H. B. 2308
(By Delegates Caputo, Manchin, Mahan,
Tucker, Perdue and Butcher)
[Introduced February 14, 2005; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-3-9 of the Code of West Virginia,
1931, as amended, relating to mining extension permits; and
requiring an applicant for a mining extension to provide a
copy of the permit application to a representative of the
miners at that mine.
Be it enacted by the Legislature of West Virginia:
That §22-3-9 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.
§22-3-9. Permit application requirements and contents.
(a) The surface-mining permit application shall contain:
(1) The names and addresses of: (A) The permit applicant; (B)
the owner of record of the property, surface and mineral, to be
mined; (C) the holders of record of any leasehold interest in the
property; (D) any purchaser of record of the property under a real estate contract; (E) the operator, if different from the applicant;
and (F) if any of these are business entities other than a single
proprietor, the names and addresses of the principals, officers and
resident agent;
(2) The names and addresses of the owners of record of all
surface and subsurface areas contiguous to any part of the proposed
permit area: Provided,
That all residents living on property
contiguous to the proposed permit area shall be notified by the
applicant, by registered or certified mail, of such application on
or before the first day of publication of the notice provided for
in subdivision (6) of this subsection;
(3) A statement of any current surface-mining permits held by
the applicant in the state and the permit number and each pending
application;
(4) If the applicant is a partnership, corporation,
association or other business entity, the following where
applicable: The names and addresses of every officer, partner,
resident agent, director or person performing a function similar to
a director, together with the names and addresses of any person
owning of record ten percent or more of any class of voting stock
of the applicant; and a list of all names under which the
applicant, officer, director, partner or principal shareholder
previously operated a surface-mining operation in the United States
within the five-year period preceding the date of submission of the application;
(5) A statement of whether the applicant, or any officer,
partner, director, principal shareholder of the applicant, any
subsidiary, affiliate or persons controlled by or under common
control with the applicant, has ever been an officer, partner,
director or principal shareholder in a company which has ever held
a federal or state mining permit which in the five-year period
prior to the date of submission of the application has been
permanently suspended or revoked or has had a mining bond or
similar security deposited in lieu of bond forfeited and, if so, a
brief explanation of the facts involved;
(6) A copy of the applicant's advertisement to be published in
a newspaper of general circulation in the locality of the proposed
permit area at least once a week for four successive weeks. The
advertisement shall contain in abbreviated form the information
required by this section including the ownership and map of the
tract location and boundaries of the proposed site so that the
proposed operation is readily locatable by local residents, the
location of the office of the division where the application is
available for public inspection and stating that written protests
will be accepted by the director until a certain date which is at
least thirty days after the last publication of the applicant's
advertisement;
(7) A description of the type and method of surface-mining operation that exists or is proposed, the engineering techniques
used or proposed, and the equipment used or proposed to be used;
(8) The anticipated starting and termination dates of each
phase of the surface-mining operation and the number of acres of
land to be affected;
(9) A description of the legal documents upon which the
applicant's legal right to enter and conduct surface-mining
operations on the proposed permit area is based and whether that
right is the subject of pending court litigation: Provided,
That
nothing in this article may be construed as vesting in the director
the jurisdiction to adjudicate property-rights disputes;
(10) The name of the watershed and location of the surface
stream or tributary into which surface and pit drainage will be
discharged;
(11) A determination of the probable hydrologic consequences
of the mining and reclamation operations, both on and off the mine
site, with respect to the hydrologic regime, quantity and quality
of water in surface and groundwater systems, including the
dissolved and suspended solids under seasonal flow conditions and
the collection of sufficient data for the mine site and surrounding
areas so that an assessment can be made by the director of the
probable cumulative impacts of all anticipated mining in the area
upon the hydrology of the area, and particularly upon water
availability: Provided,
That this determination is not required until such time as hydrologic information on the general area prior
to mining is made available from an appropriate federal or state
agency or, if existing and in the possession of the applicant, from
the applicant: Provided, however,
That the permit application
shall not be approved until the information is available and is
incorporated into the application;
(12) Accurate maps to an appropriate scale clearly showing:
(A) The land to be affected as of the date of application; (B) the
area of land within the permit area upon which the applicant has
the legal right to enter and conduct surface-mining operations; and
(C) all types of information set forth on enlarged topographical
maps of the United States geological survey of a scale of 1:24,000
or larger, including all man-made features and significant known
archaeological sites existing on the date of application. In
addition to other things specified by the director, the map shall
show the boundary lines and names of present owners of record of
all surface areas abutting the proposed permit area and the
location of all structures within one thousand feet of the proposed
permit area;
(13) Cross-section maps or plans of the proposed affected
area, including the actual area to be mined, prepared by or under
the direction of and certified by a person approved by the
director, showing pertinent elevation and location of test borings
or core samplings, where required by the director, and depicting the following information: (A) The nature and depth of the various
strata or overburden; (B) the location of subsurface water, if
encountered, and its quality; (C) the nature and thickness of any
coal or rider seams above the seam to be mined; (D) the nature of
the stratum immediately beneath the coal seam to be mined; (E) all
mineral crop lines and the strike and dip of the coal to be mined,
within the area of land to be affected; (F) existing or previous
surface-mining limits; (G) the location and extent of known
workings of any underground mines, including mine openings to the
surface; (H) the location of any significant aquifers; (I) the
estimated elevation of the water table; (J) the location of spoil,
waste or refuse areas and topsoil preservation areas; (K) the
location of all impoundments for waste or erosion control; (L) any
settling or water treatment facility or drainage system; (M)
constructed or natural drain ways and the location of any
discharges to any surface body of water on the area of land to be
affected or adjacent thereto; and (N) adequate profiles at
appropriate cross sections of the anticipated final surface
configuration that will be achieved pursuant to the operator's
proposed reclamation plan;
(14) A statement of the result of test borings or core samples
from the permit area, including: (A) Logs of the drill holes; (B)
the thickness of the coal seam to be mined and analysis of the
chemical and physical properties of the coal; (C) the sulfur content of any coal seam; (D) chemical analysis of potentially acid
or toxic forming sections of the overburden; and (E) chemical
analysis of the stratum lying immediately underneath the coal to be
mined: Provided,
That the provisions of this subdivision may be
waived by the director with respect to the specific application by
a written determination that such requirements are unnecessary;
(15) For those lands in the permit application which a
reconnaissance inspection suggests may be prime farmlands, a soil
survey shall be made or obtained according to standards established
by the secretary of agriculture in order to confirm the exact
location of such prime farmlands;
(16) A reclamation plan as presented in section ten of this
article;
(17) Information pertaining to coal seams, test borings, core
samplings or soil samples as required by this section shall be made
available to any person with an interest which is or may be
adversely affected: Provided,
That information which pertains only
to the analysis of the chemical and physical properties of the
coal, except information regarding mineral or elemental content
which is potentially toxic to the environment, shall be kept
confidential and not made a matter of public record;
(18) When requested by the director, the climatological
factors that are peculiar to the locality of the land to be
affected, including the average seasonal precipitation, the average direction and velocity of prevailing winds, and the seasonal
temperature ranges; and
(19) Other information that may be required by rules
reasonably necessary to effectuate the purposes of this article.
(b) If the director finds that the probable total annual
production at all locations of any coal surface-mining operator
will not exceed three hundred thousand tons, the determination of
probable hydrologic consequences including the engineering analyses
and designs necessary as required by this article or rules
promulgated thereunder; the development of cross-section maps and
plans as required by this article or rules promulgated thereunder;
the geologic drilling and statement of results of test borings and
core samplings as required by this article or rules promulgated
thereunder; preblast surveys required by this article or rules
promulgated thereunder; the collection of site-specific resource
information and production of protection and enhancement plans for
fish and wildlife habitats and other environmental values required
by this article or rules promulgated thereunder; and the collection
of archaeological and historical information required by this
article and rules promulgated thereunder and any other
archaeological and historical information required by the federal
department of the interior and the preparation of plans that may be
necessitated thereby shall, upon the written request of the
operator, be performed by a qualified public or private laboratory designated by the director and a reasonable cost of the preparation
of such determination and statement shall be assumed by the
division from funds provided by the United States Department of the
Interior pursuant to the federal Surface Mining Control and
Reclamation Act of 1977, as amended.
(c) Before the first publication of the applicant's
advertisement, each applicant for a surface-mining permit shall
file, except for that information pertaining to the coal seam
itself, a copy of the application for public inspection in the
nearest office of the division as specified in the applicant's
advertisement.
(d) Each applicant for a permit shall be required to submit to
the director as a part of the permit application a certificate
issued by an insurance company authorized to do business in this
state covering the surface-mining operation for which the permit is
sought, or evidence that the applicant has satisfied state self-
insurance requirements. The policy shall provide for personal
injury and property damage protection in an amount adequate to
compensate any persons damaged as a result of surface coal mining
and reclamation operations, including use of explosives, and
entitled to compensation under the applicable provisions of state
law. The policy shall be maintained in full force and effect
during the terms of the permit or any renewal, including the length
of all reclamation operations.
(e) Each applicant for a surface-mining permit shall submit to
the director as part of the permit application a blasting plan
where explosives are to be used, which shall outline the procedures
and standards by which the operator will meet the provisions of the
blasting performance standards.
(f) The applicant shall file as part of the permit application
a schedule listing all notices of violation, bond forfeitures,
permit revocations, cessation orders or permanent suspension orders
resulting from a violation of the federal Surface Mining Control
and Reclamation Act of 1977, as amended, this article or any law or
regulation of the United States or any department or agency of any
state pertaining to air or environmental protection received by the
applicant in connection with any surface-mining operation during
the three-year period prior to the date of application, and
indicating the final resolution of any notice of violation,
forfeiture, revocation, cessation or permanent suspension.
(g) In addition to the other provisions of this section, an
applicant for an extension of an existing permit shall provide a
copy of the application
for extension to an authorized
representative of the miners at the mine.
(g) (h) Within five working days of receipt of an application
for a permit, the director shall notify the operator in writing,
stating whether the application is administratively complete and
whether the operator's advertisement may be published. If the application is not administratively complete, the director shall
state in writing why the application is not administratively
complete.
NOTE: The purpose of this bill is to require applicants for
an extension of a mining permit to provide a copy of the permit
application to a representative of the miners at the mine.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.