H. B. 2498
(By Delegates Barker, Eldridge, Hrutkay,
Caputo and Longstreth)
[Introduced February 18, 2005; referred to the
Committee on Agriculture and Natural Resources then the
Judiciary.]
A BILL to amend and reenact §22-3-13 of the Code of West Virginia,
1931, as amended, relating to requiring areas subject to
surface mining to be reclaimed by planting hardwood saplings
after providing eight feet of topsoil.
Be it enacted by the Legislature of West Virginia:
That §22-3-13 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.
§22-3-13. General environmental protection performance standards
for surface mining; variances.
(a) Any permit issued by the Director pursuant to this article
to conduct surface mining operations shall require that the surface
mining operations meet all applicable performance standards of this
article and other requirements set forth in legislative rules
proposed by the Director.
(b) The following general performance standards are applicable
to all surface mines and require the operation, at a minimum to:
(1) Maximize the utilization and conservation of the solid
fuel resource being recovered to minimize reaffecting the land in
the future through surface mining;
(2) Restore the land affected to a condition capable of
supporting the uses which it was capable of supporting prior to any
mining, or higher or better uses of which there is reasonable
likelihood so long as the use or uses do not present any actual or
probable hazard to public health or safety or pose any actual or
probable threat of water diminution or pollution and the permit
applicants' declared proposed land use following reclamation is not
considered to be impractical or unreasonable, inconsistent with
applicable land use policies and plans, involves unreasonable delay
in implementation or is violative of federal, state or local law;
(3) Except as provided in subsection (c) of this section, with
respect to all surface mines, backfill, compact where advisable to
ensure stability or to prevent leaching of toxic materials, and
grade in order to restore the approximate original contour:
Provided, That in surface mining which is carried out at the same
location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits
relative to the volume of the overburden is large and where the
operator demonstrates that the overburden and other spoil and waste
materials at a particular point in the permit area or otherwise
available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate
original contour, the operator, at a minimum, shall backfill, grade
and compact, where advisable, using all available overburden and
other spoil and waste materials to attain the lowest practicable
grade, but not more than the angle of repose, to provide adequate
drainage and to cover all acid-forming and other toxic materials,
in order to achieve an ecologically sound land use compatible with
the surrounding region: Provided, however, That in surface mining
where the volume of overburden is large relative to the thickness
of the coal deposit and where the operator demonstrates that due to
volumetric expansion the amount of overburden and other spoil and
waste materials removed in the course of the mining operation is
more than sufficient to restore the approximate original contour,
the operator shall, after restoring the approximate contour,
backfill, grade and compact, where advisable, the excess overburden
and other spoil and waste materials to attain the lowest grade, but
not more than the angle of repose, and to cover all acid-forming
and other toxic materials, in order to achieve an ecologically
sound land use compatible with the surrounding region and, the
overburden or spoil shall be shaped and graded in a way as to
prevent slides, erosion and water pollution and revegetated in
accordance with the requirements of this article: Provided
further, That the Director shall propose rules for legislative
approval in accordance with article three, chapter twenty-nine-a of this code, governing variances to the requirements for return to
approximate original contour or highwall elimination and where
adequate material is not available from surface mining operations
permitted after the effective date of this article for: (A)
Underground mining operations existing prior to the third day of
August, one thousand nine hundred seventy-seven; or (B) for areas
upon which surface mining prior to the first day of July, one
thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil
piles, affected by the surface mining operation to effectively
control erosion and attendant air and water pollution;
(5) Remove the topsoil from the land in a separate layer,
replace it on the backfill area, or if not utilized immediately,
segregate it in a separate pile from other spoil and, when the
topsoil is not replaced on a backfill area within a time short
enough to avoid deterioration of the topsoil, maintain a successful
vegetative cover by quick growing plants or by other similar means
in order to protect topsoil from wind and water erosion and keep it
free of any contamination by other acid or toxic material:
Provided, That if topsoil is of insufficient quantity or of poor
quality for sustaining vegetation, or if other strata can be shown
to be more suitable for vegetation requirements, then the operator
shall remove, segregate and preserve in a like manner any other
strata which is best able to support vegetation;
(6) Restore the topsoil or the best available subsoil which is
best able to support vegetation;
(7) Where feasible, restore topsoil to a depth of eight feet
and plant hardwood saplings, including, but not limited to,
hickory, oak and beech saplings, while interdispersing the hardwood
saplings with quick-growing vegetation to prevent and retard
erosion: Provided, That where residential or commercial development
of the particular surface area is planned, this requirement does
not apply;
(7) (8) Ensure that all prime farmlands are mined and
reclaimed in accordance with the specifications for soil removal,
storage, replacement and reconstruction established by the United
States Secretary of Agriculture and the Soil Conservation Service
pertaining thereto. The operator, at a minimum, shall: (A)
Segregate the A horizon of the natural soil, except where it can be
shown that other available soil materials will create a final soil
having a greater productive capacity, and if not utilized
immediately, stockpile this material separately from other spoil,
and provide needed protection from wind and water erosion or
contamination by other acid or toxic material; (B) segregate the B
horizon of the natural soil, or underlying C horizons or other
strata, or a combination of the horizons or other strata that are
shown to be both texturally and chemically suitable for plant
growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create
in the regraded final soil a root zone of comparable depth and
quality to that which existed in the natural soil, and if not
utilized immediately, stockpile this material separately from other
spoil and provide needed protection from wind and water erosion or
contamination by other acid or toxic material; (C) replace and
regrade the root zone material described in paragraph (B) of this
subdivision, with proper compaction and uniform depth over the
regraded spoil material; and (D) redistribute and grade in a
uniform manner the surface soil horizon described in paragraph (A)
of this subdivision;
(8) (9) Create, if authorized in the approved surface mining
and reclamation plan and permit, permanent impoundments of water on
mining sites as part of reclamation activities in accordance with
rules promulgated by the Director;
(9) (10) Where augering is the method of recovery, seal all
auger holes with an impervious and noncombustible material in order
to prevent drainage except where the director determines that the
resulting impoundment of water in the auger holes may create a
hazard to the environment or the public welfare and safety:
Provided, That the director may prohibit augering if necessary to
maximize the utilization, recoverability or conservation of the
mineral resources or to protect against adverse water quality
impacts;
(10) (11) Minimize the disturbances to the prevailing
hydrologic balance at the mine site and in associated off-site
areas and to the quality and quantity of water in surface and
groundwater systems both during and after surface mining operations
and during reclamation by: (A) Avoiding acid or other toxic mine
drainage by such measures as, but not limited to: (i) Preventing
or removing water from contact with toxic producing deposits; (ii)
treating drainage to reduce toxic content which adversely affects
downstream water upon being released to water courses; and (iii)
casing, sealing or otherwise managing boreholes, shafts and wells
and keep acid or other toxic drainage from entering ground and
surface waters; (B) conducting surface mining operations so as to
prevent to the extent possible, using the best technology currently
available, additional contributions of suspended solids to
streamflow or runoff outside the permit area, but in no event may
contributions be in excess of requirements set by applicable state
or federal law; (C) constructing an approved drainage system
pursuant to paragraph (B) of this subdivision, prior to
commencement of surface mining operations, the system to be
certified by a person approved by the director to be constructed as
designed and as approved in the reclamation plan; (D) avoiding
channel deepening or enlargement in operations requiring the
discharge of water from mines; (E) unless otherwise authorized by
the director, cleaning out and removing temporary or large settling ponds or other siltation structures after disturbed areas are
revegetated and stabilized, and depositing the silt and debris at
a site and in a manner approved by the Director; (F) restoring
recharge capacity of the mined area to approximate premining
conditions; and (G) any other actions prescribed by the Director;
(11) (12) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine working excavations, stabilize all waste piles in
designated areas through construction in compacted layers,
including the use of noncombustible and impervious materials if
necessary, and assure the final contour of the waste pile will be
compatible with natural surroundings and that the site will be
stabilized and revegetated according to the provisions of this
article;
(12) (13) Design, locate, construct, operate, maintain,
enlarge, modify and remove or abandon, in accordance with standards
and criteria developed pursuant to subsection (f) of this section,
all existing and new coal mine waste piles consisting of mine
wastes, tailings, coal processing wastes or other liquid and solid
wastes, and used either temporarily or permanently as dams or
embankments;
(13) (14) Refrain from surface mining within five hundred feet
of any active and abandoned underground mines in order to prevent
breakthroughs and to protect health or safety of miners: Provided, That the Director shall permit an operator to mine near, through or
partially through an abandoned underground mine or closer to an
active underground mine if: (A) The nature, timing and sequencing
of the approximate coincidence of specific surface mine activities
with specific underground mine activities are coordinated jointly
by the operators involved and approved by the Director; and (B) the
operations will result in improved resource recovery, abatement of
water pollution or elimination of hazards to the health and safety
of the public: Provided, however, That any breakthrough which does
occur shall be sealed;
(14) (15) Ensure that all debris, acid-forming materials,
toxic materials or materials constituting a fire hazard are treated
or buried and compacted, or otherwise disposed of in a manner
designed to prevent contamination of ground or surface waters, and
that contingency plans are developed to prevent sustained
combustion: Provided, That the operator shall remove or bury all
metal, lumber, equipment and other debris resulting from the
operation before grading release;
(15) (16) Ensure that explosives are used only in accordance
with existing state and federal law and the rules promulgated by
the Director, which shall include provisions to:
(A) Maintain for a period of at least three years and make
available for public inspection, upon written request, a log
detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole and the order
and length of delay in the blasts; and
(B) Require that all blasting operations be conducted by
persons certified by the office of explosives and blasting.
(16) (17) Ensure that all reclamation efforts proceed in an
environmentally sound manner and as contemporaneously as
practicable with the surface mining operations. Time limits shall
be established by the Director requiring backfilling, grading and
planting to be kept current: Provided, That where surface mining
operations and underground mining operations are proposed on the
same area, which operations must be conducted under separate
permits, the Director may grant a variance from the requirement
that reclamation efforts proceed as contemporaneously as
practicable to permit underground mining operations prior to
reclamation:
(A) If the Director finds in writing that:
(i) The applicant has presented, as part of the permit
application, specific, feasible plans for the proposed underground
mining operations;
(ii) The proposed underground mining operations are necessary
or desirable to assure maximum practical recovery of the mineral
resource and will avoid multiple disturbance of the surface;
(iii) The applicant has satisfactorily demonstrated that the
plan for the underground mining operations conforms to requirements for underground mining in the jurisdiction and that permits
necessary for the underground mining operations have been issued by
the appropriate authority;
(iv) The areas proposed for the variance have been shown by
the applicant to be necessary for the implementing of the proposed
underground mining operations;
(v) No substantial adverse environmental damage, either
on-site or off-site, will result from the delay in completion of
reclamation as required by this article; and
(vi) Provisions for the off-site storage of spoil will comply
with subdivision (22), subsection (b) of this section;
(B) If the Director has promulgated specific rules to govern
the granting of the variances in accordance with the provisions of
this subparagraph and has imposed any additional requirements as
the director considers necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the director not more than three years
from the date of issuance of the permit: Provided, That the
underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the
permit was issued, unless extended as set forth in subdivision (3),
section eight of this article; and
(D) If liability under the bond filed by the applicant with
the director pursuant to subsection (b), section eleven of this article is for the duration of the underground mining operations
and until the requirements of subsection (g), section eleven and
section twenty-three of this article have been fully complied with;
(17) (18) Ensure that the construction, maintenance and post-
mining conditions of access and haul roads into and across the site
of operations will control or prevent erosion and siltation,
pollution of water, damage to fish or wildlife or their habitat, or
public or private property: Provided, That access roads
constructed for and used to provide infrequent service to surface
facilities, such as ventilators or monitoring devices, are exempt
from specific construction criteria provided adequate stabilization
to control erosion is achieved through alternative measures;
(18) (19) Refrain from the construction of roads or other
access ways up a stream bed or drainage channel or in proximity to
the channel so as to significantly alter the normal flow of water;
(19) (20) Establish on the regraded areas, and all other lands
affected, a diverse, effective and permanent vegetative cover of
the same seasonal variety native to the area of land to be affected
or of a fruit, grape or berry producing variety suitable for human
consumption and capable of self-regeneration and plant succession
at least equal in extent of cover to the natural vegetation of the
area, except that introduced species may be used in the
revegetation process where desirable or when necessary to achieve
the approved post-mining land use plan;
(20) (21) Assume the responsibility for successful
revegetation, as required by subdivision (19) of this subsection,
for a period of not less than five growing seasons, as defined by
the Director, after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance
with subdivision (19) of this subsection: Provided, That when the
director issues a written finding approving a long-term
agricultural post-mining land use as a part of the mining and
reclamation plan, the Director may grant exception to the
provisions of subdivision (19) of this subsection: Provided,
however, That when the Director approves an agricultural post-
mining land use, the applicable five growing seasons of
responsibility for revegetation begins on the date of initial
planting for the agricultural post-mining land use;
On lands eligible for remining assume the responsibility for
successful revegetation, as required by subdivision (19) of this
subsection, for a period of not less than two growing seasons, as
defined by the director after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance
with subdivision (19) of this subsection;
(21) (22) Protect off-site areas from slides or damage
occurring during surface mining operations and not deposit spoil
material or locate any part of the operations or waste
accumulations outside the permit area: Provided, That spoil material may be placed outside the permit area, if approved by the
Director after a finding that environmental benefits will result
from the placing of spoil material outside the permit area;
(22) (23) Place all excess spoil material resulting from
surface-mining activities in a manner that: (A) Spoil is
transported and placed in a controlled manner in position for
concurrent compaction and in a way as to assure mass stability and
to prevent mass movement; (B) the areas of disposal are within the
bonded permit areas and all organic matter is removed immediately
prior to spoil placements; (C) appropriate surface and internal
drainage system or diversion ditches are used to prevent spoil
erosion and movement; (D) the disposal area does not contain
springs, natural water courses or wet weather seeps, unless lateral
drains are constructed from the wet areas to the main under drains
in a manner that filtration of the water into the spoil pile will
be prevented; (E) if placed on a slope, the spoil is placed upon
the most moderate slope among those upon which, in the judgment of
the director, the spoil could be placed in compliance with all the
requirements of this article, and is placed, where possible, upon,
or above, a natural terrace, bench or berm, if placement provides
additional stability and prevents mass movement; (F) where the toe
of the spoil rests on a downslope, a rock toe buttress, of
sufficient size to prevent mass movement, is constructed; (G) the
final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses; (H) the design of
the spoil disposal area is certified by a qualified registered
professional engineer in conformance with professional standards;
and (I) all other provisions of this article are met: Provided,
That where the excess spoil material consists of at least eighty
percent, by volume, sandstone, limestone or other rocks that do not
slake in water and will not degrade to soil material, the director
may approve alternate methods for disposal of excess spoil
material, including fill placement by dumping in a single lift, on
a site specific basis: Provided, however, That the services of a
qualified registered professional engineer experienced in the
design and construction of earth and rockfill embankment are
utilized: Provided further, That the approval may not be
unreasonably withheld if the site is suitable;
(23) (24) Meet any other criteria necessary to achieve
reclamation in accordance with the purposes of this article, taking
into consideration the physical, climatological and other
characteristics of the site;
(24) (25) To the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife and related environmental values,
and achieve enhancement of these resources where practicable; and
(25) (26) Retain a natural barrier to inhibit slides and
erosion on permit areas where outcrop barriers are required: Provided, That constructed barriers may be allowed where: (A)
Natural barriers do not provide adequate stability; (B) natural
barriers would result in potential future water quality
deterioration; and (C) natural barriers would conflict with the
goal of maximum utilization of the mineral resource: Provided,
however, That at a minimum, the constructed barrier shall be of
sufficient width and height to provide adequate stability and the
stability factor shall equal or exceed that of the natural outcrop
barrier: Provided further, That where water quality is paramount,
the constructed barrier shall be composed of impervious material
with controlled discharge points.
(c) (1) The Director may prescribe procedures pursuant to
which he or she may permit surface mining operations for the
purposes set forth in subdivision (3) of this subsection.
(2) Where an applicant meets the requirements of subdivisions
(3) and (4) of this subsection, a permit without regard to the
requirement to restore to approximate original contour set forth in
subsection (b) or (d) of this section may be granted for the
surface mining of coal where the mining operation will remove an
entire coal seam or seams running through the upper fraction of a
mountain, ridge or hill, except as provided in subparagraph (A),
subdivision (4) of this subsection, by removing all of the
overburden and creating a level plateau or a gently rolling contour
with no highwalls remaining, and capable of supporting post-mining uses in accordance with the requirements of this subsection.
(3) In cases where an industrial, commercial, agricultural,
commercial forestry, residential, or public facility including
recreational uses is proposed for the post-mining use of the
affected land, the Director may grant a permit for a surface mining
operation of the nature described in subdivision (2) of this
subsection where: (A) The proposed post-mining land use is
determined to constitute an equal or better use of the affected
land, as compared with premining use; (B) the applicant presents
specific plans for the proposed post-mining land use and
appropriate assurances that the use will be: (i) Compatible with
adjacent land uses; (ii) practicable with respect to achieving the
proposed use; (iii) obtainable according to data regarding expected
need and market; (iv) supported by commitments from public agencies
where appropriate; (v) practicable with respect to private
financial capability for completion of the proposed use; (vi)
planned pursuant to a schedule attached to the reclamation plan so
as to integrate the mining operation and reclamation with the
post-mining land use; and (vii) designed by a person approved by
the director in conformance with standards established to assure
the stability, drainage and configuration necessary for the
intended use of the site; (C) the proposed use would be compatible
with adjacent land uses, and existing state and local land use
plans and programs; (D) the Director provides the county commission of the county in which the land is located and any state or federal
agency which the Director, in his or her discretion, determines to
have an interest in the proposed use, an opportunity of not more
than sixty days to review and comment on the proposed use; and (E)
all other requirements of this article will be met.
(4) In granting any permit pursuant to this subsection, the
director shall require that: (A) A natural barrier be retained to
inhibit slides and erosion on permit areas where outcrop barriers
are required: Provided, That constructed barriers may be allowed
where: (i) Natural barriers do not provide adequate stability;
(ii) natural barriers would result in potential future water
quality deterioration; and (iii) natural barriers would conflict
with the goal of maximum utilization of the mineral resource:
Provided, however, That, at a minimum, the constructed barrier
shall be sufficient in width and height to provide adequate
stability and the stability factor shall equal or exceed that of
the natural outcrop barrier: Provided further, That where water
quality is paramount, the constructed barrier shall be composed of
impervious material with controlled discharge points; (B) the
reclaimed area is stable; (C) the resulting plateau or rolling
contour drains inward from the outslopes except at specific points;
(D) no damage will be done to natural watercourses; (E) spoil will
be placed on the mountaintop bench as is necessary to achieve the
planned post-mining land use: And provided further, That all excess spoil material not retained on the mountaintop shall be
placed in accordance with the provisions of subdivision (22),
subsection (b) of this section; and (F) ensure stability of the
spoil retained on the mountaintop and meet the other requirements
of this article.
(5) All permits granted under the provisions of this
subsection shall be reviewed not more than three years from the
date of issuance of the permit; unless the applicant affirmatively
demonstrates that the proposed development is proceeding in
accordance with the terms of the approved schedule and reclamation
plan.
(d) In addition to those general performance standards
required by this section, when surface mining occurs on slopes of
twenty degrees or greater, or on lesser slopes as may be defined by
rule after consideration of soil and climate, no debris, abandoned
or disabled equipment, spoil material or waste mineral matter will
be placed on the natural downslope below the initial bench or
mining cut: Provided, That soil or spoil material from the initial
cut of earth in a new surface mining operation may be placed on a
limited specified area of the downslope below the initial cut if
the permittee can establish to the satisfaction of the director
that the soil or spoil will not slide and that the other
requirements of this section can still be met.
(e) The Director may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code,
that permit variances from the approximate original contour
requirements of this section: Provided, That the watershed control
of the area is improved: Provided, however, That complete
backfilling with spoil material is required to completely cover the
highwall, which material will maintain stability following mining
and reclamation.
(f) The Director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, for the design, location, construction, maintenance,
operation, enlargement, modification, removal and abandonment of
new and existing coal mine waste piles. In addition to engineering
and other technical specifications, the standards and criteria
developed pursuant to this subsection shall include provisions for
review and approval of plans and specifications prior to
construction, enlargement, modification, removal or abandonment;
performance of periodic inspections during construction; issuance
of certificates of approval upon completion of construction;
performance of periodic safety inspections; and issuance of notices
and orders for required remedial or maintenance work or affirmative
action: Provided, That whenever the Director finds that any coal
processing waste pile constitutes an imminent danger to human life,
he or she may, in addition to all other remedies and without the
necessity of obtaining the permission of any person prior or present who operated or operates a pile or the landowners involved,
enter upon the premises where any coal processing waste pile exists
and may take or order to be taken any remedial action that may be
necessary or expedient to secure the coal processing waste pile and
to abate the conditions which cause the danger to human life:
Provided, however, That the cost reasonably incurred in any
remedial action taken by the Director under this subsection may be
paid for initially by funds appropriated to the division for these
purposes, and the sums expended shall be recovered from any
responsible operator or landowner, individually or jointly, by suit
initiated by the Attorney General at the request of the Director.
For purposes of this subsection "operates" or "operated" means to
enter upon a coal processing waste pile, or part of a coal
processing waste pile, for the purpose of disposing, depositing,
dumping coal processing wastes on the pile or removing coal
processing waste from the pile, or to employ a coal processing
waste pile for retarding the flow of or for the impoundment of
water.
NOTE: The purpose of this bill is to require areas subject to
surface mining to be reclaimed by planting hardwood saplings after
providing eight feet of topsoil.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.