H. B. 3147
(By Delegates Webster, Brown, Burdiss, Fleischauer, Guthrie,
Hrutkay, Kessler, Long, Moore, Pino and Tabb)
[Introduced
January 9, 2008
; referred to the
Committee on Finance.]
A BILL to amend and reenact §22-3-17(d)(2) and §22-3-30a(f) of
the Code of West Virginia, 1931, as amended, relating to
allowing the Secretary of the Department of Environmental
Protection to use a certain portion of the civil penalties
collected for watershed improvement projects; and allowing
certain penalties collected to be deposited in the special
reclamation fund.
Be it enacted by the Legislature of West Virginia:
That §22-3-17(d)(2) of the Code of West Virginia, 1931, as
amended, be amended and reenacted 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 Secretary 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 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 © 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 © 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 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 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 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 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" into 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 allow the Secretary of
the Department of Environmental Protection to use a portion of
the civil penalties collected for watershed improvement projects
and allowing certain penalties collected 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.