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.