Introduced Version
House Bill 2143 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2143
(By Delegates Manypenny, Staggers, Fleischauer,
Barill and Perdue)
[Introduced February 13, 2013; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend and reenact §22-3-9 and §22-3-13 of the Code of
West Virginia, 1931, as amended, all relating to liner
requirements in new coal-waste impoundments, new coal-waste
impoundments at existing facilities, replacement coal-waste
impoundments at existing facilities and lateral coal-waste
expansions of existing impoundments; requiring the Director of
the West Virginia Department of Environmental Protection to
promulgate rules for liners in these surface, coal-waste
impoundments; and providing abatement procedures.
Be it enacted by the Legislature of West Virginia:
That §22-3-9 and §22-3-13 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§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 a leasehold interest in the
property;
(D) Any A 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:
(A) 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
(B) 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 an 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:
(A) The information required by this section including the ownership and map of the tract location and boundaries of the
proposed site so that the proposed operation is readily locatable
by local residents;
(B) The location of the office of the division where the
application is available for public inspection; and
(C) stating A statement 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
Nothing in this article vests the director with 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 groundwater systems, including:
(A) The dissolved and suspended solids under seasonal flow
conditions; and
(B) 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 A determination of
the probable hydrologic consequences is not required until such
time as the 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, 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;
(D) 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; and
____________________________________________(E) Other things specified by the director.
(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 core samples
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) A chemical analysis of potentially acid or toxic forming
sections of the overburden; and
(E) A 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 except that information which
pertains only to the analysis of the chemical and physical
properties of the coal, except other than information regarding
mineral or elemental content which is potentially toxic to the
environment, shall be kept is confidential and not made a matter
of public record;
(18) When requested by the director, the climatological factors 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) For each new surface impoundment, each new surface
impoundment at an existing facility, each replacement of an
existing surface impoundment and each lateral expansion of an
existing surface impoundment, an engineering plan for the design,
construction and installation of a liner to prevent any migration
of waste out of the impoundment to the adjacent subsurface soil,
groundwater or surface water at any time during the life, including
the closure period, of the impoundment; and
____________________________________________(19) (20) 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 including the engineering analyses
and designs necessary as required by this article or rules
promulgated thereunder; the development of cross-section maps and
plans as required by this article or rules promulgated thereunder;
the geologic drilling and statement of results of test borings and
core samplings as required by this article or rules promulgated
thereunder; preblast surveys required by this article or rules promulgated thereunder; the collection of site-specific resource
information and production of protection and enhancement plans for
fish and wildlife habitats and other environmental values required
by this article or rules promulgated thereunder; and the collection
of archaeological and historical information required by this
article and rules promulgated thereunder and any other
archaeological and historical information required by the federal
department of the interior and the preparation of plans that may be
necessitated thereby 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 this state 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 outlines 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.
§22-3-13. General environmental protection performance standards
for surface mining; variances.
(a) Any A permit issued by the director pursuant to this
article to conduct surface mining operations shall require that the
surface mining operations meet all applicable performance standards
of this article and other requirements set forth in legislative
rules proposed by the director.
(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
considered 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
shall be considered practical, reasonable and consistent with
applicable land use policies and plans. The proposed land use
following reclamation must not involve unreasonable delay nor be
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 spoil and
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, the
overburden or spoil shall be shaped and graded in a way as to
prevent slides, erosion and water pollution and revegetated in
accordance with the requirements of this article: Provided
further, That the director shall propose rules for legislative
approval in accordance with article three, chapter twenty-nine-a of
this code, 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 August 3,
1977; or
(B) For areas upon which surface mining prior to July 1, 1977,
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 the
topsoil 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 any 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:
(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 the horizons 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) of this subdivision, 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) of this subdivision;
(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;
(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 the 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 groundwater
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; and
(iv) Installing liners in all new coal-waste impoundments, new
coal-waste impoundments at existing facilities, replacement coal-
waste impoundments at existing facilities and lateral coal-waste
expansions of existing impoundments consistent with rules
promulgated by the director;
(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 stream
flow or runoff outside the permit area but in no event may
contributions be in excess of requirements set by applicable state
or federal law;
(C) Constructing an approved drainage system pursuant to
paragraph (B) of this subdivision, prior to commencement of surface
mining operations, the 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
depositing the 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) Any other actions prescribed by the director.
(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 except 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) The 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 that occurs 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) Maintain for a period of at least three years and make
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; and
(B) Require that all blasting operations be conducted by
persons certified by the office of explosives and blasting;
(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 are proposed 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 the variances in accordance with the provisions of
this subparagraph and has imposed any additional requirements as
the director considers 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 post-mining
conditions of access and haul roads 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 alternative measures;
(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 post-mining 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 post-mining 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 post-mining land use, the applicable five growing
seasons of responsibility for revegetation begins on the date of
initial planting for the agricultural post-mining land use;
On lands eligible for remining, assume the responsibility for
successful revegetation, as required by subdivision (19) of this
subsection, for a period of not less than two 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;
(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 the placing of
spoil material outside the permit area;
(22) Place all excess spoil material resulting from surface-
mining activities in 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 under drains 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 a downslope, 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) The 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 except 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 so
long as the services of a qualified registered professional
engineer experienced in the design and construction of earth and
rockfill embankment are utilized. Provided further, That the This
approval may not be unreasonably withheld if the site is suitable;
(23) Meet any other criteria 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 erosion on
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,
(D) That at a minimum, the constructed barrier shall be is of
sufficient width and height to provide adequate stability and the
stability factor shall equal or exceed that of the natural outcrop
barrier; and Provided further,
(E) That where The water quality is paramount and the
constructed barrier shall be is 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 post-mining
uses in accordance with the requirements of this subsection.
(3) In cases where an industrial, commercial, agricultural,
commercial forestry, residential or public facility including
recreational uses is proposed for the post-mining 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 post-mining land use is determined 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
post-mining 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) Obtainable according to data regarding expected need and market;
(iv) Supported by commitments from public agencies where
appropriate;
(v) Practicable with respect to private financial capability
for completion of the proposed use;
(vi) Planned pursuant to a schedule attached to the
reclamation plan so as to integrate the mining operation and
reclamation with the post-mining land use; and
(vii) 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 and comment on the proposed use; and
(E) All other requirements of this article will be met.
(4) In granting any a 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,
(iv) At a minimum, the constructed barrier shall be is
sufficient in width and height to provide adequate stability and
the stability factor shall equal or exceed equals or exceeds that
of the natural outcrop barrier; and
(v) Provided further, That where The water quality is
paramount and the constructed barrier shall be is 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 post-mining land use And provided
further, That and all excess spoil material not retained on the
mountaintop shall be is 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 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 except 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 propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
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 and that complete
backfilling with spoil material is required performed to completely cover the highwall, which material will maintain stability
following mining and reclamation.
(f) The director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, 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 shall 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 a 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 coal processing waste pile exists
and may take or order to be taken any remedial action that 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 expended shall be recovered from any
responsible operator or landowner, 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 of a coal
processing waste pile, for the purpose of disposing, depositing,
dumping coal processing wastes on the pile or removing coal
processing waste from the pile or to employ a coal processing waste
pile for retarding the flow of or for the impoundment of water.
(g) The director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, for the design, location, construction, maintenance,
operation, enlargement, modification, removal and abandonment of
new surface impoundments, new surface impoundments at existing
facilities, replacement impoundments at existing facilities and
lateral expansions of existing surface impoundments so that each of
the identified impoundments will have liners to prevent the
migration of contaminants into the groundwater and surface water.
In addition to engineering and other technical specifications, the
standards and criteria developed pursuant to this subsection shall
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. Whenever the director finds that an
impoundment 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 an impoundment or the landowners involved,
enter upon the premises where an impoundment exists and may take or
order to be taken any remedial action that may be necessary or
expedient to secure the surface impoundment and to abate the
conditions which cause the danger to human life. The cost
reasonably incurred in remedial action taken by the director under
this subsection may be paid for initially by funds appropriated to
the division for these purposes. The sums expended shall be
recovered from any responsible operator or landowner, 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 access a surface impoundment for
the purpose of disposing, depositing or dumping coal processing
wastes.
NOTE: The purpose of this bill is to require liners in all
new surface impoundments and to require regulations relating to the
planning, constructing and maintenance of the liners.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.