H. B. 2063
(By Delegates Douglas and Faircloth)
[Introduced January 18, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact article four, chapter twenty-two of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to revising the statutes on
noncoal mineral extraction operations, including short
title, legislative findings, intent and purpose; definition
of terms; conflict of interest prohibited; cooperative
efforts by the division; qualifications of inspectors and
supervisors; duties of inspectors; promulgation of
legislative rules; noncoal surface-mining advisory council
created; permit to engage in noncoal mineral surface mining
required; permit modification; preplans; installation drainage system; alternative plans, bond release, planting
plan required; areas unsuitable for noncoal surface mining
operation; writ of mandamus; prohibition of such operation
within certain distances of public or private property;
blasting restrictions; time in which reclamation shall be
done; obligations of the operator; suspension of operation;
criminal and civil penalties; appeals to the reclamation
board of review, injunctive relief; completion of planting;
performance bonds; exemption of highway construction
projects from reclamation requirements; supervision of
operations; monthly report by operator, noncoal special
reclamation fund; findings by director; appeals of order of
the board; permit conversion; transfer, assignment or sale
of a valid noncoal surface-mining permit; and certification
of noncoal surface miners and foremen.
Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER
THAN COAL.
§22-4-1. Short title.
This article shall be known and cited as the "West Virginia
Noncoal Surface-Mining Act."
§22-4-2. Legislative findings, intent and purpose.
The Legislature hereby finds that some of the activities
associated with noncoal surface mining in West Virginia, although
a vital industry that is an important part of the state's
economy, may result in adverse environmental impacts, including,
but not limited to, acid soil conditions, surface water
pollution, potential ground water pollution, lowered property
values of adjacent lands.
The Legislature further finds that past noncoal
surface-mining practices have occasionally resulted in
unreclaimed, orphaned mine sites which demonstrate some of the
adverse effects of noncoal surface mining, which are hazards to
public health and safety.
Therefore, it is the intent of the Legislature to strengthen
and extend its present noncoal surface-mining controls by vesting
jurisdiction and authority for regulating noncoal surface-mining
activity in the division of environmental protection of the department of commerce, labor and environmental resources; by
providing for procedures to minimize adverse effects of such
activity on the environment; by prohibiting noncoal surface
mining in certain unsuitable areas, as specified in section
fifteen of this article; and by repairing hazardous orphaned
noncoal surface-mining sites so that they may once again become
a productive part of the West Virginia landscape. This article
is intended to protect the environment of the state and the
health and safety of the public, and shall be liberally construed
in a manner to accomplish the Legislature's intent.
§22-4-3. Definitions.
As used in this article, unless otherwise provided or
indicated by the context:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods so that the treated
water will not violate applicable effluent limitations,
established for the state generally, or any applicable water
quality standards established specifically for any river, stream,
groundwater or drainway into which such water is released.
(b) "Breakthrough" means the release of water which has been trapped or impounded underground, or the release of air into any
underground cavity, pocket or area.
(c) "Director" means the director of the division of
environmental protection of the department of commerce, labor and
environmental resources, or his or her authorized agents.
(d) "Disturbed land" or "land disturbed" means (1) the area
from which the overburden has been removed in surface-mining
operation, (2) the area covered by the spoil, and (3) any areas
used in surface-mining operations which by virtue of their use
are susceptible to excessive erosion including all lands
disturbed by the construction or improvement of haulageways,
roads or trails.
(e) "Minerals" means natural deposits found on or in the
earth, whether consolidated or loose, and including clay,
flagstone, gravel, limestone, manganese, sand, sandstone, shale,
chert, flint, dolomite, iron ore and any other metal or
metallurgical ore:
Provided, That the term "minerals," as used
in this article, does not include coal.
(f) "Operator" means any individual, partnership, firm,
association, trust or corporation who or which is granted or should obtain a permit to engage in any activity covered by this
article.
(g) "Orphaned lands" means those areas disturbed by the
noncoal surface mining, and subsequently abandoned, which were
not required by law to be reclaimed or which have not been
reclaimed due to the operation being terminated without
reclamation being accomplished.
(h) "Permit area" means the area of land indicated on the
approved map submitted by the operator with the reclamation plan
as specified in section twelve of this article showing the exact
location of end strip markers, permit markers and monuments.
(i) "Person" means any individual, partnership, firm,
association, trust or corporation.
(j) "Reclamation" means the rehabilitation for useful
purposes of land disturbed by noncoal surface mining, including
any practices necessary for the protection of the natural
resources, including both on lands or waters, of the surrounding
area.
(k) "Significant revision" means any revision to a permit
which could result in an adverse impact on the environment or on the welfare and safety of the public in a degree or manner
different from that reflected in the approved permit.
(l) "Spoil" means overburden and waste material removed and
placed elsewhere during noncoal surface mining operations.
(m) "Surface mine" means all areas surface mined or being
surface mined, as well as adjacent areas ancillary to the
operation, together with preparation and processing plants,
storage areas, haulageways, roads and trails, and the surface
impacts incident to underground mining.
(n) "Surface mining" means all activity for the recovery of
minerals, and all plants and equipment used in processing said
minerals and the surface impacts incident to underground mining:
Provided, That the storage or processing of minerals when
comprising an integral part of a manufacturing process is not
considered surface-mining activity and does not require
permitting.
(o) "Underground mining" means surface disturbance or the
surface effects associated with excavations penetrating or
exposing for penetrating noncoal mineral deposits or strata and
the equipment connected therewith which contributes directly or indirectly to the mining, preparation or handling of materials.
§22-4-4. Conflict of interest prohibited.
No public officer or employee in the division of
environmental protection or office of attorney general, having
responsibility or duty either directly or of a supervisory nature
with respect to the administration or enforcement of this article
may: (1) Engage in noncoal surface mining as a sole proprietor
or as a partner or be an officer, director, stockholder, owner or
part owner of any corporation or other business entity engaged in
noncoal surface mining; or (2) be employed as an attorney, agent
or in any other capacity by any person, partnership, firm,
association, trust or corporation engaged in noncoal surface
mining. Any violation of this section by any such public officer
or employee, unless deemed acceptable by a ruling of the West
Virginia ethics commission, may constitute grounds for removal
from office or dismissal from employment, as the case may be.
§22-4-5. Cooperative efforts by the division of environmental
protection.
The director may cooperate with local, county or state
government agencies, of this state or other states, or with
agencies of the federal government, and may reasonably compensate them for such services. The director may also accept any federal
funds, state funds or any other funds for the reclamation of land
affected by noncoal surface mining.
§22-4-6. Noncoal surface-mining inspectors, supervisors and
other employees; appointment and qualifications.
The division may employ such noncoal surface-mining
inspectors, supervisors and other personnel as deemed necessary
by the division to carry out the purposes of this article. All
such employees shall be eligible under the classified service,
administered by the division of personnel of the department of
administration.
§22-4-7. Duties of noncoal surface-mining inspectors.
The surface-mining reclamation inspectors shall make all
necessary surveys and inspections of surface-mining operations,
shall administer and enforce all surface-mining laws and rules
and shall perform such other duties and services as may be
prescribed by the director. Such inspectors shall give
particular attention to all conditions of each permit to ensure
complete compliance therewith. The director shall cause
inspections to be made of each active surface-mining operation in this state by a surface-mining reclamation inspector at least
once every thirty days or as often as necessary to ensure
compliance with this article and rules promulgated thereunder.
The inspector shall note and describe violations of this article
and immediately report such violations to the director in
writing, furnishing at the same time a copy of such report to the
operator concerned.
§22-4-8. Promulgation of legislative rules.
The director is hereby authorized, subject to prior review
by the noncoal surface-mining advisory council, to promulgate
legislative rules as deemed necessary and appropriate for the
effective administration of this article. Such rules shall be
promulgated in accordance with the provisions of article three,
chapter twenty-nine-a of the code:
Provided, That rules
promulgated by the director as authorized by this article may be
promulgated as emergency legislative rules in accordance with
section fifteen, article three, chapter twenty-nine-a of this
code.
§22-4-9. Noncoal surface-mining advisory council created.
There is hereby created an advisory council to be known and designated as the "West Virginia Noncoal Surface-Mining Advisory
Council" which shall consist of five members to be appointed by
the governor with the advice and consent of the Senate. Members
of the council shall be residents of the state for at least three
years prior to their appointment. Two of the members shall be
noncoal surface-mine operators who hold or have held a valid
noncoal surface-mining permit for a minimum of five years. Two
members shall be representatives of an active statewide
environmental organization. One member shall be a
citizen-at-large.
The governor shall select the members representing
environmental organizations from a list of ten nominees submitted
collectively by statewide environmental organizations.
The governor shall select the members representing noncoal
surface-mining operators from a list of ten nominees, who meet
the qualifications set forth in this article, submitted
collectively by trade associations which represent the noncoal
surface-mining industry.
No more than three members of the council may be from the
same political party.
The governor shall appoint members of the advisory council
within sixty days from the effective date of this article.
One representative of a statewide environmental organization
and one of the noncoal surface-mining operators appointed to the
council shall serve for a term expiring on the thirtieth day of
June, one thousand nine hundred ninety-six. The other
representative of a statewide environmental organization and the
citizen-at-large appointed to the council shall serve for a term
expiring on the thirtieth day of June, one thousand nine hundred
ninety-eight. The other noncoal surface-mining operator
appointed to the council shall serve for a term expiring on the
thirtieth day of June, one thousand nine hundred ninety-nine.
All subsequent appointments shall be for a term of three years.
In the event of a vacancy on the council before the expiration of
a term, the governor shall, within sixty days, appoint a
qualified person to fill the vacancy for the unexpired term. If
the governor fails to fill the vacancy within the specified time,
the council may appoint a qualified person to fill the vacancy.
No member may serve more than two terms, consecutively. The
governor may remove any member of the advisory council for official misconduct.
The director of the division of environmental protection, or
his or her duly appointed agent shall serve as a nonvoting ex
officio member of the council and serve as the chairperson of the
council. The council shall meet to conduct appropriate business
during the first month of each fiscal year. Other meetings may
be conducted as needed upon the call of the chairperson:
Provided, That the council may conduct an organizational meeting
at any time within sixty days after the initial appointment. A
majority of the members of the council, including the chairperson
shall constitute a quorum.
Members of the advisory council shall receive a per diem of
one hundred dollars for each day engaged in the performance of
his or her official duties as members of the council. Such
members shall also receive reimbursement for reasonable and
necessary expenses actually incurred in the performance of such
duties. Compensation and expenses for members of the council
shall be paid from the noncoal special reclamation fund created
in section twenty-six of this article.
The advisory council shall review all rules promulgated by the director and shall advise the director generally on matters
relating to noncoal surface mining. Additionally the council
shall approve the priority listing of orphaned lands for
reclamation. All meetings of the advisory council shall be open
to the public and shall be advertised in the West Virginia
Register and as a Class III legal advertisement in a newspaper of
general circulation in the location where such meeting is to be
held. The council shall allow opportunity for public comment, if
requested, for items taken under consideration by the council,
with respect to noncoal surface-mining policies.
The advisory council is not liable for civil action as a
result of any act performed in good faith in the exercising of
its duties as prescribed by law.
§22-4-10. Permit required; applications; issuance and renewals;
fees and use of proceeds.
It is unlawful for any person to engage in surface mining
without having first obtained from the division a permit therefor
as provided in this section. Application for a noncoal
surface-mining permit shall be made in writing on forms
prescribed by the director, and shall be signed and verified by the applicant. The application, in addition to such other
information as may be reasonably required by the director, shall
contain the following information: (1) The common name and
geologic title, where applicable, of the mineral or minerals to
be extracted; (2) maps and plans as provided in section twelve
hereof; (3) the owner or owners of the surface of the land to be
mined; (4) the owner or owners of the mineral to be mined; (5)
the source of the operator's legal right to enter and conduct
operations on the land to be covered by the permit:
Provided,
That nothing in this article may be construed as vesting in the
division the jurisdiction to adjudicate property rights disputes;
(6) a reasonable estimate of the number of acres of land that
will be disturbed by mining on the area to be covered by the
permit; (7) the permanent and temporary post-office addresses of
the applicant and of the owners of the surface and the mineral;
(8) whether any surface-mining permits are now held and the
numbers thereof; (9) the names and post-office addresses of every
officer, partner, director (or person performing a similar
function), of the applicant, together with all persons, if any,
owning of record or beneficially (alone or with associates), if known, ten percent or more of any class of stock of the
applicant:
Provided, however, That if such list be so large as
to cause undue inconvenience, the director may waive the
requirements that such list be made a part of such application,
except the names and current addresses of every officer, partner,
director and applicant must accompany such application; (10) if
known, whether applicant, any subsidiary or affiliate or any
person controlled by or under common control with applicant, or
any person required to be identified by item (9) above, has ever
had a surface-mining permit for coal or noncoal extraction issued
under the laws of this state revoked or has ever had a coal or
noncoal surface-mining bond, or security deposited in lieu of
bond, forfeited; and (11) names and addresses of the reputed
owner or owners of all surface area within five hundred feet of
any part of proposed disturbed land, which such owners shall be
notified by registered or certified mail of such application and
such owners shall be given ten days within which to file written
objections thereto, if any, with the director. There shall be
attached to the application a certificate of insurance issued by
an insurance company authorized to do business in this state covering all surface-mining operations of the applicant in this
state and affording personal injury protection in an amount not
less than three hundred thousand dollars and property damage
including blasting damage, protection in an amount of not less
than five hundred thousand dollars. Proof of continuing
insurance shall be required on an annual basis:
Provided
further, That blasting insurance shall not be required for
operations that do not conduct blasting operations.
The director shall, upon receipt of the application for a
permit, cause to be published, as a Class III legal advertisement
in accordance with the provisions of article three, chapter
fifty-nine of this code, a notice of the application for the
permit. Such notice shall contain in abbreviated form the
information required by this section, together with the
director's statement that written protests to such application
will be received by him or her until a specified date, which date
shall be at least thirty days after the first publication of the
notice.
The publication area of the notices required by this section
shall be the county or counties in which the proposed permit area is located. The cost of all publications required by this
section shall be borne by the applicant.
Upon the filing of an application in proper form,
accompanied by the fees and bond required by this article and the
certificate of insurance, and after consideration of the merits
of the application and written protests, if any, the director may
issue the permit applied for if the applicant has complied with
all of the provisions of this article. If the director finds
that the applicant is or has been affiliated with or managed or
controlled by, or is or has been under the common control of,
other than as an employee, a person who or which has had a
surface-mining permit revoked or bond or other security forfeited
for failure to reclaim lands as required by the laws of this
state, he or she may not issue a permit to the applicant:
Provided, That any person who has had a permit revoked or
forfeited, or has forfeited bond or other property for activities
associated with any type of mining operation, may not be granted
a permit to engage in noncoal surface-mining operations unless he
or she has corrected any violation causing such revocation or
forfeiture, according to applicable provisions of the code and applicable rules governing such other mining operations.
A permit may be issued to an applicant if, after the
revocation or forfeiture, either the applicant or the operator
whose permit has been revoked or bond forfeited has petitioned
for reinstatement and has paid into the noncoal special
reclamation fund the sum of money determined by the division, to
be adequate to reclaim the disturbed area and the division is
satisfied that the petitioner will hereafter comply with the
provisions of this article and other applicable rules.
The application fee for all permits for surface mining is
seven hundred dollars. The permit is valid for five years from
its date of issue. Upon verified application, containing such
information as the director may reasonably require, accompanied
by such fees and bond as are required by this article, and a
certificate of insurance as aforesaid, the director may renew a
permit following the five year anniversary an approved permit if
the operation is in compliance with the provisions of this
article. The fee for a permit renewal is seven hundred dollars.
The permittee shall submit the required renewal fee on each five
year anniversary date of the permit issuance.
Any person holding a valid noncoal surface-mining permit
may apply for a renewal of the permit by submitting, to the
division, an application for renewal as furnished by the
division. The applicant is not required to resubmit information
previously submitted if the applicant states in writing that such
information has not changed since the time the original
application was submitted and any subsequent applications for
modification thereof.
Upon reviewing the application which shall be accompanied by
a renewal fee of seven hundred dollars and any other fees
including bond as are required by this article, and certificate
of insurance, the director shall renew the permit, if the
operation is in compliance with the provisions of this article.
Application for permit renewal shall be made at least one hundred
twenty days prior to the expiration of the permit. The applicant
applying for a renewal, following the submission of the completed
application for renewal and fees, may continue noncoal
surface-mining and reclamation operations in accordance with the
last approved mining and reclamation plan of the current permit
until the application for permit renewal is granted or denied.
If the applicant demonstrates that a specific longer term is
reasonably needed to allow the applicant to obtain necessary
financing for equipment or the opening of the operation, the
director may extend a permit for such longer term:
Provided, That
if such specified longer term is granted, the permittee shall
submit the required renewal fee of seven hundred dollars on each
five year anniversary date of permit issuance.
The permit of any operator who fails to pay any fees
provided for in this article shall be revoked.
All application and renewal fees for surface mining shall be
collected by the director and shall be deposited with the
treasurer of the state of West Virginia to the credit of the
operating permit fees fund and shall be used, upon requisition of
the director, for the administration of this article:
Provided,
That a portion of the permit renewal fees, not less than
twenty-five percent, shall be credited to the noncoal special
reclamation fund established under this article.
§22-4-11. Permit modification.
Any person holding a valid noncoal surface-mining permit
may, at any time during the term of the permit, apply for a modification of the permit by submitting, to the division, an
application for permit modification:
Provided, That the
applicant is not required to resubmit information previously
submitted if the applicant states in writing that such
information has not changed since the original application was
submitted:
Provided, however, That no modification may extend
the expiration date of the permit that is being modified:
Provided further, That in lieu of a modification, a permittee may
apply for a new permit in the manner prescribed in section ten of
this article.
An application for a significant revision of a permit is
subject to all requirements of this article and rules promulgated
pursuant thereto.
Any addition to an area covered by the permit, except
boundary revisions which will not cause adverse environmental
impacts or adversely affect the health and safety of the public,
shall be made by application for a new permit for the additional
area.
Application for permit modification shall be accompanied by
a fee in the amount of two hundred dollars, which shall be credited to the noncoal special reclamation fund.
If, upon inspection of a noncoal surface-mining operation,
the director determines that land affected by noncoal
surface-mining activity conducted under the mining and
reclamation plan submitted for the permit fails to meet the
purposes set forth in section two of this article, the director
may require modification of the permit by: (1) Notifying the
permittee in writing of the division's decision which shall
explain modifications deemed necessary to accomplish the original
goals of the permit; and (2) the permittee's right to have a
hearing on the proposed modification within no less than ten nor
more than thirty days after the date the notice was issued,
unless the permittee and the division mutually agree on another
date.
Application fees for permit modifications do not apply to
permit modifications mandated by the division.
§22-4-12. Preplans.
Under the provisions of this article, and rules promulgated
thereunder, the operator shall prepare a complete mining and
reclamation plan for the land to be disturbed. The mining and reclamation plan shall include a proposed method of operation,
prepared by a registered professional civil or mining engineer or
a person who is qualified based on standards developed in rules
promulgated by the director and who requests and receives
approval by the director, for grading, backfilling, soil
preparation, mining and planting and such other proposals as may
be necessary to develop the complete mining and reclamation plan
contemplated by this article. In developing this complete mining
and reclamation plan all reasonable measures shall be taken to
eliminate damages to any person, his or her real and personal
property, public roads, streams and all other public property
from soil erosion, rolling stones and overburden, water
pollution, breakthroughs and other hazards dangerous to life and
property.
The preplan shall include copies of an enlarged topographic
map meeting the requirements of the subdivisions below.
The maps shall:
(a) Be prepared and certified by or under the supervision of
a registered professional civil engineer, or a registered
professional mining engineer, or a registered land surveyor, who shall submit to the director a certificate of registration as a
qualified engineer or land surveyor;
(b) Identify the area to correspond with the application;
(c) Show probable limits of adjacent underground-mining
operations, probable limits of adjacent inactive or mined-out
underground-mined areas and the boundaries of surface properties
and names of surface and mineral owners of the surface area
within five hundred feet of any part of the proposed disturbed
area;
(d) Be of such scale as may be prescribed by the director;
(e) Show the names and locations of all streams, creeks or
other bodies of public water, roads, buildings, cemeteries,
active, abandoned or plugged oil and gas wells, and utility lines
on the area of land to be disturbed and within five hundred feet
of such area;
(f) Show by appropriate markings the boundaries of the area
of land to be disturbed, the crop line of the mineral seam to be
mined, if any, and the total number of acres involved in the area
of land to be disturbed;
(g) Show the date on which the map was prepared, the north point and the quadrangle sketch and exact location of the
operation;
(h) Show the drainage plan on and away from the area of land
to be disturbed. Such plan shall indicate the directional flow
of water, constructed drainways, natural waterways used for
drainage, and the streams or tributaries receiving or to receive
this discharge. Upon receipt of such drainage plan, the director
may furnish to the chief of the water resources section of the
division of environmental protection a copy of all information
required by this subdivision, as well as the names and locations
of all streams, creeks or other bodies of public water within
five hundred feet of the area to be disturbed;
(i) Show the presence of any materials which when present in
the overburden, may cause spoil with a pH factor which will
prevent effective revegetation. The director shall promulgate
legislative rules establishing the appropriate soil amendments
required to establish effective vegetation. The presence of such
materials, wherever occurring in significant quantity, shall be
indicated on the map filed with the application for permit.
The operator shall also indicate the manner in which all permanent overburden disposal sites will be stabilized.
The certification of the maps shall read as follows: "I,
the undersigned, hereby certify that this map is correct, and
shows to the best of my knowledge and belief all the information
required by the surface-mining laws of this state." The
certification shall be signed and notarized. The director may
reject any map as incomplete if its accuracy is not so attested.
In addition to the information and maps required above, each
application for a permit shall be accompanied by a detailed
reclamation plan as required by this article.
A monument as prescribed by the division of environmental
protection shall be placed in an approved location near the
operation. If the operations under a single permit are not
geographically contiguous, the operator shall locate additional
monuments and submit additional maps before mining other areas.
Upon an order of the director, the operator shall, within
thirty days after service of a copy of the order upon the
operator by certified United States mail, furnish to the division
of environmental protection four copies of a progress map
prepared by or under the supervision of a registered professional civil engineer or registered professional mining engineer, or by
a registered land surveyor, showing the area disturbed by
operations to the date of the map. The progress map shall
contain information identical to that required for both the
proposed and final maps, required by this article, and shall show
in detail completed reclamation work, as required by the
director. The progress map shall include a geologic survey
sketch showing the location of the operation, shall be properly
referenced to a permanent landmark, and shall be within such
reasonable degree of accuracy as may be prescribed by the
director. If no land has been disturbed by operations during the
preceding year, the operator shall notify the director of this
fact. A final map shall be submitted within sixty days after
completion of mining operations. Failure to submit maps or
notices at specified times shall cause the permit in question to
be suspended.
Those noncoal surface-mining operations which remove or
disturb strata that serve as aquifers which significantly ensure
the hydrologic balance of water use either on or off the mining
site shall establish monitoring sites to: (1) Record the quantity and quality of surface drainage above and below the mine
site as well as in the potential disturbed area; (2) record the
level, amount and samples of ground water and aquifers
potentially affected by the noncoal surface-mining operation and
also below the lowermost elevation permitted to be disturbed; (3)
record precipitation; and (4) maintain records of well logs and
borehole data. The monitoring data collection and analysis
required by this section shall be conducted according to
standards and procedures set forth by the director in order to
assure their reliability and validity.
§22-4-13. Installation of drainage system.
Prior to the beginning of noncoal surface-mining operations,
the operator shall complete and shall thereafter maintain a
drainage system including any necessary settling ponds in
accordance with the rules as promulgated by the director.
§22-4-14. Alternative plans; bond releases; planting plan
required.
An operator may propose alternative plans not calling for
backfilling where a water impoundment is desired, if such
restoration will be consistent with the purpose of this article. The plans shall be submitted to the director, and if the plans
are approved by the director and complied with within the time
limits as may be determined by him or her as being reasonable for
carrying out such plans, the backfilling requirements of this
article may be modified.
By rules promulgated by the director, time limits shall be
established requiring backfilling, grading and planting to be
kept current. All backfilling and grading shall be completed
before equipment necessary for such backfilling and grading is
moved from the operation.
If the operator or other person desires to conduct
underground mining upon the premises or use an underground-mine
opening for haulageways or other lawful purposes, the operator
may designate locations to be used for such purposes at which
places it will not be necessary to backfill as herein provided
until such underground mining or other use is completed, during
which time the bond on file for that portion of that operation
shall not be released. Such locations shall be described and
designated on the map required by the provisions of section
twelve of this article.
Where applicable, suitable soil material shall be used to
cover the surface of the regraded and backfilled area of
operation in an amount sufficient to support vegetation.
When the backfilling and grading have been completed and
approved by the director, the director shall release that portion
of the bond which was filed and designated to cover the
backfilling and grading requirements of this article, the
remaining portion of the bond in an amount equal to five hundred
dollars per acre, but not less than a total amount of ten
thousand dollars being retained by the treasurer until such time
as the planting and revegetation is done according to law and is
approved by the director, at which time the director shall
release the remainder of the bond.
All fill and cut slopes shall be seeded during the first
planting or seeding season after the construction of a haulageway
to the area. Upon abandonment of any haulageway, the haulageway
shall be seeded and every effort made to prevent its erosion by
means of culverts, waterbars or other devices required by the
director. In proper season, all regraded areas, fill and cut
slopes of the operation and haulageways shall be seeded and planted in a manner as prescribed by the director, as soil tests
indicate soil suitability and in accordance with accepted
agricultural and reforestation practices.
In any such area where surface mining is being conducted,
planting shall be required on all disturbed areas.
After the operation has been backfilled, graded and approved
by the director, the operator shall prepare or cause to be
prepared a final planting plan for the planting of trees, shrubs,
vines, grasses or legumes upon the area of the land affected in
order to provide a suitable vegetative cover. The seed or plant
mixtures, quantities, method of planting, type and amount of
lime, fertilizer and any other measures necessary to provide a
suitable vegetative cover shall be defined by the rules
promulgated by the director.
The planting called for by the final planting plan shall be
carried out in a manner so as to establish a satisfactory cover
of trees, shrubs, grasses, legumes or vines upon the disturbed
area covered by the planting plan within a reasonable period of
time. The planting shall be done by the operator or the operator
may contract in writing with a contractor approved by the director to have such planting done by such district or
contractor. The director shall not release the operator's bond
until all haulageways, roads and trails within the permit area
have been abandoned according to the provisions of this article
and the rules promulgated thereunder.
The purpose of this section is to require restoration of
land disturbed by surface mining to a desirable purpose and use.
The director may, in the exercise of his or her sound discretion
when not in conflict with such purpose, modify such requirements
to bring about a more desirable land use, including, but not
limited to, industrial sites, sanitary landfills, recreational
areas, building sites:
Provided, That the person or agency
making such modifications will execute contracts, post bond or
otherwise ensure full compliance with the provisions of this
section in the event the modified program is not carried to
completion within a reasonable length of time.
§22-4-15. Areas unsuitable for noncoal surface-mining
operations;
writ of mandamus.
(a) The Legislature finds specifically that there are
certain areas in the state of West Virginia which are impossible to reclaim either by natural growth or by technological activity
and that if noncoal surface mining is conducted in these certain
areas such operations may adversely impact surface water quality,
ground water quality, quantity of aquatic life, wildlife and
related environmental values, or cause landslides, the
accumulation of stagnant water, flooding, the destruction of land
for agricultural, residential, industrial or commercial purposes,
the destruction of aesthetic values, the destruction of
recreational areas and future use of the area and surrounding
areas, thereby destroying or impairing the health and property
rights of others, and in general creating hazards dangerous to
life and property so as to constitute an imminent and inordinate
peril to the welfare of the state, and that such areas shall not
be mined by noncoal surface-mining. Therefore, authority is
hereby granted for the director to exclude any such areas from
permits for proposed noncoal surface-mining operations.
(b) No application for a permit may be approved by the
director if there is found on the basis of the information set
forth in the application or from information available to the
director and made available to the applicant that there is probable cause to believe that the proposed method of operation,
backfilling, grading or reclamation of the affected area cannot
be carried out consistent with the purpose of this article.
(c) If the director finds that the overburden on any part of
the area of land described in the application for a permit is
such that experience in the state of West Virginia with a similar
type of operation upon land with similar overburden shows that
one or more of the following conditions cannot feasibly be
prevented: (1) Substantial deposition of sediment in stream
beds; (2) landslides; or (3) surface water or groundwater
pollution, the director may delete such part of the land
described in the application upon which such overburden exists.
(d) If the director finds that the operation will constitute
a hazard to a dwelling house, public building, school, church,
cemetery, commercial or institutional building, public road,
stream, lake or other public property, then he or she shall
delete such areas from the permit application before it can be
approved.
Whenever the director finds that ongoing noncoal
surface-mining operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this
section, he or she may order immediate cessation of such
operations and he or she shall take such other action or make
such changes in the permit as he or she may deem necessary to
avoid said described conditions.
The failure of the director to discharge the mandatory duty
imposed on him or her by this section is subject to a writ of
mandamus, in any court of competent jurisdiction by any private
citizen affected thereby.
§22-4-16. Prohibition of noncoal surface-mining operations
within a certain distance of public or private property.
The director may not give approval for any operator to
engage in noncoal surface-mining operations within one hundred
feet of: (1) Any cemetery; (2) the bank of any stream; (3) any
property line of any adjoining lands upon which the operator does
not have a right of entry; or (4) the outside right-of-way line
on any public road, except where mine access roads or haulage
roads join such right-of-way line:
Provided, That the director
may give approval for an operator to engage in noncoal
surface-mining operations within one hundred feet of a public road if after a public hearing on such operation is conducted and
the division has found that no significant adverse impact will
likely occur as a result of such operation:
Provided, however,
That the public hearing shall be conducted at or near the
location of the proposed operation. The director shall publish
a Class III legal advertisement in a newspaper of general
circulation in the county of the proposed operation stating the
time, date, location and purpose of the public hearing.
The director may not give approval for any operator to
engage in noncoal surface-mining operations within three hundred
feet of: (1) Any occupied dwelling house or commercial or
industrial building unless released by the owner thereof; (2) any
public building, school or community building; or (3) public
park:
Provided, That the distance restrictions aforesaid, unless
it would cause a real and imminent threat to the health and
safety of the public, cause significant environmental harm or
significantly degrade the existing use of the adjoining property,
does not apply to: (A) Ways used for ingress and egress to and
from the minerals as herein defined and the transportation of the
removed minerals; (B) appropriate screening terms; (C) drainage control structures; and (D) the dredging and removal of minerals
from the streams or watercourses of this state, when permitted.
§22-4-17. Blasting restrictions.
Where blasting of overburden or mineral is necessary, such
blasting shall be done in accordance with established principles,
as promulgated by rules by the director.
The director shall promulgate rules which shall set forth
requirements for blasting procedures, preblast surveys, adherence
to scaled distance formulas or compliance with maximum vibration
limits measured by a seismograph, airblast limits, waivers,
safety precautions, contents of the blast log book and the
certification of blasting personnel.
§22-4-18. Time in which reclamation shall be done.
An operator shall commence the reclamation of the area of
land disturbed by his or her operation in accordance with plans
previously approved by the director and to complete such
reclamation within no longer than twelve months after the
expiration of the permit, except that such grading, backfilling
and water-management practices as are approved in the plans shall
be kept current with the operations as defined by rules promulgated by the director and no permit or supplement to a
permit may be issued or renewed, if in the discretion of the
director, these practices are not current.
§22-4-19. Obligations of the operator.
In addition to the method of operation, grading, backfilling
and reclamation requirements of this article and rules adopted
pursuant thereto, the operator shall be required to:
(a) Dispose of, according to current rules, all materials
determined by the director to be acid-producing materials, or
materials constituting a fire hazard;
(b) Upon the completion of underground-mining operations,
seal off all underground-mining openings. The appropriate type
and design of seals for underground mining operations shall be
approved by the director prior to installation. Seals shall be
designed and certified by a registered professional civil or
mining engineer, land surveyor or a person who is qualified based
on standards developed in rules promulgated by the director and
who requests and receives approval by the director;
(c) Contain any breakthrough of acid water caused by the
operator:
Provided, That any breakthrough caused by the operator during the course of his or her operations shall be contained
immediately and reported immediately to the director. If the
breakthrough is one that allows air to enter a mine, the seal
shall either prevent any air from entering the mine by way of the
breakthrough, or prevent any air from entering the breakthrough
while allowing the water to flow from the breakthrough. If the
breakthrough is one that allows acid water to escape, such water
shall be captured and treated so that it meets applicable
effluent water quality standards. Seals shall be constructed of
stone, brick, block, earth or similar impervious materials which
are acid resistant. Any cement or concrete employed in the
construction of these seals shall also be of an acid resistant,
impervious type;
(d) Properly dispose of all metal, lumber, equipment and
other refuse resulting from the operation. No operator may
throw, dump or pile, or permit the throwing, dumping, piling or
otherwise placing of any overburden, stones, rocks, coal,
mineral, earth, soil, dirt, debris, trees, wood, logs or other
materials or substances of any kind or nature beyond or outside
the area of land which is under permit; nor may any operator place any of the foregoing listed materials in such a way that
normal erosion or slides brought about by natural physical causes
will permit the same to go beyond or outside the area of land
which is under permit.
Where excess spoil disposal is proposed, the operator shall
show on the map, filed with the application for a permit, the
percent of slope of original surface within each two-hundred foot
interval along the contour of the operation, the first
measurement to be taken at the starting point of the operation.
The flagged field measurement shall be made from the estimated
crop line of the proposed mineral seam down slope to the
estimated toe of the outer spoil. All reasonable measures shall
be taken so as not to overload the fill bench. No overburden
material in excess of the first cut may be placed over the fill
bench during the first cut. Trees and brush shall be removed
from all fill sections prior to excavation, and no trees or brush
removed from the cut section may be placed therein or thereon.
No excess spoil disposal areas may be produced on slopes of
more than thirty-six percent, except in specified fill areas
designated in the permit application and except for the construction of haulageways.
Lateral drainage ditches connecting to natural or
constructed waterways shall be constructed to control water
runoff and prevent erosion. There may be no depressions that
will accumulate water except those the director may specify and
approve.
Any operator shall replace the water supply of an owner of
interest in real property who obtains all or part of his or her
supply of water for domestic, agricultural, industrial or other
legitimate use from an underground or surface source where such
supply has been affected by contamination, diminution or
interruption proximately caused by noncoal surface-mining
operations unless waived by the owner.
Nothing in this article may be construed as affecting in any
way the right of any person to enforce or protect, under
applicable law, his or her interest in water resources affected
by a noncoal surface-mining operation.
Complete backfilling is required, not to exceed the
approximate original contour of the land. In accordance with the
approved mining and reclamation plan, the operator shall backfill, grade and compact, using all available overburden,
spoil and waste rock in such a manner to eliminate to the extent
possible all spoil peaks, depressions and highwalls. Whenever
directed by the director, the operator shall construct, in the
final grading, such diversion ditches or terraces as will control
the water runoff. Additional work may be required by the
director, according to rules promulgated by the director.
§22-4-20. Suspension of operation; informal conference;
imposition of affirmative obligations; appeals; notice of
violation; procedure and actions; enforcement; permit
revocation and bond forfeiture; civil and criminal
penalties; appeals to the reclamation board of review;
prosecution; injunctive relief.
(a) Notwithstanding any other provisions of this article,
the director may issue a suspension order for any noncoal
surface-mining operation or portion thereof when the director
determines that any condition or practice exists, or that any
permittee is in violation of any requirement of this article or
any permit condition required by this article, which condition,
practice or violation also creates an imminent danger to the
health or safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm to
land, air or water resources. The suspension order shall take
effect immediately. Unless waived in writing, an informal
conference shall be held at or near the site relevant to the
violation set forth in the suspension order within twenty-four
hours after the order becomes effective or such order shall
expire. The conference shall be held before an inspector
supervisor who shall, immediately upon conclusion of the hearing,
determine when and if the operation or portion thereof may
resume. Any operator who believes he or she is aggrieved by the
decision of the inspector supervisor may immediately appeal to
the director, setting forth reasons why the operation should not
be halted. The director shall, within three days, determine if
and under what conditions the operation or portion thereof may be
resumed.
(b) The suspension order shall remain in effect until the
director determines that the condition, practice or violation has
been abated, or until modified, vacated or released by the
director. If the director finds that the ordered suspension of
any portion of a noncoal surface-mining operation will not completely abate the imminent danger to health or safety of the
public or significant imminent environmental harm to land, air or
water resources, the director shall, in addition to the
suspension order, impose affirmative obligations on the operator
requiring him or her to take whatever steps the director deems
necessary to abate the imminent danger of the significant
environmental harm.
(c) Any suspension order issued pursuant to this section or
any other provision of this article may be released by the
director who shall be readily available to terminate a suspension
order upon abatement of the violation.
(d) If any of the requirements of this article, rules
promulgated pursuant thereto, permit conditions or orders of the
director have not been complied with, the director shall cause
notice of violation to be served upon the operator or his or her
duly authorized agent. A copy of the notice shall be handed to
the operator or his or her 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 promulgated thereunder, 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 two hundred and not more than one
thousand dollars per day per violation shall be assessed. A
cessation order shall remain 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
measure in the order.
(e) If the director determines that a pattern of three or
more violations of a same or similar nature within a twelve-month
period 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 may enter into a
consent agreement with the operator mandating the remedial
measures that the operator must accomplish within a reasonable
time period to come into and remain in compliance with this
article, the rules promulgated thereunder, and all permit
conditions:
Provided, That the operator must demonstrate that
sufficient resources are available to him or her to comply with
the requirements of the consent agreement. If no consent
agreement is reached or if the operator violates any condition of
the consent agreement, 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 subject to chapter twenty-nine-a of this code, as applicable. Within no more than 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
operator's bond, or other security posted pursuant to section
twenty-two 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 noncoal special reclamation fund.
(f) Any person engaged in noncoal 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
one thousand dollars per day. Each day of continuing violation may be deemed a separate violation for purposes of penalty
assessment. In determining the amount of the penalty,
consideration shall be given to the operator's history of
previous violations at the particular noncoal 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.
(g) Upon the issuance of 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
the 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 reclamation board of review 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 shall have fifteen days
from receipt of the assessment officer's decision to request a
formal hearing before the reclamation board of review.
(h) When an informal conference is held, the assessment
officer may affirm, modify or vacate the notice, order or
proposed penalty assessment.
(i) 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.
(j) 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 state treasury to the credit of the noncoal special
reclamation fund established in section twenty-six of this article. 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 for long
term securities, whichever is greater.
(k) Any person having an interest which is or may be
adversely affected by an order of the director or the board may
file an appeal only in accordance with the provisions of section
twenty-eight of this article, within thirty days after receipt of
the order.
(l) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section shall
not stay execution of the order appealed. 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 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
from an order for cessation of noncoal 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 he or she 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.
(m) Any person who willfully and knowingly conducts
surface-mining operations without a permit, 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 not more than one year, or both fined and
imprisoned.
(n) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, any rule 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 the provisions of this section.
(o) 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.
(p) Whenever any person: (1) Violated or failed or refused
to comply with any order or decision issued by the director under
this article; or (2) interferes with, hinders or delays the
director under this article; or (3) refuses to admit the director
to the mine; or (4) refuses to permit inspection of the mine by
the director; or (5) refuses to furnish any reasonable
information or report requested by the director in furtherance of
the provisions of this article; or (6) violates any other
provision of this article, rule 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 any 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.
(q) 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 less than one hundred
dollars nor more than ten thousand dollars or by imprisonment for
not more than one year, or both.
It is unlawful for the owner or owners of surface rights or
the owner or owners of mineral rights to interfere with the
operator in the discharge of his or her obligation to the state
for the reclamation of lands disturbed by him or her.
§22-4-21. Completion of planting; inspection and evaluation.
Within sixty days after the planting of an area has been
completed, the operator shall file or cause to be filed a
planting report with the director on a form to be prescribed and
furnished by the director, providing the following information:
(1) Identification of the operation; (2) the type of planting or seeding, including mixtures and amounts; (3) the date of planting
or seeding; (4) the area of land planted; and (5) such other
relevant information as the director may require. All planting
reports shall be certified by the operator, or by the party with
whom the operator contracted for such planting, as provided in
section twenty-one of this article.
§22-4-22. Performance bonds.
Each operator who shall make application for a permit under
section ten of this article shall, at the time such permit is
requested, furnish bond, on a form to be designed and furnished
by the director, payable to the state of West Virginia and
conditioned that the operator shall faithfully perform all of the
requirements of this article. The amount of the bond shall be
not less than two thousand dollars for each acre or fraction
thereof of the land to be disturbed:
Provided, That the director
shall determine the amount per acre of the bond that shall be
required before a permit is issued, such amount to be based upon
the estimated reclamation costs per acre, not to exceed a maximum
of five thousand dollars per acre or fraction thereof. The bond
shall cover: (1) The entire permit area; or, (2) that increment of land within the permit area upon which the operator will
initiate and conduct surface-mining and reclamation operations
within the initial term of the permit. If the operator chooses
to use incremental bonding, as succeeding increments of the
noncoal surface-mining and reclamation operations are to be
initiated and conducted within the permit area, the operator
shall file with the director additional bond or bonds to cover
such increments in accordance with this section:
Provided, That
once the operator has chosen to proceed with bonding either the
entire permit area or with incremental bonding, he or she shall
continue bonding in that manner for the term of the permit:
Provided, however, That the minimum amount of bond furnished
shall be ten thousand dollars. Such bond shall be executed by
the operator and a corporate surety licensed to do business in
the state of West Virginia:
Provided further, That in lieu of
corporate surety, the operator may elect to deposit with the
director cash, or collateral securities or certificates as
follows: Bonds of the United States or its possessions, of the
federal land banks, or of the home owners' loan corporation; full
faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district or
municipality of the state of West Virginia or other states; or
certificates of deposit in a bank in this state, which
certificates shall be in favor of the director. The cash deposit
or market value of such securities or certificates shall be equal
to or greater than the sum of the bond. The director shall, upon
receipt of any such deposit of cash, securities or certificates,
immediately place the same with the treasurer of the state of
West Virginia whose duty it shall be to receive and hold the same
in the name of the state in trust for the purpose for which such
deposit is made. The operator making the deposit shall be
entitled from time to time to receive from the state treasurer,
upon the written order of the director, the whole or any portion
of any cash, securities or certificates so deposited, upon
depositing with him or her in lieu thereof, cash or other
securities or certificates of the classes herein specified having
value equal to or greater than the sum of the bond.
The director shall not release that portion of any bond
filed by any operator which is designated to assure faithful
performance of, and compliance with, the backfilling and regrading requirements of the reclamation plan until such
backfilling and regrading is done so that revegetation standards
as required by this article and rules promulgated hereunder are
met.
The director shall not release that portion of any bond
filed by any operator which is designated to assure faithful
performance of, and compliance with, the water discharge limits
and reclamation standards required by this article and rules
promulgated hereunder, whenever applicable, are met.
§22-4-23. Exceptions for construction projects from reclamation
requirements; noncoal surface-mining extraction by
a landowner.
Any provision of this article to the contrary
notwithstanding, a person or operator is not subject to any duty
or requirement with respect to reclamation requirements when
engaged in the removal of borrow and fill material for use in
state, federal or local government construction projects:
Provided, That the provisions of the construction contract
require the furnishing of a suitable bond which provides for
reclamation wherever practicable of the area affected by such recovery activity.
A landowner who extracts minerals from his or her own land
for his or her own noncommercial use is not subject to this
article.
§22-4-24. Applicability of laws safeguarding life and property;
supervision of
operations.
All provisions of the mining laws of this state intended to
safeguard life and property shall extend to all noncoal
surface-mining operations insofar as such laws are applicable
thereto. The director of the office of miners' health, safety
and training shall promulgate reasonable rules, in accordance
with the provisions of section eight of this article, to protect
the safety of those employed in and around noncoal surface mines.
The enforcement of all laws, and rules relating to the safety of
those employed in and around surface mines is hereby vested in
the office of miners' health, safety and training and shall be
enforced according to the provisions of chapter twenty-two-a of
this code and applicable rules promulgated thereunder.
§22-4-25. Monthly report by operator.
The operator of every surface mine shall, on or before the end of each calendar month, file with the director of the office
of miners' health, safety and training, a report covering the
preceding calendar month on forms furnished by the director. The
reports shall state the number of accidents which have occurred,
the number of persons employed, the days worked and the actual
tonnage mined.
§22-4-26. Noncoal special-reclamation fund.
There is hereby created in the state treasury the noncoal
special-reclamation fund. The fund shall be a dedicated, special
revolving fund to be administered by the director with the advice
and approval of the noncoal surface-mining advisory council, for
the reclamation and rehabilitation of lands which have been
disturbed by noncoal surface-mining operations and abandoned
where no bond has been posted, or where the amount of the bond
posted and forfeited is less than the actual cost of reclamation.
The director shall prepare a prioritized listing of all known
orphaned lands that have resulted from noncoal surface-mining and
after approval or modification of such list by the noncoal
surface-mining advisory council, shall proceed with reclamation
activities in order of priority. Standards for prioritization, if deemed necessary, shall be included in the rules promulgated
as authorized under this article. The director may also expend
such amounts as are reasonably necessary to implement and
administer the provisions of this article.
This fund shall be appropriated to the division of
environmental protection to be used for the purposes of this
article and for no other purpose.
§22-4-27. Adjudications, determinations and findings to be by
written order; contents; notice.
Every adjudication, determination or finding by the director
affecting the rights, duties or privileges of any person subject
to this article shall be made by written order and shall contain
a written finding by the director of the facts upon which the
adjudication, determination or finding is based. Notice of the
making of such order shall be given to the person whose rights,
duties or privileges are affected thereby by mailing a true copy
thereof to such person by certified mail.
§22-4-28. Appeals to reclamation board of review hearing;
record; findings and orders of board.
Any person claiming to be aggrieved or adversely affected by any rule or order of the director or his or her failure to enter
an order may appeal to the reclamation board of review for an
order vacating or modifying such rule or order, or for such order
as the director should have entered.
Such appeal shall be in writing and shall set forth the
rule, order or omission complained of and the grounds upon which
the appeal is based. Where the appellant claims to be aggrieved
or adversely affected by an order, the appeal shall be filed with
the board within thirty days after the date upon which the
appellant received notice by certified mail of the making of the
order complained of. Where the appellant claims to be aggrieved
or adversely affected by any rule or omission, the appeal may be
filed with the board at any time. A notice of the filing of the
appeal shall be filed with the director within three days after
the appeal is filed with the board.
Within seven days after receipt of such notice of appeal,
the director shall prepare and certify to the board a complete
record of the proceedings before him or her, including all
documents and correspondence relating to the matter. The expense
of preparing the record shall be taxed as a part of the costs of the appeal.
Upon the filing of the appeal, the board shall fix the time
and place at which the hearing on the appeal will be held, which
hearing shall be held within twenty days after the notice of
appeal is filed, and shall give the appellant and the director at
least ten days' written notice thereof by certified mail. The
board may postpone or continue any hearing upon its own motion or
upon application of the appellant or of the director.
The filing of an appeal provided for in this section shall
not stay execution of the order appealed from.
The board shall hear the appeal de novo, and any party to
the appeal may submit evidence.
For the purpose of conducting a hearing on an appeal, the
board may require the attendance of witnesses and the production
of books, records and papers, and it may, and at the request of
any party it shall, issue subpoenas for witnesses or subpoenas
duces tecum to compel the production of any books, records or
papers, directed to the sheriff of the county where the
witnesses, books, records or papers are found, which subpoenas
and subpoenas duces tecum shall be served and returned in the same manner as subpoenas and subpoenas duces tecum in civil
litigation are served and returned. The fees and allowances for
mileage of sheriffs and witnesses shall be the same as those
permitted in civil litigation in trial courts. The fees and
mileage expenses incurred at the request of the appellant shall
be paid in advance by the appellant, and the remainder of the
fees and expenses shall be paid out of funds appropriated for the
expenses of the division.
In case of disobedience or neglect of any subpoena or
subpoena duces tecum served on any person, or the refusal of any
witness to testify to any matter regarding which he or she may be
lawfully interrogated, the circuit court of the county in which
such disobedience, neglect or refusal occurs, or any judge
thereof in vacation, on application of the board or any member
thereof, shall compel obedience by attachment proceedings for
contempt as in the case of disobedience of the requirements of a
subpoena or subpoena duces tecum issued from the court or a
refusal to testify therein. Witnesses at such hearing shall
testify under oath, and any member of the board may administer
oaths or affirmations to persons who so testify.
At the request of any party to the appeal, a stenographic
record of the testimony and other evidence submitted shall be
taken by an official court shorthand reporter at the expense of
the party making the request therefor. The record shall include
all of the testimony and other evidence and the rulings on the
admissibility of evidence, but any party may at the time object
to the admission of any evidence and except to the rulings of the
board thereon, and if the board refuses to admit evidence the
party offering same may make a proffer thereof, and the proffer
shall be made a part of the record of such hearing.
If upon completion of the hearing the board finds that the
rule or order appealed from was lawful and reasonable, it shall
make a written order affirming the rule or order appealed from;
if the board finds that such rule or order was unreasonable or
unlawful, it shall make a written order vacating or modifying the
rule or order appealed from; and if the board finds that the
director has unreasonably or unlawfully failed to enter an order,
it shall enter the order as it finds the director would have
made. Every order made by the board shall contain a written
finding by the board of facts upon which the order is based. Notice of the making of the order shall be given forthwith to
each party to the appeal by mailing a certified copy thereof to
each party by certified mail.
The order of the board shall be final unless vacated upon
judicial review thereof.
§22-4-29. Appeal from order of board.
Any party adversely affected by an order of the reclamation
board of review, other than an order affirming, modifying or
vacating a rule of the director, may obtain judicial review
thereof by appealing therefrom either to the circuit court of
Kanawha County or the circuit court of the county in which the
surface-mining operation to which the order relates is or was
conducted or is or was proposed to be conducted. Any party
adversely affected by an order of the reclamation board of
review, which order affirms, modifies or vacates a rule
promulgated by the director may obtain judicial review thereof by
appealing therefrom either to the circuit court of Kanawha County
or the circuit court of the county in which the surface-mining
operation to which the rule in question relates is or was
conducted or is or was proposed to be conducted. Any party desiring to so appeal shall file with the board a notice of
appeal designating the order appealed from and stating whether
the appeal is taken on questions of law, questions of fact or
questions of law and fact. A copy of the notice shall also be
filed by the appellant with the court and shall be mailed or
otherwise delivered to the appellee. The notice and copies
thereof shall be filed and mailed or otherwise delivered within
thirty days after the date upon which the appellant received
notice from the board by certified mail of the making of the
order appealed from. No appeal bond may be required to make an
appeal on questions of law, questions of fact or questions of law
and fact effective.
The filing of a notice of appeal does not automatically
operate as a suspension of the order of the board. If it appears
to the court that an unjust hardship to the appellant will result
from the execution of the board's order pending determination of
the appeal, the court may grant a suspension of the order and fix
its terms.
Within fifteen days after receipt of the notice of appeal,
the board shall prepare and file in the court the complete record of the proceedings out of which the appeal arises, including a
transcript of the testimony and other evidence which was
submitted before the board. The expense of preparing and
transcribing such record shall be taxed as a part of the costs of
the appeal. The appellant shall provide security for costs
satisfactory to the court. Upon demand by a party, the board
shall furnish, at the cost of the party requesting the same, a
copy of the record. In the event the complete record is not
filed in the court within the time provided in this section,
either party may apply to the court to have the case docketed,
and the court shall order the record filed.
Appeals taken on questions of law, fact or both, shall be
heard upon assignment of error filed in the case or set out in
the briefs of the appellant. Errors not argued by brief may be
disregarded, but the court may consider and decide errors which
are not assigned or argued.
The hearing before the court shall be upon the record made
before the reclamation board of review. The court may set aside
any order of the reclamation board of review which is clearly
erroneous in view of the reliable, probative and substantial evidence on the whole record, or which is determined by the court
to involve a clearly unwarranted exercise of discretion. The
judgment of the court is final unless reversed, vacated or
modified on appeal to the supreme court of appeals of West
Virginia, and jurisdiction is hereby conferred upon the court to
hear and entertain such appeals upon application made therefor in
the manner and within the time provided for civil appeals
generally.
§22-4-30. Permit conversion; exemptions.
(a) On or before the first day of July, one thousand nine
hundred ninety-four, all noncoal surface-mining operators shall
file an application for a permit or conversion of a valid
existing permit relating to those lands to be mined after the
first day of January, one thousand nine hundred ninety-five. The
permit application or conversion shall contain all of the
information required by this article including a mining and
reclamation plan, blasting plan, if applicable, and bond.
(b) On and after the first day of January, one thousand nine
hundred ninety-five, no person may engage in or carry out, on
lands within this state, any noncoal surface-mining operations unless such person has first obtained a permit or a conversion of
an existing permit from the director, except as exempted in
section twenty-three of this article. All noncoal surface-mining
and reclamation operations shall be conducted in a manner so as
to comply with the provisions of this article and the rules
promulgated pursuant thereto and all permit conditions.
(c) Noncoal surface-mining operations disturbed as of the
effective date of this article are exempt from conducting
preblast surveys required under section seventeen of this
article:
Provided, That the operation has had no previous
history of causing adverse impacts on water quality or causing
significant damage to any adjacent structure or property as a
result of blasting operations. The above mentioned operations
are also exempt from distance limitations established under
section sixteen of this article.
Any lands permitted after the effective date of this article
are not exempt from any provision of this article. Renewed
permits granted under section eleven of this article shall
continue to operate according to the approved mining and
reclamation plan of the original approved permit.
§22-4-31. Transfer, assignment or sale of permit rights.
No transfer, assignment or sale of the rights granted under
any permit issued pursuant to this article, may be made without
the prior written approval of the director. Applications for
transfer, assignment or sale of a permit shall be made on forms
prescribed by the director and shall contain information as
required by the rules.
The applicant shall at a minimum: (1) Affirmatively
demonstrate that a bond in the full amount of that required for
the permit be kept in full force and effect before, during and
after the transfer, assignment or sale; (2) provide proof that
the successor has the legal right to enter and conduct mining
activities on the permitted areas; (3) provide a sworn statement
that the successor is eligible to receive a permit and will
conduct mining and reclamation activities in accordance with the
purposes and intent of the act, the rules and the terms and
conditions of the permit; and (4) provide proof of publication of
a legal advertisement giving notice of the transfer, assignment
or sale of the permit and providing an opportunity for public
comment.
§22-4-32. Certification of noncoal surface miners.
Every noncoal surface miner shall be certified, in
accordance with the provisions of articles nine and ten, chapter
twenty-two of this code.
§22-4-33. Certification of noncoal surface-mine foremen.
(a) In every noncoal surface mine where five or more persons
are employed in a period of twenty-four hours, the operator shall
employ at least one person certified in accordance with the
provisions of article ten, chapter twenty-two of this code as a
mine foreman. Each applicant for certification as a mine foreman
shall, at the time he or she is issued a certificate of
competency: (1) Be a resident or employed in a mine in this
state; (2) have had at least three years' experience in surface
mining, which shall include at least eighteen months' experience
on or at a working section of a surface mine or be a graduate of
the school of mines at an accredited mining engineering school
and have had at least two years' practical experience in a
surface mine, which shall include at least eighteen months'
experience on or at a working section of a surface mine; and (3)
have demonstrated knowledge of mine safety, first aid, safety appliances, emergency procedures relative to all equipment, state
and federal mining laws and regulations and other subjects by
completing such training, education and examinations as may be
required under said article ten, chapter twenty-two of this code.
(b) For noncoal surface mines in which the operations are so
extensive that the duties devolving upon the mine foreman cannot
be discharged by one person, one or more assistant mine foremen
shall be designated. These persons shall act under the
instruction of the mine foreman who shall be responsible for
their conduct in the discharge of their duties. Each assistant
so designated shall be certified under the provisions of article
ten, chapter twenty-two of this code. Each applicant for
certification as assistant mine foreman shall, at the time he or
she is issued a certificate of competency, possess all of the
qualifications required of a mine foreman:
Provided, That he or
she shall, at the time he or she is certified, be required to
have at least two years' experience in surface mining, which
shall include eighteen months on or at a working section of a
surface mine or be a graduate of an accredited mining engineering
school and have had twelve months' practical experience in a surface mine, all of which shall have been on or at a working
section.
(c) The director shall promulgate such rules as may be
necessary to carry out the provisions of this section.
NOTE: The purpose of this bill establishes a short title,
the "West Virginia Noncoal Surface-Mining Act," and legislative
findings, intent and purpose for enacting the article. It also
defines terms used throughout the bill including: "Minerals"
which was revised from current law to include chert, flint and
dolomite; "reclamation" which means the rehabilitation for useful
purpose lands disturbed by noncoal surface-mining; "disturbed
lands" as an area where surface-mining activity has occurred in
which earth, sand, minerals, etc., have been removed; and
"surface-mining" which means activity associated with the
recovery of minerals.
The bill prohibits an officer or employee of the division of
environmental protection or attorney general's office from having
an interest in any surface-mining operation and establishes
duties for inspectors and supervisors. An advisory council is
established to assist the director in developing policies
regarding noncoal surface-mining operations.
A person may not engage in noncoal mineral surface-mining
operations without first obtaining a permit from the division.
A permit may be obtained by submitting a completed application to
the division accompanied by a fee of $700. Information contained
in or with the application shall include the name and address of
the operator, type mineral to be extracted, estimate of number of
acres to be disturbed, name and address of every officer, partner
or director in such corporation or organization, maps and
preplans, and a certification of insurance. A permit may be
modified or renewed as well as assigned, transferred or sold upon approval by the director. The director shall have the authority
to not permit surface-mining activity in areas deemed unsuitable
for such activity, even if such activity is detailed on an
approved permit. The bill also restricts surface-mining activity
within 100 feet of certain property boundaries or within 300 feet
of an occupied dwelling or structure.
The bill establishes procedures for the director to order a
suspension or cessation of operations and establishes
administrative, civil and criminal penalties for violations of
the provisions contained in the article. It also sets forth
procedures for appealing such orders to the reclamation board of
review and hearings and appeals to circuit court.
The bill requires a noncoal surface-mining operator to post
bond for his or her operation in an amount ranging from
$2000-$5000 per acre, with a minimum of $10,000. The operator
shall file a monthly report on its operation to the director.
The Noncoal Special Reclamation Fund is created, which shall
be used to assist in the financing of reclamation projects. The
fund shall consist of forfeited bonds and administrative
penalties issued pursuant to the article, a portion of a permit
application, renewal or modification fee.
Finally, noncoal surface miners and surface-mine foremen
shall be certified through the office of miners' safety, health
and training.
This article has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.