H. B. 2784


(By Delegates Manuel and Doyle)
[Introduced March 27, 1997; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact sections two, four, five, six, seven,
eight, nine, ten, eleven, thirteen, fourteen, fifteen, sixteen, seventeen, nineteen, twenty-two and twenty-three, article four, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto five new sections, designated sections twenty-four, twenty-five, twenty-six, twenty-seven and twenty-eight, all relating to noncoal mineral extraction generally and imposing additional controls and requirements on noncoal mineral extraction operations.

Be it enacted by the Legislature of West Virginia:
That sections two, four, five, six, seven, eight, nine, ten, eleven, thirteen, fourteen, fifteen, sixteen, seventeen, nineteen, twenty-two and twenty-three, article four, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto five new sections, designated sections twenty-four, twenty-five, twenty-six, twenty-seven and twenty-eight, all to read as follows:
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER THAN
COAL.

§22-4-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:
(a) "Adequate treatment" means treatment of water by physical, chemical or other approved methods in a manner that will cause the analyzed Ph level of the treated water to be 6.0 - 9.0 and analyzed content of iron of the treated water to be seven milligrams per liter or less, or approved treatment which will not lower the water quality standards established for the river, stream or drainway into which such water is released so that the treated water will not violate applicable effluent limitations, or applicable water quality standards established for the river, stream or drainway into which such water is released.
(b) "Breakthrough" means the release of water which has been trapped or impounded underground, or the release of air into any underground cavity, pocket or area.
(c) "Director" means the director of the division of environmental protection or such any other person to whom the director has delegated authority or duties pursuant to section six or eight, article one of this chapter.
(d) "Disturbed land" or "land disturbed" means (1) the area from which overburden has been removed in surface-mining operations, (2) the area covered by the spoil, and (3) any areas used in surface-mining operations which by virtue of their use are susceptible to excessive erosion including all lands disturbed by the construction or improvement of haulageways, roads or trails land area where vegetation, topsoil, mineral or overburden has been removed or placed by surface-mining operations, including all lands disturbed by the construction or improvement of haulageways, roads or trails.
(e) "Minerals" means clay, flagstone, gravel, limestone, manganese, sand, sandstone, shale, iron ore and any other metal or metallurgical ore: Provided, That the term "minerals" does not include coal.
(f) "Mulch" means any natural or plant residue, organic or inorganic material, applied to the surface of the earth to retain moisture and curtail or limit soil erosion.
(g) "Operation" means those activities conducted by an operator which are subject to the jurisdiction of this article.
(g) (h) "Operator" means any individual, partnership, firm, association, trust or corporation person who or which is granted or should obtain a permit to engage in any activity covered by this article.
(i) "Overburden" means consolidated or unconsolidated material of any nature which overlies a mineral deposit, excluding top soil.
(h) (j) "Permit area" means the area of land indicated on the approved map submitted by the operator with the reclamation plan as specified in section seven of this article showing the exact location of end strip markers, permit markers and monument.
(k) "Permittee" means a person holding a permit issued under this article.
(i) (l) "Person" means any individual, partnership, firm, society association, trust, or corporation or other business entity.
(m) "Reclamation" means the responsible rehabilitation for useful purposes of land affected by surface mining and the protection of the natural resources of the surrounding area.
(n) "Significant revision" means a revision to a permit which will impact the environment or the welfare and safety of the public in a manner substantively and significantly different from that reflected in the approved permit.
(o) "Spoil" means overburden and waste material removed during surface-mining operations.
(j) (p) "Surface mine" means all areas surface mined or being surface mined, as well as adjacent areas ancillary to the surface-mining operation, together with preparation and processing plants, storage areas and haulageways, roads or trails, spoil areas, stockpile areas, waste reprocessing areas, impoundments, dams and the surface impacts incident to underground mining, or other property or other materials on the surface, resulting from or incident to such activities.
(k) (q) "Surface mining," "surface mined" or "surface-mining operation" means all activity for the recovery, processing or storage of minerals, and all plants and equipment used in processing said minerals and underground mining. Provided, That the bonding and reclamation provisions of this article do not apply to surface mining of limestone, sandstone and sand: Provided, however, That the surface mining of limestone, sandstone and sand is subject to separate rules to be promulgated by the director
(l) (r) "Surface of a regraded bench" means the top portion or part of any regraded area.
(s) "Underground mining" means surface disturbance or the surface effects associated with excavations penetrating 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. Surface-mining reclamation supervisors and inspectors;
appointment and qualifications; salary.


The director shall determine the number of surface-mining reclamation supervisors and inspectors needed to carry out the purposes of this article and appoint them as such. All such appointees shall be eligible civil service employees, but no person is qualified for such the appointment until he or she has served in a probationary status for a period of one year to the satisfaction of the director.
Every surface-mining reclamation supervisor or inspector shall be paid not less than sixteen twenty-five thousand dollars per year.
§22-4-5. Duties of surface-mining reclamation inspectors.
The surface-mining reclamation inspectors shall make all necessary surveys and inspections of surface-mining operations, shall administer and enforce all surface-mining laws and rules, and shall perform such other duties and services as may be prescribed by the director. Such inspectors shall give particular attention to all conditions of each permit to ensure complete compliance therewith. The director shall cause inspections to be made of each active surface-mining operation in this state by a surface-mining reclamation inspector at least once every fifteen thirty days or as often as necessary to ensure compliance with this article. Said The inspector shall note and describe violations of this article and immediately report such the violations to the director in writing, furnishing at the same time a copy of such the report to the operator concerned.
The director shall without advance notice and upon presentation of appropriate credentials: (a) Have the right of entry to, upon or through surface-mining operations or any premises in which records required to be maintained under this article are located; and (b) at reasonable times and without delay, have access to and copy any records and inspect any monitoring equipment or method of operation required under this article. The commissioner may require the operator to provide such other information relative to surface-mining operations as the director determined reasonable and necessary.
§22-4-6. Permit required; applications; issuance and renewals; fees and use of proceeds.

(a) It is unlawful for any person to engage in surface mining without having first obtained from the division of environmental protection a permit therefor as provided in this section. Application for a surface-mining permit shall be made in writing on forms prescribed by the director, and shall be signed and verified by the applicant. The application, in addition to such any other information as may be reasonably required by the director, shall contain the following information: (1) Name and address of the permit applicant or the operator, if a person different from the applicant; (2) name of the watershed and location of all surface streams or tributaries into which surface and pit drainage will be discharged; (1) (3) the common name and geologic title, where applicable, of the mineral or minerals to be extracted; (2) (4) maps and plans as provided in section seven hereof; (3) (5) the names and addresses of owner or owners of the surface of the land to be mined; (4) (6) the names and addresses of owner or owners of the mineral to be mined; (5) (7) the source of the operator's legal right to enter and conduct operations on the land to be covered by the permit; (6) (8) 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 (9) a blasting plan; (10) the quantity and quality of water in surface and groundwater systems under seasonal flow conditions; (11) a determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and groundwater systems, including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the director of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area, and particularly upon water availability; (8) (12) whether any surface-mining permits are now held and the numbers thereof; (9) (13) the names and post-office addresses of every officer, partner, director (or person performing a similar function), of the applicant, together with all persons, if any, owning of record or beneficially (alone or with associates), if known, ten percent or more of any class of stock of the applicant: Provided, That if such list be so large as to cause undue inconvenience, the director may waive the requirements that such the list be made a part of such application, except the names and current addresses of every officer, partner, director and applicant must accompany such the application; (10) (14) 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) (13) above, has ever had a surface-mining permit issued under the laws of this state revoked or has ever had a surface-mining bond, or security deposited in lieu of bond, forfeited; and (11) (15) 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 the application and such the owners shall be given ten thirty days within which to file written objections thereto, if any, with the director. There shall be attached to the application a true copy of an original policy of insurance certificate issued by an insurance company authorized to do business in this state certifying that a liability insurance policy is in effect covering all surface- mining operations of the applicant in this state and affording personal injury protection in an amount not less than one three hundred thousand dollars and property damage including blasting damage, protection in an amount of not less than three five hundred thousand dollars. Proof of continuing insurance shall be required on an annual basis; and (16) other information that may be required by rules or by the commissioner that are reasonably necessary to effectuate the purposes of this article.
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 the application will be received by him or her until a specified date, which date is at least thirty days after the first publication of the notice. The advertisement shall indicate that a copy of the complete application is available for public inspection at the courthouse of the county or counties in which the proposed permit area is located.
The publication area of the notices required by this section is the county or counties in which the proposed permit area is located. The cost of all publications required by this section shall be borne by the applicant.
(b) If written objections are filed and an informal conference requested, the commissioner shall then hold a conference in the locality of the proposed surface-mining operation within four weeks after the close of the public comment period. Those requesting the conference shall be notified and the date, time and location of the informal conference shall also be advertised by the commissioner in a newspaper of general circulation in the locality at least two weeks prior to the scheduled conference date. The director may arrange with the applicant, upon request by any party to the conference proceeding, access to the proposed mining area for the purpose of gathering information relevant to the proceeding. An electronic or stenographic record shall be made of the conference proceeding unless waived by all parties. The record shall be maintained and shall be accessible to the parties at their respective expense until final release of the applicant's performance bond or other security posted in lieu thereof. The director's authorized agent will preside over the conference. In the event all parties requesting the informal conference stipulate agreement prior to the conference and withdraw their request, a conference need not be held.
(c) Upon the filing of an application in proper form, accompanied by the fees and bond required by this article and said true copy of the policy of insurance a 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 shall not issue a permit to the applicant: Provided, That no surface-mining permit shall be refused because of any past revocation of a permit and forfeiture of a bond or other security if such revocation and forfeiture occurred before the first day of July, one thousand nine hundred seventy-one, and if, after such revocation and forfeiture, the operator whose permit has been revoked and bond forfeited has paid into the surface-mining reclamation fund the full amount of the bond so forfeited, and any additional sum of money determined by the director to be adequate to reclaim the land covered by such forfeited bond: Provided, however, That in no event shall such additional sum be less than sixty dollars per acre subject to the discretion of the director and based upon a petition for reinstatement, permits may be issued to any applicant if, after the revocation or forfeiture, the operator whose permit has been revoked or bond forfeited shall have paid into the special reclamation fund an additional sum of money determined by the director to be adequate to reclaim the disturbed area, and the director is satisfied that the petitioner will comply with this article.
The permit is valid for one year from its date of issue. Upon verified application, containing such information as the director may reasonably require, accompanied by such fees and bond as are required by this article, and a true copy of the policy of insurance as aforesaid, the director shall from year to year renew the permit, if the operation is in compliance with the provisions of this article.
The registration fee for all permits for surface mining is five hundred dollars. The annual renewal fee for permits for surface mining is one hundred dollars payable on the anniversary date of said the permit upon renewal.
The permit of any operator who fails to pay any fees provided for in this article shall be revoked.
(d)(1) During the term of the permit, the permittee may submit to the director an application for a revision of the permit, together with a revised reclamation plan.
(2) An application for a significant revision of a permit shall be subject to all requirements of this article and rules promulgated pursuant thereto.
(3) Any extension to an area already covered by the permit, except incidental boundary revisions, shall be made by application for another permit.
(e) The director may require reasonable revision of modification of a permit following review: Provided, That the revision or modification shall be based upon written findings and shall be preceded by notice to the permittee and an opportunity for a hearing.
(f) All registration and renewal fees and interest accrued from the fees for surface mining shall be collected by the director and shall be deposited with the treasurer of the state of West Virginia to the credit of the operating permit fees fund and shall be used, upon requisition of the director, for the administration of this article.
§22-4-7. Preplans.

Under the provisions of this article, and rules adopted by the director, the operator shall prepare a complete reclamation and mining plan for the area of land to be disturbed. Said reclamation and mining plan shall include a proposed method of operation, prepared by a registered professional engineer or a person approved by the director, for grading, backfilling, soil preparation, mining and planting and such any other proposals as may be necessary to develop the complete reclamation and mining plan contemplated by this article. In developing this complete reclamation and mining plan all reasonable measures shall be taken to eliminate damages to members of the public, their real and personal property, public roads, streams and all other public property from soil erosion, rolling stones and overburden, water pollution and hazards dangerous to life and property. The plan shall be submitted to the director and the director shall notify the applicant by certified mail within thirty days after receipt of the plan and complete application if it is or is not acceptable. If the plan is not acceptable, the director shall set forth the reasons why the plan is not acceptable, and he or she may propose modifications, delete areas or reject the entire plan. Should the applicant disagree with the decision of the director, the applicant may, by written notice, request a hearing before the director. The director shall hold such the hearing within thirty days after receipt of this notice. When a hearing is held by the director, he or she shall notify the applicant of his or her decision by certified mail within twenty days after the hearing. Any person aggrieved by a final order of the director made after the hearing or without a hearing may appeal to the surface mine board.
The application for a permit shall be accompanied by copies of an enlarged United States geological survey topographic map meeting the requirements of the subdivisions below. Aerial photographs of the area are acceptable if the plan for reclamation can be shown to the satisfaction of the director. The maps shall:
(a) Be prepared and certified by or under the supervision of a registered professional civil engineer, or a registered professional mining engineer or a registered land surveyor, who shall submit to the director a certificate of registration as a qualified engineer or land surveyor;
(b) Identify the area to correspond with application;
(c) Show probable limits of adjacent deep-mining operations, probable limits of adjacent inactive or mined-out deep-mined areas and the boundaries of surface properties and names of surface and mineral owners of the surface area within five hundred feet of any part of the proposed disturbed area;
(d) Be of such scale as may be prescribed by the director;
(e) Show the names and locations of all streams, creeks or other bodies of public water, roads, buildings, cemeteries, active, abandoned or plugged oil and gas wells, any known significant geologic, geographic or karst features, 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 seam and strike and dip of the mineral to be mined, if any, and the total number of acres involved in the area of land to be disturbed;
(g) Show the date on which the map was prepared, the north point and the quadrangle sketch and exact location of the operation;
(h) Show the drainage plan on and away from the area of land to be disturbed. Such plan shall indicate the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving or to receive this discharge; Upon receipt of such drainage plan, the director may furnish the office of water resources of the division a copy of all information required by this subdivision, as well as the names and locations of all streams, creeks or other bodies of public water within five hundred feet of the area to be disturbed
(i) Show the presence of any acid-producing materials which when present in the overburden, may cause spoil with a pH factor below 3.5, preventing effective revegetation. The presence of such these materials, wherever occurring in significant quantity, shall be indicated on the map, filed with the application for permit. The operator shall also indicate the manner in which acid-bearing spoil will be suitably prepared for revegetation and stabilization, whether by application of mulch or suitable soil material to the surface or by some other type of treatment, subject to approval of the director.
The operator shall also indicate the manner in which all permanent overburden disposal sites will be stabilized.
The certification of the maps shall read as follows: "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the surface-mining laws of this state." The certification shall be signed and notarized. The director may reject any map as incomplete if its accuracy is not so attested.
For those surface-mining operations which remove or disturb strata that serve as aquifers which significantly ensure the hydrologic balance of water use either on or off the mining site, the commissioner shall require that: (1) Monitoring sites be established to record the quantity and quality of surface drainage above and below the mine site as well as in the potential zone of influence; (2) monitoring sites be established to record level, amount and samples of groundwater and aquifers potentially affected by the surface mining and also below the lowermost mineral seam to be mined; (3) records or well logs and borehole data be maintained; and (4) monitoring sites be established to record precipitation. The monitoring data collection and analysis required by this section shall be conducted according to standards and procedures set forth by the director in order to assure their reliability and validity.
In addition to the information and maps required above, each application for a permit shall be accompanied by a detailed reclamation plan as required by this article.
A monument as prescribed by the director shall be placed in an approved location near the operation. If the operations under a single permit are not geographically continuous, the operator shall locate additional monuments and submit additional maps before mining other areas.
Upon an order of the director, the operator shall, within thirty days after service of a copy of said order upon said the operator by certified United States mail, furnish to the director four copies of a progress map prepared by or under the supervision of a registered professional civil engineer or registered professional mining engineer, or by a registered land surveyor, showing the area disturbed by operations to the date of such the map. Such 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. Such 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 a reasonable degree of accuracy as may be prescribed by the director. If no land has been disturbed by operations during the preceding year, the operator shall notify the director of this fact. A final map shall be submitted within sixty days after completion of mining operations. Failure to submit maps or aerial photographs or notices at specified times shall cause the permit in question to be suspended.
§22-4-8. Installation of drainage system.

Prior to the beginning of surface-mining operations, the drainage system and haulageway shall be certified by a person approved by the commissioner to be constructed in accordance with approved design criteria. All sediment control structures shall be maintained and shall be cleaned out when the sediment accumulation reaches sixty percent of the design capacity.
§22-4-9. Alternative plans; time.

An operator may propose alternative plans not calling for backfilling where a water impoundment is desired, if such the restoration will be consistent with the purpose of this article. Such The plans shall be submitted to the director, and if such the plans are approved by the director and complied with within such the time limits as may be determined by him or her as being reasonable for carrying out such the plans, the backfilling requirements of this article may be modified.
By rule of the director, time limits shall be established requiring backfilling, grading and planting to be kept current. All backfilling and grading shall be completed before equipment necessary for such the backfilling and grading is moved from the operation.
If the operator or other person desires to conduct deep underground mining upon the premises or use a deep 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 for until such the deep 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 The locations shall be described and designated on the map required by the provisions of section seven of this article.
Where applicable, suitable soil material shall be used to cover the surface of the regraded and backfilled area of operation in an amount sufficient to support vegetation.
When the backfilling and grading have been completed and approved by the director, the director shall release that portion of the bond which was filed and designated to cover the backfilling and grading requirements of this article, the remaining portion of the bond in an amount equal to two hundred fifty five hundred dollars per acre, but not less than a total amount of five ten thousand dollars being retained by the treasurer until such the 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 fill and cut slopes of the operation and haulageways shall be seeded and planted in a manner as prescribed by the director, as soil tests indicate soil suitability and in accordance with accepted agricultural and reforestation practices.
In any such area where surface mining is being conducted, mulch is required on all disturbed areas. where the remaining slope exceeds twenty degrees from horizontal as shown on the preplan map filed with the director as required by the provisions of section seven of this article
After the operation has been backfilled, graded and approved by the director, the operator shall prepare or cause to be prepared a final planting plan for the planting of trees, shrubs, vines, grasses or legumes upon the area of the land affected in order to provide a suitable vegetative cover. The seed or plant mixtures, quantities, method of planting, type and amount of lime, fertilizer, mulch and any other measures necessary to provide a suitable vegetative cover shall be defined by the rules of the director.
The planting called for by the final planting plan shall be carried out in a manner so as to establish a satisfactory cover of trees, shrubs, grasses, legumes or vines upon the disturbed area covered by the planting plan within a reasonable period of time. Such The planting shall be done by the operator or such the operator may contract in writing with the soil conservation district for the district in which the operation covered by such a permit is located or with a private contractor approved by the director to have such the planting done by such a district or private contractor. The director shall not release the operator's bond until all haulageways, roads and trails within the permit area have been abandoned according to the provisions of this article and the rules promulgated thereunder or such the operator or any other person has secured a permit to deep mine such the area as required by article three of this chapter.
The purpose of this section is to require restoration of land disturbed by surface mining to a desirable purpose and use. The director may, in the exercise of his or her sound discretion when not in conflict with such purpose, modify such the 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 the modifications will execute contracts, post bond or otherwise ensure full compliance with the provisions of this section in the event such the modified program is not carried to completion within a reasonable length of time.
§22-4-10. Limitations; mandamus.

The Legislature finds that there are certain areas in the state of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if surface mining is conducted in these certain areas such operations may naturally cause stream pollution adversely impact surface-water quality, groundwater quality or quantity or aquatic life, wildlife and related environmental values, or cause landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural purposes, the destruction of aesthetic values, the destruction of recreational areas and future use of the area and surrounding areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life and property so as to constitute an imminent and inordinate peril to the welfare of the state, and that such the areas shall not be mined by the surface-mining process.
Therefore, authority is hereby vested in the director to delete certain areas from all surface-mining operations.
No application for a permit shall be approved by the director if there is found on the basis of the information set forth in the application or from information available to the director and made available to the applicant that the requirements of this article or rules hereafter adopted will not be observed or that there is not probable cause to believe that the proposed method of operation, backfilling, grading or reclamation of the affected area can be carried out consistent with the purpose of this article.
If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state of West Virginia with a similar type of operation upon land with similar overburden shows that one 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.
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 the areas from the permit application before it can be approved.
The director shall may not give approval to surface mine any area which is within one hundred feet of any public road, stream, lake or other public property, and shall may not approve the application for a permit where the surface-mining operation will adversely affect a state, national or interstate park unless adequate screening and other measures approved by the commission are to be utilized and the permit application so provides: Provided, That the one-hundred-foot restriction aforesaid does not include ways used for ingress and egress to and from the minerals as herein defined and the transportation of the removed minerals, nor does it apply to the dredging and removal of minerals from the streams or watercourses of this state.
Whenever the director finds that ongoing surface-mining operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this section, he or she may order immediate cessation of such the operations and he or she shall take such any other action or make such any changes in the permit as he or she may deem determine necessary to avoid said described conditions.
The failure of the director to discharge the mandatory duty imposed by this section is subject to a writ of mandamus, in any court of competent jurisdiction by any private citizen affected thereby.
§22-4-11. Blasting restriction; formula; filing preplan; penalties; notice.
Where blasting of overburden or mineral is necessary, the blasting shall be done in accordance with established principles for preventing injury to persons and damage to residences, buildings and communities. The blasting is in compliance with provisions of this article if the following measures are adhered to:
(1) The weight in pounds of explosives to be detonated in any period less than an eight millisecond period without seismic monitoring shall conform to the following scaled distance formula: W = (D/50)(to the second power). Where W equals weight in pounds of explosives detonated at any one instant time, then D equals distance in feet from nearest point of blast to nearest residence, building or structure, other than operation facilities of the mine: Provided, That the scaled distance formulas need not be used if a seismograph measurement at or between the blast site and the nearest protected structure (residence, building or structure) is recorded and maintained for every blast. The peak particle velocity in inches per second in any one of the three mutually perpendicular directions shall not exceed the following values at any protected structure:
Seismograph Measurement Distance to the Nearest
Protected Structure
1.25 0 - 300 feet
 1.00 301 - 5,000 feet
0.75 5,001 feet or greater
The maximum ground vibration standards do not apply to the structures owned by the permittee and not leased to another person and structures owned by the permittee and leased to another person, if a written waiver by the lessee is submitted to the director before blasting.
(2) Airblast shall not exceed the maximum limits listed below at the location of any dwelling, public buildings, school or community or institutional building outside the permit area:
Lower frequency limit of measuring
system in Hz(+3dB)Maximum level in db
1Hz or lower-flat response*134 peak
2Hz or lower-flat response133 peak
6Hz or lower-flat response129 peak
c-weighted-slow response*105 peak dBC
* only when approved by the director.
In addition:
(1) A blasting logbook formatted in a manner prescribed by the commissioner shall be kept current daily and made available for inspection at the site.
(2) A plan of each operation's methods for compliance with this section (blast delay design) for typical blasts which shall be adhered to in all blasting at each operation, shall be submitted to the director with the application for a permit. (3) Access to the blast area shall be controlled against the entrance of unauthorized personnel during blasting for a period thereafter until an authorized person has reasonably determined that:
(A) No unusual circumstances exist such as imminent slides or undetonated charges, etc.; and
(B) Access to and travel in or through the area can be safely resumed.
(4) A plan of each operation's methods for compliance with this section (blast delay design) for typical blasts which shall be adhered to in all blasting at each operation, shall be submitted to the division of environmental protection with the application for a permit. It shall be accepted if it meets the scaled distance formula established in subdivision (1) of this section.
(5) Records of each blast shall be kept in a log to be maintained for at least three years, which will show for each blast the following information:
(A) Date and time of blast;
(B) Number of holes;
(C) Typical explosive weight per delay period;
(D) Total explosives in blast at any one time;
(E) Number of delays used;
(F) Weather conditions;
(G) Signature of operator employee in charge of the blast;
(H) Seismograph data;
(I) Date of seismograph calibration; and
(J) Any other information required by the director.
(6) The director shall propose rules for legislative promulgation pursuant to article three, chapter twenty-nine-a of this code 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; warnings of impending blasting to the owners, residents or other persons who may be present on property adjacent to the blasting area; contents of the blast logbook; and the certification of blasting personnel.
(6) (7) Where inspection by the division of environmental protection establishes that the scaled distance formula or the seismograph results or the approved preplan are not being adhered to, the following penalties shall be imposed:
(A) For the first offense in any one permit year under this section, the permit holder shall be assessed not less than five hundred dollars nor more than one thousand dollars;
(B) For the second offense in any one permit year under this section, the permit holder shall be assessed not less than one thousand dollars nor more than five thousand dollars;
(C) For the third offense in any one permit year under this section or for the failure to pay any assessment hereinabove set forth within a reasonable time established by the commissioner, the permit shall be revoked.
All assessments as set forth in this section shall be assessed by the director, collected by the director and deposited with the treasurer of the state of West Virginia, to the credit of the operating permit fees fund.
The director shall propose legislative rules pursuant to article three, chapter twenty-nine-a of this code which shall provide for a warning of impending blasting to the owners, residents or other persons who may be present on property adjacent to the blasting area.
§22-4-13. Obligations of the operator.

In addition to the method of operation, grading, backfilling and reclamation requirements of this article and rules adopted pursuant thereto, the operator is required to perform the following:
(1) Cover the face of the coal and the disturbed area with material suitable to support vegetative cover and of such thickness as may be prescribed by the director, or with a permanent water impoundment.
(2) (1) Bury under adequate fill, all materials determined by the director to be acid-producing materials, toxic material or materials constituting a fire hazard.
(3) (2) Seal off any breakthrough of acid water caused by the operator: Provided, That any breakthrough caused by the operator during the course of the operator's operations shall be sealed immediately and reported immediately to the director. The type and design of seals shall be approved by the director prior to installation. Seals shall be designed and certified by an approved person. If the breakthrough is one that allows air to enter a mine, the seal shall either prevent any air from entering the mine by way of the breakthrough, or prevent any air from entering the breakthrough while allowing the water to flow from the breakthrough. If the breakthrough is one that allows acid water to escape, the seal shall prevent the acid water from flowing. Seals shall be constructed of stone, brick, block, earth or similar impervious materials which are acid resistant. Any cement or concrete employed in the construction of these seals shall also be of an acid resistant, impervious type.
(4) (3) Impound, drain or treat all runoff water so as to reduce soil erosion, damage to agricultural lands and pollution of streams and other waters.
In the case of storm water accumulations or any breakthrough of water, adequate treatment shall be undertaken by the operator so as to prevent pollution occurring from the release of such the water into the natural drainway or stream. Treatment may include check-dams, settling ponds and chemical or physical treatment. In the case of a breakthrough of water, where it is possible, the water released shall be impounded immediately. All water so impounded shall receive adequate treatment by the operator before it is released into the natural drainway or stream.
Storm water or water which escapes, including that which escapes after construction of the seals, and is polluted as defined in this code, or as defined in the rules promulgated under this code All water discharged from the permit area is subject to the requirements of article eleven of this chapter.
(5) (4) Remove or bury all metal, lumber, equipment and other refuse resulting from the operation. No operator shall throw, dump or pile; or permit the throwing, dumping, piling or otherwise placing of any overburden, stones, rocks, coal, mineral, earth, soil, dirt, debris, trees, wood, logs or other materials or substances of any kind or nature beyond or outside the area of land which is under permit; and for which bond has been posted nor shall any operator place any of the 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. and for which bond has been posted
The operator shall show on the map, filed with the application for a permit, the percent of slope of original surface within each two-hundred-foot interval along the contour of the operation, the first measurement to be taken at the starting point of the operation. The flagged field measurement shall be made from the estimated crop line or proposed mineral seam down slope to the estimated toe of the outer spoil. All reasonable measures shall be taken so as not to overload the fill bench during the first cut. No overburden material in excess of the first cut shall be placed over the fill bench. With the exception of haulageways and auger-mining operations, trees and brush shall be removed from the upper one half of all fill sections prior to excavation, and no trees or brush removed from the cut section shall be placed therein or thereon.
No fill bench shall be produced on slopes of more than sixty-five thirty-six percent, except in specified fill areas designated in the permit application and except for the construction of haulageways, and such the haulageways shall may not exceed thirty-five feet in width, with very scattered forty-five-foot passing areas permitted.
Lateral drainage ditches connecting to natural or constructed waterways shall be constructed to control water runoff and prevent erosion whenever required by the director. There shall be no depressions that will accumulate water except those the director may specify and approve. The depth and width of natural drainage ditches and any other diversion ditches may vary depending on the length and degree of slope.
Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the surface-mining operations unless waived by said owner.
Nothing in this article shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a surface-mining operation.
With the exception of limestone, sandstone and sand, complete Backfilling is required not to exceed the approximate original contour of the land to be completed as contemporaneously as possible in accordance with the approved reclamation plan. Such The backfilling shall eliminate highwalls and spoil peaks. Whenever directed by the director, the operator shall construct, in the final grading, such diversion ditches or terraces as will control the water runoff. Additional restoration work may be required by the director, according to rules adopted by the director.
The operator at a minimum shall backfill, grade and compact where advisable, using all available overburden, spoil and waste material in any manner so as to eliminate to the extent possible all spoil peaks, depressions and highwalls. All final highwalls created after the first day of January, one thousand nine hundred ninety-two, and not inundated by an approved permanent water impoundment, shall be reduced to a slope not steeper than one- half horizontal to one vertical.
§22-4-14. Cessation of operation by inspector.

Notwithstanding any other provisions of this article, a surface-mining reclamation inspector has authority to order the immediate cessation of any operation where: (1) Any of the permit condition, any requirements of this article or the rules promulgated pursuant thereto or the orders of the director have not been complied with; or (2) the public welfare or safety calls for the immediate cessation of the operation. Such The cessation of operation shall continue until corrective steps have been started by the operator to the satisfaction of the surface-mining reclamation inspector or surface-mining reclamation supervisor. Operators who believe they are aggrieved by the actions of the surface-mining reclamation inspector may immediately appeal to the director surface-mining reclamation supervisor, setting forth reasons why their operations should not be halted. The director surface-mining reclamation supervisor shall determine immediately when and if an operation may continue.
§22-4-15. Completion of planting; inspection and evaluation.

When 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 any 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 the planting, as aforesaid.
§22-4-16. Performance bonds.

Each operator who makes application for a permit under section six of this article shall, at the time such the permit is requested, furnish bond, on a form to be prescribed and furnished by the director, payable to the state of West Virginia and conditioned that the operator shall faithfully perform all of the requirements of this article. The amount of the bond shall be not less than six hundred two thousand dollars for each acre or fraction thereof of the land to be disturbed: Provided, That the director has the discretion to determine the amount per acre of the bond that is required before a permit is issued, such the amount to be based upon the estimated reclamation costs per acre. not to exceed a maximum of one thousand dollars per acre or fraction thereof The minimum amount of bond furnished shall be ten thousand dollars. Such The bond shall be executed by the operator and a corporate surety licensed to do business in the state of West Virginia: Provided, however, That in lieu of corporate surety, the operator may elect to deposit with the director cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land banks, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district or municipality of the state of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the director. The cash deposit or market value of such the securities or certificates shall be equal to or greater than the sum of the bond. The director shall, upon receipt of any such the deposit of cash, securities or certificates, immediately place the same with the treasurer of the state of West Virginia whose duty it is to receive and hold the same in the name of the state in trust for the purpose for which such the deposit is made. The operator making the deposit is entitled from time to time to receive from the state treasurer, upon the written order of the director, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.
It is unlawful for the owner or owners of surface rights or the owner or owners of mineral rights to interfere with the operator in the discharge of the operator's obligation to the state for the reclamation of lands disturbed by the operator. If the owner or owners of the surface rights or the owner or owners of the mineral rights desire another operator or other operators to conduct mining operations on lands disturbed by the operator furnishing bond hereunder, it is the duty of said owner or owners to require the other operator or operators to secure the necessary mining permit and furnish suitable bond as herein provided. The director may then release an equivalent amount of the bond of the operator originally furnishing bond on the disturbed area.
No transfer, assignment or sale of the rights granted under any permit issued pursuant to this article, shall be made without the prior written approval of the commissioner. Applications for transfer, assignment or sale of a permit shall be made on the forms prescribed by the director and shall contain such information as required by the rules.
The applicant shall at a minimum: (a) 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; (b) provide proof that the successor has the legal right to enter and conduct mining activities on the permitted areas; (c) 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 (d) 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.
The director shall may not release that portion of any bond filed by any operator which is designated to assure faithful performance of, and compliance with, the backfilling and regrading requirements of the reclamation plan until all acid-bearing or acid-producing spoil within the permit area has received adequate treatment as specified in section nine of this article.
§22-4-17. Exception as to highway construction projects for
reclamation requirements.

Any provision of this article to the contrary notwithstanding, a person or operator is not subject to any duty or requirement whatever with respect to reclamation requirements when engaged in the removal of borrow and fill material for grading in federal, and state highway or local government construction projects: Provided, That the provisions of the highway construction contract require the furnishing of a suitable bond which provides for reclamation wherever practicable of the area affected by such the recovery activity.
The provisions of this article do not apply to the extraction of mineral by a landowner for his own noncommercial use from land owned by him.
§22-4-19. Noncompliance.

If any of the requirements permit condition, or any requirement of this article or rules rule promulgated pursuant thereto or the orders order of the director have has not been complied with, within the time limits set by the director or by this article the director shall cause a notice of noncompliance to be served upon the operator, which notice shall may order the operation or portion of the operation to cease, or where found necessary, the director shall order the suspension of a permit. A copy of such the notice or order shall be handed to the operator in person or served by certified mail addressed to the operator at the permanent address shown on the application for a permit. The notice of noncompliance or order of suspension shall specify in what respects the operator has failed to comply with this article or the rules or orders of the director. If the operator has not reached an agreement with the director or has not complied with the requirements set forth in the notice of noncompliance or order of suspension within the time limits set therein, the permit may be revoked by order of the director and the performance bond shall then be forfeited. If an agreement satisfactory to the director has not been reached within thirty days after suspension of any permit, any and all suspended permits shall then be declared revoked and the performance bonds with respect thereto forfeited.
When any bond is forfeited pursuant to the provisions of this article, the director shall give notice to the attorney general who shall collect the forfeiture without delay.
§22-4-22. Offenses; penalties; prosecutions; treble damages;
injunctive relief.

(a) Any person who conducts any surface-mining operation, or any part thereof, without a permit or without having furnished the required bond, or who carries on such the operation or be a party thereto on land not covered by a permit, or who falsely represents any material fact in an application for a permit or in an application for the renewal of a permit, or who willfully violates any provision of this article or fails to comply with an order of the director or resists, prevents, impedes or interferes with the director or any of his 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 nor more than one thousand dollars or by imprisonment not exceeding six months, or by both. Any person who deliberately willfully violates any provision of this article or conducts surface-mining operations without a permit is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than one thousand nor more than ten thousand dollars or by imprisonment not exceeding six months, or by both. Each day of violation is a separate offense. It is the duty of the director to institute prosecutions for violations of the provisions hereof. Any person convicted under the provisions of this section shall, in addition to any fine imposed, pay to the director for deposit in the surface-mining reclamation fund an amount sufficient to reclaim the area with respect to which such the conviction relates. The director shall institute any suit or other legal action necessary for the effective administration of the provisions of this article.
(b) Any person engaged in surface-mining operations who violates any permit condition or who violates any other provision of this article or rules promulgated pursuant thereto may also be assessed a civil penalty. The penalty shall not exceed five thousand dollars. Each day of continuing violation may be determined a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular surface-mining operation, the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public, whether the operator was negligent and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the violation.
(c)(1) Upon the issuance of a notice or order pursuant to this section, the assessment officer shall, within thirty days, set a proposed penalty assessment and notify the operator in writing of such proposed penalty assessment. The proposed penalty assessment must be paid in full within thirty days of receipt or, if the operator wishes to contest either the amount of the penalty or the fact of violation, an informal conference with the assessment officer may be requested within fifteen days or a formal hearing before the 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 board.
(A) When an informal conference is held, the assessment officer shall have authority to affirm, modify or vacate the notice, order or proposed penalty assessment.
(B) When a formal hearing is requested, the amount of the proposed penalty assessment shall be forwarded to the commissioner for placement in an escrow account. Formal hearings shall be of record and subject to the provisions of article five, chapter twenty-nine-a of this code. Following the hearing the board shall affirm, modify or vacate the notice, order or proposed penalty assessment and when appropriate, incorporate an assessment order requiring that the assessment be paid.
(2) Civil penalties owed under this section may be recovered by the director in the circuit court of Kanawha County. Civil penalties collected under this article shall be deposited with the treasurer of the state of West Virginia to the credit of the noncoal special reclamation fund established in subsection (a), section sixteen of this article. If, through the administrative or judicial review of the proposed penalty, it is determined that no violation occurred or that the amount of the penalty should be reduced, the director shall within thirty days remit the appropriate amount to the person, with interest at the rate of six percent or at the prevailing United States department of the treasury rate, whichever is greater. Failure to forward the money to the director within thirty days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.
(3) 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 sections twenty- three and twenty-four of this article, within thirty days after receipt of the order.
(4) The filing of an appeal provided for in this section shall not stay execution of the order appealed from. Pending completing the investigation and hearing required by this section, the applicant may file with the director a written request that the director grant temporary relief from any notice or order issued under section twenty-one of 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 expeditiously: Provided, That where the applicant requests relief from an order for cessation of surface-mining and reclamation operations, the decision on the request shall be issued within forty-eight hours of its receipt. The director may grant the relief, under such conditions as he may prescribe if:
(A) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
(B) The person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits in the final determination of the proceedings;
(C) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources; and
(D) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the director.
(b) (d) In addition to and notwithstanding any other penalties provided by law, any operator who directly causes damage to the property of others as a result of surface mining is liable to them, in an amount not in excess of three times the provable amount of such the damage, if and only if such the damage occurs before or within one year after such operator has completed all reclamation work with respect to the land on which such surface mining was carried out and all bonds of such the operator with respect to such the reclamation work are released. Such damages are recoverable in an action at law in any court of competent jurisdiction. The director shall require, in addition to any other bonds and insurance required by other provisions of this article, that any person engaged in the business of surface mining shall file with the director a certificate of insurance, or other security in an amount of not less than ten thousand dollars, to cover possible damage to property for which a recovery may be sought under the provisions of this subsection.
(c) (e) Upon application by the director, the attorney general, or the prosecuting attorney of the county in which the major portion of the permit area is located, any court of competent jurisdiction may by injunction compel compliance with and enjoin violations of the provisions of this article. The court or the judge thereof in vacation may issue a preliminary injunction in any case pending a decision on the merits of any application filed.
An application for an injunction under the provisions of this section may be filed and injunctive relief granted notwithstanding that all of the administrative remedies provided for in this article have not been pursued or invoked against the person or persons against whom such relief is sought and notwithstanding that the person or persons against whom such relief is sought have not been prosecuted or convicted under the provisions of this article.
The judgment of the circuit court upon any application filed under the provisions of this article is final unless reversed, vacated or modified on appeal to the supreme court of appeals. Any such appeal shall be sought in the manner provided by law for appeals from circuit courts in other civil cases, except that the petition seeking such review must be filed with said supreme court of appeals within thirty days from the date of entry of the judgment of the circuit court.
§22-4-23. Permit modification.
(a) On or before the first day of December, one thousand nine hundred ninety-seven, all surface-mining operators shall file an application for a permit or modification of a valid existing permit relating to those lands to be mined after the first day of January, one thousand nine hundred ninety-eight. The permit application or modification shall contain all of the information required by this article including a mining and reclamation plan, blasting plan and bond.
(b) After the first day of January, one thousand nine hundred ninety-eight, no person may engage in or carry out, on lands within this state, any surface-mining operations unless the person has first obtained a permit or a modification of an existing permit from the director. 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.
§22-4-24. Certification and training of blasters.
The director of the division of mines and minerals shall be responsible for the training, examination and certification of persons engaging in or directly responsible for blasting or use of explosives in surface-mining operations.
§22-4-25. Severability.
If any provision of this article or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this article, and to this end the provisions of this article are declared to be severable: Provided, That in promulgating rules pursuant to the provisions of this article, the director shall note relevant administrative and judicial decisions from both state and federal systems and action by the United States Congress.
§22-4-26. Consolidation of permitting, enforcement and
rule-making authority for surface-mining operations; national pollutant discharge elimination system; effective date of this section.

(a) Notwithstanding any provisions of this chapter to the contrary, all powers, duties and responsibilities of the chief of the division of water resources under article five-a, chapter twenty of this code with respect to all noncoal surface-mining operations subject to said article five-a, chapter twenty of this code are hereby transferred to the director. The director shall have authority to issue, amend, transfer, renew or revoke all permits required under article five-a, chapter twenty of this code with respect to all noncoal surface-mining operations subject to said article five-a. Each permit application shall be accompanied by a filing fee of five hundred dollars and each renewal application shall be accompanied by a filing fee of one hundred dollars. The procedures for issuance, amendment, transferal, renewal and revocation of such permits shall be governed by rules promulgated pursuant to subsection (b) of this section. The director shall consolidate the various permit programs under article five-a, chapter twenty of this code and article four of this chapter applicable to all noncoal surface-mining operations. All provisions of article five-a, chapter twenty of this code heretofore applicable to noncoal surface-mining operations shall be continued under this section.
(b) Notwithstanding any provisions of this chapter to the contrary, the director has the authority to propose rules for legislative promulgation pursuant to article three, chapter twenty-nine-a of this code necessary or proper to implement the provisions of article five-a, chapter twenty of this code with respect to all noncoal surface-mining operations, except that the water resources board shall have the sole authority pursuant to section three-a, article five-a, chapter twenty of this code to propose rules for legislative promulgation pursuant to article three, chapter twenty-nine-a of this code setting standards of water quality applicable to the waters of the state. To the extent feasible, the director shall propose rules consolidating the various regulatory programs under this chapter applicable to all noncoal surface-mining operations. The proposal of such rules shall be governed by the provisions of this article.
(c) Notwithstanding any provisions of this chapter to the contrary, the director shall have the authority to enforce and shall enforce the rules promulgated under this article by the director and the rules of the water resources board setting water quality standards for the waters of the state as they apply to all noncoal surface-mining operations. Rules adopted by the director, pursuant to the requirements of article five-a, chapter twenty of this code shall be enforceable by the director under the provisions of sections seventeen and nineteen, article five-a, chapter twenty of this code, as though the rules were promulgated by the water resources board: Provided, That the director's authority to enforce such rules under article five-a, chapter twenty of this code shall not preclude the director or any person from invoking the remedies otherwise provided by article four of this chapter and may not preclude the commissioner from enforcing the provisions of this article.
(d) Notwithstanding any provisions of this chapter to the contrary, any permit of the commissioner issued pursuant to subsection (a) of this section, or any order issued under article five-a, chapter twenty of this code, or for the purpose of implementing the "National Pollutant Discharge Elimination System" established under the federal Clean Water Act, shall be appealable only to the state water resources board and this appeal shall be governed by the provisions of section fifteen, article five-a, chapter twenty of this code.
(e) This section shall become effective upon a proclamation by the governor stating that final approval of the partial transfer of the national pollutant discharge elimination system established under the federal Clean Water Act contemplated by this section has been given by the administrator of the United States environmental protection agency.
§22-4-27. Noncoal special reclamation tax.
A noncoal special reclamation fund is hereby established. This fund shall be administered by the commissioner and he is authorized to expend the moneys in the fund 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 commissioner may also expend amounts as are reasonably necessary to implement and administer the provisions of this chapter.
Whenever the noncoal special reclamation fund sinks below one million dollars at the end of any given quarterly period, every person then conducting noncoal surface-mining operations shall contribute into the fund a sum equal to five cents per ton of mineral mined thereafter. This fee shall be collected by the state tax commissioner and shall be deposited by him or her with the treasurer of the state of West Virginia to the credit of the noncoal special reclamation fund. At the beginning of each quarter, the commissioner shall advise the state tax commissioner and the governor of the assets, excluding payments, expenditures and liabilities in the fund. If such assets are below one million dollars, a notice of assessment shall be given to all operators by the state tax commissioner and the five cent per ton assessment shall be collected until the end of the quarter in which the fund's assets, excluding payments, expenditures and liabilities are in excess of two million dollars.
§22-4-28. Citizen suits; order of court; damages.
(a) Any person having an interest which is or may be adversely affected may commence a civil action in the circuit court of the county to which the noncoal surface-mining operation is located on his or her own behalf to compel compliance with this article:
(1) Against the state of West Virginia or any other governmental instrumentality or agency thereof, to the extent permitted by the West Virginia constitution and by law, which is alleged to be in violation of the provisions of this article or any rule, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, order or permit issued pursuant to this article; or
(2) Against the commissioner, department, division, reclamation board of review or appropriate department employees, to the extent permitted by the West Virginia constitution and by law, where there is alleged a failure of the above to perform any act or duty under this article which is not discretionary.
(b) No action may be commenced:
(1) Under subdivision (1), subsection (a) of this section: (A) Prior to sixty days after the plaintiff has given notice in writing of the violation to the commissioner or to any alleged violator; or (B) if the commissioner has commenced and is diligently prosecuting a civil action in a circuit court to require compliance with the provisions of this article or any rule, order or permit issued pursuant to this article; or
(2) Under subdivision (2), subsection (a) of this section prior to sixty days after the plaintiff has given notice in writing of the action to the commissioner, except that the action may be brought immediately after the notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
(c) Any action respecting a violation of this article or the rules thereunder may be brought in any appropriate circuit court. In such action under this section, the commissioner, if not a party, may intervene as a matter of right.
(d) The court in issuing any final order in any action brought pursuant to subsection (a) of this section may award costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines the award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security.
(e) Nothing in this section shall restrict any right which any person or class of persons may have under any statute or common law to seek enforcement of any of the provisions of this article and the rules thereunder or to seek any other relief.
(f) Any person or property who is injured through the violation by any operator of any rule, order or permit issued pursuant to this article may bring an action for damages, including reasonable attorney and expert witness fees, in any court of competent jurisdiction. Nothing in this subsection shall affect the rights established by or limits imposed under state workers' compensation laws.
(g) This section shall apply to violations of this article and the rules promulgated thereto or orders or permits issued pursuant to said article insofar as said violations, rules, orders and permits relate to surface-mining operations.


NOTE: The purpose of this bill is to expand provisions regarding noncoal mineral extraction and to impose additional controls and requirements on noncoal mineral extraction operations.

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

§§22-4-8 and §22-4-23 have been completely rewritten; and §22-4-24 through §22-4-28 are new; therefore, strike-through and underscoring have been omitted.