H. B. 2699


(By Delegates Frederick, Everson, Talbott,

Riggs and Bennett)

[Introduced February 23, 1995; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact sections eighteen and twenty-one, article three, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to surface coal mining and reclamation.

Be it enacted by the Legislature of West Virginia:
That sections eighteen and twenty-one, article three, 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 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-18. Approval, denial, revision and prohibition of permit.

(a) (1) Upon the receipt of a an administratively complete surface-mining application or significant revision or renewal thereof, including public notification and an opportunity for a public hearing, the director shall grant, require revision of, or deny the application for a permit within sixty days and notify the applicant in writing of the decision. The applicant for a permit, or revision of a permit, has the burden of establishing that the application is in compliance with all the requirements of this article and the rules promulgated hereunder.
(2) Within ten working days of initial receipt of the application, the director shall provide written notification to the applicant as to the administrative completeness of the application. If the application is determined to be incomplete, the director shall notify the applicant, by certified mail, return receipt requested, or by registered mail, within ten working days after initial receipt of the application of the deficiencies which render the application incomplete. The applicant may submit supplemental information to correct the identified deficiencies for a period of twenty working days after the applicant's receipt of the initial notice of incompleteness. If, after twenty working days, the director determines that the application is still incomplete, the director shall return the incomplete application to the applicant with written notification of the reasons for the determination.
(3) A determination by the director that the application is administratively complete means that the application contains the major elements required by this article which are necessary to allow meaningful review of the application by the director. A determination that an application is administratively complete shall not mean that the application is complete in every detail, nor shall it mean that any aspect of the application is technically sufficient or approvable.
(4) Processing of the administratively complete application within the time periods set forth in subdivision (5), subsection (a) of this section, the director shall either:
(A) Notify the applicant of the director's decision to issue or deny the application; or
(B) Notify the applicant in writing, by certified mail, return receipt requested, or by registered mail, promptly upon discovery of deficiencies in the application and allow the application to be temporarily withdrawn by the applicant for the purpose of correcting the deficiencies. Temporary withdrawal periods shall not be counted against the time available to the director for consideration of the application.
(5) The director shall take action on applications within the following time periods as applicable:
(A) Except as provided for in paragraph (B), subdivision (4), subsection (a) of this section, for an application for a new permit a decision shall be made by the director to approve, require modification of, or deny the application within sixty days after the notice of administrative completeness under subdivision (2), subsection (a) of this section, except that periods of temporary withdrawal under subdivision (4), subsection (a) of this section shall not be counted against the sixty-day period available to the director. In the event that the director does not meet this deadline and the applicant has not temporarily withdrawn the application in accordance with subdivision (4), subsection (a) of this section, the application shall be deemed to have been approved by the director.
(B) Except as provided in paragraph (B), subdivision (4), subsection (a) of this section, and notwithstanding any provisions to the contrary in either subdivision (1), subsection (a) of this section or in section nineteen of this article, for an application for a significant permit revision submitted under section nineteen of this article a decision shall be made by the director to approve, require modification of, or deny the application with forty-five days after the notice of administrative completeness under subdivision (2), subsection (a) of this section, except that periods of temporary withdrawal under subdivision (4), subsection (a) of this section shall not be counted against the forty-five day period available to the director. In the event that the director does not meet this deadline and the applicant has not temporarily withdrawn the application in accordance with subdivision (4), subsection (a) of this section, the application shall be deemed to have been approved by the director.
(C) Except as provided in paragraph (B), subdivision (4), subsection (a) of this section, for an application submitted for a minor or insignificant revision, including incidental boundary revisions, as provided in section nineteen of this article, a decision shall be made by the director to approve, require modification of, or deny the application within fifteen days after the notice of administrative completeness under subdivision (2), subsection (a) of this section, except that periods of temporary withdrawal under subdivision (4), subsection (a) of this section shall not be counted against the fifteen-day period available to the director. In the event that the director does not meet this deadline and the applicant has not temporarily withdrawn the application in accordance with subdivision (4), subsection (a) of this section, the application shall be deemed to have been approved by the director.
(D) Except as provided in paragraph (B), subdivision (4), subsection (a) of this section, for an application to transfer, assign or sell the rights granted under any permit a decision shall be made by the director to approve, require modification, or deny the application within thirty days after the notice of administrative completeness under subdivision (2), subsection (a) of this section, except that periods of temporary withdrawal under subdivision (4), subsection (a) of this section shall not be counted against this thirty-day period.
(b) No permit or significant revision of a permit may be approved unless the applicant affirmatively demonstrates and the director finds in writing on the basis of the information set forth in the application or from information otherwise available which shall be documented in the approval and made available to the applicant that:
(1) The permit application is accurate and complete and that all the requirements of this article and rules thereunder have been complied with;
(2) The applicant has demonstrated that reclamation as required by this article can be accomplished under the reclamation plan contained in the permit application;
(3) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, as specified in section nine of this article, has been made by the director and the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area;
(4) The area proposed to be mined is not included within an area designated unsuitable for surface mining pursuant to section twenty-two of this article or is not within an area under administrative study by the director for such designation; and
(5) In cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted: (A) The written consent of the surface owner to the extraction of coal by surface mining; or (B) a conveyance that expressly grants or reserves the right to extract the coal by surface mining; or (C) if the conveyance does not expressly grant the right to extract coal by surface mining, the surface-subsurface legal relationship shall be determined in accordance with applicable law: Provided, That nothing in this article shall be construed to authorize the director to adjudicate property rights disputes.
(c) Where information available to the division indicates that any surface-mining operation owned or controlled by the applicant is currently in violation of this article or other environmental laws or rules, the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the director or the department or agency which has jurisdiction over the violation, and no permit may be issued to any applicant after a finding by the director, after an opportunity for hearing, that the applicant or the operator specified in the application controls or has controlled mining operations with a demonstrated pattern of willful violations of this article or of other state or federal programs implementing the federal Surface Mining Control and Reclamation Act of 1977, as amended, of such nature and duration with such irreparable damage to the environment as to indicate an intent not to comply with the provisions of this article or the federal Surface Mining Control and Reclamation Act of 1977, as amended: Provided, That if the director finds that the applicant is or has been affiliated with, or managed or controlled by, or is or has been under the common control of, other than as an employee, a person who has had a surface-mining permit revoked or bond or other security forfeited for failure to reclaim lands as required by the laws of this state, he or she shall not issue a permit to the applicant: Provided, however, That subject to the discretion of the director and based upon a petition for reinstatement, permits may be issued to any applicant if: (1) After the revocation or forfeiture, the operator whose permit has been revoked or bond forfeited has paid into the special reclamation fund any additional sum of money determined by the director to be adequate to reclaim the disturbed area; (2) the violations which resulted in the revocation or forfeiture have not caused irreparable damage to the environment; and (3) the director is satisfied that the petitioner will comply with this article.
(d) (1) In addition to finding the application in compliance with subsection (b) of this section, if the area proposed to be mined contains prime farmland, the director may, pursuant to rules promulgated hereunder, grant a permit to mine on prime farmland if the operator affirmatively demonstrates that the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management, and can meet the soil reconstruction standards in subdivision (7), subsection (b), section thirteen of this article. Except for compliance with subsection (b) of this section, the requirements of subdivision (1) of this subsection apply to all permits issued after the third day of August, one thousand nine hundred seventy-seven.
(2) Nothing in this subsection applies to any permit issued prior to the third day of August, one thousand nine hundred seventy-seven, or to any revisions or renewals thereof, or to any existing surface-mining operations for which a permit was issued prior to said date.
(e) If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state with a similar type of operation upon land with similar overburden shows that one or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds; (2) landslides; or (3) acid-water pollution, the director may delete such part of the land described in the application upon which such overburden exists.
§22-3-21. Decision of director on permit application; hearing thereon.

(a) If an informal conference has been held, the director shall issue and furnish the applicant for a permit and persons who were parties to the informal conference with the written finding granting, requiring revision of or denying the permit, in whole or in part, and stating the reasons therefor within thirty days of the informal conference, notwithstanding the requirements of subsection (a), section eighteen of this article, unless the applicant temporarily withdraws the application in accordance with section eighteen of this article.
(b) If the application is approved, the permit shall be issued. If the application is disapproved, specific reasons therefor must be set forth in the notification. Within thirty days after the applicant is notified of the director's decision, the applicant or any person with an interest which is or may be adversely affected may request a hearing before the surface mine board as provided in article one, chapter twenty-two-b of this code to review the director's decision.

NOTE: The purpose of this bill is to amend the West Virginia Surface Coal Mining and Reclamation Act to set specific deadlines for review of permit applications by the Division of Environmental Protection.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.