H. B. 4055
(By Delegates Linch, Johnson, Dalton,
Webb, Pino, Faircloth and Smirl)
[Introduced January 17, 2000; referred
to the Committee on the Judiciary then
Finance.]
A BILL to amend and reenact article four, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; and to amend sections one and two, article four of
chapter twenty-two-b of said code, all relating to the
regulation of quarry mining of all minerals except coal,
providing legislative findings regarding the quarrying
industry to the state; defining terms; granting the director
of the division of environmental protection the authority to
regulate quarries, to employee necessary personal, and take
other necessary actions to enforce the provisions of this
article; authorizing the director of the division of
environmental protection to propose legislative rules;
requiring permits for quarrying activities; establishing
quarry permit conditions and requirements; providing a permit
application process; providing application review, including requiring public hearing, notice and input; providing for
approval of quarry permits; prohibiting location of a quarry
in a area where prohibited by local zoning ordinance;
establishing criteria for denial of a quarry permit; allowing
permit denial at certain locations; prohibiting certain
persons from being eligible to receive a permit; placing
limitations and conditions relating to permit denials;
establishing distance limitations and prohibitions for
quarrying activities near certain structures and other
locations; providing right of permit renewals and a permit
renewal process; providing for modification of permits;
establishing criteria and review process for approval of
permit modifications; providing for permit transfers
qualifications and procedures; excepting out quarries in
operation at the effective date of the act from certain
requirements; establishing performance standards for quarrying
operations; limiting disposal of wastes; placing limitations
on construction of structures and other activities associated
with the quarry mining operation; creating replanting and
other reclamation requirements relating to conditions for bond
release; providing certain requirements associated with
underground quarry mining; mandating all quarries develop a
quarrying and reclamation plan; providing what information
must be in the reclamation plan; creating land reclamation requirements and associated reporting requirements;
establishing time frames for reclamation; allowing inactive
status designation for certain quarries; providing for bonding
of quarry operations; establishing bond amounts and other
bonding related requirements; allowing certain quarries to
participate in a bond pooling fund; establishing a bond
pooling fund; providing bond amounts for participating
quarries and establishing disbursement of monies held in the
abandoned quarry fund; providing applicability of the
groundwater protection act requirements to portions of the
quarry operations; creating preblast survey requirements for
quarries; establishing limitations and applicability of pre-
blast surveys; providing contents of pre-blast surveys;
providing that the office of explosives and blasting shall
administer the pre-blast survey process; providing certain
notice requirements associated with pre-blast surveys;
establishing a fee based on explosives used to fund the
office's enforcement responsibilities; creating blasting
requirements for quarry operations; providing certain blasting
design requirements and limitations; requiring water
replacement requirements when quarrying harms surrounding
water resources of other property owners; creating a
rebuttable presumption relating to blasting and water damage;
establishing a claims process for damages to surrounding properties; assessing fees relating to permits and disposition
of those fees; providing for appeals of agency decisions
regarding the administration of this article to be heard by
the surface mining board; establishing a quarry reclamation
fund to fund the cleanup of abandoned quarries; providing what
monies are to be deposited into the fund and criteria for
distribution of monies in the fund; providing inspection
authority of the director; providing enforcement
responsibilities for the director; granting the director the
authority to require compliance, seek a injunction, revoke a
permit, or institute other actions to cause compliance;
providing that criminal sanctions apply to certain negligent
or intentional acts; establishing civil administrative
penalties; providing notification and hearing process for
permittees; establishing a process for levying fines and
collection of fees; providing ineligibility for certain
persons to obtain permits; exemption of certain activities
from this act; creating a mandamus action for citizens for
failure of the director to undertake a mandatory duty;
amending membership of the surface mine board to allow
alternative members on the board to hear quarry cases; and
establishing qualifications and eligibility for the
alternative surface mine board members.
Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that sections one and two, article four,
chapter twenty-two-b of the code be amended, all to read as
follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES
ARTICLE FOUR. QUARRY RECLAMATION ACT.
§22-4-1. Legislative findings.
The Legislature finds that:
The extraction of non-coal minerals by quarrying is a basic,
essential and vital industry making an important contribution to
the economic well-being of West Virginia, and with recognition of
the intrinsic differences between non-coal quarrying and coal
mining, reasonable and appropriate regulation of quarrying should
be in place to assure the viability and continued success of the
non-coal mineral quarrying industry in this state while protecting
citizens and the state's environment from adverse mining impacts;
From the small family-owned chert pit to the multinational
limestone quarry, quarry aggregate production plays a vital role in
West Virginia's economy and the quality of life for its residents;
it is in the public interest to insure the availability and orderly
development of mineral resources; it is not practical to extract
minerals required by our society without disturbing the surface of
the earth and producing waste materials, and the very character of quarry operations precludes complete restoration of the land to its
original condition;
The provisions of this article are intended to aid in the
protection of wildlife, to minimize soil erosion, to prevent
pollution of rivers, streams, groundwater, aquifers and lakes, to
prevent loss or waste of valuable mineral resources, to prevent and
eliminate hazards to health and safety, to protect the property
rights of all state citizens, and to provide for reclamation of
quarried areas so as to assure the continued use and enjoyment of
these lands;
Further, certain areas in the state, if quarry mining is
conducted, would create adverse impacts to life, property or the
environment so as to constitute an imminent and inordinate harm to
the state, requiring that these areas shall not be quarried;
however, it is possible to conduct quarrying and complete proper
reclamation of quarried land in most locations of West Virginia in
a fashion to prevent these undesirable conditions, while allowing
for mining of valuable minerals;
Therefore, it is the intent of the Legislature by enactment of
this article, that quarrying of non-coal minerals and the
reclamation of quarried lands in this state be conducted in a
manner to allow the recovery of valuable minerals while assuring
the protection of the state's environment and quality of life.
§22-4-2. Definitions.
(1) "Abandoned quarry" means a quarry mine site which has not
been actively mined by producing a mineral or removing overburden
in the last twelve months and has not been properly reclaimed, is
not currently undergoing reclamation or, has not been granted
inactive status. Unless the director has approved a longer time
period for reclamation under an approved reclamation plan or
granted inactive status, failure of the operator to properly
reclaim within eighteen months of the end of active mining, results
in the quarry being designated as an abandoned quarry.
(2) "Director" means the director of the division of
environmental protection or any other person to whom the director
has delegated authority or duties pursuant to this article.
(3) "Disturbed area" means the land area from which the
mineral is removed by quarrying and all other land area in which
the natural land surface has been disturbed as a result of or
incidental to quarrying activities, including private ways and
private roads appurtenant to the area, land excavations, workings,
refuse piles, product stockpiles, areas grubbed of vegetation,
overburden removal, piles and tailings. The term does not include
manufacturing sites or reclaimed quarry areas.
(4) "Division" means the Division of Environmental Protection.
(5) "Manufacturing operations" means an area of land on which
operations are conducted to process raw mineral materials to
salable products, but does not include crushing or screening of minerals undertaken in close proximity to active quarrying
operations.
(6) "Minerals" means natural deposits of commercial value
found on or in the earth, whether consolidated or loose, including
clay, flagstone, gravel, sand, limestone, sandstone, shale, chert,
flint, dolomite, manganese, slate, iron ore and any other metal or
metallurgical ore. The term does not include coal or topsoil.
(7) "Operator" means a person who engages in any activities
regulated by this article and any rules promulgated hereunder, who
as a result is required to hold a permit pursuant to the provisions
herein.
(8) "Permit area" means the area of land indicated on the
approved map submitted by the permittee with the quarrying
performance and reclamation plan specified in section twelve of
this article, showing the exact location of end strip markers,
permit markers and monuments.
(9) "Permittee" means any person who holds a valid permit
issued by the division to conduct quarrying activities pursuant to
this article".
(10) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity or
any agency, unit or instrumentality or federal, state or local
government.
(11) "Protected structure" means any of the following structures that are situated outside the permit area: an occupied
dwelling, a temporarily unoccupied dwelling which has been occupied
within the past ninety days, a public building, a structure for
commercial purposes, a school, a church, a community or
institutional building, a public park or a water well.
(12) "Quarrying" means any breaking of the ground surface in
order to facilitate the extraction of minerals. Quarrying also
includes any activity constituting all or part of a process for
mineral extraction or removal from their original location as well
as adjacent areas ancillary to the operation, including preparation
and processing plants, storage areas and haulage ways, roads and
trails. The term "quarry" does not apply to manufacturing
operations, including those operations adjacent to the permitted
area where manufacturing is conducted.
(13) "Reclamation" means returning disturbed quarry areas to
a stable condition which does not create health or safety hazards
or adverse environmental impact, and when appropriate or required
by permit, returning disturbed quarry areas to a designated post
mining land use.
(14) "Significant environmental harm" means any significant
adverse impact on land, air or water resources, including, but not
limited to plant, wildlife and fish, that is appreciable and not
immediately repairable.
(15) "Significant harm to nearby property" means an adverse impact on the pre-quarry land use or property value of real
property in close proximity to a proposed quarry operation that
will be continuous and of a nature to constitute irreparable harm
to the affected property.
§22-4-3. Director of the division of environmental protection;
powers and duties.
In addition to any other powers or duties heretofore or
hereinafter granted, the director has the following powers and
duties:
(a) To control and exercise regulatory authority over all
quarry operations in this state and enforce the provisions of this
article;
(b) To employ all necessary personnel to carry out the
purposes and requirements of this article;
(c) To propose any necessary legislative rules, in accordance
with the provisions of chapter twenty-nine-a of this code to
implement the provisions of this article; and
(d) To make investigations and inspections necessary to ensure
compliance of permittees with the provisions of this article.
§22-4-4. Quarry permit requirements.
(a) It is unlawful for any person to engage in quarrying
without having first obtained a permit from the division. Each
quarry permit shall be issued for a term of five years.
(b) An application for a quarry permit is shall include at a minimum the following:
1) The names and addresses of the owners of the surface of the
land to be quarried;
2) The names and addresses of the owners of the mineral to be
quarried;
3) The source of the applicant's legal right to conduct
quarrying on the land to be covered by the permit;
4) The number of acres to be disturbed by quarrying the area
covered by the permit;
5) The common name and geologic title, where applicable, of
the mineral or minerals to be extracted;
6) A pre-quarry water analysis to establish a base level of
quality and quantity of the surface water and groundwater in the
area that is impacted by the quarry mining operation;
7) A list, by location and permit number, of other quarrying
or any other type of mining permits being applied for or previously
or currently held by the applicant, or other owners, officers,
partners, directors and operators of the quarry operation;
8) Whether any permit listed pursuant to subsection eight of
this section has ever been revoked;
9) Whether the applicant, owner, officer, partner, director or
operator has ever conducted a quarry operation which has received
abandoned quarry reclamation funds;
10) The names and mailing addresses of every officer, partner, director of the applicant or a person fulfilling a similar function
of a director;
11) The names and mailing addresses of any person owning of
record or beneficially ten percent or more of any class of stock of
the applicant, owners, officers, partners, directors or operators;
12) Proof of adequate insurance as required by this section;
13) Any other information required by the director reasonably
necessary to effectuate the purposes of this article.
(c) The application shall be in writing and in a form prepared
and furnished by the division, and the application may be submitted
electronically. Applicants shall verify electronic submissions by
signed affidavit.
(d) 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:
(1) 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;
(2) Identify the area to correspond with application;
(3) 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;
(4) Be of such scale as may be prescribed by the director;
(5) Show the names and locations of all streams, creeks or
other bodies of public water, roads, buildings, cemeteries, active,
abandoned or plugged oil and gas wells, and utility lines on the
area of land to be disturbed and within five hundred feet of such
area;
(6) Show by appropriate markings the boundaries of the area of
land to be disturbed, the crop line of the seam to be mined, if
any, and the total number of acres involved in the area of land to
be disturbed;
(7) Show the date on which the map was prepared, the north
point and the quadrangle sketch and exact location of the
operation;
(8) 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;
(9) 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
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.
(10) The operator shall also indicate the manner in which all
permanent overburden disposal sites will be stabilized.
The certification of the maps shall read as follows: "I, the
undersigned, hereby certify that this map is correct, and shows to
the best of my knowledge and belief all the information required by
the surface-mining laws of this state." The certification shall
be signed and notarized. The director may reject any map as
incomplete if its accuracy is not so attested.
In addition to the information and maps required above, each
application for a permit shall be accompanied by a detailed site
specific reclamation plan as required by this article.
(e) Each applicant must provide a certificate of insurance issued by an insurance company authorized to do business in this
state for all operators at the site, including blasting and
quarrying operators. The insurance must cover blasting and all
other quarry operations anticipated in the permit area. Provided:
that, blasting insurance is not required of quarry operations which
do not conduct blasting. The coverage shall include not less than
one million dollars for personal injury per occurrence, and not
less than five hundred thousand dollars for property damage per
occurrence. Proof of continuing insurance coverage shall be
required on an annual basis. In addition, the insurance company
shall promptly notify the director of any lapses, default, non-
renewal, cancellation, or termination of coverage.
(f) Each applicant shall secure a performance bond, other
appropriate financial assurance, or participate in the bonding pool
fund as authorized in section seventeen of this article, as
required by this article.
(g) A permit may cover more than one tract of land, if the
tracts are contiguous and described in the application.
(h) If a permittee has more than one permit at any quarrying
site those permits may be consolidated into one permit at the
request of the permittee.
(i) A permit remains valid until quarrying is completed and
the final inspection and report are approved or until the permit is
revoked by the director.
§22-4-5. Application review, public notice and comment, and permit
approval.
(a) The director shall, upon receipt of an application for a
permit, determine if the application is complete and contains the
information required in the application. If the application is
determined incomplete, the applicant shall be notified within
fifteen working days and provided with written comments stating the
deficiencies. A application is complete when all required
information has been submitted to the director. If upon review by
the director the application is found to have technical
deficiencies or other inadequacies which require further
information, the thirty day review period shall be suspended on the
date the notice is mailed to the applicant, and the time period
resumes resume upon receipt of the corrected and complete
application, as determined by the director. Should the applicant
disagree with a decision of the director, he or she may, by written
notice, request a hearing before the director. The director shall
hold the hearing within thirty calendar days of receipt of this
notice. When a hearing has been held, the director shall notify
the applicant of the decision by certified mail within twenty days
of the hearing. An applicant aggrieved by a final order of the
director may, after the hearing or without a hearing, appeal the
order to the surface mine board. Any appeal to the board shall be
taken without prejudice by the director in the final review of a permit application.
(b) Upon determination that a application is complete, the
applicant shall publish a notice of the application for a permit as
a Class III legal advertisement in accordance with the provisions
of article three, chapter fifty-nine of this code. The notice
shall contain, in abbreviated form, the information required in the
application. The notice shall state that written comments on the
application will be accepted until thirty days after the first
publication of the notice. The notice shall state that a copy of
the complete application, including the reclamation plans and maps,
will be available for public inspection during the pubic comment
period at the office of the county clerk in the county in which the
proposed permit area is located. The publication area of the
notice required by this section is the county or counties in which
any portion of the proposed permit area is located. The cost of
all publications required by this section are the responsibility of
the applicant.
(c) Prior to approval of any quarry mining permit, the
division shall cause a public hearing to be held in the locality
where the quarry operation is proposed to be located for the
purpose of receiving comment regarding the expected or perceived
impacts of the quarry operation on the local area.
(d) The director shall receive and fully consider evidence or
comments submitted during the public comment period by any member if the public.
(e) Within thirty days of close of the close of the public
comment period, and upon the determination by the director that the
application is complete and correct, that proper public notice and
comment has been received by the agency, and that the quarrying
operation will be conducted pursuant to and consistent with the
requirements of this article, then the director shall issue a
quarry permit to the applicant. Provided: That, the director may
not issue a new permit to quarry in any location where a local
governmental unit has prohibited locating a quarry by a zoning
ordinance pursuant to article twenty-four, chapter eight of this
code.
§22-4-6. Denial of quarry permit.
(a) The director may deny a permit application, modification
or transfer for one or more of the following reasons:
1) Any requirement of federal or state environmental law, rule
or regulation would be violated by the proposed permit.
2) The proposed quarry operation will be located in an area 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 this area such operations may naturally
cause stream pollution, 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 as a result that area shall not be
mined by the surface-mining process.
3) The applicant or any person required to be listed on the
application pursuant to section five of this article has not
corrected all violations of any prior permit issued pursuant to
this article which resulted in:
A) Revocation of a permit;
B) Cessation of the operation by order of the director;
C) Forfeiture of all or part of the permit bond or other
surety; or
D) A court order issued against the applicant as a result of
division action or citizen law suit related to mining or quarrying.
E) The applicant or any person required to be listed on the
application pursuant to five of this article has not paid all fines
or fees assessed by the agency or by court judgement.
4) Based on the information set forth in the application or
from other information available to the applicant, the director
determines that the requirements of this article or rules hereafter
adopted will not be observed or that the proposed method of
operation, backfilling, grading or reclamation are not consistent with the purposes of this article.
(b) The director may approve a portion of a permit area upon
a finding that approval of the entire permit area would otherwise
be denied pursuant to the provisions of this section.
(c) An applicant whose application for a permit, modification
or transfer was denied may petition the director for reinstatement.
The director, in his or her discretion, may approve an application
which was previously denied because of a past permit revocation or
forfeiture if the person whose permit was revoked or bond forfeited
pays into the abandoned quarry reclamation fund an amount
determined by the director as adequate to reclaim the area
disturbed under the prior permit or completes reclamation of site
upon which the permit or bond was revoked or forfeited, and
demonstrates to the director's satisfaction that he or she will
comply with this article and rules promulgated thereunder.
The director may not approve quarrying of any area within one
hundred feet of any public road, stream,
cemetery
, lake or other
public property, and may not approve an application for a permit if
the quarry operation will adversely affect a state, national or
interstate park, unless adequate screening and other measures
approved by the director are to be utilized and the permit
application so provides. The one hundred foot limitation may be
waived by the director if the director finds that the post quarrying land use of the permitted area will be significantly
enhanced by an alteration of the topography within the one hundred
foot barrier. T
he one-hundred-foot restriction does not apply to
roads used for ingress and egress to the permitted area, nor to the
dredging and removal of minerals from the streams or watercourses
of this state.
No quarrying activity may be conducted within one
hundred feet of an adjacent property not owned by the permittee and
three hundred feet of any protected structure in existence at the
time the permit application is filed, unless the owner of the
protected structure or adjacent property grants a waiver, in
writing, to the quarry operator.
§22-4-8. Permit renewals and revisions.
(a) Any valid permit issued pursuant to this article carries
with it the right of successive renewal upon expiration for areas
within the boundaries of the existing permit. Holders of a permit
on the effective date of this act may apply for renewal and the
renewal shall be issued upon review and determination by the
director that the operator will operate within the requirements of
this article. I
f the operator is required to modify operations
pursuant to quarrying or reclamation requirements which become
applicable after the original date of permit issuance, the operator
shall be provided an opportunity to submit a schedule allowing a
reasonable period to comply with revised requirements, consistent
with the provisions of section eleven of this article.
(b) If an application for renewal of a valid permit includes
a proposal to extend the quarry mining operation beyond the
boundaries authorized in the existing permit, that portion of the
application for renewal which addresses any new land area is
subject to the requirements for permit modifications as provided in
section nine of this article. Application for permit renewal must
be made at least one hundred twenty days prior to the expiration of
the valid permit.
§22-4-9. Modification of permits.
(a) Prior to expanding or otherwise altering quarrying
operations beyond the authorized activities under an existing
quarry permit, a permittee shall obtain approval for modification
of the permittee's existing quarry permit. The application shall
be in writing on forms provided by the division, and the
application may be submitted electronically. Applicants shall
verify electronic submissions by signed affidavit. Information
that remains unchanged from the initial application is not required
to be resubmitted. A permit may be modified in any manner, so
long as the director determines that the modification fully meets
the requirements of all applicable federal and state law,
regulations and rules, and that the modifications would be
consistent with the issuance of the original permit.
(b) No modification of a permit which has been approved by the
director becomes effective until any required changes have been made in the performance bond or other security posted under the
provisions of section sixteen or seventeen, of this article, as
applicable, so as to assure the performance of obligations assumed
by the permittee under the permit and the quarry and reclamation
plan.
(c) A minor permit modification is one in which the proposed
modification would not cause a significant departure from the terms
and conditions of the existing permit and would not result in a
significant impact to the environment or to nearby property.
(d) An application for a minor permit modification shall
require information related to the modification, any impact it may
have on the original permit area and adjacent property, mining and
reclamation plans, and any other information deemed necessary by
the director. An application for a minor permit modification
requires public notice, but does not require a public hearing.
(e) Any application for a permit modification that is not a
minor permit modification is a major permit modification. An
application for a major permit modification must meet the same
requirements as for a new permit application. Modification of a
buffer zone of a quarry operation is always a major modification.
(f) The director shall act upon the application for a permit
modification pursuant to the provisions of subsection (a) of
section five of this article.
(g) The director may deny the application for a permit modification for the same reasons and under the same procedure as
for new permits set forth in section five of this article.
(h) The director may require reasonable revisions to a quarry
permit when revisions are necessary to assure compliance with this
article. The director shall notify the permittee that revisions to
the permit are required and shall establish a reasonable time frame
for compliance.
§22-4-10. Transfer of permits.
(a) When the interest of a permittee of any quarry operation
is sold, leased, assigned, or otherwise disposed of, the director
may transfer the permit and release the transferor from his or her
liabilities imposed by this article or rules issued under this
article, if both the transferor and transferee have complied with
the requirements of this article and the transferee assumes the
duties and responsibilities of the permit. The transferee shall
provide information required by the director.
(b) The proposed transferee shall pay a five hundred dollar
fee with the filing of an application for transfer of permit.
(c) The director shall act upon the permit transfer as
expeditiously as possible, but not later than thirty days after the
application forms or any supplemental information required are
filed with the director. If a public hearing has been requested
and approved by the director, the director shall act on the permit
transfer within thirty days of conducting the public hearing.
(d) The director may deny the permit transfer for the same
reasons and under the same procedure as set forth in section six of
this article. If the applicant proposes any change to the
operation of the quarry, the director shall review the application
and treat it as a major or minor modification as provided in this
article.
(e) The director, for good cause shown, may allow transfer of
a revoked permit if the transferee complies with the requirements
of this article and assumes the duties and responsibilities of the
permit.
(f) No transfer, assignment or sale of the rights granted
under any permit issued pursuant to this article may be made
without the prior written approval of the director.
§22-4-11. Exception for certain existing quarries.
(a) Quarries that are in operation on or before the effective
date of this article, shall comply with the following:
(1) Within two years of the effective date of this article,
all quarry operations shall submit to the director a reclamation
plan to bring the facility into compliance with the requirements of
this article and any rules promulgated thereunder. These
reclamation plans shall include a reasonable schedule, based on
site specific conditions and the nature of the quarry operation, to
allow a transitional time period to bring the operation into
compliance with current reclamation standards. Quarry areas that are permitted and not excavated for further mineral extraction
after the effective date of this act are exempt from any further
reclamation requirements of this section.
(2) Pre-blast survey and blasting plan requirements as
provided by this article.
(3) Groundwater protection monitoring required by section
twelve of this article will not be required if there have been no
demonstrable groundwater problems in the last five years.
(c) The exclusions of this section are also applicable to
quarries permitted on or before the effective date of this article
and consolidated or renewed pursuant to sections eight or nine of
this article.
(d) Quarries in operation as of the effective date of this
article which qualify, may participate in the bonding reclamation
pool created in section seventeen of this article, in lieu of
complying with the bonding requirements of section sixteen of this
article.
§22-4-12. Performance standards.
Each permit issued by the director pursuant to this article
shall require the quarry operation, at a minimum, to meet the
following performance standards:
(a) The operator shall impound, drain and treat all runoff
water so as to reduce soil erosion, damage to agricultural lands
and prevent unlawful pollution of streams and other waters. The director shall require as a condition of a new permit, testing
during quarrying of water wells or springs as is deemed
appropriate, upon a determination by the director that quarrying in
the permitted area has a strong likelihood of causing an adverse
impact to surrounding properties' water wells. The director shall
by rule establish the parameters, frequency and distance of testing
water wells and groundwater prior to quarrying operations
.
(b) 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 water into the natural drain way, groundwater or stream.
Treatment may include check-dams, settling ponds and chemical or
physical treatment. In the case of a breakthrough of water, when
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 drain way or stream
or groundwater.
(c) Water leaving the permit area is subject to the
requirements of article eleven of this chapter and must comply with
the provisions of article eleven.
(d) The permittee shall place a monument as prescribed by the
division, to be placed in an approved location near the operation.
If a quarry operation is under a single permit is not
geographically continuous, the permittee shall locate additional monuments and submit additional maps, as required by section five
of this article, before mining other permitted areas.
(e) The operator shall remove or properly dispose of all
metal, equipment and other refuse resulting from the operation. No
permittee may perform or allow 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 for which bond has been posted, unless it is
placed on a site that has a permit allowing that activity, nor may
any operator place any of the foregoing listed materials in such a
way that normal eroding, or slides brought about by natural
physical causes, will permit the materials to go beyond or outside
the area of land under permit for which bond has been posted.
(f) Lateral drainage ditches connecting to natural or man-made
waterways shall be constructed to control water runoff and prevent
erosion. The depth and width of natural drainage ditches and any
other diversion ditches may vary depending on the length and degree
of slope.
(g) When the planting of an area has been completed and full
or partial bond release is requested the operator shall file 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) Types and amounts of fertilizers and any other chemicals
used or added to the soil;
(4) The date of planting or seeding;
(5) The area of land planted; and
(6) Other relevant information required by the director.
All planting shall be certified by the permittee, or by the
party with whom the permittee contracted for planting.
(h) All fill and cut slopes of the operation and haulage ways
shall be seeded and planted in a manner prescribed by the mining
and reclamation plan.
(i) After quarrying is completed, the site shall be stabilized
to prevent erosion. Stabilization may be accomplished by
vegetative cover or other means as approved in the quarrying and
reclamation plan. Rules proposed pursuant to this article shall
contain guidelines for establishing the various types of
stabilization.
(j) Planting shall be carried out so that it is completed
before the end of the first planting season. Vegetative planting
may be completed by the operator or the permittee may contract with
the local soil conservation district or a private contractor. A
revegetation schedule shall be incorporated into the quarrying and
reclamation plan.
(k) The operator may use visual screening methods such as
berms, plantings, or fences, which may be placed within the one
hundred foot buffer where conditions allow and where the site is
readily visible to the general public.
(l) If the permittee or other person desires to conduct
underground quarrying upon the premises or use underground quarry
surface haulage ways for other lawful purposes, the permittee may
designate locations to be used for these purposes where it will not
be necessary to backfill if required by the permit, until the
underground quarrying or other uses is completed, during which time
the bond on file for that portion of that operations may not be
released. Locations shall be described on the map required by the
provisions of section five of this article.
(m) The operator shall also comply with all other requirements
of this article and any rules promulgated thereunder.
§22-4-13. Quarrying and reclamation plan.
(a) The application for a permit shall include a proposed
quarrying and reclamation plan.
(b) The quarrying and reclamation plan is required to be
completed by a person approved by the director. It shall include
the following information:
(1) The common name and geologic name, if known, of the
mineral or minerals to be quarried;
(2) The purpose for which the land to be permitted was previously used;
(3) The proposed useful purposes of the land following
completion of quarrying;
(4) A general description of the manner in which the land is
to be opened for quarrying and how the quarrying activity is to
progress across the permitted area, and an approximate time frame
for reclamation of each area or phase of the quarrying;
(5) The manner in which topsoil is to be conserved and used in
reclamation and, if conditions do not permit conservation and
restoration of all or part of the topsoil, an explanation of the
conditions and proposed alternative procedures;
(6) Either the manner in which the compaction of the fill will
be accomplished where backfilling is proposed, or the applicant's
proposed useful purposes of the land if the reclamation requires
fill;
(7) The description of the proposed final topography for the
applicant's proposed land use after reclamation is completed and
the proposed method of accomplishment;
(8) The practices to provide public safety for adjacent
properties and provisions for fencing, berms or other site
improvements reasonably necessary to assure safety at the permitted
site after mining and reclamation is completed;
(9) The manner and type of revegetation or other surface
treatment of the disturbed land; and
(10) A site specific blasting plan that meets the requirements
of section twenty of this article, and all other blasting formulas
and processes as required by the director.
(c) An application for a permit shall indicate the existence
of known, threatened or endangered species located within the
proposed permit boundary as defined by federal Endangered Species
Act of 1973.
(d) The application shall provide the information on slope
gradient and fill plans as required in section fourteen of this
article.
§22-4-14. Land reclamation requirements.
(a) All quarries shall meet the final design requirements for
slopes and gradients:
(1) Final slope gradients of fill areas shall be designed
using recognized standards and certified by a professional engineer
or other approved professional specialist, except for backfill
within the mineral excavation pit area, where no standard applies.
(2) The designed steepness and proposed treatment of the final
slopes shall take into consideration the physical properties of the
slope material, its probable maximum water content, landscaping
requirements and other factors and may range from ninety degrees in
a sound limestone or similar hard rock to less than twenty degrees
in unconsolidated materials.
(3) The quarrying and reclamation plan shall specify slope angles flatter than the critical gradient for the type of material
involved.
(4) The toe of the proposed fill will rest on natural slopes
no steeper than twenty degrees unless a detailed geotechnical study
of the toe foundation area is completed. The results of this study
and subsequent stability evaluations must assure a static safety
factor of at least one and one half. Engineering designs for fills
constructed on natural slopes steeper than twenty degrees may
require over excavation of the toe area to rock, incorporation of
toe buttresses or other engineered configurations to enhance
stability. The design and construction of all fills shall be
certified by a registered professional engineer.
(5) Constructed slope fills steeper than two horizontal to one
vertical must exhibit a static safety factor of one and one-half.
(6) Fills may be constructed with slopes no steeper than one
and one-half horizontal to one vertical unless an eight-foot
minimum wide bench is installed at a maximum of every twenty feet
in vertical height of the fill. The bench shall have a slope of
three to five percent toward the fill area.
(7) Surface water runoff from the area above fills shall be
diverted away from the fill into stabilized diversion channels.
Runoff from the fill surface shall be diverted to stabilized
channels off the fill.
(8) During and after construction of a fill area, slope protection shall be provided to minimize surface erosion. All
disturbed areas of the fill, including diversion channels that are
not riprapped or otherwise protected, shall be revegetated upon
completion of construction.
(b) Highwalls which are to be left after completion of
quarrying shall be backfilled or shot down to provide a final slope
in compliance with subsection (d) of this section unless:
(1) It is demonstrated that the highwall is stable;
(2) Adequate material removed in the process of quarrying and
not located in a permanent disposal area, is not available; or
(3) These actions are precluded by close proximity to permit
boundaries, other physical limitations, or the post quarry land use
requires that the highwall be left.
(c) Backfills, fills, cut slopes and highwalls that exist and
are part of a permit area prior to the effective date of this
article are not required to comply with subdivisions (1) through
(8), subsection (a) of this section. Permits issued prior to the
effective date which contain the requirements of subdivisions (1)
and (2), subsection (a) or subsection (b) of this section are not
exempt unless modified by the division.
(d) The final land form shall be graded to provide positive
drainage throughout the permit area except areas that are to be
ponded in accordance with the quarrying and reclamation plan map.
(e) Fill may be exported off the permitted areas only for beneficial uses as approved by the director.
(f) Upon an order of the director, the operator shall, within
thirty days after service of a copy of the order to the operator by
certified United States mail, furnish to the Division four copies
of a progress map which is prepared consistent with maps prepared
for permit applications as provided in section five of this
article, which shall show in detail completed reclamation work, as
required by the director. The progress map shall be within a
reasonable degree of accuracy as is required by the director. When
no land has been disturbed by operations during the preceding year,
in lieu of a progress map, the operator shall provide notice
regrading the status of the operation to the director. 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.
§22-4-15. Time period for reclamation.
(a) The operator shall commence the reclamation of the
incremental area of land disturbed by the operator after the
completion of all quarrying of that area in accordance with the
approved quarrying and reclamation plan. The quarrying and
reclamation plan for each operation shall be site specific in
describing how the quarrying and reclamation activities are to be
coordinated to minimize total land disturbance and to keep reclamation operations as contemporaneous as possible with the
advance of the quarry operations. All quarry operations shall be
conducted in compliance with the approved quarry and reclamation
plan and the requirements of this article.
(b) At the option of the permittee and with the director's
concurrence, a quarry permit may be inactive for an defined period
during which no mineral or overburden is removed if the following
conditions are met:
(1) That substantial mineral reserves remain in the permitted
area;
(2) All disturbed areas are reclaimed or stabilized to prevent
erosion and sedimentation;
(3) All drainage and sediment control structures, such as
culverts, ditches, sediment basins and traps are maintained; and
(4) All vegetation is maintained and reseeded as necessary.
§22-4-16. Bonding.
(a) Each applicant for a new permit who is not eligible to
participate in the quarry bonding pool created in section seventeen
of this article shall secure a performance bond, on a form to be
prescribed and furnished by the director, to the state of West
Virginia and conditioned upon the permittee faithfully performing
all of the requirements of this article, rules promulgated
hereunder and the permit. The amount of the required bond shall be
determined by the director based upon the total estimated cost to the state to complete the reclamation plan filed with the permit
application and any other measures necessary to prevent or
ameliorate adverse effects upon the environment and or human health
or safety. The amount of the bond shall be at least one thousand
dollars for each acre or fraction of an acre of land to be
disturbed. The director shall determine the amount per acre of the
bond required before a permit is issued. The minimum bond required
is ten thousand dollars.
(e) The form of all performance bonds shall be approved by the
director and may include, at the option of the director, surety
bonding, collateral bonding (including cash and securities),
establishment of an escrow account, letters of credit, performance
bonding fund participation (as established by the director), self-
bonding or a combination of these methods.
(f) If collateral bonding is used, the applicant may elect to
deposit cash, or collateral securities or certificates as follows:
Bonds of the United States or its possessions, of the federal land
bank, 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
division. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the sum of the bond. The director shall, upon receipt of any such deposit of cash,
securities or certificates, promptly 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 the deposit is made when the permit is issued. The
applicant or permittee making the deposit is entitled from time to
time to receive from the state treasurer, upon the written approval
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.
(h) If the permittee of a quarry abandons the operation of a
quarry for which a permit is required by this article, or if the
permittee fails or refuses to comply with the requirements of this
article in any respect for which liability has been charged on the
bond, the director shall declare all the bond forfeited and shall
proceed to enforce and collect the entire bond or other security
posted. Where the operation has deposited cash or securities as
collateral in lieu of corporate surety, the director shall declare
the collateral forfeited and shall direct the state treasurer to
pay the funds into the quarry reclamation fund created in section
twenty-four of this article, to be used to effect proper
reclamation and defray the cost of administering this article. Should any corporate surety fail to promptly pay in full the
forfeited bond, that surety is disqualified from writing further
surety bonds under this article.
(i) Additional bonding requirements shall be provided as
necessary in rules proposed by the director for Legislative
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code.
§22-4-17. Bond pooling fund.
(a) As of the effective date of this article, any person who
has operated a quarry operation for five years under previous
mining law may, in lieu of the bonding requirements of seventeen of
this article, contribute to the "Bond Pooling Fund," created in
this section, if the operator has no outstanding substantial
violations of prior or current quarry mining laws as determined by
the director. For permits granted after the effective date of this
article, any operator who has operated under a quarry permit which
has no outstanding substantial violations of current mining laws
as determined by the director, is eligible to participate in the
bond pooling fund.
(b) For each quarry, permittees choosing to contribute to the
pool shall make an initial payment to the fund of fifty dollars for
each acre currently disturbed plus each acre estimated to be newly
disturbed, during the next ensuing year. Thereafter, the permittee
shall make an annual payment of twenty five dollars for each disturbed acre, plus each acre estimated to be newly disturbed
during the next ensuing year, determined by the annual progress
report and map. The payments shall continue until the permittee
has paid into the bond pooling fund a total of one thousand dollars
for each disturbed acre.
(c) There is hereby created in the state treasury a special
revenue fund known as the "Bond Pooling Fund." The fund shall
operate as a special fund in which deposits and payments do not
expire to the general revenue fund, but remain in the fund and are
available for expenditure in succeeding fiscal years. This fund
consists of fees collected by the director in accordance with the
provisions of this article, as well as interest earned on
investments made from moneys deposited in the fund. Interests on
moneys from this fund are to be deposited in the quarry reclamation
fund as established in section twenty-four of this article. The
remainder of the funds shall be released to the permittees as
provided for in this section.
(d) No annual bond pooling fund deposits may be collected from
permittees where the permit bond pooling fund deposits divided by
the number of disturbed acres is equal to or greater than one
thousand per acre.
(e) The director shall release to permittees, in accordance
with the provisions section fifteen Of this article, permittee
deposits into the bond pooling fund under any of the following conditions:
(1) On completion of the quarrying and reclamation, and after
all permit requirements have been fully complied with;
(2) When the bond pooling fund balance for a permit exceeds
one thousand dollars for each disturbed acre and each acre
estimated to be disturbed during the next ensuing year the director
shall return the excess funds to the permittee;
(f) All interest accrued to the bond pooling fund may not be
returned, but remains in the fund to reclaim abandoned quarry lands
as provided in section twenty-four of this article.
(g) If a permit is revoked pursuant to section twenty-five of
this article, payments the permittee has made to the bond pooling
fund for that permit are forfeited. The director shall use
forfeited payments for the reclamation of the quarry to which it
applied.
(h) If the cost of reclamation exceeds the amount of payments
the director shall also use moneys forfeited from the permittees
bond or other security in conjunction with the revocation of that
permit, and if necessary, interests from other deposits in the bond
pooling fund from other permittees.
§22-4-18. Groundwater protection.
The Groundwater Protection Act provisions contained in
subsection (b), section four, article twelve of this chapter do not
apply to mineral extraction areas of quarry mining sites regulated under this article. All other areas of the mine, including
discharges from the quarry shall meet the requirements of article
twelve of this chapter.
§22-4-19. Pre-blast survey requirements.
(a) At least thirty days prior to commencing blasting, an
operator or an operator's designee shall make the following
notifications in writing to all owners and occupants of man-made
dwellings or structures that the operator or operator's designee
will perform pre-blast surveys in accordance with subsection (f) of
this section. The required notifications shall be to all owners
and occupants of man-made dwellings or structures within five
tenths of a mile of the blasting area.
(b) An occupant or owner of a man-made dwelling or structure
within the areas described in subsection (a) of this section, may
waive the right to a pre-blast survey in writing. If a dwelling is
occupied by a person other than the owner, both the owner and the
occupant must waive the right to a pre-blast survey in writing. If
an occupant or owner of a man-made dwelling or structure refuses to
allow the operator or the operator's designee access to the
dwelling or structure and refuses to waive in writing the right to
a pre-blast survey or to the extent that access to any portion of
the structure, underground water supply or well is impossible or
impractical under the circumstances, the pre-blast survey shall
indicate that access was refused, impossible or impractical. The operator or the operator's designee shall execute a sworn affidavit
explaining the reasons and circumstances surrounding the refusals.
The office of explosives and blasting, as established in article
three-a of this chapter, shall not determine the pre-blast survey
to be incomplete because it indicates that access to a particular
structure, underground water supply or well was refused, impossible
or impractical. The operator shall send copies of all written
waivers and affidavits executed pursuant to this subsection to the
office of explosives and blasting.
(c) If a pre-blast survey was waived by the owner and was
within the requisite area and the property was sold, the new owner
may request a pre-blast survey from the operator.
(d) An owner within the requisite area may request, from the
operator, a pre-blast survey on structures constructed after the
original pre-blast survey.
(e) The pre-blast survey shall include:
(1) The names, addresses or description of structure location
and telephone numbers of the owner and the residents of the
structure being surveyed and the structure number from the permit
blasting map;
(2) The current home insurer of the owner and the residents of
the structure;
(3) The names, addresses and telephone numbers of the operator
and the permit number;
(4) The current general liability insurer of the operator;
(5) The name, address and telephone number of the person or
firm performing the pre-blast survey;
(6) The current general liability insurer of the person or
firm performing the pre-blast survey;
(7) The date of the pre-blast survey and the date it was
mailed or delivered to the office of explosives and blasting;
(8) A general description of the structure and its
appurtenances including, but not limited to: (A) The number of
stories; (B) the construction materials for the frame and the
exterior and interior finish; (C) the type of construction
including any unusual or substandard construction; and (D) the
approximate age of the structure;
(9) A general description of the survey methods and the
direction of progression of the survey, including a key to
abbreviations used;
(10) Written documentation and drawings, videos or photographs
of the pre-blast defects and other physical conditions of all
structures, appurtenances and water sources which could be affected
by blasting;
(11) Written documentation and drawings, videos or photographs
of the exterior and interior of the structure to indicate pre-blast
defects and condition;
(12) Written documentation and drawings, videos or photographs of the exterior and interior of any appurtenance of the structure
to indicate pre-blast defects and condition;
(13) Sufficient exterior and interior photographs or videos,
using a variety of angles, of the structure and its appurtenances
to indicate pre-blast defects and the condition of the structure
and appurtenances;
(14) Written documentation and drawings, videos or photographs
of any unusual or substandard construction technique and materials
used on the structure and/or its appurtenances;
(15) Written documentation relating to the type of water
supply, including a description of the type of system and treatment
being used, an analysis of untreated water supplies, a water
analysis of water supplies other than public utilities, and
information relating to the quantity and quality of water;
(16) When the water supply is a well, written documentation,
where available, relating to the type of well; the well log; the
depth, age and type of casing or lining; the static water level;
flow data; the pump capacity; the drilling contractor; and the
source or sources of the documentation;
(17) A description of any portion of the structure and
appurtenances not documented or photographed and the reasons;
(18) The signature of the person performing the survey; and
(19) Any other information required by the chief which
additional information shall be established by rule in accordance with article three, chapter twenty-nine-a of this code.
(f) The pre-blast survey shall be submitted to the office of
explosives and blasting at least fifteen days prior to the
commencement of any production blasting. The office of explosives
and blasting shall review each pre-blast survey as to form and
completeness only and notify the operator of any deficiencies. The
office of explosives and blasting shall notify the owner and
occupant of the location and availability of the pre-blast survey
and a copy of the pre-blast survey shall be provided to the owner
and/or occupant upon request.
(g) Pre-blast survey requirements do not apply to existing
permitted quarry operations except when a permittee applies for a
major modification to an existing permit, the director may require
a preblast survey if is anticipated as a condition of the permit
modification, upon a finding that the proposed blasting area will
occur within five tenths of a mile from a protected structure, and
will be of a nature and intensity to potentially cause blasting
damage. Provided: That any property owner may, at their own
expense, pay for a preblast survey of his or her protected
structure to assess the impact of future blasts to those dwellings
or structures by an existing quarry. Upon completion of this
preblast survey, the claims process established in this section
apply to any claims made by that property owner against an existing
quarry operation.
(h) The operator shall file notice of the pre-blast survey or
the waiver in the office of the county clerk of the county
commission of the county where the man-made dwelling or structure
is located to notify the public that a pre-blast survey has been
conducted or waived. The notice shall be on a form prescribed by
the office of explosives and blasting.
(i) The office of explosives and blasting as created in
article three-a of this chapter shall have the authority to enforce
all rules and laws established to regulate blasting consistent with
the authority granted in this article. All persons conducting
blasting under the provisions of this article shall comply with all
applicable provisions and pay all fees as required by article
three-a and any rules promulgated thereunder. The director is
authorized to propose, for legislative promulgation, any rules
necessary to properly regulate blasting pursuant to and consistent
with the provisions of this article.
(j) Each permittee shall pay a fee on each quantity of
explosive material used for any purpose on a quarry mining
operation as provided in section seven article three-a of this
chapter. One-half of the fee shall be placed in the quarry
reclamation fund created in twenty-four of this article. The other
half of the fee shall be utilized by the office of blasting to
operate that office as provided in section seven, article three-a
of this chapter.
§22-4-20. Blasting restrictions; site specific blasting design
requirements.
(a) All blasting is prohibited within three hundred feet of a
protected structure, except blasting conducted to develop haul
roads, drainage structures and other construction activities not
directly related to mineral extraction.
(b) Quarries in operation as of effective date of this article
shall develop a blasting plan as part of the required reclamation
plan pursuant to section fourteen of this article. All new permits
and major permit modifications issued after the effective date of
this act shall comply with subsection (c) of this section.
(c) Blasting within one thousand feet of a protected structure
shall have a site specific blast design approved by the office of
explosives and blasting. The site specific blast design shall
limit the type of explosives and detonating equipment, the size,
the timing and frequency of blasts to do the following:
(1) Prevent injury to persons; (2) prevent damage to public
and private property outside the permit area; (3) prevent adverse
impacts on any underground mine; (4) prevent change in the course,
channel or availability of ground or surface water outside the
permit area; and (5) reduce dust outside the permit area.
In the development of a site specific blasting plan
consideration shall be given, but is not limited to, the physical
condition, type and quality of construction of the protected structure, the current use of the protected structure and the
concerns of the owner or occupant living in the protected structure
in the blasting schedule.
(d) An owner or occupant of a protected structure may waive
the blasting prohibition within three hundred feet or the site
specific restriction within one thousand feet in writing. If a
protected structure is occupied by a person other than the owner,
both the owner and the occupant of the protected structure shall
waive the blasting prohibition within three hundred feet or the
site specific restriction within one thousand feet in writing. The
operator shall send copies of all written waivers executed pursuant
to this subsection to the office of explosives and blasting.
Written waivers executed and filed with the office of explosives
and blasting shall be valid during the life of the permit or any
renewals of the permit and shall be enforceable against any
subsequent owners or occupants of the protected structure.
§22-4-21. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects the rights of any person
to enforce or protect, under applicable law, that person's interest
in water resources affected by removal of mineral resources.
(b) Any permittee shall replace the water supply of an owner
of interest in real property who obtains all or part of the owner's
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 quarry operation, unless
right of replacement is waived by the owner or unless the water
supply is furnished by a public service district, municipality,
government entity or some other third party.
(c) There is a rebuttable presumption that a quarry operation
caused damage to an owner's underground water supply if the
inspector determines the following: (1) Contamination, diminution
or damage to an owner's underground water supply exists; and (2) a
pre-blast survey was performed, consistent with the provisions of
section nineteen of this article, on the owner's property including
the underground water supply that indicated that contamination,
diminution or damage to the underground water supply did not exist
prior to the mining conducted at the quarry operation and no other
proximate cause has been determined by the inspector to have caused
the water loss. Upon notice of this determination by the division,
the operator conducting the quarry operation shall: (1) Provide an
emergency drinking water supply within twenty-four hours; (2)
provide a temporary water supply within seventy-two hours; (3)
provide a permanent water supply within thirty days; and (4) pay
all reasonable costs incurred by the owner in securing a water
supply.
(d) An owner aggrieved under the provisions of subsections (b)
or (c) of this section, may seek relief in court or pursuant to the provisions of section five, article three-a of this chapter.
(e) The quarry owner and or operator is responsible, as
required by this article and the Groundwater Protection Act, for
water at the quarry up to the time it is pumped or otherwise
removed from its location at the quarry. Nothing in this article
shall be construed to authorize the director to supervise or
regulate a quarry contracting with a governmental entity or private
party to provide water from the quarry to the governmental entity
or private party, or to otherwise regulate volume or quality of
water provided to the governmental entity or private party after it
is under the control of the governmental unit.
(f) A public service district, municipality, government
entity, or other party may contract with a permittee to obtain
water and may waive the replacement of or responsibility for the
water supply if contamination, diminution, or interruption should
occur.
§22-4-22. Required fees, quarry inspection and enforcement fund.
The application fee is one thousand dollars. The fee for the
original permit is two hundred dollars per acre, but not less than
two thousand dollars. The permit renewal fee of two hundred
dollars shall be submitted with the renewal application and a
progress report map. The fee for transferring a permit is five
hundred dollars. The fee for a minor permit modification is two
hundred dollars and for major modifications, five hundred dollars. There is hereby created in the state treasury a special revenue
fund known as the "Quarry Inspection and Enforcement Fund". The
fund shall operate as a special fund whereby all deposits and
payments thereto do not expire to the general revenue fund, but
remain in the fund and be available for expenditure in succeeding
fiscal years. This fund shall consist of fees collected by the
director in accordance with the provisions of this article, as well
as interest earned on investments made from moneys deposited in the
fund. Moneys from this fund shall be expended by the director for
administration, permitting, enforcement, inspection, monitoring and
other activities required by this article.
§22-4-23. Appeals to board.
Any person claiming to be aggrieved or adversely affected by
any rule or order of the director or his or her failure to enter an
order may appeal to the surface mine board pursuant to the
provisions of article one, chapter twenty-two-b of this code, for
an order vacating or modifying the rule or order, or for an order
that the director should have entered.
§22-4-24. Quarry reclamation fund.
(a) All funds received by the division from forfeiture of
bonds, civil administrative penalties, or interest from the bond
pooling fund shall be deposited into a special interest-bearing
account in the state treasury designated the "Quarry Reclamation
Fund." Fines collected upon a conviction under section twenty-five of this article shall be deposited to the credit of the general
revenue fund. The quarry reclamation fund shall be used by the
division for reclamation of abandoned quarries.
(b) If the forfeiture of a performance bond or reclamation
security fund exceeds the cost of reclamation for which the
liability was charged, any excess shall be deposited into the
quarry reclamation fund.
(c) Any interest accrued to the quarry reclamation fund shall
remain in the fund for reclamation of abandoned quarries.
(f) Reclamation projects that are to be financed by the quarry
reclamation fund shall be designed by the division.
(g) The director shall administer and approve all expenditures
from the quarry reclamation fund.
(h) The division shall compile a list of abandoned quarries in
the state and rank them in order of need for reclamation.
§22-4-25. Orders, inspections and enforcement; permit revocation,
civil and criminal penalties.
(a) The director may at reasonable times without prior notice
and upon presentation of appropriate credentials, enter any quarry
and conduct periodic inspections and examine any required
documentation, in order to effectively implement and enforce the
provisions of this article and rules promulgated thereunder.
(b) Whenever the director finds that an ongoing quarry
operation is causing or is likely to cause an imminent harm to the environment, public safety, or public health he or she may order
immediate cessation of such operations and shall take other action
or make changes in the permit as is deemed necessary to avoid
adverse impact to the area.
(c) If the director upon inspection or investigation observes,
discovers or learns of a violation of this article, rule
promulgated thereunder, permit or order issued under this article,
he or she shall undertake the following action or actions as is
appropriate:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under this
section includes, but is not limited to, any or all of the
following: Notice on non-compliance, orders suspending, revoking or
modifying permits; consent agreements which provide opportunity for
correction without further agency action; orders requiring a
permittee to take remedial action within a specified time; and
cease and desist orders;
(2) Seek an injunction in accordance with subsection (e) of
this section;
(3) Revoke the permit and pursue an appropriate remedy as
provided in this section;
(4) Institute a civil action in accordance with subsection (e)
of this section; or
(5) Request the prosecuting attorney of the county wherein the
alleged violation occurred, to bring an appropriate civil or
criminal action, in accordance with subsection (b) of this section.
(d) Any person who knowingly on negligently violates the
provisions of this article, any permit or any rule or order issued
pursuant to this article is subject to the same criminal penalties
set forth in section twenty-four, article eleven of this chapter.
(e) Any person who violates any provision of this article, any
permit, or any rule or order issued pursuant to this article is
subject to a civil administrative penalty to be levied by the
director of not more than five thousand dollars for each day of
violation, not to exceed a maximum of twenty thousand dollars. The
director may accept in kind assessment by reclamation of an
abandoned quarry site in lieu of cash payment of a civil
administrative penalty.
(1) In assessing a penalty, the director shall take into
account the seriousness of the violation and any good faith efforts
to comply with applicable requirements, as well as any other
appropriate factors established by rules promulgated pursuant to
this article and article three, chapter twenty-nine-a of this code.
No assessment shall be levied pursuant to this subsection until
after the alleged violator has been notified by certified mail or
personal service. The notice shall include a reference to the
section of the statute, rule, order or statement of permit conditions allegedly violated, a concise statement of the facts
alleged to constitute the violation, a statement of the amount of
the administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged
violator has twenty calendar days from receipt of the notice to
deliver to the director a written request for an informal hearing.
If no hearing is requested, the notice becomes a final order after
the expiration of the twenty-day period. If a hearing is
requested, the director shall inform the alleged violator of the
time and place of the hearing.
(2) The director may appoint an assessment officer to conduct
the informal hearing and make a written recommendation to the
director concerning the assessment of a civil administrative
penalty. Within thirty days following the informal hearing, the
director shall issue and furnish to the alleged violator a written
decision, and the reasons therefor, concerning the assessment of a
civil administrative penalty. Within thirty days after
notification of the director's decision, the alleged violator may
request a formal hearing before the surface mine board. The
authority to levy a civil administrative penalty is in addition to
all other enforcement provisions of this article and the payment of
any assessment does not affect the availability of any other
enforcement provision in connection with the violation for which
the assessment is levied. No combination of assessments against a violator under this section shall exceed five thousand dollars
for each day of such violation: Provided, however, That any
violation for which the violator has paid a civil administrative
penalty assessed under this section shall not be the subject of a
separate civil penalty action under this article to the extent of
the amount of the civil administrative penalty paid. All
administrative penalties shall be levied in accordance with this
article and rules issued pursuant to this article. The net
proceeds of assessments collected pursuant to this subsection shall
be deposited in the quarry reclamation fund established in section
twenty-four of this article;
(3) No assessment levied pursuant to subdivision (1),
subsection (c) above becomes due and payable until the procedures
for review of such assessment as set out in said subsection have
been completed.
(f) Any person who violates any provision of this article, any
permit, or any rule or order issued pursuant to this article is
subject to a civil penalty not to exceed five thousand dollars for
each day of such violation, which penalty shall be recovered in a
civil action either in the circuit court of the county wherein the
violation occurs or in the circuit court of Kanawha County.
(g) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any permit, rule or order issued pursuant to this article. In any action for injunctive relief, the director is not
required to post bond nor to allege or prove at any stage of the
proceeding that irreparable damage will occur if the injunction is
not issued or that the remedy at law is inadequate. An application
for injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not been
exhausted or invoked against the person or persons against whom
such relief is sought.
(h) Upon request of the director, the prosecuting attorney of
the county in which the violation occurs shall assist the director
in any civil action under this section.
(i) In any civil action brought pursuant to the provisions of
this section, the state, or any agency of the state which prevails,
may be awarded costs, reasonable attorney's fees, and, when a
permit has been revoked, any actual costs incurred by the agency to
complete reclamation of an permitted site above and beyond monies
received as a result of bond forfeiture.
(j) The director may reinstate a revoked permit and allow
resumption of quarrying upon a finding that: (1) the circumstance
causing the revocation has been abated; and (2) the cause of the
revocation will not reoccur upon reinstatement.
(k)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.
(l) 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. The
director may instigate an action pursuant to either subsection (d)
or (e) of this section, to enforce this prohibition.
§22-4-26. Persons ineligible for a permit.
No public officer or employee in the division having any
responsibility or duty either directly or of a supervisory nature
with respect to the administration or enforcement of this article
may:
(1) Engage in quarrying as a sole proprietor or as a partner;
(2) Be an officer, director, stockholder, owner or part owner
of any corporation or other business entity engaged in quarrying;
or
(3) Be employed as an attorney, agent or in any other capacity
by any person, partnership, firm, association, trust or corporation
engaged in quarrying.
Any violation of this section by any public officer or
employee subject to the prohibitions contained in this section is
grounds for removal from office or dismissal from employment, as
the case may be.
§22-4-27. Exemptions.
(a) The provisions of this article do not apply to activities
of the West Virginia department of transportation and any legally
constituted public governing entities including municipal
corporations or other political subdivisions, the federal
government, or to activities of any person acting under contract
with any of these public agencies or entities, on highway rights-
of-way or borrow pits owned, operated, or maintained solely in
connection with the construction, repair and maintenance of the
public roads system of the state or other public facilities. This
exemption does not become effective until the public agencies or
entities have adopted reclamation standards applying to the
activities.
(b) The provisions of this article do not apply to quarrying
on federal lands when performed under a valid permit from the
appropriate federal agency having jurisdiction over the land.
(c) The provisions of this article do not apply to the
following activities:
(1) Those aspects of underground quarrying that do not have a
significant effect on the surface, if the affected land does not
exceed five acres in area. Provided: that underground quarrying
operations are not exempt from the provisions of subsection (b) of
section twelve of this article;
(2) Operations engaged only in processing minerals;
(3) Excavation or grading conducted solely in aid of on-site
farming or on-site construction for purposes other than quarrying;
(4) Removal of overburden and of limited amounts of any
mineral when done only for the purpose of prospecting and to the
extent necessary to determine the location, quantity or quality of
any natural deposit, if no minerals are sold, processed for sale or
consumed in the regular operation of business;
(5) Handling, processing or storing minerals on the premises
of a manufacturer as a part of any manufacturing process that
requires minerals as raw material;
(6) Removal or deposit of fill dirt associated with
construction, farming and non-commercial activities;
(7) Noncommercial quarry operations by a landowner if the
disturbed area does not exceed one acre in area, upon notice to the
director by the owner of his or her intent to establish the quarry.
(d) Nothing in this article may be construed as vesting in the
director the jurisdiction to adjudicate property-rights disputes.
CHAPTER 22B. ENVIRONMENTAL BOARDS
§ 22B-4-1. Appointment and organization of surface mine board.
(a) On and after the effective date of this article, the
"reclamation board of review," heretofore created, shall continue
in existence and hereafter shall be known as the "surface mine
board."
(b) The board shall be composed of seven members who shall be appointed by the governor with the advice and consent of the
Senate. Not more than four members of the board shall be of the
same political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends or
he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a qualified
successor shall be appointed by the governor with the advice and
consent of the Senate. One of the appointees to such board shall
be a person who, by reason of previous vocation, employment or
affiliations, can be classed as one capable and experienced in coal
mining. One of the appointees to such board shall be a person who,
by reason of training and experience, can be classed as one capable
and experienced in the practice of agriculture. One of the
appointees to such board shall be a person who by reason of
training and experience, can be classed as one capable and
experienced in modern forestry practices. One of the appointees to
such board shall be a person who, by reason of training and
experience, can be classed as one capable and experienced in
engineering. One of the appointees to such board shall be a person
who, by reason of training and experience, can be classed as one
capable and experienced in water pollution control or water
conservation problems. One of the appointees to such board shall
be a person with significant experience in the advocacy of environmental protection. One of the appointees to such board
shall be a person who represents the general public interest.
Provided: That, in any case brought before the board relating to
quarry operations as regulated by article four of chapter twenty-
two of this code, two alternate board members will serve on the
board which have expertise related to the operation of quarries.
These two alternate members will serve in place of the board member
appointed due to his or her expertise in coal operations and the
board member which has been appointed due to his or her expertise
in forestry. Each alternative member shall has the identical term
as the member which he or she is replacing. The alternative board
member replacing the member with expertise in coal shall be
appointed based on his or her expertise in quarry operations. The
alternative board member replacing the member with expertise in
forestry shall be appointed based on his or her expertise in
geology.
(c) During his or her tenure on the board, no member shall
receive significant direct or indirect financial compensation from
or exercise any control over any person or entity which holds or
has held, within the two years next preceding the member's
appointment, a permit to conduct activity regulated by the
division, under the provisions of article three or four, chapter
twenty-two of this code, or any similar agency of any other state
or of the federal government: Provided, That the member classed as experienced in coal mining, the member classed as experienced in
engineering, and the member classed as experienced in water
pollution control or water conservation problems and the two
alternative board members serving to hear quarry related cases may
receive significant financial compensation from regulated entities
for professional services or regular employment so long as the
professional or employment relationship is disclosed to the board.
No member shall participate in any matter before the board related
to a regulated entity from which the member receives or has
received, within the preceding two years direct or indirect
financial compensation. For purposes of this section, "significant
direct or indirect financial compensation" means twenty percent of
gross income for a calendar year received by the member, any member
of his or her immediate family or the member's primary employer.
(d) The members of the board shall be appointed for terms of
the same duration as their predecessor under the original
appointment of two members appointed to serve a term of two years;
two members appointed to serve a term of three years; two members
to serve a term of four years; and one member to serve a term of
five years. Any member whose term expires may be reappointed by
the governor. In the event a board member is unable to complete
the term, the governor shall appoint a person with similar
qualification to complete the term. The successor of any board
member appointed pursuant to this article must possess the qualification as prescribed herein. Each vacancy occurring in the
office of a member of the board shall be filled by appointment
within sixty days after such vacancy occurs.
§22B-4-2. Authority to receive money.
In addition to all other powers and duties of the surface mine
board, as prescribed in this chapter or elsewhere by law, the board
shall have and may exercise the power and authority to receive any
money as a result of the resolution of any case on appeal. which
Monies received from cases arising from the Surface Mine
Reclamation Act, as provided in article three of chapter twenty-two
shall be deposited to the credit of the special reclamation fund
created pursuant to section eleven, article three, chapter
twenty-two of this code. Monies received from cases arising from
the Quarry Reclamation Act, as provided in article four of chapter
twenty-two of this code, shall be deposited to the credit of the
quarry reclamation fund created pursuant to section twenty-two,
four, chapter twenty-two of this code.
NOTE: The purpose of this bill is to establish a regulatory program
for quarry operations that mine minerals other than coal; providing
the Director of the Division of Environmental Protection is charged
with administering the program, employing necessary personnel, and
proposing legislative rules; regulating all non-coal minerals
extracted by surface mining; providing public review of quarry
permits, bonding and other permit requirements, assesses fees and
creates other regulatory requirements for quarry operations.
§22-4 is totally rewritten and has no underlining or strike-
throughs. Strike-throughs in §22B-4 indicate language that would be
stricken from the present law, and underscoring indicates new
language that would be added.
This bill was recommended by the Joint Standing Committee on
the Judiciary for introduction and passage at the 2000 legislative
session.