H. B. 2905
(By Delegates Perdue, Wells, Beach, Marshall,
Brown, Hatfield, Fragale and Rodighiero)
[Introduced March 3, 2009; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend and reenact §22-3-22, §22-3-22a and §22-3-30a of
the Code of West Virginia,1931, as amended, all relating to
increasing the distance required for surface mining activity
in relation to cemeteries.
Be it enacted by the Legislature of West Virginia:
That §22-3-22, §22-3-22a, and §22-3-30a of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
ARTICLE 3. SURFACE MINING CONTROL AND RECLAMATION ACT.
§22-3-22. Designation of areas unsuitable for surface mining;
petition for removal of designation; prohibition of
surface mining on certain areas; exceptions; taxation
of minerals underlying land designated unsuitable.
(a) The director shall establish a planning process to enable objective decisions based upon competent and scientifically sound
data and information as to which, if any, land areas of this state
are unsuitable for all or certain types of surface-mining
operations pursuant to the standards set forth in subdivisions (1)
and (2) of this subsection: Provided,
That such designation shall
not prevent prospecting pursuant to section seven of this article
on any area so designated.
(1) Upon petition pursuant to subsection (b) of this section,
the director shall designate an area as unsuitable for all or
certain types of surface-mining operations, if it determines that
reclamation pursuant to the requirements of this article is not
technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this section,
a surface area may be designated unsuitable for certain types of
surface-mining operations, if the operations: (A) Conflict with
existing state or local land use plans or programs; (B) affect
fragile or historic lands in which the operations could result in
significant damage to important historic, cultural, scientific and
aesthetic values and natural systems; (C) affect renewable resource
lands, including significant aquifers and aquifer recharge areas,
in which the operations could result in a substantial loss or
reduction of long-range productivity of water supply, food or fiber
products; or (D) affect natural hazard lands in which the
operations could substantially endanger life and property. Such lands shall include lands subject to frequent flooding and areas of
(3) The director shall develop a process which includes: (A)
The review of surface-mining lands; (B) a data base and an
inventory system which will permit proper evaluation of the
capacity of different land areas of the state to support and permit
reclamation of surface-mining operations; (C) a method for
implementing land use planning decisions concerning surface-mining
operations; and (D) proper notice and opportunities for public
participation, including a public hearing prior to making any
designation or redesignation pursuant to this section.
(4) Determinations of the unsuitability of land for surface
mining, as provided for in this section, shall be integrated as
closely as possible with present and future land use planning and
regulation processes at federal, state and local levels.
(5) The requirements of this section do not apply to lands on
which surface-mining operations were being conducted on August 3,
1977, or under a permit issued pursuant to this article, or where
substantial legal and financial commitments in the operations were
in existence prior to January 4, 1977.
(b) Any person having an interest which is or may be adversely
affected has the right to petition the director to have an area
designated as unsuitable for surface-mining operations or to have
such a designation terminated. The petition shall contain allegations of fact with supporting evidence which would tend to
establish the allegations. After receipt of the petition, the
director shall immediately begin an administrative study of the
area specified in the petition. Within ten months after receipt of
the petition, the director shall hold a public hearing in the
locality of the affected area after appropriate notice and
publication of the date, time and location of the hearing. After
the director or any person having an interest which is or may be
adversely affected has filed a petition and before the hearing
required by this subsection, any person may intervene by filing
allegations of fact with supporting evidence which would tend to
establish the allegations. Within sixty days after the hearing,
the director shall issue and furnish to the petitioner and any
other party to the hearing, a written decision regarding the
petition and the reasons therefor.
In the event that If
petitioners stipulate agreement prior to the requested hearing and
withdraw their request, the hearing need not be held.
(c) Prior to designating any land areas as unsuitable for
surface-mining operations, the director shall prepare a detailed
statement on: (1) The potential coal resources of the area; (2)
the demand for the coal resources; and (3) the impact of the
designation on the environment, the economy and the supply of coal.
(d) After August 3, 1977, and subject to valid existing
rights, no surface-mining operations, except those which existed on that date, shall be permitted:
(1) On any lands in this state within the boundaries of units
of the national park system, the national wildlife refuge systems,
the national system of trails, the national wilderness preservation
system, the wild and scenic rivers system, including study rivers
designated under section five-a of the Wild and Scenic Rivers Act,
and national recreation areas designated by Act of Congress;
(2) Which will adversely affect any publicly owned park or
places included in the national register of historic sites, or
national register of natural landmarks unless approved jointly by
the director and the federal, state or local agency with
jurisdiction over the park, the historic site or natural landmark;
(3) Within one hundred feet of the outside right-of-way line
on any public road, except where mine access roads or haulage roads
join such right-of-way line, and except that the director may
permit the roads to be relocated or the area affected to lie within
one hundred feet of the road if, after public notice and an
opportunity for a public hearing in the locality, the director
makes a written finding that the interests of the public and the
landowners affected thereby will be protected;
(4) Within three hundred feet from any occupied dwelling,
unless waived by the owner thereof, or within
feet of any public building, school, church, community or
institutional building, public park or within
hundred feet of a cemetery; or
(5) On any federal lands within the boundaries of any national
That surface coal mining operations may be
permitted on the lands if the secretary of the interior finds that
there are no significant recreational, timber, economic or other
values which may be incompatible with the surface-mining
operations: Provided, however,
That the surface operations and
impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the coal
underlying any lands designated unsuitable for surface-mining
operations under any provisions of this article or underlying any
land upon which mining is prohibited by any provisions of this
article shall be assessed for taxation purposes according to their
value and the Legislature hereby finds that the coal has no value
for the duration of the designation or prohibition unless suitable
for underground mining not in violation of this article: Provided,
That the owner of the coal shall forthwith notify the proper
assessing authorities if the designation or prohibition is removed
so that the coal may be reassessed.
§22-3-22a. Blasting restrictions; site specific blasting design
(a) For purposes of this section, the term "production
blasting" means blasting that removes the overburden to expose
underlying coal seams and does not include construction blasting.
(b) For purposes of this section, the term "construction
blasting" means blasting to develop haul roads, mine access roads,
coal preparation plants, drainage structures or underground coal
mine sites and does not include production blasting.
(c) For purposes of this section, the term "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; and a
public park or a water well.
(d) Production blasting is prohibited within three hundred
feet of a protected structure or within
hundred feet of
(e) 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
structures identified in the blasting schedule notification area.
(f) An owner or occupant of a protected structure may waive
the blasting prohibition within three hundred feet. 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 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 are valid during the life of the permit or any
renewals of the permit and are enforceable against any subsequent
owners or occupants of the protected structure.
(g) The provisions of this section do not apply to the
following: (1) Underground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods:
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 to said section.
§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 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 $1,000 nor more than $5,000.
(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 $5,000
nor more than $10,000
(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 of
Environmental Protection when the following conditions have been
(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 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
(d) The remedies provided in this section are not exclusive
and may not bar an owner or occupant from any other remedy accorded
(e) Where inspection by the Division 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 three 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, collected by
the director and deposited with the Treasurer of the State of West
Virginia in the "general school fund".
(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 extend the buffer zone
for surface mining blasting to a distance of three hundred feet
consistent with the buffer zone for dwellings.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would