distance agreed upon by those persons
directing the mine rescue or recovery operations:
Provided,
however, That a lifeline or its equivalent shall be provided in
each fresh air base for all mine rescue or recovery teams.
(4) A rescue or recovery team shall immediately return tothe fresh air base when the atmospheric pressure of any member's
breathing apparatus depletes to sixty atmospheres, or its
equivalent.
(l) Mine rescue stations shall provide a centralized storage
location for rescue equipment. This storage location may be
either at the mine site, affiliated mines or a separate mine
rescue structure. All mine rescue teams shall be guided by the
mine rescue apparatus and auxiliary equipment manual. Each mine
rescue station shall be provided with at least the following
equipment:
(1) Twelve self-contained oxygen breathing apparatuses, each
with a minimum of two hours capacity, and any necessary equipment
for testing such breathing apparatuses;
(2) A portable supply of liquid air, liquid oxygen,
pressurized oxygen, oxygen generating or carbon dioxide absorbent
chemicals, as applicable to the supplied breathing apparatuses
and sufficient to sustain each team for six hours while using the
breathing apparatuses during rescue operations;
(3) One extra, fully charged, oxygen bottle for each self-
contained compressed oxygen breathing apparatus, as required
under subdivision (1) of this subsection;
(4) One oxygen pump or a cascading system, compatible with
the supplied breathing apparatuses;
(5) Twelve permissible cap lamps and a charging rack;
(6) Two gas detectors appropriate for each type of gas which
may be encountered at the mines served;
(7) Two oxygen indicators or two flame safety lamps;
(8) One portable mine rescue communication system or a
sound-powered communication system. The wires or cable to the
communication system shall be of sufficient tensile strength to
be used as a manual communication system. The communication
system shall be at least one thousand feet in length; and
(9) Necessary spare parts and tools for repairing the
breathing apparatuses and communication system, as presently
prescribed by the manufacturer.
(m) Mine rescue apparatuses and equipment shall be
maintained in a manner that will ensure readiness for immediate
use. A person trained in the use and care of breathing
apparatuses shall inspect and test the apparatuses at intervals
not exceeding thirty days and shall certify by signature and date
that the inspections and tests were done. When the inspection
indicates that a corrective action is necessary, the corrective
action shall be made and recorded by said person. The
certification and corrective action records shall be maintained
at the mine rescue station for a period of one year and made
available on request to an authorized representative of the
director.
(n) Authorized representatives of the director have the
right of entry to inspect any designated mine rescue station.
(o) When an authorized representative finds a violation of
any of the mine rescue requirements, the representative shall
take appropriate corrective action in accordance with sectionfifteen of this article.
(p) Operators affiliated with a station issued an order by
an authorized representative will be notified of that order and
that their mine rescue program is invalid. The operators shall
have twenty-four hours to submit to the director a revised mine
rescue program.
(q) Every operator of an underground mine shall develop and
adopt a mine rescue program for submission to the director within
thirty days of the effective date of this statute:
Provided,
That a new program need only be submitted when conditions exist
as defined in subsection (p) of this section, or when information
contained within the program has changed.
(r) A copy of the mine rescue program shall be posted at the
mine and kept on file at the operator's mine rescue station or
rescue station affiliate and the state regional office where the
mine is located. A copy of the mine emergency notification plan
filed pursuant to 30 CFR §49.9(a) will satisfy the requirements
of subsection (q) of this section if submitted to the director.
(s) The operator shall immediately notify the director of
any changed conditions materially affecting the information
submitted in the mine rescue program.
§22A-1-36. Mandatory safety programs; penalties.
(a) The director, in consultation with the state board of
coal mine health and safety, shall promulgate rules in accordance
with chapter twenty-nine-a of this code, detailing the
requirements for mine safety programs to be established by coaloperators, as provided in subsection (b) of this section. The
rules may require different types of safety programs to be
developed, depending upon the output of the particular mine, the
number of employees of the particular mine, the location of the
particular mine, the physical features of the particular mine or
any other factor deemed relevant by the director.
(b) Within six months of the date when the rules required in
subsection (a), above, become final, each operator shall develop
and submit to the director a comprehensive mine safety program
for each mine, in accordance with such rules. Each employee of
the mine shall be afforded an opportunity to review and submit
comments to the director regarding the modification or revision
of such program, prior to submission of such program to the
director. Upon submission of such program the director has
ninety days to approve, reject or modify such program. If the
program is rejected, the director shall give the operator a
reasonable time to correct and resubmit such program. Each
program which is approved shall be reviewed, at least annually,
by the director. An up-to-date copy of each program shall be
placed on file in the office and further copies shall be made
available to the miners of each mine and their representatives.
Each operator shall undertake all efforts necessary to assure
total compliance with the appropriate safety program at each mine
and shall fully implement all portions of such program.
(c) Any person violating any provision of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall befined not less than one hundred nor more than one thousand
dollars, or imprisoned in the county jail for not more than six
months, or both fined and imprisoned.
§22A-1-37. Certification of surface-mine foremen.
(a) In every surface mine, regulated under the provisions of
article three or four, chapter twenty-two of this code, where
five or more persons are employed in a period of twenty-four
hours, the operator shall employ at least one person certified in
accordance with the provisions of article seven of this chapter
as a mine foreman. Each applicant for certification as a mine
foreman shall, at the time of issuance of a certificate of
competency: (1) Be a resident or employed in a mine in this
state; (2) have had at least three years' experience in surface
mining, which shall include at least eighteen months' experience
on or at a working section of a surface mine, or be a graduate of
the school of mines at West Virginia university or of another
accredited mining engineering school and have had at least two
years' practical experience in a surface mine, which shall
include at least eighteen months' experience on or at a working
section of a surface mine; and (3) have demonstrated knowledge of
mine safety, first aid, safety appliances, emergency procedures
relative to all equipment, state and federal mining laws and
regulations and other subjects, by completing such training,
education and examinations as may be required under article seven
of this chapter.
(b) In surface mines in which the operations are soextensive that the duties devolving upon the mine foreman cannot
be discharged by one person, one or more assistant mine foreman
may be designated. Such persons shall act under the instruction
of the mine foreman who shall be responsible for their conduct in
the discharge of their duties. Each assistant so designated
shall be certified under the provisions of article seven of this
chapter. Each applicant for certification as assistant mine
foreman shall, at the time of issuance of a certificate of
competency, possess all of the qualifications required of a mine
foreman:
Provided, That at the time of certification the person
is required to have at least two years' experience in surface
mining, which shall include eighteen months on or at a working
section of a surface mine or be a graduate of the school of mines
at West Virginia University or of another accredited mining
engineering school and have had twelve months' practical
experience in a surface mine, all of which shall have been on or
at a working section.
(c) The director shall promulgate such rules as may be
necessary to carry out the provisions of this section.
§22A-1-38. Applicability and enforcement of laws safeguarding
life and property; rules authority of director regarding
enforcing safety laws.
All provisions of this chapter intended to safeguard life
and property shall extend to all surface-mining operations,
regulated under articles three and four, chapter twenty-two of
this code, insofar as such laws are applicable thereto. Thedirector shall promulgate reasonable rules in accordance with the
provisions of chapter twenty-nine-a of this code to protect the
safety of those employed in and around surface mines. The
enforcement of all laws and rules relating to the safety of those
employed in and around surface mines is hereby vested in the
director and shall be enforced according to the provisions of
this chapter.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-1. Supervision by professional engineer or licensed land
surveyor; seal and certification; contents; extensions;
repository; availability; traversing; copies; archive; final
survey and map; penalties.
The mapping of all coal mines shall be supervised by a
competent engineer or land surveyor. The work of such engineer
or land surveyor shall be supervised by either a civil engineer
or a mining engineer certified by the board of engineers, which
exists by authority of section three, article thirteen, chapter
thirty of this code, or a licensed land surveyor approved by the
board of examiners of land surveyors as provided by section
three, article thirteen-a of said chapter. To each map
supervised by the engineer or land surveyor there shall be
affixed thereto the seal of a certified or professional engineer
or licensed land surveyor, which shall be identical to the design
authorized by the board of engineers, as provided in section
nine, article thirteen of said chapter thirty or board of
examiners of land surveyors as provided by section eleven,article thirteen-a of said chapter thirty. Every map certified
shall have the professional engineer's or land surveyor's
signature and certificate, in addition to his or her seal, in the
following form:
"I, the undersigned, hereby certify that this map is correct
and shows all the information, to the best of my knowledge and
belief, required by the laws of this State, and covers the period
ending __________________________________________________________
____________________________P. E.
(Either Civil Or Mining Engineer
Or Land Surveyor)."
The operator of every underground coal mine shall make, or
cause to be made, an accurate map of such mine, on a scale of not
less than one hundred, and not more than five hundred feet to the
inch. The map of such mine shall show:
(1) Name and address of the mine;
(2) The scale and orientation of the map;
(3) The property or boundary lines of the mine;
(4) The shafts, slopes, drifts, tunnels, entries, rooms,
crosscuts and all other excavations and auger and strip mined
areas of the coalbed being mined;
(5) All drill holes that penetrate the coalbed being mined;
(6) Dip of the coalbed;
(7) The outcrop of the coalbed within the bounds of the
property assigned to the mine;
(8) The elevations of tops and bottoms of shafts and slopes,and the floor at the entrance to drift and tunnel openings;
(9) The elevation of the floor at intervals of not more than
two hundred feet in:
(a) At least one entry of each working section, and main and
cross entries;
(b) The last line of open crosscuts of each working section,
and main and cross entries before such sections and main and
cross entries are abandoned; and
(c) Rooms advancing toward or adjacent to property or
boundary lines or adjacent mines;
(10) Contour lines passing through whole number elevations
of the coalbed being mined, the spacing of such lines not to
exceed ten-foot elevation levels, except that a broader spacing
of contour lines may be approved for steeply pitching coalbeds by
the person authorized so to do under the federal act; and contour
lines may be placed on overlays or tracings attached to mine
maps;
(11) As far as practicable the outline of existing and
extracted pillars;
(12) Entries and air courses with the direction of airflow
indicated by arrows;
(13) The location of all surface mine ventilation fans,
which location may be designated on the mine map by symbols;
(14) Escapeways;
(15) The known underground workings in the same coalbed on
the adjoining properties within one thousand feet of such mineworkings and projections;
(16) The location of any body of water dammed in the mine or
held back in any portion of the mine, but such bodies of water
may be shown on overlays or tracings attached to the mine maps
used to show contour lines, as provided under subdivision (10) of
this section;
(17) The elevation of any body of water dammed in the mine
or held back in any portion of the mine;
(18) The abandoned portion or portions of the mine;
(19) The location and description of at least two permanent
base line points coordinated with the underground and surface
mine traverses, and the location and description of at least two
permanent elevation bench marks used in connection with
establishing or referencing mine elevation surveys;
(20) Mines above or below;
(21) Water pools above;
(22) The location of the principal streams and bodies of
water on the surface;
(23) Either producing or abandoned oil and gas wells located
within five hundred feet of such mine and any underground area of
such mine;
(24) The location of all high pressure pipelines, high
voltage power lines and principal roads;
(25) The location of railroad tracks and public highways
leading to the mine, and mine buildings of a permanent nature
with identifying names shown;
(26) Where the overburden is less than one hundred feet,
occupied dwellings; and
(27) Such other information as may be required under the
federal act or by the office of miners' health, safety and
training.
The operator of every underground coal mine shall extend, or
cause to be extended, on or before the first day of March and on
or before the first day of September of each year, such mine map
thereof to accurately show the progress of the workings as of the
first day of July and the first day of January of each year.
Such map shall be kept up to date by temporary notations, which
shall include:
(1) The location of each working face of each working place;
(2) Pillars mined or other such second mining;
(3) Permanent ventilation controls constructed or removed,
such as seals, overcasts, undercasts, regulators and permanent
stoppings, and the direction of air currents indicated; and
(4) Escapeways designated by means of symbols.
Such map shall be revised and supplemented at intervals
prescribed under the federal act on the basis of a survey made or
certified by such engineer or surveyor, and shall be kept by the
operator in a fireproof repository located in an area on the
surface chosen by the operator to minimize the danger of
destruction by fire or other hazard.
Such map and any revision and supplement thereof shall be
available for inspection by a federal mine inspector, by minehealth and safety instructors, by miners in the mine and their
representatives and by operators of adjacent coal mines and by
persons owning, leasing or residing on surface areas of such
mines or areas adjacent to such mines, and a copy of such map and
any revision and supplement thereof shall be promptly filed with
the office of miners' health, safety and training. The operator
shall also furnish to persons expressly entitled thereto under
the federal act, upon request, one or more copies of such maps
and any revision and supplement thereof. Such map or revision
and supplement thereof shall be kept confidential and its
contents shall not be divulged to any other person, except to the
extent necessary to carry out the provisions of the federal act
and this chapter and in connection with the functions and
responsibilities of the secretary of housing and urban
development.
Surveying calculations and mapping of underground coal mines
which were or are opened or reopened after the first day of July,
one thousand nine hundred sixty-nine, shall be done by the
rectangular coordinate traversing method and meridians carried
through and tied between at least two parallel entries of each
development panel and panels or workings adjacent to mine
boundaries or abandoned workings. These surveys shall originate
from at least three permanent survey monuments on the surface of
the mine property. The monuments shall be clearly referenced and
described in the operator's records. Elevations shall be tied to
either the United States geological survey or the United Statescoast and geodetic survey bench mark system, be clearly
referenced and described on such map.
Underground coal mines operating on the first day of July,
one thousand nine hundred sixty-nine, and not using the
rectangular coordinate traversing method shall, within two years
of such date, convert to this procedure for surveying
calculations and mapping. Meridians shall be carried through and
tied between at least two parallel entries of each development
panel and panels or workings adjacent to mine boundaries or
abandoned workings. These surveys shall originate from at least
three permanent survey monuments on the surface of the mine
property. The monuments shall be clearly referenced and
described in the coal mine operator's records. Elevations shall
be tied to either the United States geological survey or the
United States coast and geodetic survey bench mark system, be
clearly referenced and described on such map.
The operator of such underground coal mine shall, by
reasonable proof, demonstrate to the director or to any federal
mine inspector concerned, at any time, that a diligent search was
made for all existing and available maps and survey data for the
workings on the adjoining properties. The operator shall further
be able to show proof to the director or to any federal mine
inspector concerned, that a suitable method was used to insure
accuracy in the methods used in transposing other workings to the
map of such mine.
There shall be an archive of underground coal mine mapsmaintained at the office of the director. The archive shall:
(1) Be secured in a fireproof and burglarproof vault;
(2) Have an appropriate map identification system; and
(3) Have adequate map microfilming facilities.
Whenever an operator permanently closes or abandons an
underground coal mine, or temporarily closes an underground coal
mine for a period of more than ninety days, he or she shall
promptly notify the office of miners' health, safety and training
and the federal mine inspector of the district in which such mine
is located of such closure. Within sixty days of the permanent
closure or abandonment of an underground coal mine, or, when an
underground coal mine is temporarily closed, upon the expiration
of a period of ninety days from the date of closure, the operator
shall file with the office of miners' health, safety and training
and such federal mine inspector a copy of the mine map revised
and supplemented to the date of the closure. Such copy of the
mine map shall be certified by a certified or professional
engineer or licensed surveyor as aforesaid and shall be available
for public inspection.
Any person having a map or surveying data of any worked out
or abandoned underground coal mine shall make such map or data
available to the office of miners' health, safety and training to
copy or reproduce such material.
Any person who fails or refuses to discharge any duty
imposed upon him or her by this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined notless than five hundred dollars nor more than one thousand
dollars.
VENTILATION
§22A-2-2. Plan of ventilation; approval by director of the
office of miners' health, safety and training.
Every operator of a coal mine, before making any new or
additional openings, shall submit to the director, for his or her
information and approval, a general plan showing the proposed
system of ventilation and ventilating equipment of the openings,
with their location and relative positions to adjacent
developments; no such new or additional openings shall be made
until approved by the director. The operator shall deliver to
the miners' representative employed by the operator at the mine
a copy of the operator's proposed annual ventilation plan at
least ten days prior to the date of submission. The miners'
representative shall be afforded the opportunity to submit
written comments to the operator prior to such submission; in
addition the miners' representative may submit written comments
to the director. The director shall promptly approve any such
plans submitted, if the proposed system of ventilation and
ventilating equipment meet the requirements of this article.
§22A-2-3. Fans.
(a) The ventilation of mines, the systems for which extend
for more than two hundred feet underground and which are opened
after the effective date of this article, shall be produced by a
mechanically operated fan or mechanically operated fans. Ventilation by means of a furnace is prohibited in any mine. The
fan or fans shall be kept in continuous operation, unless written
permission to do otherwise be granted by the director. In case
of interruption to a ventilating fan or its machinery whereby the
ventilation of the mine is interrupted, immediate action shall be
taken by the mine operator or the operator's management
personnel, in all mines, to cut off the power and withdraw the
men from the face regions or other areas of the mine affected.
If ventilation is restored in fifteen minutes, the face regions
and other places in the affected areas where gas (methane) is
likely to accumulate, shall be reexamined by a certified person;
and if found free of explosive gas, power may be restored and
work resumed. If ventilation is not restored in fifteen minutes,
all underground employees shall be removed from the mine, all
power shall be cut off in a timely manner, and the underground
employees shall not return until ventilation is restored and the
mine examined by certified persons, mine examiners, or other
persons holding a certificate to make preshift examination.
(b) All main fans installed after the effective date of this
article shall be located on the surface in fireproof housings
offset not less than fifteen feet from the nearest side of the
mine opening, equipped with fireproof air ducts, provided with
explosion doors or a weak wall, and operated from an independent
power circuit. In lieu of the requirements for the location of
fans and pressure-relief facilities, a fan may be directly in
front of, or over a mine opening:
Provided, That such opening isnot in direct line with possible forces coming out of the mine if
an explosion occurs:
Provided, however, That there is another
opening having a weak-wall stopping or explosion doors that would
be in direct line with forces coming out of the mine. All main
fans shall be provided with pressure-recording gauges or water
gauges. A daily inspection shall be made of all main fans and
machinery connected therewith by a certified electrician and a
record kept of the same in a book prescribed for this purpose or
by adequate facilities provided to permanently record the
performance of the main fans and to give warning of an
interruption to a fan.
(c) Auxiliary fans and tubing shall be permitted to be used
in lieu of or in conjunction with line brattice to provide
adequate ventilation to the working faces:
Provided, That
auxiliary fans be so located and operated to avoid recirculation
of air at any time. Auxiliary fans shall be approved and
maintained as permissible.
(d) If the auxiliary fan is stopped or fails, the electrical
equipment in the place shall be stopped and the power
disconnected at the power source until ventilation in the working
place is restored. During such stoppage, the ventilation shall
be by means of the primary air current conducted into the place
in a manner to prevent accumulation of methane.
(e) In places where auxiliary fans and tubing are used, the
ventilation between shifts, weekends and idle shifts shall be
provided to face areas with line brattice or the equivalent toprevent accumulation of methane.
(f) The director may require that when continuous mine
equipment is being used, all face ventilating systems using
auxiliary fans and tubing shall be provided with machine-mounted
diffuser fans, and such fans shall be continuously operated
during mining operations.
(g) In the event of a fire or explosion in any coal mine,
the ventilating fan or fans shall not intentionally be started,
stopped, speed increased or decreased or the direction of the air
current changed without the approval of the general mine foreman,
and, if he or she is not immediately available, a representative
of the office of miners' health, safety and training. A duly
authorized representative of the employees should be consulted if
practical under the circumstances.
MINE FOREMAN
§22A-2-7. When underground mine foreman-fire boss required;
assistants; certification.
(a) In every underground mine where five or more persons are
employed in a period of twenty-four hours, the operator shall
employ at least one person certified in accordance with the
provisions of article seven of this chapter as a mine foreman-
fire boss. Each applicant for certification as a mine foreman-
fire boss shall, at the time he or she is issued a certificate of
competency: (1) Be a resident or employed in a mine in this
state; (2) have had at least five years' experience in the
underground working, ventilation and drainage of a coal mine,which shall include at least eighteen months' experience on or at
a working section of an underground mine or be a graduate of the
school of mines at West Virginia University or of another
accredited mining engineering school or be a graduate of an
accredited engineering school with a bachelor's degree in mining
engineering technology, electrical, mechanical or civil
engineering; and have had at least two years' practical
experience in an underground mine, which shall include at least
eighteen months' experience on or at a working section of an
underground mine; or be a graduate of an accredited college or
university with an associate degree in mining, electrical, mining
engineering technology, mechanical engineering or civil
engineering and have had at least four years' practical
experience in an underground mine, which shall include at least
eighteen months' experience on or at a working section of an
underground mine; and (3) have demonstrated his or her knowledge
of dangerous mine gases and their detection, mine safety, first
aid, safety appliances, state and federal mining laws and
regulations and other subjects by completing such training,
education and examinations as may be required of him or her under
article seven of this chapter.
(b) In mines in which the operations are so extensive that
the duties devolving upon the mine foreman-fire boss cannot be
discharged by one man, one or more assistant mine foremen-fire
bosses may be designated. Such persons shall act under the
instruction of the mine foreman-fire boss, who shall beresponsible for their conduct in the discharge of their duties.
Each assistant so designated shall be certified under the
provisions of article seven of this chapter. Each applicant for
certification as assistant mine foreman-fire boss shall, at the
time he or she is issued a certificate of competency, possess all
of the qualifications required of a mine foreman-fire boss:
Provided, That he or she shall at the time he or she is certified
be required to have at least three years' experience in the
underground working, ventilation and drainage of coal mines,
which shall include eighteen months on or at a working section of
an underground mine or be a graduate of the school of mines at
West Virginia University or of another accredited mining
engineering school or be a graduate of an accredited engineering
school with a bachelor's degree in mining engineering technology,
electrical, mechanical or civil engineering; and have had twelve
months' practical experience in an underground mine, all of which
shall have been on or at a working section or be a graduate of an
accredited college or university with an associate degree in
mining, electrical, mining engineering technology, mechanical or
civil engineering and have had at least two years' practical
experience in an underground mine, which shall include at least
eighteen months' experience on or at a working section of an
underground mine.
(c) Until the first day of January, one thousand nine
hundred seventy-seven, in mines in which the operations are so
extensive that all the duties devolving upon the mine foreman-fire boss cannot be discharged by one person, competent persons
having had at least three years' experience in coal mines may be
designated as assistants, who shall act under the mine foreman-
fire boss' instructions and the mine foreman-fire boss is
responsible for their conduct in the discharge of their duties
under such designation.
(d) Any person holding a mine foreman's certificate issued
by any other state may act in the capacity of mine foreman-fire
boss in any mine in this state until the next regular mine
foreman-fire boss' examination held by the office of miners'
health, safety and training, but not to exceed a maximum of
ninety days.
(e) After the first day of July, one thousand nine hundred
seventy-four, all duties heretofore performed by persons
certified as mine foreman, assistant mine foreman or fire boss
shall be performed by persons certified as underground mine
foreman-fire boss or an assistant underground mine foreman-fire
boss.
After the first day of July, one thousand nine hundred
seventy-four, every certificate heretofore issued to an assistant
mine foreman or fire boss shall be deemed to be of equal value to
a certificate issued hereafter to an assistant mine foreman-fire
boss, and every certificate heretofore issued to a mine foreman
shall be deemed to be of equal value to a certificate issued
hereafter to a mine foreman-fire boss.
§22A-2-12. Instruction of employees and supervision of
apprentices; annual examination of persons using flame
safety lamps; records of examination; maintenance of methane
detectors, etc.
The office of miners' health, safety and training shall
prescribe and establish a course of instruction in mine safety
and particularly in dangers incident to such employment in mines
and in mining laws and rules, which course of instruction shall
be successfully completed within twelve weeks after any person is
first employed as a miner. It is further the duty and
responsibility of the office of miners' health, safety and
training to see that such course is given to all persons as above
provided after their first being employed in any mine in this
state.
It is the duty of the mine foreman or the assistant mine
foreman of every coal mine in this state to see that every person
employed to work in such mine is, before beginning work therein,
instructed in the particular danger incident to his or her work
in such mine, and furnished a copy of the mining laws and rules
of such mine. It is the duty of every mine operator who employs
apprentices, as that term is used in sections three and four,
article eight of this chapter to ensure that the apprentices are
effectively supervised with regard to safety practices and to
instruct apprentices in safe mining practices. Every apprentice
shall work under the direction of the mine foreman or his or her
assistant mine foreman and they are responsible for his or her
safety. The mine foreman or assistant mine foreman may delegatethe supervision of an apprentice to an experienced miner, but the
foreman and his or her assistant mine foreman remain responsible
for the apprentice. During the first ninety days of employment
in a mine, the apprentice shall work within sight and sound of
the mine foreman, assistant mine foreman, or an experienced
miner, and in such a location that the mine foreman, assistant
mine foreman or experienced miner can effectively respond to
cries for help of the apprentice. Such location shall be on the
same side of any belt, conveyor or mining equipment.
Persons whose duties require them to use a flame safety lamp
or other approved methane detectors shall be examined at least
annually as to their competence by a qualified official from the
office of miners' health, safety and training and a record of
such examination shall be kept by the operator and the office.
Flame safety lamps and other approved methane detectors shall be
given proper maintenance and shall be tested before each working
shift. Each operator shall provide for the proper maintenance
and care of the permissible flame safety lamp or any other
approved device for detecting methane and oxygen deficiency by a
person trained in such maintenance, and, before each shift, care
shall be taken to ensure that such lamp or other device is in a
permissible condition.
§22A-2-23. Authority of fire boss to perform other duties.
Notwithstanding any other provision in this article
contained, any person who holds a certificate issued by the
office of miners' health, safety and training certifying his orher competency to act as fire boss may perform the duties of a
fire boss and any other duties, statutory or otherwise, for which
he or she is qualified, in the same mine or section and on the
same day or shift.
ROOF--FACE--RIBS
§22A-2-25. Roof control programs and plans; refusal to work
under unsupported roof.
(a) Each operator shall undertake to carry out on a
continuing basis a program to improve the roof control system of
each coal mine and the means and measures to accomplish such
system. The roof and ribs of all active underground roadways,
travelways, and working places shall be supported or otherwise
controlled adequately to protect persons from falls of the roof
or ribs. A roof control plan and revisions thereof suitable to
the roof conditions and mining systems of each coal mine and
approved by the director shall be adopted and set out in printed
form before new operations. The safety committee of the miners
of each mine where such committee exists shall be afforded the
opportunity to review and submit comments and recommendations to
the director and operator concerning the development,
modification or revision of such roof control plans. The plan
shall show the type of support and spacing approved by the
director. Such plan shall be reviewed periodically, at least
every six months by the director, taking into consideration any
falls of roof or rib or inadequacy of support of roof or ribs.
A copy of the plan shall be furnished to the director or his orher authorized representative and shall be available to the
miners and their representatives.
(b) The operator, in accordance with the approved plan,
shall provide at or near each working face and at such other
locations in the coal mine, as the director may prescribe, an
ample supply of suitable materials of proper size with which to
secure the roof thereof of all working places in a safe manner.
Safety posts, jacks, or other approved devices shall be used to
protect the workmen when roof material is being taken down,
crossbars are being installed, roof bolt holes are being drilled,
roof bolts are being installed, and in such other circumstances
as may be appropriate. Loose roof and overhanging or loose faces
and ribs shall be taken down or supported. When overhangs or
brows occur along rib lines they shall be promptly removed. All
sections shall be maintained as near as possible on center.
Except in the case of recovery work, supports knocked out shall
be replaced promptly. Apprentice miners shall not be permitted
to set temporary supports on a working section without the direct
immediate supervision of a certified miner.
(c) The operator of a mine has primary responsibility to
prevent injuries and deaths resulting from working under
unsupported roof. Every operator shall require that no person
may proceed beyond the last permanent support unless adequate
temporary support is provided or temporary support is not
required under an approved roof control plan and absence of such
support will not pose a hazard to the miners.
(d) The immediate supervisor of any area in which
unsupported roof is located shall not direct or knowingly permit
any person to proceed beyond the last permanent support unless
adequate temporary support is provided or temporary support is
not required under an approved roof control plan and absence of
such support will not pose a hazard to the miners.
(e) No miner shall proceed beyond the last permanent support
in violation of a direct or standing order of an operator, a
foreman or an assistant foreman, unless adequate temporary
support is provided or temporary support is not required under an
approved roof control plan and absence of such support will not
pose a hazard to the miner.
(f) The immediate supervisor of each miner who will be
engaged in any activity involving the securing of roof or rib
during a shift shall, at the onset of any such shift, orally
review those parts of the roof control plan relevant to the type
of mining and roof control to be pursued by such miner. The time
and parts of the plan reviewed shall be recorded in a log book
kept for such purpose. Each log book entry so recorded shall be
signed by such immediate supervisor making such entry.
(g) Any action taken against a miner due, in whole or in
part, to his or her refusal to work under unsupported roof, where
such work would constitute a violation of this section, is
prohibited as an act of discrimination pursuant to section
twenty-two, article one of this chapter. Upon a finding of
discrimination by the appeals board pursuant to subsection (b),section twenty-two, article one of this chapter, the miner shall
be awarded by the appeals board all reliefs available pursuant to
said subsections.
§22A-2-33. Preparation of shots; blasting practices.
(a) Only a certified "shot firer" designated by mine
management shall be permitted to handle explosives and do
blasting. Only electric detonators of proper strength fired with
permissible shot firing units shall be used except under special
permits as hereinafter provided, and drillholes shall be stemmed
with at least twenty-four inches of incombustible material, or at
least one half of the length of the hole shall be stemmed if the
hole is less than four feet in depth, unless other permissible
stemming devices or methods are used. Drillholes shall not be
drilled beyond the limits of the cut, and as far as practicable,
cuttings and dust shall be cleaned from the holes before the
charge is inserted. Charges of explosives exceeding one and one-
half pounds, but not exceeding three pounds, shall be used only
if drillholes are six feet or more in depth. Ample warning shall
be given before shots are fired, and care shall be taken to
determine that all persons are in the clear before firing.
Miners shall be removed from adjoining places and other places
when there is danger of shots blowing through. No shots shall be
fired in any place known to liberate explosive gas, until such
place has been properly examined by a competent person who is
designated by mine management for that purpose, and no shots
shall be fired in any place where gas is detected with apermissible flame safety lamp until such gas has been removed by
means of ventilation. After firing any shot, or shots, the
person firing the same shall not return to the working face until
the smoke has been cleared away and then he shall make a careful
examination of the working face before leaving the place or
before performing any other work in the place.
(b) Multiple shooting in coal or rock or both is authorized
only under permit issued by the director. Permission to shoot
more than ten shots simultaneously may be granted by the director
only after consultation with interested persons, and such
shooting will be performed by special methods and under
precautions prescribed by the director. All multiple shooting in
bottom or roof rock shall be performed in intake air, except by
special permit from the director, after consultation with
interested persons , as heretofore provided. Multiple blasting
of more than ten shots performed under any permit granted by the
director under this section shall be done only on noncoal-
producing shifts or idle days, except as may be provided as a
condition of the permit granted.
(c) Regular or short-interval delay detonators may be used
for blasting purposes with written permission from the director.
Regular delay detonators shall not be used for blasting coal, but
may be used for grading above or below coal seams and during
shaft, slope, tunnel work and in faults or wants. Where short-
interval delay detonators are permitted by said director to be
used, the shot firing circuit must be tested with a blastinggalvanometer before firing, and the leg wires connected in
series. No instantaneous, regular, or zero-delay detonators are
to be fired in conjunction with short-interval delay detonators.
The delay interval between dependent rows must not be less than
twenty-five milliseconds or more than one hundred milliseconds,
and the entire series of any one round shall not provide a delay
of more than five hundred milliseconds between the first and last
shot. The total number of charged holes to be fired during any
one round must not exceed the limit permitted by the director.
Misfires must be tested with a blasting galvanometer before
removing.
(d) Electrical equipment shall not be operated in the face
areas, and only work in connection with timbering and general
safety shall be performed while boreholes are being charged.
Shots shall be fired promptly after charging. Mudcaps (adobes)
or any other unconfined shots shall not be permitted in any coal
mine. No solid shooting shall be permitted without written
permission of the office.
(e) Blasting cables shall be well insulated and shall be as
long as may be necessary to permit persons authorized to fire
shots to get in a safe place out of the line of fire. The cable,
when new, shall be at least one hundred twenty-five feet in
length and never less than one hundred feet. Shooting cables
shall be kept away from power wires and all other sources of
electric current, connected to the leg wires by the person who
fires the shot, staggered as to length or well separated at thedetonator leg wires, and shunted at the battery until ready to
connect to the blasting unit.
HOISTING
§22A-2-36. Hoisting machinery; telephones; safety devices;
hoisting engineers and drum runners.
(a) The operator of every coal mine worked by shaft shall
provide and maintain a metal tube, telephone or other approved
means of communication from the top to the bottom and
intermediate landings of such shafts, suitably adapted to the
free passage of sound, through which conversation may be held
between persons at the top and at the bottom of the shaft; a
standard means of signaling; an approved safety catch, bridle
chains, automatic stopping device, or automatic overwind; a
sufficient cover overhead on every cage used for lowering or
hoisting persons; an approved safety gate at the top of the
shaft; and an adequate brake on the drum of every machine used to
lower or hoist persons in such shaft. Such operator shall have
the machinery used for lowering and hoisting persons into or out
of the mine kept in safe condition, equipped with a reliable
indicator, and inspected once in each twenty-four hours by a
qualified electrician. Where a hoisting engineer is required, he
or she shall be readily available at all times when men are in
the mine. He or she shall operate the empty cage up and down the
shaft at least one round trip at the beginning of each shift, and
after the hoist has been idle for one hour or more before
hoisting or lowering men; there shall be cut out around the sideof the hoisting shaft or driven through the solid strata at the
bottom thereof, a traveling way, not less than five feet high and
three feet wide to enable a person to pass the shaft in going
from one side of it to the other without passing over or under
the cage or other hoisting apparatus. Positive stop blocks or
derails shall be placed near the top and at all intermediate
landings of slopes and surface inclines and at approaches to all
shaft landings. A waiting station with sufficient room, ample
clearance from moving equipment, and adequate seating facilities
shall be provided where men are required to wait for man trips or
man cages, and the miners shall remain in such station until the
man trip or man cage is available.
(b) No operator of any coal mine worked by shaft, slope or
incline, shall place in charge of any engine or drum used for
lowering or hoisting persons employed in such mine any but
competent and sober engineers or drum runners; and no engineer or
drum runner in charge of such machinery shall allow any person,
except such as may be designated for this purpose by the
operator, to interfere with any part of the machinery; and no
person shall interfere with any part of the machinery; and no
person shall interfere with or intimidate the engineer or drum
runner in the discharge of his or her duties. Where the mine is
operated or worked by shaft or slope, a minimum space of two and
one-half square feet per person shall be available for each
person on any cage or car where men are transported. In no
instance shall more than twenty miners be transported on a cageor car without the approval of the director. No person shall
ride on a loaded cage or car in any shaft, slope, or incline:
Provided, That this does not prevent any trip rider from riding
in the performance of his or her authorized duties. No engineer
is required for automatically operated cages, elevators, or
platforms. Cages and elevators shall have an emergency power
source unless provided with other escapeway facilities.
(c) Each automatic elevator shall be provided with a
telephone or other effective communication system by which aid or
assistance can be obtained promptly.
(d) A "stop" switch shall be provided in the automatic
elevator compartment that will permit the elevator to be stopped
at any location in the shaft.
§22A-2-53c. Ramps; tipples; cleaning plants; other surface
areas.
(1) Surface installations generally -- Surface
installations, all general mine structures, enclosures and other
facilities, including custom coal preparation facilities shall be
maintained in good condition. In unusually dusty locations,
electric motors, switches and controls shall be of dust-tight
construction, or enclosed with reasonable dust-tight housings or
enclosures. Openings in surface installations through which men
or material may fall shall be protected by railings, barriers,
covers or other protective devices. Illumination sufficient to
provide safe working conditions shall be provided in and on all
surface structures, paths, walkways, switch panels, loading anddumping sites, working areas and parking areas. Materials shall
be stored and/or stacked in a manner to prevent stumbling or
falling. Compressed and liquid gas cylinders shall be secured in
a safe manner. Adequate ventilation shall be provided in tipples
and preparation plants. Coal dust in or around tipples or
cleaning plants shall not be permitted to exist or accumulate in
dangerous amounts.
(2) Machinery guards -- Gears, sprockets, chains, drive
head, tail and takeup pulleys, flywheels, couplings, shafts,
sawblades, fan inlets, and similar exposed moving machine parts
with which persons may come in contact shall be guarded
adequately. Except when testing is necessary, machinery guards
shall be secured in place while being operated. Belt rollers
shall not be cleaned while belts are in motion.
(3) Fire protection -- Where cutting or welding is performed
at any location, a means of prompt extinguishment of any fire
accidentally started shall be provided. Adequate fire-fighting
facilities, required by the office of miners' health, safety and
training, shall be provided on all floors. At least two exits
shall be provided for every floor of tipples and cleaning plants
constructed after the effective date of this section. Signs
warning against smoking and open flames shall be posted so they
can be readily seen in areas or places where fire or explosion
hazards exist. Smoking or an open flame in or about surface
structures shall be restructed to locations where it will not
cause fire or an explosion.
(4) Repairs of machinery -- Machinery shall not be
lubricated or repaired while in motion, except where safe remote
lubricating devices are used. Machinery shall not be started
until the person lubricating or repairing it has given a clear
signal. Means and methods shall be provided to assure that
structures and the immediate area surrounding the same shall be
reasonably free of coal dust accumulations. Where repairs are
made to tipples, or cleaning plants, proper scaffolding and
proper overhead protection shall be provided for workmen when
necessary. Where overhead repair work is being performed at
surface installations, adequate protection shall be provided for
all persons working or passing below.
(5) Stairs, platforms, etc. -- Stairways, elevated
platforms and runways shall be equipped with handrails. Railroad
car trimmer platforms are exempted from such requirements. Where
required, elevated platforms and stairways shall be provided with
toeboards. They shall be kept clear of refuse and ice and
maintained in good condition.
(6) Belts, etc. -- Drive belts shall not be shifted while
in motion unless such machines are provided with mechanical
shifters. Belt dressing shall not be applied while in motion.
Belts, chains and ropes shall not be guided into power-driven
moving pulleys, sprockets or drums with the hand except with
equipment especially designed for hand feeding.
(7) Conveyors and crossovers -- When the entire length of a
conveyor is visible from the starting switch, the operator shallvisually check to make certain that all persons are in the clear
before starting the conveyor. When the entire length of the
conveyor is not visible from the starting switch, a positive
audible or visible warning system shall be installed and operated
to warn persons when the conveyor will be started. Crossovers
shall be provided where necessary to cross conveyors. All
crossovers shall be of substantial construction, with rails, and
maintained in good condition. Moving conveyors shall be crossed
only at designated crossover points. A positive audible or
visible warning system shall be installed and operated to warn
persons that a conveyor or other tipple equipment is to be
started. Pulleys of conveyors shall not be cleaned manually
while the conveyor is in operation. Guards, nets or other
suitable protection shall be provided where tramways pass over
roadways, walkways or buildings. Where it is required to cross
under a belt, adequate means shall be taken to prohibit a person
from making contact with a moving part.
(8) Ladders -- All ladders shall be securely fastened.
Permanent ladders more than ten feet in height shall be provided
with backguards. Ladders shall be of substantial construction
and maintained in good condition. Wooden ladders shall not be
painted. Fixed ladders shall not incline backward at any point
unless equipped with backguards. Fixed ladders shall be anchored
securely and installed with at least three inches of toe
clearance. Side rails of fixed ladders shall project at least
three feet above landings, or substantial handholds shall beprovided above the landing. No person shall be permitted to work
off of the top step of any ladder. Metal ladders shall not be
used with electrical work, where there is danger of the ladder
coming into contact with power lines or an electrical conductor.
The maximum length of a step ladder shall be twenty feet and an
extension ladder sixty feet.
(9) Hoisting -- Hitches and slings used to hoist materials
shall be suitable for handling the type of material being
hoisted. Persons shall stay clear of hoisted loads. Tag lines
shall be attached to hoisted materials that require steadying or
guidance. A hoist shall not lift loads greater than the rated
capacity of the hoist being used.
(10) Railroad track construction and maintenance --
(a) All parts of the track haulage road under the ownership
or control of the operator shall be strictly constructed and
maintained. Rails shall be secured at all points by means of
plates or welds. When plates are used, plates conforming with
the weight of the rail shall be installed and broken plates shall
be replaced immediately. Appropriate bolts shall be inserted and
maintained in all bolt holes. The appropriate number of bolts
conforming with the appropriate rail plate for the weight of the
rail shall be inserted, tightly secured, and maintained.
(b) All points shall be installed and maintained so as to
prevent bad connections. Varying weights of rail shall not be
joined without proper adapters. Tracks shall be blocked and
leveled and so maintained so as to prevent high and low joints.
(c) Tracks shall be gauged so as to conform with the track
mounted equipment. Curves shall not be constructed so sharp as
to put significant pressure on the tracks of the track mounted
equipment.
(d) Severely worn or damaged rails and ties shall be
replaced immediately.
(e) When mining operations are performed within any twenty-
four hour period, operations shall be inspected at least every
twenty-four hours to assure safe operation and compliance with
the law and rules. The results of which inspection shall be
recorded.
(f) Personnel who are required frequently and regularly to
travel on belts or chain conveyors extended to heights of more
than ten feet shall be provided with adequate space and
protection in order that they may work safely. Permanent ladders
extending more than ten feet shall be provided with back guards.
Walkways around thickeners that are less than four feet above the
walkway shall be adequately guarded. Employees required to work
over thickener shall wear a safety harness adequately secured,
unless walkways or other suitable safety devices are provided.
§22A-2-54. Duties of persons subject to article; rules and
regulations of operators.
(a) It shall be the duty of the operator, mine foreman,
supervisors, mine examiners, and other officials to comply with
and to see that others comply with the provisions of this
article.
(b) It shall be the duty of all employees and checkweighmen
to comply with this article and to cooperate with management and
the office of miners' health, safety and training in carrying out
the provisions hereof.
(c) Reasonable rules and regulations of an operator for the
protection of employees and preservation of property that are in
harmony with the provisions of this article and other applicable
laws shall be complied with. They shall be printed on cardboard
or in book form in the English language and posted at some
conspicuous place about the mine or mines, and given to each
employee upon request.
§22A-2-63. No mine to be opened or reopened without prior
approval of director of the office of miners' health, safety
and training; approval fee; extension of certificate of
approval; certificates not transferable; section to be
printed on certificates.
(a)
Permit request. -- After the first day of July, one
thousand nine hundred seventy-one, no mine shall be opened or
reopened unless prior approval has been obtained from the
director of the office of miners' health, safety and training,
which approval shall not be unreasonably withheld. The operator
shall pay for such approval a fee of ten dollars, which payment
shall be tendered with the operator's application for such
approval:
Provided, That mines producing coal solely for the
operator's use shall be issued a permit without charge if coal
production will be less than fifty tons a year.
(b)
Extension of permit. -- Within thirty days after the
first day of January of each year, the operator of each mine
holding a certificate evidencing approval of the director to open
a mine shall apply for the extension of such certificate of
approval for an additional year, excepting those approved by the
director to go on inactive status. Such approval, evidenced by
a certificate of the director, shall be granted as a matter of
right and without charge if, at the time such application is
made, the operator is in compliance with the provisions of
section seventy-seven of this article and has paid or otherwise
appealed all coal mine assessments imposed under article one of
this chapter. Applications for extension of such certificates of
approval not submitted within the time required shall be
processed as an application to open or reopen a mine and shall be
accompanied by a fee of ten dollars.
(c)
Not transferable. -- Certificates of approval issued
pursuant to this section are not transferable.
(d)
Status of certificate. -- The provisions of this
section shall be printed on the reverse side of every certificate
issued hereunder.
(e)
Preinspection. -- The district mine inspector shall be
contacted for a preinspection of the area proposed for
underground mining prior to the issuance of any new opening
approval.
§22A-2-66. Explosion or accident; notice; investigation by
office of miners' health, safety and training.
Whenever, by reason of any explosion or other accident in or
about any coal mine or the machinery connected therewith, loss of
life, or serious personal injury occurs, it is the duty of the
superintendent of the mine, and in his or her absence, the mine
foreman in charge of the mine, to give immediate notice to the
director and the inspector of the district, stating the
particulars of such accident. If anyone is killed, the inspector
shall immediately go to the scene of such accident and make such
recommendations and render such assistance as he or she may deem
necessary for the future safety of the men, and investigate the
cause of such explosion or accident and make a record thereof
which he or she shall preserve with the other records in his or
her office, the cost of such records to be paid by the office of
miners' health, safety and training, and a copy shall be
furnished to the operator and other interested parties. To
enable him or her to make such investigation, he or she has the
power to compel the attendance of witnesses and to administer
oaths or affirmations. The director has the right to appear and
testify and to offer any testimony that may be relevant to the
questions and to cross-examine witnesses.
§22A-2-68. Preservation of evidence following accident or
disaster.
Following a mine accident resulting in the death of one or
more persons and following any mine disaster, the evidence
surrounding such occurrence shall not be disturbed after recovery
of bodies or injured persons until an investigation by the officeof miners' health, safety and training has been completed.
§22A-2-70. Shafts and slopes.
(a)
When mine examiner to be employed; qualifications. --
During the sinking of a shaft or the driving of a slope to a coal
bed or while engaged in underground construction work, or
relating thereto, the operator shall assign a mine examiner to
such project areas. Such mine examiner shall have a certificate
of competency valid only for the type of work stipulated thereon
and issued to him or her by the office of miners' health, safety
and training after he or she has passed an examination given by
the office of miners' health, safety and training. He or she
shall, at the time he or she takes the examination, have a
minimum of five years' experience in shaft sinking, slope driving
and underground construction; moreover, he or she shall be able
to detect methane with a flame safety lamp and have a thorough
knowledge of the ventilation of shafts, slopes, and mines, and
the machinery connected therewith, and finally, he or she shall
be a person of good moral character with temperate habits.
(b)
Mine examiner or certified person acting as such; duties
generally; records open for inspection. -- In all shafts and
slopes within three hours immediately preceding the beginning of
a work shift and before any workmen in such shift, other than
those who may be designated to make the examinations, enter the
underground areas of such shafts or slopes, a certified foreman
or mine examiner, designated by the operator of such shaft or
slope to do so, shall make an examination of such areas. Eachperson designated to make such examinations shall make tests with
a permissible flame safety lamp for accumulations of methane and
oxygen deficiency, and examine sides of shafts and ribs and roof
of all slopes. Should he or she find a condition which he or she
considers dangerous to persons, he or she shall place a
conspicuous danger sign at all entrances to such places. He or
she shall record the results of his or her examination with ink
or indelible pencil in a book prescribed by the director, kept at
a place on the surface designated by mine management. All
records as prescribed herein shall be open for inspection by
interested persons.
(c)
Approvals and permits. -- An approval shall be obtained
from the office before work is started. A permit shall be
obtained from the office: (1) To stop fan when miners are in
shafts or slopes; (2) to use electrical machinery in shafts or
slopes; (3) to use electric lights in shafts or slopes; (4) to
use welders, torches and like equipment in shafts or slopes; (5)
to hoist more than four miners at one time in buckets or cars;
(6) to shoot more than fifteen shots in one series.
(d)
Records. -- The foreman in charge on each shift shall
keep a daily report of conditions and practices. The foreman in
charge on each shift shall read and countersign the reports of
the previous shift. Unsatisfactory conditions and practices
reported shall be repeated on daily reports until corrected.
Hoists, buckets, cars, ropes and appliances thereto shall be
examined by a qualified person before the start of each shift anda written record kept. Deaths from accidents or previous
injuries shall be reported immediately by wire to the office of
the director and to the district mine inspector or the inspector-
at-large. A written report of all injuries and deaths shall be
mailed to the office of miners' health, safety and training and
district mine inspector promptly. Immediate notice shall be
given the office of the director, the district mine inspector and
the inspector-at-large in the event of an ignition of gas, or
serious accident to miners or equipment. All permits and
approvals must be available for inspection by all interested
persons.
(e)
General. -- The foreman on shift shall have at least
five years' experience in shafts or slopes. New employees shall
be instructed in the dangers and rules incident to their work.
Conspicuous bulletin boards and warning signs shall be
maintained. Unauthorized persons shall not be permitted around
shafts or slopes. First-aid material shall be maintained at the
operation as required by section fifty-nine of this article. The
scene of a fatal accident shall be left unchanged until an
investigation is made by all interested persons. All employees
and others around the operation shall wear hard-toe shoes and
hard-top hats. Goggles or other eye protection shall be worn
when cutting, welding or striking where particles may fly.
Gears, belts and revolving parts of machinery shall be properly
guarded. Hand tools shall be in good condition. Sides of
shafts, ribs and roof of all slopes shall be closely observed forloose and dangerous conditions. Loose brows, ribs and top in
slopes shall be taken down or supported; loose ribs in shafts
shall be scaled. Miners shall be hoisted and lowered under power
in shafts and slopes. All hoists must have two positive breaking
devices. At least three wraps of rope shall remain on the hoist
drum at all times. Wire ropes shall not be less than
three-fourths inches in diameter, and of a design to prevent
excessive spinning or turning when hoisting.
When heavy materials are hoisted, a large rope shall be used
if necessary. A hoisting engineer shall be in constant
attendance while men are in shaft. Head frames shall be
constructed substantially. Noise from machinery shall not
interfere with signals. The standard signal code, whistle or
bell shall be used for hoisting:
One signal ................................................
Hoist
One signal .................................................
Stop
Two signals ...............................................
Lower
Three signals .......................................... Man
cage
One signal from hoisting engineer ............. Miners board
cage
Hoist signals shall be posted in front of the hoisting
engineer. The shaft opening shall be enclosed by a fence fivefeet high. Buckets shall not be loaded within six inches of the
top rim. Buckets shall have a positive lock on the handle or
bale to prevent bucket from crumpling while being hoisted.
Positive coupling devices shall be used on buckets or cars (hooks
with safety catches or threaded clevis). Emergency devices for
escape shall be provided while shafts are under construction.
Miners shall not ride on or work from rims of buckets. Buckets
or cars shall not be lowered without a signal from working area.
Only sober and competent engineers shall be permitted to operate
hoists. No intoxicating liquors or intoxicated persons shall be
permitted in or around any shaft, slope or machinery. Lattice
type platforms shall be used.
(f)
Explosives. -- Explosives and blasting caps being taken
into or removed from the operation shall be transported and kept
in approved nonconducting receptacles (unopened cartons or cases
are permissible). Explosives shall not be primed until ready to
be inserted into holes. Handling of explosives and loading of
holes shall be under the strict supervision of a qualified person
or shotfirer. No more explosives or caps than are required to
shoot one round shall be taken into shafts. Adobe, mudcapped or
unconfined shots shall not be fired. Holes shall be stemmed
tightly and full into the mouth. Blasting caps shall be inserted
in line with the explosive. Leg wires of blasting caps and buss
wires shall be kept shunted until connected. Shooting cables
shall be shunted at firing devices and before connecting to leg
wires. Only approved shooting devices shall be used. Shotsshall be fired promptly after the round of holes are charged.
Warnings shall be given before shots are fired by shouting "Fire"
three times slowly after those notified have withdrawn. The
blasting circuit shall be wired in series or parallel series.
All shooting circuits shall be tested with a galvanometer by a
qualified person before shooting. A careful examination for
misfires shall be made after each shot. Persons shall not return
to the face until smoke and dust have cleared away. The shooting
cable shall be adequately insulated and have a substantial
covering; be connected by the person firing the shot; and be kept
away from power circuits. Misfires shall be removed by firing
separate holes or by washing; shall not be drilled out; and shall
be removed under supervision of a foreman or qualified person.
Separate magazines for the storage of explosives and detonators
shall be located not less than three hundred feet from openings
or other structures. Magazines for the storage of explosives and
detonators shall be separated at least fifty feet. Magazines
shall be located behind barricades. The outside of magazines
shall be constructed of incombustible material. Rubbish and
combustible material shall not be permitted to accumulate around
or in magazine. Warning signs, to be seen in all directions,
shall be posted near magazines.
(g)
Electrical. -- Power cables installed in slopes shall
be placed in conduit away from the belt as far as possible.
Surface transformers shall be elevated at least eight feet from
the ground or enclosed by a fence six feet high, grounded ifmetal; shall be properly grounded; shall be installed so that
they will not present a fire hazard; and shall be guarded by
sufficient danger signs.
Electric equipment shall be in good condition, clean and
orderly; shall be equipped with guards around moving parts; and
shall be grounded with effective frame grounds on motors and
control boxes.
All electric wires shall be installed and supported on
insulators. All electric equipment shall be protected by dual
element fuse or circuit breakers.
(h)
Ventilation. -- Ventilating fans shall be offset from
portal at least fifteen feet; shall be installed so that the
ventilating current is not contaminated by dust, smoke or gases;
shall be effectively frame grounded; and shall be provided with
fire extinguishers.
All shafts and slopes shall be ventilated adequately and
continuously with fresh air. Air tubing shall deliver not less
than nine thousand feet per minute at the working area or as much
more as the inspector may require.
(i)
Gases. -- A foreman shall be in attendance at all times
in shafts and slopes who has passed an examination given by the
office as to his or her competency in the use of flame safety
lamps.
An examination shall be made before and after shooting by
the foreman on shift. The foreman shall have no superior in the
performance of his or her duties. A lighted flame safety lamp orother approved detector shall be carried at all times by the
foreman when in the working area and weekly gas analysis made.
In all shafts and slopes within three hours immediately preceding
the beginning of a work shift and before any workmen in such
shift, other than those who may be designated to make the
examinations, enter the underground areas of such shafts or
slopes, a certified mine foreman or mine examiner designated by
the operator of such shaft or slope to do so, shall make an
examination of such area. Evidence of official examination shall
be left at the face by marking date and initials.
Gases should be removed under the supervision of the foreman
in charge. Smoking shall not be permitted inside of shafts or
slopes.
(j)
Drilling. -- Dust allaying or dust collecting devices
shall be used while drilling.
(k)
Lights to be used in shafts. -- Only approved electric
cap lights shall be used in shafts. Other lights shall be of
explosive-proof type. Lights shall be suspended in shafts by
cable or chain other than the power conductor. In slopes lights
must be substantially installed. Power cables shall be of an
approved type. Power cables shall not be taut from shaft collar
to light. Power cables shall be in good condition and free of
improper splices. Lights shall be suspended not less than twenty
feet above where miners are working. Lights shall be removed
from shaft and power cut off when shooting. In slopes lights
must be removed a safe distance when shots are fired. Lightsshall not be replaced in shafts or slopes until examination has
been made for gas by the mine examiner and found clear. Front of
light shall be protected by a substantial metal type guard.
Lights shall be protected from falling objects from above by a
metal hood. The lighting circuit shall be properly fused.
Electric lights shall not be used in gaseous atmospheres. A
lighted flame safety lamp or approved detector shall be kept for
use at the face while miners are at work.
§22A-2-72. Long wall and short wall mining.
(a) The Legislature finds that new methods of extracting
coal known as long wall or short wall mining is being used in
this state. The board of coal mine health and safety shall
investigate or cause to be investigated the technology,
procedures and techniques used in such mining methods and shall
promulgate by the first day of January, one thousand nine hundred
eighty-one, and continuously update the same, rules governing
long wall and short wall mining, which rules shall have as their
paramount objective, the health and safety of the persons
involved in such operations, and which said rules shall include,
but not be limited to, the certification of personnel involved in
such operation.
(b) The director may modify the application of any provision
of this section to a mine if the director determines that an
alternative method of achieving the result of such provision
exists which will at all times guarantee no less than the same
measure of protection afforded the miners of such mine by suchprovision, or that the application of such provision to such mine
will result in a diminution of the health of, or safety to, the
miners in such mine. The director shall give notice to the
operator and the representative of miners in the affected mine,
as appropriate, and shall cause such investigation to be made as
he or she deems appropriate. Such investigation shall provide an
opportunity for a hearing, at the request of such operator or
representative or other interested party, to enable the operator
and the representative of miners in such mine or other interested
party to present information relating to the modification of such
provision. The director shall issue a decision incorporating his
or her findings of fact therein, and send a copy thereof to the
operator and the representative of the miners, as appropriate.
Any such hearing shall be of record.
§22A-2-73. Construction of shafts, slopes, surface facilities
and the safety hazards attendant therewith; duties of board
of coal mine health and safety to promulgate rules; time
limits therefor.
The board of coal mine health and safety shall investigate
or cause to be investigated the technology, procedures and
techniques used in the construction of shafts, slopes, surface
facilities, and the safety hazards, attendant therewith, and
shall promulgate rules governing the construction of shafts and
slopes; and shall promulgate by the first day of January, one
thousand nine hundred eighty-one, rules governing the
construction of surface facilities.
The board of coal mine health and safety shall continuously
update such rules governing the construction of shafts, slopes
and surface facilities, which rules shall have as their paramount
concern, the health and safety of the persons involved in such
operations, and such rules shall include, but not be limited to,
the certification of all supervisors, the certification and
training of hoist operators and shaft workers, the certification
of blasters, and approval of plans. The provisions of such rules
may be enforced against operators and construction companies in
accord with the provisions of article one of this chapter. For
purposes of this chapter, a construction company is an operator.
§22A-2-74. Control of respirable dust.
Each operator shall maintain the concentration of respirable
dust in the mine atmosphere during each shift to which miners in
active workings of such mine are exposed below such level as the
board may establish. The board may promulgate rules governing
respirable dust, including, but not limited to, dust standards,
sampling procedures, sampling devices, equipment and sample
analysis by using the data gathered by the federal mine safety
and health administration and/or the bureau of mines.
Any operator found to be in violation of such standards
shall bring itself into compliance with such standards and rules
of the board or the director may thereafter order such operator
to discontinue such operation.
§22A-2-75. Coal operators -- Procedure before operating near oil
and gas wells.
(a) Before a coal operator conducts underground mining
operations within five hundred feet of any well, including the
driving of an entry or passageway, or the removal of coal or
other material, the coal operator shall file with the office of
miners' health, safety and training and forward to the well
operator by certified mail, return receipt requested, its mining
maps and plans (which it is required to prepare, file and update
to and with the regulatory authority) for the area within five
hundred feet of the well, together with a notice, on a form
furnished by the director, informing them that the mining maps
and plans are being filed or mailed pursuant to the requirements
of this section.
Once these mining maps and plans are filed with the office,
the coal operator may proceed with its underground mining
operations in the manner and as projected on such plans or maps,
but shall not remove, without the consent of the director, any
coal or other material or cut any passageway nearer than two
hundred feet of any completed well or well that is being drilled.
The coal operator shall, at least every six months while mining
within the five hundred foot area, update its mining maps and
plans and file the same with the director and the well operator.
(b) Application may be made at any time to the director by
a coal operator for leave to conduct underground mining
operations within two hundred feet of any well or to mine through
any well, by petition, duly verified, showing the location of the
well, the workings adjacent to the well and the mining operationscontemplated within two hundred feet of the well or through such
well, and praying the approval of the same by the director and
naming the well operator as a respondent. The coal operator
shall file such petition with the director and mail a true copy
to the well operator by certified mail, return receipt requested.
The petition shall notify the well operator that it may
answer the petition within five days after receipt, and that in
default of an answer the director may approve the proposed
operations as requested if it be shown by the petitioner or
otherwise to the satisfaction of the director that such
operations are in accordance with the law and with the provisions
of this article. If the well operator files an answer which
requests a hearing, one shall be held within ten days of such
answer and the director shall fix a time and date and give both
the coal operator and well operator five days' written notice of
the same by certified mail, return receipt requested. At the
hearing, the well operator and coal operator, as well as the
director, shall be permitted to offer any competent and relevant
evidence. Upon conclusion of the hearing, the director shall
grant the request of the coal operator or refuse to grant the
same, or make such other decision with respect to such proposed
underground operation as in its judgment is just and reasonable
under all circumstances and in accordance with law and the
provisions of this article:
Provided, That a grant by the
director of a request to mine through a well shall require an
acceptable test to be conducted by the coal operator establishingthat such mining through can be done safely.
If a hearing is not requested by the well operator or if the
well operator gives, in writing, its consent to the coal operator
to mine within closer than two hundred feet of the specified
well, the director shall grant the request of the coal operator
within five days after the petition's original five day answer
period if the director determines that such operations are just,
reasonable and in accordance with law and the provisions of this
article.
The director shall docket and keep a record of all such
proceedings. From any such final decision or order of the
director, either the well operator or coal operator, or both,
may, within ten days, appeal to the circuit court of the county
in which the well subject to said petition is located. The
procedure in the circuit court shall be substantially as provided
in section four, article five, chapter twenty-nine-a of this
code, with the director being named as a respondent. From any
final order or decree of the circuit court, an appeal may be
taken to the supreme court of appeals as heretofore provided.
A copy of the document or documents evidencing the action of
the director with respect to such petition shall promptly be
filed with the chief of the office of oil and gas of the division
of environmental protection.
(c) Before a coal operator conducts surface or strip mining
operations as defined in this chapter, within two hundred feet of
any well, including the removal of coal and other material, theoperator shall file with the director and furnish to the well
operator by certified mail, return receipt requested, its mining
maps and plans (which it is required to prepare, file and update
to and with the regulatory authority) for the area within two
hundred feet of the well, together with a notice, on a form
furnished by the director, informing them that the mining maps
and plans are being filed or mailed pursuant to the requirements
of this section, and representing that the planned operations
will not unreasonably interfere with access to or operation of
the well and will not damage the well. In addition, the coal
operator shall furnish the well operator with evidence that it
has in force public liability insurance, with at least the
minimum coverage required by article three, chapter twenty-two of
this code, and the rules promulgated thereto and thereunder.
Once these mining maps and plans are filed with the
director, the coal operator may proceed with its surface or strip
mining operations in the manner and as projected on such plans or
maps, so long as such surface mining operations do not
unreasonably interfere with access to, or operation of, the well
or do not damage the well.
(d) The filing of petitions and notices with the director as
herein provided may be complied with by mailing such petition or
notice to the director by certified mail, return receipt
requested.
§22A-2-76. Reopening old or abandoned mines.
No person, without first giving to the director ten days'written notice thereof, shall reopen for any purposes any old or
abandoned mine wherein water or mine seepage has collected or
become impounded or exists in such manner or quantity that upon
the opening of such mine, such water or seepage may drain into
any stream or watercourse.
Such notice shall state clearly the name or names of the
owner or owners of the mine proposed to be opened, its exact
location, and the time of the proposed opening thereof.
Upon receipt of such notice, the director shall have his or
her representative present at the mine at the time designated in
the notice for such opening, who has full supervision of the work
of opening such mine with full authority to direct the work in
such manner as to him or her seems proper and necessary to
prevent the flow of mine water or seepage from such mine in such
manner or quantity as will kill or be harmful to the fish in any
stream or watercourse into which such mine water seepage may flow
directly or indirectly.
§22A-2-77. Monthly report by operator of mine; exception as to
certain inactive mines.
On or before the end of each calendar month, the operator of
each mine, regulated under the provisions of this chapter or
article three or four, chapter twenty-two of this code, shall
file with the director a report with respect thereto covering the
next preceding calendar month which shall reflect the number of
accidents which have occurred at each such mine, the number of
persons employed, the days worked and the actual raw tonnagemined. Such report shall be made upon forms furnished by the
director. Other provisions of this section to the contrary
notwithstanding, no such report shall be required with respect to
any mine on approved inactive status if no employees were present
at such mine at any time during the next preceding calendar
month.
§22A-2-78. Examinations to determine compliance with permits.
Whenever permits are issued by the office of miners' health,
safety and training, frequent examinations shall be made by the
mine inspector during the tenure of the permit to determine that
the requirements and limitations of the permit are complied with.
ARTICLE 3. UNDERGROUND CLAY MINE.
§22A-3-1. Definition.
In this article the term "mine" includes the shafts, slopes,
drifts or inclines connected with excavations penetrating clay
seams or strata, which excavations are ventilated by one general
air current or division thereof, and the surface structures or
equipment connected therewith which contribute directly or
indirectly to the underground mining of clay.
§22A-3-2. Clay mine foreman; when to be employed;
qualifications; assistants.
In every underground clay mine where five or more persons
are employed in a period of twenty-four hours, the operator shall
employ a mine foreman who shall be a competent and practical
person holding a certificate of competence for said position
issued to him or her by the office of miners' health, safety andtraining after an examination by such office. In order to
receive a certificate of competence qualifying a foreman in an
underground clay mine, the applicant shall take an examination
prescribed by the director of the office of miners' health,
safety and training, be a citizen of this state, of good moral
character and temperate habits, having had at least three years'
experience in the underground working of clay mines.
§22A-3-3. Rules for protection of health and safety of
employees.
The director of the office of miners' health, safety and
training may from time to time promulgate reasonable rules for
the protection of the health and safety of the persons working in
or about underground clay mines, to the extent the same are not
more onerous or restrictive than the laws of this state intended
to safeguard the life and health of persons working in
underground coal mines contained in article two of this chapter.
ARTICLE 4. OPEN-PIT MINES, CEMENT MANUFACTURING PLANTS AND
UNDERGROUND LIMESTONE AND SANDSTONE MINES.
§22A-4-1. Definitions.
Unless the context in which used clearly requires a
different meaning as used in this article:
(a) "Open-pit mine" means an excavation worked from the
surface and open to daylight.
(b) "Underground mine" means subterranean workings for the
purpose of obtaining a desired material or materials.
(c) "Sand" means waterworn sandstone fragments transportedand deposited by water.
(d) "Gravel" means an occurrence of waterworn pebbles.
(e) "Sandstone" means a compacted or cemented sediment
composed chiefly of quartz grains.
(f) "Limestone" means a sedimentary rock composed mostly of
calcium carbonate.
(g) "Clay" means a natural material of mostly small
fragments of hydrous aluminum silicates and possessing plastic
properties.
(h) "Shale" means a laminated sedimentary rock composed
chiefly of small particles of a clay grade.
(i) "Iron ore" means a mineral or minerals, and gangue which
when treated will yield iron at a profit.
(j) "Manganese ore" means a metalliferous mineral which when
treated will yield manganese at a profit.
§22A-4-2. Applicability of mining laws.
All provisions of the mining laws of this state intended for
the protection of the health and safety of persons employed
within or at any coal mine and for the protection of any coal
mining property extend to all open-pit mines and any property
used in connection therewith for the mining of underground
limestone and sandstone mines, insofar as such laws are
applicable thereto.
§22A-4-3. Rules.
The director of the office of miners' health, safety and
training shall promulgate reasonable rules, in accordance withand confined to the provisions of chapter twenty-nine-a of this
code, for the effective administration of this article.
§22A-4-4. Monthly report by operator.
The operator of such mine shall, on or before the end of
each calendar month, file with the director of the office of
miners' health, safety and training a report covering the
preceding calendar month on forms furnished by the director.
Such reports shall state the number of accidents which have
occurred, the number of persons employed, the days worked and the
actual tonnage mined.
§22A-4-5. Inspectors.
The director of the office of miners' health, safety and
training shall divide the state into not more than two mining
districts and assign one inspector to each district. Such
inspector shall be a citizen of West Virginia, in good health, of
good character and reputation, temperate in habits, having a
minimum of five years of practical experience in such mining
operations and who at the time of appointment is not more than
fifty-five years of age. To qualify for appointment as such an
inspector, an eligible applicant shall submit to a written and
oral examination by the mine inspectors' examining board and
furnish such evidence of good health, character and other facts
establishing eligibility as the board may require. If the board
finds after investigation and examination that an applicant: (1)
Is eligible for appointment; and (2) has passed all written and
oral examinations, with a grade of at least ninety percent, theboard shall add such applicant's name and grade to the register
of qualified eligible candidates and certify its action to the
director of the office of miners' health, safety and training.
No candidate's name shall remain in the register for more than
three years without requalifying.
Such inspector shall have the same tenure accorded a mine
inspector, as provided in subsection (d), section eight, article
one of this chapter and shall be paid not less than fifteen
thousand dollars per year. Such inspector shall also receive
reimbursement for traveling expenses at the rate of not less than
fifteen cents for each mile actually traveled in the discharge of
their duties in a privately owned vehicle. Such inspector shall
also be reimbursed for any expense incurred in maintaining an
office in his or her home, which office is used in the discharge
of official duties:
Provided, That such reimbursement shall not
exceed two hundred forty dollars per annum.
§22A-4-6. Penalties.
Any person who fails or refuses to discharge any provision
of this article, rule promulgated or order issued pursuant to the
provisions of this article, is guilty of a misdemeanor, and, upon
conviction thereof, shall be punished by a fine of not less than
one hundred nor more than one thousand dollars or by imprisonment
not exceeding six months, or by both.
ARTICLE 5. BOARD OF APPEALS.
§22A-5-1. Board of appeals.
There is hereby continued a board of appeals, consisting ofthree members. Two members of the board shall be appointed by
the governor, one person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
miners, and one person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
the operators. The third person, who is chair of the board and
who must not have had any connection at any time with the coal
industry or an organization representing miners, is selected by
the two members appointed by the governor. The term of office of
members of the board is five years.
The function and duties of the board is to hear appeals,
make determinations on questions of miners' entitlements due to
withdrawal orders and appeals from discharge or discrimination,
and suspension of certification certificates.
The chair of the board has the power to administer oaths and
subpoena witnesses and require production of any books, papers,
records or other documents relevant or material to the appeal
inquiry.
The chair shall subpoena any witness requested by a party to
a hearing to testify or produce books, records or documents. Any
witness responding to a subpoena so issued shall receive a daily
witness fee to be paid out of the state treasury upon a
requisition of the state auditor equivalent to the rate of pay
under the wage agreement currently in effect plus all reasonable
expenses for meals, lodging and travel at the rate applicable to
state employees. Any full payments as hereinbefore specifiedshall be in full and exclusive payment for meals, lodging, actual
travel and similar expenses and shall be made in lieu of any lost
wages occasioned by such appearance in connection with any
hearing conducted by the board.
Each member of the board shall receive one hundred dollars
per diem while actually engaged in the performance of the work of
the board. Each member shall be reimbursed for all reasonable
and necessary expenses actually incurred during the performance
of their duties. Each member shall receive mileage expense
reimbursement at the rate established by the governor's travel
rules, as administered by the department of administration. No
reimbursement for expenses shall be made except upon an itemized
account, properly certified by such members of the board. All
reimbursement for expenses shall be paid out of the state
treasury upon a requisition upon the state auditor.
Board members, before performing any duty, shall take and
subscribe to the oath required by section five, article IV of the
constitution of West Virginia.
ARTICLE 6. BOARD OF COAL MINE HEALTH AND SAFETY.
§22A-6-1. Declaration of legislative findings and purpose.
(a) The Legislature hereby finds and declares that:
(1) The Legislature concurs with the congressional
declaration made in the "Federal Coal Mine Health and Safety Act
of 1969" that "the first priority and concern of all in the coal
mining industry must be the health and safety of its most
precious resource -- the miner";
(2) Coal mining is highly specialized, technical and complex
and it requires frequent review, refinement and improvement of
standards to protect the health and safety of miners;
(3) During each session of the Legislature, coal mine health
and safety standards are proposed which require knowledge and
comprehension of scientific and technical data related to coal
mining;
(4) The formulation of appropriate rules and practices to
improve health and safety and provide increased protection of
miners can be accomplished more effectively by persons who have
experience and competence in coal mining and coal mine health and
safety.
(b) In view of the foregoing findings, it is the purpose of
this article to:
(1) Continue the board of coal mine health and safety;
(2) Require such board to continue as standard rules the
coal mine health and safety provisions of this code;
(3) Compel the board to review such standard rules and, when
deemed appropriate to improve or enhance coal mine health and
safety, to revise the same or develop and promulgate new rules
dealing with coal mine health and safety; and
(4) Authorize such board to conduct such other activities as
it deems necessary to implement the provisions of this chapter.
§22A-6-2. Definitions.
Unless the context in which a word or phrase appears clearly
requires a different meaning, the words and phrases defined insection two, article one of this chapter have, when used in this
article, the meaning therein assigned to them. For the purpose
of this article "board" means the board of coal mine health and
safety continued by section three of this article.
§22A-6-3. Board continued; membership; method of nomination and
appointment; meetings; vacancies; quorum.
(a) The board of coal mine health and safety, heretofore
established, is continued as provided by this article. The board
consists of seven members who are residents of this state, and
who are appointed as hereinafter specified in this section:
(1) The governor shall appoint one member to represent the
viewpoint of those operators in this state whose individual
aggregate production exceeds one million tons annually and one
member to represent the viewpoint of those operators in this
state whose individual aggregate production is less than one
million tons annually, which tonnage includes tonnage produced by
affiliated, parent and subsidiary companies and tonnage produced
by companies which have a common director or directors,
shareholder or shareholders, owner or owners. When such members
are to be appointed, the governor may request from the major
trade association representing operators in this state a list of
three nominees for each such position on the board. All such
nominees shall be persons with special experience and competence
in coal mine health and safety. There shall be submitted with
such list a summary of the qualifications of each nominee. If
the full lists of nominees are submitted in accordance with theprovisions of this subdivision, the governor shall make the
appointments from the persons so nominated. For purposes of this
subdivision, the major trade association representing operators
in this state is that association which represents operators
accounting for over one half of the coal produced in mines in
this state in the year prior to the year in which the appointment
is to be made.
(2) The governor shall appoint two members who can
reasonably be expected to represent the viewpoint of the working
miners of this state. If the major employee organization
representing coal miners in this state is divided into
administrative districts, such members shall not be from the same
administrative district. The highest ranking official within the
major employee organization representing coal miners within this
state shall, upon request by the governor, submit a list of three
nominees for each such position on the board:
Provided, That if
the major employee organization representing coal miners in this
state is divided into administrative districts, and if there are
two vacancies to be filled in accordance with the provisions of
this subdivision, not more than two persons on each list of three
nominees shall be from the same administrative district and at
least three districts shall be represented on the two lists
submitted, and if there is one vacancy to be filled, no names
shall be submitted of persons from the same administrative
district already represented on the board. Said nominees shall
have a background in coal mine health and safety, and shall atthe time of their appointment be employed in a position which
involves the protection of health and safety of miners. There
shall be submitted with such list a summary of the qualifications
of each nominee. If the full lists of nominees are submitted in
accordance with the provisions of this subdivision, the governor
shall make appointments from the persons so nominated.
(3) The governor shall appoint one public member who is
professionally qualified in the field of occupational health and
safety and who is: (A) An employee of the institute of labor
studies at West Virginia university; or (B) a person who is
engaged in or who has broad experience in occupational health and
safety from the perspective of the worker. Such nominee shall
have technical experience in occupational health and safety or
education and experience in such field:
Provided, That the
nominee shall not have been, prior to appointment to the board,
employed by a mining or industrial business entity in a
managerial or supervisory position, or shall not have been
employed by the major employee organization representing coal
miners in this state, or shall not have been a miner.
(4) The governor shall appoint one public member who is
professionally qualified in the field of occupational health and
safety and who has a degree in engineering or industrial safety
and a minimum of five years' experience in the field of
industrial safety engaged in constructing, designing, developing
or administering safety programs:
Provided, That the nominee has
not been, prior to appointment to the board, employed by a miningbusiness entity in a managerial or supervisory position or has
not been employed by the major employee organization representing
coal miners in this state, or has not been a miner.
(5) All appointments made by the governor under the
provisions of subdivisions (1), (2), (3) and (4) of this
subsection shall be with the advice and consent of the Senate.
(6) The seventh member of the board is the secretary of the
department of commerce, labor and environmental resources, or his
or her designee, who serves as chair of the board. The director
shall furnish to the board such secretarial, clerical, technical,
research and other services as are necessary to the conduct of
the business of the board, not otherwise furnished by the board.
(b) Members serving on the board on the effective date of
this article may continue to serve until the expiration of their
terms. Thereafter, members shall be nominated and appointed in
the manner provided for in this section and shall serve for a
term of three years. Members are eligible for reappointment.
(c) The governor shall appoint a health and safety
administrator in accordance with the provisions of section six of
this article, who shall certify all official records of the
board. The health and safety administrator shall be a full-time
officer of the board of coal mine health and safety with the
duties provided for in said section. The health and safety
administrator shall have such education and experience as the
governor deems necessary to properly investigate areas of concern
to the board in the development of rules governing mine healthand safety. The governor shall appoint as health and safety
administrator a person who has an independent and impartial
viewpoint on issues involving mine safety. The health and safety
administrator shall be a person who has not been, during the two
years immediately preceding appointment, and is not during his or
her term, an officer, trustee, director, substantial shareholder
or employee of any coal operator, or an employee or officer of an
employee organization, or a spouse of any such person. The
health and safety administrator shall have the expertise to draft
proposed rules and shall prepare such rules as are required by
this code and on such other areas as will improve coal mine
health and safety.
(d) The board shall meet at least once during each calendar
month, or more often as may be necessary, and at other times upon
the call of the chair, or upon the request of any three members
of the board. Under the direction of the board, the health and
safety administrator shall prepare an agenda for each board
meeting giving priority to the promulgation of rules as may be
required from time to time by this code, and as may be required
to improve coal mine health and safety. The health and safety
administrator shall provide each member of the board with notice
of the meeting and the agenda as far in advance of the meeting as
practical, but in any event, at least five days prior thereto.
No meeting of the board shall be conducted unless said notice and
agenda are given to the board members at least five days in
advance, as provided herein, except in cases of emergency, asdeclared by the chair, in which event members shall be notified
of the board meeting and the agenda in a manner to be determined
by the chair:
Provided, That upon agreement of a majority of the
quorum present, any scheduled meeting may be ordered recessed to
another day certain without further notice of additional agenda.
When proposed rules are to be finally adopted by the board,
copies of such proposed rules shall be delivered to members not
less than five days before the meeting at which such action is to
be taken. If not so delivered, any final adoption or rejection
of rules shall be considered on the second day of a meeting of
the board held on two consecutive days, except that by the
concurrence of at least four members of the board, the board may
suspend this rule of procedure and proceed immediately to the
consideration of final adoption or rejection of rules. When a
member fails to appear at three consecutive meetings of the board
or at one half of the meetings held during a one-year period, the
health and safety administrator shall notify the member and the
governor of such fact. Such member shall be removed by the
governor unless good cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and
appointments shall be made in the manner prescribed in this
section:
Provided, That in the case of an appointment to fill a
vacancy, nominations of three persons for each such vacancy shall
be requested by and submitted to the governor within thirty days
after the vacancy occurs by the major trade association or major
employee organization, if any, which nominated the person whoseseat on the board is vacant. The vacancy shall be filled by the
governor within thirty days of his receipt of the list of
nominations.
(f) A quorum of the board is five members which shall
include the secretary of the department of commerce, labor and
environmental resources, at least one member representing the
viewpoint of operators and at least one member representing the
viewpoint of the working miners, and the board may act officially
by a majority of those members who are present.
§22A-6-4. Board powers and duties.
(a) The board shall adopt as standard rules the "coal mine
health and safety provisions of this chapter". Such standard
rules and any other rules shall be adopted by the board without
regard to the provisions of chapter twenty-nine-a of this code.
The board of coal mine health and safety shall devote its time
toward promulgating rules in those areas specifically directed by
this chapter and those necessary to prevent fatal accidents and
injuries.
(b) The board shall review such standard rules and, when
deemed appropriate to improve or enhance coal mine health and
safety, revise the same or develop and promulgate new rules
dealing with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may
be appropriate, rules as are necessary and proper to effectuate
the purposes of article two, of this chapter and to prevent the
circumvention and evasion thereof, all without regard to theprovisions of chapter twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific
data in the field, the technical feasibility of standards, and
experience gained under this and other safety statutes, such
rules may expand protections afforded by this chapter
notwithstanding specific language therein, and such rules may
deal with subject areas not covered by this chapter to the end of
affording the maximum possible protection to the health and
safety of miners.
(2) No rules promulgated by the board shall reduce or
compromise the level of safety or protection afforded miners
below the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal
operator has the power to petition the circuit court of Kanawha
county for a determination as to whether any rule promulgated or
revised reduces the protection afforded miners below that
provided by this chapter, or is otherwise contrary to law:
Provided, That any rule properly promulgated by the board
pursuant to the terms and conditions of this chapter creates a
rebuttable presumption that said rule does not reduce the
protection afforded miners below that provided by this chapter.
(4) The director shall cause proposed rules and a notice
thereof to be posted as provided in section eighteen, article one
of this chapter. The director shall deliver a copy of such
proposed rules and accompanying notice to each operator affected.
A copy of such proposed rules shall be provided to any individualby the director request. The notice of proposed rules shall
contain a summary in plain language explaining the effect of the
proposed rules.
(5) The board shall afford interested persons a period of
not less than thirty days after releasing proposed rules to
submit written data or comments. The board may, upon the
expiration of such period and after consideration of all relevant
matters presented, promulgate such rules with such modifications
as it may deem appropriate.
(6) On or before the last day of any period fixed for the
submission of written data or comments under subdivision (5), of
this subsection, any interested person may file with the board
written objections to a proposed rule, stating the grounds
therefor and requesting a public hearing on such objections. As
soon as practicable after the period for filing such objections
has expired, the board shall release a notice specifying the
proposed rules to which objections have been filed and a hearing
requested.
(7) Promptly after any such notice is released by the board
under subdivision (6) of this subsection, the board shall issue
notice of, and hold a public hearing for the purpose of receiving
relevant evidence. Within sixty days after completion of the
hearings, the board shall make findings of fact which shall be
public, and may promulgate such rules with such modifications as
it deems appropriate. In the event the board determines that a
proposed rule should not be promulgated or should be modified, itshall within a reasonable time publish the reasons for its
determination.
(8) All rules promulgated by the board shall be published in
the state register and continue in effect until modified or
superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board
is authorized to employ such personnel, including legal counsel,
experts and consultants, as it deems necessary. In addition, the
board, within the appropriations provided for by the Legislature,
may conduct or contract for research and studies and is titled to
the use of the services, facilities and personnel of any agency,
institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining
fatality or fatalities provide the board with all available
reports regarding such fatality or fatalities.
The board shall review all such reports, receive any
additional information, and may, on its own initiative, ascertain
the cause or causes of such coal mining fatality or fatalities.
Within one hundred twenty days of such review of each such
fatality, the board shall promulgate such rules as are necessary
to prevent the recurrence of such fatality, unless a majority of
the quorum present determines that no rules can assist in the
prevention of the specific type of fatality. Likewise, the board
shall annually, not later than the first day of July, review the
major causes of coal mining injuries during the previous calendar
year, reviewing the causes in detail, and shall promulgate suchrules as may be necessary to prevent the recurrence of such
injuries.
Further, the board shall, on or before the tenth day of
January of each year, submit a report to the governor, president
of the Senate and speaker of the House, which report shall
include, but is not limited to:
(1) The number of fatalities during the previous calendar
year, the apparent reason for each fatality as determined by the
office of miners' health, safety and training and the action, if
any, taken by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the
current calendar year;
(4) Any problem the board is having in its effort to
promulgate rules to enhance health and safety in the mining
industry;
(5) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would cause the enhancement of
health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein
contained, each individual member of said board has right to
submit a separate report, setting forth any views contrary to the
report of the board, and the separate report, if any, shall be
appended to the report of the board and be considered a part
thereof.
§22A-6-5. Preliminary procedures for promulgation of rules.
(a) Prior to the posting of proposed rules as provided for
in subsection (c), section four of this article, the board shall
observe the preliminary procedure for the development of rules
set forth in this section:
(1) During a board meeting or at any time when the board is
not meeting, any board member may suggest to the health and
safety administrator, or such administrator on his or her own
initiative may develop, subjects for investigation and possible
regulation;
(2) Upon receipt of a suggestion for investigation, the
health and safety administrator shall prepare a report, to be
given at the next scheduled board meeting, of the technical
evidence available which relates to such suggestion, the staff
time required to develop the subject matter, the legal authority
of the board to act on the subject matter, including a
description of findings of fact and conclusions of law which will
be necessary to support any proposed rules;
(3) The board shall by majority vote of those members who
are present determine whether the health and safety administrator
shall prepare a draft rule concerning the suggested subject
matter;
(4) After reviewing the draft rule, the board shall
determine whether the proposed rules should be posted and made
available for comment as provided for in section four of this
article;
(5) The board shall receive and consider those comments to
the proposed rules as provided for in section four of this
article;
(6) The board shall direct the health and safety
administrator to prepare for the next scheduled board meeting
findings of fact and conclusions of law for the proposed rules,
which may incorporate comments received and technical evidence
developed, and which are consistent with section four of this
article;
(7) The board shall adopt or reject or modify the proposed
findings of fact and conclusions of law; and
(8) The board shall make a final adoption or rejection of
the rules.
(b) By the concurrence of at least four members of the
board, the board may dispense with the procedure set out in (a)
above or any other procedural rule established, except that the
board shall in all instances when adopting rules prepare findings
of fact and conclusions of law consistent with this section and
section four of this article.
(c) Without undue delay, the board shall adopt an order of
business for the conduct of meetings which will promote the
orderly and efficient consideration of proposed rules in
accordance with the provisions of this section.
§22A-6-6. Health and safety administrator; qualifications;
duties; employees; compensation.
(a) The governor shall appoint the health and safetyadministrator of the board for a term of employment of one year.
The health and safety administrator shall be entitled to have his
or her contract of employment renewed on an annual basis except
where such renewal is denied for cause:
Provided, That the
governor has the power at any time to remove the health and
safety administrator for misfeasance, malfeasance or nonfeasance:
Provided, however, That the board has the power to remove the
health and safety administrator without cause upon the
concurrence of five members of the board.
(b) The health and safety administrator shall work at the
direction of the board, independently of the director of the
office of miners' health, safety and training and has such
authority and shall perform such duties as may be required or
necessary to effectuate this article.
(c) In addition to the health and safety administrator,
there shall be such other research employees hired by the health
and safety administrator as the board determines to be necessary.
The health and safety administrator shall provide supervision and
direction to the other research employees of the board in the
performance of their duties.
(d) The employees of the board shall be compensated at rates
determined by the board. The salary of the health and safety
administrator shall be fixed by the governor:
Provided, That the
salary of the health and safety administrator shall not be
reduced during his or her annual term of employment or upon the
renewal of his or her contract for an additional term. Suchsalary shall be fixed for any renewed term at least ninety days
before the commencement thereof.
(e) Appropriations for the salaries of the health and safety
administrator and any other employees of the board and for
necessary office and operating expenses shall be made to a budget
account hereby established for those purposes in the general
revenue fund. Such account shall be separate from any accounts
or appropriations for the office of miners' health, safety and
training.
(f) The health and safety administrator shall review all
coal mining fatalities and major causes of injuries as mandated
by section four of this article. An analysis of such fatalities
and major causes of injuries shall be prepared for consideration
by the board within ninety days of the occurrence of the
accident.
(g) At the direction of the board, the administrator shall
also conduct an annual study of occupational health issues
relating to employment in and around coal mines of this state and
submit a report to the board with findings and proposals to
address the issues raised in such study. The administrator is
responsible for preparing the annual reports required by
subsection (e), section four of this article and section nine of
this article.
§22A-6-7. Coal mine safety and technical review committee;
membership; method of nomination and appointment; meetings;
quorum; powers and duties of the committee; powers and
duties
of the board of coal mine health and safety.
(a) There is hereby continued the state coal mine safety and
technical review committee. The purposes of this committee are
to:
(1) Assist the board of coal mine health and safety in the
development of technical data relating to mine safety issues,
including related mining technology;
(2) Provide suggestions and technical data to the board and
propose rules with general mining industry application;
(3) Accept and consider petitions submitted by individual
mine operators or miners seeking site-specific rulemaking
pertaining to individual mines and make recommendations to the
board concerning such rulemaking; and
(4) Provide a forum for the resolution of technical issues
encountered by the board.
(b) The committee shall consist of two members who shall be
residents of this state, and who shall be appointed as
hereinafter specified in this section:
(1) The governor shall appoint one member to represent the
viewpoint of the coal operators in this state from a list
containing one or more nominees submitted by the major trade
association representing coal operators in this state within
thirty days of submission of such nominee or nominees.
(2) The governor shall appoint one member to represent the
viewpoint of the working miners of this state from a list
containing one or more nominees submitted by the highest rankingofficial within the major employee organization representing coal
mines within this state within thirty days of submission of the
nominee or the nominees.
(3) The members appointed in accordance with the provisions
of subdivisions (1) and (2) of this subsection shall be initially
appointed to serve a term of three years. The members serving on
the effective date of this article may continue to serve until
their terms expire.
(4) The members appointed in accordance with the provisions
of subdivisions (1) and (2) of this subsection may be, but are
not required to be, members of the board of coal mine health and
safety, and shall be compensated on a per diem basis in the same
amount as provided in section ten of this article, plus all
reasonable expenses.
(c) The committee shall meet at least once during each
calendar month, or more often as may be necessary.
(d) A quorum of the committee shall require both members,
and the committee may only act officially by a quorum.
(e) The committee may review any matter relative to mine
safety and mining technology, and may pursue development and
resolution of issues related thereto. The committee may make
recommendations to the board for the promulgation of rules with
general mining industry application. Upon receipt of a unanimous
recommendation for rulemaking from the committee and only
thereon, the board may adopt or reject such rule, without
modification except as approved by the committee:
Provided, Thatany adopted rule shall not reduce or compromise the level of
safety or protection below the level of safety or protection
afforded by applicable statutes and rules. When so promulgated,
such rules shall be effective, notwithstanding the provisions of
applicable statutes.
(f) (1) Upon application of a coal mine operator, or on its
own motion, the committee has the authority to accept requests
for site-specific rulemaking on a mine-by-mine basis, and make
unanimous recommendations to the board for site-specific rules
thereon. The committee has authority to approve a request if it
concludes that the request does not reduce or compromise the
level of safety or protection afforded miners below the level of
safety or protection afforded by any applicable statutes or
rules. Upon receipt of a request for site-specific rulemaking,
the committee may conduct an investigation of the conditions in
the specific mine in question, which investigation shall include
consultation with the mine operator and authorized
representatives of the miners. Such authorized representatives
of the miners shall include any person designated by the
employees at the mine, persons employed by an employee
organization representing one or more miners at the mine, or a
person designated as a representative by one or more persons at
the mine.
(2) If the committee determines to recommend a request made
pursuant to subdivision (1) of this subsection, the committee
shall provide the results of its investigation to the board ofcoal mine health and safety along with recommendations for the
development of the site-specific rules applicable to the
individual mine, which recommendations may include a written
proposal containing draft rules.
(3) Within thirty days of receipt of the committee's
recommendation, the board shall adopt or reject, without
modification, except as approved by the committee, the
committee's recommendation to promulgate site-specific rules
applicable to an individual mine adopting such site-specific
rules only if it determines that the application of the requested
rule to such mine will not reduce or compromise the level of
safety or protection afforded miners below that level of safety
or protection afforded by any applicable statutes. When so
promulgated, such rules shall be effective notwithstanding the
provisions of applicable statutes.
(g) The board shall consider all rules proposed by the coal
mine safety and technical review committee and adopt or reject,
without modification, except as approved by the committee, such
rules, dispensing with the preliminary procedures set forth in
subdivisions (1) through (7), subsection (a), section five of
this article; and, in addition, with respect to site-specific
rules also dispensing with the procedures set forth in
subdivisions (4) through (8), subsection (c), section four of
this article.
(h) In performing its functions, the committee has access to
the services of the coal mine health and safety administratorappointed under section six of this article. The director shall
make clerical support and assistance available in order that the
committee can carry out its duties. Upon the request of both
members of the committee, the health and safety administrator
shall draft proposed rules and reports or make investigations.
(i) The powers and duties provided for in this section for
the committee are not intended to replace or precondition the
authority of the board of coal mine health and safety to act in
accordance with sections one through six and eight through ten of
this article.
(j) Appropriations for the funding of the committee and to
effectuate this section shall be made to a budget account hereby
established for that purpose in the general revenue fund. Such
account shall be separate from any accounts or appropriations for
the office of miners' health, safety and training.
§22A-6-8. Effect of rules.
The standard rules and any rules promulgated by the board
have the same force and effect of law as if enacted by the
Legislature as a part of article two of this chapter and any
violation of any such rule is a violation of law or of a health
or safety standard within the meaning of this chapter.
§22A-6-9. Reports.
Prior to each regular session of the Legislature, the board
shall submit to the Legislature an annual report upon the subject
matter of this article, the progress concerning the achievement
of its purpose and any other relevant information, including anyrecommendations it deems appropriate.
§22A-6-10. Compensation and expenses of board members.
Each member of the board not otherwise employed by the state
shall receive one hundred ten dollars per diem while actually
engaged in the performance of the duties of the board. Each
member shall be reimbursed for all reasonable and necessary
expenses actually incurred during the performance of his or her
duties, except that in the event the expenses are paid by a third
party, the member shall not be reimbursed by the state. Each
member shall receive meals, lodging and mileage expense
reimbursements at the rates established by the governor's travel
rules, as administered by the department of administration. The
reimbursement shall be paid out of the state treasury upon a
requisition upon the state auditor, properly certified by the
office of miners' health, safety and training. No employer shall
prohibit a member of the board from exercising leave of absence
from his or her place of employment in order to attend a meeting
of the board or a meeting of a subcommittee of the board, or to
prepare for a meeting of the board, any contract of employment to
the contrary notwithstanding.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-1. Short title.
This article shall be cited as "The West Virginia Miner
Training, Education and Certification Act".
§22A-7-2. Declaration of legislative findings and policy.
The Legislature hereby finds and declares that:
(a) The continued prosperity of the coal industry is of
primary importance to the state of West Virginia;
(b) The highest priority and concern of this Legislature and
all in the coal mining industry must be the health and safety of
the industry's most valuable resource -- the miner;
(c) A high priority must also be given to increasing the
productivity and competitiveness of the mines in this state;
(d) An inordinate number of miners, working on both the
surface in surface mining and in and at underground mines, are
injured during the first few months of their experience in a
mine;
(e) These injuries result in the loss of life and serious
injury to miners and are an impediment to the future growth of
West Virginia's coal industry;
(f) Injuries can be avoided through proper miner training,
education and certification;
(g) Mining is a technical occupation with various
specialties requiring individualized training and education; and
(h) It is the general purpose of this article to:
(1) Require adequate training, education and meaningful
certification of all persons employed in coal mines;
(2) Establish a board of miner training, education and
certification and empower it to require certain training and
education of all prospective miners and miners certified by the
state;
(3) Authorize a stipend for prospective miners enrolled inthis state's miner training, education and certification program;
(4) Direct the director of the office of miners' health,
safety and training to apply and implement the standards set by
the board of miner training, education and certification by
establishing programs for miner and prospective miner education
and training; and
(5) Provide for a program of continuing miner education for
all categories of certified miners.
§22A-7-3. Definitions.
Unless the context in which a word or phrase appears clearly
requires a different meaning, the words defined in section two,
article one of this chapter have when used in this article the
meaning therein assigned to them. These words include, but are
not limited to, the following: Office, director, mine inspector,
operator, miner, shotfirer and certified electrician.
"Board" means the board of miner training, education and
certification established by section four of this article.
"Mine" means any mine, including a "surface mine", as that
term is defined in section three, article three, chapter
twenty-two of this code, and in section two, article four of said
chapter; and a "mine" as that term is defined in section two,
article one of this chapter.
§22A-7-4. Board of miner training, education and certification
continued; membership; method of appointment; terms.
(a) There is hereby continued a board of miner training,
education and certification, which consists of seven members, whoare selected in the following manner:
(1) One member shall be appointed by the governor to
represent the viewpoint of surface mine operators in this state.
When such member is to be appointed, the governor shall request
from the major association representing surface coal operators in
this state a list of three nominees to the board. The governor
shall select from said nominees one person to serve on the board.
For purposes of this subsection, the major association
representing the surface coal operators in this state is that
association, if any, which represents surface mine operators
accounting for over one half of the coal produced in surface
mines in this state in the year prior to that year in which the
appointment is made.
(2) Two members shall be appointed by the governor to
represent the interests of the underground operators of this
state. When said members are to be appointed, the governor shall
request from the major association representing the underground
coal operators in this state a list of six nominees to the board.
The governor shall select from said nominees two persons to serve
on the board. For purposes of this subsection, the major
association representing the underground operators in this state
is that association, if any, which represents underground
operators accounting for over one half of the coal produced in
underground mines in this state in the year prior to that year in
which the appointments are made.
(3) Three members shall be appointed by the governor who canreasonably be expected to represent the interests of the working
miners in this state. If the major employee organization
representing coal miners in this state is divided into
administrative districts, the employee organization of each
district shall, upon request by the governor, submit a list of
three nominees for membership on the board. If such major
employee organization is not so divided into administrative
districts, such employee organization shall, upon request by the
governor, submit a list of twelve nominees for membership on the
board. The governor shall make such appointments from the
persons so nominated:
Provided, That in the event nominations
are made by administrative districts, not more than one member
shall be appointed from the nominees of any one district unless
there are less than three such districts in this state.
(4) The seventh member of the board, who serves as chair,
shall be the director of the office of miners' health, safety and
training.
(5) All appointments made by the governor under this section
shall be with the advice and consent of the Senate:
Provided,
That persons so appointed while the Senate of this state is not
in session are permitted to serve up to one year in an acting
capacity, or until the next session of the Legislature, whichever
is less.
(b) The board shall be appointed by the governor. Members
serving on the effective date of this article may continue on the
board until their terms expire. Appointed members serve for aterm of three years. The board shall meet at the call of the
chair, at the call of the director, or upon the request of any
two members of the board:
Provided, That no meeting of the board
for any purpose shall be conducted unless the board members are
notified at least five days in advance of a proposed meeting. In
cases of an emergency, members may be notified of a board meeting
by the most appropriate means of communication available.
(c) Whenever a vacancy on the board occurs, appointments
shall be made in the manner prescribed in this section:
Provided, That in the case of an appointment to fill a vacancy
nominations shall be submitted to the governor within thirty days
after the vacancy occurs. The vacancy shall be filled by the
governor within thirty days of receipt of the list of
nominations.
(d) Each appointed member of the board shall receive one
hundred ten dollars per diem while actually engaged in the
performance of the work of the board. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred during the performance of their duties. Each member
shall receive meals, lodging and mileage expense reimbursements
at the rates established by the governor's travel rules, as
administered by the department of administration, which shall be
paid out of the state treasury upon a requisition upon the state
auditor, properly certified by such members of the board.
(e) A quorum of the board is four members. The board may
act officially by a majority of those members who are present.
(f) The chair of the board shall be a nonvoting member:
Provided, That in cases of a tie, the chair shall cast the
deciding vote on the issue or issues under consideration.
(g) The director of the office of miners' health, safety and
training shall select a member of the office's staff to serve as
the secretary to the board and the secretary shall be present or
send an authorized representative to all meetings of the board.
§22A-7-5. Board powers and duties.
(a) The board shall establish criteria and standards for a
program of education, training and examination to be required of
all prospective miners and miners prior to their certification in
any of the various miner specialties requiring certification,
under this article or any other provision of this code. Such
specialties include, but are not limited to, underground miner,
surface miner, apprentice, underground mine foreman-fire boss,
assistant underground mine foreman-fire boss, shotfirer, mine
electrician and belt examiner. Notwithstanding the provisions of
this section the director may by rule further subdivide the
classification for certification.
(b) The board may require certification in other miner
occupational specialties:
Provided, That no new specialty may be
created by the board unless certification in a new specialty is
made desirable by action of the federal government requiring
certification in a specialty not enumerated in this code.
(c) The board may establish criteria and standards for a
program of preemployment education and training to be required ofminers working on the surface at underground mines who are not
certified under the provisions of this article or any other
provision of this code.
(d) The board shall set minimum standards for a program of
continuing education and training of certified persons and other
miners on an annual basis. Prior to issuing said standards, the
board shall conduct public hearings at which the parties may be
affected by its actions may be heard. Such education and
training shall be provided in a manner determined by the director
to be sufficient to meet the standards established by the board.
(e) The board may, in conjunction with any state, local or
federal agency or any other person or institution, provide for
the payment of a stipend to prospective miners enrolled in one or
more of the programs of miner education, training and
certification provided for in this article or any other provision
of this code.
(f) The board may also, from time to time, conduct such
hearings and other oversight activities as may be required to
ensure full implementation of programs established by it.
(g) Nothing in this article empowers the board to revoke or
suspend any certificate issued by the director of the office of
miners' health, safety and training.
(h) The board may, upon its own motion or whenever requested
to do so by the director, deem two certificates issued by this
state to be of equal value or deem training provided or required
by federal agencies to be sufficient to meet training andeducation requirements set by it, the director, or by the
provisions of this code.
§22A-7-6. Duties of the director and office.
The director shall be empowered to promulgate, pursuant to
chapter twenty-nine-a of this code, such reasonable rules as are
necessary to establish a program to implement the provisions of
this article. Such program shall include, but not be limited to,
implementation of a program of instruction in each of the miner
occupational specialties and the conduct of examinations to test
each applicant's knowledge and understanding of the training and
instruction which he or she is required to have prior to the
receipt of a certificate.
The director is authorized and directed to utilize state
mine inspectors, mine safety instructors, the state mine foreman
examiner, private and public institutions of education and such
other persons as may be available in implementing the program of
instruction and examinations.
The director may, at any time, make such recommendations or
supply such information to the board as he or she may deem
appropriate.
The director is authorized and directed to utilize such
state and federal moneys and personnel as may be available to the
office for educational and training purposes in the
implementation of the provisions of this article.
ARTICLE 8. CERTIFICATION OF UNDERGROUND AND SURFACE COAL MINERS.
§22A-8-1. Certificate of competency and qualification or permit
of apprenticeship required of all surface and underground
miners.
Except as hereinafter provided, no person shall work or be
employed for the purpose of performing normal duties as a surface
or underground miner in any mine in this state unless the person
holds at the time he or she performs such duties a certificate of
competency and qualification or a permit of apprenticeship issued
under the provisions of this article.
§22A-8-2. Definitions.
For purposes of this article the term "surface miner" means
a person employed at a "surface mine", as that term is defined in
section three, article three, chapter twenty-two of this code,
and in section two, article four of said chapter.
For purposes of this article, the term "underground miner"
means an underground worker in a bituminous coal mine, except as
hereinafter provided.
For purposes of this article, the term "board of miner
training, education and certification" means that board
established in article seven of this chapter.
§22A-8-3. Permit of apprenticeship-underground miner.
A permit of apprenticeship-underground miner shall be issued
by the director to any person who has demonstrated by examination
a knowledge of the subjects and skills pertaining to employment
in underground mines, including, but not limited to, general
safety, first aid, miner and operator rights and
responsibilities, general principles of electricity, generalmining hazards, roof control, ventilation, mine health and
sanitation, mine mapping, state and federal mining laws and
regulations and such other subjects as may be required by the
board of miner training, education and certification:
Provided,
That each applicant for said permit shall complete a program of
education and training of at least eighty hours, which shall be
determined by the board of miner training, education and
certification and provided for and implemented by the director:
Provided, however, That if a sufficient number of qualified
applicants having successfully completed the state training
program provided by the office of miners' health, safety and
training are not available, the operator may request approval
from the director to conduct the operator's own preemployment
training program so long as such training adequately covers the
minimum criteria determined by the board and such trainees shall
be eligible for the same certification as provided for trainees
undergoing training provided by the state.
§22A-8-4. Permit of apprenticeship-surface miner.
A permit of apprenticeship-surface miner shall be issued by
the director to any person who has demonstrated by examination a
knowledge of the subjects and skills pertaining to employment in
the surface mining industry, including, but not limited to,
general safety, first aid, miner and operator rights and
responsibilities, general principles of electricity, health and
sanitation, heavy equipment safety, high walls and spoil banks,
haulage, welding safety, tipple safety, state and federal mininglaws and regulations and such other subjects as may be required
by the board of miner training, education and certification:
Provided, That each applicant for said permit shall complete a
program of education and training of at least forty hours, which
program shall be determined by the board of miner training,
education and certification and provided for and implemented by
the director:
Provided, however, That if a sufficient number of
qualified applicants having successfully completed the state
training provided by the office of miners' health, safety and
training are not available, the operator may request approval
from the director to conduct the operator's own preemployment
training program so long as such training adequately covers the
minimum criteria determined by the board and such trainees shall
be eligible for the same certification as provided for trainees
undergoing training provided by the state.
§22A-8-5. Supervision of apprentices.
Each holder of a permit of apprenticeship shall be known as
an apprentice. Any miner holding a certificate of competency and
qualification may have one person working with him or her, and
under his or her supervision and direction, as an apprentice, for
the purpose of learning and being instructed in the duties and
calling of mining. Any mine foreman or fire boss or assistant
mine foreman or fire boss may have three persons working with him
or her under his or her supervision and direction, as
apprentices, for the purpose of learning and being instructed in
the duties and calling of mining:
Provided, That a mine foreman,assistant mine foreman or fire boss supervising apprentices in an
area where no coal is being produced or which is outby the
working section may have as many as five apprentices under his or
her supervision and direction, as apprentices, for the purpose of
learning and being instructed in the duties and calling of mining
or where the operator is using a production section under program
for training of apprentice miners, approved by the board of miner
training, education and certification.
Every apprentice working at a surface mine shall be at all
times under the supervision and control of at least one person
who holds a certificate of competency and qualification.
In all cases, is the duty of every mine operator who employs
apprentices to ensure that such persons are effectively
supervised and to instruct such persons in safe mining practices.
Each apprentice shall wear a red hat which identifies the
apprentice as such while employed at or near a mine. No person
shall be employed as an apprentice for a period in excess of
eight months, except that in the event of illness or injury, time
extensions shall be permitted as established by the director of
the office of miners' health, safety and training.
§22A-8-6. Certificate of competency and qualification --
Underground or surface miner.
A certificate of competency and qualification as an
underground miner or as surface miner shall be issued by the
director to any person who has at least six months' total
experience as an apprentice and demonstrated his or hercompetence as a miner by successful completion of an examination
given by the director or his or her representative in a manner
and place to be determined by the board of miner training,
education and certification:
Provided, That all examinations
shall be conducted in the English language and shall be of a
practical nature, so as to determine the competency and
qualifications of the applicant to engage in the mining of coal
with reasonable safety to the applicant and fellow employees:
Provided, however, That notice of the time and place of such
examination shall be given to management at the mine, to the
local union thereat if there is a local union, and notice shall
also be posted at the place or places in the vicinity of the mine
where notices to employees are ordinarily posted. Examinations
shall also be held at such times and places, and after such
notice, as the board finds necessary to enable all applicants for
certificates to have an opportunity to qualify for certification.
§22A-8-7. Refusal to issue certificate; appeal.
If the director or the director's representative finds that
an applicant is not qualified and competent, the director shall
so notify the applicant not more than ten days after the date of
examination.
Any applicant aggrieved by an action of the director in
failing or refusing to issue a certificate of qualification and
competency may, within ten days' notice of the action complained
of, appeal to the director who shall promptly give the applicant
a hearing and either affirm the action or take such action asshould have been taken.
§22A-8-8. Limitations of article.
All persons possessing certificates of qualification
heretofore issued by the department of mines of this state, or by
the division of mines and minerals, or hereafter by the office of
miners' health, safety and training entitling them to act as mine
foreman-fire bosses, or assistant mine foreman-fire bosses, are
eligible to engage at any time as miners in the mines of this
state. Supervisory and technically trained employees of the
operator, whose work contributes only indirectly to mine
operations, are not required to possess a miners' certificate.
Notwithstanding the provisions of this article, every person
working as a surface miner in this state on or before the first
day of July, one thousand nine hundred seventy-four shall, upon
application to the director, be issued a certificate of
competency and qualification.
§22A-8-9. Violations; penalties.
Any person who knowingly works in or at a mine without a
certificate issued under the provision of this article, any
person who knowingly employs an uncertified miner to work in or
at a coal mine in this state, or, any operator who fails to
insure the supervision of miners holding a certificate of
apprenticeship as provided for in section five of this article,
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than fifty dollars nor more than five hundred
dollars.
ARTICLE 9. MINE INSPECTORS' EXAMINING BOARD.
§22A-9-1. Mine inspectors' examining board.
The mine inspectors' examining board is continued. It
consists of five members who, except for the public
representative on such board, shall be appointed by the governor,
by and with the advice and consent of the Senate. Members so
appointed may be removed only for the same causes and in like
manner as elective state officers. One of the members of the
board shall be a representative of the public, who shall be the
director of the school of mines at West Virginia University. Two
members of the board shall be persons who by reason of previous
training and experience may reasonably be said to represent the
viewpoint of coal mine operators and two members shall be persons
who by reason of previous training and experience may reasonably
be said to represent the viewpoint of coal mine workers.
The director of the office of miners' health, safety and
training is an ex officio member of the board and shall serve as
secretary of the board, without additional compensation; but the
director has no right to vote with respect to any matter before
the board.
The members of the board, except the public representative,
shall be appointed for overlapping terms of eight years, except
that the original appointments shall be for terms of two, four,
six and eight years, respectively. Any member whose term expires
may be reappointed by the governor. Members serving on the
effective date of this article may continue to serve until theirterms expire.
Each member of the board shall receive fifty dollars per
diem while actually engaged in the performance of the work of the
board; and shall receive mileage at the rate of ten cents for
each mile actually traveled going from the home of the member to
the place of the meeting of the board and returning therefrom,
which shall be paid out of the state treasury upon a requisition
upon the state auditor, properly certified by such members of the
board.
The public member is chair of the board. Members of the
board, before performing any duty, shall take and subscribe to
the oath required by section five, article IV of the constitution
of West Virginia.
The mine inspectors' examining board shall meet at such
times and places as shall be designated by the chair. It is the
duty of the chair to call a meeting of the board on the written
request of three members or the director of the office of miners'
health, safety and training. Notice of each meeting shall be
given in writing to each member by the secretary at least five
days in advance of the meeting. Three members is a quorum for
the transaction of business.
In addition to other duties expressly set forth elsewhere in
this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as mine inspectors and forms for
written examinations to test the qualifications of candidates forthat position;
(2) Adopt and promulgate reasonable rules relating to the
examination, qualification and certification of candidates for
appointment as mine inspectors, and hearing for removal of
inspectors, required to be held by section twelve, article one of
this chapter. All of such rules shall be printed and a copy
thereof furnished by the secretary of the board to any person
upon request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment as mine
inspector. By unanimous agreement of all members of the board,
one or more members of the board or an employee of the office of
miners' health, safety and training may be designated to give a
candidate the written portion of the examination;
(4) Prepare and certify to the director of the office of
miners' health, safety and training a register of qualified
eligible candidates for appointment as mine inspectors. The
register shall list all qualified eligible candidates in the
order of their grades, the candidate with the highest grade
appearing at the top of the list. After each meeting of the
board held to examine such candidates, and at least annually, the
board shall prepare and submit to the director of the office of
miners' health, safety and training a revised and corrected
register of qualified eligible candidates for appointment as mine
inspector, deleting from such revised register all persons: (a)
Who are no longer residents of West Virginia; (b) who haveallowed a calendar year to expire without, in writing, indicating
their continued availability for such appointment; (c) who have
been passed over for appointment for three years; (d) who have
become ineligible for appointment since the board originally
certified that such person was qualified and eligible for
appointment as mine inspector; or (e) who, in the judgment of at
least four members of the board, should be removed from the
register for good cause;
(5) Cause the secretary of the board to keep and preserve
the written examination papers, manuscripts, grading sheets, and
other papers of all applicants for appointment as mine inspector
for such period of time as may be established by the board.
Specimens of the examinations given, together with the correct
solution of each question, shall be preserved permanently by the
secretary of the board;
(6) Issue a letter or written notice of qualification to
each successful eligible candidate;
(7) Hear and determine proceedings for the removal of mine
inspectors in accordance with the provisions of this article;
(8) Hear and determine appeals of mine inspectors from
suspension orders made by the director pursuant to the provisions
of section four, article one of this chapter:
Provided, That an
aggrieved inspector, in order to appeal from any order of
suspension, shall file such appeal in writing with the mine
inspectors' examining board not later than ten days after receipt
of notice of suspension. On such appeal the board shall affirmthe act of the director unless it be satisfied from a clear
preponderance of the evidence that the director has acted
arbitrarily;
(9) Make an annual report to the governor and the director
concerning the administration of mine inspection personnel in the
state service, making such recommendations as the board considers
to be in the public interest.
ARTICLE 10. EMERGENCY MEDICAL PERSONNEL.
§22A-10-1. Emergency personnel in coal mines.
(a) Emergency medical services personnel shall be employed
on each shift at every mine that: (1) Employs more than ten
employees; and (2) more than eight persons are present on the
shift. Said emergency medical services personnel shall be
employed at their regular duties at a central location, or when
more than one such person is required pursuant to subsection (b)
or (c) at locations, convenient from quick response to
emergencies; and further shall have available to them at all
times such equipment as shall be prescribed by the director of
the office of miners' health, safety and training, in
consultation with the commissioner of the bureau of public
health.
(b) After the first day of July, one thousand nine hundred
eighty-five, emergency medical services personnel shall be
defined as a person who is certified as an emergency medical
technician-mining, emergency medical technician, emergency
medical technician-ambulance, emergency medical technician-intermediate, mobile intensive care paramedic, emergency medical
technician-paramedic as defined in section three, article four-c,
chapter sixteen of this code, or physician assistant as defined
in section sixteen, article three, chapter thirty of this code.
At least one emergency medical services personnel shall be
employed at a mine for every fifty employees or any part thereof
who are engaged at any time, in the extraction, production or
preparation of coal.
(c) A training course designed specifically for
certification of emergency medical technician-mining, shall be
developed at the earliest practicable time by the commissioner of
the bureau of public health in consultation with the board of
miner training, education and certification. The training course
for initial certification as an emergency medical
technician-mining shall not be less than sixty hours, which shall
include, but is not limited to, mast trouser application, basic
life support skills and emergency room observation or other
equivalent practical exposure to emergencies as prescribed by the
commissioner of the bureau of public health.
(d) The maintenance of a valid emergency medical technician-
mining certificate may be accomplished without taking a three
year recertification examination:
Provided, That such emergency
medical technician-mining personnel completes an eight hour
annual retraining and testing program prescribed by the
commissioner of the bureau of public health in consultation with
the board of miner training, education and certification.
(e) All emergency medical services personnel currently
certified as emergency medical service attendants or emergency
medical technicians shall receive certification as emergency
medical technicians without further training and examination for
the remainder of their three year certification period; such
emergency medical service attendant or emergency medical
technician may upon expiration of such certification become
certified as an emergency medical technician-mining upon
completion of the eight hour retraining program referred to in
subsection (d) above.
§22A-10-2. First-aid training of coal mine employees.
Each coal mine operator shall provide every new employee
within six months of the date of employment with the opportunity
for first-aid training as prescribed by the director of the
office of miners' health, safety and training unless such
employee has previously received such training. Each coal mine
employee shall be required to take refresher first-aid training
of not less than five hours within each twenty-four months of
employment. The employee shall be paid regular wages, or
overtime pay if applicable, for all periods of first-aid
training.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 1. GENERAL POLICY AND PURPOSE.
§22B-1-1. Declaration of policy and purpose.
It is hereby declared to be the policy of this state and the
purpose of this chapter to provide fair, efficient and equitabletreatment of appeals of environmental enforcement and permit
actions to the boards set forth herein.
It is also the intent of the Legislature to consolidate and
combine the legal, technical and support personnel of the three
boards, to provide for consistent appellate processes and to
maintain continuity of the boards' functions and membership. The
boards shall share physical facilities, hearing rooms, technical
and support staff and general overhead. In addition, it is the
policy of this state to retain and maintain adequate funding and
sufficient support personnel to ensure knowledgeable and informed
decisions.
It is the policy of this state that administrative hearings
and appeals be conducted in a quasi-judicial manner providing for
discovery and case management. The appellate functions of the
several environmental boards should be accomplished with similar
procedural rules designed to assure expeditious and equitable
hearings and decisions. Further, there shall be a central
depository for appellate information and the filing of appeals.
It is also the policy of this state that the rule-making
authority set forth in this chapter be implemented in an
efficient manner consistent with the public policy of this state.
Furthermore, it is the intent of the Legislature that all
actions taken pursuant to this chapter assure implementation of
the policies set forth in this chapter and chapter twenty-two of
this code.
§22B-1-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this chapter the following terms have the meanings
ascribed to them:
(1) "Board" or "boards" means the applicable board continued
pursuant to the provisions of this chapter, including the air
quality board, the environmental quality board and the surface
mine board;
(2) "Chief" means the chief of the office of water resources
or the chief of the office of waste management or the chief of
the office of air quality or the chief of the office of oil and
gas or the chief of the office of mining and reclamation or any
other person who has been delegated authority by the director,
all of the division of environmental protection, as the case may
be;
(3) "Director" means the director of the division of
environmental protection or the director's designated
representative;
(4) "Division" means the division of environmental
protection of the department of commerce, labor and environmental
resources;
(5) "Member" means an individual appointed to one of the
boards or the ex officio members of the air quality board; and
(6) "Person" or "persons" means any public or private
corporation, institution, association, firm or company organized
or existing under the laws of this or any other state or country;
the state of West Virginia; governmental agency; politicalsubdivision; county court; municipal corporation; industry;
sanitary district; public service district; drainage district;
soil conservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or any
other legal entity whatever.
§22B-1-3. General administration.
(a) The secretary of the department of commerce, labor and
environmental resources, in consultation with the chairs of the
boards, shall exercise the following powers, authorities and
duties:
(1) To provide for the management of facilities and
personnel of the boards;
(2) To employ, terminate and compensate support staff for
the boards and to fix the compensation of that staff, which shall
be paid out of the state treasury, upon the requisition of moneys
appropriated for such purposes, or from joint funds as the chairs
may expend;
(3) To the extent permitted by and consistent with federal
or state law, to consolidate, combine or contribute funds of the
boards to maintain the central physical facilities and technical
and support personnel;
(4) To the extent permitted by and consistent with federal
or state law, to consolidate or combine any functions of the
boards;
(5) To secure funding with the assistance of the chairs fromwhatever source permissible by law;
(6) To secure office space, purchase materials and supplies,
and enter into contracts necessary, incident or convenient to the
accomplishment of the purposes of this chapter;
(7) To expend funds in the name of any of the boards;
(8) To hire individuals, as may be necessary, to serve as
hearing examiners for the boards; and
(9) To provide for an individual to serve as the clerk to
the boards.
(b) The clerk to the boards has the following duties, to be
exercised in consultation with the chairs:
(1) To schedule meetings and hearings and enter all orders
properly acted upon;
(2) To receive and send all papers, proceedings, notices,
motions and filings;
(3) To the maximum extent practicable, and with the
cooperation of the staff and hearing examiners, to assist the
boards in the case management of appeals and proceedings;
(4) To maintain records of all proceedings of the boards
which shall be entered in a permanent record, properly indexed,
and the same shall be carefully preserved for each board. Copies
of orders entered by the boards, as well as copies of papers or
documents filed with it, shall be maintained in a central
location;
(5) To direct and fulfill information requests subject to
chapter twenty-nine-b of this code and subject to applicableconfidentiality rules set forth in the statutes and rules; and
(6) To perform such other duty or function as may be
directed by the chairs to carry out the purpose of this chapter.
(c) The boards shall establish procedural rules in
accordance with the provisions of chapter twenty-nine-a of this
code for the regulation of the conduct of all proceedings before
the boards. To the maximum extent practicable, the procedural
rules will be identical for each board. The procedural rules of
the boards shall be contained in a single set of rules for filing
with the secretary of state.
§22B-1-4. General provisions applicable to all boards and board
members.
(a) Each member of a board, other than an ex officio member,
shall be paid as compensation for work performed as a member,
from funds appropriated for such purposes, one hundred dollars
per day when actually engaged in the performance of work as a
board member. In addition to such compensation, each member of
the board shall be reimbursed for all reasonable and necessary
expenses actually incurred in the performance of the board
member's duties.
(b) At its first meeting in each fiscal year each board
shall elect from its membership a chair and vice chair to act
during such fiscal year. The chair shall preside over the
meetings and hearings of the board. The vice chair shall assume
the chair's duties in the absence of the chair. All of the
meetings shall be general meetings for the consideration of anyand all matters which may properly come before the board.
(c) For the environmental quality board and the air quality
board, a majority of each board is a quorum for the transaction
of business and an affirmative vote of a majority of the board
members present is required for any motion to carry or decision
of the board to be effective. For the surface mine board four
members is a quorum and no action of the board is valid unless it
has the concurrence of at least four members. For all boards, in
the event of a tie vote on the ultimate decision which is the
subject of an appeal before the board, the decision of the chief
or the director, as the case may be, shall be affirmed. Each
board shall meet at such times and places as it may determine and
shall meet on call of its chair. It is the duty of the chair to
call a meeting of the board within thirty days on the written
request of three members thereof.
(d) In all cases where the filing of documents, papers,
motions and notices with the board is required or a condition
precedent to board action, filing with the clerk constitutes
filing with the board.
§22B-1-5. General powers and duties of boards.
In addition to all other powers and duties of the air
quality board, environmental quality board and surface mine board
as prescribed in this chapter or elsewhere by law, the boards
created or continued pursuant to the provisions of this chapter
have and may exercise the following powers and authority and
shall perform the following duties:
(1) To consider appeals, subpoena witnesses, administer
oaths, make investigations and hold hearings relevant to matters
properly pending before a board;
(2) On any matter properly pending before it whenever the
parties achieve agreement that a person will cease and desist in
any act resulting in the discharge or emission of pollutants or
do any act to reduce or eliminate such discharge or emission, or
do any act to achieve compliance with this chapter or chapter
twenty-two or rules promulgated thereunder or do any act to
resolve an issue pending before a board, such agreement, upon
approval of the board, shall be embodied in an order and entered
as, and has the same effect as, an order entered after a hearing
as provided in section seven of this article;
(3) To enter and inspect any property, premise or place on
or at which a source or activity is located or is being
constructed, installed or established at any reasonable time for
the purpose of ascertaining the state of compliance with this
chapter or chapter twenty-two of this code and the rules
promulgated thereunder:
Provided, That nothing contained in this
section eliminates any obligation to follow any process that may
be required by law; and,
(4) To perform any and all acts within the appropriate
jurisdiction of each board to secure for the benefit of the state
participation in appropriate federally delegated programs.
§22B-1-6. General procedural provisions applicable to all
boards.
(a) Any appeal hearing brought pursuant to this chapter
shall be conducted by a quorum of the board, but the parties may
by stipulation agree to take evidence before any one or more
members of the board or a hearing examiner employed by the board.
For the purpose of conducting such appeal hearing, any member of
a board and the clerk has the power and authority to issue
subpoenas and subpoenas duces tecum in the name of the board, in
accordance with the provisions of section one, article five,
chapter twenty-nine-a of this code. All subpoenas and subpoenas
duces tecum shall be issued and served within the time and for
the fees and shall be enforced, as specified in section one,
article five of said chapter, and all of the provisions of said
section one dealing with subpoenas and subpoenas duces tecum
apply to subpoenas and subpoenas duces tecum issued for the
purpose of an appeal hearing hereunder.
(b) In case of disobedience or neglect of any subpoena or
subpoena duces tecum served on any person, or the refusal of any
witness to testify to any matter regarding which he or she may be
lawfully interrogated, the circuit court of the county in which
the disobedience, neglect or refusal occurs, on application of
the board or any member thereof, shall compel obedience by
attachment proceedings for contempt as in the case of
disobedience of the requirements of a subpoena or subpoena duces
tecum issued from the court of a refusal to testify therein.
(c) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimonyat any hearing held by a board shall be recorded by stenographic
notes and characters or by mechanical or electronic means. If
requested by any party to an appeal, the hearing and any
testimony offered shall be transcribed in which event the cost of
transcribing shall be paid by the party requesting the
transcript. The record shall include all of the testimony and
other evidence and the rulings on the admissibility of evidence,
but any party may at the time object to the admission of any
evidence and except to the rulings of the board thereon, and if
the board refuses to admit evidence the party offering the same
may make a proffer thereof, and the proffer shall be made a part
of the record of the hearing.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code, apply to and govern the hearing on
appeal authorized by the provisions of this section and the
administrative procedures in connection with and following such
hearing, with like effect as if the provisions of said article
were set forth in extenso in this section, except as specifically
provided herein.
§22B-1-7. Appeals to boards.
(a) The provisions of this section are applicable to all
appeals to the boards, with the modifications or exceptions set
forth in this section.
(b) Any person authorized by statute to seek review of an
order, permit or official action of the chief of air quality, the
chief of water resources, the chief of waste management, thechief of mining and reclamation, the chief of oil and gas, or the
director may appeal to the air quality board, the environmental
quality board or the surface mine board, as appropriate, in
accordance with this section. The person so appealing shall be
known as the appellant and the appropriate chief or the director
shall be known as the appellee.
(c) An appeal filed with a board by a person subject to an
order, permit or official action shall be perfected by filing a
notice of appeal with the board within thirty days after the date
upon which such order, permit or official action was received by
such person as demonstrated by the date of receipt of registered
or certified mail or of personal service. For parties entitled
to appeal other than the person subject to such order, permit or
official action, an appeal shall be perfected by filing a notice
of appeal with the board within thirty days after the date upon
which service was complete. For purposes of this subsection,
service is complete upon tendering a copy to the designated agent
or to the individual who, based upon reasonable inquiry, appears
to be in charge of the facility or activity involved, or to the
permittee; or by tendering a copy by registered or certified
mail, return receipt requested to the last known address of the
person on record with the agency. Service is not incomplete by
refusal to accept. Notice of appeal must be filed in a form
prescribed by the rule of the board for such purpose. Persons
entitled to appeal may also file a notice of appeal related to
the failure or refusal of the appropriate chief or the directorto act within a specified time on an application for a permit;
such notice of appeal shall be filed within a reasonable time.
(d) The filing of the notice of appeal does not stay or
suspend the effectiveness or execution of the order, permit or
official action appealed from, except that the filing of a notice
of appeal regarding a notice of intent to suspend, modify or
revoke and reissue a permit, issued pursuant to the provisions of
section five, article five, chapter twenty-two of this code, does
stay the notice of intent from the date of issuance pending a
final decision of the board. If it appears to the appropriate
chief, the director or the board that an unjust hardship to the
appellant will result from the execution or implementation of a
chief's or director's order, permit or official action pending
determination of the appeal, the appropriate chief, the director
or the board, as the case may be, may grant a stay or suspension
of such order, permit or official action and fix its terms. A
decision shall be made on any request for a stay within five days
of the date of receipt of the request for stay. The notice of
appeal shall set forth the terms and conditions of the order,
permit or official action complained of and the grounds upon
which the appeal is based. A copy of the notice of appeal shall
be filed by the board with the appropriate chief or director
within seven days after the notice of appeal is filed with the
board.
(e) Within fourteen days after receipt of a copy of the
notice of appeal, the appropriate chief or the director as thecase may be, shall prepare and certify to the board a complete
record of the proceedings out of which the appeal arises
including all documents and correspondence in the applicable
files relating to the matter in question. With the consent of
the board and upon such terms and conditions as the board may
prescribe, any person affected by the matter pending before the
board may by petition intervene as a party appellant or appellee.
In any appeal brought by a third party, the permittee or
regulated entity shall be granted intervenor status as a matter
of right where issuance of a permit or permit status is the
subject of the appeal. The board shall hear the appeal de novo,
and evidence may be offered on behalf of the appellant, appellee
and by any intervenors. The board may visit the site of the
activity or proposed activity which is the subject of the hearing
and take such additional evidence as it considers necessary:
Provided, That all parties and intervenors are given notice of
the visit and are given an opportunity to accompany the board.
The appeal hearing shall be held at such location as may be
approved by the board including Kanawha county, the county
wherein the source, activity or facility involved is located or
such other location as may be agreed to among the parties.
(f) Any such hearing shall be held within thirty days after
the date upon which the board received the timely notice of
appeal, unless there is a postponement or continuance. The board
may postpone or continue any hearing upon its own motion, or upon
application of the appellant, the appellee or any intervenors forgood cause shown. The chief or the director, as appropriate, may
be represented by counsel. If so represented they shall be
represented by the attorney general or with the prior written
approval of the attorney general may employ counsel who shall be
a special assistant attorney general. At any such hearing the
appellant and any intervenor may represent themselves or be
represented by an attorney-at-law admitted to practice before the
supreme court of appeals.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case:
(1) The environmental quality board or the air quality
board, as the case may be, shall make and enter a written order
affirming, modifying or vacating the order, permit or official
action of the chief or director, or shall make and enter such
order as the chief or director should have entered, or shall make
and enter an order approving or modifying the terms and
conditions of any permit issued; and,
(2) The surface mine board shall make and enter a written
order affirming the decision appealed from if the board finds
that the decision was lawful and reasonable, or if the board
finds that the decision was not supported by substantial evidence
in the record considered as a whole, it shall make and enter a
written order reversing or modifying the decision of the
director.
(h) In appeals of an order, permit or official action taken
pursuant to articles three, six, eleven, twelve, thirteen,fifteen, chapter twenty-two of this code, the environmental
quality board established in article three of this chapter, shall
take into consideration, in determining its course of action in
accordance with subsection (g) of this section, not only the
factors which the appropriate chief or the director was
authorized to consider in issuing an order, in granting or
denying a permit, in fixing the terms and conditions of any
permit, or in taking other official action, but also the economic
feasibility of treating or controlling, or both, the discharge of
solid waste, sewage, industrial wastes or other wastes involved.
(i) An order of a board shall be accompanied by findings of
fact and conclusions of law as specified in section three,
article five, chapter twenty-nine-a of this code, and a copy of
such order and accompanying findings and conclusions shall be
served upon the appellant, and any intervenors, and their
attorneys of record, if any, and upon the appellee in person or
by registered or certified mail.
(j) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,
the appellee and any intervenors of their right to judicial
review, in accordance with the provisions of this chapter. The
order of the board shall be final unless vacated or modified upon
judicial review thereof in accordance with the provisions of this
chapter.
§22B-1-8. General provisions governing discovery.
(a) Parties to a hearing may petition a board to obtaindiscovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending hearing, subject to
the procedural rules of the boards and the limitations contained
herein.
(b) The following limited discovery may be commenced and
obtained by any party to the hearing without leave of a board:
(1) Requests for disclosure of the identity of each person
expected to be called as a witness at the hearing and, at a
minimum, a statement setting forth with specificity the facts
alleged, the anticipated testimony and the identity of any
documents relied upon in support of the anticipated testimony of
each witness and whether that witness will be called as an
expert; and
(2) Requests to identify with reasonable particularity the
issues which are the subject of the hearing.
(c) Any party may object to a request or manner of discovery
authorized by this section provided the objection sets forth with
particularity the grounds for the objection. A party may move
the board to rule on the propriety of the discovery or objection
and request the board to enter an order as the board deems
appropriate.
(d) Any party may seek, by motion, a protective order from
the discovery sought by another party and, if required, the board
may protect a party from unwarranted discovery. Upon motion of
a party or upon a board's own motion, the board may enter such
protective order limiting discovery which order shall not beinconsistent with the standards for protective orders set forth
in the West Virginia rules of civil procedure.
(e) Upon motion of a party or upon a board's own motion, the
board may authorize or order any additional discovery as may be
appropriate or necessary to identify or refine the issues which
are the subject of the hearing. Upon agreement of the parties,
or upon order of a board, the board may authorize or order the
taking of the deposition of any witness with information or
knowledge relevant to the subject matter of the hearing which
deposition may be noticed by subpoena or subpoena duces tecum.
(f) Upon motion of a party or upon a board's own motion, a
board may hold a prehearing conference, as soon as practicable
after the commencement of an appeal, which conference shall be
for purposes of promoting a fair, efficient and expeditious
hearing process. Following the conference, the board may enter
an order or take such other action as may be appropriate with
respect to discovery issues.
(g) For purposes of this section, in all cases where the
board is authorized or empowered to issue orders, a member of the
board, with the concurrence of a majority of the board, may act
on behalf of the board, the board may act itself or through its
clerk or hearing examiner, as such person is authorized to do so
by the board.
(h) Every request for discovery or response or objection
thereto made by a party shall be signed in the same manner as is
provided for in Rule 26 of the West Virginia rules of civilprocedure.
§22B-1-9. General provisions for judicial review.
(a) Any person or a chief or the director, as the case may
be, adversely affected by an order made and entered by a board
after an appeal hearing, held in accordance with the provisions
of this chapter, is entitled to judicial review thereof. All of
the provisions of section four, article five, chapter twenty-
nine-a of this code apply to and govern the review with like
effect as if the provisions of said section four were set forth
in extenso in this section, with the modifications or exceptions
set forth in this chapter.
(b) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section one the petition
seeking such review shall be filed with said supreme court of
appeals within ninety days from the date of entry of the judgment
of the circuit court.
(c) Legal counsel and services for a chief or the director
in all appeal proceedings in the circuit court and in the supreme
court of appeals of this state shall be provided by the attorney
general or his or her assistants or by the prosecuting attorney
of the county in which the appeal is taken, all without
additional compensation, or with the prior written approval of
the attorney general, a chief or the director may employ legalcounsel.
§22B-1-10. Confidentiality.
With respect to any information obtained in the course of an
appeal, all members of boards and all personnel employed thereby
shall maintain confidentiality to the same extent required of the
chief or director.
§22B-1-11. Conflict of interest.
In addition to the specific conflict of interest provisions
set forth in this chapter, any member who has any financial
interest in the outcome of a decision of the board shall not vote
or act on any matter which shall directly affect the member's
personal interests.
§22B-1-12. Savings provisions.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted, or allowed
to become effective by a board in the performance of functions
which are affected by the enactment of this chapter, and which
are in effect on the date this chapter becomes effective, shall
continue in effect according to their terms until modified,
terminated, superseded, set aside, or revoked in accordance with
the law.
(b) The provisions of this chapter do not affect any
appeals, proceedings, including notices of proposed rulemaking,
or any application for any license, permit, certificate, or
financial assistance pending on the effective date of thischapter, before any of the boards. Orders shall be issued in
such proceedings, appeals shall be taken therefrom, and payments
shall be made pursuant to such orders, as if this chapter had not
been enacted; and orders issued in any such proceedings shall
continue in effect until modified, terminated, superseded, or
revoked by the board within which jurisdiction to do so is
vested, by a court of competent jurisdiction, or by operation of
law. Nothing in this subsection prohibits the discontinuance or
modification of any such proceeding under the same terms and
conditions and to the same extent that the proceeding could have
been discontinued or modified if this chapter had not been
enacted.
(c) Orders and actions of a board in the exercise of
functions amended by under this chapter are subject to judicial
review to the same extent and in the same manner as if such
orders and actions had been by a board exercising such functions
immediately preceding the enactment of this chapter.
ARTICLE 2. AIR QUALITY BOARD.
§22B-2-1. Air quality board; composition; appointment and terms
of members; vacancies.
(a) On and after the effective date of this article, the
"air pollution control commission", heretofore created, shall
continue in existence and hereafter shall be known as the "air
quality board".
(b) The board shall be composed of seven members, including
the commissioner of the bureau of public health and thecommissioner of agriculture, or their designees, both of whom are
members ex officio, and five other members, who shall be
appointed by the governor with the advice and consent of the
Senate. Each appointed member of the board who is serving in
such capacity on the effective date of this article shall
continue to serve on the board until his or her term ends or her
or she resigns or is otherwise unable to serve. As each such
member's terms ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. Two of the members shall be
representative of industries engaged in business in this state,
and three of the members shall be representative of the public at
large.
(c) The appointed members of the board shall be appointed
for overlapping terms of five years, except that the original
appointments shall be for terms of one, two, three, four and five
years, respectively. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-2-2. Authority to receive money.
In addition to all other powers and duties of the airquality board, as prescribed in this chapter or elsewhere by law,
the board has and may exercise the power and authority to receive
any money as a result of the resolution of any case on appeal
which shall be deposited in the state treasury to the credit of
the office of air pollution education and environment fund
provided for in section four, article five, chapter twenty-two of
this code.
§22B-2-3. Judicial review of air quality board orders.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section nine were set forth in extenso in
this section, with the following modifications or exceptions:
(1) As to cases involving an order denying an application
for a permit, or approving or modifying the terms and conditions
of a permit, the petition for review shall be filed in the
circuit court of Kanawha county; and,
(2) As to all other cases, the petition shall be filed, in
the circuit court of the county wherein the alleged statutory air
pollution complained of originated or in Kanawha county upon
agreement between the parties.
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-1. Environmental quality board; composition and
organization; appointment, qualifications, terms, vacancies.
(a) On and after the effective date of this article, the
"water resources board", heretofore created, shall continue in
existence and hereafter shall be known as the "environmentalquality board".
(b) The board shall be composed of five members who shall be
appointed by the governor with the advice and consent of the
Senate. Not more than three members of the board shall be of the
same political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends
or he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. Individuals appointed to the
board shall be persons who by reason of previous training and
experience are knowledgeable in the husbandry of the state's
water resources and with at least one member with experience in
industrial pollution control.
(c) No member of the board shall receive or, during the two
years next preceding the member of the board's appointment, shall
have received a significant portion of the member of the board's
income directly or indirectly from a national pollutant discharge
elimination system permit holder or an applicant for a permit
issued under any of the provisions of article eleven, chapter
twenty-two of this code. For the purposes of this subsection:
(1) The term "significant portion of the member of the board's
income" means ten percent of gross personal income for a calendar
year, except that it means fifty percent of gross personal income
for a calendar year if the recipient is over sixty years of ageand is receiving such portion pursuant to retirement, a pension
or similar arrangement; (2) the term "income" includes retirement
benefits, consultant fees and stock dividends; (3) income is not
received "directly or indirectly" from "permit holders" or
"applicants for a permit" where it is derived from mutual-fund
payments or from other diversified investments with respect to
which the recipient does not know the identity of the primary
sources of income; and (4) the terms "permit holders" and
"applicants for a permit" do not include any university or
college operated by this state or political subdivision of this
state.
(d) The members of the board shall be appointed for
overlapping terms of five years, except that the original
appointments shall be for terms of one, two, three, four and five
years, respectively. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-3-2. Authority of board; additional definitions.
(a) In addition to all other powers and duties of the
environmental quality board, as prescribed in this chapter or
elsewhere by law, the board has and may exercise the powers andauthorities:
(1) To receive any money as a result of the resolution of
any case on appeal which shall be deposited in the state treasury
to the credit of the water quality management fund created
pursuant to section ten, article eleven, chapter twenty-two of
this code;
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries, and with affected
groups and take such other action as may be appropriate in regard
to its rule-making authority; and
(3) To encourage and conduct such studies and research
relating to pollution control and abatement as a board may deem
advisable and necessary in regard to its rule-making authority.
(b) All the terms defined in section two, article eleven,
chapter twenty-two of this code, are applicable to this article
and have the meanings ascribed to them therein.
§22B-3-3. Judicial review.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section nine were set forth in extenso in
this section, with the following modifications or exceptions:
(1) As to cases involving an order denying an application
for a permit, or approving or modifying the terms and conditions
of a permit, the petition shall be filed in the circuit court of
Kanawha county;
(2) As to cases involving an order revoking or suspending a
permit, the petition shall be filed in the circuit court of
Kanawha county; and
(3) As to cases involving an order directing that any and
all discharges or deposits of solid waste, sewage, industrial
wastes or other wastes, or the effluent therefrom, determined to
be causing pollution be stopped or prevented or else that
remedial action be taken, the petition shall be filed in the
circuit court of the county in which the establishment is located
or in which the pollution occurs.
§22B-3-4. Environmental quality board rule-making authority.
(a) In order to carry out the purposes of this chapter and
chapter twenty-two of this code, the board shall promulgate
legislative rules setting standards of water quality applicable
to both the surface waters and groundwaters of this state.
Standards of quality with respect to surface waters shall be such
as to protect the public health and welfare, wildlife, fish and
aquatic life, and the present and prospective future uses of such
waters for domestic, agricultural, industrial, recreational,
scenic and other legitimate beneficial uses thereof.
(b) No rule of the board may specify the design of
equipment, type of construction or particular method which a
person shall use to reduce the discharge of a pollutant.
(c) The board shall promulgate such legislative rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code and the declaration of policy set forth insection two, article eleven, chapter twenty-two of this code.
ARTICLE 4. SURFACE MINE BOARD.
§22B-4-1. Appointment and organization of surface mine board.
(a) On and after the effective date of this article, the
"reclamation board of review", heretofore created, shall continue
in existence and hereafter shall be known as the "surface mine
board".
(b) The board shall be composed of seven members who shall
be appointed by the governor with the advice and consent of the
Senate. Not more than four members of the board shall be of the
same political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends
or he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. One of the appointees to such
board shall be a person who, by reason of previous vocation,
employment or affiliations, can be classed as one capable and
experienced in coal mining. One of the appointees to such board
shall be a person who, by reason of training and experience, can
be classed as one capable and experienced in the practice of
agriculture. One of the appointees to such board shall be a
person who by reason of training and experience, can be classed
as one capable and experienced in modern forestry practices. One
of the appointees to such board shall be a person who, by reasonof training and experience, can be classed as one capable and
experienced in engineering. One of the appointees to such board
shall be a person who, by reason of training and experience, can
be classed as one capable and experienced in water pollution
control or water conservation problems. One of the appointees to
such board shall be a person with significant experience in the
advocacy of environmental protection. One of the appointees to
such board shall be a person who represents the general public
interest.
(c) During his or her tenure on the board, no member shall
receive significant direct or indirect financial compensation
from or exercise any control over any person or entity which
holds or has held, within the two years next preceding the
member's appointment, a permit to conduct activity regulated by
the division, under the provisions of article three or four,
chapter twenty-two of this code, or any similar agency of any
other state or of the federal government:
Provided, That the
member classed as experienced in coal mining, the member classed
as experienced in engineering, and the member classed as
experienced in water pollution control or water conservation
problems may receive significant financial compensation from
regulated entities for professional services or regular
employment so long as the professional or employment relationship
is disclosed to the board. No member shall participate in any
matter before the board related to a regulated entity from which
the member receives or has received, within the preceding twoyears direct or indirect financial compensation. For purposes of
this section, "significant direct or indirect financial
compensation" means twenty percent of gross income for a calendar
year received by the member, any member of his or her immediate
family, or the member's primary employer.
(d) The members of the board shall be appointed for terms of
the same duration as their predecessor under the original
appointment of two members appointed to serve a term of two
years; two members appointed to serve a term of three years; two
members to serve a term of four years; and, one member to serve
a term of five years. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-4-2. Authority to receive money.
In addition to all other powers and duties of the surface
mine board, as prescribed in this chapter or elsewhere by law,
the board shall have and may exercise the power and authority to
receive any money as a result of the resolution of any case on
appeal which shall be deposited to the credit of the special
reclamation fund created pursuant to section eleven, article
three, chapter twenty-two of this code.
§22B-4-3. Judicial review.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section were set forth in extenso in this
section, except the petition shall be filed in the circuit court
of Kanawha county or the county in which the surface-mining
operation is located.
CHAPTER 22C. ENVIRONMENTAL BOARDS AND COMMISSIONS.
ARTICLE 1. WATER DEVELOPMENT AUTHORITY.
§22C-1-1. Short title.
This article shall be known and cited as the "Water
Development Authority Act".
§22C-1-2. Declaration of policy and responsibility; purpose and
intent of article; findings.
It is hereby declared to be the public policy of the state
of West Virginia and a responsibility of the state of West
Virginia, through the establishment, funding, operation and
maintenance of water development projects, to maintain, preserve,
protect, conserve and in all instances possible to improve the
purity and quality of water within the state in order to: (1)
Protect and improve public health; (2) assure the fullest use and
enjoyment of such water by the public; (3) provide suitable
environment for the propagation and protection of animal, bird,
fish, aquatic and plant life, all of which are essential to the
health and well-being of the public; and (4) provide water of the
necessary quality and in the amount needed for the development,maintenance and expansion of, and to attract service industries
and businesses, agriculture, mining, manufacturing and other
types of businesses and industries.
To assist in the preservation, protection, improvement and
management of the purity and quality of the waters of this state,
to prevent or abate pollution of water resources and to promote
the health and welfare of citizens of this state, it is the
purpose and intent of the Legislature in enacting this article to
provide for the necessary, dependable, effective and efficient
purification of water; the disposal of liquid and solid wastes
harmful to the public health and safety removed from such water;
to improve water and stream quality; and to assist and cooperate
with governmental agencies in achieving all of the purposes set
forth in this section.
The Legislature finds and hereby declares that the
responsibility of the state as outlined above cannot be
effectively met without the establishment, funding, operation and
maintenance of water development projects as provided for in this
article.
§22C-1-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the water development authority
provided for in section four of this article, the duties, powers,
responsibilities and functions of which are specified in this
article.
(2) "Beneficial use" means a use of water by a person or by
the general public that is consistent with the public interest,
health and welfare in utilizing the water resources of this
state, including, but not limited to, domestic, agricultural,
irrigation, industrial, manufacturing, mining, power, public,
sanitary, fish and wildlife, state, county, municipal,
navigational, recreational, aesthetic and scenic use.
(3) "Board" means the water development authority board
provided for in section four of this article, which shall manage
and control the water development authority.
(4) "Bond" or "water development revenue bond" means a
revenue bond or note issued by the water development authority to
effect the intents and purposes of this article.
(5) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment.
(6) "Cost" means, as applied to water development projects,
the cost of their acquisition and construction; the cost of
acquisition of all land, rights-of-way, property rights,
easements, franchise rights and interests required by the
authority for such acquisition and construction; the cost of
demolishing or removing any buildings or structures on land so
acquired, including the cost of acquiring any lands to which such
buildings or structures may be moved; the cost of acquiring or
constructing and equipping a principal office and suboffices of
the authority; the cost of diverting highways, interchange of
highways; access roads to private property, including the cost ofland or easements therefor; the cost of all machinery,
furnishings, and equipment; all financing charges, and interest
prior to and during construction and for no more than eighteen
months after completion of construction; the cost of all
engineering services and all expenses of research and development
with respect to public water or waste water facilities; the cost
of all legal services and expenses; the cost of all plans,
specifications, surveys and estimates of cost and revenues; all
working capital and other expenses necessary or incident to
determining the feasibility or practicability of acquiring or
constructing any such project; all administrative expenses and
such other expenses as may be necessary or incident to the
acquisition or construction of the project; the financing of such
acquisition or construction, including the amount authorized in
the resolution of the authority providing for the issuance of
water development revenue bonds to be paid into any special funds
from the proceeds of such bonds; and the financing of the placing
of any such project in operation. Any obligation or expenses
incurred by any governmental agency, with the approval of the
authority, for surveys, borings, preparation of plans and
specifications and other engineering services in connection with
the acquisition or construction of a project are a part of the
cost of such project and shall be reimbursed out of the proceeds
of loans or water development revenue bonds as authorized by the
provisions of this article.
(7) "Establishment" means an industrial establishment, mill,factory, tannery, paper or pulp mill, mine, colliery, breaker or
mineral processing operation, quarry, refinery, well, and each
and every industry or plant or works or activity in the operation
or process of which industrial wastes, or other wastes are
produced.
(8) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil
conservation districts; sanitary districts; public service
districts; drainage districts; regional governmental authorities
and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire,
construct or operate public water or waste water facilities; the
United States government or any agency, department, division or
unit thereof; and any agency, commission or authority established
pursuant to an interstate compact or agreement.
(9) "Industrial wastes" means any liquid, gaseous, solid or
other waste substance, or any combination thereof, resulting from
or incidental to any process of industry, manufacturing, trade or
business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as defined in this
section, are also industrial wastes.
(10) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues, sand,
lime, cinders, ashes, offal, night soil, silt, oil, tar,dyestuffs, acids, chemicals and all other materials or substances
not sewage or industrial wastes which may cause or might
reasonably be expected to cause or to contribute to the pollution
of any of the waters of this state.
(11) "Owner" includes all persons, copartnerships or
governmental agencies having any title or interest in any
property rights, easements and interests authorized to be
acquired by this article.
(12) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; any federal or state
governmental agency; political subdivision; county commission;
municipality; industry; sanitary district; public service
district; drainage district; soil conservation district;
watershed improvement district; partnership; trust; estate;
person or individual; group of persons or individuals acting
individually or as a group or any other legal entity whatever.
(13) "Pollution" means: (a) The discharge, release, escape,
deposit or disposition, directly or indirectly, of treated or
untreated sewage, industrial wastes, or other wastes, of whatever
kind or character, in or near any waters of the state, in such
condition, manner or quantity, as does, will, or is likely to:
(1) Contaminate or substantially contribute to the contamination
of any of such waters; or (2) alter or substantially contribute
to the alteration of the physical, chemical or biologicalproperties of any of such waters, if such contamination or
alteration, or the resulting contamination or alteration where a
person only contributes thereto, is to such an extent as to make
any of such waters: (i) Directly or indirectly harmful,
detrimental or injurious to the public health, safety and
welfare; or (ii) directly or indirectly detrimental to existing
animal, bird, fish, aquatic or plant life; or (iii) unsuitable
for present or future domestic, commercial, industrial,
agricultural, recreational, scenic or other legitimate uses; and
also means (b) the discharge, release, escape, deposit, or
disposition, directly or indirectly, of treated or untreated
sewage, industrial wastes or other wastes, of whatever kind or
character, in or near any waters of the state in such condition,
manner or quantity, as does, will, or is likely to reduce the
quality of the waters of the state below the standards
established therefor by the United States or any department,
agency, board or commission of this state authorized to establish
such standards.
(14) "Project" or "water development project" means any
public water or waste water facility, the acquisition or
construction of which is authorized, in whole or in part, by the
water development authority or the acquisition or construction of
which is financed, in whole or in part, from funds made available
by grant or loan by, or through, the authority as provided in
this article, including facilities, the acquisition or
construction of which is authorized, in whole or in part, by thewater development authority or the acquisition or construction of
which is financed, in whole or in part, from funds made available
by grant or loan by, or through, the authority as provided in
this article, including all buildings and facilities which the
authority deems necessary for the operation of the project,
together with all property, rights, easements and interest which
may be required for the operation of the project, but excluding
all buildings and facilities used to produce electricity other
than electricity for consumption by the authority in the
operation and maintenance of the project.
(15) "Public roads" mean all public highways, roads and
streets in this state, whether maintained by the state, county,
municipality or other political subdivision.
(16) "Public utility facilities" means public utility plants
or installations and includes tracks, pipes, mains, conduits,
cables, wires, towers, poles and other equipment and appliances
of any public utility.
(17) "Revenue" means any money or thing of value collected
by, or paid to, the water development authority as rent, use or
service fee or charge for use of, or in connection with, any
water development project, or as principal of or interest,
charges or other fees on loans, or any other collections on loans
made by the water development authority to governmental agencies
to finance, in whole or in part, the acquisition or construction
of any water development project or projects, or other money or
property which is received and may be expended for or pledged asrevenues pursuant to this article.
(18) "Sewage" means water-carried human or animal wastes
from residences, buildings, industrial establishments or other
places, together with such ground water infiltration and surface
waters as may be present.
(19) "Water resources", "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and includes, without limiting the generality of
the foregoing, natural or artificial lakes, rivers, streams,
creeks, branches, brooks, ponds (except farm ponds, industrial
settling basins and ponds and water treatment facilities),
impounding reservoirs, springs, wells and watercourses.
(20) "Waste water" means any water containing sewage,
industrial wastes, or other wastes or contaminants derived from
the prior use of such water, and includes, without limiting the
generality of the foregoing, surface water of the type storm
sewers are designed to collect and dispose of.
(21) "Waste water facilities" means facilities for the
purpose of treating, neutralizing, disposing of, stabilizing,
cooling, segregating or holding waste water, including, without
limiting the generality of the foregoing, facilities for the
treatment and disposal of sewage, industrial wastes, or other
wastes, waste water, and the residue thereof; facilities for the
temporary or permanent impoundment of waste water, both surfaceand underground; and sanitary sewers or other collection systems,
whether on the surface or underground, designed to transport
waste water together with the equipment and furnishings thereof
and their appurtenances and systems, whether on the surface or
underground, including force mains and pumping facilities
therefor.
(22) "Water facility" means all facilities, land and
equipment used for the collection of water, both surface and
underground, transportation of water, treatment of water and
distribution of water all for the purpose of providing potable,
sanitary water suitable for human consumption and use.
§22C-1-4. Water development authority; water development board;
organization of authority and board; appointment of board
members; their term of office, compensation and expenses;
director of authority.
The water development authority is continued. The authority
is a governmental instrumentality of the state and a body
corporate. The exercise by the authority of the powers conferred
by this article and the carrying out of its purposes and duties
are essential governmental functions and for a public purpose.
The authority is controlled, managed and operated by the
seven-member board known as the water development board. The
director of the division of environmental protection, and the
commissioner of the bureau of public health and the state officer
or employee who in the judgment of the governor is most
responsible for economic or community development are members exofficio of the board. The governor shall designate annually the
member who is the state officer or employee most responsible for
economic or community development. The other four members of the
board are appointed by the governor, by and with the advice and
consent of the Senate, for terms of two, three, four and six
years, respectively. The successor of each such appointed member
shall be appointed for a term of six years in the same manner the
original appointments were made, except that any person appointed
to fill a vacancy occurring prior to the expiration of the term
for which his or her predecessor was appointed shall be appointed
only for the remainder of such term. Each board member serves
until the appointment and qualification of his or her successor.
No more than two of the appointed board members shall at any one
time belong to the same political party. Appointed board members
may be reappointed to serve additional terms.
All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars in the manner provided in article two, chapter
six of this code. The governor may remove any board member for
cause as provided in article six of said chapter.
Annually the board shall elect one of its appointed members
as chair and another as vice-chair, and shall appoint a
secretary-treasurer, who need not be a member of the board. Four
members of the board is a quorum and the affirmative vote of fourmembers is necessary for any action taken by vote of the board.
No vacancy in the membership of the board impairs the rights of
a quorum by such vote to exercise all the rights and perform all
the duties of the board and the authority. The person appointed
as secretary-treasurer, including a board member if he or she is
so appointed, shall give bond in the sum of fifty thousand
dollars in the manner provided in article two, chapter six of
this code.
The director of the division of environmental protection,
the commissioner of the bureau of public health and the state
officer or employee most responsible for economic or community
development shall not receive any compensation for serving as
board members. Each of the four appointed members of the board
shall receive an annual salary of five thousand dollars, payable
in monthly installments. Each of the seven board members shall
be reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
such board. All such expenses incurred by the board are payable
solely from funds of the authority or from funds appropriated for
such purpose by the Legislature and no liability or obligation
shall be incurred by the authority beyond the extent to which
moneys are available from funds of the authority or from such
appropriations.
There shall also be a director of the authority appointed by
the board.
§22C-1-5. Authority may construct, finance, maintain, etc.,
water development projects; loans to governmental agencies
are subject to terms of loan agreements.
To accomplish the public policies and purposes and to meet
the responsibility of the state as set forth in this article, the
water development authority may initiate, acquire, construct,
maintain, repair and operate water development projects or cause
the same to be operated pursuant to a lease, sublease or
agreement with any person or governmental agency; may make loans
and grants to governmental agencies for the acquisition or
construction of water development projects by such governmental
agencies, which loans may include amounts to refinance debt
issued for existing water development projects of the
governmental agency when such refinancing is in conjunction with
a loan for a new water development project:
Provided, That the
amount of the refinancing may not exceed fifty percent of the
loan to the governmental agency; and may issue water development
revenue bonds of this state, payable solely from revenues, to pay
the cost of, or finance, in whole or in part, by loans to
governmental agencies, such projects. A water development
project shall not be undertaken unless it has been determined by
the authority to be consistent with any applicable comprehensive
plan of water management approved by the director of the division
of environmental protection or in the process of preparation by
such director and to be consistent with the standards set by the
state environmental quality board, for the waters of the state
affected thereby. Any resolution of the authority providing foracquiring or constructing such projects or for making a loan or
grant for such projects shall include a finding by the authority
that such determinations have been made. A loan agreement shall
be entered into between the authority and each governmental
agency to which a loan is made for the acquisition or
construction of a water development project, which loan agreement
shall include without limitation the following provisions:
(1) The cost of such project, the amount of the loan, the
terms of repayment of such loan and the security therefor, which
may include, in addition to the pledge of all revenues from such
project after a reasonable allowance for operation and
maintenance expenses, a deed of trust or other appropriate
security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan
shall be expended including the refinancing of existing water
development project debt as provided above, the procedures as to
the disbursement of loan proceeds and the duties and obligations
imposed upon the governmental agency in regard to the
construction or acquisition of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of such
governmental agency under the loan agreement, increase, service
charges from persons using said project, which service charges
shall be pledged for the repayment of such loan together with all
interest, fees and charges thereon and all other financial
obligations of such governmental agency under the loan agreement;and
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the
authority or other state, federal and local bodies in regard to
the construction, operation, maintenance and use of the project.
§22C-1-6. Powers, duties and responsibilities of authority
generally.
The water development authority , has and may exercise all
powers necessary or appropriate to carry out and effectuate its
corporate purpose. The authority has the power and capacity to:
(1) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and rules to implement and make effective
its powers and duties, such rules to be promulgated in accordance
with the provisions of chapter twenty-nine-a of this code.
(2) Adopt an official seal.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under sections nine, ten and
sixteen of this article. Any actions against the authority shall
be brought in the circuit court of Kanawha county in which the
principal office of the authority shall be located.
(5) Make loans and grants to governmental agencies for the
acquisition or construction of water development projects by anysuch governmental agency and, in accordance with the provisions
of chapter twenty-nine-a of this code, adopt rules and procedures
for making such loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person, water
development projects, and, in accordance with the provisions of
chapter twenty-nine-a of this code, adopt rules for the use of
such projects.
(7) Make available the use or services of any water
development project to one or more persons, one or more
governmental agencies, or any combination thereof.
(8) Issue water development revenue bonds and notes and
water development revenue refunding bonds of the state, payable
solely from revenues as provided in section nine of this article
unless the bonds are refunded by refunding bonds, for the purpose
of paying all or any part of the cost of, or financing by loans
to governmental agencies, one or more water development projects
or parts thereof.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such public orprivate lands, or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests it deems necessary for
carrying out the provisions of this article, but excluding the
acquisition by the exercise of the right of eminent domain of any
public water or waste water facilities operated under permits
issued pursuant to the provisions of article eleven, chapter
twenty-two of this code and owned by any person or governmental
agency, and compensation shall be paid for public or private
lands so taken.
(11) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the
performance of its duties and the execution of its powers. When
the cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of
more than two thousand dollars, the authority shall make a
written contract with the lowest responsible bidder after public
notice published as a Class II legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this
code, the publication area for such publication to be the county
wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the
work and the general character of the materials to be furnished,
the place where plans and specifications therefor may be examined
and the time and place of receiving bids, but a contract or lease
for the operation of a water development project constructed and
owned by the authority or an agreement for cooperation in theacquisition or construction of a water development project
pursuant to section sixteen of this article is not subject to the
foregoing requirements and the authority may enter into such
contract or lease or such agreement pursuant to negotiation and
upon such terms and conditions and for such period as it finds to
be reasonable and proper under the circumstances and in the best
interests of proper operation or of efficient acquisition or
construction of such project. The authority may reject any and
all bids. A bond with good and sufficient surety, approved by
the authority, is required of all contractors in an amount equal
to at least fifty percent of the contract price, conditioned upon
the faithful performance of the contract.
(12) Employ managers, superintendents and other employees,
who are covered by the state civil service system, and retain or
contract with consulting engineers, financial consultants,
accounting experts, architects, attorneys and such other
consultants and independent contractors as are necessary in its
judgment to carry out the provisions of this article, and fix the
compensation or fees thereof. All expenses thereof are payable
solely from the proceeds of water development revenue bonds or
notes issued by the authority, from revenues and from funds
appropriated for such purpose by the Legislature.
(13) Receive and accept from any federal agency, subject to
the approval of the governor, grants for or in aid of the
construction of any water development project or for research and
development with respect to public water or waste waterfacilities and receive and accept aid or contributions from any
source of money, property, labor or other things of value, to be
held, used and applied only for the purposes for which such
grants and contributions are made.
(14) Engage in research and development with respect to
public water or waste water facilities.
(15) Purchase property coverage and liability insurance for
any water development project and for the principal office and
suboffices of the authority, insurance protecting the authority
and its officers and employees against liability, if any, for
damage to property or injury to or death of persons arising from
its operations and any other insurance the authority may agree to
provide under any resolution authorizing the issuance of water
development revenue bonds or in any trust agreement securing the
same.
(16) Charge, alter and collect rentals and other charges for
the use or services of any water development project as provided
in this article, and charge and collect reasonable interest, fees
and charges in connection with the making and servicing of loans
to governmental agencies in the furtherance of the purposes of
this article.
(17) Establish or increase reserves from moneys received or
to be received by the authority to secure or to pay the principal
of and interest on the bonds and notes issued by the authority
pursuant to this article.
(18) Do all acts necessary and proper to carry out thepowers expressly granted to the authority in this article.
§22C-1-7. Power of authority to collect service charges and
exercise other powers of governmental agencies in event of
default; power to require governmental agencies to enforce
their rights.
In order to ensure that the public purposes to be served by
the authority may be properly carried out and in order to assure
the timely payment to the authority of all sums due and owing
under loan agreements with governmental agencies, as referred to
in section five of this article, notwithstanding any provision to
the contrary elsewhere contained in this code, in event of any
default by a governmental agency under such a loan agreement, the
authority has, and may, at its option, exercise the following
rights and remedies in addition to the rights and remedies
conferred by law or pursuant to said loan agreement:
(1) The authority may directly impose, in its own name and
for its own benefit service charges determined by it to be
necessary under the circumstances upon all users of the water
development project to be acquired or constructed pursuant to
such loan agreement, and proceed directly to enforce and collect
such service charges, together with all necessary costs of such
enforcement and collection.
(2) The authority may exercise, in its own name or in the
name of and as agent for the governmental agency, all of the
rights, authority, powers and remedies of the governmental agency
with respect to the water development project or which may beconferred upon the governmental agency by statute, rule,
regulation or judicial decision, including without limitation all
rights and remedies with respect to users of such water
development project.
(3) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by such
governmental agency of all of the terms and conditions of such
loan agreement including without limitation the adjustment and
increase of service charges as required to repay the loan or
otherwise satisfy the terms of such loan agreement, the
enforcement and collection of such service charges and the
enforcement by such governmental agency of all rights and
remedies conferred by statute, rule, regulation or judicial
decision.
§22C-1-8. Expenditure of funds for study and engineering of
proposed projects.
With the approval and the consent of the board, either the
director of the division of environmental protection or the
commissioner of the bureau of public health, or both of them,
shall expend, out of any funds available for the purpose, such
moneys as are necessary for the study of any proposed water
development project and may use its engineering and other forces,
including consulting engineers and sanitary engineers, for the
purpose of effecting such study. All such expenses incurred by
the director or commissioner prior to the issuance of water
development revenue bonds or notes under this article shall bepaid by the director or commissioner and charged to the
appropriate water development project and the director and
commissioner shall keep proper records and accounts, showing the
amounts so charged. Upon the sale of water development revenue
bonds or notes for a water development project, the funds so
expended by the director or commissioner, with the approval of
the authority, in connection with such project, shall be repaid
to the division of environmental protection or bureau of public
health from the proceeds of such bonds or notes.
§22C-1-9. Authority empowered to issue water development revenue
bonds, renewal notes and refunding bonds; requirements and
manner of such issuance.
The authority is hereby empowered to issue from time to time
water development revenue bonds and notes of the state in such
principal amounts as the authority deems necessary to pay the
cost of or finance, in whole or in part, by loans to governmental
agencies, one or more water development projects, but the
aggregate amount of all issues of bonds and notes outstanding at
one time for all projects authorized hereunder shall not exceed
that amount capable of being serviced by revenues received from
such projects.
The authority may, from time to time, issue renewal notes,
issue bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of water development
revenue refunding bonds by the state pursuant to the provisions
of section twenty of this article. Except as may otherwise beexpressly provided in this article or by the authority, every
issue of its bonds or notes are obligations of the authority
payable out of the revenues and reserves created for such
purposes by the authority, which are pledged for such payment,
without preference or priority of the first bonds issued, subject
only to any agreements with the holders of particular bonds or
notes pledging any particular revenues. Such pledge is valid and
binding from the time the pledge is made and the revenues so
pledged and thereafter received by the authority are immediately
subject to the lien of such pledge without any physical delivery
thereof or further act and the lien of any such pledge is valid
and binding as against all parties having claims of any kind in
tort, contract or otherwise against the authority irrespective of
whether such parties have notice thereof.
All such bonds and notes shall have and are hereby declared
to have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
authority, bear such date and mature at such time, in the case of
any such note or any renewals thereof not exceeding five years
from the date of issue of such original note, and in the case of
any such bond not exceeding fifty years from the date of issue,
as such resolution may provide. The bonds and notes shall bear
interest at such rate, be in such denominations, be in such form,
either coupon or registered, carry such registration privileges,
be payable in such medium of payment, at such place and be
subject to such terms of redemption as the authority mayauthorize. The bonds and notes of the authority may be sold by
the authority, at public or private sale, at or not less than the
price the authority determines. The bonds and notes shall be
executed by the chair and vice-chair of the authority, both of
whom may use facsimile signatures. The official seal of the
authority or a facsimile thereof shall be affixed thereto or
printed thereon and attested, manually or by facsimile signature,
by the secretary-treasurer of the authority, and any coupons
attached thereto shall bear the signature or facsimile signature
of the chair of the authority. In case any officer whose
signature, or a facsimile of whose signature, appears on any
bonds, notes or coupons ceases to be such officer before delivery
of such bonds or notes, such signature or facsimile is
nevertheless sufficient for all purposes the same as if he or she
had remained in office until such delivery and in case the seal
of the authority has been changed after a facsimile has been
imprinted on such bonds or notes such facsimile seal will
continue to be sufficient for all purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the authority to
secure the payment of the bonds or notes or of any issue thereof;
the use and disposition of revenues of the authority; a covenant
to fix, alter and collect rentals and other charges so thatpledged revenues will be sufficient to pay the costs of
operation, maintenance and repairs, pay principal of and interest
on bonds or notes secured by the pledge of such revenues and
provide such reserves as may be required by the applicable
resolution or trust agreement; the setting aside of reserve
funds, sinking funds or replacement and improvement funds and the
regulation and disposition thereof; the crediting of the proceeds
of the sale of bonds or notes to and among the funds referred to
or provided for in the resolution authorizing the issuance of the
bonds or notes; the use, lease, sale or other disposition of any
water development project or any other assets of the authority;
limitations on the purpose to which the proceeds of sale of bonds
or notes may be applied and pledging such proceeds to secure the
payment of the bonds or notes or of any issue thereof; notes
issued in anticipation of the issuance of bonds, the agreement of
the authority to do all things necessary for the authorization,
issuance and sale of such bonds in such amounts as may be
necessary for the timely retirement of such notes; limitations on
the issuance of additional bonds or notes; the terms upon which
additional bonds or notes may be issued and secured; the
refunding of outstanding bonds or notes; the procedure, if any,
by which the terms of any contract with bondholders or
noteholders may be amended or abrogated, the amount of bonds or
notes the holders of which must consent thereto and the manner in
which such consent may be given; limitations on the amount of
moneys to be expended by the authority for operating,administrative or other expenses of the authority; securing any
bonds or notes by a trust agreement; and any other matters, of
like or different character, which in any way affect the security
or protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes are less than the minimum reserve
requirements established in any resolution or resolutions
authorizing the issuance of such bonds or notes, the chair of the
authority shall certify, on or before the first day of December
of each year, the amount of such deficiency to the governor of
the state, for inclusion, if the governor shall so elect, of the
amount of such deficiency in the budget to be submitted to the
next session of the Legislature for appropriation to the
authority to be pledged for payment of such bonds or notes:
Provided, That the Legislature is not required to make any
appropriation so requested, and the amount of such deficiencies
is not a debt or liability of the state.
Neither the members of the authority nor any person
executing the bonds or notes are liable personally on the bonds
or notes or be subject to any personal liability or
accountability by reason of the issuance thereof.
§22C-1-10. Trustee for bondholders; contents of trust agreement.
In the discretion of the authority, any water development
revenue bonds or notes or water development revenue refunding
bonds issued by the authority under this article may be secured
by a trust agreement between the authority and a corporatetrustee, which trustee may be any trust company or banking
institution having the powers of a trust company within or
without this state.
Any such trust agreement may pledge or assign revenues of
the authority to be received, but shall not convey or mortgage
any water development project or any part thereof. Any such
trust agreement or any resolution providing for the issuance of
such bonds or notes may contain such provisions for protecting
and enforcing the rights and remedies of the bondholders or
noteholders as are reasonable and proper and not in violation of
law, including the provisions contained in section nine of this
article and covenants setting forth the duties of the authority
in relation to the acquisition of property, the construction,
improvement, maintenance, repair, operation and insurance of the
water development project the cost of which is paid, in whole or
in part, from the proceeds of such bonds or notes, the rentals or
other charges to be imposed for the use or services of any water
development project, provisions with regard to the payment of the
principal of and interest, charges and fees on loans made to
governmental agencies from the proceeds of such bonds or notes,
the custody, safeguarding, and application of all moneys and
provisions for the employment of consulting engineers in
connection with the construction or operation of such water
development project. Any banking institution or trust company
incorporated under the laws of this state which may act as
depository of the proceeds of bonds or notes or of revenues shallfurnish such indemnifying bonds or pledge such securities as are
required by the authority. Any such trust agreement may set
forth the rights and remedies of the bondholders and noteholders
and of the trustee and may restrict individual rights of action
by bondholders and noteholders as customarily provided in trust
agreements or trust indentures securing similar bonds. Such
trust agreement may contain such other provisions as the
authority deems reasonable and proper for the security of the
bondholders or noteholders. All expenses incurred in carrying
out the provisions of any such trust agreement may be treated as
a part of the cost of the operation of the water development
project. Any such trust agreement or resolution authorizing the
issuance of water development revenue bonds may provide the
method whereby the general administrative overhead expenses of
the authority will be allocated among the several projects
acquired or constructed by it as a factor of the operating
expenses of each such project.
§22C-1-11. Trust agreements for related responsibilities;
reimbursements.
Notwithstanding any other provision of this code to the
contrary, when the authority acts in the capacity of fiscal
agent, authorizing authority or some other capacity for any
agency, department, instrumentality or public corporation of the
state which is issuing or purchasing bonds or notes, the
authority may, in the exercise of its responsibilities, enter
into trust agreements with one or more trust companies or bankinginstitutions having trust powers, located within or without the
state, with respect to the receipt, investment, handling, payment
and delivery of funds of such agency, department, instrumentality
or public corporation. The authority is entitled to
reimbursement for the expenses of the authority incident to
performing such services, including the fees and expenses of
third parties providing services to the authority with respect
thereto, from the proceeds of bonds or notes or of the revenues
derived by such agency, department, instrumentality or public
corporation.
§22C-1-12. Legal remedies of bondholders and trustees.
Any holder of water development revenue bonds issued under
the authority of this article or any of the coupons appertaining
thereto and the trustee under any trust agreement, except to the
extent the rights given by this article may be restricted by the
applicable resolution or such trust agreement, may by civil
action, mandamus or other proceedings, protect and enforce any
rights granted under the laws of this state or granted under this
article, by the trust agreement or by the resolution authorizing
the issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
trust agreement or resolution, to be performed by the authority
or any officer thereof, including the fixing, charging and
collecting of sufficient rentals or other charges.
§22C-1-13. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Water development revenue bonds and notes and water
development revenue refunding bonds issued under authority of
this article and any coupons in connection therewith are not a
debt or a pledge of the faith and credit or taxing power of this
state or of any county, municipality or any other political
subdivision of this state, and the holders or owners thereof have
no right to have taxes levied by the Legislature or taxing
authority of any county, municipality or any other political
subdivision of this state for the payment of the principal
thereof or interest thereon, but such bonds and notes are payable
solely from the revenues and funds pledged for their payment as
authorized by this article unless the notes are issued in
anticipation of the issuance of bonds or the bonds are refunded
by refunding bonds issued under authority of this article, which
bonds or refunding bonds are payable solely from revenues and
funds pledged for their payment as authorized by this article.
All such bonds and notes shall contain on the face thereof a
statement to the effect that the bonds or notes, as to both
principal and interest, are not debts of the state or any county,
municipality or political subdivision thereof, but are payable
solely from revenues and funds pledged for their payment.
All expenses incurred in carrying out the provisions of this
article are payable solely from funds provided under authority of
this article. This article does not authorize the authority to
incur indebtedness or liability on behalf of or payable by thestate or any county, municipality or political subdivision
thereof.
§22C-1-14. Use of funds by authority; restrictions thereon.
All moneys, properties and assets acquired by the authority,
whether as proceeds from the sale of water development revenue
bonds or as revenues or otherwise, shall be held by it in trust
for the purposes of carrying out its powers and duties, and shall
be used and reused in accordance with the purposes and provisions
of this article. Such moneys shall at no time be commingled with
other public funds. Such moneys, except as otherwise provided in
any resolution authorizing the issuance of water development
revenue bonds or in any trust agreement securing the same, or
except when invested pursuant to section fifteen of this article,
shall be kept in appropriate depositories and secured as provided
and required by law. The resolution authorizing the issuance of
such bonds of any issue or the trust agreement securing such
bonds shall provide that any officer to whom, or any banking
institution or trust company to which, such moneys are paid shall
act as trustee of such moneys and hold and apply them for the
purposes hereof, subject to the conditions this article and such
resolution or trust agreement provide.
§22C-1-15. Investment of funds by authority.
The authority is hereby authorized and empowered to invest
any funds not needed for immediate disbursement in any of the
following securities:
(1) Direct obligations of or obligations guaranteed by theUnited States of America;
(2) Bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies: Banks for
cooperatives; federal intermediate credit banks; federal home
loan bank system; Export-Import Bank of the United States;
federal land banks; the Federal National Mortgage Association or
the Government National Mortgage Association;
(3) Public housing bonds issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a pledge of annual contributions under
an annual contributions contract or contracts with the United
States of America; or temporary notes issued by public agencies
or municipalities or preliminary loan notes issued by public
agencies or municipalities, in each case, fully secured as to the
payment of both principal and interest by a requisition or
payment agreement with the United States of America;
(4) Certificates of deposit secured by obligations of the
United States of America;
(5) Direct obligations of or obligations guaranteed by the
state of West Virginia;
(6) Direct and general obligations of any other state within
the territorial United States, to the payment of the principal of
and interest on which the full faith and credit of such state is
pledged:
Provided, That at the time of their purchase, such
obligations are rated in either of the two highest rating
categories by a nationally recognized bond-rating agency; and
(7) Any fixed interest bond, note or debenture of any
corporations organized and operating within the United States:
Provided, That such corporation shall have a minimum net worth of
fifteen million dollars and its securities or its parent
corporation's securities are listed on one or more of the
national stock exchanges:
Provided, however, That: (i) Such
corporation has earned a profit in eight of the preceding ten
fiscal years as reflected in its statements; and (ii) such
corporation has not defaulted in the payment of principal or
interest on any of its outstanding funded indebtedness during its
preceding ten fiscal years; and (iii) the bonds, notes or
debentures of such corporation to be purchased are rated "AA" or
the equivalent thereof or better than "AA" or the equivalent
thereof at least two or more nationally recognized rating
services such as Standard and Poor's, Dun & Bradstreet or
Moody's.
§22C-1-16. Rentals and other revenues from water development
projects owned by the authority; contracts and leases of the
authority; cooperation of other governmental agencies; bonds
of such agencies.
This section applies to any water development project or
projects which are owned, in whole or in part, by the authority.
The authority may charge, alter and collect rentals or other
charges for the use or services of any water development project,
and contract in the manner provided by this section with one or
more persons, one or more governmental agencies, or anycombination thereof, desiring the use or services thereof, and
fix the terms, conditions, rentals or other charges for such use
or services. Such rentals or other charges are not subject to
supervision or regulation by any other authority, department,
commission, board, bureau or agency of the state, and such
contract may provide for acquisition by such person or
governmental agency of all or any part of such water development
project for such consideration payable over the period of the
contract or otherwise as the authority in its sole discretion
determines to be appropriate, but subject to the provisions of
any resolution authorizing the issuance of water development
revenue bonds or notes or water development revenue refunding
bonds of the authority or any trust agreement securing the same.
Any governmental agency which has power to construct, operate and
maintain public water or waste water facilities may enter into a
contract or lease with the authority whereby the use or services
of any water development project of the authority will be made
available to such governmental agency and pay for such use or
services such rentals or other charges as may be agreed to by
such governmental agency and the authority.
Any governmental agency or agencies or combination thereof
may cooperate with the authority in the acquisition or
construction of a water development project and shall enter into
such agreements with the authority as are necessary, with a view
to effective cooperative action and safeguarding of the
respective interests of the parties thereto, which agreementsshall provide for such contributions by the parties thereto in
such proportion as may be agreed upon and such other terms as may
be mutually satisfactory to the parties, including, without
limitation the authorization of the construction of the project
by one of the parties acting as agent for all of the parties and
the ownership and control of the project by the authority to the
extent necessary or appropriate for purposes of the issuance of
water development revenue bonds by the authority. Any
governmental agency may provide such contribution as is required
under such agreements by the appropriation of money or, if
authorized by a favorable vote of the electors to issue bonds or
notes or levy taxes or assessments and issue notes or bonds in
anticipation of the collection thereof, by the issuance of bonds
or notes or by the levying of taxes or assessments and the
issuance of bonds or notes in anticipation of the collection
thereof, and by the payment of such appropriated money or the
proceeds of such bonds or notes to the authority pursuant to such
agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held for the purpose of issuing bonds to
provide funds to acquire, construct or equip, or provide real
estate and interests in real estate for a public water or waste
water facility, whether or not the governmental agency at the
time of such an election had the authority to pay the proceeds
from such bonds or notes issued in anticipation thereof to the
authority as provided in this section, may issue such bonds ornotes in anticipation of the issuance thereof and pay the
proceeds thereof to the authority in accordance with an agreement
between such governmental agency and the authority:
Provided,
That the legislative authority of the governmental agency finds
and determines that the water development project to be acquired
or constructed by the authority in cooperation with such
governmental agency will serve the same public purpose and meet
substantially the same public need as the facility otherwise
proposed to be acquired or constructed by the governmental agency
with the proceeds of such bonds or notes.
§22C-1-17. Maintenance, operation and repair of projects;
reports by authority to governor and Legislature.
Each water development project, when constructed and placed
in operation, shall be maintained and kept in good condition and
repair by the authority or if owned by a governmental agency, by
such governmental agency, or the authority or such governmental
agency shall cause the same to be maintained and kept in good
condition and repair. Each such project owned by the authority
shall be operated by such operating employees as the authority
employs or pursuant to a contract or lease with a governmental
agency or person. All public or private property damaged or
destroyed in carrying out the provisions of this article and in
the exercise of the powers granted hereunder with regard to any
project shall be restored or repaired and placed in its original
condition, as nearly as practicable, or adequate compensation
made therefor out of funds provided in accordance with theprovisions of this article.
As soon as possible after the close of each fiscal year, the
authority shall make an annual report of its activities for the
preceding fiscal year to the governor and the Legislature. Each
such report shall set forth a complete operating and financial
statement covering the authority's operations during the
preceding fiscal year. The authority shall cause an audit of its
books and accounts to be made at least once each fiscal year by
certified public accountants and the cost thereof may be treated
as a part of the cost of construction or of operations of its
projects.
§22C-1-18. Water development bonds lawful investments.
The provisions of sections nine and ten, article six,
chapter twelve of this code to the contrary notwithstanding, all
water development revenue bonds issued pursuant to this article
are lawful investments for the West Virginia state board of
investments and are also lawful investments for banking
institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guarantee
associations, trust companies, insurance companies, including
domestic for life and domestic not for life insurance companies.
§22C-1-19. Purchase and cancellation of notes or bonds.
The authority, subject to such agreements with noteholders
or bondholders as may then exist, has the power, out of any funds
available therefor, to purchase notes or bonds of the authority.
If the notes or bonds are then redeemable, the price of suchpurchase shall not exceed the redemption price then applicable
plus accrued interest to the next interest payment date thereon.
If the notes or bonds are not then redeemable, the price of such
purchase shall not exceed the redemption price applicable on the
first date after such purchase upon which the notes or bonds
become subject to redemption plus accrued interest to such date.
Upon such purchase such notes or bonds shall be canceled.
§22C-1-20. Refunding bonds.
Any bonds issued hereunder and at any time outstanding may
at any time and from time to time be refunded by the authority by
the issuance of its refunding bonds in such amount as it may deem
necessary to refund the principal of the bonds so to be refunded,
together with any unpaid interest thereon; to provide additional
funds for the purposes of the authority; and any premiums and
commissions necessary to be paid in connection therewith. Any
such refunding may be effected whether the bonds to be refunded
have matured or thereafter mature, either by sale of the
refunding bonds and the application of the proceeds thereof for
the redemption of the bonds to be refunded thereby, or by
exchange of the refunding bonds for the bonds to be refunded
thereby:
Provided, That the holders of any bonds so to be
refunded shall not be compelled without their consent to
surrender their bonds for payment or exchange prior to the date
on which they are payable or, if they are called for redemption,
prior to the date on which they are by their terms subject to
redemption. Any refunding bonds issued under the authority ofthis article are payable from the revenues out of which the bonds
to be refunded thereby were payable, or from other moneys or the
principal of and interest on or other investment yield from,
investments or proceeds of bonds or other applicable funds and
moneys, including investments of proceeds of any refunding bonds,
and are subject to the provisions contained in section nine of
this article and shall be secured in accordance with the
provisions of sections nine and ten of this article.
§22C-1-21. Exemption from taxation.
The exercise of the powers granted to the authority by this
article will be in all respects for the benefit of the people of
state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their residential,
agricultural, recreational, economic, commercial and industrial
opportunities and is a public purpose. As the operation and
maintenance of water development projects are essential
governmental functions, the authority is not required to pay any
taxes or assessments upon any water development project or upon
any property acquired or used by the authority or upon the income
therefrom. Such bonds and notes and all interest and income
thereon are exempt from all taxation by this state, or any
county, municipality, political subdivision or agency thereof,
except inheritance taxes.
§22C-1-22. Acquisition of property by authority -- Acquisition
by purchase; governmental agencies authorized to convey,
etc., property.
The authority may acquire by purchase, whenever it deems
such purchase expedient, any land, property, rights, rights-of-
way, franchises, easements and other interests in lands it deems
necessary or convenient for the construction and operation of any
water development project upon such terms and at such prices it
considers reasonable and can be agreed upon between the authority
and the owner thereof, and take title thereto in the name of the
state.
All governmental agencies, notwithstanding any contrary
provision of law, may lease, lend, grant or convey to the
authority, at its request, upon such terms as the proper
authorities of such governmental agencies deem reasonable and
fair and without the necessity for an advertisement, auction,
order of court or other action or formality, other than the
regular and formal action of the governmental agency concerned,
any real property or interests therein, including improvements
thereto or personal property which is necessary or convenient to
the effectuation of the authorized purposes of the authority,
including public roads and other real property or interests
therein, including improvements thereto or personal property
already devoted to public use.
§22C-1-23. Same -- Acquisition under subdivision (10), section
six of this article; property of public utilities and common
carriers; relocation, restoration, etc., of highways and
public utility facilities.
The authority may acquire, pursuant to subdivision ten,section six of this article, any land, rights, rights-of-way,
franchises, easements or other property necessary or proper for
the construction or the efficient operation of any water
development project.
This section does not authorize the authority to take or
disturb property or facilities belonging to any public utility or
to a common carrier, which property or facilities are required
for the proper and convenient operation of such public utility or
common carrier, unless provision is made for the restoration,
relocation or duplication of such property or facilities
elsewhere at the sole cost of the authority.
When the authority finds it necessary to change the location
of any portion of any public road, state highway, railroad or
public utility facility in connection with the construction of a
water development project, it shall cause the same to be
reconstructed at such location as the unit or division of
government having jurisdiction over such road, highway, railroad
or public utility facility deems most favorable. Such
construction shall be of substantially the same type and in as
good condition as the original road, highway, railroad or public
utility facility. The cost of such reconstruction, relocation or
removal and any damage incurred in changing the location of any
such road, highway, railroad or public utility facility shall be
paid by the authority as a part of the cost of such water
development project.
When the authority finds it necessary that any publichighway or portion thereof be vacated by reason of the
acquisition or construction of a water development project, the
authority shall request the commissioner of the division of
highways, in writing, to vacate such highway or portion thereof
if the highway or portion thereof to be vacated is part of the
state road system, or, if the highway or portion thereof to be
vacated is under the jurisdiction of a county or a municipality,
the authority shall request the governing body of such county or
municipality to vacate such public road or portion thereof. The
authority shall pay to the commissioner of the division of
highways or to the county or municipality, as the case may be, as
part of the cost of such water development project, any amounts
required to be deposited with any court in connection with
proceedings for the determination of compensation and damages and
all amounts of compensation and damages finally determined to be
payable as a result of such vacation.
The authority may make reasonable rules for the
installation, construction, maintenance, repair, renewal,
relocation and removal of railroad or public utility facilities
in, on, over or under any water development project. Whenever
the authority determines that it is necessary that any such
facilities installed or constructed in, on, over or under
property of the authority pursuant to such rules be relocated,
the railroad or public utility owning or operating such
facilities shall relocate or remove them in accordance with the
order of the authority. The cost and expenses of such relocationor removal, including the cost of installing such facilities in
a new location, the cost of any lands or any rights or interests
in lands and the cost of any other rights acquired to accomplish
such relocation or removal, may be paid by the authority as a
part of the cost of such water development project. In case of
any such relocation or removal of facilities, the railroad or
public utility owning or operating them, and its successors or
assigns, may maintain and operate such facilities, with the
necessary appurtenances in the new location in, on, over or under
the property of the authority for as long a period and upon the
same terms as it had the right to maintain and operate such
facilities in their former location.
§22C-1-24. Financial interest in contracts prohibited; penalty.
No officer, member or employee of the authority shall be
financially interested, directly or indirectly, in any contract
of any person with the authority, or in the sale of any property,
real or personal, to or from the authority. This section does
not apply to contracts or purchases of property, real or
personal, between the authority and any governmental agency. If
any officer, member or employee of the authority has such
financial interest in a contract or sale of property prohibited
hereby, he or she is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one thousand
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned.
§22C-1-25. Meetings and records of authority to be kept public.
All meetings of the authority shall be open to the public
and the records of the authority shall be open to public
inspection at all reasonable times, except as otherwise provided
in this section. All final actions of the authority shall be
journalized and such journal shall also be open to the inspection
of the public at all reasonable times. Any records or
information relating to secret processes or secret methods of
manufacture or production which may be obtained by the authority
or other persons acting under authority of this article are
confidential and shall not be disclosed.
§22C-1-26. Liberal construction of article.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
§22C-1-27. Authorized limit on borrowing.
The aggregate principal amount of bonds and notes issued by
the authority shall not exceed two hundred million dollars
outstanding at any one time:
Provided, That in computing the
total amount of bonds and notes which may at any one time be
outstanding, the principal amount of any outstanding bonds or
notes refunded or to be refunded either by application of the
proceeds of the sale of any refunding bonds or notes of the
authority or by exchange for any such refunding bonds or notes,
shall be excluded.
ARTICLE 2. WATER POLLUTION CONTROL REVOLVING FUND ACT.
§22C-2-1. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Authority" means the water development authority
provided for in section four, article one of this chapter.
(b) "Cost" as applied to any project financed under the
provisions of this article means the total of all costs incurred
by a local government that are reasonable and necessary for
carrying out all works and undertakings necessary or incident to
the accomplishment of any project including:
(1) Developmental, planning and feasibility studies,
surveys, plans and specifications;
(2) Architectural, engineering, financial, legal or other
special services;
(3) Acquisition of land and any buildings and improvements
thereon, including the discharge of any obligations of the
sellers of such land, buildings or improvements;
(4) Site preparation and development, including demolition
or removal of existing structures, construction and
reconstruction, labor, materials, machinery and equipment;
(5) The reasonable costs of financing incurred by the local
government in the course of the development of the project,
carrying charges incurred before placing the project in service,
interest on funds borrowed to finance the project to a date
subsequent to the estimated date the project is to be placed in
service, necessary expenses incurred in connection with placing
the project in service, and the funding of accounts and reserveswhich the authority may require; and
(6) Other items that the division of environmental
protection determines to be reasonable and necessary.
(c) "Fund" means the state water pollution control revolving
fund provided for in this article as it may be expanded or
modified from time to time pursuant to the clean water act, as
amended, the federal safe drinking water act, as amended or by
the executive order of the governor issued to comply with federal
laws relating thereto.
(d) "Instrumentality" means the division of environmental
protection or the agency designated by an order of the governor
as having the primary responsibility for administering the fund
pursuant to the federal clean water act, as amended, and the
federal Safe Drinking Water Act, as amended, or other federal
laws.
(e) "Local government" means any county, city, town,
municipal corporation, authority, district, public service
district, commission or political subdivision in West Virginia.
(f) "Project" means any public water or wastewater treatment
facility located or to be located in or outside this state by a
local government and includes:
(1) Sewage and wastewater collection, treatment and disposal
facilities;
(2) Public water transportation, treatment and distribution
facilities;
(3) Drainage facilities and projects;
(4) Administrative, maintenance, storage and laboratory
facilities related to the facilities delineated in subdivisions
(1), (2) and (3) of this subsection;
(5) Interests in land related to the facilities delineated
in subdivisions (1), (2), (3) and (4) of this subsection; and
(5) Other projects allowable under federal law.
§22C-2-2. Designation of division of environmental protection
as state instrumentality for purposes of capitalization
agreements with the United States environmental protection
agency.
The division of environmental protection shall act as the
instrumentality that is empowered to enter into capitalization
agreements with the United States environmental protection
agency, to accept capitalization grant awards made under the
federal Clean Water Act, as amended, the Safe Drinking Water Act,
as amended, and other federal laws and to otherwise manage the
fund provided for in this article in accordance with the
requirements of said federal laws.
§22C-2-3. West Virginia water pollution control revolving fund;
disbursement of fund moneys; administration of the fund.
(a) Under the direction of the division of environmental
protection, the water development authority shall establish,
administer and manage a permanent and perpetual fund, to be known
as the "West Virginia Water Pollution Control Revolving Fund".
The fund shall be comprised of moneys appropriated to said fund
by the Legislature, moneys allocated to the state by the federalgovernment expressly for the purposes of establishing and
maintaining a state water pollution control revolving fund, all
receipts from loans made from the fund to local governments, all
income from the investment of moneys held in the fund, and all
other sums designated for deposits to the fund from any source,
public or private. Moneys in the fund shall be used solely to
make loans to local governments to finance or refinance the costs
of a project:
Provided, That moneys in the fund shall be
utilized to defray the costs incurred by the authority and the
division of environmental protection in administering the
provisions of this article:
Provided further, That moneys in the
fund shall be used to make grants for projects to the extent
allowed or authorized by federal law.
(b) The director of the division of environmental
protection, in consultation with the authority, shall promulgate
rules in accordance with the provisions of chapter twenty-nine-a
of this code, to:
(1) Govern the disbursement of moneys from the fund; and
(2) Establish a state water pollution control revolving fund
program to direct the distribution of grants or loans from the
fund to particular local governments and establish the interest
rates and repayment terms of such loans.
(c) In order to carry out the administration and management
of the fund, the authority is authorized to employ officers,
employees, agents, advisers and consultants, including attorneys,
financial advisers, engineers, other technical advisers andpublic accountants and, notwithstanding any provisions of this
code to the contrary, to determine their duties and compensation
without the approval of any other agency or instrumentality.
(d) The authority shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code to govern
the pledge of loans to secure bonds of the authority.
(e) All moneys belonging to the fund shall be kept in
appropriate depositories and secured in conformance with this
code. Disbursements from the fund shall be authorized for
payment by the director of the authority or the director's
designee. Any depository or officer of such depository to which
moneys of the fund are paid shall act as trustee of such moneys
and shall hold and apply them solely for the purposes for which
said moneys are provided under this article. Moneys in the fund
shall not be commingled with other money of the authority. If
not needed for immediate use or disbursement, moneys in the fund
may be invested or reinvested by the authority in obligations or
securities which are considered lawful investments for public
funds under this code.
§22C-2-4. Annual audit.
The authority shall cause an audit of its books and accounts
to be made at least once each fiscal year by certified public
accountants, and the cost thereof may be defrayed as a part of
the cost of construction of a project or as an administrative
expense under the provisions of subsection (a), section three of
this article.
§22C-2-5. Collection of money due to the fund.
In order to ensure the timely payment of all sums due and
owing to the fund under a revolving fund loan agreement between
the state and a local government, and notwithstanding any
provisions of this code to the contrary, the authority has and
may, at its option, exercise the following rights and remedies in
the event of any default by a local government under such a loan
agreement:
(a) The authority may directly impose, in its own name and
for its own benefit, service charges upon all users of a project
funded by a loan distributed to a local government pursuant to
this article, and may proceed directly to enforce and collect
such service charges, together with all necessary costs of such
enforcement and collection.
(b) The authority may exercise, in its own name or in the
name of and as the agent for a particular local government, all
of the rights, powers and remedies of the local government with
respect to the project or which may be conferred upon the local
government by statute, rule, regulation or judicial decision,
including all rights and remedies with respect to users of the
project funded by the loan distributed to that local government
pursuant to this article.
(c) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
local government of all of the terms and conditions of the loan
agreement between the state and that local government including:
(1) The adjustment of service charges as required to repay
the loan or otherwise satisfy the terms of the loan agreement;
(2) The enforcement and collection of service charges; and
(3) The enforcement by the local government of all rights
and remedies conferred by statute, rule, regulation or judicial
decision.
The rights and remedies enumerated in this section are in
addition to rights and remedies conferred upon the authority by
law or pursuant to the loan agreement.
§22C-2-6. State construction grants program established; special
fund.
(a) The director of the division of environmental protection
shall promulgate rules in accordance with the provisions of
chapter twenty-nine-a of this code to establish a state
construction grants program that is designed to complement and
supplement the state water pollution control revolving fund
program established pursuant to subsection (b), section three of
this article.
(b) The special fund designated "The West Virginia
Construction Grants Fund" established in the state treasury is
continued. The special fund shall be comprised of moneys
appropriated to said fund by the Legislature, assessments on
existing wastewater treatment facilities, and all other sums
designated for deposit to the special fund from any source,
public or private:
Provided, That such assessments shall be made
and collected in accordance with fee schedules to be establishedby legislative rules promulgated by the director of the division
of environmental protection, in accordance with chapter
twenty-nine-a of this code. Moneys in the special fund shall be
used solely for the state construction grants program established
under subsection (a) of this section:
Provided, however, That
moneys in the special fund may be utilized to defray the costs
incurred by the division of environmental protection in
administering the provisions of this section.
§22C-2-7. Environmental review of funded projects.
(a) The division of environmental protection shall conduct
an environmental review on each project funded under this
article. The director of the division of environmental
protection shall promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code to implement the
environmental review of funded projects:
Provided, That said
rules shall be consistent with the rules and regulations
promulgated by the United States environmental protection agency
pursuant to the federal Clean Water Act, as amended.
(b) The director of the division of environmental protection
is authorized to direct a local government, or its agent, to
implement all measures that, in the judgment of the director, are
necessary in order to mitigate or prevent adverse impacts to the
public health, safety or welfare or to the environment that may
result from a project funded under this article. The director is
further authorized to require all projects to comply with all
other appropriate federal laws and regulations that are requiredof such projects under the federal clean water act, as amended.
§22C-2-8. Conflicting provisions.
The provisions of this article shall be liberally construed
to the end that its beneficial purposes may be effectuated.
Insofar as the provisions of this article are inconsistent with
the provisions of any other general, special or local law, the
provisions of this article are controlling.
ARTICLE 3. SOLID WASTE MANAGEMENT BOARD.
§22C-3-1. Short title.
This article shall be known and cited as the "Solid Waste
Management Board Act".
§22C-3-2. Legislative findings; declaration of policy and
responsibility; purpose and intent of article.
The Legislature finds that uncontrolled, inadequately
controlled and improper collection and disposal of solid waste:
(1) Is a public nuisance and a clear and present danger to
people; (2) provides harborages and breeding places for disease-
carrying, injurious insects, rodents and other pests harmful to
the public health, safety and welfare; (3) constitutes a danger
to livestock and domestic animals; (4) decreases the value of
private and public property, causes pollution, blight and
deterioration of the natural beauty and resources of the state
and has adverse economic and social effects on the state and its
citizens; and (5) results in the squandering of valuable
nonrenewable and nonreplenishable resources contained in solid
waste.
Further, the Legislature finds that governmental agencies in
the state and the private sector do not have the financial and
other resources needed to provide for the proper collection and
disposal of solid waste; that solid waste disposal sheds and
projects must be established on a relatively large scale to be
economically feasible and stable; and that proper solid waste
collection and disposal at the lowest minimum cost can only be
achieved through comprehensive solid waste management.
It is declared to be the public policy and a responsibility
of this state to assist efforts of governmental agencies and the
private sector to provide for the proper collection, disposal and
recycling of solid waste and to solve and prevent the problems
set forth in this article. It is the purpose and intent of the
Legislature in enacting this article to provide for the
necessary, dependable, effective and efficient collection,
disposal and recycling of solid waste and to assist and cooperate
with governmental agencies and the private sector in achieving
all the purposes set forth in this article, and to encourage the
recycling or extraction of recoverable resources from such solid
waste.
The Legislature finds that the public policy and
responsibility of the state as set forth in this section cannot
be effectively attained without the funding, establishment,
operation and maintenance of solid waste disposal projects as
provided in this article.
§22C-3-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Board" means the solid waste management board provided
for in section four of this article, the duties, powers,
responsibilities and functions of which are specified in this
article.
(2) "Bond" or "solid waste disposal revenue bond" means a
revenue bond or note issued by the solid waste management board,
previously known as the West Virginia resource recovery -- solid
waste disposal authority, to effect the intents and purposes of
this article.
(3) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment for a solid
waste disposal project.
(4) "Cost" means, as applied to solid waste disposal
projects, the cost of their acquisition and construction; the
cost of acquisition of all land, rights-of-way, property, rights,
easements, franchise rights and interests required by the board
for such acquisition and construction; the cost of demolishing or
removing any buildings or structures on land so acquired,
including the cost of acquiring any land to which such buildings
or structures may be moved; the cost of diverting highways,
interchange of highways and access roads to private property,
including the cost of land or easements therefor; the cost of all
machinery, furnishings and equipment; all financing charges and
interest prior to and during construction and for no more thaneighteen months after completion of construction; the cost of all
engineering services and all expenses of research and development
with respect to solid waste facilities; the cost of all legal
services and expenses; the cost of all plans, specifications,
surveys and estimates of cost and revenues; all working capital
and other expenses necessary or incident to determining the
feasibility or practicability of acquiring or constructing any
such project; all administrative expenses and such other expenses
as may be necessary or incident to the acquisition or
construction of the project; the financing of such acquisition or
construction, including the amount authorized in the resolution
of the board providing for the issuance of solid waste disposal
revenue bonds to be paid into any special funds from the proceeds
of such bonds; and the financing of the placing of any such
project in operation. Any obligation or expenses incurred by any
governmental agency, with the approval of the board, for surveys,
borings, preparation of plans and specifications and other
engineering services in connection with the acquisition or
construction of a project are a part of the cost of such project
and shall be reimbursed out of the proceeds of loans or solid
waste disposal revenue bonds as authorized by the provisions of
this article.
(5) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil
conservation districts; sanitary districts; public servicedistricts; drainage districts; regional governmental authorities
and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire,
construct or operate solid waste facilities; the United States
government or any agency, department, division or unit thereof;
and any agency, commission or authority established pursuant to
an interstate compact or agreement.
(6) "Industrial waste" means any solid waste substance
resulting from or incidental to any process of industry,
manufacturing, trade or business, or from or incidental to the
development, processing or recovery of any natural resource.
(7) "Owner" includes all persons, partnerships or
governmental agencies having any title or interest in any
property rights, easements and interests authorized to be
acquired by this article.
(8) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; governmental agency;
political subdivision; county commission; municipality; industry;
sanitary district; public service district; drainage district;
soil conservation district; solid waste disposal shed district;
partnership; trust; estate; individual; group of individuals
acting individually or as a group; or any other legal entity.
(9) "Pollution" means the discharge, release, escape or
deposit, directly or indirectly, of solid waste of whatever kindor character, on lands or in waters in the state in an
uncontrolled, unregulated or unapproved manner.
(10) "Revenue" means any money or thing of value collected
by, or paid to, the solid waste management board as rent, use
fee, service charge or other charge for use of, or in connection
with, any solid waste disposal project, or as principal of or
interest, charges or other fees on loans, or any other
collections on loans made by the solid waste management board to
governmental agencies to finance, in whole or in part, the
acquisition or construction of any solid waste development
project or projects, or other money or property which is received
and may be expended for or pledged as revenues pursuant to this
article.
(11) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article eleven, chapter twenty-two of this code, or
source, special nuclear or by-product material as defined by the
Atomic Energy Act of 1954, as amended, including any nuclear orby-product material considered by federal standards to be below
regulatory concern, or a hazardous waste either identified or
listed under article eighteen of said chapter, or refuse, slurry,
overburden or other waste or material resulting from coal-fired
electric power or steam generation, the exploration, development,
production, storage and recovery of coal, oil and gas, and other
mineral resources placed or disposed of at a facility which is
regulated under articles two, three, four, six, seven, eight,
nine or ten of said chapter or chapter twenty-two-a of this code,
so long as such placement or disposal is in conformance with a
permit issued pursuant to said chapters. "Solid waste" does not
include materials which are recycled by being used or reused in
an industrial process to make a product, as effective substitutes
for commercial products, or are returned to the original process
as a substitute for raw material feedstock.
(12) "Solid waste facility" means any system, facility,
land, contiguous land, improvements on land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities and other such facilities not
herein specified. Such facility is situated, for purposes of
this article, in the county where the majority of the spatial
area of such facility is located.
(13) "Solid waste disposal project" or "project" means any
solid waste facility, wastewater treatment plants, sewer
treatment plants, water and sewer systems and connectingpipelines the acquisition or construction of which is authorized
by the solid waste management board or any acquisition or
construction which is financed, in whole or in part, from funds
made available by grant or loan by, or through, the board as
provided in this article, including all buildings and facilities
which the board deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(14) "Solid waste disposal shed" or "shed" means a
geographical area which the solid waste management board
designates as provided in section nine of this article for solid
waste management.
§22C-3-4. Solid waste management board; organization of board;
appointment and qualification of board members; their term
of office, compensation and expenses; director of board.
The solid waste management board is a governmental
instrumentality of the state and a body corporate. The exercise
by the board of the powers conferred on it by this article and
the carrying out of its purposes and duties are essential
governmental functions and are for a public purpose.
The board is composed of seven members. The secretary of
the department of health and human resources and the director of
the division of environmental protection, or their designees, are
members ex officio of the board. The other five members of the
board are appointed by the governor, by and with the advice and
consent of the Senate, for terms of one, two, three, four andfive years, respectively. Two appointees shall be persons having
at least three years of professional experience in solid waste
management, civil engineering or regional planning and three
appointees shall be representatives of the general public. The
successor of each such appointed member shall be appointed for a
term of five years in the same manner the original appointments
were made and so that the representation on the board as set
forth in this section is preserved, except that any person
appointed to fill a vacancy occurring prior to the expiration of
the term for which his or her predecessor was appointed shall be
appointed only for the remainder of such term. Each board member
serves until the appointment and qualification of his or her
successor.
No more than three of the appointed board members may at any
one time be from the same congressional district or belong to the
same political party. No appointed board member may be an
officer or employee of the United States or this state.
Appointed board members may be reappointed to serve additional
terms. All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars. Appointed members may be removed from the
board only for the same causes as elective state officers may be
removed.
Annually the board shall elect one of its appointed membersas chair, another as vice chair and appoint a secretary-
treasurer, who need not be a member of the board. Four members
of the board are a quorum and the affirmative vote of four
members is necessary for any action taken by vote of the board.
No vacancy in the membership of the board impairs the rights of
a quorum by such vote to exercise all the rights and perform all
the duties of the board. The person appointed as secretary-
treasurer shall give bond in the sum of fifty thousand dollars.
If a board member is appointed as secretary-treasurer, he or she
shall give bond in the sum of twenty-five thousand dollars in
addition to the bond required in the preceding paragraph.
The ex officio members of the board shall not receive any
compensation for serving as a board member. Each of the five
appointed members of the board shall receive compensation of
fifty dollars for each day actually spent in attending meetings
of the board or in the discharge of his or her duties as a member
of the board, but not to exceed two thousand five hundred dollars
in any fiscal year. Each of the seven board members shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
the board. All such compensation and expenses incurred by board
members are payable solely from funds of the board or from funds
appropriated for such purpose by the Legislature and no liability
or obligation shall be incurred by the board beyond the extent to
which moneys are available from funds of the board or from such
appropriation.
The board shall meet at least four times annually and at any
time upon the call of its chair or upon the request in writing to
the chair of four board members.
The board shall appoint a director as its chief executive
officer. The director shall have successfully completed an
undergraduate education and, in addition, shall have two years of
professional experience in solid waste management, civil
engineering, public administration or regional planning.
§22C-3-5. Board to designate and establish disposal sheds;
construction, maintenance, etc., of disposal projects; loan
agreements; compliance with federal and state law.
To accomplish the public policy and purpose and to meet the
responsibility of the state as set forth in this article, the
solid waste management board shall designate and establish solid
waste disposal sheds and it may initiate, acquire, construct,
maintain, repair and operate solid waste disposal projects or
cause the same to be operated pursuant to a lease, sublease or
agreement with any person or governmental agency; may make loans
and grants to persons and to governmental agencies for the
acquisition or construction of solid waste disposal projects by
such persons and governmental agencies; and may issue solid waste
disposal revenue bonds of this state, payable solely from
revenues, to pay the cost of, or finance, in whole or in part, by
loans to governmental agencies, such projects. A solid waste
disposal project shall not be undertaken unless the board
determines that the project is consistent with federal law, withits solid waste disposal shed plan, with the standards set by the
state environmental quality board and the director of the
division of environmental protection for any waters of the state
which may be affected thereby, with the air quality standards set
by the said director and with health standards set by the bureau
of public health. Any resolution of the board providing for
acquiring or constructing such projects or for making a loan or
grant for such projects shall include a finding by the board that
such determinations have been made. A loan agreement shall be
entered into between the board and each governmental agency to
which a loan is made for the acquisition or construction of a
solid waste disposal project, which loan agreement shall include
without limitation the following provisions:
(1) The cost of such project, the amount of the loan, the
terms of repayment of such loan and the security therefor, which
may include, in addition to the pledge of all revenues from such
project after a reasonable allowance for operation and
maintenance expenses, a deed of trust or other appropriate
security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan
shall be expended, the procedures as to the disbursement of loan
proceeds and the duties and obligations imposed upon the
governmental agency in regard to the construction or acquisition
of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of suchgovernmental agency under the loan agreement, increase service
charges from persons using said project, which service charges
shall be pledged for the repayment of such loan together with all
interest, fees and charges thereon and all other financial
obligations of such governmental agency under the loan agreement;
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the board or
other state, federal and local bodies in regard to the
construction, operation, maintenance and use of the project; and
(5) Such other provisions, terms or conditions as the board
may reasonably require.
The board shall comply with all of the provisions of federal
law and of article fifteen, chapter twenty-two of this code and
any rules promulgated thereunder which pertain to solid waste
collection and disposal.
§22C-3-6. Powers, duties and responsibilities of board
generally.
The solid waste management board may exercise all powers
necessary or appropriate to carry out and effectuate its
corporate purpose. The board may:
(1) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business, and rules , promulgated pursuant to the
provisions of chapter twenty-nine-a of this code, to implement
and make effective its powers and duties.
(2) Adopt an official seal.
(3) Maintain a principal office which shall be in Kanawha
county, and, if necessary, regional suboffices at locations
properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under sections ten, eleven and
sixteen of this article. Any actions against the board shall be
brought in the circuit court of Kanawha county.
(5) Make loans and grants to persons and to governmental
agencies for the acquisition or construction of solid waste
disposal projects and adopt rules and procedures for making such
loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person, solid
waste disposal projects, and, in accordance with chapter twenty-
nine-a of this code, adopt rules for the use of such projects.
(7) Make available the use or services of any solid waste
disposal project to one or more persons, one or more governmental
agencies, or any combination thereof.
(8) Issue solid waste disposal revenue bonds and notes and
solid waste disposal revenue refunding bonds of the state,
payable solely from revenues as provided in section ten of this
article, unless the bonds are refunded by refunding bond, for the
purpose of paying all or any part of the cost of acquiring,
constructing, reconstructing, enlarging, improving, furnishing,equipping, or repairing solid waste disposal projects, or making
loans to persons or to governmental agencies for the acquisition,
design or construction of solid waste disposal projects or parts
thereof.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such public or
private lands, or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests it deems necessary for
carrying out the provisions of this article, but excluding the
acquisition by the exercise of the right of eminent domain of any
solid waste facility operated under permits issued pursuant to
the provisions of article fifteen, chapter twenty-two of this
code and owned by any person or governmental agency. This
article does not authorize the board to take or disturb property
or facilities belonging to any public utility or to a common
carrier, which property or facilities are required for the proper
and convenient operation of such public utility or common
carrier, unless provision is made for the restoration, relocation
or duplication of such property or facilities elsewhere at the
sole cost of the board.
(11) Make and enter into all contracts and agreements andexecute all instruments necessary or incidental to the
performance of its duties and the execution of its powers. When
the cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of
more than two thousand dollars, the board shall make a written
contract with the lowest responsible bidder after public notice
published as a Class II legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
the publication area for such publication to be the county
wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the
work and the general character of the materials to be furnished,
the place where plans and specifications therefor may be examined
and the time and place of receiving bids. A contract or lease
for the operation of a solid waste disposal project constructed
and owned by the board or an agreement for cooperation in the
acquisition or construction of a solid waste disposal project
pursuant to section sixteen of this article is not subject to the
foregoing requirements and the board may enter into such contract
or lease or such agreement pursuant to negotiation and upon such
terms and conditions and for such period as it finds to be
reasonable and proper under the circumstances and in the best
interests of proper operation or of efficient acquisition or
construction of such project. The board may reject any and all
bids. A bond with good and sufficient surety, approved by the
board, is required of all contractors in an amount equal to atleast fifty percent of the contract price, conditioned upon the
faithful performance of the contract.
(12) Employ managers, superintendents, engineers,
accountants, auditors and other employees, and retain or contract
with consulting engineers, financial consultants, accounting
experts, architects, attorneys and such other consultants and
independent contractors as are necessary in its judgment to carry
out the provisions of this article, and fix the compensation or
fees thereof. All expenses thereof are payable solely from the
proceeds of solid waste disposal revenue bonds or notes issued by
the board, from revenues and from funds appropriated for such
purpose by the Legislature.
(13) Receive and accept from any federal agency, subject to
the approval of the governor, grants for or in aid of the
construction of any solid waste disposal project or for research
and development with respect to solid waste disposal projects and
solid waste disposal sheds and receive and accept from any source
aid or contributions of money, property, labor or other things of
value, to be held, used and applied only for the purposes for
which such grants and contributions are made.
(14) Engage in research and development with respect to
solid waste disposal projects and solid waste disposal sheds.
(15) Purchase fire and extended coverage and liability
insurance for any solid waste disposal project and for the
principal office and suboffices of the board, insurance
protecting the board and its officers and employees againstliability, if any, for damage to property or injury to or death
of persons arising from its operations and any other insurance
the board may agree to provide under any resolution authorizing
the issuance of solid waste disposal revenue bonds.
(16) Charge, alter and collect rentals and other charges for
the use or services of any solid waste disposal project as
provided in this article, and charge and collect reasonable
interest, fees and other charges in connection with the making
and servicing of loans to governmental agencies in furtherance of
the purposes of this article.
(17) Establish or increase reserves from moneys received or
to be received by the board to secure or to pay the principal of
and interest on the bonds and notes issued by the board pursuant
to this article.
(18) Do all acts necessary and proper to carry out the
powers expressly granted to the board in this article.
§22C-3-7. Development of state solid waste management plan.
On or before the first day of January, one thousand nine
hundred ninety-three, the solid waste management board shall
prepare an overall state plan for the proper management of solid
waste:
Provided, That such plan shall be consistent with the
findings and purposes of article four of this chapter, article
fifteen of chapter twenty-two of this code and article eleven of
chapter twenty of this code:
Provided, however, That such plan
shall incorporate the county or regional plans developed pursuant
to sections eight and twenty-four, article four of this chapter, as amended:
Provided further, That such plan shall be updated
every two years following its initial preparation.
§22C-3-8. Power of board to collect service charges and exercise
other powers of governmental agencies in event of default;
power to require governmental agencies to enforce their
rights.
In order to ensure that the public purposes to be served by
the board may be properly carried out and in order to assure the
timely payment to the board of all sums due and owing under loan
agreements with governmental agencies, as referred to in section
five of this article, notwithstanding any provision to the
contrary elsewhere contained in this code, in event of any
default by a governmental agency under such a loan agreement, the
board has, and may, at its option, exercise the following rights
and remedies in addition to the rights and remedies conferred by
law or pursuant to said loan agreement:
(1) The board may directly impose, in its own name and for
its own benefit, service charges determined by it to be necessary
under the circumstances upon all users of the solid waste
disposal project to be acquired or constructed pursuant to such
loan agreement, and proceed directly to enforce and collect such
service charges, together with all necessary costs of such
enforcement and collection.
(2) The board may exercise, in its own name or in the name
of and as agent for the governmental agency, all of the rights,
board, powers and remedies of the governmental agency withrespect to the solid waste disposal project or which may be
conferred upon the governmental agency by statute, rule,
regulation or judicial decision, including, without limitation,
all rights and remedies with respect to users of such solid waste
disposal project.
(3) The board may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by such
governmental agency of all of the terms and conditions of such
loan agreement including, without limitation, the adjustment and
increase of service charges as required to repay the loan or
otherwise satisfy the terms of such loan agreement, the
enforcement and collection of such service charges and the
enforcement by such governmental agency of all rights and
remedies conferred by statute, rule, regulation or judicial
decision.
§22C-3-9. Development and designation of solid waste disposal
sheds by board.
The board shall maintain the division of the state into
geographical areas for solid waste management which shall be
known as solid waste disposal sheds. The board may, from time to
time, modify the boundaries of such sheds in a manner consistent
with the provisions of this section. Before it modifies the
sheds, the board shall consult with the affected municipalities
and county or regional solid waste authorities and obtain and
evaluate their opinions as to how many sheds there should be and
where their boundaries should be located. The board shall thencause feasibility and cost studies to be made in order for it to
designate the solid waste disposal sheds within each of which the
most dependable, effective, efficient and economical solid waste
disposal projects may be established. The sheds shall not
overlap and shall cover the entire state.
The board shall designate the sheds so that:
(1) The goal of providing solid waste collection and
disposal service to each household, business and industry in the
state can reasonably be achieved.
(2) The total cost of solid waste collection and disposal
and the cost of solid waste collection and disposal within each
shed and per person can be kept as low as possible.
(3) Solid waste collection and disposal service, facilities
and projects can be integrated in the most feasible, dependable,
effective, efficient and economical manner.
(4) No county is located in more than one shed:
Provided,
That the board may divide a county among two or more sheds upon
request of the appropriate county or regional solid waste
authority.
The board, in modifying the boundaries of solid waste
disposal sheds, is exempt from the provisions of chapter twenty-
nine-a.
§22C-3-10. Board empowered to issue solid waste disposal revenue
bonds, renewal notes and refunding bonds; requirements and
manner of such issuance.
The board is hereby empowered to issue, from time to time,solid waste disposal revenue bonds and notes of the state in such
principal amounts as the board deems necessary to pay the cost of
or finance, in whole or in part, by loans to governmental
agencies, one or more solid waste development projects, but the
aggregate amount of all issues of bonds and notes outstanding at
one time for all projects authorized hereunder shall not exceed
that amount capable of being serviced by revenues received from
such projects, and shall not exceed in the aggregate the sum of
one hundred million dollars:
Provided, That up to twenty-five
million dollars may be issued for projects located or to be
located in areas which lack adequate sewer or water service and
the area is in need of such services to comply with federal
requirements.
The board may, from time to time, issue renewal notes, issue
bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of solid waste
disposal revenue refunding bonds of the state. Except as may
otherwise be expressly provided in this article or by the board,
every issue of its bonds or notes are obligations of the board
payable out of the revenues and reserves created for such
purposes by the board, which are pledged for such payment,
without preference or priority of the first bonds issued, subject
only to any agreements with the holders of particular bonds or
notes pledging any particular revenues. Such pledge is valid and
binding from the time the pledge is made and the revenue so
pledged and thereafter received by the board is immediatelysubject to the lien of such pledge without any physical delivery
thereof or further act and the lien of any such pledge is valid
and binding as against all parties having claims of any kind in
tort, contract or otherwise against the board irrespective of
whether such parties have notice thereof. All such bonds and
notes shall have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
board, bear such dates and mature at such times, in the case of
any such note or any renewals thereof not exceeding five years
from the date of issue of such original note, and in the case of
any such bond not exceeding fifty years from the date of issue,
as such resolution may provide. The bonds and notes shall bear
interest at such rate, be in such denominations, be in such form,
either coupon or registered, carry such registration privileges,
be payable in such medium of payment, at such place and be
subject to such terms of redemption as the board may authorize.
The board may sell such bonds and notes at public or private
sale, at the price the board determines. The bonds and notes
shall be executed by the chair and vice chair of the board, both
of whom may use facsimile signatures. The official seal of the
board or a facsimile thereof shall be affixed thereto or printed
thereon and attested, manually or by facsimile signature, by the
secretary-treasurer of the board, and any coupons attached
thereto shall bear the signature or facsimile signature of the
chair of the board. In case any officer whose signature, or a
facsimile of whose signature, appears on any bonds, notes orcoupons ceases to be such officer before delivery of such bonds
or notes, such signature or facsimile is nevertheless sufficient
for all purposes the same as if he or she had remained in office
until such delivery and, in case the seal of the board has been
changed after a facsimile has been imprinted on such bonds or
notes, such facsimile seal will continue to be sufficient for all
purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the board to secure
the payment of the bonds or notes or of any issue thereof; the
use and disposition of revenues of the board; a covenant to fix,
alter and collect rentals, fees, service charges and other
charges so that pledged revenues will be sufficient to pay the
costs of operation, maintenance and repairs, pay principal of and
interest on bonds or notes secured by the pledge of such revenues
and provide such reserves as may be required by the applicable
resolution; the setting aside of reserve funds, sinking funds or
replacement and improvement funds and the regulation and
disposition thereof; the crediting of the proceeds of the sale of
bonds or notes to and among the funds referred to or provided for
in the resolution authorizing the issuance of the bonds or notes;
the use, lease, sale or other disposition of any solid waste
disposal project or any other assets of the board; limitations onthe purpose to which the proceeds of sale of bonds or notes may
be applied and pledging such proceeds to secure the payment of
the bonds or notes or of any issue thereof; agreement of the
board to do all things necessary for the authorization, issuance
and sale of bonds in such amounts as may be necessary for the
timely retirement of notes issued in anticipation of the issuance
of bonds; limitations on the issuance of additional bonds or
notes; the terms upon which additional bonds or notes may be
issued and secured; the refunding of outstanding bonds or notes;
the procedure, if any, by which the terms of any contract with
bondholders or noteholders may be amended or abrogated, the
holders of which must consent thereto, and the manner in which
such consent may be given; limitations on the amount of moneys to
be expended by the board for operating, administrative or other
expenses of the board; and any other matters, of like or
different character, which in any way affect the security or
protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes is less than the minimum reserve
requirements established in any resolution or resolutions
authorizing the issuance of such bonds or notes, the chair of the
board shall certify, on or before the first day of December of
each year, the amount of such deficiency to the governor of the
state, for inclusion, if the governor shall so elect, of the
amount of such deficiency in the budget to be submitted to the
next session of the Legislature for appropriation to the board tobe pledged for payment of such bonds or notes:
Provided, That
the Legislature is not required to make any appropriation so
requested, and the amount of such deficiencies is not a debt or
liability of the state.
Neither the members of the board nor any person executing
the bonds or notes are liable personally on the bonds or notes or
are subject to any personal liability or accountability by reason
of the issuance thereof.
§22C-3-11. Establishment of reserve funds, replacement and
improvement funds and sinking funds; fiscal agent; purposes
for use of bond proceeds; application of surplus.
(a) Before issuing any revenue bonds in accordance with the
provisions of this article, the board shall consult with and be
advised by the water development authority as to the feasibility
and necessity of the proposed issuance of revenue bonds. Such
consultation shall include, but not be limited to, the following
subjects:
(1) The relationship of the proposed issuance of revenue
bonds to the statutory debt limitation provided for in section
ten of this article;
(2) The degree to which the proceeds will be used for
capital improvements in the form of real or personal property;
(3) The extent to which the proposed use of proceeds
coincides with the purposes of this article;
(4) A weighing of the public benefit to be derived from the
issuance as opposed to any private gain; and
(5) The sufficiency of projected revenues available to the
board to pay the interest on indebtedness as it falls due, to
constitute a sinking fund for the payment thereof at maturity, or
to discharge the principal within a prescribed period of time.
(b) Prior to issuing revenue bonds under the provisions of
this article, the board shall enter into agreements satisfactory
to the water development authority with regard to the selection
of all consultants, advisors and other experts to be employed in
connection with the issuance of such bonds and the fees and
expenses to be charged by such persons, and to establish any
necessary reserve funds and replacement and improvement funds,
all such funds to be administered by the water development
authority, and, so long as any such bonds remain outstanding, to
establish and maintain a sinking fund or funds to retire such
bonds and pay the interest thereon as the same may become due.
The amounts in any such sinking fund, as and when so set apart by
the board, shall be remitted to the water development authority
at least thirty days previous to the time interest or principal
payments become due, to be retained and paid out by the water
development authority, as agent for the board, in a manner
consistent with the provisions of this article and with the
resolution pursuant to which the bonds have been issued. The
water development authority shall act as fiscal agent for the
administration of any sinking fund and reserve fund established
under each resolution authorizing the issuance of revenue bonds
pursuant to the provisions of this article, and shall invest allfunds not required for immediate disbursement in the same manner
as funds are invested pursuant to the provisions of section
fifteen, article one of this chapter.
(c) Notwithstanding any other provision of this article to
the contrary, no revenue bonds shall be issued, nor the proceeds
thereof expended or distributed, pursuant to the provisions of
this article, without the prior approval of the water development
authority. Upon such approval, the proceeds of revenue bonds
shall be used solely for the following purposes:
(1) To pay the cost of acquiring, constructing,
reconstructing, enlarging, improving, furnishing, equipping or
repairing solid waste disposal projects;
(2) To make loans to persons or to governmental agencies for
the acquisition, design and construction of solid waste disposal
projects, taking such collateral security for any such loans as
may be approved by the water development authority; and
(3) To pay the costs and expenses incidental to or necessary
for the issuance of such bonds.
(d) If the proceeds of revenue bonds issued for any solid
waste disposal project exceed the cost thereof, the surplus shall
be paid into the fund herein provided for the payment of
principal and interest upon such bonds. Such fund may be used by
the fiscal agent for the purchase or redemption of any of the
outstanding bonds payable from such fund at the market price, but
not at a price exceeding the price at which any of such bonds is
in the same year redeemable, as fixed by the board in its saidresolution, and all bonds redeemed or purchased shall forthwith
be canceled, and shall not again be issued.
§22C-3-12. Legal remedies of bondholders.
Any holder of solid waste disposal revenue bonds issued
under the authority of this article or any of the coupons
appertaining thereto, except to the extent the rights given by
this article may be restricted by the applicable resolution, may
by civil action, mandamus or other proceeding, protect and
enforce any rights granted under the laws of this state or
granted under this article, by the resolution authorizing the
issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
resolution, to be performed by the board or any officer or
employee thereof, including the fixing, charging and collecting
of sufficient rentals, fees, service charges or other charges.
§22C-3-13. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Solid waste disposal revenue bonds and notes and solid waste
disposal revenue refunding bonds issued under authority of this
article and any coupons in connection therewith are not a debt or
a pledge of the faith and credit or taxing power of this state or
of any county, municipality or any other political subdivision of
this state, and the holders or owners thereof have no right to
have taxes levied by the Legislature or taxing authority of any
county, municipality or any other political subdivision of thisstate for the payment of the principal thereof or interest
thereon, but such bonds and notes are payable solely from the
revenues and funds pledged for their payment as authorized by
this article unless the notes are issued in anticipation of the
issuance of bonds or the bonds are refunded by refunding bonds
issued under authority of this article, which bonds or refunding
bonds are payable solely from revenues and funds pledged for
their payment as authorized by this article. All such bonds and
notes shall contain on the face thereof a statement to the effect
that the bonds or notes, as to both principal and interest, are
not debts of the state or any county, municipality or political
subdivision thereof, but are payable solely from revenues and
funds pledged for their payment.
All expenses incurred in carrying out the provisions of this
article are payable solely from funds provided under authority of
this article. This article does not authorize the board to incur
indebtedness or liability on behalf of or payable by the state or
any county, municipality or political subdivision thereof.
§22C-3-14. Use of funds, properties, etc., by board;
restrictions thereon.
All moneys, properties and assets acquired by the board,
whether as proceeds from the sale of solid waste disposal revenue
bonds or as revenues or otherwise, shall be held by it in trust
for the purposes of carrying out its powers and duties, and shall
be used and reused in accordance with the purposes and provisions
of this article. Such moneys shall at no time be commingled withother public funds. Such moneys, except as otherwise provided in
any resolution authorizing the issuance of solid waste disposal
revenue bonds or except when invested, shall be kept in
appropriate depositories and secured as provided and required by
law. The resolution authorizing the issuance of such bonds of
any issue shall provide that any officer to whom such moneys are
paid shall act as trustee of such moneys and hold and apply them
for the purposes hereof, subject to the conditions this article
and such resolution provide.
§22C-3-15. Audit of funds disbursed by the board and recipients
thereof.
Beginning in the fiscal year ending the thirtieth day of
June, one thousand nine hundred ninety-two, and every second
fiscal year thereafter, the Legislature shall cause to be
performed a post audit and a performance audit for the
intervening two-year period of the recipients of any grant or
loan provided by the solid waste management board. The audit
shall cover the disbursement of such loans or grants provided
pursuant to section thirty, article four of this chapter, the use
of such loans or grants by the recipient as well as all other
appropriate subject matter.
§22C-3-16. Rentals, fees, service charges and other revenues
from solid waste disposal projects; contracts and leases of
board; cooperation of other governmental agencies; bonds of
such agencies.
This section applies to any solid waste disposal project orprojects which are owned, in whole or in part, by the board.
The board may charge, alter and collect rentals, fees,
service charges or other charges for the use or services of any
solid waste disposal project, and contract in the manner provided
by this section with one or more persons, one or more
governmental agencies, or any combination thereof, desiring the
use or services thereof, and fix the terms, conditions, rentals,
fees, service charges or other charges for such use or services.
Such rentals, fees, service charges or other charges are not
subject to supervision or regulation by any other authority,
department, commission, board, bureau or agency of the state, and
such contract may provide for acquisition by such person or
governmental agency of all or any part of such solid waste
disposal project for such consideration payable over the period
of the contract or otherwise as the board in its sole discretion
determines to be appropriate, but subject to the provisions of
any resolution authorizing the issuance of solid waste disposal
revenue bonds or notes or solid waste disposal revenue refunding
bonds of the board. Any governmental agency which has power to
construct, operate and maintain solid waste disposal facilities
may enter into a contract or lease with the board whereby the use
or services of any solid waste disposal project of the board will
be made available to such governmental agency and pay for such
use or services such rentals, fees, service charges or other
charges as may be agreed to by such governmental agency and the
board.
Any governmental agency or agencies or combination thereof
may cooperate with the board in the acquisition or construction
of a solid waste disposal project and shall enter into such
agreements with the board as are necessary, with a view to
effective cooperative action and safeguarding of the respective
interests of the parties thereto, which agreements shall provide
for such contributions by the parties thereto in such proportion
as may be agreed upon and such other terms as may be mutually
satisfactory to the parties, including, without limitation, the
authorization of the construction of the project by one of the
parties acting as agent for all of the parties and the ownership
and control of the project by the board to the extent necessary
or appropriate for purposes of the issuance of solid waste
disposal revenue bonds by the board. Any governmental agency may
provide such contribution as is required under such agreements by
the appropriation of money or, if authorized by a favorable vote
of the electors to issue bonds or notes or levy taxes or
assessments and issue notes or bonds in anticipation of the
collection thereof, by the issuance of bonds or notes or by the
levying of taxes or assessments and the issuance of bonds or
notes in anticipation of the collection thereof, and by the
payment of such appropriated money or the proceeds of such bonds
or notes to the board pursuant to such agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held for the purpose of issuing bonds to
provide funds to acquire, construct or equip, or provide realestate and interests in real estate for a solid waste disposal
project, whether or not the governmental agency at the time of
such election had the board to pay the proceeds from such bonds
or notes issued in anticipation thereof to the board as provided
in this section, may issue such bonds or notes in anticipation of
the issuance thereof and pay the proceeds thereof to the board in
accordance with an agreement between such governmental agency and
the board:
Provided, That the legislative board of the
governmental agency finds and determines that the solid waste
disposal project to be acquired or constructed by the board in
cooperation with such governmental agency will serve the same
public purpose and meet substantially the same public need as the
project otherwise proposed to be acquired or constructed by the
governmental agency with the proceeds of such bonds or notes.
§22C-3-17. Maintenance, operation and repair of projects; repair
of damaged property; reports by board to governor and
Legislature.
Each solid waste development project, when constructed and
placed in operation, shall be maintained and kept in good
condition and repair by the board or if owned by a governmental
agency, by such governmental agency, or the board or such
governmental agency shall cause the same to be maintained and
kept in good condition and repair. Each such project owned by
the board shall be operated by such operating employees as the
board employs or pursuant to a contract or lease with a
governmental agency or person. All public or private propertydamaged or destroyed in carrying out the provision of this
article and in the exercise of the powers granted hereunder with
regard to any project shall be restored or repaired and placed in
its original condition, as nearly as practicable, or adequate
compensation made therefor out of funds provided in accordance
with the provisions of this article.
As soon as possible after the close of each fiscal year, the
board shall make an annual report of its activities for the
preceding fiscal year to the governor and the Legislature. Each
such report shall set forth a complete operating and financial
statement covering the board's operations during the preceding
fiscal year. The board shall cause an audit of its books and
accounts to be made at least once each fiscal year by certified
public accountants and the cost thereof may be treated as a part
of the cost of construction or of operation of its projects. A
report of the audit shall be submitted to the governor and the
Legislature.
§22C-3-18. Solid waste disposal revenue bonds lawful
investments.
The provisions of sections nine and ten, article six,
chapter twelve of this code notwithstanding, all solid waste
disposal revenue bonds issued pursuant to this article are lawful
investments for the West Virginia state board of investments and
are also lawful investments for financial institutions as defined
in section two, article one, chapter thirty-one-a of this code,
and for insurance companies.
§22C-3-19. Exemption from taxation.
The board is not required to pay any taxes or assessments
upon any solid waste disposal project or upon any property
acquired or used by the board or upon the income therefrom.
Bonds and notes issued by the board and all interest and income
thereon are exempt from all taxation by this state, or any
county, municipality, political subdivision or agency thereof,
except inheritance taxes.
§22C-3-20. Governmental agencies authorized to convey property.
All governmental agencies, notwithstanding any provision of
law to the contrary, may lease, lend, grant or convey to the
board, at its request, upon such terms as the proper authorities
of such governmental agencies deem reasonable and fair and
without the necessity for an advertisement, auction, order of
court or other action or formality, other than the regular and
formal action of the governmental agency concerned, any real
property or interests therein, including improvements thereto or
personal property which is necessary or convenient to the
effectuation of the authorized purposes of the board, including
public roads and other real property or interests therein,
including improvements thereto or personal property already
devoted to public use.
§22C-3-21. Financial interest in contracts, projects, etc.,
prohibited; gratuities prohibited; penalty.
No officer, member or employee of the board may be
financially interested, directly or indirectly, in any contractof any person with the board, or in the sale of any property,
real or personal, to or by the board. This section does not
apply to contracts or purchases of property, real or personal,
between the board and any governmental agency.
No officer, member or employee of the board may have or
acquire any financial interest, either direct or indirect, in any
project or activity of the board or in any services or material
to be used or furnished in connection with any project or
activity of the board. If an officer, member or employee of the
board has any such interest at the time he or she becomes an
officer, member or employee of the board, he or she shall
disclose and divest himself or herself of it. Failure to do so
is cause for dismissal from the position he or she holds with the
authority.
This section does not apply in instances where a member of
the board who is a contract solid waste hauler either seeks or
has a financial interest, direct or indirect, in any project or
activity of the board or in any services or material to be used
or furnished in connection with any project or activity of the
board:
Provided, That that member shall fully disclose orally
and in writing to the board the nature and extent of any
interest, prior to any vote by the board which involves his or
her interest, withdraw from any deliberation or discussion by the
board of matters involving his or her interest, and refrain from
voting on any matter which directly or indirectly affects him or
her.
No officer, member or employee of the board may accept a
gratuity from any person doing business with the board or from
any person for the purpose of gaining favor with the board.
Any officer, member or employee of the board who has any
financial interest prohibited by this section or who fails to
comply with its provisions is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one thousand
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned.
§22C-3-22. Conduct of proceedings of board.
The board shall comply with all of the requirements in
article nine-a, chapter six of this code.
§22C-3-23. Regulation of solid waste collectors and haulers to
continue under public service commission; bringing about
their compliance with solid waste disposal shed plan and
solid waste disposal projects; giving testimony at
commission hearings.
Solid waste collectors and haulers who are "common carriers
by motor vehicle", as defined in section two, article one,
chapter twenty-four-a of this code, shall continue to be
regulated by the public service commission in accordance with the
provisions of said chapter and rules promulgated thereunder.
Nothing in this article gives the board any power or right to
regulate such solid waste collectors and haulers in any manner,
but the public service commission, when it issues a new
certificate of convenience and necessity, or when it alters oradjusts the provisions of any existing certificate of convenience
and necessity, or when it approves the assignment or transfer of
any certificate of convenience and necessity, shall consult with
the board regarding what action it could take which would most
likely further the implementation of the board's solid waste
disposal shed plan and solid waste disposal projects and shall
take any reasonable action that will lead to or bring about
compliance of such waste collectors and haulers with such plan
and projects.
At any hearing conducted by the public service commission
pertaining to solid waste collectors and haulers on any of these
matters, any member of the board, the director or an employee of
the board designated by the director may appear before the
commission and present evidence.
§22C-3-24. Cooperation of board and enforcement agencies in
collecting and disposing of abandoned household appliances
and motor vehicles, etc.
The provisions of this article are complementary to those
contained in article twenty-four, chapter seventeen of this code,
and do not alter or diminish the authority of any enforcement
agency, as defined in section two thereof, to collect and dispose
of abandoned household appliances and motor vehicles, inoperative
household appliances and junked motor vehicles and parts thereof,
including tires. The board and such enforcement agencies shall
cooperate fully with each other in collecting and disposing of
such solid waste.
§22C-3-25. Liberal construction of article.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-1. Legislative findings and purposes.
The Legislature finds that the improper and uncontrolled
collection, transportation, processing and disposal of domestic
and commercial garbage, refuse and other solid wastes in the
state of West Virginia results in: (1) A public nuisance and a
clear and present danger to the citizens of West Virginia; (2)
the degradation of the state's environmental quality including
both surface and groundwaters which provide essential and
irreplaceable sources of domestic and industrial water supplies;
(3) provides harborages and breeding places for disease-carrying,
injurious insects, rodents and other pests injurious to the
public health, safety and welfare; (4) decreases public and
private property values and results in the blight and
deterioration of the natural beauty of the state; (5) has adverse
social and economic effects on the state and its citizens; and
(6) results in the waste and squandering of valuable nonrenewable
resources contained in such solid wastes which can be recovered
through proper recycling and resource-recovery techniques with
great social and economic benefits for the state.
The Legislature further finds that the proper collection,
transportation, processing, recycling and disposal of solid wasteis for the general welfare of the citizens of the state and that
the lack of proper and effective solid waste collection services
and disposal facilities demands that the state of West Virginia
and its political subdivisions act promptly to secure such
services and facilities in both the public and private sectors.
The Legislature further finds that other states of these
United States of America have imposed stringent standards for the
proper collection and disposal of solid waste and that the
relative lack of such standards and enforcement for such
activities in West Virginia has resulted in the importation and
disposal into the state of increasingly large amounts of
infectious, dangerous and undesirable solid waste and hazardous
waste from other states by persons and firms who wish to avoid
the costs and requirements for proper, effective and safe
disposal of such wastes in the states of origin.
The Legislature further finds that the process of developing
rational and sound solid waste plans at the county or regional
level is impeded by the proliferation of siting proposals for new
solid waste facilities.
Therefore, it is the purpose of the Legislature to protect
the public health and welfare by providing for a comprehensive
program of solid waste collection, processing, recycling and
disposal to be implemented by state and local government in
cooperation with the private sector. The Legislature intends to
accomplish this goal by establishing county and regional solid
waste authorities throughout the state to develop and implementlitter and solid waste control plans. It is the further purpose
of the Legislature to restrict and regulate persons and firms
from exploiting and endangering the public health and welfare of
the state by disposing of solid wastes and other dangerous
materials which would not be accepted for disposal in the
location where such wastes or materials were generated.
It is further the purpose of the Legislature to reduce our
solid waste management problems and to meet the purposes of this
article by requiring county and regional solid waste authorities
to establish programs and plans based on an integrated waste
management hierarchy. In order of preference, the hierarchy is
as follows:
(1)
Source reduction. -- This involves minimizing waste
production and generation through product design, reduction of
toxic constituents of solid waste, and similar activities.
(2)
Recycling, reuse and materials recovery. -- This
involves separating and recovering valuable materials from the
waste stream, composting food and yard waste, and marketing of
recyclables.
(3)
Landfilling. -- To the maximum extent possible, this
option should be reserved for nonrecyclables and other materials
that cannot practically be managed in any other way. This is the
lowest priority in the hierarchy and involves the waste
management option of last resort.
The Legislature further finds that the potential impacts of
proposed commercial solid waste facilities may have a deleteriousand debilitating impact upon the transportation network, property
values, economic growth, environmental quality, other land uses
and the public health and welfare in affected communities. The
Legislature also finds that the siting of such facilities is not
being adequately addressed to protect these compelling interests
of counties and local communities.
The Legislature further finds that affected citizens and
local governments often look to state environmental regulatory
agencies to resolve local land use conflicts engendered by these
proposed facilities. The Legislature also finds that such local
land use conflicts are most effectively resolved in a local
governmental forum where citizens can most easily participate in
the decision-making process and the land use values of local
communities most effectively identified and incorporated into a
comprehensive policy which reflects the values and goals of those
communities.
Therefore, it is the purpose of the Legislature to enable
local citizens to resolve the land-use conflicts which may be
created by proposed commercial solid waste facilities through the
existing forum of county or regional solid waste authorities.
§22C-4-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article, the terms:
(a) "Approved solid waste facility" means a commercial solid
waste facility or practice which has a valid permit or compliance
order under article fifteen, chapter twenty-two of this code.
(b) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other
than the owner or operator of the facility and does not include
an approved solid waste facility owned and operated by a person
for the sole purpose of disposing of solid wastes created by that
person or that person and another person on a cost-sharing or
nonprofit basis and does not include the legitimate reuse and
recycling of materials for structural fill, road base, mine
reclamation and similar applications.
(c) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(d) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten and thirty
thousand tons of solid waste per month. Class A facility
includes two or more Class B solid waste landfills owned or
operated by the same person in the same county, if the aggregate
tons of solid waste handled per month by such landfills exceeds
nine thousand nine hundred ninety-nine tons of solid waste per
month.
(e) "Class B facility" means a commercial solid waste
facility which receives or is expected to receive an average
daily quantity of mixed solid waste equal to or exceeding one
hundred tons each working day, or serves or is expected to servea population equal to or exceeding forty thousand persons, but
which does not receive solid waste exceeding an aggregate of ten
thousand tons per month. Class B facilities do not include
construction/demolition facilities:
Provided, That the
definition of Class B facility may include such reasonable
subdivisions or subclassifications as the director may establish
by legislative rule proposed in accordance with the provisions of
chapter twenty-nine-a of this code.
(f) "Compliance order" means an administrative order issued
pursuant to section ten, article fifteen, chapter twenty-two of
this code authorizing a solid waste facility to operate without
a solid waste permit.
(g) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(h) "Person" means any industrial user, public or private
corporation, institution, association, firm or company organized
or existing under the laws of this or any other state or country;
the state of West Virginia; governmental agency, including
federal facilities; political subdivision; county commission;
municipal corporation; industry; sanitary district; public
service district; drainage district; soil conservation district;
watershed improvement district; partnership; trust; estate;
person or individual; group of persons or individuals acting
individually or as a group; or any legal entity whatever.
(i) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(j) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article eleven, chapter twenty-two of this code, or
source, special nuclear or byproduct material as defined by the
Atomic Energy Act of 1954, as amended, including any nuclear or
byproduct material considered by federal standards to be below
regulatory concern, or a hazardous waste either identified or
listed under article eighteen, chapter twenty-two of this code,
or refuse, slurry, overburden or other waste or material
resulting from coal-fired electric power or steam generation, the
exploration, development, production, storage and recovery of
coal, oil and gas, and other mineral resources placed or disposed
of at a facility which is regulated under articles two, three,four, six, seven, eight, nine or ten of said chapter or chapter
twenty-two-a of this code, so long as such placement or disposal
is in conformance with a permit issued pursuant to said chapters.
"Solid waste" does not include materials which are recycled by
being used or reused in an industrial process to make a product,
as effective substitutes for commercial products, or are returned
to the original process as a substitute for raw material
feedstock.
(k) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwing
or causing to be placed, deposited, dumped or thrown any solid
waste.
(l) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in
the state register pursuant to section nine, article three of
this chapter.
(m) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
resource-recovery facilities and other such facilities not herein
specified. Such facility is situated, for purposes of this
article, in the county where the majority of the spatial area of
such facility is located.
(n) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intentionof using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(o) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation, or any other method by which solid waste is
incinerated.
(p) "Incinerator" means an enclosed device using controlled
flame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(q) "Materials recovery facility" means any solid waste
facility at which solid wastes are manually or mechanically
shredded or separated so that materials are recovered from the
general waste stream for purposes of reuse and recycling.
§22C-4-3. Creation of county solid waste authority; appointment
to board of directors; vacancies.
(a) Each and every county solid waste authority authorized
and created by the county commission of any county pursuant to
former article sixteen, chapter seven of this code is hereby
abolished on and after the first day of January, one thousand
nine hundred eighty-nine. On and after the first day of January,
one thousand nine hundred eighty-nine, a new county solid waste
authority is hereby created and established as a public agency inevery county of the state and is the successor to each county
solid waste authority which may have been created by the county
commission:
Provided, That such county solid waste authorities
shall not be established or shall cease to exist, as the case may
be, in those counties which establish a regional solid waste
authority pursuant to section four of this article. The solid
waste management board may require a county solid waste authority
to cooperate and participate in programs with other authorities
if the need arises.
(b) The authority board of directors is comprised of five
members who are appointed as follows: One by the director of the
division of environmental protection, two by the county
commission, one by the board of supervisors for the soil
conservation district in which the county is situated and one by
the chairman of the public service commission. The members of
the board are appointed for terms of four years for which the
initial shall start on the first day of July, one thousand nine
hundred eighty-eight:
Provided, That the first two members
appointed by the county commission shall be appointed to initial
terms of two and four years, respectively, and for terms of four
years for each appointment thereafter. The members of the board
shall receive no compensation for their service thereon but shall
be reimbursed for their actual expenses incurred in the discharge
of their duties. Vacancies in the office of member of the board
of directors shall be filled for the balance of the remaining
term by the appropriate appointing authority within sixty daysafter such vacancy occurs. No member who has any financial
interest in the collection, transportation, processing, recycling
or the disposal of refuse, garbage, solid waste or hazardous
waste shall vote or act on any matter which directly affects the
member's personal interests.
§22C-4-4. Establishment of regional solid waste authorities
authorized; successor to county solid waste authorities;
appointments to board of directors; vacancies.
(a) On and after the first day of January, one thousand nine
hundred eighty-nine, any two or more counties within the same
solid waste shed and with the approval of the solid waste
management board, may establish a regional solid waste authority.
Such a regional solid waste authority is a public agency and is
the successor to any county solid waste authority existing on the
date of said approval by the solid waste management board. The
solid waste management board may require a county authority to
cooperate and participate in programs with other county and
regional authorities if the need arises.
(b) The board of directors of the regional solid waste
authority are appointed as follows: One by the director of the
division of environmental protection, two by the county
commission of each county participating therein, one by the board
of supervisors for each soil conservation district in which a
county of the region is situated, one by the chairman of the
public service commission and two municipal representatives from
each county having one or more participating municipality to beselected by the mayors of the participating municipality from
each such county. The members of the board are appointed for
terms of four years for which the initial terms start on the
first day of July, one thousand nine hundred eighty-eight:
Provided, That the members appointed by the county commission
shall be appointed to initial terms of two and four years,
respectively, and to terms of four years after the expiration of
each such initial term. The members of the board shall receive
no compensation for their service thereon but shall be reimbursed
their actual expenses incurred in the discharge of their duties.
Vacancies in the office of member of the board of directors shall
be filled for the balance of the remaining term by the
appropriate appointing authority within sixty days after such
vacancy occurs. No member who has any financial interest in the
collection, transportation, processing, recycling or the disposal
of refuse, garbage, solid waste or hazardous waste shall vote or
act on any matter which directly affects the member's personal
interests.
§22C-4-5. Authorities as successor to county commissions and
former county solid waste authorities.
The county and regional solid waste authorities created
herein, as the case may be, are the successors to the county
commissions of each county, or the solid waste authority
previously created by said commission and abolished as of the
first day of January, one thousand nine hundred eighty-nine, by
this article, in the ownership, operation and maintenance of suchdumps, landfills and other solid waste facilities, solid waste
collection services and litter and solid waste control programs.
The county commission of each county, or the solid waste
authority thereof, shall, on the first day of January, one
thousand nine hundred eighty-nine, transfer all ownership,
operation, control and other rights, title and interests in such
solid waste facilities, services and programs, and the
properties, funds, appropriations and contracts related thereto
to the county or regional solid waste authority established
pursuant to this article.
§22C-4-6. Election by county commission to assume powers and
duties of the county solid waste authority.
Notwithstanding any provision of this article, any county
commission which, on the first day of July, one thousand nine
hundred eighty-eight, held a valid permit or compliance order for
a commercial solid waste transfer station issued pursuant to
article fifteen, chapter twenty-two of this code, may elect to
assume all the duties, powers, obligations, rights, title and
interests vested in the county solid waste authority by this
chapter. A county commission may, prior to the first day of
October, one thousand nine hundred eighty-nine, exercise this
right of election by entering an order declaring such election
and serving a certified copy thereof upon the solid waste
management board. Thirty days after entry of said order by the
county commission the county solid waste authority ceases to
exist and the county commission assumes all the duties, powers,obligations, rights, title and interest vested in the former
authority pursuant to this chapter or chapter twenty-two of this
code.
§22C-4-7. Management of authority vested in board of directors;
expenses paid by county commissions, procedure.
(a) The management and control of the authority, its
property, operations and affairs of any nature is vested in and
governed by the board of directors.
(b) The expenses of any county solid waste authority
incurred for necessary secretarial and clerical assistance,
office supplies and general administrative expenses, in the
development of the litter and solid waste control plan under
section eight of this article and to provide solid waste
collection and disposal services under this article shall be paid
by the county commission from the general funds in the county
treasury to the extent that such expenses are not paid by fees,
grants and funds received by the authority from other sources.
The county commission has the authority to determine the amount
to be allocated annually to the authority.
(c) The expenses of any regional solid waste authority
incurred for necessary secretarial and clerical assistance,
office supplies and general administrative expenses, or for the
development of the litter and solid waste control plan under
section eight of this article, or to provide solid waste
collection and disposal services under this article shall be paid
by the county commissions of each participating county fromgeneral funds in the county treasury to the extent that such
expenses are not paid by fees, grants and funds from other
sources received by the authority. Each county participating in
the regional solid waste authority shall pay a pro rata share of
such expenses based upon the population of said county in the
most recent decennial census conducted by the United States
Census Bureau. Prior to any county becoming liable for any
expenses of the authority under this subsection, the authority's
annual budget must first be approved by the solid waste
management board.
(d) An organizational meeting of each board of directors
shall be held as soon as practicable at which time a chair and
vice chair shall be elected from among the members of the board
to serve a term of one year after which such officers shall be
elected annually. The board of directors shall also appoint a
secretary-treasurer, who need not be a member of the board of
directors, and who shall give bond in a sum determined adequate
to protect the interests of the authority by the director of the
division of environmental protection. The board shall meet at
such times and places as it or the chair may determine. It is
the duty of the chair to call a meeting of the board upon the
written request of a majority of the members thereof. The board
shall maintain an accurate record and minutes of all its
proceedings and is subject to the provisions of article one,
chapter twenty-nine-b of this code, the freedom of information
act and article nine-a, chapter six of this code, opengovernmental proceedings. A majority of the board is a quorum
for the transaction of business.
§22C-4-8. Authority to develop litter and solid waste control
plan; approval by solid waste management board; development
of plan by director; advisory rules.
(a) Each county and regional solid waste authority is
required to develop a comprehensive litter and solid waste
control plan for its geographic area and to submit said plan to
the solid waste management board on or before the first day of
July, one thousand nine hundred ninety-one. Each authority shall
submit a draft litter and solid waste control plan to the solid
waste management board by the thirty-first day of March, one
thousand nine hundred ninety-one. The comments received by the
county or regional solid waste authority at public hearings, two
of which are required, shall be considered in developing the
final plan.
(b) Each litter and solid waste control plan shall include
provisions for:
(1) An assessment of litter and solid waste problems in the
county;
(2) The establishment of solid waste collection and disposal
services for all county residents at their residences, where
practicable, or the use of refuse collection stations at disposal
access points in areas where residential collection is not
practicable. In developing such collection services, primacy
shall be given to private collection services currently operatingwith a certificate of convenience and necessity from the motor
carrier division of the public service commission;
(3) The evaluation of the feasibility of requiring or
encouraging the separation of residential or commercial solid
waste at its source prior to collection for the purpose of
facilitating the efficient and effective recycling of such wastes
and the reduction of those wastes which must be disposed of in
landfills or by other nonrecycling means;
(4) The establishment of an appropriate mandatory garbage
disposal program which shall include methods whereby residents
must prove either: (i) Payment of garbage collection fee; or
(ii) proper disposal at an approved solid waste facility or in an
otherwise lawful manner;
(5) A recommendation for the siting of one or more properly
permitted public or private solid waste facilities, whether
existing or proposed, to serve the solid waste needs of the
county or the region, as the case may be, consistent with the
comprehensive county plan prepared by the county planning
commission;
(6) A timetable for the implementation of said plan;
(7) A program for the cleanup, reclamation and stabilization
of any open and unpermitted dumps;
(8) The coordination of the plan with the related solid
waste collection and disposal services of municipalities and, if
applicable, other counties;
(9) A program to enlist the voluntary assistance of privateindustry and civic groups in volunteer cleanup efforts to the
maximum practicable extent;
(10) Innovative incentives to promote recycling efforts;
(11) A program to identify the disposal of solid wastes
which are not generated by sources situated within the boundaries
of the county or the region established pursuant to this section;
(12) Coordination with the division of highways and other
local, state and federal agencies in the control and removal of
litter and the cleanup of open and unpermitted dumps;
(13) Establishment of a program to encourage and utilize
those individuals incarcerated in the county jail and those
adults and juveniles sentenced to probation for the purposes of
litter pickup; and
(14) Provision for the safe and sanitary disposal of all
refuse from commercial and industrial sources within the county
or region, as the case may be, including refuse from commercial
and industrial sources, but excluding refuse from sources owned
or operated by the state or federal governments.
(c) The solid waste management board shall establish
advisory rules to guide and assist the counties in the
development of the plans required by this section.
(d) Each plan prepared under this section is subject to
approval by the solid waste management board. Any plan rejected
by the solid waste management board shall be returned to the
regional or county solid waste authority with a statement of the
insufficiencies in such plan. The authority shall revise theplan to eliminate the insufficiencies and submit it to the
director within ninety days.
(e) The solid waste management board shall develop a litter
and solid waste control plan for any county or regional solid
waste authority which fails to submit such a plan on or before
the first day of July, one thousand nine hundred ninety-two:
Provided, That in preparing such plans the director may determine
whether to prepare a regional or county based plan for those
counties which fail to complete such a plan.
§22C-4-9. Assistance to county or regional solid waste
authorities by the solid waste management board, division of
natural resources, division of environmental protection,
bureau of public health and the attorney general.
(a) The division of natural resources, the division of
environmental protection, the solid waste management board, and
the bureau of public health shall provide technical assistance to
each county and regional solid waste authority as reasonable and
practicable for the purposes of this article within the existing
resources and appropriations of each agency available for such
purposes. The attorney general shall provide legal counsel and
representation to each county and regional solid waste authority
for the purposes of this article within the existing resources
and appropriations available for such purposes, or with the
written approval of the attorney general, said authority may
employ counsel to represent it.
(b) The solid waste management board shall provideassistance to the county or regional solid waste authorities,
municipalities and other interested parties in identifying and
securing markets for recyclables.
§22C-4-10. Mandatory disposal; proof required; penalty imposed;
requiring solid waste management board and the public
service commission to file report.
(a) Each person occupying a residence or operating a
business establishment in this state shall either:
(1) Subscribe to and use a solid waste collection service
and pay the fees established therefor; or
(2) Provide proper proof that said person properly disposes
of solid waste at approved solid waste facilities or in any other
lawful manner. The director of the division of environmental
protection shall promulgate rules pursuant to chapter
twenty-nine-a of this code regarding an approved method or
methods of supplying such proper proof. A civil penalty of one
hundred fifty dollars shall be assessed to the person not
receiving solid waste collection services in addition to the
unpaid fees for every year that a fee is not paid.
(b) The solid waste management board in consultation and
collaboration with the public service commission shall prepare
and submit, no later than the first day of October, one thousand
nine hundred ninety-two, a report concerning the feasibility of
implementing a mandatory fee for the collection and disposal of
solid waste in West Virginia:
Provided, That such plan shall
consider such factors as affordability, impact on open dumpingand other relevant matters. The report shall be submitted to the
governor, the president of the Senate and the speaker of the
House of Delegates.
(c) The public service commission in consultation and
collaboration with the division of human services shall prepare
and submit, no later than the first day of October, one thousand
nine hundred ninety-two, a report concerning the feasibility of
reducing solid waste collection fees to individuals who directly
pay such fees and who receive public assistance from state or
federal government agencies and are therefore limited in their
ability to afford to pay for solid waste disposal. This report
shall consider the individual's health and income maintenance and
other relevant matters. This report shall also include
recommended procedures for individuals or households to qualify
for and avail themselves of a reduction in fees. This report
shall be submitted to the governor, the president of the Senate
and the speaker of the House of Delegates.
§22C-4-11. Acquisition of land; operation of public solid waste
landfills and other facilities; restrictions on solid wastes
generated outside authority area; fees.
Upon approval of the litter and solid waste control plan by
the solid waste management board, the county or regional solid
waste authority may acquire, by purchase, lease, gift or
otherwise, land for the establishment of solid waste facilities
and is authorized to construct, operate, maintain and contract
for the operation of such facilities. The authority may pay forlease or acquisition of such lands and the construction,
operation and maintenance of such solid waste facilities from
such fees, grants, financing by the solid waste program of the
division of environmental protection or funds from other sources
as may be available to the authority. The authority may prohibit
the deposit of any solid waste in such solid waste facilities
owned, leased or operated by the authority which have originated
from sources outside the geographic limits of the county or
region. The authority board of directors shall establish and
charge reasonable fees for the use of such facilities operated by
the authority.
§22C-4-12. Bonds and notes.
For constructing or acquiring any solid waste facilities for
the authorized purposes of the authority, or necessary or
incidental thereto, and for constructing improvements and
extension thereto, and also for reimbursing or paying the costs
and expenses of creating the authority, if any, the board of any
such authority is hereby authorized to borrow money from time to
time and in evidence thereof issue the bonds or notes of such
authority, payable from the revenues derived from the operation
of the solid waste facilities under control of the authority or
from such other funds as are available to the authority for such
purpose. Such bonds or notes may be issued in one or more
series, may bear such date or dates, may mature at such time or
times not exceed forty years from their respective dates, may
bear interest at such rate or rates, payable at such times, maybe in such form, may carry such registration privileges, may be
executed in such manner, may be payable at such place or places,
may be subject to such terms of redemption with or without
premium, may be declared or become due before maturity date
thereof, may be authenticated in any manner, and upon compliance
with such conditions, and may contain such terms and covenants as
may be provided by resolution or resolutions of the board.
Notwithstanding the form or tenor thereof, and in the absence of
any express recital on the face thereof, that the bond or note is
nonnegotiable, all such bonds or notes are, and shall be treated
as, negotiable instruments for all purposes. The bonds or notes
shall be executed by the chair of the board, who may use a
facsimile signature. The official seal of the authority or a
facsimile thereof shall be affixed to or printed on each bond or
note and attested, manually or by facsimile signature, by the
secretary-treasurer of the board, and any coupons attached to any
bond or note shall bear the signature of facsimile signature of
the chair of the board. Bonds or notes bearing the signatures of
officers in office on the date of the signing thereof are valid
and binding for all purposes notwithstanding that before the
delivery thereof any or all of the persons whose signatures
appear thereon have ceased to be such officers. Notwithstanding
the requirements or provisions of any other law, any such bonds
or notes may be negotiated or sold in such manner and at such
time or times as is found by the board to be most advantageous.
Any resolution or resolutions providing for the issuance of suchbonds or notes may contain such covenants and restrictions upon
the issuance of additional bonds or notes thereafter as may be
deemed necessary or advisable for the assurance of the payment of
the bonds or notes thereby authorized.
§22C-4-13. Items included in cost of properties.
The cost of any solid waste facilities acquired under the
provisions of this article includes the cost of the acquisition
or construction thereof, costs of closure of solid waste
facilities, the cost of all property rights, easements and
franchises deemed necessary or convenient therefor and for the
improvements and extensions thereto; interest upon bonds or notes
prior to and during construction or acquisition and for twelve
months after completion of construction or of acquisition of the
improvements and extensions; engineering, fiscal agents and legal
expenses; expenses for estimates of cost and of revenues,
expenses for plans, specifications and surveys; other expenses
necessary or incident to determining the feasibility or
practicability of the enterprise, administrative expense, and
such other expenses as may be necessary or incident to the
financing herein authorized, and the construction or acquisition
of the properties and the placing of same in operation, and the
performance of the things herein required or permitted, in
connection with any thereof.
§22C-4-14. Bonds or notes may be secured by trust indenture.
In the discretion and at the option of the board such bonds
or notes may be secured by a trust indenture by and between theauthority and a corporate trustee, which may be a trust company
or bank having powers of a trust company within or without the
state of West Virginia. The resolution authorizing the bonds or
notes and fixing the details thereof may provide that such trust
indenture may contain such provisions for protecting and
enforcing the rights and remedies of bondholders as may be
reasonable and proper, not in violation of law, including
covenants setting forth the duties of the authority and the
members of its board and officers in relation to the construction
or acquisition of solid waste facilities and the improvement,
extension, operation, repair, maintenance and insurance thereof,
and the custody, safeguarding and application of all moneys, and
may provide that all or any part of the construction work shall
be contracted for, constructed and paid for, under the
supervision and approval of consulting engineers employed or
designated by the board and satisfactory to the original bond
purchasers, their successors, assignees or nominees, who may be
given the right to require the security given by contractors and
by any depository of the proceeds of bonds or notes or revenues
of the solid waste facilities or other money pertaining thereto
be satisfactory to such purchasers, their successors, assignees
or nominees. Such indenture may set forth the rights and
remedies of the bondholders or noteholders and such trustee.
§22C-4-15. Sinking fund for bonds or notes.
At or before the time of the issuance of any bonds or notes
under this article, the board may by resolution or in the trustindenture provide for the creation of a sinking fund and for
payments into such fund from the revenues of the solid waste
facilities operated by the authority or from other funds
available thereto such sums in excess of the cost of maintenance
and operation of such properties as will be sufficient to pay the
accruing interest and retire the bonds or notes at or before the
time each will respectively become due and to establish and
maintain reserves therefor. All sums which are or should be, in
accordance with such provisions, paid into such sinking fund
shall be used solely for payment of interest and principal and
for the retirement of such bonds or notes or at prior to maturity
as may be provided or required by such resolution.
§22C-4-16. Collection, etc., of revenues and funds and
enforcement of covenants; default; suit, etc., by bondholder
or noteholder or trustee to compel performance of duties;
appointment and powers of receiver.
The board for any such authority has power to insert
enforceable provisions in any resolution authorizing the issuance
of bonds or notes relating to the collection, custody and
application of revenues or of the authority from the operation of
the solid waste facilities under its control or other funds
available to the authority and to the enforcement of the
covenants and undertakings of the authority. In the event there
is default in the sinking fund provisions aforesaid or in the
payment of the principal or interest on any of such bonds or
notes or, in the event the authority or its board or any of itsofficers, agents or employees, fails or refuses to comply with
the provisions of this article, or defaults in any covenant or
agreement made with respect to the issuance of such bonds or
notes or offered as security therefor, then any holder or holders
of such bonds or notes and any such trustee under the trust
indenture, if there be one, have the right by suit, action,
mandamus or other proceeding instituted in the circuit court for
the county or any of the counties wherein the authority extends,
or in any other court of competent jurisdiction, to enforce and
compel performance of all duties required by this article or
undertaken by the authority in connection with the issuance of
such bonds or notes, and upon application of any such holder or
holders, or such trustee, such court shall, upon proof of such
defaults, appoint a receiver for the affairs of the authority and
its properties, which receiver so appointed shall forthwith
directly, or by his or her agents and attorneys, enter into and
upon and take possession of the affairs of the authority and each
and every part thereof, and hold, use, operate, manage and
control the same, and in the name of the authority exercise all
of the rights and powers of such authority as found expedient,
and such receiver has power and authority to collect and receive
all revenues and apply same in such manner as the court directs.
Whenever the default causing the appointment of such receiver has
been cleared and fully discharged and all other defaults have
been cured, the court may in its discretion and after such notice
and hearing as it deems reasonable and proper direct the receiverto surrender possession of the affairs of the authority to its
board. Such receiver so appointed has no power to sell, assign,
mortgage, or otherwise dispose of any assets of the authority
except as hereinbefore provided.
§22C-4-17. Operating contracts.
The board may enter into contracts or agreements with any
persons, firms or corporations for the operation and management
of the solid waste facilities for such period of time and under
such terms and conditions as are agreed upon between the board
and such persons, firms or corporations. The board has power to
provide in the resolution authorizing the issuance of bonds or
notes, or in any trust indenture securing such bonds or notes,
that such contracts or agreements are valid and binding upon the
authority as long as any of said bonds or notes, or interest
thereon, are outstanding and unpaid.
§22C-4-18. Statutory mortgage lien created unless otherwise
provided; foreclosure thereof.
Unless otherwise provided by resolution of the board, there
is a statutory mortgage lien upon such solid waste facilities of
the authority, which exists in favor of the holders of bonds or
notes hereby authorized to be issued, and each of them, and the
coupons attached to said bonds or notes, and such solid waste
facilities remain subject to such statutory mortgage lien until
payment in full of all principal of and interest on such bonds or
notes. Any holder of such bonds or notes, of any coupons
attached thereto, may, either at law or in equity, enforce saidstatutory mortgage lien conferred hereby and upon default in the
payment of the principal of or interest on said bonds or notes,
and may foreclose such statutory mortgage lien in the manner now
provided by the laws of the state of West Virginia for the
foreclosure of mortgages on real property.
§22C-4-19. Refunding bonds or notes.
The board of any authority having issued bonds or notes
under the provisions of this article is hereby empowered
thereafter by resolution to issue refunding bonds or notes of
such authority for the purpose of retiring or refinancing any or
all outstanding bonds or notes, together with any unpaid interest
thereon and redemption premium thereunto appertaining and all of
the provisions of this article relating to the issuance, security
and payment of bonds or notes are applicable to such refunding
bonds or notes, subject, however, to the provisions of the
proceedings which authorized the issuance of the bonds or notes
to be so refunded.
§22C-4-20. Indebtedness of authority.
No constitutional or statutory limitation with respect to
the nature or amount of or rate of interest on indebtedness which
may be incurred by municipalities, counties or other public or
governmental bodies applies to the indebtedness of an authority.
No indebtedness of any nature of authority is an indebtedness of
the state of West Virginia or any municipality or county therein
or a charge against any property of said state of West Virginia
or any municipalities or counties. No indebtedness or obligationincurred by any authority gives any right against any member of
the governing body of any municipality or any member of the
authority of any county or any member of the board of any
authority. The rights of creditors of any authority are solely
against the authority as a corporate body and shall be satisfied
only out of property held by it in its corporate capacity.
§22C-4-21. Property, bonds or notes and obligations of authority
exempt from taxation.
The authority is exempt from the payment of any taxes or
fees to the state or any subdivisions thereof or any
municipalities or to any officer or employee of the state or of
any subdivision thereof or of any municipalities. The property
of the authority is exempt from all local and municipal taxes.
Bonds, notes, debentures and other evidence of indebtedness of
the authority are declared to be issued for a public purpose and
to be public instrumentalities, and, together with interest
thereon, are exempt from taxes.
§22C-4-22. Use of prisoners for litter pickup; funds provided
from litter control fund; county commission, regional jail
and correctional facility authority and sheriff to cooperate
with solid waste authority.
Upon the approval of the litter and solid waste control plan
as provided in section eight hereof, each county and regional
solid waste authority is hereby authorized and directed to
implement a program to utilize those individuals incarcerated in
the county or regional jails for litter pickup within the limitsof available funds. Such program shall be funded from those
moneys allocated to the authority by the director of the division
of natural resources from the litter control fund pursuant to
section twenty-seven, article four, chapter twenty of this code.
The authority may expend such additional funds for this program
as may be available from other sources. The county commission
and the sheriff of each county and the regional jail and
correctional facility authority shall cooperate with the county
or regional solid waste authority in implementing this program
pursuant to section one, article eleven-a, and sections three and
thirteen, article twelve, chapter sixty-two of this code.
§22C-4-23. Powers, duties and responsibilities of authority
generally.
The authority may exercise all powers necessary or
appropriate to carry out the purposes and duties provided in this
article, including the following:
(1) Sue and be sued, plead and be impleaded and have and use
a common seal.
(2) To conduct its business in the name of the county solid
waste authority or the regional solid waste authority, as the
case may be, in the names of the appropriate counties.
(3) The authority board of directors shall promulgate rules
to implement the provisions of sections nine and ten of this
article and is authorized to promulgate rules for purposes of
this article and the general operation and administration of
authority affairs.
(4) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the conduct of its affairs consistent
with this article.
(5) To promulgate such rules as may be proper and necessary
to implement the purposes and duties of this article.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for the operation by any person, partnership,
corporation or governmental agency, any solid waste facility or
collection, transportation and processing facilities related
thereto.
(7) Issue negotiable bonds, notes, debentures or other
evidences of indebtedness and provide for the rights of the
holders thereof, incur any proper indebtedness and issue any
obligations and give any security therefor which it may deem
necessary or advisable in connection with exercising powers as
provided herein.
(8) Make available the use or services of any solid waste
facility collection, transportation and processing facilities
related thereto, to any person, partnership, corporation or
governmental agency consistent with this article.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and duties.
(10) Make and enter all contracts, leases and agreements and
to execute all instruments necessary or incidental to the
performance of its duties and powers.
(11) Employ managers, engineers, accountants, attorneys,
planners and such other professional and support personnel as are
necessary in its judgment to carry out the provisions of this
article.
(12) Receive and accept from any source such grants, fees,
real and personal property, contributions and funds of any nature
as may become available to the authority in order to carry out
the purposes of this article.
(13) Cooperate with and make such recommendations to local,
state and federal government and the private sector in the
technical, planning and public policy aspects of litter control
and solid waste management as the authority may find appropriate
and effective to carry out the purposes of this article.
(14) Charge, alter and collect rentals, fees, service
charges and other charges for the use or services of any solid
waste facilities or any solid waste collection, transportation
and processing services provided by the authority.
(15) Prohibit the dumping of solid waste outside the hours
of operation of a solid waste facility.
(16) Enforce the hours of operation of a solid waste
facility and the mandatory disposal provision in section ten of
this article by referring violations to the division of
environmental protection or the appropriate law-enforcement
authorities.
(17) Do all acts necessary and proper to carry out the
powers expressly granted to the authority by this article andpowers conferred upon the authority by this article.
All rules promulgated by the authority pursuant to this
article are exempt from the provisions of article three, chapter
twenty-nine-a of this code.
§22C-4-24. Commercial solid waste facility siting plan;
facilities subject to plan; criteria; approval by solid
waste management board; effect on facility siting; public
hearings; rules.
(a) On or before the first day of July, one thousand nine
hundred ninety-one, each county or regional solid waste authority
shall prepare and complete a commercial solid waste facilities
siting plan for the county or counties within its jurisdiction:
Provided, That the solid waste management board may authorize any
reasonable extension of up to one year for the completion of the
said siting plan by any county or regional solid waste authority.
The siting plan shall identify zones within each county where
siting of the following facilities is authorized or prohibited:
(1) Commercial solid waste facilities which may accept an
aggregate of more than ten thousand tons of solid waste per
month.
(2) Commercial solid waste facilities which shall accept
only less than an aggregate of ten thousand tons of solid waste
per month.
(3) Commercial solid waste transfer stations or commercial
facilities for the processing or recycling of solid waste.
The siting plan shall include an explanation of therationale for the zones established therein based on the criteria
established in subsection (b) of this section.
(b) The county or regional solid waste authority shall
develop the siting plan authorized by this section based upon the
consideration of one or more of the following criteria: The
efficient disposal of solid waste, including all solid waste
generated within the county or region, economic development,
transportation facilities, property values, groundwater and
surface waters, geological and hydrological conditions, aesthetic
and environmental quality, historic and cultural resources, the
present or potential land uses for residential, commercial,
recreational, environmental conservation or industrial purposes
and the public health, welfare and convenience. The plan shall
be developed based upon information readily available. Due to
the limited funds and time available the plan need not be an
exhaustive and technically detailed analysis of the criteria set
forth above. Unless the information readily available clearly
establishes that an area is suitable for the location of a
commercial solid waste facility or not suitable for such a
facility, the area shall be designated as an area in which the
location of a commercial solid waste facility is tentatively
prohibited. Any person making an application for the
redesignation of a tentatively prohibited area shall make
whatever examination is necessary and submit specific detailed
information in order to meet the provision established in
subsection (g) of this section.
(c) Prior to completion of the siting plan, the county or
regional solid waste authority shall complete a draft siting plan
and hold at least one public hearing in each county encompassed
in said draft siting plan for the purpose of receiving public
comment thereon. The authority shall provide notice of such
public hearings and encourage and solicit other public
participation in the preparation of the siting plan as required
by the rules promulgated by the solid waste management board for
this purpose. Upon completion of the siting plan, the county or
regional solid waste authority shall file said plan with the
solid waste management board.
(d) The siting plan takes effect upon approval by the solid
waste management board pursuant to the rules promulgated for this
purpose. Upon approval of said plan, the solid waste management
board shall transmit a copy thereof to the director of the
division of environmental protection and to the clerk of the
county commission of the county encompassed by said plan which
county clerk shall file the plan in an appropriate manner and
shall make the plan available for inspection by the public.
(e) Effective upon approval of the siting plan by the solid
waste management board, it is unlawful for any person to
establish, construct, install or operate a commercial solid waste
facility at a site not authorized by the siting plan:
Provided,
That an existing commercial solid waste facility which, on the
eighth day of April, one thousand nine hundred eighty-nine, held
a valid solid waste permit or compliance order issued by thedivision of natural resources pursuant to the former provisions
of article five-f, chapter twenty of this code may continue to
operate but may not expand the spatial land area of the said
facility beyond that authorized by said solid waste permit or
compliance order, and may not increase the aggregate monthly
solid waste capacity in excess of ten thousand tons monthly
unless such a facility is authorized by the siting plan.
(f) The county or regional solid waste authority may, from
time to time, amend the siting plan in a manner consistent with
the requirements of this section for completing the initial
siting plan and the rules promulgated by the solid waste
management board for the purpose of such amendments.
(g) Notwithstanding any provision of this code to the
contrary, upon application from a person who has filed a pre-
siting notice pursuant to section thirteen, article fifteen,
chapter twenty-two of this code, the county or regional solid
waste authority or county commission, as appropriate, may amend
the siting plan by redesignating a zone that has been designated
as an area where a commercial solid waste facility is tentatively
prohibited to an area where one is authorized. In such case, the
person seeking the change has the burden to affirmatively and
clearly demonstrate, based on the criteria set forth in
subsection (b) of this section, that a solid waste facility could
be appropriately operated in the public interest at such
location. The solid waste management board shall provide, within
available resources, technical support to a county or regionalsolid waste authority, or county commission as appropriate, when
requested by such authority or commission to assist it in
reviewing an application for any such amendment.
(h) The solid waste management board shall prepare and adopt
a siting plan for any county or regional solid waste authority
which does not complete and file with the said state authority
such a siting plan in compliance with the provisions of this
section and the rules promulgated thereunder. Any siting plan
adopted by the solid waste management board pursuant to this
subsection shall comply with the provisions of this section, and
the rules promulgated thereunder, and has the same effect as a
siting plan prepared by a county or regional solid waste
authority and approved by the solid waste management board.
(i) The siting plan adopted pursuant to this section shall
incorporate the provisions of the litter and solid waste control
plan, as approved by the solid waste management board pursuant to
section eight of this article, regarding collection and disposal
of solid waste and the requirements, if any, for additional
commercial solid waste facility capacity.
(j) The solid waste management board is authorized and
directed to promulgate rules specifying the public participation
process, content, format, amendment, review and approval of
siting plans for the purposes of this section.
§22C-4-25. Siting approval for solid waste facilities; effect
on facilities with prior approval.
(a) It is the intent of the Legislature that all commercialsolid waste facilities operating in this state must receive site
approval at the local level. Notwithstanding said intent,
facilities which obtained such approval from either a county or
regional solid waste authority, or from a county commission,
under any prior enactment in this code, and facilities which were
otherwise exempted from local site approval under any prior
enactment in this code, shall be deemed to have satisfied such
requirement. All other facilities, including facilities which
received such local approval but which seek to expand spatial
area or to convert from a Class B facility to a Class A facility,
shall obtain such approval only in the manner specified in
sections twenty-six, twenty-seven and twenty-eight of this
article.
(b) In considering whether to issue or deny the certificate
of site approval as specified in sections twenty-six,
twenty-seven and twenty-eight of this article, the county or
regional solid waste authority or county commission shall base
its determination upon the following criteria: The efficient
disposal of solid waste generated within the county or region,
economic development, transportation facilities, property values,
groundwater and surface waters, geological and hydrological
conditions, aesthetic and environmental quality, historic or
cultural resources, the present or potential land uses for
residential, commercial, recreational, industrial or
environmental conservation purposes and the public health,
welfare and convenience.
(c) The county or regional solid waste authority, or county
commission, as appropriate, shall complete findings of fact and
conclusions relating to the criteria authorized in subsection (b)
hereof which support its decision to issue or deny a certificate
of site approval.
§22C-4-26. Approval of new Class A facilities by solid waste
authorities and county commissions, and referendum.
(a) Except as provided below with respect to Class B
facilities, from and after the tenth day of March, one thousand
and nine hundred ninety, in order to obtain approval to operate
a new Class A facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four of
this code and in section thirteen, article fifteen, chapter
twenty-two of this code;
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid
waste authority for the county or counties in which the facility
is proposed. Such application shall be submitted on forms
prescribed by the solid waste management board. The county or
regional solid waste authority shall act on such application and
either grant or deny it within thirty days after the application
is determined by the county or regional solid waste authority to
be filed in a completed manner; and
(3) File an application for approval of operation as a ClassA facility with, and obtain approval from, the county commission
for each county in which the facility would be located. Each
county commission shall act on such application and either grant
or deny it within thirty days after the application is determined
by the county commission to be filed in a completed manner. The
county commission shall hold at least one public hearing and
shall solicit public comment prior to acting on the application.
The county commission shall provide notice of such public hearing
with publication of a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is situated.
(b) If applications are approved pursuant to subdivisions
(1), (2) and (3), subsection (a) of this section, each county
commission shall order that a referendum be placed upon the
ballot not less than fifty-six days before the next primary,
general or other countywide election.
(1) Such referendum is to determine whether it is the will
of the voters of the county that a Class A facility be located in
the county. Any such election shall be held at the voting
precincts established for holding primary or general elections.
All of the provisions of the general election laws, when not in
conflict with the provisions of this article, apply to voting and
elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall a solid waste facility handling of between ten and
thirty thousand tons of solid waste per month be located within____________________ County, West Virginia?
//For the facility
//Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
is against the siting of a Class A facility within the county,
then the county commission, the county or regional solid waste
authority and the division of environmental protection shall not
proceed any further with the application. If a majority of the
legal votes cast upon the question is for siting a Class A
facility within the county, then the application process as set
forth in this article and article fifteen, chapter twenty-two of
this code may proceed:
Provided, That such vote is not binding
on and does not require the division of environmental protection
to issue a permit. If the majority of the legal votes cast is
against the question, the question may be submitted to a vote at
any subsequent election in the manner herein specified:
Provided, however, That the question may not be resubmitted to a
vote until two years after the date of the previous referendum.
(c) After the tenth day of March, one thousand nine hundred
ninety, the public referendum established in this section is
mandatory for every new Class A facility applicant which will
accept between ten and thirty thousand tons of solid waste per
month. A new Class A facility applicant means any applicant for
a state solid waste permit for a Class A facility who has not
prior to the tenth day of March, one thousand nine hundredninety, obtained a certificate of site approval for a Class A
facility from the county or regional solid waste authority to
establish, construct or operate a Class A facility, and also
means any applicant for a state solid waste permit for a Class A
facility if a legal challenge to the issuance of a certificate of
site approval by the county or regional solid waste authority or
the county commission approval for the proposed Class A facility
was pending in any state or federal court as of the first day of
September, one thousand nine hundred ninety-one.
§22C-4-27. Approval of conversion from Class B facility to Class
A facility.
(a) From and after the eighteenth day of October, one
thousand nine hundred ninety-one, in order to obtain approval to
operate as a Class A facility at a site previously permitted to
operate as a Class B facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four of
this code, and in section thirteen, article fifteen, chapter
twenty-two of this code;
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid
waste authority for the county or counties in which the facility
is located or proposed. Such application shall be submitted on
forms prescribed by the solid waste management board. The county
or regional solid waste authority shall act on such applicationand either grant or deny it within thirty days after the
application is determined by the county or regional solid waste
authority to be filed in a completed manner; and
(3) File an application for approval of operation as a Class
A facility with, and obtain approval from, the county commission
for each county in which the facility is or would be located.
Each county commission shall act on such application and either
grant or deny it within thirty days after the application is
determined by the county commission to be filed in a completed
manner. The county commission shall hold at least one public
hearing and shall solicit public comment prior to acting on the
application. The county commission shall provide notice of such
public hearing with publication of a Class II legal advertisement
in a qualified newspaper serving the county where the proposed
site is situated.
(b) If applications are approved pursuant to subdivisions
(1), (2) and (3), subsection (a) of this section, the county or
regional solid waste authority shall publish a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in a newspaper of general
circulation in the counties wherein the solid waste facility is
located. Upon the written petition of registered voters residing
in the county equal to not less than fifteen percent of the
number of votes cast within the county for governor at the
preceding gubernatorial election, which petition shall be filed
with the county commission within sixty days after the last dateof publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the
ballot. Any referendum conducted pursuant to this section shall
be held at the next primary, general or other countywide
election.
(1) Such referendum is to determine whether it is the will
of the voters of the county that the Class B facility be
converted to a Class A facility. Any election at which such
question of locating a solid waste facility is voted upon shall
be held at the voting precincts established for holding primary
or general elections. All of the provisions of the general
election laws, when not in conflict with the provisions of this
article, apply to voting and elections hereunder, insofar as
practicable. The secretary of state shall prescribe the form of
the petition which shall include the printed name, address and
date of birth of each person whose signature appears on the
petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall the ____________________________ solid waste
facility, located within ________________________ County, West
Virginia, be permitted to handle between ten and thirty thousand
tons of solid waste per month?
//For the facility
//Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
is against the facility, then the county commission, the county
or regional solid waste authority and the division of
environmental protection shall not proceed any further with the
application. If a majority of the legal votes cast upon the
question be for the facility, then the application process as set
forth in this article and article fifteen, chapter twenty-two of
this code may proceed:
Provided, That such vote is not binding
on nor does it require the division of environmental protection
to modify the permit. If the majority of the legal votes cast is
against the question, the question may be submitted to a vote at
any subsequent election in the manner herein specified:
Provided, however, That the question may not be resubmitted to a
vote until two years after the date of the previous referendum.
§22C-4-28. Approval of increase in maximum allowable monthly
tonnage of Class A facilities.
(a) From and after the eighteenth day of October, one
thousand nine hundred ninety-one, in order to increase the
maximum allowable monthly tonnage handled at a Class A facility
by an aggregate amount of more than ten percent of the facility's
permit tonnage limitation within a two-year period, the permittee
shall:
(1) File an application for approval with, and obtain
approval from, the county or regional solid waste authority forthe county or counties in which the facility is located. Such
application shall be a modification of the Class A facility's
certificate of site approval. The county or regional solid waste
authority shall act upon such application and either grant or
deny it within thirty days after the application is determined by
the county or regional solid waste authority to be filed in a
completed manner;
(2) File an application for approval with, and obtain
approval from, the public service commission to modify the
certificate of need in the manner set forth in section one-c,
article two, chapter twenty-four of this code; and
(3) File an application for a major permit modification with
the division of environmental protection.
(b) If applications are approved pursuant to subdivisions
(1) and (2), subsection (a) of this section and an application
has been filed pursuant to subdivision (3), subsection (a) of
this section, the county or regional solid waste authority shall
publish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in
a newspaper of general circulation in the counties wherein the
solid waste facility is located. Upon the written petition of
registered voters residing in the county equal to not less than
fifteen percent of the number of votes cast within the county for
governor at the preceding gubernatorial election, which petition
shall be filed with the county commission within sixty days after
the last date of publication of the notice provided in thissection, the county commission shall, upon verification of the
required number of signatures on the petition, and not less than
fifty-six days before the election, order a referendum be placed
upon the ballot. Any referendum conducted pursuant to this
section shall be held at the next primary, general or other
countywide election.
(1) Such referendum is to determine whether it is the will
of the voters of the county that the Class A facility applicant
be permitted to increase the maximum tonnage allowed to be
handled at the facility not to exceed thirty thousand tons per
month. Any election at which such question is voted upon shall
be held at the voting precincts established for holding primary
or general elections. All of the provisions of the general
election laws, when not in conflict with the provisions of this
article, apply to voting and elections hereunder, insofar as
practicable. The secretary of state shall prescribe the form of
the petition which shall include the printed name, address and
date of birth of each person whose signature appears on the
petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall the ______________ solid waste facility located
within ___________ County, West Virginia, be allowed to handle a
maximum of ___________ solid waste per month?
//For the increase in maximum allowable tonnage
//Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
is against allowing the Class A facility to increase the maximum
tonnage of solid waste allowed to be handled per month at the
facility, then the division of environmental protection shall not
proceed to modify the Class A facility permit to increase the
maximum allowable tonnage. If a majority of the legal votes cast
upon the question is for allowing the Class A facility to
increase the maximum tonnage of solid waste allowed to be handled
per month at such facility, then the application process as set
forth in this article and article fifteen, chapter twenty-two of
this code may proceed:
Provided, That such vote is not binding
on nor does it require the county or regional solid waste
authority or the division of environmental protection to approve
an application to modify the permit. If the majority of the
legal votes cast is against the question, that does not prevent
the question from again being submitted to a vote at any
subsequent election in the manner provided for in this section:
Provided, however, That an applicant may not resubmit the
question for a vote prior to a period of two years from the date
of the previous referendum herein described.
§22C-4-29. Judicial review of certificate of site approval.
(a) Any party aggrieved by a decision of the county or
regional solid waste authority or county commission granting or
denying a certificate of site approval may obtain judicial review
thereof in the same manner provided in section four, articlefive, chapter twenty-nine-a of this code, which provisions shall
govern such review with like effect as if the provisions of said
section were set forth in extenso in this section, except that
the petition shall be filed, within the time specified in said
section, in the circuit court of Kanawha county.
(b) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section, the petition
seeking such review must be filed with the supreme court of
appeals within ninety days from the date of entry of the judgment
of the circuit court.
§22C-4-30. Solid waste assessment interim fee; regulated motor
carriers; dedication of proceeds; criminal penalties.
(a)
Imposition. -- Effective the first day of July, one
thousand nine hundred eighty-nine, a solid waste assessment fee
is hereby levied and imposed upon the disposal of solid waste at
any solid waste disposal facility in this state to be collected
at the rate of one dollar per ton or part thereof of solid waste.
The fee imposed by this section is in addition to all other fees
levied by law.
(b)
Collection, return, payment and record. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected bythe operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator is required to file returns
on forms and in the manner as prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice remains in effect until a notice ofcancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of the
solid waste facility are jointly and severally responsible and
liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section and section twenty-two, article five, chapter seven ofthis code is a necessary and reasonable cost for motor carriers
of solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definition of solid waste disposal facility. -- For
purposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump in
this state and includes a transfer station when the solid waste
collected at the transfer station is not finally disposed of at
a solid waste facility within this state that collects the fee
imposed by this section. Nothing herein authorizes in any way
the creation or operation of or contribution to an open dump.
(e)
Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if it is used exclusively to dispose of
waste originally produced by such person in such person's regular
business or personal activities or by persons utilizing thefacility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
environmental protection as exempt from the fee imposed pursuant
to section eleven, article fifteen, chapter twenty-two of this
code; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of environmental protection of solid
waste authority, upon request.
(f)
Procedure and administration. -- Notwithstanding
section three, article ten, chapter eleven of this code, each and
every provision of the "West Virginia Tax Procedure and
Administration Act" set forth in article ten, chapter eleven of
this code applies to the fee imposed by this section with like
effect as if said act were applicable only to the fee imposed by
this section and were set forth in extenso herein.
(g)
Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to thefee imposed by this section with like effect as if said sections
were the only fee imposed by this section and were set forth in
extenso herein.
(h)
Dedication of proceeds. -- The net proceeds of the fee
collected by the tax commissioner pursuant to this section shall
be deposited, at least monthly, in a special revenue account
known as the "Solid Waste Planning Fund" which is hereby
continued. The solid waste management board shall allocate the
proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be divided
equally among, and paid over to, each county solid waste
authority to be expended for the purposes of this article:
Provided, That where a regional solid waste authority exists,
such funds shall be paid over to the regional solid waste
authority to be expended for the purposes of this article in an
amount equal to the total share of all counties within the
jurisdiction of said regional solid waste authority; and
(2) Fifty percent of the total proceeds shall be expended by
the solid waste management board for:
(A) Grants to the county or regional solid waste authorities
for the purposes of this article; and
(B) Administration, technical assistance or other costs of
the solid waste management board necessary to implement the
purposes of this article and article three of this chapter.
(i)
Effective date. -- This section is effective on the
first day of July, one thousand nine hundred ninety.
ARTICLE 5. COMMERCIAL HAZARDOUS WASTE MANAGEMENT FACILITY SITING
BOARD.
§22C-5-1. Short title.
This article may be known and cited as the "Commercial
Hazardous Waste Management Facility Siting Act".
§22C-5-2. Purpose and legislative findings.
(a) The purpose of this article is to establish a state
commercial hazardous waste management facility siting board and
to establish the procedure for which approval certificates are
granted or denied for commercial hazardous waste management
facilities.
(b) The Legislature finds that hazardous waste is generated
throughout the state as a by-product of the materials used and
consumed by individuals, businesses, enterprise and governmental
units in the state, and that the proper management of hazardous
waste is necessary to prevent adverse effects on the environment
and to protect public health and safety. The Legislature further
finds that:
(1) The availability of suitable facilities for the
treatment, storage and disposal of hazardous waste is necessary
to protect the environment resources and preserve the economic
strength of this state and to fulfill the diverse needs of its
citizens;
(2) Whenever a site is proposed for the treatment, storage
or disposal of hazardous waste, the nearby residents and the
affected county and municipalities may have a variety ofreasonable concerns regarding the location, design, construction,
operation, closing and long-term care of facilities to be located
at the site, the effect of the facility upon their community's
economic development and environmental quality and the
incorporation of such concerns into the siting process;
(3) Local authorities have the responsibility for promoting
public health, safety, convenience and general welfare,
encouraging planned and orderly land use development, recognizing
the needs of industry and business, including solid waste
disposal and the treatment, storage and disposal of hazardous
waste and that reasonable concerns of local authorities should be
considered in the siting of commercial hazardous waste management
facilities; and
(4) New procedures are needed to resolve many of the
conflicts which arise during the process of siting commercial
hazardous waste management facilities.
§22C-5-3. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Board" means the commercial hazardous waste management
facility siting board established pursuant to section four of
this article;
(b) "Commercial hazardous waste management facility" means
any hazardous waste treatment, storage or disposal facility which
accepts hazardous waste, as identified or listed by the director
of the division of environmental protection under articleeighteen, chapter twenty-two of this code, generated by sources
other than the owner or operator of the facility and does not
include an approved hazardous waste facility owned and operated
by a person for the sole purpose of disposing of hazardous wastes
created by that person or such person and other persons on a
cost-sharing or nonprofit basis;
(c) "Hazardous waste management facility" means any facility
including land and structures, appurtenances, improvements and
equipment used for the treatment, storage or disposal of
hazardous wastes, which accepts hazardous waste for storage,
treatment or disposal. For the purposes of this article, it does
not include: (i) Facilities for the treatment, storage or
disposal of hazardous wastes used principally as fuels in an on-
site production process; or (ii) facilities used exclusively for
the pretreatment of wastes discharged directly to a publicly
owned sewage treatment works. A facility may consist of one or
more treatment, storage or disposal operational units.
§22C-5-4. Establishment of commercial hazardous waste management
facility siting board; composition; appointment;
compensation; powers; rules; and procedures.
(a) The commercial hazardous waste management facility
siting board is continued. It consists of nine members including
the director of the division of environmental protection and the
chief of the office of air quality of the division of
environmental protection who are nonvoting members ex officio,
two ad hoc members appointed by the county commission of thecounty in which the facility is or is proposed to be located who
are residents of said county, and five other permanent members to
be appointed by the governor with the advice and consent of the
Senate, two of whom are representative of industries engaged in
business in this state and three of whom are representative of
the public at large. No two or more of the five permanent voting
members of the board appointed by the governor shall be from the
same county. Upon initial appointment one of said other five
members shall be appointed for five years, one for four years,
one for three years, one for two years and one for one year.
Thereafter, said permanent members shall be appointed for terms
of five years each. Vacancies occurring other than by expiration
of a term shall be filled by the governor in the same manner as
the original appointment for the unexpired portion of the term.
The term of the ad hoc members continues until a final
determination has been made in the particular proceeding for
which they are appointed. Four of the voting members on the
board constitute a quorum for the transaction of any business,
and the decision of four voting members of the board is action of
the board. No person is eligible to be an appointee of the
governor to the board who has any direct personal financial
interest in any commercial hazardous waste management enterprise.
The five permanent voting members of the board shall annually
elect from among themselves a chair no later than the thirty-
first day of July of each calendar year. The board shall meet
upon the call of the chair or upon the written request of atleast three of the voting members of the board.
(b) Each member of the board, other than the two members ex
officio, shall be paid, out of funds appropriated for such
purpose as compensation for his or her services on the board, the
sum of seventy-five dollars for each day or substantial portion
thereof that he or she is actually engaged in their duties
pursuant to this article. In addition, each member, including
members ex officio, shall be reimbursed, out of moneys
appropriated for such purpose, all reasonable sums which he or
she necessarily expends in the discharge of duties as a member of
the board. The division of environmental protection shall make
available to the board such professional and support staff and
services as may be necessary in order to support the board in
carrying out its responsibilities within the limit of funds
available for this purpose. The office of the attorney general
shall provide legal advice and representation to the board as
requested, within the limit of funds available for this purpose,
or the board, with the written approval of the attorney general,
may employ counsel to represent it.
(c) After the eighth day of April, one thousand nine hundred
eighty-nine, no person shall construct or commence construction
of a commercial hazardous waste management facility without first
obtaining a certificate of site approval issued by the board in
the manner prescribed herein. For the purpose of this section,
"construct" and "construction" means: (i) With respect to new
facilities, the significant alteration of a site to installpermanent equipment or structures or the installation of
permanent equipment or structures; (ii) with respect to existing
facilities, the alteration or expansion of existing structures or
facilities to include accommodation of hazardous waste, or
expansion of more than fifty percent, the area or capacity of an
existing hazardous waste facility, or any change in design or
process of a hazardous waste facility that will result in a
substantially different type of facility. Construction does not
include preliminary engineering or site surveys, environmental
studies, site acquisition, acquisition of an option to purchase
or activities normally incident thereto.
(d) Upon receiving a written request from the owner or
operator of the facility, the board may allow, without going
through the procedures of this article, any changes in the
facilities which are designed: (1) To prevent a threat to human
health or the environment because of an emergency situation; (2)
to comply with federal or state laws and regulations; or (3) to
result in demonstrably safer or environmentally more acceptable
processes.
(e) An application for certificate of site approval consists
of a copy of all hazardous waste permits, if any, and permit
applications, if any, issued by or filed with any state permit-
issuing authority pursuant to article eighteen, chapter
twenty-two of this code and a detailed written analysis with
supporting documentation of the following factors:
(1) The nature of the probable environmental and economicimpacts, including, but not limited to, specification of the
predictable adverse effects on quality of natural environment,
public health and safety, scenic, historic, cultural and
recreational values, water and air quality, wildlife, property
values, transportation networks, and an evaluation of measures to
mitigate such adverse effects;
(2) The nature of the environmental benefits likely to be
derived from such facility, including the resultant decrease in
reliance upon existing waste disposal facilities which do not
comply with applicable laws and rules, and a reduction in fuel
consumption and vehicle emissions related to long-distance
transportation of hazardous waste; and
(3) The economic benefits likely to be derived from such
facility, including, but not limited to, a reduction in existing
costs for the disposal of hazardous waste, improvement to the
state's ability to retain and attract business and industry due
to predictable and stable waste disposal costs, and any economic
benefits which may accrue to the municipality or county in which
the facility is to be located.
(f) On or before sixty calendar days after the receipt of
such application, the board shall mail written notice to the
applicant as to whether or not such application is complete. If,
or when, the application is complete, the board shall notify the
applicant and the county commission of the county in which the
facility is or is proposed to be located. Said county commission
shall thereupon, within thirty days of receipt of such notice,appoint the two ad hoc members of the board to act upon the
application.
(g) Immediately upon determining that an application is
complete, the board shall, at the applicant's expense, cause a
notice to be published in the state register, which shall be no
later than thirty calendar days after the date of such written
notice of completeness, and shall provide notice to the chief
executive office of each municipality in which the proposed
facility is to be located and to the county commission of the
county in which the facility is proposed to be located, and shall
direct the applicant to provide reasonable notice to the public
which shall, at a minimum, include publication as a Class I-O
legal advertisement in at least two newspapers having general
circulation in the vicinity in which the proposed facility is to
be located identifying the proposed location, type of facility
and activities involved, the name of the permittee, and the date,
time and place at which the board will convene a public hearing
with regard to the application. The date of the hearing shall be
set by the board and shall commence within sixty days of the date
of notice of completeness of an application.
(h) The board shall conduct a public hearing upon the
application in the county in which the facility is to be located
and shall keep an accurate record of such proceedings by
stenographic notes and characters or by mechanical or electronic
means. Such proceedings shall be transcribed at the applicant's
expense. The board may accept both written and oral comments onthe application.
(i) The commercial hazardous waste management facility
siting board may request further information of the applicant and
shall render a decision based upon the application and the
record, either, requesting further information, granting a
certificate of site approval, denying it, or granting it upon
such terms, conditions and limitations as the board deems
appropriate. The board shall base its decision upon the factors
set forth in subsection (e). The written decision of the board
containing its findings and conclusions shall be mailed by
certified mail to the applicant and to any requesting person on
or before sixty calendar days after receipt by the board of a
complete record of the hearing.
(j) The board may exercise all powers necessary or
appropriate to carry out the purposes and duties provided in this
article, including the power to promulgate rules in compliance
with chapter twenty-nine-a of this code.
§22C-5-5. Effect of certification.
A grant of an approval certificate shall supersede any local
ordinance or regulation that is inconsistent with the terms of
the approval certificate. Nothing in this chapter affects the
authority of the host community to enforce its regulations and
ordinances to the extent that they are not inconsistent with the
terms and conditions of the approval certificate. Grant of an
approval certificate does not preclude or excuse the applicant
from the requirement to obtain approval or permits under thischapter or other state or federal laws.
§22C-5-6. Commercial hazardous waste management facility siting
fund; fees.
(a) There is hereby continued in the state treasury a
special revenue fund entitled the "commercial hazardous waste
management facility siting fund" which may be expended by the
director of the division of environmental protection for the
following:
(1) The necessary expenses of the board which may include
expenses and compensation for each member of the board as
authorized by this article.
(2) Administration, professional and support services
provided by the division to the board.
(3) Legal counsel and representation provided by the
attorney general to the board for the purposes of this article.
(b) The director of the division of environmental protection
shall promulgate rules , pursuant to section one, article one,
chapter twenty-nine-a of this code, establishing reasonable fees
to be charged each applicant for a certificate of site approval.
Such fees shall be calculated to recover the reasonable and
necessary expenses of the board, division of environmental
protection and attorney general which such agencies incur as
pursuant to this article.
§22C-5-7. Judicial review.
(a) Any person having an interest adversely affected by a
final decision made and entered by the board is entitled tojudicial review thereof in the circuit court of Kanawha county,
or the circuit court of the county in which the facility is, or
is proposed to be, situated, such appeal to be perfected by the
filing of a petition with the court within sixty days of the date
of receipt by the applicant of the board's written decision.
(b) The review shall be conducted by the court without a
jury and shall be upon the record made before the board except
that in cases of alleged irregularities in procedure before the
board not shown in the record, testimony thereon may be taken
before the court. The court may hear oral arguments and require
written briefs.
The court may affirm the order or decision of the board or
remand the case for further proceedings. It may reverse, vacate
or modify the order or decision of the board if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions,
decision or order are:
(1) In violation of constitutional or statutory provisions;
or
(2) In excess of the statutory authority or jurisdiction of
the board; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse ofdiscretion or clearly unwarranted exercise of discretion.
(c) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. The petition seeking such review must be filed with
said supreme court of appeals within ninety days from the date of
entry of the judgment of the circuit court.
(d) Legal counsel and services for the board in all appeal
proceedings shall be provided by the attorney general.
§22C-5-8. Remedies.
(a) Any person who violates this section shall be compelled
by injunction, in a proceeding instituted in the circuit court or
the locality where the facility or proposed facility is to be
located, to cease the violation.
(b) Such an action may be instituted by the board, director
of the division of environmental protection, political
subdivision in which the violation occurs, or any other person
aggrieved by such violation. In any such action, it is not
necessary for the plaintiff to plead or prove irreparable harm or
lack of an adequate remedy at law. No person shall be required
to post any injunction bond or other security under this section.
(c) No action may be brought under this section after an
approval certificate has been issued by the board,
notwithstanding the pendency of any appeals or other challenges
to the board's action.
(d) In any action under this section, the court may award
reasonable costs of litigation, including attorney and expertwitness fees, to any party if the party substantially prevails on
the merits of the case and if in the determination of the court
the party against whom the costs are requested has acted in bad
faith.
ARTICLE 6. HAZARDOUS WASTE FACILITY SITING APPROVAL.
§22C-6-1. Legislative purpose.
The purpose of this article is to provide the opportunity
for public participation in the decision to locate commercial
hazardous waste management facilities and to locate any hazardous
waste management facility which disposes of greater than ten
thousand tons of hazardous waste per annum in West Virginia.
§22C-6-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Board" means the commercial hazardous waste management
facility siting board established pursuant to section three,
article five of this chapter;
(b) "Commercial hazardous waste management facility" means
any hazardous waste treatment, storage or disposal facility which
accepts hazardous waste, as identified or listed by the director
of the division of environmental protection under article
eighteen, chapter twenty-two of this code, generated by sources
other than the owner or operator of the facility and does not
include an approved hazardous waste facility owned and operated
by a person for the sole purpose of disposing of hazardous wastes
created by that person or such person and other persons on acost-sharing or nonprofit basis;
(c) "Hazardous waste management facility" means any facility
including land and structures, appurtenances, improvements and
equipment used for the treatment, storage or disposal of
hazardous wastes, which accepts hazardous waste for storage,
treatment or disposal. For the purposes of this article, it does
not include: (i) Facilities for the treatment, storage or
disposal of hazardous wastes used principally as fuels in an on-
site production process; or (ii) facilities used exclusively for
the pretreatment of wastes discharged directly to a publicly
owned sewage treatment works. A facility may consist of one or
more treatment, storage or disposal operational units.
(d) "On site" means the location for disposal of hazardous
waste including the hazardous waste generated at the location of
disposal or generated at some location other than the location of
disposal.
§22C-6-3. Procedure for public participation.
(a) From and after the fifth day of June, one thousand nine
hundred ninety-two, in order to obtain approval to locate either
a commercial hazardous waste management facility or a hazardous
waste management facility which disposes of greater than ten
thousand tons per annum on site in this state, an applicant
shall:
(1) File a pre-siting notice with the county or counties in
which the facility is to be located or proposed. Such notice
shall be submitted on forms prescribed by the commercialhazardous waste management facility siting board;
(2) File a pre-siting notice with the commercial hazardous
waste management facility siting board; and
(3) File a pre-siting notice with the division of
environmental protection.
(b) If a pre-siting notice is filed in accordance with
subsection (a) of this section, the county commission shall
publish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in
a newspaper of general circulation in the counties wherein the
hazardous waste management facility is to be located. Upon an
affirmative vote of the majority of the county commissioners or
upon the written petition of registered voters residing in the
county equal to not less than fifteen percent of the number of
votes cast within the county for governor at the preceding
gubernatorial election, which petition shall be filed with the
county commission within sixty days after the last date of
publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the
ballot:
Provided, That such a referendum is not required for a
hazardous waste management facility for which at least ninety
percent of the capacity is designated for hazardous waste
generated at the site of disposal. Any referendum conducted
pursuant to this section shall be held at the next primary,general or other countywide election.
(1) Such referendum is to determine whether it is the will
of the voters of the county that a commercial hazardous waste
management facility be located in the county or that a hazardous
waste management facility disposing of greater than ten thousand
tons of hazardous waste per annum on site be located in the
county. Any election at which such question of locating a
hazardous waste management facility is voted upon shall be held
at the voting precincts established for holding primary or
general elections. All of the provisions of the general election
laws, when not in conflict with the provisions of this article,
apply to voting and elections hereunder, insofar as practicable.
The secretary of state shall prescribe the form of the petition
which shall include the printed name, address and date of birth
of each person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following
depending upon the type of facility to be located with the
county:
"Shall a commercial hazardous waste management facility be
located within _________________ County, West Virginia?
//For the facility
//Against the facility
(Place a cross mark in the square opposite your choice.)"
or,
"Shall a hazardous waste management facility disposing ofgreater than ten thousand tons per annum on site be located
within ________________ County, West Virginia?
//For the facility
//Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
is against the facility, then the county commission shall notify
the division of environmental protection and the commercial
hazardous waste management facility siting board, in the case of
a commercial facility, of the result and the commercial hazardous
waste management facility siting board or division of
environmental protection, as the case may be, shall not proceed
any further with the application. If a majority of the legal
votes cast upon the question is for the facility, then the
application process as set forth in article eighteen, chapter
twenty-two of this code and article five of this chapter, in the
case of a commercial hazardous waste management facility, may
proceed:
Provided, That such vote is not binding on nor does it
require the commercial hazardous waste management facility siting
board to grant a certificate of site approval or the division of
environmental protection to issue the permit, as the case may be.
If the majority of the legal votes cast is against the question,
the question may be submitted to a vote at any subsequent
election in the manner herein specified:
Provided, however, That
the question may not be resubmitted to a vote until two years
after the date of the previous referendum.
ARTICLE 7. OIL AND GAS INSPECTORS' EXAMINING BOARD.
§22C-7-1. Oil and gas inspector; supervising inspectors; tenure;
oath and bond.
Notwithstanding any other provisions of law, oil and gas
inspectors shall be selected, serve and be removed as in this
article provided.
The director of the division of environmental protection
shall divide the state so as to equalize, as far as practical,
the work of each oil and gas inspector. The director may
designate a supervising inspector and other inspectors as may be
necessary, and may designate their places of abode, at points
convenient to the accomplishment of their work.
The director of the division of environmental protection
shall make each appointment from among the three qualified
eligible candidates on the register having the highest grades.
The director of the division of environmental protection or the
director's designee may, for good cause, at least thirty days
prior to making an appointment, strike any name from the
register. Upon striking any name from the register, the director
or the director's designee, as the case may be, shall immediately
notify in writing each member of the oil and gas inspectors'
examining board of such action, together with a detailed
statement of the reasons therefor. Thereafter, the oil and gas
inspectors' examining board, after hearing, if it finds that the
action of striking such name was arbitrary or unreasonable, may
order the name of any candidate so stricken from the register tobe reinstated thereon. Such reinstatement shall be effective
from the date of removal from the register.
Any candidate passed over for appointment for three years
shall be automatically stricken from the register.
After having served for a probationary period of one year to
the satisfaction of the director for the division of
environmental protection, an oil and gas inspector or supervising
inspector shall have permanent tenure until such inspector
becomes seventy years of age, subject only to dismissal for cause
in accordance with the provisions of section two of this article.
No oil and gas inspector or supervising inspector while in office
shall be directly or indirectly interested as owner, lessor,
operator, stockholder, superintendent or engineer of any oil or
gas drilling or producing venture or of any coal mine in this
state. Before entering upon the discharge of such duties as an
oil and gas inspector or supervising inspector, each inspector
shall take the oath of office prescribed by section five, article
IV of the constitution of West Virginia, and shall execute a bond
in the penalty of two thousand dollars, with security to be
approved by the director of the division of environmental
protection, conditioned upon the faithful discharge of the
inspector's duties, a certificate of which oath and bond shall be
filed in the office of the secretary of state.
The supervising inspector and oil and gas inspectors shall
perform such duties as are imposed upon them by this chapter or
chapter twenty-two of this code, and related duties assigned bythe director of the division of environmental protection.
§22C-7-2. Oil and gas inspectors; eligibility for appointment;
qualifications; salary; expenses; removal.
(a) No person is eligible for appointment as an oil and gas
inspector or supervising inspector unless, at the time of his
probationary appointment, such person: (1) Is a citizen of West
Virginia, in good health, and of good character, reputation and
temperate habits; (2) has had at least six years' actual relevant
experience in the oil and gas industry:
Provided, That not
exceeding three years of such experience shall be satisfied by
any combination of: (i) A bachelor of science degree in science
or engineering which shall be considered the equivalent of three
years' actual relevant experience in the oil and gas industry;
(ii) an associate degree in petroleum technology which shall be
considered the equivalent of two years' actual relevant
experience in the oil and gas industry; and (iii) actual relevant
environmental experience including, without limitation,
experience in wastewater, solid waste or reclamation each full
year of which shall be considered as a year of actual relevant
experience in the oil and gas industry; and (3) has good
theoretical and practical knowledge of oil and gas drilling and
production methods, practices and techniques, sound safety
practices and applicable mining laws.
(b) In order to qualify for appointment as an oil and gas
inspector or supervising inspector, an eligible applicant shall
submit to a written and oral examination by the oil and gasinspectors' examining board and shall furnish such evidence of
good health, character and other facts establishing eligibility
as such board may require. If such board finds after
investigation and examination that an applicant: (1) Is
eligible for appointment; and (2) has passed all written and oral
examinations, the board shall add such applicant's name and grade
to the register of qualified eligible candidates and certify its
action to the director of the division of environmental
protection. No candidate's name may remain on the register for
more than three years without requalifying.
(c) The salary of the supervising inspector shall be not
less than twenty-seven thousand five hundred dollars per annum.
Salaries of inspectors shall be not less than twenty-two thousand
dollars per annum. The supervising inspector and inspectors are
entitled to mileage expense reimbursement at the rate established
for in-state travel of public employees, in the governor's travel
rules, as administered by the department of administration.
Within the limits provided by law, the salary of each inspector
and of the supervising inspector shall be fixed by said director
and the oil and gas inspectors' examining board. In fixing
salaries of the oil and gas inspectors and of the supervising
inspector, said director shall consider ability, performance of
duty and experience. No reimbursement for traveling expenses may
be made except upon an itemized account of such expenses
submitted by the inspector or supervising inspector, as the case
may be, who shall verify, upon oath, that such expenses wereactually incurred in the discharge of official duties.
(d) An inspector or the supervising inspector, after having
received a permanent appointment, shall be removed from office
only for physical or mental impairment, incompetency, neglect of
duty, drunkenness, malfeasance in office, or other good cause.
Proceedings for the removal of an oil and gas inspector or
the supervising inspector may be initiated by said director
whenever there are reasonable grounds to believe that adequate
cause exists warranting removal. Such a proceeding shall be
initiated by a verified petition, filed with the oil and gas
inspectors' examining board by said director, setting forth with
particularity the facts alleged. Not less than twenty reputable
citizens engaged in oil and gas drilling and production
operations in the state may petition said director for the
removal of an inspector or the supervising inspector. If such
petition is verified by at least one of the petitioners, based on
actual knowledge of the affiant, and alleges facts which, if
true, warrant the removal of the inspector or supervising
inspector, said director shall cause an investigation of the
facts to be made. If, after such investigation, said director
finds that there is substantial evidence which, if true, warrants
removal of the inspector or supervising inspector, the director
shall file a petition with the oil and gas inspectors' examining
board requesting removal of the inspector or supervising
inspector.
On receipt of a petition by said director seeking removal ofan inspector or the supervising inspector, the oil and gas
inspectors' examining board shall promptly notify the inspector
or supervising inspector, as the case may be, to appear before it
at a time and place designated in said notice, which time shall
be not less than fifteen days nor more than thirty days
thereafter. There shall be attached to the copy of the notice
served upon the inspector or supervising inspector a copy of the
petition filed with such board.
At the time and place designated in said notice, the oil and
gas inspectors' examining board shall hear all evidence offered
in support of the petition and on behalf of the inspector or
supervising inspector. Each witness shall be sworn and a
transcript shall be made of all evidence taken and proceedings
had at any such hearing. No continuance may be granted except
for good cause shown.
The chair of the board, and the director may administer
oaths and subpoena witnesses.
An inspector or supervising inspector who willfully refuses
or fails to appear before such board, or having appeared, refuses
to answer under oath any relevant question on the ground that the
inspector's testimony or answer might incriminate such inspector,
or refuses to accept a grant of immunity from prosecution on
account of any relevant matter about which the inspector may be
asked to testify at such hearing before such board, forfeits the
inspector's position.
If, after hearing, the oil and gas inspectors' examiningboard finds that the inspector or supervising inspector should be
removed, it shall enter an order to that effect. The decision of
the board shall be final and shall not be subject to judicial
review.
§22C-7-3. Oil and gas inspectors' examining board; composition;
appointment, term and compensation of members; meetings;
powers and duties generally; continuation following audit.
(a) There is hereby continued an oil and gas inspectors'
examining board consisting of five members two of whom shall be
ex officio members and three of whom shall be appointed by the
governor, by and with the advice and consent of the Senate.
Appointed members may be removed only for the same causes and
like manner as elective state officers. One member of the board
who shall be the representative of the public at large and shall
be a person who is knowledgeable about the subject matter of this
article and has no direct or indirect financial interest in oil
and gas production other than the receipt of royalty payments
which do not exceed a five year average of six hundred dollars
per year; one member shall be a person who by reason of previous
training and experience may reasonably be said to represent the
viewpoint of independent oil and gas operators; and one member
shall be a person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
major oil and gas producers. The chief of the office of oil and
gas of the division of environmental protection and the chief of
the office of water resources of the division of environmentalprotection or his or her designee shall be ex officio members.
The director of the division of environmental protection
shall serve as secretary of the board without additional
compensation.
The appointed members of the board shall be appointed for
overlapping terms of six years, except that the original
appointments shall be for terms of two, four and six years,
respectively. Any member whose term expires may be reappointed
by the governor.
Each member of the board, other than ex officio members,
shall receive seventy-five dollars per diem while actually
engaged in the performance of the work of the board, and shall
receive mileage at the rate of not more than fifteen cents for
each mile actually traveled going from the home of the member to
the place of the meeting of the board and returning therefrom,
which shall be paid out of the state treasury upon a requisition
upon the state auditor, properly certified by such members of the
board.
The chief of the office of oil and gas of the division shall
serve as chair of the board.
Members of the board, before performing any duty, shall take
a?nd subscribe to the oath required by section five, article IV
of the constitution of West Virginia.
The board shall meet at such times and places as shall be
designated by the chair. It shall be the duty of the chair to
call a meeting of the board on the written request of twomembers. Notice of each meeting shall be given in writing to
each member by the secretary at least five days in advance of the
meeting. A majority of members shall constitute a quorum for the
transaction of business.
(b) In addition to other powers and duties expressly set
forth elsewhere in this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as an oil and gas inspector and
supervising inspector and forms for written examinations to test
the qualifications of candidates, with such distinctions, if any,
in the forms for oil and gas inspector and supervising inspector
as the board may from time to time deem necessary or advisable;
(2) Adopt and promulgate reasonable rules relating to the
examination, qualification and certification of candidates for
appointment, and relating to hearings for removal of inspectors
or the supervising inspector, required to be held by this
article. All of such rules shall be printed and a copy thereof
furnished by the secretary of the board to any person upon
request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment. By
unanimous agreement of all members of the board, one or more
members of the board or an employee of the division of
environmental protection may be designated to give to a candidate
the written portion of the examination;
(4) Prepare and certify to the director of the division ofenvironmental protection a register of qualified eligible
candidates for appointment as oil and gas inspectors or as
supervising inspectors, with such differentiation, if any,
between the certification of candidates for oil and gas
inspectors and for supervising inspectors as the board may from
time to time deem necessary or advisable. The register shall
list all qualified eligible candidates in the order of their
grades, the candidate with the highest grade appearing at the top
of the list. After each meeting of the board held to examine
such candidates and at least annually, the board shall prepare
and submit to the said director a revised and corrected register
of qualified eligible candidates for appointment, deleting from
such revised register all persons: (a) Who are no longer
residents of West Virginia; (b) who have allowed a calendar year
to expire without, in writing, indicating their continued
availability for such appointment; (c) who have been passed over
for appointment for three years; (d) who have become ineligible
for appointment since the board originally certified that such
persons were qualified and eligible for appointment; or (e) who,
in the judgment of at least three members of the board, should be
removed from the register for good cause;
(5) Cause the secretary of the board to keep and preserve
the written examination papers, manuscripts, grading sheets and
other papers of all applicants for appointment for such period of
time as may be established by the board. Specimens of the
examinations given, together with the correct solution of eachquestion, shall be preserved permanently by the secretary of the
board;
(6) Issue a letter or written notice of qualification to
each successful eligible candidate;
(7) Hear and determine proceedings for the removal of
inspectors or the supervising inspector in accordance with the
provisions of this article;
(8) Hear and determine appeals of inspectors or the
supervising inspector from suspension orders made by said
director pursuant to the provisions of section two, article six,
chapter twenty-two of this code:
Provided, That in order to
appeal from any order of suspension, an aggrieved inspector or
supervising inspector shall file such appeal in writing with the
oil and gas inspectors' examining board not later than ten days
after receipt of the notice of suspension. On such appeal the
board shall affirm the action of said director unless it be
satisfied from a clear preponderance of the evidence that said
director has acted arbitrarily;
(9) Make an annual report to the governor concerning the
administration of oil and gas inspection personnel in the state
service; making such recommendations as the board considers to be
in the public interest; and
(10) Render such advice and assistance to the director of
the division of environmental protection as the director shall
from time to time determine necessary or desirable in the
performance of such duties.
(c) After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that the oil and gas
inspectors' examining board within the division of environmental
protection should be continued and reestablished. Accordingly,
notwithstanding the provisions of section four, article ten,
chapter four of this code, the oil and gas inspectors' examining
board within the division of environmental protection shall
continue to exist until the first day of July, one thousand nine
hundred ninety-three.
ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.
§22C-8-1. Declaration of public policy; legislative findings.
(a) It is hereby declared to be the public policy of this
state and in the public interest to:
(1) Ensure the safe recovery of coal and gas;
(2) Foster, encourage and promote the fullest practical
exploration, development, production, recovery and utilization of
this state's coal and gas, where both are produced from beneath
the same surface lands, by establishing procedures, including
procedures for the establishment of drilling units, for the
location of shallow gas wells without substantially affecting the
right of the gas operator proposing to drill a shallow gas well
to explore for and produce gas; and
(3) Safeguard, protect and enforce the correlative rights of
gas operators and royalty owners in a pool of gas to the end thateach such gas operator and royalty owner may obtain a just and
equitable share of production from such pool of gas.
(b) The Legislature hereby determines and finds that gas
found in West Virginia in shallow sands or strata has been
produced continuously for more than one hundred years; that the
placing of shallow wells has heretofore been regulated by the
state for the purpose of ensuring the safe recovery of coal and
gas, but that regulation should also be directed toward
encouraging the fullest practical recovery of both coal and gas
because modern extraction technologies indicate the desirability
of such change in existing regulation and because the energy
needs of this state and the United States require encouragement
of the fullest practical recovery of both coal and gas; that in
order to encourage and ensure the fullest practical recovery of
coal and gas in this state and to further ensure the safe
recovery of such natural resources, it is in the public interest
to enact new statutory provisions establishing a shallow gas well
review board which shall have the authority to regulate and
determine the appropriate placing of shallow wells when gas well
operators and owners of coal seams fail to agree on the placing
of such wells, and establishing specific considerations,
including minimum distances to be allowed between certain shallow
gas wells, to be utilized by the shallow gas well review board in
regulating the placing of shallow wells; that in order to
encourage and ensure the fullest practical recovery of coal and
gas in this state and to protect and enforce the correlativerights of gas operators and royalty owners of gas resources, it
is in the public interest to enact new statutory provisions
establishing a shallow gas well review board which shall also
have authority to establish drilling units and order the pooling
of interests therein to provide all gas operators and royalty
owners with an opportunity to recover their just and equitable
share of production.
§22C-8-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Board" means the shallow gas well review board provided
for in section four of this article;
(2) "Chair" means the chair of the shallow gas well review
board provided for in section four of this article;
(3) "Coal operator" means any person who proposes to or does
operate a coal mine;
(4) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in
thickness, unless a seam of less thickness is being commercially
worked, or can in the judgment of the division foreseeably be
commercially worked and will require protection if wells are
drilled through it;
(5) "Commission" means the oil and gas conservation
commission provided for in section four, article nine of this
chapter;
(6) "Commissioner" means the oil and gas conservationcommissioner provided for in section four, article nine of this
chapter;
(7) "Correlative rights" means the reasonable opportunity of
each person entitled thereto to recover and receive without waste
the gas in and under a tract or tracts, or the equivalent
thereof;
(8) "Deep well" means any well other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(9) "Division" means the state division of environmental
protection provided for in chapter twenty-two of this code;
(10) "Director" means the director of the division of
environmental protection as established in article one, chapter
twenty-two of this code or such other person as the director
delegates authority or duties to pursuant to section six or
eight, article one, chapter twenty-two of this code;
(11) "Drilling unit" means the acreage on which the board
decides one well may be drilled under section ten of this
article;
(12) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (15) of this
section;
(13) "Gas operator" means any person who owns or has the
right to develop, operate and produce gas from a pool and to
appropriate the gas produced therefrom either for such person or
for such person and others. In the event that there is no gaslease in existence with respect to the tract in question, the
person who owns or has the gas rights therein shall be considered
a "gas operator" to the extent of seven eighths of the gas in
that portion of the pool underlying the tract owned by such
person, and a "royalty owner" to the extent of one eighth of such
gas;
(14) "Just and equitable share of production" means, as to
each person, an amount of gas in the same proportion to the total
gas production from a well as that person's acreage bears to the
total acreage in the drilling unit;
(15) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoir;
(16) "Owner" when used with reference to any coal seam,
shall include any person or persons who own, lease or operate
such coal seam;
(17) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(18) "Plat" means a map, drawing or print showing the
location of one or more wells or a drilling unit;
(19) "Pool" means an underground accumulation of gas in asingle and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a single
natural-pressure system so that production of gas from one part
of the pool tends to or does affect the reservoir pressure
throughout its extent. A pool is bounded by geologic barriers in
all directions, such as geologic structural conditions,
impermeable strata, and water in the formation, so that it is
effectively separated from any other pools which may be present
in the same district or in the same geologic structure;
(20) "Royalty owner" means any owner of gas in place, or gas
rights, to the extent that such owner is not a gas operator as
defined in subdivision (13) of this section;
(21) "Shallow well" means any gas well drilled and completed
in a formation above the top of the uppermost member of the
"Onondaga Group":
Provided, That in drilling a shallow well the
well operator may penetrate into the "Onondaga Group" to a
reasonable depth, not in excess of twenty feet, in order to allow
for logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(22) "Tracts comprising a drilling unit" means that all
separately owned tracts or portions thereof which are included
within the boundary of a drilling unit;
(23) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction,
injection or placement of any liquid or gas, or any shaft or holesunk or used in conjunction with such extraction, injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose
of core drilling or pumping or extracting therefrom potable,
fresh or usable water for household, domestic, industrial,
agricultural or public use; and
(24) "Well operator" means any person who proposes to or
does locate, drill, operate or abandon any well.
§22C-8-3. Application of article; exclusions.
(a) Except as provided in subsection (b) of this section,
the provisions of this article shall apply to all lands located
in this state, under which a coal seam as defined in section two
of this article and section one, article six, chapter twenty-two
of this code, is located, however owned, including any lands
owned or administered by any government or any agency or
subdivision thereof, over which the state has jurisdiction under
its police power. The provisions of this article are in addition
to and not in derogation of or substitution for the provisions of
this chapter or chapter twenty-two of this code.
(b) This article shall not apply to or affect:
(1) Deep wells;
(2) Oil wells and enhanced oil recovery wells associated
with oil wells;
(3) Any shallow well as to which no objection is made under
section seventeen, article six, chapter twenty-two of this code;
(4) Wells as defined in subdivision (4), section one,article nine, chapter twenty-two of this code; or
(5) Free gas rights.
§22C-8-4. Shallow gas well review board; membership; method of
appointment; vacancies; compensation and expenses; staff.
(a) There is hereby continued the "Shallow Gas Well Review
Board" which shall be composed of three members, two of whom
shall be the commissioner and the chief of the office of oil and
gas. The remaining member of the board shall be a registered
professional engineer who has been successfully tested in mining
engineering, with at least ten years practical experience in the
coal mining industry and shall be appointed by the governor, by
and with the advice and consent of the Senate:
Provided, That
any person so appointed while the Senate of this state is not in
session shall be permitted to serve in an acting capacity for one
year from appointment or until the next session of the
Legislature, whichever is less. As soon as practical after
appointment and qualification of the member appointed by the
governor, the governor shall convene a meeting of the board for
the purpose of organizing and electing a chair, who serves as
such until a successor is elected by the board.
(b) A vacancy in the membership appointed by the governor
shall be filled by appointment by the governor within sixty days
after the occurrence of such vacancy. Before performing any duty
hereunder, each member of the board shall take and subscribe to
the oath required by section five, article IV of the constitution
of West Virginia, and serves thereafter until a successor hasbeen appointed and qualified.
(c) The member of the board appointed by the governor shall
receive not less than seventy-five dollars per diem while
actually engaged in the performance of such duties as a member of
the board. Each member of the board shall also be reimbursed for
all reasonable and necessary expenses actually incurred in the
performance of the duties as a member of the board.
(d) The division shall furnish office and clerical staff and
supplies and services, including reporters for hearings, as
required by the board.
§22C-8-5. Same -- Meetings; notice; general powers and duties.
(a) The board shall meet and hold conferences and hearings
at such times and places as shall be designated by the chair.
The chair may call a meeting of the board at any time. The chair
shall call a meeting of the board: (1) Upon receipt of a notice
from the director that an objection to the proposed drilling or
deepening of a shallow well has been filed by a coal seam owner
pursuant to section seventeen, article six of chapter twenty-two
of this code or that an objection has been made by the director;
(2) upon receipt of an application to establish a drilling unit
filed with the board pursuant to section nine of this article; or
(3) within twenty days upon the written request by another member
of the board. Meetings called pursuant to subdivisions (1) and
(2) of this subsection shall be scheduled not less than ten days
nor more than twenty days from receipt by the chair of the notice
of objection or the application to establish a drilling unit. Notice of all meetings shall be given to each member of the board
by the chair at least ten days in advance thereof, unless
otherwise agreed by the members.
(b) At least ten days prior to every meeting of the board
called pursuant to the provisions of subdivisions (1) and (2),
subsection (a) of this section, the chair shall also notify: (1)
In the case of a notice of objection, the well operator and all
objecting coal seam owners; and (2) in the case of an application
to establish a drilling unit, the applicant, all persons to whom
copies of the application were required to be mailed pursuant to
the provisions of subsection (d), section nine of this article
and all persons who filed written protests or objections with the
board in accordance with the provisions of subsection (c),
section nine of this article.
(c) A majority of the members of the board shall constitute
a quorum for the transaction of any business. A majority of the
members of the board shall be required to determine any issue
brought before it.
(d) The board is hereby empowered and it shall be its duty
to execute and carry out, administer and enforce the provisions
of this article in the manner provided herein. Subject to the
provisions of section three of this article, the board shall have
jurisdiction and authority over all persons and property
necessary therefor:
Provided, That the provisions of this
article shall not be construed to grant to the board authority or
power to: (1) Limit production or output from or prorateproduction of any gas well; or (2) fix prices of gas.
(e) The board shall have specific authority to:
(1) Take evidence and issue orders concerning applications
for drilling permits and drilling units in accordance with the
provisions of this article;
(2) Promulgate, pursuant to the provisions of chapter
twenty-nine-a of this code, and enforce reasonable rules
necessary to govern the practice and procedure before the board;
(3) Make such relevant investigations of records and
facilities as it deems proper; and
(4) Issue subpoenas for the attendance of and sworn
testimony by witnesses and subpoenas duces tecum for the
production of any books, records, maps, charts, diagrams and
other pertinent documents, and administer oaths and affirmations
to such witnesses, whenever, in the judgment of the board, it is
necessary to do so for the effective discharge of its duties
under the provisions of this article.
§22C-8-6. Rules; notice requirements.
(a) The board may promulgate, pursuant to the provisions of
chapter twenty-nine-a of this code, such reasonable rules as are
deemed necessary or desirable to implement and make effective the
provisions of this article.
(b) Notwithstanding the provisions of section two, article
seven, chapter twenty-nine-a of this code, any notice required
under the provisions of this article shall be given at the
direction of the chair by: (1) Personal or substituted service;and if such cannot be had then by (2) certified United States
mail, addressed, postage and certification fee prepaid, to the
last known mailing address, if any, of the person being served,
with the direction that the same be delivered to addressee only,
return receipt requested, and if there be no known mailing
address; or if the notice is not so delivered then by (3)
publication of such notice as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-
nine of this code, and the publication area for such publication
shall be the county or counties wherein any land which may be
affected by the order of the board is situate. The chair shall
also mail a copy of such notice to all other persons who have
specified to the chair an address to which all such notices may
be mailed. All notices shall issue in the name of the state,
shall be signed by the chair, shall specify the style and number
of the proceeding, the date, time and place of any meeting,
conference or hearing, and shall briefly state the purpose of the
proceeding. Proof of service or publication of such notice shall
be made to the board promptly and in any event within the time
during which the person served must respond to the notice. If
service is made by a person other than the sheriff or the chair,
such person shall make proof thereof by affidavit. Failure to
make proof of service or publication within the time required
shall not affect the validity of the service of the notice.
§22C-8-7. Objections to proposed drilling; conferences; agreed
locations and changes on plats; hearings; orders.
(a) At the time and place fixed by the chair for the meeting
of the board and for consideration of the objections to proposed
drilling filed by coal seam owners pursuant to section seventeen,
article six, chapter twenty-two of this code, the well operator
and the objecting coal seam owners present or represented shall
hold a conference with the board to consider the objections.
Such persons present or represented at the conference may agree
upon either the drilling location as proposed by the well
operator or an alternate location. Any change in the drilling
location from the drilling location proposed by the well operator
shall be indicated on the plat enclosed with the notice of
objection filed with the chair by the director in accordance with
the provisions of section seventeen, article six, chapter
twenty-two of this code, and the distance and direction to the
new drilling location from the proposed drilling location shall
also be shown on such plat. If agreement is reached at the
conference by the well operator and such objecting coal seam
owners present or represented at the conference, the board shall
issue a written order stating that an agreement has been reached,
stating the nature of such agreement, and directing the director
to grant the well operator a drilling permit for the location
agreed upon. The original of such order shall be filed with the
division within five days after the conference of the board at
which the drilling location was agreed upon and copies thereof
shall be mailed by registered or certified mail to the well
operator and the objecting coal seam owners present orrepresented at such conference.
(b) If the well operator and the objecting coal seam owners
present or represented at the conference with the board are
unable to agree upon a drilling location, then, unless they
otherwise agree, the board shall, without recess for more than
one business day, hold a hearing to consider the application for
a drilling permit. All of the pertinent provisions of article
five, chapter twenty-nine-a of this code shall apply to and
govern such hearing. Within twenty days after the close of a
hearing, the board shall issue and file with the director a
written order directing him or her, subject to other matters
requiring approval of the director, to:
(1) Refuse a drilling permit; or
(2) Issue a drilling permit for the proposed drilling
location; or
(3) Issue a drilling permit for an alternate drilling
location different from that requested by the well operator; or
(4) Issue a drilling permit either for the proposed drilling
location or for an alternate drilling location different from
that requested by the well operator, but not allow the drilling
of the well for a period of not more than one year from the date
of issuance of such permit.
(c) The written order of the board shall contain findings of
fact and conclusions based thereon concerning the following
safety aspects, and no drilling permit shall be issued for any
drilling location where the board finds from the evidence thatsuch drilling location will be unsafe:
(1) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, travelway, airway,
haulageway, drainageway or passageway, or to any proposed
extension thereof, in any operated or abandoned or operating coal
mine, or any coal mine already surveyed and platted but not yet
being operated;
(2) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(3) Whether the proposed well can be drilled safely, taking
into consideration the dangers from creeps, squeezes or other
disturbances due to the extraction of coal; and
(4) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal and gas.
The written order of the board shall also contain findings
of fact and conclusions based thereon concerning the following:
(5) The extent to which the proposed drilling location will
unreasonably interfere with present or future coal mining
operations on the surface including, but not limited to,
operations subject to the provisions of article three, chapter
twenty-two of this code;
(6) The feasibility of moving the proposed drilling location
to a mined-out area, below the coal outcrop, or to some other
location;
(7) The feasibility of a drilling moratorium for not more
than one year in order to permit the completion of imminent coal
mining operations;
(8) The methods proposed for the recovery of coal and gas;
(9) The distance limitations established in section eight of
this article;
(10) The practicality of locating the well on a uniform
pattern with other wells;
(11) The surface topography and use; and
(12) Whether the order of the board will substantially
affect the right of the gas operator to explore for and produce
gas.
(d) Any member of the board may file a separate opinion.
Copies of all orders and opinions shall be mailed by the board,
by registered or certified mail, to the parties present or
represented at the hearing.
§22C-8-8. Distance limitations.
(a) If the well operator and the objecting coal seam owners
present or represented at the time and place fixed by the chair
for consideration of the objections to the proposed drilling
location are unable to agree upon a drilling location, then the
written order of the board shall direct the director to refuse to
issue a drilling permit unless the following distance limitations
are observed:
(1) For all shallow wells with a depth less than three
thousand feet, there shall be a minimum distance of one thousandfeet from the drilling location to the nearest existing well as
defined in subsection (b) of this section; and
(2) For all shallow wells with a depth of three thousand
feet or more, there shall be a minimum distance of one thousand
five hundred feet from the drilling location to the nearest
existing well as defined in subsection (b) of this section,
except that where the distance from the drilling location to such
nearest existing well is less than two thousand feet but more
than one thousand five hundred feet and a coal seam owner has
objected, the gas operator shall have the burden of establishing
the need for the drilling location less than two thousand feet
from such nearest existing well. Where the distance from the
drilling location proposed by the operator or designated by the
board to the nearest existing well as defined in subsection (b)
of this section is greater than two thousand feet, distance
criterion will not be a ground for objection by a coal seam
owner.
(b) The words "existing well" as used in this section means:
(i) Any well not plugged within nine months after being drilled
to its total depth and either completed in the same target
formation or drilled for the purpose of producing from the same
target formation; and (ii) any unexpired, permitted drilling
location for a well to the same target formation.
(c) The minimum distance limitations established by this
section shall not apply if the proposed well will be drilled
through an existing or planned pillar of coal required forprotection of a preexisting oil or gas well and the proposed well
will neither require enlargement of such pillar nor otherwise
have an adverse effect on existing or planned coal mining
operations.
(d) Nothing in this article shall be construed to empower
the board to order the director to issue a drilling permit to any
person other than the well operator filing the application which
is the subject of the proceedings.
§22C-8-9. Application to establish a drilling unit; contents;
notice.
(a) Whenever the board has issued an order directing the
director to refuse a drilling permit, the gas operator may apply
to the board for the establishment of a drilling unit
encompassing a contiguous tract or tracts if such gas operator
believes that such a drilling unit will afford one well location
for the production of gas from under the tract on which the
drilling permit was sought, and will be agreeable to the coal
seam owners.
(b) An application to establish a drilling unit shall be
filed with the board and shall contain:
(1) The name and address of the applicant;
(2) A plat prepared by a licensed land surveyor or
registered professional engineer showing the boundary of the
proposed drilling unit, the district and county in which such
unit is located, the acreage of the proposed drilling unit, the
boundary of the tracts which comprise the proposed drilling unit,the names of the owners of record of each such tract, the
proposed well location on the proposed drilling unit, and the
proposed well location for which the division refused to issue a
drilling permit;
(3) The names and addresses of the royalty owners of the gas
underlying the tracts which comprise the proposed drilling unit;
(4) The names and addresses of the gas operators of the
tracts which comprise the proposed drilling unit;
(5) The approximate depth and target formation to which the
well for the proposed drilling unit is to be drilled;
(6) A statement indicating whether a voluntary pooling
agreement has been reached among any or all of the royalty owners
of the gas underlying the tracts which comprise the proposed
drilling unit and the gas operators of such tracts;
(7) An affidavit of publication of the notice of intent to
file an application to establish a drilling unit as required in
subsection (c) of this section; and
(8) Such other pertinent and relevant information as the
board may prescribe by reasonable rules promulgated in accordance
with the provisions of section six of this article.
(c) Prior to the filing of an application to establish a
drilling unit, the applicant shall cause to be published, as a
Class II legal advertisement in accordance with the provisions of
article three, chapter fifty-nine of this code, a notice of
intent to file an application to establish a drilling unit. Such
notice shall contain the information required by subdivisions(1), (4) and (5), subsection (b) of this section, the name of the
royalty owner of the gas underlying the proposed well location on
the proposed drilling unit, plus an abbreviated description, or,
at the applicant's option, a plat of the drilling unit,
disclosing the county and district wherein the proposed drilling
unit is to be located, the post office closest to the proposed
drilling unit, a statement that the applicant will deliver a copy
of the plat required by subdivision (2), subsection (b) of this
section to any person desiring the same, the date upon which the
applicant intends to file the application to establish a drilling
unit, and a statement that written protests and objections to
such application may be filed with the board until a specified
date, which date shall be at least ten days after the date upon
which the applicant intends to file the application to establish
a drilling unit. The publication area of the notice required by
this subsection shall be the county or counties in which the
proposed drilling unit is to be located.
(d) At the time an application to establish a drilling unit
is filed, the applicant shall forward a copy thereof by
registered or certified mail to each and every person whose name
and address were included on the application in accordance with
the provisions of subdivisions (3) and (4), subsection (b) of
this section. With each such application there shall be enclosed
a notice (the form for which shall be furnished by the board on
request) addressed to each such person to whom a copy of the
application is required to be sent, informing the person that theapplication is being mailed by registered or certified mail,
pursuant to the requirements of this article:
Provided, That the
application and notice need not be forwarded to those royalty
owners or gas operators within the boundary of the proposed
drilling unit who have previously agreed to voluntary pooling by
separately stated document or documents empowering the gas
operator, by assignment or otherwise, unilaterally to declare a
unit.
§22C-8-10. Establishment of drilling units; hearings; orders.
(a) At the time and place fixed by the chair for the meeting
of the board and for consideration of an application to establish
a drilling unit, the applicant shall present proof that the
drilling location on the proposed drilling unit has been agreed
to by all of the owners of the coal seams underlying such
drilling location; and thereafter the applicant, the royalty
owners of the gas underlying the tracts comprising the unit, and
the gas operators of the tracts comprising the unit, or such of
them as are present or represented, shall hold a conference with
the board to consider the application. Such persons present or
represented at the conference may agree upon the boundary of the
drilling unit as proposed by the applicant or as changed to
satisfy all valid objections of those persons present or
represented. Any change in the boundary of the drilling unit
from the boundary proposed by the applicant shall be shown on the
plat filed with the board as part of the application. If
agreement is reached at the conference upon the boundary of thedrilling unit among the applicants, the royalty owners of the gas
underlying the tracts comprising the drilling unit and the gas
operators of the tracts comprising such unit, or such of them as
are present or represented, and if such agreement is approved by
the board, the board shall issue a written order establishing and
specifying the boundary of the drilling unit.
(b) If the applicant, the royalty owners of the gas
underlying the tracts comprising the drilling unit and the gas
operators of the tracts comprising such unit, or such of them as
are present or represented at the time and place fixed by the
chair for consideration of the application, are unable to agree
upon the boundary of the drilling unit, then the board shall hold
a hearing without recess of more than one business day to
consider the application to establish a drilling unit. All of
the pertinent provisions of article five, chapter twenty-nine-a
of this code shall apply to and govern such hearing. Within
twenty days after the close of the hearing, the board shall issue
a written order either establishing a drilling unit or dismissing
the application. If the board determines to establish a drilling
unit, the order shall specify the boundary of such drilling unit.
In determining whether to grant or deny an application to
establish a drilling unit, the board shall consider:
(1) The surface topography and property lines of the lands
comprising the drilling unit;
(2) The correlative rights of all gas operators and royalty
owners therein;
(3) The just and equitable share of production of each gas
operator and royalty owner therein;
(4) Whether a gas operator or royalty owner objecting to the
drilling unit has proved by clear and convincing evidence that
the drilling unit is substantially smaller than the area that
will be produced by the proposed well; and
(5) Other evidence relevant to the establishment of the
boundary of a drilling unit.
(c) The board shall not grant an application to establish a
drilling unit, nor shall it approve any drilling unit, unless the
board finds that:
(1) The applicant has proved that the drilling location on
the drilling unit has been agreed to by all of the owners of the
coal seams underlying such drilling location;
(2) The director has previously refused to issue a drilling
permit on one of the tracts comprising the drilling unit because
of an order of the board;
(3) The drilling unit includes all acreage within the
minimum distance limitations provided by section eight of this
article, unless the gas operators and royalty owners of any
excluded acreage have agreed to such exclusion; and
(4) The drilling unit includes a portion of the acreage from
under which the well operator intended to produce gas under the
drilling permit which was refused.
(d) All orders issued by the board under this section shall
contain findings of fact and conclusions based thereon asrequired by section three, article five, chapter twenty-nine-a of
this code and shall be filed with the director within twenty days
after the hearing. Any member of the board may file a separate
opinion. Copies of all orders and opinions shall be mailed by
the board, by registered or certified mail, to the parties
present or represented at the hearing.
§22C-8-11. Pooling of interests in a drilling unit; limitations.
(a) Whenever the board establishes a drilling unit pursuant
to the provisions of sections nine and ten of this article, the
order establishing such drilling unit shall include an order
pooling the separately owned interests in the gas to be produced
from such drilling unit.
(b) If a voluntary pooling agreement has been reached
between all persons owning separate operating interests in the
tracts comprising the drilling unit, the order of the board shall
approve such agreement.
(c) If no voluntary pooling agreement is reached prior to or
during the hearing held pursuant to subsection (b), section ten
of this article, then at such hearing the board shall also
determine the pooling of interests in the drilling unit.
(d) Any order of the board pooling the separately owned
interests in the gas to be produced from the drilling unit shall
be upon terms and conditions which are just and equitable and
shall authorize the production of gas from the drilling unit;
shall designate the applicant as the operator to drill and
operate such gas well; shall prescribe the procedure by which allowners of operating interests in the pooled tracts or portions of
tracts may elect to participate therein; shall provide that all
reasonable costs and expenses of drilling, completing, equipping,
operating, plugging, abandoning and reclaiming such well shall be
borne, and all production therefrom shared, by all owners of
operating interests in proportion to the net gas acreage in the
pooled tracts owned or under lease to each owner; and shall make
provisions for payment of all reasonable costs thereof, including
all reasonable charges for supervision and for interest on past-
due accounts, by all those who elect to participate therein.
(e) Upon request, any such pooling order shall provide an
owner of an operating interest an election to be made within ten
days from the date of the pooling order: (i) To participate in
the risks and costs of the drilling of the well; or (ii) to
participate in the drilling of the well on a limited or carried
basis on terms and conditions which, if not agreed upon, shall be
determined by the board to be just and equitable. If the
election is not made within the ten-day period, such owner shall
be conclusively presumed to have elected the limited or carried
basis. Thereafter, if an owner of any operating interest in any
portion of the pooled tract shall drill and operate, or pay the
costs of drilling and operating, a well for the benefit of such
nonparticipating owner as provided in the order of the board,
then such operating owner shall be entitled to the share of
production from the tracts or portions thereof pooled accruing to
the interest of such nonparticipating owner, exclusive of anyroyalty or overriding royalty reserved with respect to such
tracts or portions thereof, or exclusive of one eighth of the
production attributable to all unleased tracts or portions
thereof, until the market value of such nonparticipating owner's
share of the production, exclusive of such royalty, overriding
royalty or one eighth of production, equals double the share of
such costs payable by or charged to the interest of such
nonparticipating owner.
(f) In no event shall drilling be initiated or completed on
any tract, where the gas underlying such tract has not been
severed from the surface thereof by deed, lease or other title
document, without the written consent of the person who owns such
tract.
(g) All disputes which may arise as to the costs of drilling
and operating a well under a pooling order issued pursuant to
this section shall be resolved by the board within ninety days
from the date of written notification to the board of the
existence of such dispute.
§22C-8-12. Effect of order establishing drilling unit or pooling
of interests; recordation.
(a) An order issued by the board establishing a drilling
unit and ordering the pooling of interests therein shall not
entitle the gas operator designated in such order to drill a well
on such drilling unit until such gas operator shall have received
a drilling permit in accordance with the provisions applicable to
alternative drilling locations set out in section seventeen,article six, chapter twenty-two of this code. All orders issued
by the board establishing a drilling unit shall be filed with the
director and shall also direct the director to issue a drilling
permit for the drilling location agreed to by all of the owners
of the coal seams underlying such drilling location.
(b) A certified copy of any order of the board establishing
a drilling unit or a pooling of interests shall be mailed by the
board to the clerk of the county commission of each county
wherein all or any portion of the drilling unit is located, for
recordation in the record book of such county in which oil and
gas leases are normally recorded. Such recordation from the time
noted thereon by such clerk shall be notice of the order to all
persons.
§22C-8-13. Judicial review; appeal to supreme court of appeals;
legal representation for board.
(a) Any person adversely affected by an order of the board
shall be entitled to judicial review thereof. All of the
pertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in extenso in this section.
(b) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
(c) Legal counsel and services for the board in all appealproceedings in any circuit court and the supreme court of appeals
shall be provided by the attorney general or his assistants and
in any circuit court by the prosecuting attorney of the county as
well, all without additional compensation. The board, with the
written approval of the attorney general, may employ special
counsel to represent the board at any such appeal proceedings.
§22C-8-14. Operation on drilling units.
All operations including, but not limited to, the
commencement, drilling or operation of a well upon a drilling
unit for which a pooling order has been entered, shall be deemed
for all purposes the conduct of such operations upon each
separately owned tract in the drilling unit by the several owners
thereof. That portion of the production allocated to a
separately owned tract included in a drilling unit shall, when
produced, be deemed for all purposes to have been actually
produced from such tract by a well drilled thereon.
§22C-8-15. Validity of unit agreements.
No agreement between or among gas operators, lessees or
other owners of gas rights in gas properties, entered into
pursuant to the provisions of this article or with a view to or
for the purpose of bringing about the unitized development or
operation of such properties, shall be held to violate the
statutory or common law of this state prohibiting monopolies or
acts, arrangements, contracts, combinations or conspiracies in
restraint of trade or commerce.
§22C-8-16. Injunctive relief.
(a) Whenever it appears to the board that any person has
been or is violating or is about to violate any provision of this
article, any rule promulgated by the board hereunder or any order
or final decision of the board, the board may apply in the name
of the state to the circuit court of the county in which the
violations or any part thereof has occurred, is occurring or is
about to occur, or to the judge thereof in vacation, for an
injunction against such person and any other persons who have
been, are or are about to be, involved in any practices, acts or
omissions, so in violation, enjoining such person or persons from
any such violation or violations. Such application may be made
and prosecuted to conclusion whether or not any such violation or
violations have resulted or shall result in prosecution or
conviction under the provisions of section seventeen of this
article.
(b) Upon application by the board, the circuit courts of
this state may by mandatory or prohibitory injunction compel
compliance with the provisions of this article, the rules
promulgated by the board hereunder and all orders of the board.
The court may issue a temporary injunction in any case pending a
decision on the merits of any application filed. Any other
section of this code to the contrary notwithstanding, the state
shall not be required to furnish bond or other undertaking as a
prerequisite to obtaining mandatory, prohibitory or temporary
injunctive relief under the provisions of this article.
(c) The judgment of the circuit court upon any applicationpermitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil actions.
(d) The board shall be represented in all such proceedings
by the attorney general or the attorney general's assistants and
in such proceedings in the circuit courts by the prosecuting
attorneys of the several counties as well, all without additional
compensation. The board, with the written approval of the
attorney general, may employ special counsel to represent the
board in any such proceedings.
(e) If the board shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of any
provision of this article, any rule promulgated by the board
hereunder or any order or final decision of the board, within ten
days after receipt of a written request to do so by any person
who is or will be adversely affected by such violation or
threatened violation, the person making such request may apply in
such person's own behalf for an injunction to enjoin such
violation or threatened violation in any court in which the board
might have brought suit. The board shall be made a party
defendant in such application in addition to the person or
persons violating or threatening to violate any provision of this
article, any rule promulgated by the board hereunder or any order
of the board. The application shall proceed and injunctiverelief may be granted without bond or other undertaking in the
same manner as if the application had been made by the chair.
§22C-8-17. Penalties.
(a) Any person who violates any provision of this article,
any of the rules promulgated by the board hereunder or any order
of the board other than a violation governed by the provisions of
subsection (b) of this section, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than one
thousand dollars.
(b) Any person who, with the intention of evading any
provision of this article, any of the rules promulgated by the
board hereunder or any order of the board shall make or cause to
be made any false entry or statement in any application or other
document permitted or required to be filed under the provisions
of this article, any of the rules promulgated by the board
hereunder or any order of the board, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
more than five thousand dollars, or imprisoned in the county jail
not more than six months, or both fined and imprisoned.
(c) Any person who knowingly aids or abets any other person
in the violation of any provision of this article, any of the
rules promulgated by the board hereunder or any order or final
decision of the board, shall be subject to the same penalty as
that prescribed in this article for the violation by such other
person.
§22C-8-18. Construction.
This article shall be liberally construed so as to
effectuate the declaration of public policy set forth in section
one of this article.
§22C-8-19. Rules, orders and permits remain in effect.
The rules promulgated and all orders and permits in effect
upon the effective date of this article pursuant to the
provisions of article seven, of former chapter twenty-two of this
code shall remain in full force and effect as if such rules,
orders and permits were adopted by the board continued in this
article but all such rules, orders and permits shall be subject
to review by the board to ensure they are consistent with the
purposes and policies set forth in this chapter and chapter
twenty-two of this code.
ARTICLE 9. OIL AND GAS CONSERVATION.
§22C-9-1. Declaration of public policy; legislative findings.
(a) It is hereby declared to be the public policy of this
state and in the public interest to:
(1) Foster, encourage and promote exploration for and
development, production, utilization and conservation of oil and
gas resources;
(2) Prohibit waste of oil and gas resources and unnecessary
surface loss of oil and gas and their constituents;
(3) Encourage the maximum recovery of oil and gas; and
(4) Safeguard, protect and enforce the correlative rights of
operators and royalty owners in a pool of oil or gas to the end
that each such operator and royalty owner may obtain his just andequitable share of production from such pool of oil or gas.
(b) The Legislature hereby determines and finds that oil and
natural gas found in West Virginia in shallow sands or strata
have been produced continuously for more than one hundred years;
that oil and gas deposits in such shallow sands or strata have
geological and other characteristics different than those found
in deeper formations; and that in order to encourage the maximum
recovery of oil and gas from all productive formations in this
state, it is not in the public interest, with the exception of
shallow wells utilized in a secondary recovery program, to enact
statutory provisions relating to the exploration for or
production from oil and gas from shallow wells, as defined in
section two of this article, but that it is in the public
interest to enact statutory provisions establishing regulatory
procedures and principles to be applied to the exploration for or
production of oil and gas from deep wells, as defined in said
section two.
§22C-9-2. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Commission" means the oil and gas conservation
commission and "commissioner" means the oil and gas conservation
commissioner as provided for in section four of this article;
(2) "Director" means the director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to section six oreight, article one, chapter twenty-two of this code;
(3) "Person" means any natural person, corporation,
partnership, receiver, trustee, executor, administrator,
guardian, fiduciary or other representative of any kind, and
includes any government or any political subdivision or any
agency thereof;
(4) "Operator" means any owner of the right to develop,
operate and produce oil and gas from a pool and to appropriate
the oil and gas produced therefrom, either for such person or for
such person and others; in the event that there is no oil and gas
lease in existence with respect to the tract in question, the
owner of the oil and gas rights therein shall be considered as
"operator" to the extent of seven eighths of the oil and gas in
that portion of the pool underlying the tract owned by such
owner, and as "royalty owner" as to one-eighth interest in such
oil and gas; and in the event the oil is owned separately from
the gas, the owner of the substance being produced or sought to
be produced from the pool shall be considered as "operator" as to
such pool;
(5) "Royalty owner" means any owner of oil and gas in place,
or oil and gas rights, to the extent that such owner is not an
operator as defined in subdivision (4) of this subsection;
(6) "Independent producer" means a person who is actively
engaged in the production of oil and gas in West Virginia, but
whose gross revenue from such production in West Virginia does
not exceed five hundred thousand dollars per year;
(7) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoir;
(8) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (7) of this
subsection;
(9) "Pool" means an underground accumulation of petroleum in
a single and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a single
natural-pressure system so that production of petroleum from one
part of the pool affects the reservoir pressure throughout its
extent. A pool is bounded by geologic barriers in all
directions, such as geologic structural conditions, impermeable
strata, and water in the formations, so that it is effectively
separated from any other pools that may be presented in the same
district or on the same geologic structure;
(10) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or underground strata for the extraction of
oil or gas;
(11) "Shallow well" means any well drilled and completed in
a formation above the top of the uppermost member of the
"Onondaga Group":
Provided, That in drilling a shallow well the
operator may penetrate into the "Onondaga Group" to a reasonable
depth, not in excess of twenty feet, in order to allow forlogging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(12) "Deep well" means any well, other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(13) "Drilling unit" means the acreage on which one well may
be drilled;
(14) "Waste" means and includes: (A) Physical waste, as
that term is generally understood in the oil and gas industry;
(B) the locating, drilling, equipping, operating or producing of
any oil or gas well in a manner that causes, or tends to cause,
a reduction in the quantity of oil or gas ultimately recoverable
from a pool under prudent and proper operations, or that causes
or tends to cause unnecessary or excessive surface loss of oil or
gas; or (C) the drilling of more deep wells than are reasonably
required to recover efficiently and economically the maximum
amount of oil and gas from a pool. Waste does not include gas
vented or released from any mine areas as defined in section two,
article one, chapter twenty-two-a of this code or from adjacent
coal seams which are the subject of a current permit issued under
article two of said chapter:
Provided, That nothing in this
exclusion is intended to address ownership of the gas;
(15) "Correlative rights" means the reasonable opportunity
of each person entitled thereto to recover and receive without
waste the oil and gas in and under his tract or tracts, or theequivalent thereof; and
(16) "Just and equitable share of production" means, as to
each person, an amount of oil or gas or both substantially equal
to the amount of recoverable oil and gas in that part of a pool
underlying such person's tract or tracts.
(b) Unless the context clearly indicates otherwise, the use
of the word "and" and the word "or" shall be interchangeable, as,
for example, "oil and gas" shall mean oil or gas or both.
§22C-9-3. Application of article; exclusions.
(a) Except as provided in subsection (b) of this section,
the provisions of this article shall apply to all lands located
in this state, however owned, including any lands owned or
administered by any government or any agency or subdivision
thereof, over which the state has jurisdiction under its police
power. The provisions of this article are in addition to and not
in derogation of or substitution for the provisions of article
six, chapter twenty-two of this code.
(b) This article shall not apply to or affect:
(1) Shallow wells other than those utilized in secondary
recovery programs as set forth in section eight of this article;
(2) Any well commenced or completed prior to the ninth day
of March, one thousand nine hundred seventy-two, unless such well
is, after completion (whether such completion is prior or
subsequent to that date): (i) Deepened subsequent to that date
to a formation at or below the top of the uppermost member of the
"Onondaga Group"; or (ii) involved in secondary recoveryoperations for oil under an order of the commissioner entered
pursuant to section eight of this article;
(3) Gas storage operations or any well employed to inject
gas into or withdraw gas from a gas storage reservoir or any well
employed for storage observation; or
(4) Free gas rights.
(c) The provisions of this article shall not be construed to
grant to the commissioner authority or power to:
(1) Limit production or output, or prorate production of any
oil or gas well, except as provided in subdivision (6),
subsection (a), section seven of this article; or
(2) Fix prices of oil or gas.
§22C-9-4. Oil and gas conservation commissioner and commission;
commission membership; qualifications of members; terms of
members; vacancies on commission; meetings; compensation and
expenses; appointment and qualifications of commissioner;
general powers and duties.
(a) There is hereby continued, as provided for in subsection
(h) of this section, the "Oil and Gas Conservation Commission"
which shall be composed of five members. The director of the
division of environmental protection and the chief of the office
of oil and gas shall be members of the commission ex officio.
The remaining three members of the commission shall be appointed
by the governor, by and with the advice and consent of the
Senate. Of the three members appointed by the governor, one
shall be an independent producer and at least one shall be apublic member not engaged in full-time employment in an activity
under the jurisdiction of the public service commission or the
federal energy regulatory commission. As soon as practical after
appointment of the members of the commission, the governor shall
call a meeting of the commission to be convened at the state
capitol for the purpose of organizing and electing a chair.
(b) The members of the commission appointed by the governor
shall be appointed for overlapping terms of six years each,
except that the original appointments shall be for terms of two,
four and six years, respectively. Each member appointed by the
governor shall serve until such person's successor has been
appointed and qualified. Members may be appointed by the
governor to serve any number of terms. The members of the
commission appointed by the governor, before performing any duty
hereunder, shall take and subscribe to the oath required by
section five, article IV of the constitution of West Virginia.
Vacancies in the membership appointed by the governor shall be
filled by appointment by the governor for the unexpired term of
the member whose office shall be vacant and such appointment
shall be made by the governor within sixty days of the occurrence
of such vacancy. Any member appointed by the governor may be
removed by the governor in case of incompetency, neglect of duty,
gross immorality or malfeasance in office.
(c) The commission shall meet at such times and places as
shall be designated by the chair. The chair may call a meeting
of the commission at any time, and the chair shall call a meetingof the commission upon the written request of two members or upon
the written request of the oil and gas conservation commissioner.
Notification of each meeting shall be given in writing to each
member by the chair at least five days in advance of the meeting.
Any three members, one of which may be the chair, shall
constitute a quorum for the transaction of any business as herein
provided for. A majority of the commission shall be required to
determine any issue brought before it.
(d) Each member of the commission appointed by the governor
shall receive thirty-five dollars per diem not to exceed one
hundred days per calendar year while actually engaged in the
performance of the duties as a member of the commission. Each
member of the commission shall also be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of the duties as a member of the commission.
(e) The commission shall appoint the oil and gas
conservation commissioner, fix the commissioner's salary within
available funds, and advise the commissioner regarding the duties
and authority under this article and consult with the
commissioner prior to his reaching any final decisions and
entering orders hereunder. However, the commissioner has full
and final authority under this article with the commission
serving in an advisory capacity to the commissioner. The
commissioner shall possess a degree from an accredited college or
university in petroleum engineering or geology and must be a
registered professional engineer with particular knowledge andexperience in the oil and gas industry.
(f) The oil and gas commissioner is hereby empowered and it
shall be the commissioner's duty to execute and carry out,
administer and enforce the provisions of this article in the
manner provided herein. Subject to the provisions of section
three of this article, the commissioner shall have jurisdiction
and authority over all persons and property necessary therefor.
The commissioner is authorized to make such investigation of
records and facilities as the commissioner deems proper. In the
event of a conflict between the duty to prevent waste and the
duty to protect correlative rights, the commissioner's duty to
prevent waste shall be paramount. The commissioner shall serve
as secretary of the oil and gas conservation commission.
(g) Without limiting the commissioner's general authority,
the commissioner shall have specific authority to:
(1) Regulate the spacing of deep wells;
(2) Make and enforce reasonable rules and orders reasonably
necessary to prevent waste, protect correlative rights, govern
the practice and procedure before the commissioner and otherwise
administer the provisions of this article;
(3) Issue subpoenas for the attendance of witnesses and
subpoenas duces tecum for the production of any books, records,
maps, charts, diagrams and other pertinent documents, and
administer oaths and affirmations to such witnesses, whenever, in
the judgment of the commissioner, it is necessary to do so for
the effective discharge of the commissioner's duties under theprovisions of this article; and
(4) Serve as technical advisor regarding oil and gas to the
Legislature, its members and committees, to the chief of the
office of oil and gas, to the division of environmental
protection and to any other agency of state government having
responsibility related to the oil and gas industry.
(h) Pursuant to the provisions of section four, article ten,
chapter four of this code, the oil and gas conservation
commission shall continue to exist until the first day of July,
one thousand nine hundred ninety-three, to allow for the
completion of an audit by the joint committee on government
operations.
§22C-9-5. Rules; notice requirements.
(a) The commissioner may promulgate such reasonable rules as
the commissioner may deem necessary or desirable to implement and
make effective the provisions of this article and the powers and
authority conferred and the duties imposed upon the commissioner
under the provisions of this article and for securing uniformity
of procedure in the administration of the provisions of article
three, chapter twenty-nine-a of this code.
(b) Notwithstanding the provisions of section two, article
seven, chapter twenty-nine-a of this code, any notice required
under the provisions of this article shall be given at the
direction of the commissioner by: (1) Personal or substituted
service; and if such cannot be had then by (2) certified United
States mail, addressed, postage prepaid, to the last-knownmailing address, if any, of the person being served, with the
direction that the same be delivered to addressee only, return
receipt requested, and if there be no known mailing address; or
if the notice is not so delivered then by (3) publication of such
notices as a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be the county or
counties wherein any land which may be affected by such order is
situate. In addition, the commissioner shall mail a copy of such
notice to all other persons who have specified to the
commissioner an address to which all such notices may be mailed.
The notice shall issue in the name of the state, shall be signed
by the commissioner, shall specify the style and number of the
proceeding, the time and place of any hearing, and shall briefly
state the purpose of the proceeding. Personal or substituted
service and proof thereof may be made by an officer authorized to
serve process or by an agent of the commissioner in the same
manner as is now provided by the "West Virginia Rules of Civil
Procedure for Trial Courts of Record" for service of process in
civil actions in the various courts of this state. A certified
copy of any pooling order entered under the provisions of this
article shall be presented by the commissioner to the clerk of
the county commission of each county wherein all or any portion
of the pooled tract is located, for recordation in the record
book of such county in which oil and gas leases are normally
recorded. Such recording of such order from the time notedthereon by such clerk shall be notice of the order to all
persons.
§22C-9-6. Waste of oil or gas prohibited.
Waste of oil or gas is hereby prohibited.
§22C-9-7. Drilling units and the pooling of interests in
drilling units in connection with deep oil or gas wells.
(a)
Drilling units. --
(1) After one discovery deep well has been drilled
establishing a pool, an application to establish drilling units
may be filed with the commissioner by the operator of such
discovery deep well or by the operator of any lands directly and
immediately affected by the drilling of such discovery deep well,
or subsequent deep wells in said pool, and the commissioner shall
promptly schedule a hearing on said application. Each
application shall contain such information as the commissioner
may prescribe by reasonable rules promulgated by the commissioner
in accordance with the provisions of section five of this
article.
(2) Upon the filing of an application to establish drilling
units, notice of the hearing shall be given by the commissioner.
Each notice shall specify the date, time and place of hearing,
describe the area for which a spacing order is to be entered, and
contain such other information as is essential to the giving of
proper notice.
(3) On the date specified in such notice, the commissioner
shall hold a public hearing to determine the area to be includedin such spacing order and the acreage to be contained by each
drilling unit, the shape thereof, and the minimum distance from
the outside boundary of the unit at which a deep well may be
drilled thereon. At such hearing the commissioner shall
consider:
(i) The surface topography and property lines of the lands
underlaid by the pool to be included in such order;
(ii) The plan of deep well spacing then being employed or
proposed in such pool for such lands;
(iii) The depth at which production from said pool has been
found;
(iv) The nature and character of the producing formation or
formations, and whether the substance produced or sought to be
produced is gas or oil or both;
(v) The maximum area which may be drained efficiently and
economically by one deep well; and
(vi) Any other available geological or scientific data
pertaining to said pool which may be of probative value to the
commissioner in determining the proper deep well drilling units
therefor.
To carry out the purposes of this article, the commissioner
shall, upon proper application, notice and hearing as herein
provided, and if satisfied after such hearing that drilling units
should be established, enter an order establishing drilling units
of a specified and approximately uniform size and shape for each
pool subject to the provisions of this section.
(4) When it is determined that an oil or gas pool underlies
an area for which a spacing order is to be entered, the
commissioner shall include in such order all lands determined or
believed to be underlaid by such pool and exclude all other
lands.
(5) No drilling unit established by the commissioner shall
be smaller than the maximum area which can be drained efficiently
and economically by one deep well:
Provided, That if at the time
of a hearing to establish drilling units, there is not sufficient
evidence from which to determine the area which can be drained
efficiently and economically by one deep well, the commissioner
may enter an order establishing temporary drilling units for the
orderly development of the pool pending the obtaining of
information necessary to determine the ultimate spacing for such
pool.
(6) An order establishing drilling units shall specify the
minimum distance from the nearest outside boundary of the
drilling unit at which a deep well may be drilled. The minimum
distance provided shall be the same in all drilling units
established under said order with necessary exceptions for deep
wells drilled or being drilled at the time of the filing of the
application. If the commissioner finds that a deep well to be
drilled at or more than the specified minimum distance from the
boundary of a drilling unit would not be likely to produce in
paying quantities or will encounter surface conditions which
would substantially add to the burden or hazard of drilling suchdeep well, or that a location within the area permitted by the
order is prohibited by the lawful order of any state agency or
court, the commissioner is authorized after notice and hearing to
make an order permitting the deep well to be drilled at a
location within the minimum distance prescribed by the spacing
order. In granting exceptions to the spacing order, the
commissioner may restrict the production from any such deep well
so that each person entitled thereto in such drilling unit shall
not produce or receive more than his just and equitable share of
the production from such pool.
(7) An order establishing drilling units for a pool shall
cover all lands determined or believed to be underlaid by such
pool, and may be modified by the commissioner from time to time,
to include additional lands determined to be underlaid by such
pool or to exclude lands determined not to be underlaid by such
pool. An order establishing drilling units may be modified by
the commissioner to permit the drilling of additional deep wells
on a reasonably uniform pattern at a uniform minimum distance
from the nearest unit boundary as provided above. Any order
modifying a prior order shall be made only after application by
an interested operator and notice and hearing as prescribed
herein for the original order:
Provided, That drilling units
established by order shall not exceed one hundred sixty acres for
an oil well or six hundred forty acres for a gas well.
(8) After the date of the notice of hearing called to
establish drilling units, no additional deep well shall becommenced for production from the pool until the order
establishing drilling units has been made, unless the
commencement of the deep well is authorized by order of the
commissioner.
(9) The commissioner shall, within forty-five days after the
filing of an application to establish drilling units for a pool
subject to the provisions of this section, either enter an order
establishing such drilling units or dismiss the application.
(10) As part of the order establishing a drilling unit, the
commissioner shall prescribe just and reasonable terms and
conditions upon which the royalty interests in the unit shall, in
the absence of voluntary agreement, be deemed to be integrated
without the necessity of a subsequent order integrating the
royalty interests.
(b)
Pooling of interests in drilling units. --
(1) When two or more separately owned tracts are embraced
within a drilling unit, or when there are separately owned
interests in all or a part of a drilling unit, the interested
persons may pool their tracts or interests for the development
and operation of the drilling unit. In the absence of voluntary
pooling and upon application of any operator having an interest
in the drilling unit, and after notice and hearing, the
commissioner shall enter an order pooling all tracts or interests
in the drilling unit for the development and operation thereof
and for sharing production therefrom. Each such pooling order
shall be upon terms and conditions which are just and reasonable,and in no event shall drilling be initiated on the tract of an
unleased royalty owner without such owner's written consent.
(2) All operations, including, but not limited to, the
commencement, drilling or operation of a deep well, upon any
portion of a drilling unit for which a pooling order has been
entered, shall be deemed for all purposes the conduct of such
operations upon each separately owned tract in the drilling unit
by the several owners thereof. That portion of the production
allocated to a separately owned tract included in a drilling unit
shall, when produced, be deemed for all purposes to have been
actually produced from such tract by a deep well drilled thereon.
(3) Any pooling order under the provisions of this
subsection (b) shall authorize the drilling and operation of a
deep well for the production of oil or gas from the pooled
acreage; shall designate the operator to drill and operate such
deep well; shall prescribe the time and manner in which all
owners of operating interests in the pooled tracts or portions of
tracts may elect to participate therein; shall provide that all
reasonable costs and expenses of drilling, completing, equipping,
operating, plugging and abandoning such deep well shall be borne,
and all production therefrom shared, by all owners of operating
interests in proportion to the net oil or gas acreage in the
pooled tracts owned or under lease to each owner; and shall make
provisions for payment of all reasonable costs thereof, including
a reasonable charge for supervision and for interest on past-due
accounts, by all those who elect to participate therein.
(4) No drilling or operation of a deep well for the
production of oil or gas shall be permitted upon or within any
tract of land unless the operator shall have first obtained the
written consent and easement therefor, duly acknowledged and
placed of record in the office of the county clerk, for valuable
consideration of all owners of the surface of such tract of land,
which consent shall describe with reasonable certainty, the
location upon such tract, of the location of such proposed deep
well, a certified copy of which consent and easement shall be
submitted by the operator to the commissioner.
(5) Upon request, any such pooling order shall provide just
and equitable alternatives whereby an owner of an operating
interest who does not elect to participate in the risk and cost
of the drilling of a deep well may elect:
(i) Option 1. To surrender such interest or a portion
thereof to the participating owners on a reasonable basis and for
a reasonable consideration, which, if not agreed upon, shall be
determined by the commissioner; or
(ii) Option 2. To participate in the drilling of the deep
well on a limited or carried basis on terms and conditions which,
if not agreed upon, shall be determined by the commissioner to be
just and reasonable.
(6) In the event a nonparticipating owner elects Option 2,
and an owner of any operating interest in any portion of the
pooled tract shall drill and operate, or pay the costs of
drilling and operating, a deep well for the benefit of suchnonparticipating owner as provided in the pooling order, then
such operating owner shall be entitled to the share of production
from the tracts or portions thereof pooled accruing to the
interest of such nonparticipating owner, exclusive of any royalty
or overriding royalty reserved in any leases, assignments thereof
or agreements relating thereto, of such tracts or portions
thereof, or exclusive of one eighth of the production
attributable to all unleased tracts or portions thereof, until
the market value of such nonparticipating owner's share of the
production, exclusive of such royalty, overriding royalty or one
eighth of production, equals double the share of such costs
payable by or charged to the interest of such nonparticipating
owner.
(7) If a dispute shall arise as to the costs of drilling and
operating a deep well, the commissioner shall determine and
apportion the costs, within ninety days from the date of written
notification to the commissioner of the existence of such
dispute.
§22C-9-8. Secondary recovery of oil; unit operations.
Upon the application of any operator in a pool productive of
oil and after notice and hearing, the commissioner may enter an
order requiring the unit operation of such pool in connection
with a program of secondary recovery of oil, and providing for
the unilization of separately owned tracts and interests within
such pool, but only after finding that: (1) The order is
reasonably necessary for the prevention of waste and the drillingof unnecessary deep wells; (2) the proposed plan of secondary
recovery will increase the ultimate recovery of oil from the pool
to such an extent that the proposed secondary recovery operation
will be economically feasible; (3) the production of oil from the
unitized pool can be allocated in such a manner as to ensure the
recovery by all operators of their just and equitable share of
such production; and (4) the operators of at least three fourths
of the acreage (calculating partial interests on a pro rata basis
for operator interests on any parcel owned in common) and the
royalty owners of at least three fourths of the acreage
(calculating partial interests on a pro rata basis for royalty
interests on any parcel owned in common) in such pool have
approved the plan and terms of unit operation to be specified by
the commissioner in its order, such approval to be evidenced by
a written contract setting forth the terms of the unit operation
and executed by said operators and said royalty owners, and filed
with the commissioner on or before the day set for hearing. The
order requiring such unit operation shall designate one operator
in the pool as unit operator and shall also make provision for
the proportionate allocation to all operators of the costs and
expenses of the unit operation, including reasonable charges for
supervision and interest on past-due accounts, which allocation
shall be in the same proportion that the separately owned tracts
share in the production of oil from the unit. In the absence of
an agreement entered into by the operators and filed with the
commissioner providing for sharing the costs of capitalinvestment in wells and physical equipment, and intangible
drilling costs, the commissioner shall provide by order for the
sharing of such costs in the same proportion as the costs and
expenses of the unit operation:
Provided, That any operator who
has not consented to the utilization shall not be required to
contribute to the costs or expenses of the unit operation, or to
the cost of capital investment in wells and physical equipment,
and intangible drilling costs, except out of the proceeds from
the sale of the production accruing to the interest of such
operator:
Provided, however, That no credit to the well costs
shall be adjusted on the basis of less than the average well
costs within the unitized area:
Provided further, That no order
entered under the provisions of this section requiring unit
operation shall vary or alter any of the terms of any contract
entered into by operators and royalty owners under the provisions
of this section.
§22C-9-9. Validity of unit agreements.
No agreement between or among operators, lessees or other
owners of oil or gas rights in oil and gas properties, entered
into pursuant to the provisions of this article or with a view to
or for the purpose of bringing about the unitized development or
operation of such properties, shall be held to violate the
statutory or common law of this state prohibiting monopolies or
acts, arrangements, contracts, combinations or conspiracies in
restraint of trade or commerce.
§22C-9-10. Hearing procedures.
(a) Upon receipt of an application for an order of the
commissioner for which a hearing is required by the provisions of
this article, the commissioner shall set a time and place for
such hearing not less than ten and not more than thirty days
thereafter. Any scheduled hearing may be continued by the
commissioner upon the commissioner's own motion or for good cause
shown by any party to the hearing. All interested parties shall
be entitled to be heard at any hearing conducted under the
provisions of this article.
(b) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and
following such hearing, with like effect as if the provisions of
said article were set forth in extenso in this subsection.
(c) Any such hearing shall be conducted by the commissioner.
For the purpose of conducting any such hearing, the commissioner
shall have the power and authority to issue subpoenas and
subpoenas duces tecum which shall be issued and served within the
time, for the fees and shall be enforced, as specified in section
one, article five of said chapter twenty-nine-a, and all of the
said section one provisions dealing with subpoenas and subpoenas
duces tecum shall apply to subpoenas and subpoenas duces tecum
issued for the purpose of a hearing hereunder.
(d) At any such hearing any interested person may represent
themselves or be represented by an attorney-at-law admitted to
practice before any circuit court of this state. Upon request bythe commissioner, the commissioner shall be represented at such
hearing by the attorney general or the attorney general's
assistants without additional compensation. The commissioner,
with the written approval of the attorney general, may employ
special counsel to represent the commissioner at any such
hearing.
(e) After any such hearing and consideration of all of the
testimony, evidence and record in the case, the commissioner
shall render a decision in writing. The written decision of the
commissioner shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such decision
and accompanying findings and conclusions shall be served by
certified mail, return receipt requested, upon all interested
persons and their attorney of record, if any.
The decision of the commissioner shall be final unless
reversed, vacated or modified upon judicial review thereof in
accordance with the provisions of section eleven of this article.
§22C-9-11. Judicial review; appeal to supreme court of appeals;
legal representation for commissioner.
(a) Any person adversely affected by a decision of the
commissioner rendered after a hearing held in accordance with the
provisions of section ten of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code,
shall apply to and govern such judicial review with like effectas if the provisions of said section four were set forth in
extenso in this section.
(b) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section one the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(c) Legal counsel and services for the commissioner in all
appeal proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or the attorney
general's assistants and in any circuit court by the prosecuting
attorney of the county as well, all without additional
compensation. The commissioner, with the written approval of the
attorney general, may employ special counsel to represent the
commissioner at any such appeal proceedings.
§22C-9-12. Injunctive relief.
(a) Whenever it appears to the commissioner that any person
has been or is violating or is about to violate any provision of
this article, any reasonable rule promulgated by the commissioner
hereunder or any order or final decision of the commissioner, the
commissioner may apply in the name of the state to the circuit
court of the county in which the violations or any part thereof
has occurred, is occurring or is about to occur, or the judgethereof in vacation, for an injunction against such person and
any other persons who have been, are or are about to be, involved
in any practices, acts or omissions, so in violation, enjoining
such person or persons from any such violation or violations.
Such application may be made and prosecuted to conclusion whether
or not any such violation or violations have resulted or shall
result in prosecution or conviction under the provisions of
section fourteen of this article.
(b) Upon application by the commissioner, the circuit courts
of this state may by mandatory or prohibitory injunction compel
compliance with the provisions of this article, the reasonable
rules promulgated by the commissioner hereunder and all orders
and final decisions of the commissioner. The court may issue a
temporary injunction in any case pending a decision on the merits
of any application filed. Any other section of this code to the
contrary notwithstanding, the state shall not be required to
furnish bond or other undertaking as a prerequisite to obtaining
mandatory, prohibitory or temporary injunctive relief under the
provisions of this article.
(c) The judgment of the circuit court upon any application
permitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil actions.
(d) The commissioner shall be represented in all suchproceedings by the attorney general or the attorney general's
assistants and in such proceedings in the circuit courts by the
prosecuting attorneys of the several counties as well, all
without additional compensation. The commissioner, with the
written approval of the attorney general, may employ special
counsel to represent the commissioner in any such proceedings.
(e) If the commissioner shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of any
provision of this article, any reasonable rule promulgated by the
commissioner hereunder or any order or final decision of the
commissioner, within ten days after receipt of a written request
to do so by any person who is or will be adversely affected by
such violation or threatened violation, the person making such
request may apply in his own behalf for an injunction to enjoin
such violation or threatened violation in any court in which the
commissioner might have brought suit. The commissioner shall be
made a party defendant in such application in addition to the
person or persons violating or threatening to violate any
provision of this article, any reasonable rule promulgated by the
commissioner hereunder or any order or final decision of the
commissioner. The application shall proceed and injunctive
relief may be granted without bond or other undertaking in the
same manner as if the application had been made by the
commissioner.
§22C-9-13. Special oil and gas conservation tax.
Owners of leases on oil and gas for the exploration,development or production of oil or natural gas shall pay to the
commission a special oil and gas conservation tax of three cents
for each acre under lease, excluding from the tax the first
twenty-five thousand acres. The commission shall deposit with
the treasurer of the state of West Virginia, to the credit of the
special oil and gas conservation fund, all taxes collected
hereunder. The special oil and gas conservation fund shall be a
special fund and shall be administered by the commission for the
sole purpose of carrying out all costs necessary to carry out the
provisions of this article. This tax shall be paid as provided
herein annually on or before the first day of July, one thousand
nine hundred seventy-two, and on or before the first day of July
in each succeeding year.
§22C-9-14. Penalties.
(a) Any person who violates any provision of this article,
any of the reasonable rules promulgated by the commissioner
hereunder or any order or any final decision of the commissioner,
other than a violation covered by the provisions of subsection
(b) of this section, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one thousand
dollars, and each day that a violation continues shall constitute
a new and separate violation.
(b) Any person who, for the purpose of evading any provision
of this article, any of the reasonable rules promulgated by the
commissioner hereunder or any order or final decision of the
commissioner, shall make or cause to be made any false entry orstatement in a report required under the provisions of this
article, any of the reasonable rules promulgated by the
commissioner hereunder or any order or final decision of the
commissioner, or shall make or cause to be made any false entry
in any record, account or memorandum required under the
provisions of this article, any of the reasonable rules
promulgated by the commissioner hereunder or any order or any
final decision of the commissioner, or who shall omit, or cause
to be omitted, from any such record, account or memorandum, full,
true and correct entries, or shall remove from this state or
destroy, mutilate, alter or falsify any such record, account or
memorandum, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than five thousand
dollars, or imprisoned in the county jail not more than six
months, or both fined and imprisoned.
(c) Any person who knowingly aids or abets any other person
in the violation of any provision of this article, any of the
reasonable rules promulgated by the commissioner hereunder or any
order of final decision of the commissioner, shall be subject to
the same penalty as that prescribed in this article for the
violation by such other person.
§22C-9-15. Construction.
Except as provided in subsection (c), section three of this
article, this article shall be liberally construed so as to
effectuate the declaration of public policy set forth in section
one of this article.
§22C-9-16. Rules, orders and permits remain in effect.
The rules promulgated and all orders and permits in effect
upon the effective date of this article pursuant to the
provisions of article eight of former chapter twenty-two of this
code shall remain in full force and effect as if such rules,
orders and permits were adopted by the director established in
this chapter but all such rules, orders and permits are subject
to review by the commissioner to ensure they are consistent with
the purposes and policies set forth in this chapter and chapter
twenty-two of this code.
ARTICLE 10. INTERSTATE MINING COMPACT.
§22C-10-1. Enactment of compact.
The "Interstate Mining Compact" is hereby continued in law
and continued in effect with all other jurisdictions legally
joining therein in the form substantially as follows:
INTERSTATE MINING COMPACT
Article I. Findings and Purposes.
(a) The party states find that:
(1) Mining and the contributions thereof to the economy and
well-being of every state are of basic significance.
(2) The effects of mining on the availability of land, water
and other resources for other uses present special problems which
properly can be approached only with due consideration for the
rights and interests of those engaged in mining, those using or
proposing to use these resources for other purposes and the
public.
(3) Measures for the reduction of the adverse effects of
mining on land, water and other resources may be costly and the
devising of means to deal with them are of both public and
private concern.
(4) Such variables as soil structure and composition,
physiography, climatic conditions and the needs of the public
make impracticable to all mining areas of a single standard for
the conservation, adaption or restoration of mined land, or the
development of mineral and other natural resources, but
justifiable requirements of law and practice relating to the
effects of mining on land, water and other resources may be
reduced in equity or effectiveness unless they pertain similarly
from state to state for all mining operations similarly situated.
(5) The states are in a position and have the responsibility
to assure that mining shall be conducted in accordance with sound
conservation principles, and with due regard for local
conditions.
(b) The continuing purposes of this compact are to:
(1) Advance the protection and restoration of land, water
and other resources affected by mining.
(2) Assist in the reduction or elimination or counteracting
of pollution or deterioration of land, water and air attributable
to mining.
(3) Encourage, with due recognition of relevant regional,
physical and other differences, programs in each of the party
states which will achieve comparable results in protecting,conserving and improving the usefulness of natural resources, to
the end that the most desirable conduct of mining and related
operations may be universally facilitated.
(4) Assist the party states in their efforts to facilitate
the use of land and other resources affected by mining, so that
such use may be consistent with sound land use, public health and
public safety, and to this end to study and recommend, wherever
desirable, techniques for the improvement, restoration or
protection of such land and other resources.
(5) Assist in achieving and maintaining an efficient and
productive mining industry and in increasing economic and other
benefits attributable to mining.
Article II. Definitions.
As used in this compact, the term:
(a) "Mining" means the breaking of the surface soil in order
to facilitate or accomplish the extraction or removal of
minerals, ores or other solid matter, any activity or process
constituting all or part of a process for the extraction or
removal of minerals, ores and other solid matter from its
original location, and the preparation, washing, cleaning or
other treatment of minerals, ores or other solid matter so as to
make them suitable for commercial, industrial or construction
use; but shall not include those aspects of deep mining not
having significant effect on the surface, and shall not include
excavation or grading when conducted solely in aid of on-site
farming or construction.
(b) "State" means a state of the United States, the District
of Columbia, the commonwealth of Puerto Rico or a territory or
possession of the United States.
Article III. State Programs.
Each party state agrees that within a reasonable time it
will formulate and establish an effective program for the
conservation and use of mined land, by the establishment of
standards, enactment of laws or the continuing of the same in
force, to accomplish:
(a) The protection of the public and the protection of
adjoining and other landowners from damage to their lands and the
structures and other property thereon resulting from the conduct
of mining operations or the abandonment or neglect of land and
property formerly used in the conduct of such operations.
(b) The conduct of mining and the handling of refuse and
other mining wastes in ways that will reduce adverse effects on
the economic, residential, recreational or aesthetic value and
utility of land and water.
(c) The institution and maintenance of suitable programs for
adaption, restoration and rehabilitation of mined lands.
(d) The prevention, abatement and control of water, air and
soil pollution resulting from mining, present, past and future.
Article IV. Powers.
In addition to any other powers conferred upon the
interstate mining commission, established by Article V of this
compact, such commission shall have power to:
(a) Study mining operations, processes and techniques for
the purpose of gaining knowledge concerning the effects of such
operations, processes and techniques on land, soil, water, air,
plant and animal life, recreation and patterns of community or
regional development or change.
(b) Study the conservation, adaptation, improvement and
restoration of land and related resources affected by mining.
(c) Make recommendations concerning any aspect or aspects of
law or practice and governmental administration dealing with
matters within the purview of this compact.
(d) Gather and disseminate information relating to any of
the matters within the purview of this compact.
(e) Cooperate with the federal government and any public or
private entities having interests in any subject coming within
the purview of this compact.
(f) Consult, upon the request of a party state and within
resources available therefor, with the officials of such state in
respect to any problem within the purview of this compact.
(g) Study and make recommendations with respect to any
practice, process, technique or course of action that may improve
the efficiency of mining or the economic yield from mining
operations.
(h) Study and make recommendations relating to the
safeguarding of access to resources which are or may become the
subject of mining operations to the end that the needs of the
economy for the products of mining may not be adversely affectedby unplanned or inappropriate use of land and other resources
containing minerals or otherwise connected with actual or
potential mining sites.
Article V. The Commission.
(a) There is hereby created an agency of the party states to
be known as the "Interstate Mining Commission", hereinafter
called "the commission". The commission shall be composed of one
commissioner from each party state who shall be the governor
thereof. Pursuant to the laws of his party state, each governor
shall have the assistance of an advisory body (including
membership from mining industries, conservation interests and
such other public and private interests as may be appropriate) in
considering problems relating to mining and in discharging his
responsibilities as the commissioner of his state on the
commission. In any instance where a governor is unable to attend
a meeting of the commission or perform any other function in
connection with the business of the commission, he shall
designate an alternate from among the members of the advisory
body required by this paragraph, who shall represent him and act
in his place and stead. The designation of an alternate shall be
communicated by the governor to the commission in such manner as
its bylaws may provide.
(b) The commissioners shall be entitled to one vote each on
the commission. No action of the commission making a
recommendation pursuant to Articles IV (c), IV (g) and IV (h) or
requesting, accepting or disposing of funds, services or otherproperty pursuant to this paragraph, Article V (g), V (h) or VII
shall be valid unless taken at a meeting at which a majority of
the total number of votes on the commission is cast in favor
thereof. All other action shall be by a majority of those
present and voting:
Provided, That action of the commission
shall be only at a meeting at which a majority of the
commissioners, or their alternates, is present. The commission
may establish and maintain such facilities as may be necessary
for the transacting of its business. The commission may acquire,
hold and convey real and personal property and any interest
therein.
(c) The commission shall have a seal.
(d) The commission shall elect annually, from among its
members, a chairman, a vice chairman, and a treasurer. The
commission shall appoint an executive director and fix his duties
and compensation. Such executive director shall serve at the
pleasure of the commission. The executive director, the
treasurer and such other personnel as the commission shall
designate shall be bonded. The amount or amounts of such bond or
bonds shall be determined by the commission.
(e) Irrespective of the civil service, personnel or other
merit system laws of any of the party states, the executive
director with the approval of the commission, shall appoint,
remove or discharge such personnel as may be necessary for the
performance of the commission's functions, and shall fix the
duties and compensation of such personnel.
(f) The commission may establish and maintain, independently
or in conjunction with a party state, a suitable retirement
system for its employees. Employees of the commission shall be
eligible for social security coverage in respect of old age and
survivor's insurance:
Provided, That the commission take such
steps as may be necessary pursuant to the laws of the United
States to participate in such program of insurance as a
governmental agency or unit. The commission may establish and
maintain or participate in such additional programs of employee
benefits as it may deem appropriate.
(g) The commission may borrow, accept or contract for the
services of personnel from any state, the United States or any
other governmental agency, or from any person, firm, association
or corporation.
(h) The commission may accept for any of its purposes and
functions under this compact any and all donations and grants of
money, equipment, supplies, materials and services, conditional
or otherwise, from any state, the United States or any other
governmental agency, or from any person, firm, association or
corporation, and may receive, utilize and dispose of the same.
Any donation or grant accepted by the commission pursuant to this
paragraph or services borrowed pursuant to paragraph (g) of this
article shall be reported in the annual report of the commission.
Such report shall include the nature, amount and conditions, if
any, of the donation, grant or services borrowed and the identity
of the donor or lender.
(i) The commission shall adopt bylaws for the conduct of its
business and shall have the power to amend and rescind these
bylaws. The commission shall publish its bylaws in convenient
form and shall file a copy thereof and a copy of any amendment
thereto with the appropriate agency or officer in each of the
party states.
(j) The commission annually shall make to the governor,
Legislature and advisory body required by Article V (a) of each
party state a report covering the activities of the commission
for the preceding year, and embodying such recommendations as may
have been made by the commission. The commission may make such
additional reports as it may deem desirable.
Article VI. Advisory, Technical and Regional Committees.
The commission shall establish such advisory, technical and
regional committees as it may deem necessary, membership on which
shall include private persons and public officials, and shall
cooperate with and use the services of any such committees and
the organizations which the members represent in furthering any
of its activities. Such committees may be formed to consider
problems of special interest to any party states, problems
dealing with particular commodities or types of mining
operations, problems relating to reclamation, development or use
of mined land or any other matters of concern to the commission.
Article VII. Finance.
(a) The commission shall submit to the governor or
designated officer or officers of each party state a budget ofits estimated expenditures for such periods as may be required by
the laws of that party state for presentation to the Legislature
thereof.
(b) Each of the commission's budgets of estimated
expenditures shall contain specific recommendations of the amount
or amounts to be appropriated by each of the party states. The
total amount of appropriations requested under any such budget
shall be apportioned among the party states as follows: One half
in equal shares, and the remainder in proportion to the value of
minerals, ores and other solid matter mined. In determining such
values, the commission shall employ such available public source
or sources of information as, in its judgment, present the most
equitable and accurate comparisons among the party states. Each
of the commission's budgets of estimated expenditures and
requests for appropriations shall indicate the source or sources
used in obtaining information concerning value of minerals, ores
and other solid matter mined.
(c) The commission shall not pledge the credit of any party
state. The commission may meet any of its obligations, in whole
or in part, with funds available to it under Article V (h) of
this compact:
Provided, That the commission takes specific
action setting aside such funds prior to incurring any obligation
to be met, in whole or in part, in such manner. Except where the
commission makes use of funds available to it under Article V (h)
hereof, the commission shall not incur any obligation prior to
the allotment of funds by the party states adequate to meet thesame.
(d) The commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of
the commission shall be subject to the audit and accounting
procedures established under its bylaws. All receipts and
disbursements of funds handled by the commission shall be audited
yearly by a qualified public accountant and the report of the
audit shall be included in and become part of the annual report
of the commission.
(e) The accounts of the commission shall be open at any
reasonable time for inspection by duly constituted officers of
the party states and by any persons authorized by the commission.
(f) Nothing contained herein shall be construed to prevent
commission compliance with laws relating to audit or inspection
of accounts by or on behalf of any government contributing to the
support of the commission.
Article VIII. Entry Into Force and Withdrawal.
(a) This compact shall enter into force when enacted into
law by any four or more states. Thereafter, this compact shall
become effective as to any other state upon its enactment
thereof.
(b) Any party state may withdraw from this compact by
enacting a statute repealing the same, but no such withdrawal
shall take effect until one year after the governor of the
withdrawing state has given notice in writing of the withdrawal
to the governors of all other party states. No withdrawal shallaffect any liability already incurred by or chargeable to a party
state prior to the time of such withdrawal.
Article IX. Effect on Other Laws.
Nothing in this compact shall be construed to limit, repeal
or supersede any other law of any party state.
Article X. Construction and Severability.
This compact shall be liberally construed so as to
effectuate the purposes thereof. The provisions of this compact
shall be severable and if any phrase, clause, sentence or
provision of this compact is declared to be contrary to the
constitution of any state or of the United States or the
applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of
this compact and the applicability thereof to any government,
agency, person or circumstance shall not be affected thereby. If
this compact shall be held contrary to the constitution of any
state participating herein, the compact shall remain in full
force and effect as to the remaining party states and in full
force and effect as to the state affected as to all severable
matters.
§22C-10-2. Bylaws of interstate mining commission.
In accordance with Article V (i) of the interstate mining
compact, the commission shall file copies of its bylaws and any
amendments thereto in the office of the secretary of state of
West Virginia.
§22C-10-3. Effective date.
This article is effective as of the first day of July, one
thousand nine hundred seventy-two.
ARTICLE 11. INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN.
§22C-11-1. Creation of commission; members; terms; compact with
other political units.
There is hereby created a commission consisting of three
members, to act jointly with commissioners appointed for like
purposes by the commonwealths of Pennsylvania and Virginia, the
state of Maryland, and the District of Columbia, and an
additional three members to be appointed by the president of the
United States, and which, together with the other commissioners
appointed as hereinbefore mentioned, shall constitute and be
known as the "interstate commission on the Potomac River basin".
The said commission of the state of West Virginia shall consist
of three members. The governor, by and with the advice and
consent of the Senate, shall appoint two persons as two of such
commissioners, each of whom shall be a resident and citizen of
this state. The terms of one of the said two commissioners first
appointed shall be three years and of the other shall be six
years; and their successors shall be appointed by the governor,
by and with the advice and consent of the Senate, for terms of
six years each. Each commissioner shall hold office until his
successor shall be appointed and qualified. Vacancies occurring
in the office of any such commissioner for any reason or cause
shall be filled by appointment by the governor, by and with the
advice and consent of the Senate, for the unexpired term. Thethird commissioner from this state is the commissioner of the
bureau of public health ex officio, and the term of the ex
officio commissioner terminates at the time he ceases to hold
said office. Said ex officio commissioner may delegate, from
time to time, to any deputy or other subordinate in his division
or office, the power to be present and participate, including
voting, as his representative or substitute at any meeting of or
hearing by or other proceeding of the commission. The term of
each of the initial three members shall begin at the date of the
appointment of the two appointive commissioners:
Provided, That
the compact hereinafter referred to shall then have gone into
effect, in accordance with article six thereof, otherwise to
begin upon the date said compact shall become effective, in
accordance with said article six.
Any commissioner may be removed from office by the governor.
The governor of the state of West Virginia is hereby
authorized and directed to execute a compact on behalf of the
state of West Virginia, with the other states and the district
hereinabove referred to, who may by their legislative bodies so
authorize a compact in form substantially as follows:
A COMPACT
Whereas, It is recognized that abatement of existing
pollution and the control of future pollution of interstate
streams can best be promoted through a joint agency representing
the several states located wholly or in part within the area
drained by any such interstate streams; and
Whereas, The Congress of the United States has given its
consent to the states of Maryland and West Virginia, the
commonwealths of Pennsylvania and Virginia, and the District of
Columbia to enter into a compact providing for the creation of a
conservancy district to consist of the drainage basin of the
Potomac River and the main and tributary streams therein, for
"the purpose of regulating, controlling, preventing, or otherwise
rendering unobjectionable and harmless the pollution of the
waters of said Potomac drainage area by sewage and industrial and
other wastes"; and
Whereas, The regulation, control and prevention of pollution
is directly affected by the quantities of water in said streams
and the uses to which such water may be put, thereby requiring
integration and coordination of the planning for the development
and use of the water and associated land resources through
cooperation with, and support and coordination of, the activities
of federal, state, local and private agencies, groups, and
interests concerned with the development, utilization and
conservation of the water and associated land resources of the
said conservancy district; now, therefor,
The states of Maryland and West Virginia, the commonwealths
of Pennsylvania and Virginia, and the District of Columbia,
hereinafter designated signatory bodies, do hereby create the
Potomac valley conservancy district, hereinafter designated the
conservancy district, comprising all of the area drained by the
Potomac river and its tributaries; and also, do hereby create, asan agency of each signatory body, the interstate commission on
the Potomac River basin, hereinafter designated the commission,
under the articles of organization as set forth below.
Article I
The interstate commission on the Potomac River basin shall
consist of three members from each signatory body and three
members appointed by the president of the United States. Said
commissioners, other than those appointed by the president, shall
be chosen in a manner and for the terms provided by law of the
signatory body from which they are appointed, and shall serve
without compensation from the commission but shall be paid by the
commission their actual expenses incurred and incident to the
performance of their duties.
(A) The commission shall meet and organize within thirty
days after the effective date of this compact, shall elect from
its number a chairman and vice chairman, shall adopt suitable
bylaws, shall make, adopt and promulgate such rules and
regulations as are necessary for its management and control, and
shall adopt a seal.
(B) The commission shall appoint, and at its pleasure,
remove or discharge such officers and legal, engineering,
clerical, expert and other assistants as may be required to carry
the provisions of this compact into effect, and shall determine
their qualifications and fix their duties and compensation. Such
personnel as may be employed shall be employed without regard to
any civil service or other similar requirements for employees ofany of the signatory bodies. The commission may maintain one or
more offices for the transaction of its business and may meet at
any time within the area of the signatory bodies.
(C) The commission shall keep accurate accounts of all
receipts and disbursements and shall make an annual report
thereof and shall in such report set forth in detail the
operations and transactions conducted by it pursuant to this
compact. The commission, however, shall not incur any
obligations for administrative or other expenses prior to the
making of appropriations adequate to meet the same nor shall it
in any way pledge the credit of any of the signatory bodies.
Each of the signatory bodies reserves the right to make at any
time an examination and audit of the accounts of the commission.
(D) A quorum of the commission shall, for the transaction of
business, the exercise of any powers, or the performance of any
duties, consist of at least six members of the commission who
shall represent at least a majority of the signatory bodies:
Provided, That no action of the commission relating to policy or
stream classification or standards shall be binding on any one of
the signatory bodies unless at least two of the commissioners
from such signatory body shall vote in favor thereof.
Article II
The commission shall have the power:
(A) To collect, analyze, interpret, coordinate, tabulate,
summarize and distribute technical and other data relative to,
and to conduct studies, sponsor research and prepare reports on,pollution and other water problems of the conservancy district.
(B) To cooperate with the legislative and administrative
agencies of the signatory bodies, or the equivalent thereof, and
with other commissions and federal, local governmental and
nongovernmental agencies, organizations, groups and persons for
the purpose of promoting uniform laws, rules or regulations for
the abatement and control of pollution of streams and the
utilization, conservation and development of the water and
associated land resources in the said conservancy district.
(C) To disseminate to the public information in relation to
stream pollution problems and the utilization, conservation and
development of the water and associated land resources of the
conservancy district and on the aims, views, purposes and
recommendations of the commission in relation thereto.
(D) To cooperate with, assist and provide liaison for and
among, public and nonpublic agencies and organizations concerned
with pollution and other water problems in the formulation and
coordination of plans, programs and other activities relating to
stream pollution or to the utilization, conservation or
development of water or associated land resources, and to sponsor
cooperative action in connection with the foregoing.
(E) In its discretion and at any time during or after the
formulation thereof, to review and to comment upon any plan or
program of any public or private agency or organization relating
to stream pollution or the utilization, conservation or
development of water or associated land resources.
(F) (1) To make, and, if needful from time to time, revise
and to recommend to the signatory bodies, reasonable minimum
standards for the treatment of sewage and industrial or other
wastes now discharged or to be discharged in the future to the
streams of the conservancy district, and also, for cleanliness of
the various streams in the conservancy district.
(2) To establish reasonable physical, chemical and
bacteriological standards of water quality satisfactory for
various classifications of use. It is agreed that each of the
signatory bodies through appropriate agencies will prepare a
classification of its interstate waters in the district in
entirety or by portions according to present and proposed highest
use, and for this purpose technical experts employed by
appropriate state water pollution control agencies are authorized
to confer on questions relating to classification of interstate
waters affecting two or more states. Each signatory body agrees
to submit its classification of its interstate waters to the
commission with its recommendations thereon.
The commission shall review such classification and
recommendations and accept or return the same with its comments.
In the event of return, the signatory body will consider the
comments of the commission and resubmit the classification
proposal, with or without amendment, with any additional comments
for further action by the commission.
It is agreed that after acceptance of such classification,
the signatory body through its appropriate state water pollutioncontrol agencies will work to establish programs of treatment of
sewage and industrial wastes which will meet or exceed standards
established by the commission for classified waters. The
commission may from time to time make such changes in definitions
of classifications and in standards as may be required by changed
conditions or as may be necessary for uniformity and in a manner
similar to that in which these standards and classifications were
originally established.
It is recognized, owing to such variable factors as
location, size, character and flow and the many varied uses of
the waters subject to the terms of this compact, that no single
standard of sewage and waste treatment and no single standard of
quality of receiving waters is practical and that the degree of
treatment of sewage and industrial wastes should take into
account the classification of the receiving waters according to
present and proposed highest use, such as for drinking water
supply, bathing and other recreational purposes, maintenance and
propagation of fish life, industrial and agricultural uses,
navigation and disposal of wastes.
Article III
For the purpose of dealing with the problems of pollution
and of water and associated land resources in specific areas
which directly affect two or more, but not all, signatory bodies,
the commission may establish sections of the commissions
consisting of the commissioners from such affected signatory
bodies:
Provided, That no signatory body may be excluded fromany section in which it wishes to participate. The commissioners
appointed by the president of the United States may participate
in any section. The commission shall designate, and from time to
time may change, the geographical area with respect to which each
section shall function. Each section shall, to such extent as
the commission may from time to time authorize, have authority to
exercise and perform with respect to its designated geographical
area any power or function vested in the commission, and in
addition may exercise such other powers and perform such
functions as may be vested in such section by the laws of any
signatory body or by the laws of the United States. The exercise
or performance by a section of any power or function vested in
the commission may be financed by the commission, but the
exercise or performance of powers or functions vested solely in
a section shall be financed through funds provided in advance by
the bodies, including the United States, participating in such
section.
Article IV
The moneys necessary to finance the commission in the
administration of its business in the conservancy district shall
be provided through appropriations from the signatory bodies and
the United States, in the manner prescribed by the laws of the
several signatory bodies and of the United States, and in amounts
as follows:
The pro rata contribution shall be based on such factors as
population; the amount of industrial and domestic pollution; anda flat service charge; as shall be determined from time to time
by the commission, subject, however, to the approval,
ratification and appropriation of such contribution by the
several signatory bodies.
Article V
Pursuant to the aims and purposes of this compact, the
signatory bodies mutually agree:
1. Faithful cooperation in the abatement of existing
pollution and the prevention of future pollution in the streams
of the conservancy district and in planning for the utilization,
conservation and development of the water and associated land
resources thereof.
2. The enactment of adequate and, insofar as is
practicable, uniform legislation for the abatement and control of
pollution and control and use of such streams.
3. The appropriation of biennial sums on the proportionate
basis as set forth in article four.
Article VI
This compact shall become effective immediately after it
shall have been ratified by the majority of the legislatures of
the states of Maryland and West Virginia, the commonwealths of
Pennsylvania and Virginia, and by the commissioners of the
District of Columbia, and approval by the Congress of the United
States:
Provided, That this compact shall not be effective as to
any signatory body until ratified thereby.
Article VII
Any signatory body may, by legislative action, after one
year's notice to the commission, withdraw from this compact.
§22C-11-2. Appointment of alternates.
The governor, by and with the consent of the Senate, shall
appoint an alternate member for the two members of the commission
who are not ex officio, and each alternate shall have power to
act in the absence of the person for whom he is alternate. The
governor shall appoint the first alternates hereunder on or
before July first, one thousand nine hundred forty-nine, the term
of each alternate to run concurrently with the term of the member
for whom he is alternate.
§22C-11-3. Expenses of commission; appropriation; officers and
employees; meetings.
The commissioners shall be reimbursed, out of moneys
appropriated for such purposes, all sums which they necessarily
shall expend in the discharge of their duties as members of such
commission.
There shall be appropriated to the commission out of any
moneys in the state treasury unexpended and available therefor,
and not otherwise appropriated, such sums as may be necessary for
the uses and purposes of the commission in carrying out the
provisions of this article and the payment of the proper
proportion of the state of West Virginia of the expenses of the
"interstate commission on the Potomac River Basin", in accordance
with article four of said compact.
The commission shall elect from its membership a chairmanand may also select a secretary who need not be a member. The
commission may employ such assistants as it may deem necessarily
required, and the duties of such assistants shall be prescribed
and their compensation fixed by the commission and paid out of
the state treasury out of funds appropriated for such purposes
upon the requisition of said commission.
The commission shall meet at such times and places as agreed
upon by the commissioners or upon call of its chairman.
§22C-11-4. Effective date; findings; termination date.
This article shall become effective upon the adoption of
substantially similar amendments to the interstate compact by
each of the signatory states to the compact, and upon the
approval of the amendments to the compact by the Congress of the
United States.
After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that West Virginia should
remain a member of the interstate compact. Accordingly,
notwithstanding the provisions of sections four and six, article
ten, chapter four of this code, West Virginia shall continue to
be a member of this compact until the first day of July, one
thousand nine hundred ninety-eight.
§22C-11-5. Restrictions.
Neither the governor of the state of West Virginia nor any
member of the commission aforesaid, representing the state ofWest Virginia, shall consent to the construction of any dam,
whether in the state of West Virginia, or without this state,
which shall flood lands in this state, without the express
consent of the Legislature.
ARTICLE 12. OHIO RIVER VALLEY WATER SANITATION COMMISSION.
§22C-12-1. Ohio River valley water sanitation compact approved.
The following Ohio River valley water sanitation compact,
which has been negotiated by representatives of the states of
Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania,
Tennessee and West Virginia, is hereby approved, ratified,
adopted, enacted into law, and entered into by the state of West
Virginia as a party thereto and signatory state, namely:
OHIO RIVER VALLEY WATER SANITATION COMPACT
Whereas, A substantial part of the territory of each of the
signatory states is situated within the drainage basin of the
Ohio River; and
Whereas, The rapid increase in the population of the various
metropolitan areas situate within the Ohio drainage basin, and
the growth in industrial activity within that area, have resulted
in recent years in an increasingly serious pollution of the
waters and streams within the said drainage basin, constituting
a grave menace to the health, welfare, and recreational
facilities of the people living in such basin, and occasioning
great economic loss; and
Whereas, The control of future pollution and the abatement
of existing pollution in the waters of said basin are of primeimportance to the people thereof, and can best be accomplished
through the cooperation of the states situated therein, by and
through a joint or common agency;
Now, Therefore, the states of Illinois, Indiana, Kentucky,
New York, Ohio, Pennsylvania, Tennessee and West Virginia do
hereby covenant and agree as follows:
Article I
Each of the signatory states pledges to each of the other
signatory states faithful cooperation in the control of future
pollution in and abatement of existing pollution from the rivers,
streams and waters in the Ohio River basin which flow through,
into or border upon any of such signatory states, and in order to
effect such object, agrees to enact any necessary legislation to
enable each such state to place and maintain the waters of said
basin in a satisfactory sanitary condition, available for safe
and satisfactory use as public and industrial water supplies
after reasonable treatment, suitable for recreational usage,
capable of maintaining fish and other aquatic life, free from
unsightly or malodorous nuisances due to floating solids or
sludge deposits, and adaptable to such other uses as may be
legitimate.
Article II
The signatory states hereby create a district to be known as
the "Ohio River valley Water Sanitation District", hereinafter
called the district, which shall embrace all territory within the
signatory states, the water in which flows ultimately into theOhio River, or its tributaries.
Article III
The signatory states hereby create the "Ohio River Valley
Water Sanitation Commission", hereinafter called the commission,
which shall be a body corporate, with the powers and duties set
forth herein, and such additional powers as may be conferred upon
it by subsequent action of the respective legislatures of the
signatory states or by act or acts of the Congress of the United
States.
Article IV
The commission shall consist of three commissioners from
each state, each of whom shall be a citizen of the state from
which he is appointed, and three commissioners representing the
United States government. The commissioners from each state
shall be chosen in the manner and for the terms provided by the
laws of the state from which they shall be appointed, and any
commissioner may be removed or suspended from office as provided
by the law of the state from which he shall be appointed. The
commissioners representing the United States shall be appointed
by the president of the United States, or in such other manner as
may be provided by Congress. The commissioners shall serve
without compensation, but shall be paid their actual expenses
incurred in and incident to the performance of their duties; but
nothing herein shall prevent the appointment of an officer or
employee of any state or of the United States government.
Article V
The commission shall elect from its number a chairman and
vice chairman, and shall appoint, and at its pleasure remove or
discharge, such officers and legal, clerical, expert and other
assistants as may be required to carry the provisions of this
compact into effect, and shall fix and determine their duties,
qualifications and compensation. It shall adopt a seal and
suitable bylaws, and shall adopt and promulgate rules and
regulations for its management and control. It may establish and
maintain one or more offices within the district for the
transaction of its business, and may meet at any time or place.
One or more commissioners from a majority of the member states
shall constitute a quorum for the transaction of business.
The commission shall submit to the governor of each state,
at such time as he may request, a budget of its estimated
expenditures for such period as may be required by the laws of
such state for presentation to the legislature thereof.
The commission shall keep accurate books of account, showing
in full its receipts and disbursements, and said books of account
shall be open at any reasonable time to the inspection of such
representatives of the respective signatory states as may be duly
constituted for that purpose.
On or before the first day of December of each year, the
commission shall submit to the respective governors of the
signatory states a full and complete report of its activities for
the preceding year.
The commission shall not incur any obligations of any kindprior to the making of appropriations adequate to meet the same;
nor shall the commission pledge the credit of any of the
signatory states, except by and with the authority of the
legislature thereof.
Article VI
It is recognized by the signatory states that no single
standard for the treatment of sewage or industrial wastes is
applicable in all parts of the district due to such variable
factors as size, flow, location, character, self-purification,
and usage of waters within the district. The guiding principle
of this compact shall be that pollution by sewage or industrial
wastes originating within a signatory state shall not injuriously
affect the various uses of the interstate waters as hereinbefore
defined.
All sewage from municipalities or other political
subdivisions, public or private institutions, or corporations,
discharged or permitted to flow into these portions of the Ohio
River and its tributary waters which form boundaries between, or
are contiguous to, two or more signatory states, or which flow
from one signatory state into another signatory state, shall be
so treated, within a time reasonable for the construction of the
necessary works, as to provide for substantially complete removal
of settleable solids, and the removal of not less than forty-five
percent of the total suspended solids; provided that, in order to
protect the public health or to preserve the waters for other
legitimate purposes, including those specified in article I, inspecific instances such higher degree of treatment shall be used
as may be determined to be necessary by the commission after
investigation, due notice and hearing.
All industrial wastes discharged or permitted to flow into
the aforesaid waters shall be modified or treated, within a time
reasonable for the construction of the necessary works, in order
to protect the public health or to preserve the waters for other
legitimate purposes, including those specified in article I, to
such degree as may be determined to be necessary by the
commission after investigation, due notice and hearing.
All sewage or industrial wastes discharged or permitted to
flow into tributaries of the aforesaid waters situated wholly
within one state shall be treated to that extent, if any, which
may be necessary to maintain such waters in a sanitary and
satisfactory condition at least equal to the condition of the
waters of the interstate stream immediately above the confluence.
The commission is hereby authorized to adopt, prescribe and
promulgate rules, regulations and standards for administering and
enforcing the provisions of this article.
Article VII
Nothing in this compact shall be construed to limit the
powers of any signatory state, or to repeal or prevent the
enactment of any legislation or the enforcement of any
requirement by any signatory state, imposing additional
conditions and restrictions to further lessen or prevent the
pollution of waters within its jurisdiction.
Article VIII
The commission shall conduct a survey of the territory
included within the district, shall study the pollution problems
of the district, and shall make a comprehensive report for the
prevention or reduction of stream pollution therein. In
preparing such report, the commission shall confer with any
national or regional planning body which may be established, and
any department of the federal government authorized to deal with
matters relating to the pollution problems of the district. The
commission shall draft and recommend to the governors of the
various signatory states uniform legislation dealing with the
pollution of rivers, streams, and waters and other pollution
problems within the district. The commission shall consult with
and advise the various states, communities, municipalities,
corporations, persons, or other entities with regard to
particular problems connected with the pollution of waters,
particularly with regard to the construction of plants for the
disposal of sewage, industrial and other waste. The commission
shall, more than one month prior to any regular meeting of the
legislature of any state which is a party thereto, present to the
governor of the state its recommendations relating to enactments
to be made by any legislature in furthering the intents and
purposes of this compact.
Article IX
The commission may from time to time, after investigation
and after a hearing, issue an order or orders upon anymunicipality, corporation, person, or other entity discharging
sewage or industrial waste into the Ohio River or any other
river, stream or water, any part of which constitutes any part of
the boundary line between any two or more of the signatory
states, or into any stream any part of which flows from any
portion of one signatory state through any portion of another
signatory state. Any such order or orders may prescribe the date
on or before which such discharge shall be wholly or partially
discontinued, modified or treated or otherwise disposed of. The
commission shall give reasonable notice of the time and place of
the hearing to the municipality, corporation or other entity
against which such order is proposed. No such order shall go
into effect unless and until it receives the assent of at least
a majority of the commissioners from each of not less than a
majority of the signatory states; and no such order upon a
municipality, corporation, person or entity in any state shall go
into effect unless and until it receives the assent of not less
than a majority of the commissioners from such state.
It shall be the duty of the municipality, corporation,
person or other entity to comply with any such order issued
against it or him by the commission, and any court of general
jurisdiction or any United States district court in any of the
signatory states shall have the jurisdiction, by mandamus,
injunction, specific performance or other form of remedy, to
enforce any such order against any municipality, corporation or
other entity domiciled or located within such state or whosedischarge of the waste takes place within or adjoining such
state, or against any employee, department or subdivision of such
municipality, corporation, person or other entity; provided,
however, such court may review the order and affirm, reverse or
modify the same upon any of the grounds customarily applicable in
proceedings for court review of administrative decisions. The
commission or, at its request, the attorney general or other law-
enforcing official, shall have power to institute in such court
any action for the enforcement of such order.
Article X
The signatory states agree to appropriate for the salaries,
office and other administrative expenses, their proper proportion
of the annual budget as determined by the commission and approved
by the governors of the signatory states, one half of such amount
to be prorated among the several states in proportion to their
population within the district at the last preceding federal
census, the other half to be prorated in proportion to their land
area within the district.
Article XI
This compact shall become effective upon ratification by the
legislatures of a majority of the states located within the
district and upon approval by the Congress of the United States;
and shall become effective as to any additional states signing
thereafter at the time of such signing.
In Witness Whereof, the various signatory states have
executed this compact through their respective compactcommissioners.
§22C-12-2. Appointment of members of commission; state director
of health member ex officio.
In pursuance of article four of said compact, there shall be
three members of the "Ohio River Valley Water Sanitation
Commission" from the state of West Virginia. The governor, by
and with the advice and consent of the Senate, shall appoint two
persons as two of such commissioners, each of whom shall be a
resident and citizen of this state. The terms of one of the said
two commissioners first appointed shall be three years and of the
other shall be six years; and their successors shall be appointed
by the governor, by and with the advice and consent of the Senate
for terms of six years each. Each commissioner shall hold office
until his successor shall be appointed and qualified. Vacancies
occurring in the office of any such commissioner from any reason
or cause shall be filled by appointment by the governor, by and
with the advice and consent of the Senate, for the unexpired
term. The third commissioner from this state is the commissioner
of the bureau of public health, ex officio, and the term of the
ex officio commissioner terminates at the time he ceases to hold
said office. With the exception of the issuance of any order
under the provisions of article nine of the compact, said ex
officio commissioner may delegate, from time to time, to any
deputy or other subordinate in his division or office, the power
to be present and participate, including voting, as his
representative or substitute at any meeting of or hearing by orother proceeding of the commission. The terms of each of the
initial three members shall begin at the date of the appointment
of the two appointive commissioners, provided the said compact
shall then have gone into effect in accordance with article
eleven of the compact; otherwise shall begin upon the date which
said compact shall become effective in accordance with said
article eleven.
Any commissioner may be removed from office by the governor.
§22C-12-3. Powers of commission; duties of state officers,
departments, etc.; jurisdiction of circuit courts;
enforcement of article.
There is hereby granted to the commission and commissioners
thereof all the powers provided for in the said compact and all
the powers necessary or incidental to the carrying out of said
compact in every particular. All officers of this state are
hereby authorized and directed to do all things falling within
their respective provinces and jurisdiction necessary to or
incidental to the carrying out of said compact in every
particular; it being hereby declared to be the policy of this
state to perform and carry out the said compact and to accomplish
the purposes thereof. All officers, bureaus, departments and
persons of and in the state government or administration of this
state of West Virginia are hereby authorized and directed at
convenient times and upon request of the said commission to
furnish the said commission with information and data possessed
by them or any of them and to aid said commission by loan ofpersonnel or other means lying within their legal powers
respectively.
The circuit courts of this state are hereby granted the
jurisdiction specified in article nine of said compact, and the
attorney general or any other law-enforcing officer of this state
is hereby granted the power to institute any action for the
enforcement of the orders of the commission as specified in said
article nine of the compact.
§22C-12-4. Powers granted herein supplemental to other powers
vested in commission.
Any powers herein granted to the commission shall be
regarded as in aid of and supplemental to and in no case a
limitation upon any of the powers vested in said commission by
other laws of this state or by the laws of the states of
Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania,
Tennessee, or by Congress or the terms of said compact.
§22C-12-5. Expenses of commission; appropriations; officers and
employees; meetings.
The commissioners shall be reimbursed out of moneys
appropriated for such purposes, all sums which they necessarily
shall expend in the discharge of their duties as members of such
commission.
There shall be appropriated to the commission out of any
moneys in the state treasury unexpended and available therefor,
and not otherwise appropriated, such sums as may be necessary for
the uses and purposes of the commission in carrying out theprovisions of this article and the payment of the proper
proportion of the state of West Virginia of the annual budget of
the "Ohio River Valley Water Sanitation Commission" in accordance
with article ten of said compact.
The commission shall elect from its membership a chairman
and may also select a secretary who need not be a member. The
commission may employ such assistance as it may deem necessarily
required, and the duties of such assistants shall be prescribed
and their compensation fixed by the commission and paid out of
the state treasury out of funds appropriated for such purposes
upon the requisition of said commission.
The commission shall meet at such times and places as agreed
upon by the commissioners or upon call of its chairman.
§22C-12-6. When article effective; findings; continuation.
This article shall take effect and become operative and the
compact be executed for and on behalf of this state only from and
after the approval, ratification, and adoption, and entering into
thereof by the states of New York, Pennsylvania, Ohio, and
Virginia.
After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that West Virginia should
remain a member of the compact. Accordingly, notwithstanding the
provisions of section four, article ten, chapter four of this
code, West Virginia shall continue to be a member of this compactuntil the first day of July, one thousand nine hundred ninety-
four.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative declarations
and findings; "deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter
contained, no employee or dependent of any employee is entitled
to receive any sum from the workers' compensation fund, or to
direct compensation from any employer making the election and
receiving the permission mentioned in section nine, article two
of this chapter, or otherwise under the provisions of this
chapter, on account of any personal injury to or death to any
employee caused by a self-inflicted injury or the intoxication of
such employee. For the purpose of this chapter, the commissioner
may cooperate with the office of miners' health, safety and
training and the state division of labor in promoting general
safety programs and in formulating rules to govern hazardous
employments.
(b) If injury or death result to any employee from the
deliberate intention of his or her employer to produce such
injury or death, the employee, the widow, widower, child or
dependent of the employee has the privilege to take under this
chapter, and has a cause of action against the employer, as if
this chapter had not been enacted, for any excess of damages overthe amount received or receivable under this chapter.
(c) (1) It is declared that enactment of this chapter and
the establishment of the workers' compensation system in this
chapter was and is intended to remove from the common law tort
system all disputes between or among employers and employees
regarding the compensation to be received for injury or death to
an employee except as herein expressly provided, and to establish
a system which compensates even though the injury or death of an
employee may be caused by his or her own fault or the fault of a
co-employee; that the immunity established in sections six and
six-a, article two of this chapter, is an essential aspect of
this workers' compensation system; that the intent of the
Legislature in providing immunity from common law suit was and is
to protect those so immunized from litigation outside the
workers' compensation system except as herein expressly provided;
that, in enacting the immunity provisions of this chapter, the
Legislature intended to create a legislative standard for loss of
that immunity of more narrow application and containing more
specific mandatory elements than the common law tort system
concept and standard of willful, wanton and reckless misconduct;
and that it was and is the legislative intent to promote prompt
judicial resolution of the question of whether a suit prosecuted
under the asserted authority of this section is or is not
prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and
under section six-a, article two of this chapter, may be lostonly if the employer or person against whom liability is asserted
acted with "deliberate intention". This requirement may be
satisfied only if:
(i) It is proved that such employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of: (A) Conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition;
(C) That such specific unsafe working condition was a
violation of a state or federal safety statute, rule orregulation, whether cited or not, or of a commonly accepted and
well-known safety standard within the industry or business of
such employer, which statute, rule, regulation or standard was
specifically applicable to the particular work and working
condition involved, as contrasted with a statute, rule,
regulation or standard generally requiring safe workplaces,
equipment or working conditions;
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or
death as a direct and proximate result of such specific unsafe
working condition.
(iii) In cases alleging liability under the provisions of
the preceding paragraph (ii):
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to
the contrary, and consistent with the legislative findings of
intent to promote prompt judicial resolution of issues of
immunity from litigation under this chapter, the court shall
dismiss the action upon motion for summary judgment if it finds,
pursuant to Rule 56 of the Rules of Civil Procedure that one or
more of the facts required to be proved by the provisions of
subparagraphs (A) through (E) of the preceding paragraph (ii) donot exist, and the court shall dismiss the action upon a timely
motion for a directed verdict against the plaintiff if after
considering all the evidence and every inference legitimately and
reasonably raised thereby most favorably to the plaintiff, the
court determines that there is not sufficient evidence to find
each and every one of the facts required to be proven by the
provisions of subparagraphs (A) through (E) of the preceding
paragraph (ii); and
(C) The provisions of this paragraph and of each
subparagraph thereof are severable from the provisions of each
other subparagraph, subsection, section, article or chapter of
this code so that if any provision of a subparagraph of this
paragraph is held void, the remaining provisions of this act and
this code remain valid.
(d) The reenactment of this section in the regular session
of the Legislature during the year one thousand nine hundred
eighty-three does not in any way affect the right of any person
to bring an action with respect to or upon any cause of action
which arose or accrued prior to the effective date of such
reenactment.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1b. Additional jurisdiction of commission.
Effective the first day of July, one thousand nine hundred
eighty-eight, in addition to all other powers and duties of the
commission as defined in this article, the commission shallestablish, prescribe and enforce rates and fees charged by
commercial solid waste facilities, as defined in section two,
article fifteen, chapter twenty-two of this code, that are owned
or under the direct control of persons or entities who are
regulated under section five, article two, chapter twenty-four-a
of this code. The commission shall establish, prescribe and
enforce rules providing for the safe transportation of solid
waste in the state.
(b) The public service commission shall study the
feasibility of incorporating and adopting guidelines for solid
waste collection fees that are based upon the volume of solid
waste generated by any person. This report shall be submitted to
the governor and the members of the Legislature on or before the
first day of January, one thousand nine hundred ninety-three.
§24-2-1c. Certificate of need required for solid waste
facilities; priority of disposal.
(a) Any person who holds a valid permit, compliance order or
administrative order allowing continued operation of a commercial
solid waste facility in this state on the first day of September,
one thousand nine hundred ninety-one, shall submit an application
for a certificate of need with the public service commission, on
forms prescribed by the commission, prior to the first day of
March, one thousand nine hundred ninety-two. The commission
shall grant such application within sixty days after submission
of a complete application.
(b) Any person applying for a permit to construct, operateor expand a commercial solid waste facility as defined in section
two, article fifteen, chapter twenty-two of this code, or any
person seeking a major permit modification from the division of
environmental protection first shall obtain a certificate of need
from the public service commission. Application for such
certificate shall be submitted on forms prescribed by the
commission. The commission shall grant or deny a certificate of
need, in accordance with provisions set forth in this chapter.
If the commission grants a certificate of need, the commission
may include conditions not inconsistent with the criteria set
forth in this section.
(c) For purposes of subsections (a) and (b) of this section,
a complete application consists of the following and
notwithstanding any other provision of this chapter to the
contrary, such information contained in the application provided
by the applicant is not confidential and is disclosable pursuant
to the provisions of chapter twenty-nine-b of this code:
(1) The names of the owners or operators of the facility
including any officer, director, manager, person owning five
percent or more interest or other person conducting or managing
the affairs of the applicant or of the proposed facility;
(2) The proposed or existing location of the facility;
(3) A description of the geographic area to be served by the
facility;
(4) The anticipated total number of citizens to be served by
the facility;
(5) The average monthly tonnage of solid waste to be
disposed of by the facility;
(6) The total monthly tonnage of solid waste for which the
facility is seeking a permit from the division of environmental
protection;
(7) The anticipated lifespan and closure date of the
facility; and
(8) Any other information requested on the forms prescribed
by the public service commission.
(d) In considering whether to grant a certificate of need
the commission shall consider, but is not limited to considering,
the following factors:
(1) The total tonnage of solid waste generated within the
county;
(2) The total tonnage of solid waste generated within the
wasteshed;
(3) The current capacity and lifespan of other solid waste
facilities located within the county, if any;
(4) The current capacity and lifespan of other solid waste
facilities located within the wasteshed, if any;
(5) The current capacity and lifespan of other solid waste
facilities located within this state;
(6) The lifespan of the proposed or existing facility;
(7) The cost of transporting solid waste from the points of
generation within the county or wasteshed and the disposal
facility;
(8) The impact of the proposed or existing facility on needs
and criteria contained in the statewide solid waste management
plan; and
(9) Any other criteria which the commission regularly
utilizes in making such determinations.
(e) The public service commission shall deny a certificate
of need upon one or more of the following findings:
(1) The proposed capacity is unreasonable in light of
demonstrated needs;
(2) The location of the facility is inconsistent with the
statewide solid waste management plan;
(3) The location of the facility is inconsistent with any
applicable county or regional solid waste management plan;
(4) The proposed capacity is not reasonably cost effective
in light of alternative disposal sites;
(5) The proposal, taken as a whole, is inconsistent with the
needs and criteria contained in the statewide solid waste
management plan; or
(6) The proposal, taken as a whole, is inconsistent with the
public convenience and necessity.
(f) Any certificates of need granted pursuant to this
section shall be conditioned on acceptance of:
(1) Solid waste generated within the county in which the
facility is or is to be located; and
(2) Solid waste generated within the wasteshed in which the
facility is or is to be located.
(g) An application for a certificate of need shall be
submitted prior to submitting an application for certificate of
site approval in accordance with section twenty-four, article
four, chapter twenty-two-c of this code. Upon the decision of
the commission to grant or deny a certificate of need, the
commission shall immediately notify the solid waste management
board and the division of environmental protection.
(h) Any party aggrieved by a decision of the commission
granting or denying a certificate of need may obtain judicial
review thereof in the same manner provided in section one,
article five of this chapter.
(i) No person may sell, lease or transfer a certificate of
need without first obtaining the consent and approval of the
commission pursuant to the provisions of section twelve of this
article.
§24-2-1f. Jurisdiction of commission over solid waste
facilities.
Effective the first day of July, one thousand nine hundred
eighty-nine, in addition to all other powers and duties of the
commission as defined in this article, the commission shall
establish, prescribe and enforce rates and fees charged by
commercial solid waste facilities, as defined in subsection (b),
section two, article four, chapter twenty-two-c of this code:
Provided, That an owner of a commercial solid waste facility that
is not in existence on the eighth day of April, one thousand nine
hundred eighty-nine that has executed or executes an agreementwith a county commission or county or regional solid waste
authority, establishing disposal rates or fees for said county or
region, shall not be subject to the requirements of this chapter
upon the approval of said disposal rates or fees by the
commission for the term of such agreement:
Provided, however,
That any revisions to rates or fees or any renewals or extensions
of said agreement would be similarly subject to such approval.
The purpose of this provision is to encourage the development of
solid waste disposal facilities which meet the environmental
standards and requirements of article fifteen, chapter twenty-two
of this code and which provide for quality waste disposal for the
county or region at reasonable rates. If any provisions of this
section shall be held unconstitutional, all commercial solid
waste facilities shall be subject to the jurisdiction of the
commission as provided herein.
§24-2-1h. Additional powers and duties of commission to control
flow of solid waste.
(a) Upon the petition of any county or regional solid waste
authority, motor carrier or solid waste facility, or upon the
commission's own motion, the commission may issue an order that
solid waste generated in the surrounding geographical area of a
solid waste facility and transported for processing or disposal
by solid waste collectors and haulers who are "motor carriers",
as defined in chapter twenty-four-a of this code, be processed or
disposed of at a designated solid waste facility or facilities:
Provided, That such order shall not include:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by such person in such person's regular business or
personal activities or by persons utilizing the facility on a
cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; or
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated pursuant to the provisions of
section seven, article fifteen, chapter twenty-two of this code.
(b) In determining whether to issue an order establishing
flow control to a solid waste facility, the commission shall
consider, but is not limited to considering, the nature and
composition of the solid waste, the environmental impact of
controlling the flow of solid waste, the efficient disposal of
solid waste, financial feasibility of proposed or existing solid
waste facilities, the county or region solid waste control plan,
the statewide solid waste control plan and the public convenience
and necessity.
(c) The public service commission shall promulgate rules
providing standards and criteria to effectuate the purposes of
this section.
(d) Notwithstanding any provision of this code to the
contrary, excepting rules of the public service commission from
legislative rule-making review, the public service commissionshall propose a legislative rule in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
which shall mandate that motor carriers transport source-
separated recyclable materials to a recycling facility. Such
legislative rule shall provide, at a minimum, for a separate rate
for the transportation of such materials or that such motor
carriers may contract with a customer to waive the charge for
transporting such materials in exchange for the value of such
materials.
(e) Notwithstanding any provision of this code to the
contrary, the public service commission is hereby authorized to
employ ten persons, who shall be in the classified exempt
service, in addition to any personnel positions otherwise
authorized or allocated to the commission as of the effective
date of this section to facilitate enforcement of duties imposed
upon the commission in the regulation of solid waste disposal
during the second extraordinary session of the Legislature, one
thousand nine hundred ninety-one.
§24-2-4b. Procedures for changing rates of electric and natural
gas cooperatives, local exchange services of telephone
cooperatives and municipally operated public utilities.
(a) The rates and charges of electric cooperatives, natural
gas cooperatives and municipally operated public utilities,
except for municipally operated commercial solid waste facilities
as defined in section two, article fifteen, chapter twenty-two of
this code, and the rates and charges for local exchange servicesprovided by telephone cooperatives are not subject to the rate
approval provisions of section four or four-a of this article,
but are subject to the limited rate provisions of this section.
(b) All rates and charges set by electric cooperatives,
natural gas cooperatives and municipally operated public
utilities and all rates and charges for local exchange services
set by telephone cooperatives shall be just, reasonable, applied
without unjust discrimination or preference and based primarily
on the costs of providing these services. Such rates and charges
shall be adopted by the electric, natural gas or telephone
cooperative's governing board and in the case of the municipally
operated public utility by municipal ordinance to be effective
not sooner than forty-five days after adoption:
Provided, That
notice of intent to effect a rate change shall be specified on
the monthly billing statement of the customers of such utility
for the month next preceding the month in which the rate change
is to become effective or the utility shall give its customers,
and in the case of a cooperative, its customers, members and
stockholders, such other reasonable notices as will allow filing
of timely objections to such rate change. Such rates and charges
shall be filed with the commission together with such information
showing the basis of such rates and charges and such other
information as the commission considers necessary. Any change in
such rates and charges with updated information shall be filed
with the commission. If a petition, as set out in subdivision
(1), (2) or (3), subsection (c) of this section, is received andthe electric cooperative, natural gas cooperative, telephone
cooperative or municipality has failed to file with the
commission such rates and charges with such information showing
the basis of rates and charges and such other information as the
commission considers necessary, the suspension period limitation
of one hundred twenty days and the one hundred day period
limitation for issuance of an order by a hearing examiner, as
contained in subsections (d) and (e) of this section, is tolled
until the necessary information is filed. The electric
cooperative, natural gas cooperative, telephone cooperative or
municipality shall set the date when any new rate or charge is to
go into effect.
(c) The commission shall review and approve or modify such
rates upon the filing of a petition within thirty days of the
adoption of the ordinance or resolution changing said rates or
charges by:
(1) Any customer aggrieved by the changed rates or charges
who presents to the commission a petition signed by not less than
twenty-five percent of the customers served by such municipally
operated public utility, or twenty-five percent of the membership
of the electric, natural gas or telephone cooperative residing
within the state; or
(2) Any customer who is served by a municipally operated
public utility and who resides outside the corporate limits and
who is affected by the change in said rates or charges and who
presents to the commission a petition alleging discriminationbetween customers within and without the municipal boundaries.
Said petition shall be accompanied by evidence of discrimination;
or
(3) Any customer or group of customers who are affected by
said change in rates who reside within the municipal boundaries
and who present a petition to the commission alleging
discrimination between said customer or group of customers and
other customers of the municipal utility. Said petition shall be
accompanied by evidence of discrimination.
(d) (1) The filing of a petition with the commission signed
by not less than twenty-five percent of the customers served by
the municipally operated public utility, or twenty-five percent
of the membership of the electric, natural gas or telephone
cooperative residing within the state, under subdivision (1),
subsection (c) of this section, shall suspend the adoption of the
rate change contained in the ordinance or resolution for a period
of one hundred twenty days from the date said rates or charges
would otherwise go into effect, or until an order is issued as
provided herein.
(2) Upon sufficient showing of discrimination by customers
outside the municipal boundaries, or a customer or a group of
customers within the municipal boundaries, under a petition filed
under subdivision (2) or (3), subsection (c) of this section, the
commission shall suspend the adoption of the rate change
contained in the ordinance for a period of one hundred twenty
days from the date said rates or charges would otherwise go intoeffect or until an order is issued as provided herein.
(e) The commission shall forthwith appoint a hearing
examiner from its staff to review the grievances raised by the
petitioners. Said hearing examiner shall conduct a public
hearing, and shall within one hundred days from the date the said
rates or charges would otherwise go into effect, unless otherwise
tolled as provided in subsection (b) of this section, issue an
order approving, disapproving or modifying, in whole or in part,
the rates or charges imposed by the electric, natural gas or
telephone cooperative or by the municipally operated public
utility pursuant to this section.
(f) Upon receipt of a petition for review of the rates under
the provisions of subsection (c) of this section, the commission
may exercise the power granted to it under the provisions of
section three of this article. The commission may determine the
method by which such rates are reviewed and may grant and conduct
a de novo hearing on the matter if the customer, electric,
natural gas or telephone cooperative or municipality requests
such a hearing.
(g) The commission may, upon petition by a municipality or
electric, natural gas or telephone cooperative, allow an interim
or emergency rate to take effect, subject to future modification,
if it is determined that such interim or emergency rate is
necessary to protect the municipality from financial hardship and
if that financial hardship is attributable solely to the purchase
of the utility commodity sold. In such cases, the commission maywaive the forty-five day waiting period provided for in
subsection (b) of this section and the one hundred twenty-day
suspension period provided for in subsection (d) of this section.
(h) Notwithstanding any other provision, the commission has
no authority or responsibility with regard to the regulation of
rates, income, services or contracts by municipally operated
public utilities for services which are transmitted and sold
outside of the state of West Virginia.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 2B. WEATHER MODIFICATION.
§29-2B-11. Enforcement of article.
In order to enforce the provisions of this article, the West
Virginia state police shall, on request of the commission, assign
at least one trooper and one investigator to an area where
unlawful cloud seeding is suspected. If such police request the
same, the commission shall assign an airplane and pilot. Air
samples shall be taken by the division of environmental
protection if requested by the state police or the commission.
For such enforcement purposes, the bureau of public health shall
furnish such technical services as the commission or director may
request.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-5a. Hazardous substance emergency response training
programs.
(a) Within one hundred twenty days of the effective date of
this section, the state fire commission shall promulgate rulesand regulations pursuant to chapter twenty-nine-a of this code
establishing criteria for qualified training programs in
hazardous substance emergency response activities and procedures
for such qualified training programs to be certified by the state
fire marshal.
(b) For the purposes of this section, "hazardous substance"
means any "hazardous substance" as defined in subsection (g),
section three, article thirty-one, chapter sixteen of this code,
any "chemical substances and materials" listed in the rules or
regulations promulgated by the commissioner of labor pursuant to
section eighteen, article three, chapter twenty-one of this code,
and any "hazardous waste" as defined in section three, article
eighteen, chapter twenty-two of this code.
CHAPTER 31. CORPORATIONS.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-20a. Land development fund.
(a) The board of directors of the housing development fund
may create and establish a special revolving fund of moneys made
available by appropriation, grant, contribution or loan, to be
known as the land development fund and to be governed,
administered and accounted for by the directors, officers and
managerial staff of the housing development fund as a special
purpose account separate and distinct from any other moneys, fund
or funds owned and managed by the housing development fund.
(b) The purpose of the land development fund is to provide
a source from which the housing development fund may financedevelopment costs and land development in this state by making
loans or grants therefrom, such loans to be with or without
interest and with such security for repayment as the housing
development fund deems reasonably necessary and practicable, or
by expending moneys therefrom, for development costs and land
development in this state.
(c) The housing development fund may invest and reinvest all
moneys in the land development fund in any investments authorized
under section six of this article, pending the disbursement
thereof in connection with the financing of development costs and
land development in this state.
(d) No loans shall be made by the housing development fund
from the land development fund except in accordance with a
written loan agreement which shall include, but not be limited
to, the following terms and conditions:
(1) The proceeds of all such loans shall be used only for
development costs and land development;
(2) All such loans shall be repaid in full, with or without
interest, as provided in the agreement;
(3) All repayments shall be made concurrent with receipt by
the borrower of the proceeds of a construction loan or mortgage,
as the case may be, or at such other times as the housing
development fund deems reasonably necessary or practicable; and
(4) Specification of such security for repayments upon such
terms and conditions as the housing development fund deems
reasonably necessary or practicable.
(e) No grants shall be made by the housing development fund
from the land development fund except in accordance with a
written grant agreement which shall require that the proceeds of
all such grants shall be used only for development costs or land
development and containing such other terms and provisions as the
housing development fund may require to ensure that the public
purposes of this article are furthered by such grant.
(f) The housing development fund may expend any income from
the financing of development costs and land development with
moneys in the land development fund, and from investment of such
moneys, in payment, or reimbursement, of all expenses of the
housing development fund which, as determined in accordance with
procedures approved by the board of directors of the housing
development fund, are fairly allocable to such financing or its
land-development activities:
Provided, That no funds from the
land development fund shall be used to carry on propaganda, or
otherwise attempt to influence legislation.
(g) The housing development fund shall create and establish
a special account within the land development fund to be
designated as the "special project account" into which the
housing development fund shall, effective the first day of July,
one thousand nine hundred ninety-two, deposit the sum of ten
million dollars. Such funds shall be governed, administered and
accounted for by the housing development fund as a special
purpose account separate and distinct from any other moneys, fund
or funds owned or managed by the housing development fund. Thesole and exclusive purpose of such account is to provide a source
of funds for the financing of infrastructure projects including
distribution from time to time to the West Virginia water
pollution control revolving fund created pursuant to section
three, article two, chapter twenty-two-c of this code:
Provided,
That such distribution shall not exceed five million four hundred
fifty thousand dollars; and distribution from time to time to
fund soil conservation projects:
Provided, however, That such
distribution shall not exceed four million five hundred fifty
thousand dollars. Until so disbursed, the moneys initially
deposited or thereafter from time to time deposited in such
special project account, may be invested and reinvested by the
housing development fund as permitted under subdivision (8),
section six of this article. Any funds remaining in the special
project account on the first day of July, one thousand nine
hundred ninety-five, shall automatically revert to the general
fund of the housing development fund free of any limitations
provided in this section. The provisions of subsections (c),
(d), (e) and (f) of this section do not apply to the special
project account created in this section.
ARTICLE 19. WEST VIRGINIA COMMUNITY INFRASTRUCTURE AUTHORITY.
§31-19-4. West Virginia community infrastructure authority
created; West Virginia community infrastructure board
created; organization of authority and board; appointment of
board members; their term of office, compensation and
expenses; duties and responsibilities of director and staff
of authority.
(a) There is hereby created the West Virginia community
infrastructure authority. The authority is a governmental
instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the
carrying out of its purposes and duties are essential
governmental functions and for a public purpose.
The authority shall be controlled, managed and operated by
the five member board known as the West Virginia community
infrastructure board, which is hereby created. The director of
the West Virginia development office, or his or her designee, the
director of the division of environmental protection, or his or
her designee, and the commissioner of the division of highways,
or his or her designee, are members ex officio of the board. The
executive director of the West Virginia development office, or
his or her designee, is the ex officio chair. Two members of the
board shall be representative of the general public, one of which
shall have had experience or a demonstrated interest in local
government. The two members who are not ex officio members of
the board shall be appointed by the governor, by and with the
advice and consent of the Senate, for initial terms of three and
six years, respectively. The successor of each such appointed
member shall be appointed for a term of six years in the same
manner as the original appointments were made, except that any
person appointed to fill a vacancy occurring prior to the
expiration of the term for which his or her predecessor wasappointed shall be appointed only for the remainder of such term.
Each board member shall serve until the appointment and
qualification of his or her successor. The two appointed board
members shall not at any one time belong to the same political
party. Appointed board members may be reappointed to serve
additional terms, not to exceed two consecutive full terms. All
members of the board shall be citizens of the state. Each
appointed member of the board, before entering upon his or her
duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty
thousand dollars in the manner provided in article two, chapter
six of this code. The governor may remove any board member for
cause as provided in article six, chapter six of this code.
Annually the board shall elect one of its appointed members
as vice chair, and shall appoint a secretary-treasurer, who need
not be a member of the board. Three members of the board is a
quorum and the affirmative vote of three members is necessary for
any action taken by vote of the board. No vacancy in the
membership of the board impairs the rights of a quorum by such
vote to exercise all the rights and perform all the duties of the
board and the authority. The person appointed as secretary-
treasurer, including a board member if he or she is so appointed,
shall give bond in the sum of fifty thousand dollars in the
manner provided in article two, chapter six of this code.
The executive director of the West Virginia development
office or his or her designee, the director of the division ofenvironmental protection or his or her designee, and the
commissioner of the division of highways or his or her designee,
shall not receive any compensation for serving as board members.
Each of the two appointed board members of the board shall
receive an annual salary of five thousand dollars, payable in
monthly installments. Each of the five board members shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
such board. All such expenses incurred by the board are payable
solely from funds of the authority or from funds appropriated for
such purpose by the Legislature and no liability or obligation
shall be incurred by the authority beyond the extent for which
moneys are available from funds of the authority or from such
appropriations.
(b) There shall be a director of the authority appointed by
the board who shall supervise and manage the community
infrastructure authority, and the West Virginia development
office shall serve as the staff for the authority. Except as
otherwise provided in this section, the duties and
responsibilities of the director and of the staff shall be
established by the authority. At the board's discretion, it may
provide for the position of general counsel, who shall be an
employee of the authority, or for the appointment of special
counsel. As the board deems necessary and desirable, it may at
any time elect to change its decision on the employment or
appointment of a counsel.
(c) The director, or his or her designee, may employ or
appoint any staff members in addition to those provided by the
West Virginia development office, including general or special
counsel if the position is established by the board. The number
of employees needed, the positions to be filled and their
salaries or wages shall be determined by the director with the
approval of the board, unless the board elects to not require its
approval. At any time the board may elect to change its decision
concerning approval of additional staff hiring and salaries.
(d) The board shall meet at least quarterly, and more often
as it deems necessary. The director and any other staff member
or members as the director deems expedient shall attend board
meetings.
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE 4. COVENANTS.
§36-4-9a. Cancellation of oil or gas leases for nonpayment of
delay rental; prohibition against maintaining actions or
proceedings in state courts for enforcement of certain oil
or gas leases; rebuttable presumption of intention to
abandon well and well equipment.
Except in the case where operations for the drilling of a
well are being conducted thereunder, any undeveloped lease for
oil and/or gas in this state hereafter executed in which the
consideration therein provided to be paid for the privilege of
postponing actual drilling or development or for the holding of
said lease without commencing operations for the drilling of awell, commonly called delay rental, has not been paid when due
according to the terms of such lease, or the terms of any other
agreement between lessor and lessee, shall be null and void as to
such oil and/or gas unless payment thereof shall be made within
sixty days from the date upon which demand for payment in full of
such delay rental has been made by the lessor upon the lessee
therein, as hereinafter provided, except in such cases where a
bona fide dispute shall exist between lessor and lessee as to any
amount due or entitlement thereto or any part thereof under such
lease.
No person, firm, corporation, partnership or association
shall maintain any action or proceeding in the courts of this
state for the purpose of enforcing or perpetuating during the
term thereof any lease heretofore executed covering oil and/or
gas, as against the owner of such oil and/or gas, or the owner's
subsequent lessee, if such person, firm, corporation, partnership
or association has failed to pay to the lessor such delay rental
in full when due according to the terms thereof, for a period of
sixty days after demand for such payment has been made by the
lessor upon such lessee, as hereinafter provided.
The demand for payment referred to in the two preceding
paragraphs shall be made by notice in writing and shall be
sufficient if served upon such person, firm, partnership,
association, or corporation whether domestic or foreign, whether
engaged in business or dissolved, by United States registered
mail, return receipt requested, to the lessee's last-knownaddress.
A copy of such notice, together with the return receipt
attached thereto, shall be filed with the clerk of the county
commission in which such lease is recorded, or in which such oil
and/or gas property is located, in whole or in part, and upon
payment of a fee of fifty cents for each such lease, said clerk
shall permanently file such notice alphabetically under the name
of the first lessor appearing in such lease and shall stamp or
write upon the margin of the record in the clerk's office of such
lease hereafter executed the words "canceled by notice"; and as
to any such lease executed before the enactment of this statute
said clerk shall file such notice as hereinbefore provided and
shall stamp or write upon the margin of the record of such lease
in the clerk's office the words "enforcement barred by notice".
The word "lessor" includes the original lessor, as well as
the original lessor's successors in title to the oil and/or gas
involved. The word "lessee" includes the original lessee, the
original lessee's assignee properly of record at the time such
demand is made, and the original lessee's successors, heirs, or
personal representatives. No assignee of such lease whose
assignment is not recorded in the proper county shall be heard in
any court of this state to attack the validity or sufficiency of
the notice hereinbefore mentioned.
There is a rebuttable legal presumption that the failure of
a person, firm, corporation, partnership or association to
produce and sell or produce and use for its own purpose for aperiod of greater than twenty-four months, subsequent to the
first day of July, one thousand nine hundred seventy-nine, oil
and/or gas produced from such leased premises constitutes an
intention to abandon any oil and/or gas well and oil and/or gas
well equipment situate on said leased premises, including casing,
rods, tubing, pumps, motors, lines, tanks, separators, and any
other equipment, or both, used in the production of any oil
and/or gas from any well or wells on said leasehold estate.
This rebuttable presumption shall not be created in
instances: (i) of leases for gas storage purposes; or (ii) where
any shut-in royalty, flat rate well rental, delay rental, or
other similar payment designed to keep an oil or gas lease in
effect or to extend its term has been paid or tendered; or (iii)
where the failure to produce and sell is the direct result of the
interference or action of the owner of such oil and/or gas or his
subsequent lessee or assignee. Additionally, no such presumption
is created when a delay in excess of twenty-four months occurs
because of any inability to sell any oil and/or gas produced or
because of any inability to deliver or otherwise tender such oil
and/or gas produced to any person, firm, corporation, partnership
or association.
In all instances when the owner of such oil and/or gas or
the owner's subsequent lessee or assignee desires to terminate
the right, interest, or title of any person, firm, corporation,
partnership or association in such oil and/or gas by utilization
of the presumption created in this section, this presumption maynot be utilized except in an action or proceeding by the owner of
the oil and/or gas or the owner's lessee or assignee in an action
brought in the circuit court for the judicial district in which
the oil and/or gas property is partially or wholly located. A
certified copy of a final order of the circuit court shall be
mailed by the clerk of such court to the chief of the office of
oil and gas of the division of environmental protection.
The continuation in force of any such lease after demand for
and failure to pay such delay rental or failure to produce and
sell, or to produce and use oil and gas for a period of twenty-
four months as hereinbefore set forth is deemed by the
Legislature to be opposed to public policy against the general
welfare. If any part of this section shall be declared
unconstitutional such declaration shall not affect any other part
thereof.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-17. Aid by trained hazardous substance response personnel;
immunity from civil liability; definitions.
No person trained in a qualified program of hazardous
substance emergency response certified by the state fire marshal
pursuant to rules and regulations promulgated by authority of
subsection (a), section five-a, article three, chapter twenty-
nine of this code, who in good faith renders advice or assistance
at the scene of an actual or threatened discharge of anyhazardous substance and receives no remuneration for rendering
such advice or assistance, is liable for any civil damages as the
result of any act or omission in rendering such advice or
assistance:
Provided, That the exemption from liability for
civil damages of this section shall be extended to any such
person who receives reimbursement for out-of-pocket expenses
incurred in rendering such advice or assistance or compensation
from his or her regular employer for the time period during which
he or she was actually engaged in rendering such advice or
assistance but is not extended to any such person who by his or
her act or omission caused or contributed to the cause of such
actual or threatened discharge of any hazardous substance.
For the purposes of this section, "hazardous substance"
means any "hazardous substance" as defined in subsection (g),
section three, article thirty-one, chapter sixteen of this code;
any "chemical substances and materials" listed in the rules or
regulations promulgated by the commissioner of labor pursuant to
section eighteen, article three, chapter twenty-one of this code;
and any "hazardous waste" as defined in section three, article
eighteen, chapter twenty-two of this code.
ARTICLE 12A. LEASE AND CONVEYANCE OF MINERAL INTERESTS OWNED BY
MISSING OR UNKNOWN OWNERS OR ABANDONING OWNERS.
§55-12A-2. Definitions.
As used in this article, the following definitions shall
apply:
(1) "Abandoning owner" means any person, vested with titleto any interest in minerals, who is proved to have abandoned the
interest, that is, to have relinquished any right to possess or
enjoy the interest with the expressed intention of terminating
ownership of the interest, but without vesting the ownership in
any other person.
(2) "Development of the minerals" or "mineral development"
means: (a) Mining coal by any method; or (b) drilling for and
producing oil or gas by conventional techniques, or by enhanced
recovery by injection of fluids of any kind into the producing
formation; or (c) utilization of a gas-bearing formation as an
underground gas storage reservoir within the meaning of article
nine, chapter twenty-two of this code; or (d) production of other
minerals by any method.
(3) "Interest in minerals" means any interest, real or
personal, in coal, oil, gas or any other mineral, for which
interest the property taxes are not delinquent as of the date of
the filing of a petition under this article.
(4) "Surface owner" means any person vested with any
interest in fee in the surface estate overlying the particular
minerals sought to be developed under this article. A surface
owner's rights under this article shall be subject to any deed of
trust or other security instrument, lien, surface lease, easement
or other nonpossessory interest in the surface owned by any other
person; but such persons other than the surface owner shall have
no right to notice and no standing to appear and be heard
hereunder.
(5) "Unknown or missing owner" means any person, vested with
title to any interest in minerals, whose present identity or
location cannot be determined from the records of the clerk of
the county commission, the sheriff, the assessor, and the clerk
of the circuit court in the county in which the interest is
located or by diligent inquiry in the vicinity of the owner's
last known place of residence, and shall include such owner's
heirs, successors and assigns not known to be alive.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-47. Dams or obstructions in watercourses; penalty.
No person may fell any timber and permit the same to remain
in any navigable or floatable stream of this state when to do so
obstructs the passage of boats, rafts, staves, ties or timber of
any kind.
Except as may be provided in chapter twenty or twenty-two of
this code, no person may construct or maintain any dam or other
structure in any stream or watercourse, which in any way prevents
or obstructs the free and easy passage of fish up or down such
stream or watercourse, without first providing as a part of such
dam or other structure a suitable fish ladder, way or flume, so
constructed as to allow fish easily to ascend or descend the
same; which ladder, way or flume shall be constructed only upon
plans, in a manner, and at a place, satisfactory to the division
of natural resources:
Provided, That if the director of the
division of natural resources determines that there is nosubstantial fish life in such stream or watercourse, or that the
installation of a fish ladder, way or flume would not facilitate
the free and easy passage of fish up or down a stream or
watercourse, or that an industrial development project requires
the construction of such dam or other structure and the
installation of an operational fish ladder, way or flume is
impracticable, the director may, in writing, permit the
construction or maintenance of a dam or other structure in a
stream or watercourse without providing a suitable fish ladder,
way or flume; and in all navigable and floatable streams
provisions shall be made in such dam or structure for the passage
of boats and other crafts, logs and other materials:
Provided,
however, That this section does not relieve such person from
liability for damage to any riparian owner on account of the
construction or maintenance of such dam.
Any person who violates any of the provisions of this
section is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not exceeding one thousand dollars, or imprisoned
in the county jail not exceeding one year, or both fined and
imprisoned, and, whether a conviction is had under this section
or not, such violation is a nuisance, which may be abated at the
suit of any citizen or taxpayer, the county commission of the
county, or, as to fish ladders, at the suit of the director of
the division of natural resources, and, if the same endangers
county roads, the county commission may abate such nuisance
peaceably without such suit.
NOTE: The purpose of this bill is to provide for the
organization, administration and codification of the Division of
Environmental Protection. The bill consolidates the regulatory
programs of the Division into a single chapter in the Code
(Chapter 22) containing the following new articles:
PROPOSEDCURRENT
§22-2-Abandoned Mine Lands and Regulatory§22-3
Reclamation Act.
§22-3-Surface Coal Mining and Reclamation.§22A-3
§22-4-Surface Mining and Reclamation of
Minerals Other Than Coal.§22A-4
§22-5-Air Pollution Control.§16-20
§22-6-Division of Oil and Gas; Oil and Gas
Wells; Administration; Enforcement.§22B-1
§22-7-Oil and Gas Production Damage
Compensation.§22B-2
§22-8-Transportation of Oils§22B-3
§22-9-Underground Gas Storage Reservoirs.§22B-4
§22-10-Abandoned Well Act.§22B-5
§22-11-Water Pollution Control Act.§20-5;
§20-5A
§22-12-Groundwater Protection Act.§20-5M
§22-13-Natural Streams Preservation Act.§20-5B
§22-14-Dam Control Act.§20-5D
§22-15-Solid Waste Management Act.§20-5F
§22-16-Solid Waste Landfill Closure
Assistance Program.§20-5N
§22-17-Underground Storage Tank Act.§20-5H
§22-18-Hazardous Waste Management Act.§20-5E
§22-19-Hazardous Waste Emergency Response
Fund.§20-5G
CHAPTER 22A
The several articles relating to the Office of Miners'
Health, Safety and Training are moved to Chapter 22A. This
chapter contains all of the programs of the Office of Miners'
Health, Safety and Training contained in existing chapters 22 and
22A.
CHAPTER 22B
The bill renames: (1) the Air Pollution Control Commission
- the Air Quality Board; (2) the Water Resources Board - the
Environmental Quality Board; and (3) the Reclamation Board of
Review - the Surface Mine Board. It consolidates provisions that
are common to all three boards.
CHAPTER 22C
A new chapter - 22C is created for the following
miscellaneous boards, authorities, commissions and compacts that
are related to the division:
PROPOSEDCURRENT
§22C-1-Water Development Authority.§20-5C
§22C-2-Water Pollution Control Revolving
Fund Act.§20-5I
§22C-3-Solid Waste Management Board§16-26
§22C-4-County and Regional Solid Waste
Authorities§20-9
§22C-5-Commercial Hazardous Waste Management
Facility Siting Board.§20-10
§22C-6-Hazardous Waste Facility Siting
Approval.§20-10A
§22C-7-Oil and Gas Inspectors' Examining
Board.§22-13
§22C-8-Shallow Gas Well Review Board.§22-7
§22C-9-Oil and Gas Conservation Commission.§22-8
§22C-10-Interstate Mining Compact.§22-2
§22C-11-Interstate Commission on the Potomac
River Basin.§29-1C
§22C-12-Ohio River Valley Water Sanitation
Commission.§29-1D
Other sections of the Code are amended to correct references
to positions, divisions, programs or code cites due to their
reorganization pursuant to the bill.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Chapter 22B has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
Following is cross reference list showing current code
sections and their corresponding citations in the bill. When
current code sections have been omitted from the bill but the
substance of the sections is included in the bill the list refers
to the new section by using the word "See".
CODE SECTION CROSS REFERENCE LIST
CURRENTPROPOSEDCURRENTPROPOSED
16-20-122-5-1
16-20-222-5-2
16-20-322-5-3
16-20-4See 22B-2-1
16-20-522-5-4
16-20-622-5-5
16-20-7See 22B-1-9 &
22B-2-3
16-20-822-5-6
16-20-922-5-7
16-20-1022-5-8
16-20-1122-5-9
16-20-1222-5-10
16-20-1322-5-11
16-20-1422-5-12
16-20-1522-5-13
16-20-122-5-14
16-20-17See 22B-2-3
16-20-1822-5-15
16-20-192-5-16
16-20-20See Current
2-2-10(cc)
16-26-122C-3-1
16-26-222C-3-2
16-26-322C-3-3
16-26-422C-3-4
|
16-26-522C-3-5
16-26-622C-3-6
16-26-6a22C-3-7
16-26-722C-3-8
16-26-822C-3-9
16-26-9Repealed
16-26-1022C-3-10
16-26-1122C-3-11
16-26-1222C-3-12
16-26-1322C-3-13
16-26-1422C-3-14
16-26-1522C-3-15
16-26-1622C-3-16
16-26-1722C-3-17
16-26-1822C-3-18
16-26-1922C-3-19
16-26-2022C-3-20
16-26-2122C-3-21
16-26-2222C-3-22
16-26-2322C-3-23
16-26-2422C-3-24
16-26-2522C-3-25
|
CURRENTPROPOSEDCURRENTPROPOSED
|
20-5-1Repealed
20-5-1aSee 22-11-1
20-5-2See 22-11-3
20-5-3See 22B-1-4
& 22B-3-1
20-5-422-11-28
20-5-5See 22-11-4
20-5-6Repealed
20-5-7Repealed
20-5-8Repealed
20-5-9Repealed
20-5-10Repealed
20-5-11Repealed
20-5-12Repealed
20-5-13Repealed
20-5-1422-11-5
20-5-1520-7-28
20-5-16See Current
2-2-10(cc)
20-5A-122-11-2
20-5A-222-11-3
20-5A-322-11-4
20-5A-3a22-11-6
20-5A-422-11-7
20-5A-522-11-8
20-5A-622-11-9
20-5A-6a22-11-10
20-5A-722-11-11
20-5A-822-11-12
20-5A-8a22-11-13
20-5A-8bRepealed but
see
22-11-11 (b)
20-5A-922-11-14
20-5A-1022-11-15
20-5A-1122-11-16
20-5A-11a22-11-17
20-5A-1222-11-18
20-5A-12a22-11-19
20-5A-1422-11-20
20-5A-1522-11-21
20-5A-16See 22B-1-7 &
9
& 22B-3-3
20-5A-1722-11-22
20-5A-1822-11-23
20-5A-1922-11-24
20-5A-19a22-11-25
20-5A-2022-11-26
20-5A-2122-11-1
20-5A-2222-11-27
20-5A-23Repealed
|
20-5A-24See current
2-2-10(cc)
20-5B-122-13-2
20-5B-222-13-3
20-5B-322-13-4
20-5B-422-13-5
20-5B-522-13-6
20-5B-622-13-7
20-5B-722-13-8
20-5B-822-13-9
20-5B-922-13-10 &
See 22B-1-7
20-5B-1022-13-11
20-5B-11See 22B-1-9 &
22B-3-3
20-5B-1222-13-12
20-5B-1322-13-13
20-5B-1422-13-14
20-5B-1522-13-15
20-5B-1622-13-1
20-5B-17See current
2-2-10(cc)
20-5C-122C-1-1
20-5C-222C-1-2
20-5C-322C-1-3
20-5C-422C-1-4
20-5C-522C-1-5
20-5C-622C-1-6
20-5C-6a22C-1-7
20-5C-722C-1-8
20-5C-822C-1-9
20-5C-922C-1-10
20-5C-9a22C-1-11
20-5C-1022C-1-12
20-5C-1122C-1-13
20-5C-1222C-1-14
20-5C-1322C-1-15
20-5C-1422C-1-16
20-5C-1522C-1-17
20-5C-1622C-1-18
20-5C-16a22C-1-19
20-5C-16b22C-1-20
20-5C-1722C-1-21
20-5C-1822C-1-22
20-5C-1922C-1-23
20-5C-2022C-1-24
20-5C-2122C-1-25
20-5C-2222C-1-26
20-5C-23See current
2-2-10(cc)
20-5C-2422C-1-27
20-5D-122-14-1
|
20-5D-222-14-2
20-5D-322-14-3
20-5D-422-14-4
20-5D-522-14-5
20-5D-622-14-6
20-5D-722-14-7
20-5D-822-14-8
20-5D-922-14-9
20-5D-1022-14-10
20-5D-1122-14-11
20-5D-1222-14-12
20-5D-1322-14-13
20-5D-1422-14-14
20-5D-1522-14-15
20-5D-1622-14-16
20-5D-1722-14-17
20-5D-1822-14-18
20-5D-19Repealed
20-5E-122-18-1
20-5E-222-18-2
20-5E-322-18-3
20-5E-422-18-4
20-5E-522-18-5
20-5E-622-18-6
20-5E-722-18-7
20-5E-822-18-8
20-5E-8a22-18-9
20-5E-922-18-10
20-5E-1022-18-11
20-5E-1122-18-12
20-5E-1222-18-13
20-5E-1322-18-14
20-5E-1422-18-15
20-5E-1522-18-16
20-5E-1622-18-17
20-5E-1722-18-18
20-5E-1822-18-19
20-5E-1922-18-20 &
See 22B-1-7
20-5E-2022-18-21
20-5E-2122-18-22
20-5E-2222-18-23
20-5E-2322-18-24
20-5E-2422-18-25
20-5E-25Repealed
20-5F-122-15-1
20-5F-222-15-2
20-5F-2a22-15-3
20-5F-322-15-4
20-5F-422-15-5
20-5F-4a22-15-6
20-5F-4b22-15-7
|
20-5F-4c22-15-8
20-5F-4d22-15-9
20-5F-522-15-10
20-5F-5a22-15-11
20-5F-5b22-15-12
20-5F-5c22-15-13
20-5F-5d22-15-14
20-5F-622-15-15
20-5F-722-15-16
20-5F-822-15-17
20-5F-922-15-18
20-5F-1022-15-19
20-5F-11Repealed
20-5F-1222-15-20
20-5G-122-19-1
20-5G-222-19-2
20-5G-322-19-3
20-5G-422-19-4
20-5G-522-19-5
20-5G-622-19-6
20-5H-122-17-1
20-5H-222-17-2
20-5H-322-17-3
20-5H-422-17-4
20-5H-522-17-5
20-5H-622-17-6
20-5H-722-17-7
20-5H-822-17-8
20-5H-922-17-9
20-5H-1022-17-10
20-5H-1122-17-11
20-5H-1222-17-12
20-5H-1322-17-13
20-5H-1422-17-14
20-5H-1522-17-15
20-5H-1622-17-16
20-5H-1722-17-17
20-5H-1822-17-18 &
See 22B-1-7
20-5H-1922-17-19
20-5H-2022-17-20
20-5H-2122-17-21
20-5H-2222-17-22
20-5H-2322-17-23
20-5I-122C-2-1
20-5I-222C-2-2
20-5I-322C-2-3
20-5I-422C-2-4
20-5I-522C-2-5
20-5I-622C-2-6
20-5I-722C-2-7
20-5I-822C-2-8
|
20-5M-122-12-1
20-5M-222-12-2
20-5M-322-12-3
20-5M-422-12-4
20-5M-522-12-5
20-5M-622-12-6
20-5M-722-12-7
20-5M-822-12-8
20-5M-922-12-9
20-5M-1022-12-10
20-5M-1122-12-11
20-5M-1222-12-12
20-5M-1322-12-13
20-5M-14Repealed
20-5M-1522-12-14
20-5M-16See current
2-2-10(cc)
20-5N-122-16-1
20-5N-222-16-2
20-5N-322-16-3
20-5N-422-16-4
20-5N-4a22-16-5
20-5N-4b22-16-6
20-5N-4c22-16-7
20-5N-4d22-16-8
20-5N-4e22-16-9
20-5N-522-16-10
20-5N-622-16-11
20-5N-722-16-12
20-5N-822-16-13
20-5N-922-16-14
20-5N-1022-16-15
20-5N-1122-16-16
20-5N-1222-16-17
20-5N-1322-16-18
20-9-122C-4-1
20-9-222C-4-2
20-9-322C-4-3
20-9-422C-4-4
20-9-522C-4-5
20-9-5a22C-4-6
20-9-622C-4-7
20-9-722C-4-8
20-9-822C-4-9
20-9-922C-4-10
20-9-1022C-4-11
20-9-10a22C-4-12
20-9-10b22C-4-13
20-9-10c22C-4-14
20-9-10d22C-4-15
20-9-10e22C-4-16
20-9-10f22C-4-17
|
20-9-10g22C-4-18
20-9-10h22C-4-19
20-9-10i22C-4-20
20-9-10j22C-4-21
20-9-1122C-4-22
20-9-1222C-4-23
20-9-12a22C-4-24
20-9-12b22C-4-25
20-9-12c22C-4-26
20-9-12d22C-4-27
20-9-12e22C-4-28
20-9-12f22C-4-29
20-9-1322C-4-30
20-10-122C-5-2
20-10-222C-5-3
20-10-322C-5-4
20-10-422C-5-5
20-10-522C-5-6
20-10-622C-5-7
20-10-722C-5-8
20-10-822C-5-1
20-10A-122C-6-1
20-10A-222C-6-2
20-10A-322C-6-3
22-1-122-1-1
22-1-222-1-2
22-1-322-1-4
22-1-422-1-5
22-1-522-1-6
22-1-622-1-8
22-1-7Repealed
22-1-8Repealed
22-1-9Repealed
22-1-10Repealed
22-1-11Repealed
22-1-12Repealed
22-1-1322-1-3
22-1-1422-1-10
22-1-1522-1-10
22-1-1622-1-11
22-1-17Repealed but
see 22-1-9
22-1-1822-3-32
22-1-19Repealed
22-2-122C-10-1
22-2-222C-10-2
22-2-322C-10-3
22-3-122-2-1
22-3-222-2-2
22-3-322-2-3
22-3-422-2-4
22-3-522-2-5
|
22-3-622-2-6
22-3-722-2-7
22-3-822-2-8
22-3-922-2-9
22-4-1See 22B-4-1
22-4-2and
22-4-322B-1
22-5-122A-5-1
22-6-122A-6-1
22-6-222A-6-2
22-6-322A-6-3
22-6-422A-6-4
22-6-4a22A-6-5
22-6-4b22A-6-6
22-6-4c22A-6-7
22-6-522A-6-8
22-6-622A-6-9
22-6-722A-6-10
22-7-122C-8-1
22-7-222C-8-2
22-7-322C-8-3
22-7-422C-8-4
22-7-522C-8-5
22-7-622C-8-6
22-7-722C-8-7
22-7-822C-8-8
22-7-922C-8-9
22-7-1022C-8-10
22-7-1122C-8-11
22-7-1222C-8-12
22-7-1322C-8-13
22-7-1422C-8-14
22-7-1522C-8-15
22-7-1622C-8-16
22-7-1722C-8-17
22-7-1822C-8-18
22-7-1922C-8-19
22-8-122C-9-1
22-8-222C-9-2
22-8-322C-9-3
22-8-422C-9-4
22-8-522C-9-5
22-8-622C-9-6
22-8-722C-9-7
22-8-822C-9-8
22-8-922C-9-9
22-8-1022C-9-10
22-8-1122C-9-11
22-8-1222C-9-12
22-8-1322C-9-13
22-8-1422C-9-14
22-8-1522C-9-15
|
22-8-1622C-9-16
22-9-122A-7-1
22-9-222A-7-2
22-9-322A-7-3
22-9-422A-7-4
22-9-522A-7-5
22-9-622A-7-6
22-10-122A-8-1
22-10-222A-8-2
22-10-322A-8-3
22-10-422A-8-4
22-10-522A-8-5
22-10-622A-8-6
22-10-722A-8-7
22-10-822A-8-8
22-10-922A-8-9
22-11-122A-9-1
22-12-122A-10-1
22-12-222A-10-2
22-13-122C-7-1
22-13-222C-7-2
22-13-322C-7-3
22A-1A-122A-1-2
22A-1A-2See 22A-1-2
& 22A-1-6
22A-1A-3Repealed
22A-1A-422A-1-4
22A-1A-5See 22A-1-3
22A-1A-6See 22A-1-3
22A-1A-722A-1-8
22A-1A-822A-1-9
22A-1A-922A-1-10
22A-1A-1022A-1-11
22A-1A-1122A-1-12
22A-1A-11a22A-1-13
22A-1A-1222A-1-14
22A-1A-1322A-1-15
22A-1A-1422A-1-16
22A-1A-1522A-1-17
22A-1A-1622A-1-18
22A-1A-1722A-1-19
22A-1A-1822A-1-20
22A-1A-1922A-1-21
22A-1A-2022A-1-22
22A-1A-2122A-1-23
22A-1A-2222A-1-24
22A-1A-2322A-1-25
22A-1A-2422A-1-26
22A-1A-2522A-1-27
22A-1A-2622A-1-28
22A-1A-2722A-1-29
22A-1A-2822A-1-30
|
22A-1A-2922A-1-31
22A-1A-3022A-1-32
22A-1A-3122A-1-33
22A-1A-3222A-1-34
22A-1A-3322A-1-35
22A-1A-3422A-1-36
22A-1A-35See current
2-2-10(cc)
22A-3-122-3-1
22A-3-222-3-2
22A-3-322-3-3
22A-3-422-3-4
22A-3-522-3-5
22A-3-622-3-6
22A-3-722-3-7
22A-3-822-3-8
22A-3-922-3-9
22A-3-1022-3-10
22A-3-1122-3-11
22A-3-11a22-3-12
22A-3-1222-3-13
22A-3-1422-3-14
22A-3-1522-3-15
22A-3-1622-3-16
22A-3-1722-3-17
22A-3-1822-3-18
22A-3-1922-3-19
22A-3-2022-3-20
22A-3-2122-3-21
22A-3-2222-3-22
22A-3-2322-3-23
22A-3-2422-3-24
22A-3-2522-3-25
22A-3-2622-3-26
22A-3-2722-3-27
22A-3-2822-3-28
22A-3-29Repealed
22A-3-3022-3-29
22A-3-3122-3-30
22A-3-32See 22A-8-1
22A-3-3322A-1-37
22A-3-34See 22A-2-77
22A-3-3522A-1-38
22A-3-36Repealed
22A-3-3722-3-31
22A-3-38See current
2-1-10(cc)
22A-3-40Repealed
22A-4-122-4-1
22A-4-222-4-2
22A-4-322-4-3
22A-4-422-4-4
|
22A-4-522-4-5
22A-4-622-4-6
22A-4-722-4-7
22A-4-822-4-8
22A-4-922-4-9
22A-4-1022-4-10
22A-4-1122-4-11
22A-4-1222-4-12
22A-4-1322-4-13
22A-4-1422-4-14
22A-4-1522-4-15
22A-4-1622-4-16
22A-4-1722-4-17
22A-4-18See 22A-1-38
22A-4-19See 22A-2-77
22A-4-2022-4-18
22A-4-2122-4-19
22A-4-2222-4-20
22A-4-2322-4-21
22A-4-24See 22B-1-9
22A-4-2522-4-22
22A-4-2622-4-23
22A-4-27See 22A-8-1
22A-4-28See 22A-1-38
22A-5-122A-3-1
22A-5-222A-3-2
22A-5-322A-3-3
22A-6-122A-4-1
22A-6-222A-4-2
22A-6-322A-4-3
22A-6-422A-4-4
22A-6-522A-4-5
22A-6-622A-4-6
22A-7-122A-1-1
22A-7-2See 22A-1-2
22A-7-322A-1-3
22A-7-422A-1-4
22A-7-5Repealed
22A-7-622A-1-5
22A-7-7Repealed
22A-7-822A-1-6
22A-7-922A-1-7
22B-1-122-6-1
22B-1-222-6-2
22B-1-322-6-3
22B-1-422-6-4
22B-1-522-6-5
22B-1-622-6-6
22B-1-722-6-7
22B-1-822-6-8
22B-1-922-6-9
22B-1-1022-6-10
|
22B-1-1122-6-11
22B-1-1222-6-12
22B-1-1322-6-13
22B-1-1422-6-14
22B-1-1522-6-15
22B-1-1622-6-16
22B-1-1722-6-17
22B-1-1822-6-18
22B-1-1922-6-19
22B-1-2022-6-20
22B-1-2122-6-21
22B-1-2222-6-22
22B-1-2322-6-23
22B-1-2422-6-24
22B-1-2522-6-25
22B-1-2622-6-26
22B-1-2722-6-27
22B-1-2822-6-28
22B-1-2922-6-29
22B-1-3022-6-30
22B-1-3122-6-31
22B-1-3222-6-32
22B-1-3322-6-33
22B-1-3422-6-34
22B-1-3522-6-35
22B-1-3622-6-36
22B-1-3722-6-37
22B-1-3822-6-38
22B-1-3922-6-39
22B-1-4022-6-40
22B-1-4122-6-41
22B-2-122-7-1
22B-2-222-7-2
22B-2-322-7-3
22B-2-422-7-4
22B-2-522-7-5
22B-2-622-7-6
22B-2-722-7-7
22B-2-822-7-8
22B-2-9See current
2-2-10(cc)
22B-3-122-8-1
22B-3-222-8-2
22B-3-322-8-3
22B-3-422-8-4
22B-3-522-8-5
22B-3-622-8-6
22B-3-722-8-7
22B-3-822-8-8
22B-3-922-8-9
22B-3-1022-8-10
22B-3-1122-8-11
|
22B-3-1222-8-12
22B-3-1322-8-13
22B-4-122-9-1
22B-4-222-9-2
22B-4-322-9-3
22B-4-422-9-4
22B-4-522-9-5
22B-4-622-9-6
22B-4-722-9-7
22B-4-822-9-8
22B-4-922-9-9
22B-4-1022-9-10
22B-4-1122-9-11
22B-4-1222-9-12
22B-4-1322-9-13
22B-5-122-10-1
22B-5-222-10-2
22B-5-322-10-3
22B-5-422-10-4
22B-5-522-10-5
22B-5-622-10-6
22B-5-722-10-7
22B-5-822-10-8
22B-5-922-10-9
22B-5-1022-10-10
22B-5-1122-10-11
22B-5-1222-10-12
29-1C-122C-11-1
29-1C-222C-11-2
29-1C-322C-11-3
29-1C-422C-11-4
29-1C-522C-11-5
29-1D-122C-12-1
29-1D-222C-12-2
29-1D-322C-12-3
29-1D-422C-12-4
29-1D-522C-12-5
29-1D-622C-12-6
\
|