H. B. 2063


(By Delegates Douglas and Faircloth)

[Introduced January 18, 1995; referred to the

Committee on the Judiciary then Finance.]





A BILL to amend and reenact article four, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to revising the statutes on noncoal mineral extraction operations, including short title, legislative findings, intent and purpose; definition of terms; conflict of interest prohibited; cooperative efforts by the division; qualifications of inspectors and supervisors; duties of inspectors; promulgation of legislative rules; noncoal surface-mining advisory council created; permit to engage in noncoal mineral surface mining required; permit modification; preplans; installation drainage system; alternative plans, bond release, planting plan required; areas unsuitable for noncoal surface mining operation; writ of mandamus; prohibition of such operation within certain distances of public or private property; blasting restrictions; time in which reclamation shall be done; obligations of the operator; suspension of operation; criminal and civil penalties; appeals to the reclamation board of review, injunctive relief; completion of planting; performance bonds; exemption of highway construction projects from reclamation requirements; supervision of operations; monthly report by operator, noncoal special reclamation fund; findings by director; appeals of order of the board; permit conversion; transfer, assignment or sale of a valid noncoal surface-mining permit; and certification of noncoal surface miners and foremen.

Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER

THAN COAL.

§22-4-1. Short title.

This article shall be known and cited as the "West Virginia Noncoal Surface-Mining Act."
§22-4-2. Legislative findings, intent and purpose.

The Legislature hereby finds that some of the activities associated with noncoal surface mining in West Virginia, although a vital industry that is an important part of the state's economy, may result in adverse environmental impacts, including, but not limited to, acid soil conditions, surface water pollution, potential ground water pollution, lowered property values of adjacent lands.
The Legislature further finds that past noncoal surface-mining practices have occasionally resulted in unreclaimed, orphaned mine sites which demonstrate some of the adverse effects of noncoal surface mining, which are hazards to public health and safety.
Therefore, it is the intent of the Legislature to strengthen and extend its present noncoal surface-mining controls by vesting jurisdiction and authority for regulating noncoal surface-mining activity in the division of environmental protection of the department of commerce, labor and environmental resources; by providing for procedures to minimize adverse effects of such activity on the environment; by prohibiting noncoal surface mining in certain unsuitable areas, as specified in section fifteen of this article; and by repairing hazardous orphaned noncoal surface-mining sites so that they may once again become a productive part of the West Virginia landscape. This article is intended to protect the environment of the state and the health and safety of the public, and shall be liberally construed in a manner to accomplish the Legislature's intent.
§22-4-3. Definitions.

As used in this article, unless otherwise provided or indicated by the context:
(a) "Adequate treatment" means treatment of water by physical, chemical or other approved methods so that the treated water will not violate applicable effluent limitations, established for the state generally, or any applicable water quality standards established specifically for any river, stream, groundwater 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 of the department of commerce, labor and environmental resources, or his or her authorized agents.
(d) "Disturbed land" or "land disturbed" means (1) the area from which the overburden has been removed in surface-mining operation, (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 natural deposits found on or in the earth, whether consolidated or loose, and including clay, flagstone, gravel, limestone, manganese, sand, sandstone, shale, chert, flint, dolomite, iron ore and any other metal or metallurgical ore: Provided, That the term "minerals," as used in this article, does not include coal.
(f) "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.
(g) "Orphaned lands" means those areas disturbed by the noncoal surface mining, and subsequently abandoned, which were not required by law to be reclaimed or which have not been reclaimed due to the operation being terminated without reclamation being accomplished.
(h) "Permit area" means the area of land indicated on the approved map submitted by the operator with the reclamation plan as specified in section twelve 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) "Reclamation" means the rehabilitation for useful purposes of land disturbed by noncoal surface mining, including any practices necessary for the protection of the natural resources, including both on lands or waters, of the surrounding area.
(k) "Significant revision" means any revision to a permit which could result in an adverse impact on the environment or on the welfare and safety of the public in a degree or manner different from that reflected in the approved permit.
(l) "Spoil" means overburden and waste material removed and placed elsewhere during noncoal surface mining operations.
(m) "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, haulageways, roads and trails, and the surface impacts incident to underground mining.
(n) "Surface mining" means all activity for the recovery of minerals, and all plants and equipment used in processing said minerals and the surface impacts incident to underground mining: Provided, That the storage or processing of minerals when comprising an integral part of a manufacturing process is not considered surface-mining activity and does not require permitting.
(o) "Underground mining" means surface disturbance or the surface effects associated with excavations penetrating or exposing for penetrating noncoal mineral deposits or strata and the equipment connected therewith which contributes directly or indirectly to the mining, preparation or handling of materials.
§22-4-4. Conflict of interest prohibited.

No public officer or employee in the division of environmental protection or office of attorney general, having responsibility or duty either directly or of a supervisory nature with respect to the administration or enforcement of this article may: (1) Engage in noncoal surface mining as a sole proprietor or as a partner or be an officer, director, stockholder, owner or part owner of any corporation or other business entity engaged in noncoal surface mining; or (2) be employed as an attorney, agent or in any other capacity by any person, partnership, firm, association, trust or corporation engaged in noncoal surface mining. Any violation of this section by any such public officer or employee, unless deemed acceptable by a ruling of the West Virginia ethics commission, may constitute grounds for removal from office or dismissal from employment, as the case may be.
§22-4-5. Cooperative efforts by the division of environmental

protection.

The director may cooperate with local, county or state government agencies, of this state or other states, or with agencies of the federal government, and may reasonably compensate them for such services. The director may also accept any federal funds, state funds or any other funds for the reclamation of land affected by noncoal surface mining.
§22-4-6. Noncoal surface-mining inspectors, supervisors and

other employees; appointment and qualifications.

The division may employ such noncoal surface-mining inspectors, supervisors and other personnel as deemed necessary by the division to carry out the purposes of this article. All such employees shall be eligible under the classified service, administered by the division of personnel of the department of administration.
§22-4-7. Duties of noncoal surface-mining 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 thirty days or as often as necessary to ensure compliance with this article and rules promulgated thereunder. The 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.
§22-4-8. Promulgation of legislative rules.

The director is hereby authorized, subject to prior review by the noncoal surface-mining advisory council, to promulgate legislative rules as deemed necessary and appropriate for the effective administration of this article. Such rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of the code: Provided, That rules promulgated by the director as authorized by this article may be promulgated as emergency legislative rules in accordance with section fifteen, article three, chapter twenty-nine-a of this code.
§22-4-9. Noncoal surface-mining advisory council created.

There is hereby created an advisory council to be known and designated as the "West Virginia Noncoal Surface-Mining Advisory Council" which shall consist of five members to be appointed by the governor with the advice and consent of the Senate. Members of the council shall be residents of the state for at least three years prior to their appointment. Two of the members shall be noncoal surface-mine operators who hold or have held a valid noncoal surface-mining permit for a minimum of five years. Two members shall be representatives of an active statewide environmental organization. One member shall be a citizen-at-large.
The governor shall select the members representing environmental organizations from a list of ten nominees submitted collectively by statewide environmental organizations.
The governor shall select the members representing noncoal surface-mining operators from a list of ten nominees, who meet the qualifications set forth in this article, submitted collectively by trade associations which represent the noncoal surface-mining industry.
No more than three members of the council may be from the same political party.
The governor shall appoint members of the advisory council within sixty days from the effective date of this article.
One representative of a statewide environmental organization and one of the noncoal surface-mining operators appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-six. The other representative of a statewide environmental organization and the citizen-at-large appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-eight. The other noncoal surface-mining operator appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-nine. All subsequent appointments shall be for a term of three years. In the event of a vacancy on the council before the expiration of a term, the governor shall, within sixty days, appoint a qualified person to fill the vacancy for the unexpired term. If the governor fails to fill the vacancy within the specified time, the council may appoint a qualified person to fill the vacancy. No member may serve more than two terms, consecutively. The governor may remove any member of the advisory council for official misconduct.
The director of the division of environmental protection, or his or her duly appointed agent shall serve as a nonvoting ex officio member of the council and serve as the chairperson of the council. The council shall meet to conduct appropriate business during the first month of each fiscal year. Other meetings may be conducted as needed upon the call of the chairperson: Provided, That the council may conduct an organizational meeting at any time within sixty days after the initial appointment. A majority of the members of the council, including the chairperson shall constitute a quorum.
Members of the advisory council shall receive a per diem of one hundred dollars for each day engaged in the performance of his or her official duties as members of the council. Such members shall also receive reimbursement for reasonable and necessary expenses actually incurred in the performance of such duties. Compensation and expenses for members of the council shall be paid from the noncoal special reclamation fund created in section twenty-six of this article.
The advisory council shall review all rules promulgated by the director and shall advise the director generally on matters relating to noncoal surface mining. Additionally the council shall approve the priority listing of orphaned lands for reclamation. All meetings of the advisory council shall be open to the public and shall be advertised in the West Virginia Register and as a Class III legal advertisement in a newspaper of general circulation in the location where such meeting is to be held. The council shall allow opportunity for public comment, if requested, for items taken under consideration by the council, with respect to noncoal surface-mining policies.
The advisory council is not liable for civil action as a result of any act performed in good faith in the exercising of its duties as prescribed by law.
§22-4-10. 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 a permit therefor as provided in this section. Application for a noncoal 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 twelve 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: Provided, That nothing in this article may be construed as vesting in the division the jurisdiction to adjudicate property rights disputes; (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, however, That if such list be so large as to cause undue inconvenience, the director may waive the requirements that such 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 for coal or noncoal extraction issued under the laws of this state revoked or has ever had a coal or noncoal 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 certificate 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 three hundred thousand dollars and property damage including blasting damage, protection in an amount of not less than five hundred thousand dollars. Proof of continuing insurance shall be required on an annual basis: Provided further, That blasting insurance shall not be required for operations that do not conduct blasting operations.
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 the information 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 shall be at least thirty days after the first publication of the notice.
The publication area of the notices required by this section shall be 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 the certificate 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 may not issue a permit to the applicant: Provided, That any person who has had a permit revoked or forfeited, or has forfeited bond or other property for activities associated with any type of mining operation, may not be granted a permit to engage in noncoal surface-mining operations unless he or she has corrected any violation causing such revocation or forfeiture, according to applicable provisions of the code and applicable rules governing such other mining operations.
A permit may be issued to an applicant if, after the revocation or forfeiture, either the applicant or the operator whose permit has been revoked or bond forfeited has petitioned for reinstatement and has paid into the noncoal special reclamation fund the sum of money determined by the division, to be adequate to reclaim the disturbed area and the division is satisfied that the petitioner will hereafter comply with the provisions of this article and other applicable rules.
The application fee for all permits for surface mining is seven hundred dollars. The permit is valid for five years 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 certificate of insurance as aforesaid, the director may renew a permit following the five year anniversary an approved permit if the operation is in compliance with the provisions of this article. The fee for a permit renewal is seven hundred dollars. The permittee shall submit the required renewal fee on each five year anniversary date of the permit issuance.
Any person holding a valid noncoal surface-mining permit may apply for a renewal of the permit by submitting, to the division, an application for renewal as furnished by the division. The applicant is not required to resubmit information previously submitted if the applicant states in writing that such information has not changed since the time the original application was submitted and any subsequent applications for modification thereof.
Upon reviewing the application which shall be accompanied by a renewal fee of seven hundred dollars and any other fees including bond as are required by this article, and certificate of insurance, the director shall renew the permit, if the operation is in compliance with the provisions of this article. Application for permit renewal shall be made at least one hundred twenty days prior to the expiration of the permit. The applicant applying for a renewal, following the submission of the completed application for renewal and fees, may continue noncoal surface-mining and reclamation operations in accordance with the last approved mining and reclamation plan of the current permit until the application for permit renewal is granted or denied.
If the applicant demonstrates that a specific longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment or the opening of the operation, the director may extend a permit for such longer term: Provided, That if such specified longer term is granted, the permittee shall submit the required renewal fee of seven hundred dollars on each five year anniversary date of permit issuance.
The permit of any operator who fails to pay any fees provided for in this article shall be revoked.
All application 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: Provided, That a portion of the permit renewal fees, not less than twenty-five percent, shall be credited to the noncoal special reclamation fund established under this article.
§22-4-11. Permit modification.

Any person holding a valid noncoal surface-mining permit may, at any time during the term of the permit, apply for a modification of the permit by submitting, to the division, an application for permit modification: Provided, That the applicant is not required to resubmit information previously submitted if the applicant states in writing that such information has not changed since the original application was submitted: Provided, however, That no modification may extend the expiration date of the permit that is being modified: Provided further, That in lieu of a modification, a permittee may apply for a new permit in the manner prescribed in section ten of this article.
An application for a significant revision of a permit is subject to all requirements of this article and rules promulgated pursuant thereto.
Any addition to an area covered by the permit, except boundary revisions which will not cause adverse environmental impacts or adversely affect the health and safety of the public, shall be made by application for a new permit for the additional area.
Application for permit modification shall be accompanied by a fee in the amount of two hundred dollars, which shall be credited to the noncoal special reclamation fund.
If, upon inspection of a noncoal surface-mining operation, the director determines that land affected by noncoal surface-mining activity conducted under the mining and reclamation plan submitted for the permit fails to meet the purposes set forth in section two of this article, the director may require modification of the permit by: (1) Notifying the permittee in writing of the division's decision which shall explain modifications deemed necessary to accomplish the original goals of the permit; and (2) the permittee's right to have a hearing on the proposed modification within no less than ten nor more than thirty days after the date the notice was issued, unless the permittee and the division mutually agree on another date.
Application fees for permit modifications do not apply to permit modifications mandated by the division.
§22-4-12. Preplans.

Under the provisions of this article, and rules promulgated thereunder, the operator shall prepare a complete mining and reclamation plan for the land to be disturbed. The mining and reclamation plan shall include a proposed method of operation, prepared by a registered professional civil or mining engineer or a person who is qualified based on standards developed in rules promulgated by the director and who requests and receives approval by the director, for grading, backfilling, soil preparation, mining and planting and such other proposals as may be necessary to develop the complete mining and reclamation plan contemplated by this article. In developing this complete mining and reclamation plan all reasonable measures shall be taken to eliminate damages to any person, his or her real and personal property, public roads, streams and all other public property from soil erosion, rolling stones and overburden, water pollution, breakthroughs and other hazards dangerous to life and property.
The preplan shall include copies of an enlarged topographic map meeting the requirements of the subdivisions below.
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 the application;
(c) Show probable limits of adjacent underground-mining operations, probable limits of adjacent inactive or mined-out underground-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 area of land to be disturbed, the crop line of the mineral 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 to the chief of the water resources section of the division of environmental protection 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;
(i) Show the presence of any materials which when present in the overburden, may cause spoil with a pH factor which will prevent effective revegetation. The director shall promulgate legislative rules establishing the appropriate soil amendments required to establish effective vegetation. 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 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 division of environmental protection shall be placed in an approved location near the operation. If the operations under a single permit are not geographically contiguous, 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 the order upon the operator by certified United States mail, furnish to the division of environmental protection 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 the map. The 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. The 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 notices at specified times shall cause the permit in question to be suspended.
Those noncoal 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 shall establish monitoring sites to: (1) Record the quantity and quality of surface drainage above and below the mine site as well as in the potential disturbed area; (2) record the level, amount and samples of ground water and aquifers potentially affected by the noncoal surface-mining operation and also below the lowermost elevation permitted to be disturbed; (3) record precipitation; and (4) maintain records of well logs and borehole data. 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.
§22-4-13. Installation of drainage system.

Prior to the beginning of noncoal 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 promulgated by the director.
§22-4-14. Alternative plans; bond releases; planting plan required.

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. The plans shall be submitted to the director, and if the plans are approved by the director and complied with within the 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 rules promulgated by 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 underground mining upon the premises or use an underground-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 until such underground 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 twelve 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 five hundred dollars per acre, but not less than a total amount of ten 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 first planting 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 regraded areas, 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, planting shall be required on all disturbed areas.
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 and any other measures necessary to provide a suitable vegetative cover shall be defined by the rules promulgated by 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 disturbed area covered by the planting plan within a reasonable period of time. The planting shall be done by the operator or the operator may contract in writing with a contractor approved by the director to have such planting done by such district or 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.
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 the modified program is not carried to completion within a reasonable length of time.
§22-4-15. Areas unsuitable for noncoal surface-mining
operations; writ of mandamus.

(a) The Legislature finds specifically that there are certain areas in the state of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if noncoal surface mining is conducted in these certain areas such operations may adversely impact surface water quality, ground water quality, quantity of aquatic life, wildlife and related environmental values, or cause landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural, residential, industrial or commercial 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 noncoal surface-mining. Therefore, authority is hereby granted for the director to exclude any such areas from permits for proposed noncoal surface-mining operations.
(b) No application for a permit may 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 there is probable cause to believe that the proposed method of operation, backfilling, grading or reclamation of the affected area cannot be carried out consistent with the purpose of this article.
(c) 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 or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds; (2) landslides; or (3) surface water or groundwater pollution, the director may delete such part of the land described in the application upon which such overburden exists.
(d) 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.
Whenever the director finds that ongoing noncoal surface-mining operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this section, he or 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 on him or her by this section is subject to a writ of mandamus, in any court of competent jurisdiction by any private citizen affected thereby.
§22-4-16. Prohibition of noncoal surface-mining operations

within a certain distance of public or private property.

The director may not give approval for any operator to engage in noncoal surface-mining operations within one hundred feet of: (1) Any cemetery; (2) the bank of any stream; (3) any property line of any adjoining lands upon which the operator does not have a right of entry; or (4) the outside right-of-way line on any public road, except where mine access roads or haulage roads join such right-of-way line: Provided, That the director may give approval for an operator to engage in noncoal surface-mining operations within one hundred feet of a public road if after a public hearing on such operation is conducted and the division has found that no significant adverse impact will likely occur as a result of such operation: Provided, however, That the public hearing shall be conducted at or near the location of the proposed operation. The director shall publish a Class III legal advertisement in a newspaper of general circulation in the county of the proposed operation stating the time, date, location and purpose of the public hearing.
The director may not give approval for any operator to engage in noncoal surface-mining operations within three hundred feet of: (1) Any occupied dwelling house or commercial or industrial building unless released by the owner thereof; (2) any public building, school or community building; or (3) public park: Provided, That the distance restrictions aforesaid, unless it would cause a real and imminent threat to the health and safety of the public, cause significant environmental harm or significantly degrade the existing use of the adjoining property, does not apply to: (A) Ways used for ingress and egress to and from the minerals as herein defined and the transportation of the removed minerals; (B) appropriate screening terms; (C) drainage control structures; and (D) the dredging and removal of minerals from the streams or watercourses of this state, when permitted.
§22-4-17. Blasting restrictions.

Where blasting of overburden or mineral is necessary, such blasting shall be done in accordance with established principles, as promulgated by rules by the director.
The director shall promulgate rules which shall set forth requirements for blasting procedures, preblast surveys, adherence to scaled distance formulas or compliance with maximum vibration limits measured by a seismograph, airblast limits, waivers, safety precautions, contents of the blast log book and the certification of blasting personnel.
§22-4-18. Time in which reclamation shall be done.

An operator shall commence the reclamation of the area of land disturbed by his or her operation in accordance with plans previously approved by the director and to complete such reclamation within no longer than twelve months after the expiration of the permit, 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 promulgated by the director and no permit or supplement to a permit may be issued or renewed, if in the discretion of the director, these practices are not current.
§22-4-19. 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 shall be required to:
(a) Dispose of, according to current rules, all materials determined by the director to be acid-producing materials, or materials constituting a fire hazard;
(b) Upon the completion of underground-mining operations, seal off all underground-mining openings. The appropriate type and design of seals for underground mining operations shall be approved by the director prior to installation. Seals shall be designed and certified by a registered professional civil or mining engineer, land surveyor or a person who is qualified based on standards developed in rules promulgated by the director and who requests and receives approval by the director;
(c) Contain any breakthrough of acid water caused by the operator: Provided, That any breakthrough caused by the operator during the course of his or her operations shall be contained 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, such water shall be captured and treated so that it meets applicable effluent water quality standards. 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 an acid resistant, impervious type;
(d) Properly dispose of all metal, lumber, equipment and other refuse resulting from the operation. No operator may 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; nor may any operator place any of the foregoing listed 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.
Where excess spoil disposal is proposed, 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 of the 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. No overburden material in excess of the first cut may be placed over the fill bench during the first cut. Trees and brush shall be removed from all fill sections prior to excavation, and no trees or brush removed from the cut section may be placed therein or thereon.
No excess spoil disposal areas may be produced on slopes of more than thirty-six percent, except in specified fill areas designated in the permit application and except for the construction of haulageways.
Lateral drainage ditches connecting to natural or constructed waterways shall be constructed to control water runoff and prevent erosion. There may be no depressions that will accumulate water except those the director may specify and approve.
Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of his or her 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 noncoal surface-mining operations unless waived by the owner.
Nothing in this article may be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his or her interest in water resources affected by a noncoal surface-mining operation.
Complete backfilling is required, not to exceed the approximate original contour of the land. In accordance with the approved mining and reclamation plan, the operator shall backfill, grade and compact, using all available overburden, spoil and waste rock in such a manner to eliminate to the extent possible all spoil peaks, depressions and highwalls. 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 work may be required by the director, according to rules promulgated by the director.
§22-4-20. Suspension of operation; informal conference;

imposition of affirmative obligations; appeals; notice of violation; procedure and actions; enforcement; permit revocation and bond forfeiture; civil and criminal penalties; appeals to the reclamation board of review; prosecution; injunctive relief.

(a) Notwithstanding any other provisions of this article, the director may issue a suspension order for any noncoal surface-mining operation or portion thereof when the director determines that any condition or practice exists, or that any permittee is in violation of any requirement 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 suspension order shall take 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 suspension order within twenty-four hours after the order becomes effective or such order shall expire. The conference shall be held before an inspector supervisor who shall, immediately upon conclusion of the hearing, determine when and if the operation or portion thereof may resume. Any operator who believes he or she is aggrieved by the decision of the inspector supervisor may immediately appeal to the director, setting forth reasons why the operation should not be halted. The director shall, within three days, determine if and under what conditions the operation or portion thereof may be resumed.
(b) The suspension order shall remain in effect until the director determines that the condition, practice or violation has been abated, or until modified, vacated or released by the director. If the director finds that the ordered suspension of any portion of a noncoal surface-mining operation will not completely abate the imminent danger to health or safety of the public or significant imminent environmental harm to land, air or water resources, the director shall, in addition to the suspension order, impose affirmative obligations on the operator requiring him or her to take whatever steps the director deems necessary to abate the imminent danger of the significant environmental harm.
(c) Any suspension order issued pursuant to this section or any other provision of this article may be released by the director who shall be readily available to terminate a suspension order upon abatement of the violation.
(d) If any of the requirements of this article, rules promulgated pursuant thereto, permit conditions or orders of the director have not been complied with, the director shall cause notice of violation to be served upon the operator or his or her duly authorized agent. A copy of the notice shall be handed to the operator or his or her 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 promulgated thereunder, 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 two hundred and not more than one thousand dollars per day per violation shall be assessed. A cessation order shall remain in effect until the director determines that 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 measure in the order.
(e) If the director determines that a pattern of three or more violations of a same or similar nature within a twelve-month period 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 may enter into a consent agreement with the operator mandating the remedial measures that the operator must accomplish within a reasonable time period to come into and remain in compliance with this article, the rules promulgated thereunder, and all permit conditions: Provided, That the operator must demonstrate that sufficient resources are available to him or her to comply with the requirements of the consent agreement. If no consent agreement is reached or if the operator violates any condition of the consent agreement, 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 subject to chapter twenty-nine-a of this code, as applicable. Within no more than 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 operator's bond, or other security posted pursuant to section twenty-two 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 noncoal special reclamation fund.
(f) Any person engaged in noncoal 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 may not exceed one thousand dollars per day. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessment. In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular noncoal 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.
(g) Upon the issuance of 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 the 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 reclamation board of review 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 shall have fifteen days from receipt of the assessment officer's decision to request a formal hearing before the reclamation board of review.
(h) When an informal conference is held, the assessment officer may affirm, modify or vacate the notice, order or proposed penalty assessment.
(i) 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.
(j) Civil penalties owed under this section may be recovered by the director in the circuit court of Kanawha County. Civil penalties collected under this article shall be deposited with the state treasury to the credit of the noncoal special reclamation fund established in section twenty-six 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 for long term securities, whichever is greater.
(k) Any person having an interest which is or may be adversely affected by an order of the director or the board may file an appeal only in accordance with the provisions of section twenty-eight of this article, within thirty days after receipt of the order.
(l) The filing of an appeal or a request for an informal conference or formal hearing provided for in this section shall not stay execution of the order appealed. 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 this article, together with a detailed statement giving reasons for granting such relief. The director shall issue an order or decision granting or denying such relief from an order for cessation of noncoal 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 he or she 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.
(m) Any person who willfully and knowingly conducts surface-mining operations without a permit, 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 not more than one year, or both fined and imprisoned.
(n) Whenever a corporate operator violates a condition of a permit issued pursuant to this article, any rule 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 the provisions of this section.
(o) 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.
(p) Whenever any person: (1) Violated or failed or refused to comply with any order or decision issued by the director under this article; or (2) interferes with, hinders or delays the director under this article; or (3) refuses to admit the director to the mine; or (4) refuses to permit inspection of the mine by the director; or (5) refuses to furnish any reasonable information or report requested by the director in furtherance of the provisions of this article; or (6) violates any other provision of this article, rule 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 any 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.
(q) 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 less than one hundred dollars nor more than ten thousand dollars or by imprisonment for not more than one year, or both.
It is unlawful for the owner or owners of surface rights or the owner or owners of mineral rights to interfere with the operator in the discharge of his or her obligation to the state for the reclamation of lands disturbed by him or her.
§22-4-21. Completion of planting; inspection and evaluation.

Within sixty days after 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 provided in section twenty-one of this article.
§22-4-22. Performance bonds.

Each operator who shall make application for a permit under section ten of this article shall, at the time such permit is requested, furnish bond, on a form to be designed 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 two thousand dollars for each acre or fraction thereof of the land to be disturbed: Provided, That the director shall determine the amount per acre of the bond that shall be required before a permit is issued, such amount to be based upon the estimated reclamation costs per acre, not to exceed a maximum of five thousand dollars per 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 the noncoal surface-mining and reclamation operations are to be initiated and conducted within the permit area, the operator shall file with the director 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, he or she 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. Such bond shall be executed by the operator and a corporate surety licensed to do business in the state of West Virginia: Provided further, 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 shall be 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 shall be 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 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.
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 such backfilling and regrading is done so that revegetation standards as required by this article and rules promulgated hereunder are met.
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 water discharge limits and reclamation standards required by this article and rules promulgated hereunder, whenever applicable, are met.
§22-4-23. Exceptions for construction projects from reclamation

requirements; noncoal surface-mining extraction by a landowner.

Any provision of this article to the contrary notwithstanding, a person or operator is not subject to any duty or requirement with respect to reclamation requirements when engaged in the removal of borrow and fill material for use in state, federal or local government construction projects: 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 recovery activity.
A landowner who extracts minerals from his or her own land for his or her own noncommercial use is not subject to this article.
§22-4-24. Applicability of laws safeguarding life and property;
supervision of operations.

All provisions of the mining laws of this state intended to safeguard life and property shall extend to all noncoal surface-mining operations insofar as such laws are applicable thereto. The director of the office of miners' health, safety and training shall promulgate reasonable rules, in accordance with the provisions of section eight of this article, to protect the safety of those employed in and around noncoal 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 office of miners' health, safety and training and shall be enforced according to the provisions of chapter twenty-two-a of this code and applicable rules promulgated thereunder.
§22-4-25. Monthly report by operator.

The operator of every surface 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. The reports shall state the number of accidents which have occurred, the number of persons employed, the days worked and the actual tonnage mined.
§22-4-26. Noncoal special-reclamation fund.

There is hereby created in the state treasury the noncoal special-reclamation fund. The fund shall be a dedicated, special revolving fund to be administered by the director with the advice and approval of the noncoal surface-mining advisory council, for the reclamation and rehabilitation of lands which have been disturbed by noncoal surface-mining operations and abandoned where no bond has been posted, or where the amount of the bond posted and forfeited is less than the actual cost of reclamation. The director shall prepare a prioritized listing of all known orphaned lands that have resulted from noncoal surface-mining and after approval or modification of such list by the noncoal surface-mining advisory council, shall proceed with reclamation activities in order of priority. Standards for prioritization, if deemed necessary, shall be included in the rules promulgated as authorized under this article. The director may also expend such amounts as are reasonably necessary to implement and administer the provisions of this article.
This fund shall be appropriated to the division of environmental protection to be used for the purposes of this article and for no other purpose.
§22-4-27. Adjudications, determinations and findings 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.
§22-4-28. Appeals to reclamation board of review hearing; record; findings and orders of 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 reclamation board of review for an order vacating or modifying such rule or order, or for such order as the director should have entered.
Such appeal shall be in writing and shall set forth the rule, order or omission complained of and the grounds upon which the appeal is based. Where the appellant claims to be aggrieved or adversely affected by an order, the appeal shall be filed with the board within thirty days after the date upon which the appellant received notice by certified mail of the making of the order complained of. Where the appellant claims to be aggrieved or adversely affected by any rule or omission, the appeal may be filed with the board at any time. A notice of the filing of the appeal shall be filed with the director within three days after the appeal is filed with the board.
Within seven days after receipt of such notice of appeal, the director shall prepare and certify to the board a complete record of the proceedings before him or her, including all documents and correspondence relating to the matter. The expense of preparing the record shall be taxed as a part of the costs of the appeal.
Upon the filing of the appeal, the board shall fix the time and place at which the hearing on the appeal will be held, which hearing shall be held within twenty days after the notice of appeal is filed, and shall give the appellant and the director at least ten days' written notice thereof by certified mail. The board may postpone or continue any hearing upon its own motion or upon application of the appellant or of the director.
The filing of an appeal provided for in this section shall not stay execution of the order appealed from.
The board shall hear the appeal de novo, and any party to the appeal may submit evidence.
For the purpose of conducting a hearing on an appeal, the board may require the attendance of witnesses and the production of books, records and papers, and it may, and at the request of any party it shall, issue subpoenas for witnesses or subpoenas duces tecum to compel the production of any books, records or papers, directed to the sheriff of the county where the witnesses, books, records or papers are found, which subpoenas and subpoenas duces tecum shall be served and returned in the same manner as subpoenas and subpoenas duces tecum in civil litigation are served and returned. The fees and allowances for mileage of sheriffs and witnesses shall be the same as those permitted in civil litigation in trial courts. The fees and mileage expenses incurred at the request of the appellant shall be paid in advance by the appellant, and the remainder of the fees and expenses shall be paid out of funds appropriated for the expenses of the division.
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 such disobedience, neglect or refusal occurs, or any judge thereof in vacation, 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 or a refusal to testify therein. Witnesses at such hearing shall testify under oath, and any member of the board may administer oaths or affirmations to persons who so testify.
At the request of any party to the appeal, a stenographic record of the testimony and other evidence submitted shall be taken by an official court shorthand reporter at the expense of the party making the request therefor. 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 same may make a proffer thereof, and the proffer shall be made a part of the record of such hearing.
If upon completion of the hearing the board finds that the rule or order appealed from was lawful and reasonable, it shall make a written order affirming the rule or order appealed from; if the board finds that such rule or order was unreasonable or unlawful, it shall make a written order vacating or modifying the rule or order appealed from; and if the board finds that the director has unreasonably or unlawfully failed to enter an order, it shall enter the order as it finds the director would have made. Every order made by the board shall contain a written finding by the board of facts upon which the order is based. Notice of the making of the order shall be given forthwith to each party to the appeal by mailing a certified copy thereof to each party by certified mail.
The order of the board shall be final unless vacated upon judicial review thereof.
§22-4-29. Appeal from order of board.

Any party adversely affected by an order of the reclamation board of review, other than an order affirming, modifying or vacating a rule of the director, may obtain judicial review thereof by appealing therefrom either to the circuit court of Kanawha County or the circuit court of the county in which the surface-mining operation to which the order relates is or was conducted or is or was proposed to be conducted. Any party adversely affected by an order of the reclamation board of review, which order affirms, modifies or vacates a rule promulgated by the director may obtain judicial review thereof by appealing therefrom either to the circuit court of Kanawha County or the circuit court of the county in which the surface-mining operation to which the rule in question relates is or was conducted or is or was proposed to be conducted. Any party desiring to so appeal shall file with the board a notice of appeal designating the order appealed from and stating whether the appeal is taken on questions of law, questions of fact or questions of law and fact. A copy of the notice shall also be filed by the appellant with the court and shall be mailed or otherwise delivered to the appellee. The notice and copies thereof shall be filed and mailed or otherwise delivered within thirty days after the date upon which the appellant received notice from the board by certified mail of the making of the order appealed from. No appeal bond may be required to make an appeal on questions of law, questions of fact or questions of law and fact effective.
The filing of a notice of appeal does not automatically operate as a suspension of the order of the board. If it appears to the court that an unjust hardship to the appellant will result from the execution of the board's order pending determination of the appeal, the court may grant a suspension of the order and fix its terms.
Within fifteen days after receipt of the notice of appeal, the board shall prepare and file in the court the complete record of the proceedings out of which the appeal arises, including a transcript of the testimony and other evidence which was submitted before the board. The expense of preparing and transcribing such record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Upon demand by a party, the board shall furnish, at the cost of the party requesting the same, a copy of the record. In the event the complete record is not filed in the court within the time provided in this section, either party may apply to the court to have the case docketed, and the court shall order the record filed.
Appeals taken on questions of law, fact or both, shall be heard upon assignment of error filed in the case or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued.
The hearing before the court shall be upon the record made before the reclamation board of review. The court may set aside any order of the reclamation board of review which is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or which is determined by the court to involve a clearly unwarranted exercise of discretion. The judgment of the court is final unless reversed, vacated or modified on appeal to the supreme court of appeals of West Virginia, and jurisdiction is hereby conferred upon the court to hear and entertain such appeals upon application made therefor in the manner and within the time provided for civil appeals generally.
§22-4-30. Permit conversion; exemptions.

(a) On or before the first day of July, one thousand nine hundred ninety-four, all noncoal surface-mining operators shall file an application for a permit or conversion of a valid existing permit relating to those lands to be mined after the first day of January, one thousand nine hundred ninety-five. The permit application or conversion shall contain all of the information required by this article including a mining and reclamation plan, blasting plan, if applicable, and bond.
(b) On and after the first day of January, one thousand nine hundred ninety-five, no person may engage in or carry out, on lands within this state, any noncoal surface-mining operations unless such person has first obtained a permit or a conversion of an existing permit from the director, except as exempted in section twenty-three of this article. All noncoal surface-mining and reclamation operations shall be conducted in a manner so as to comply with the provisions of this article and the rules promulgated pursuant thereto and all permit conditions.
(c) Noncoal surface-mining operations disturbed as of the effective date of this article are exempt from conducting preblast surveys required under section seventeen of this article: Provided, That the operation has had no previous history of causing adverse impacts on water quality or causing significant damage to any adjacent structure or property as a result of blasting operations. The above mentioned operations are also exempt from distance limitations established under section sixteen of this article.
Any lands permitted after the effective date of this article are not exempt from any provision of this article. Renewed permits granted under section eleven of this article shall continue to operate according to the approved mining and reclamation plan of the original approved permit.
§22-4-31. Transfer, assignment or sale of permit rights.

No transfer, assignment or sale of the rights granted under any permit issued pursuant to this article, may be made without the prior written approval of the director. Applications for transfer, assignment or sale of a permit shall be made on forms prescribed by the director and shall contain information as required by the rules.
The applicant shall at a minimum: (1) Affirmatively demonstrate that a bond in the full amount of that required for the permit be kept in full force and effect before, during and after the transfer, assignment or sale; (2) provide proof that the successor has the legal right to enter and conduct mining activities on the permitted areas; (3) provide a sworn statement that the successor is eligible to receive a permit and will conduct mining and reclamation activities in accordance with the purposes and intent of the act, the rules and the terms and conditions of the permit; and (4) provide proof of publication of a legal advertisement giving notice of the transfer, assignment or sale of the permit and providing an opportunity for public comment.
§22-4-32. Certification of noncoal surface miners.

Every noncoal surface miner shall be certified, in accordance with the provisions of articles nine and ten, chapter twenty-two of this code.
§22-4-33. Certification of noncoal surface-mine foremen.

(a) In every noncoal surface 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 ten, chapter twenty-two of this code as a mine foreman. Each applicant for certification as a mine foreman 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 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 an 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 said article ten, chapter twenty-two of this code.
(b) For noncoal surface mines in which the operations are so extensive that the duties devolving upon the mine foreman cannot be discharged by one person, one or more assistant mine foremen shall be designated. These 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 ten, chapter twenty-two of this code. Each applicant for certification as assistant mine foreman shall, at the time he or she is issued a certificate of competency, possess all of the qualifications required of a mine foreman: Provided, That he or she shall, at the time he or she is certified, be 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 an 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.



NOTE: The purpose of this bill establishes a short title, the "West Virginia Noncoal Surface-Mining Act," and legislative findings, intent and purpose for enacting the article. It also defines terms used throughout the bill including: "Minerals" which was revised from current law to include chert, flint and dolomite; "reclamation" which means the rehabilitation for useful purpose lands disturbed by noncoal surface-mining; "disturbed lands" as an area where surface-mining activity has occurred in which earth, sand, minerals, etc., have been removed; and "surface-mining" which means activity associated with the recovery of minerals.

The bill prohibits an officer or employee of the division of environmental protection or attorney general's office from having an interest in any surface-mining operation and establishes duties for inspectors and supervisors. An advisory council is established to assist the director in developing policies regarding noncoal surface-mining operations.

A person may not engage in noncoal mineral surface-mining operations without first obtaining a permit from the division. A permit may be obtained by submitting a completed application to the division accompanied by a fee of $700. Information contained in or with the application shall include the name and address of the operator, type mineral to be extracted, estimate of number of acres to be disturbed, name and address of every officer, partner or director in such corporation or organization, maps and preplans, and a certification of insurance. A permit may be modified or renewed as well as assigned, transferred or sold upon approval by the director. The director shall have the authority to not permit surface-mining activity in areas deemed unsuitable for such activity, even if such activity is detailed on an approved permit. The bill also restricts surface-mining activity within 100 feet of certain property boundaries or within 300 feet of an occupied dwelling or structure.

The bill establishes procedures for the director to order a suspension or cessation of operations and establishes administrative, civil and criminal penalties for violations of the provisions contained in the article. It also sets forth procedures for appealing such orders to the reclamation board of review and hearings and appeals to circuit court.

The bill requires a noncoal surface-mining operator to post bond for his or her operation in an amount ranging from $2000-$5000 per acre, with a minimum of $10,000. The operator shall file a monthly report on its operation to the director.

The Noncoal Special Reclamation Fund is created, which shall be used to assist in the financing of reclamation projects. The fund shall consist of forfeited bonds and administrative penalties issued pursuant to the article, a portion of a permit application, renewal or modification fee.

Finally, noncoal surface miners and surface-mine foremen shall be certified through the office of miners' safety, health and training.

This article has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.