Senate Bill No. 450
(By Senator Boley)
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[Introduced February 5, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §22-3-17 and §22-3-30a of the Code of
West Virginia, 1931, as amended, all relating to authorizing
the Secretary of the Department of Environmental Protection to
use a portion of the civil penalties collected for watershed
improvement projects; and allowing penalties collected to be
deposited in the Special Reclamation Fund.
Be it enacted by the Legislature of West Virginia:
That §22-3-17 and §22-3-30a of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-17. Notice of violation; procedure and actions; enforcement;
permit revocation and bond forfeiture; civil and
criminal penalties; appeals to the board; prosecution;
injunctive relief.
(a) If any of the requirements of this article, rules promulgated pursuant thereto or permit conditions have not been
complied with, the director shall cause a notice of violation to be
served upon the operator or the operator's duly authorized agent.
A copy of the notice shall be handed to the operator or the
operator's duly authorized agent in person or served by certified
mail addressed to the operator at the permanent address shown on
the application for a permit. The notice shall specify in what
respects the operator has failed to comply with this article, rules
or permit conditions and shall specify a reasonable time for
abatement of the violation not to exceed thirty days. If the
operator has not abated the violation within the time specified in
the notice, or any reasonable extension thereof, not to exceed
sixty days, the director shall order the cessation of the operation
or the portion thereof causing the violation, unless the operator
affirmatively demonstrates that compliance is unattainable due to
conditions totally beyond the control of the operator. If a
violation is not abated within the time specified or any extension
thereof, or any cessation order is issued, a mandatory civil
penalty of not less than seven hundred fifty dollars per day per
violation shall be assessed. A cessation order remains in effect
until the director determines that the violation has been abated or
until modified, vacated or terminated by the director or by a
court. In any cessation order issued under this subsection, the
director shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the
necessary measures in the order.
(b) If the director determines that a pattern of violations of
any requirement of this article or any permit condition exists or
has existed, as a result of the operator's lack of reasonable care
and diligence, or that the violations are willfully caused by the
operator, the director shall immediately issue an order directing
the operator to show cause why the permit should not be suspended
or revoked and giving the operator thirty days in which to request
a public hearing. If a hearing is requested, the director shall
inform all interested parties of the time and place of the hearing.
Any hearing under this section shall be recorded and is subject to
the provisions of chapter twenty-nine-a of this code. Within sixty
days following the public hearing, the director shall issue and
furnish to the permittee and all other parties to the hearing a
written decision, and the reasons therefor, concerning suspension
or revocation of the permit. Upon the operator's failure to show
cause why the permit should not be suspended or revoked, the
director shall immediately suspend or revoke the operator's permit.
If the permit is revoked, the director shall initiate procedures in
accordance with rules promulgated by the director to forfeit the
entire amount of the operator's bond, or other security posted
pursuant to section eleven or twelve of this article, and give
notice to the Attorney General, who shall collect the forfeiture without delay: Provided, That the entire proceeds of such
forfeiture shall be deposited with the Treasurer of the State of
West Virginia to the credit of the special reclamation fund. All
forfeitures collected shall be deposited in the special reclamation
fund and shall be expended back upon the areas for which the bond
was posted: Provided, however, That any excess therefrom shall
remain in the special reclamation fund.
Within one year following the notice of permit revocation,
subject to the discretion of the director and based upon a petition
for reinstatement, the revoked permit may be reinstated. The
reinstated permit may be assigned to any person who meets the
permit eligibility requirements of this article.
(c) 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 may not exceed five thousand
dollars. Each day of continuing violation may be deemed 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.
(d) (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 surface mine board 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 has 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 has 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 director for
placement in an escrow account. Formal hearings shall be of record
and subject to the provisions of article five, chapter twenty-nine-a of this code. Following the hearing the board shall
affirm, modify or vacate the notice, order or proposed penalty
assessment and, when appropriate, incorporate an assessment order
requiring that the assessment be paid.
(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
special reclamation fund established in section eleven of this
article: Provided, That the Secretary of the Department of
Environmental Protection may use a portion of the civil penalties
collected under this article for watershed improvement projects.
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 is
a waiver of all legal rights to contest the violation or the amount
of the penalty.
(e) Any person having an interest which is or may be adversely
affected by any order of the director or the surface mine board may
file an appeal only in accordance with the provisions of article one, chapter twenty-two-b of this code, within thirty days after
receipt of the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section does not
stay execution of the order appealed from. Pending completion of
the investigation and conference or hearing required by this
section, the applicant may file with the director a written request
that the director grant temporary relief from any notice or order
issued under section sixteen or seventeen 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 five days of its receipt. The director may grant such
relief, under such conditions as he or she may prescribe if:
(1) All parties to the proceedings have been notified and
given an opportunity to be heard on a request for temporary relief;
(2) The person requesting the relief shows that there is a
substantial likelihood that they will prevail on the merits in the
final determination of the proceedings;
(3) The relief will not adversely affect the public health or
safety or cause significant imminent environmental harm to land,
air or water resources; and
(4) The relief sought is not the issuance of a permit where a
permit has been denied, in whole or in part, by the director.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or rules
promulgated pursuant thereto, or fails or refuses to comply with
any order issued under said article and rules or any order
incorporated in a final decision issued by the director, is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than ten thousand dollars,
or imprisoned in the county jail not more than one year, or both
fined and imprisoned.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, rules promulgated pursuant
thereto, or any order incorporated in a final decision issued by
the director, any director, officer or agent of the corporation who
willfully and knowingly authorized, ordered or carried out the
failure or refusal, is subject to the same civil penalties, fines
and imprisonment that may be imposed upon a person under
subsections (c) and (g) of this section.
(i) Any person who knowingly makes any false statement,
representation or certification, or knowingly fails to make any
statement, representation or certification in any application,
petition, record, report, plan or other document filed or required
to be maintained pursuant to this article or rules promulgated pursuant thereto, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one hundred dollars nor more
than ten thousand dollars, or imprisoned in the county jail not
more than one year, or both fined and imprisoned.
(j) Whenever any person: (A) Violates or fails or refuses to
comply with any order or decision issued by the director under this
article; or (B) interferes with, hinders or delays the director in
carrying out the provisions of this article; or (C) refuses to
admit the director to the mine; or (D) refuses to permit inspection
of the mine by the director; or (E) refuses to furnish any
reasonable information or report requested by the director in
furtherance of the provisions of this article; or (F) refuses to
permit access to, and copying of, such records as the director
determines necessary in carrying out the provisions of this
article; or (G) violates any other provisions of this article, the
rules promulgated pursuant thereto, or the terms and conditions of
any permit, the director, the Attorney General or the prosecuting
attorney of the county in which the major portion of the permit
area is located may institute a civil action for relief, including
a permanent or temporary injunction, restraining order or any other
appropriate order, in the circuit court of Kanawha County or any
court of competent jurisdiction to compel compliance with and
enjoin such violations, failures or refusals. The court or the
judge thereof may issue a preliminary injunction in any case pending a decision on the merits of any application filed without
requiring the filing of a bond or other equivalent security.
(k) Any person who, except as permitted by law, willfully
resists, prevents, impedes or interferes with the director or any
of his or her agents in the performance of duties pursuant to this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not more than five thousand dollars
or by imprisonment for not more than one year, or both.
§22-3-30a. Blasting requirements; liability and civil penalties
in the event of property damage.
(a) Blasting shall be conducted in accordance with the rules
and laws established to regulate blasting.
(b) If the Division Department of Environmental Protection
establishes after an inspection that a blast at a surface coal mine
operation as defined by the provisions of subdivision (2),
subsection (a), section thirteen-a of this article was not in
compliance with the regulations governing blasting parameters and
resulted in property damage to a protected structure, as defined in
section twenty-two-a of this article, other than water wells, the
following penalties shall be imposed for each permit area or
contiguous permit areas where the blasting was out of compliance:
(1) For the first offense, the operator shall be assessed a
penalty of not less than one thousand dollars nor more than five
thousand dollars.
(2) For the second offense and each subsequent offense within
one year of the first offense, the surface mining operator shall be
assessed a penalty of not less than five thousand dollars nor more
than ten thousand dollars.
(3) For the third offense and any subsequent offense within
one year of the first offense, or for the failure to pay any
assessment set forth within a reasonable time established by the
director, the surface mining operator's permit is subject to an
immediate issuance of a cessation order, as set out in section
sixteen of this article. The cessation order shall only be
released upon written order of the Director of the Division
Department of Environmental Protection when the following
conditions have been met:
(A) A written plan has been established and filed with the
director assuring that additional violations will not occur;
(B) The permittee has provided compensation for the property
damages or the assurance of adequate compensation for the property
damages that have occurred; and
(C) A permittee shall provide such monetary and other
assurances as the director considers appropriate to compensate for
future property damages. The monetary assurances required shall be
in an amount at least equal to the amount of compensation required
in paragraph (B), subdivision (3) of this subsection.
(4) In addition to the penalties described in subdivisions (1), (2) and (3) of this subsection for the second and subsequent
offenses on any one permitted area regardless of the time period,
the owner of the protected structure is entitled to a rebuttable
presumption that the property damage is a result of the blast if:
(A) A preblast survey was performed; and (B) the blasting site to
which the second or subsequent offense relates is within seven
tenths of a mile of the protected structure.
(5) No more than one offense may arise out of any one shot.
For purposes of this section, "shot" means a single blasting event
composed of one or multiple detonations of explosive material or
the assembly of explosive materials for this purpose. One "shot"
may be composed of numerous explosive charges detonated at
intervals measured in milliseconds.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the Division Department of Environmental
Protection may not impose penalties, as provided for in subsection
(b) of this section, on an operator for the violation of any rule
identified in subsection (b) of this section that is merely
administrative in nature.
(d) The remedies provided in this section are not exclusive
and may not bar an owner or occupant from any other remedy accorded
by law.
(e) Where inspection by the Division Department of
Environmental Protection establishes that production blasting, in violation of section twenty-two-a of this article, was done within
three hundred feet of a protected structure, without an approved
site-specific blast design or not in accordance with an approved
site-specific blast design for production blasting within one
thousand feet of any protected structure as defined in section
twenty-two-a of this article or within one hundred feet of a
cemetery, the monetary penalties and revocation, as set out in
subsection (b) of this section, apply.
(f) All penalties and liabilities as set forth in subsection
(b) of this section shall be assessed by the director secretary,
collected by the director secretary and deposited with the
treasurer of the State of West Virginia in the "general school
fund" to the credit of the special reclamation fund established in
section eleven of this article: Provided, That the secretary may
use a portion of the civil penalties collected under this section
for watershed improvement projects.
(g) The director shall propose rules for legislative approval
pursuant to article three, chapter twenty-nine-a of this code for
the implementation of this section.
(h) The provisions of this section do not apply to the
extraction of minerals by underground mining methods: Provided,
That nothing contained in this section may be construed to exempt
any coal mining operation from the general performance standards as
contained in section thirteen of this article and any rules promulgated pursuant thereto.
NOTE: The purpose of this bill is to authorize the use of a
portion of the civil penalties collected for watershed improvement
projects; and to authorize penalties collected under §22-3-30a to
be deposited in the special reclamation fund.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.