H. B. 2545
(By Mr. Speaker, Mr. Chambers, and Delegate Burk)
[By Request of the Executive]
(Introduced March 11, 1993; referred to the
Committee on the Judiciary.)
A BILL to repeal articles twenty and twenty-six, chapter sixteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to repeal articles five, five-a,
five-b, five-c, five-d, five-e, five-f, five-g, five-h,
five-i, five-m, five-n, six-a, nine, ten and ten-a, chapter
twenty; to repeal article one-a, chapter twenty-two-a of
said code; to repeal articles one-c and one-d, chapter
twenty-nine of said code; to amend and reenact section four,
article ten, chapter four; to amend and reenact section one,
article three, chapter five; to amend and reenact section
one, article two, chapter five-f; to amend and reenact
sections two-a and eight, article seven, chapter six; to
amend and reenact section three-ff, article one, and section
twenty-two, article five, chapter seven; to amend and
reenact section seventeen, article twenty, and section
twenty-seven, article twenty-four, chapter eight; to amend
and reenact section ten, article one-c, sections one and
two, article six-a and section six, article thirteen-a,
chapter eleven; to amend and reenact section four, article
five-a, chapter fifteen; to amend and reenact sections nine
and fourteen-a, article one, sections two and three, article
nine, section six, article twelve, section twenty-three-a,
article thirteen, sections one-b, three, nine and twenty-
one, article thirteen-a, section ten, article thirteen-b,
section two, article twenty-seven, and sections four, five,
six, seven, eight and nine, article thirty-two, chapter
sixteen; to amend and reenact section five, article one-a,
sections three, five, and seven, article one-b, section
five, article twelve-a, section four, article twenty-one-a,
and section five, article twenty-five, chapter nineteen; to
amend and reenact sections two, seven and fourteen, article
one, section six, article five-j, sections four and twenty-
six, article seven, chapter twenty; to further amend said
article seven, by adding thereto two new sections designated
sections twenty-eight and twenty-nine; to amend and reenact
section one, article eight and sections four, five-a, five-
b, nine and twelve, article eleven, of said chapter twenty;
to amend and reenact section three, article three-b, chapter
twenty-one; to amend and reenact chapter twenty-two; to
amend and reenact article one, chapter twenty-two-a; to
amend and reenact sections one, two, three, seven, twelve,
twenty-three, twenty-five, thirty-three, thirty-six, fifty-
three-c, fifty-four, sixty-three, sixty-six, sixty-eight,seventy, seventy-two, seventy-three, seventy-four, seventy-
five, seventy-six, seventy-seven and seventy-eight, article
two, of said chapter twenty-two-a; to amend and reenact
articles three, four, five, six and seven, of said chapter
twenty-two-a; to further amend said chapter twenty-two-a by
adding thereto three new articles, designated articles
eight, nine and ten; to amend and reenact chapter twenty-
two-b; to amend said code by adding thereto a new chapter,
designated chapter twenty-two-c; to amend and reenact
section two, article four, chapter twenty-three; to amend
and reenact sections one-b, one-c, one-f, one-h and four-b,
article two, chapter twenty-four; to amend and reenact
section eleven, article two-b and section five-a, article
three, chapter twenty-nine; to amend and reenact section
twenty-a, article eighteen and section four, article
nineteen, chapter thirty-one; to amend and reenact section
nine-a, article four, chapter thirty-six; to amend and
reenact section seventeen, article seven and section two,
article twelve-a, chapter fifty-five; to amend and reenact
section forty-seven, article three, chapter sixty-one, all
of said code relating to revising, arranging and
consolidating in the code laws relating generally to the
environment, the division of environmental protection, laws
administered and enforced by the division, laws incidental
thereto and the related criminal and civil penalties.
Be it enacted by the Legislature of West Virginia:
That article twenty and twenty-six, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that articles five, five-a, five-b, five-c,
five-d, five-e, five-f, five-g, five-h, five-i, five-m, five-n,
six-a, nine, ten and ten-a, chapter twenty be repealed; that
article one-a, chapter twenty-two-a be repealed; that articles
one-c and one-d, chapter twenty-nine be repealed; that section
four, article ten, chapter four be amended and reenacted; that
section one, article three, chapter five be amended and
reenacted; that section one, article two, chapter five-f be
amended and reenacted; that sections two-a and eight, article
seven, chapter six be amended and reenacted; that section three-
ff, article one, and section twenty-two, article five, chapter
seven be amended and reenacted; that section seventeen, article
twenty, and section twenty-seven, article twenty-four, chapter
eight be amended and reenacted; that section ten, article one-c,
sections one and two, article six-a and section six, article
thirteen-a, chapter eleven be amended and reenacted; that section
four, article five-a, chapter fifteen be amended and reenacted;
that sections nine and fourteen-a, article one, sections two and
three, article nine, section six, article twelve, section twenty-
three-a, article thirteen, sections one-b, three, nine and
twenty-one, article thirteen-a, section ten, article thirteen-b,
section two, article twenty-seven, and sections four, five, six,
seven, eight and nine, article thirty-two, chapter sixteen be
amended and reenacted; that section five, article one-a, sectionsthree, five and seven, article one-b, section five, article
twelve-a, section four, article twenty-one-a, and section five,
article twenty-five, chapter nineteen be amended and reenacted;
that sections two, seven and fourteen, article one, section six,
article five-j, sections four and twenty-six, article seven,
chapter twenty be amended and reenacted; that said article seven
be further amended by adding thereto two new sections, designated
sections twenty-eight and twenty-nine; that section one, article
eight and sections four, five-a, five-b, nine and twelve, article
eleven of said chapter twenty be amended and reenacted; that
section three, article three-b, chapter twenty-one be amended and
reenacted; that chapter twenty-two be amended and reenacted; that
article one, chapter twenty-two-a be amended and reenacted; that
sections one, two, three, seven, twelve, twenty-three, twenty-
five, thirty-three, thirty-six, fifty-three-c, fifty-four, sixty-
three, sixty-six, sixty-eight, seventy, seventy-two, seventy-
three, seventy-four, seventy-five, seventy-six, seventy-seven and
seventy-eight, article two of said chapter twenty-two-a be
amended and reenacted; that articles three, four, five, six and
seven of said chapter twenty-two-a be amended and reenacted; that
said chapter twenty-two-a be further amended by adding thereto
three new articles, designated articles eight, nine and ten; that
chapter twenty-two-b be amended and reenacted; that said code be
amended by adding thereto a new chapter, designated chapter
twenty-two-c; that section two, article four, chapter twenty-
three be amended and reenacted; that sections one-b, one-c, one-f, one-h and four-b, article two, chapter twenty-four be amended
and reenacted; that section eleven, article two-b and section
five-a, article three, chapter twenty-nine be amended and
reenacted; that section twenty-a, article eighteen and section
four, article nineteen, chapter thirty-one be amended and
reenacted; that section nine-a, article four, chapter thirty-six
be amended and reenacted; that section seventeen, article seven
and section two, article twelve-a, chapter fifty-five be amended
and reenacted; that section forty-seven, article three, chapter
sixty-one be amended and reenacted, all of said code, all to read
as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 10. THE WEST VIRGINIA SUNSET LAW.
§4-10-4. Termination of governmental entities or programs.
The following governmental entities and programs shall be
terminated on the date indicated but no governmental entity or
program shall be terminated under this article unless a
performance audit has been conducted of such entity or program,
except as authorized under section fourteen of this article:
(1) On the first day of July, one thousand nine hundred
eighty-one: Judicial council of West Virginia; motor vehicle
certificate appeal board; and child welfare licensing board.
(2) On the first day of July, one thousand nine hundred
eighty-two: Ohio River basin commission; commission on
postmortem examination; and the state commission on manpower,
training and technology.
(3) On the first day of July, one thousand nine hundred
eighty-three: Anatomical board; economic opportunity advisory
committee; and the community development authority board.
(4) On the first day of July, one thousand nine hundred
eighty-four: The following programs of the department of natural
resources: Rabies control, work incentive program; and the West
Virginia alcoholic beverage control licensing advisory board.
(5) On the first day of July, one thousand nine hundred
eighty-five: Beautification commission.
(6) On the first day of July, one thousand nine hundred
eighty-six: Health resources advisory council.
(7) On the first day of July, one thousand nine hundred
eighty-seven: Civil service commission advisory board; and the
motorcycle safety standards and specifications board.
(8) On the first day of July, one thousand nine hundred
eighty-eight: Labor management relations board; records
management and preservation advisory committee; minimum wage rate
board; commission on mass transportation; and the public
employees insurance board.
(9) On the first day of July, one thousand nine hundred
eighty-nine: Mental retardation advisory committee; board of
school finance; veteran's affairs advisory council; and the
reclamation commission.
(10) On the first day of July, one thousand nine hundred
ninety: Consumer affairs advisory council; savings and loan
association; and the forest industries industrial foundation.
(11) On the first day of July, one thousand nine hundred
ninety-one: The following divisions or programs of the
department of agriculture: Interagency committee on pesticides.
(12) On the first day of July, one thousand nine hundred
ninety-three: State structural barriers compliance board; the
oil and gas inspectors examining board; the tree fruit industry
self-improvement program; the oil and gas conservation
commission; governor's cabinet on children and families; state
water resources board;
water resources, division department of
natural resources;
board of banking and financial institutions;
farm management commission; state building commission; capitol
building commission; West Virginia ethics commission; public
service commission; family protection services board; family law
masters system; and the child advocate office of the department
of health and human resources.
(13) On the first day of July, one thousand nine hundred
ninety-four: Ohio River valley water sanitation commission; the
southern regional education board; real estate commission; the
division of labor; division of tourism and parks; division of
corrections; and the veteran's council.
(14) On the first day of July, one thousand nine hundred
ninety-five: Emergency medical services advisory council;
commission on charitable organizations; information system
advisory commission; West Virginia labor-management council; and
the board of social work examiners; and the rural health
initiative advisory panel and the marketing division anddevelopment division of the department of agriculture.
(15) On the first day of July, one thousand nine hundred
ninety-six: U.S. geological survey program and whitewater
commission within the division of natural resources; state
geological and economic survey; division of culture and history;
and the board of investments.
(16) On the first day of July, one thousand nine hundred
ninety-seven: The driver's licensing advisory board; department
of health and human resources; West Virginia health care cost
review authority; division of personnel; and the West Virginia
contractors licensing board.
(17) On the first day of July, one thousand nine hundred
ninety-eight: State lottery commission; the following divisions
or programs of the department of agriculture: Meat inspection
program and soil conservation committee; women's commission;
state board of risk and insurance management; board of examiners
of land surveyors; commission on uniform state laws; council of
finance and administration; forest management review commission;
West Virginia's membership in the interstate commission on the
Potomac River basin; legislative oversight commission on
education accountability; and the board of examiners in
counseling.
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 3. ATTORNEY GENERAL.
§5-3-1. Written opinions and advice and other legal services;
expenditures by state officers, boards and commissions for
legal services prohibited.
The attorney general shall give
his written
opinion opinions
and advice upon questions of law, and shall prosecute and defend
suits, actions, and other legal proceedings, and generally render
and perform all other legal services, whenever required to do
so, in writing, by the governor, the secretary of state, the
auditor, the state superintendent of free schools, the treasurer,
the commissioner of agriculture, the board of public works, the
tax commissioner, the state archivist and historian, the
commissioner of banking, the adjutant general, the
commissioner
of the division of energy director of the division of
environmental protection, the superintendent of public safety,
the state commissioner of public institutions, the
state road
commission commissioner of the division of highways, the
commissioner of the bureau of employment programs, the public
service commission, or any other state officer, board or
commission, or the head of any state educational, correctional,
penal or eleemosynary institution; and it
shall be is unlawful
from and after the time this section becomes effective for any of
the public officers, commissions, or other persons above
mentioned to expend any public funds of the state of West
Virginia for the purpose of paying any person, firm, or
corporation for the performance of any legal services:
Provided,
That nothing contained in this section shall impair impairs or
affect affects any existing valid contracts of employment for the
performance of legal services heretofore made.
It shall is also be the duty of the attorney general to
render to the president of the Senate and/or the speaker of the
House of Delegates a written opinion or advice upon any questions
submitted to him the attorney general by them or either of them
whenever he shall be or she is requested in writing so to do.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards;
funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Council of finance and administration provided for in
article one, chapter five-a of this code;
(4) Employee suggestion award board provided for in articleone-a, chapter five-a of this code;
(5) Governor's mansion advisory committee provided for in
article four-a, chapter five-a of this code;
(6) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(7) Education and state employees grievance board provided
for in article twenty-nine, chapter eighteen and article six-a,
chapter twenty-nine of this code;
(8) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(9) Boundary commission provided for in article twenty-
three, chapter twenty-nine of this code;
(10) Public defender services provided for in article
twenty-one, chapter twenty-nine of this code;
(11) Division of personnel provided for in article six,
chapter twenty-nine of this code;
(12) The West Virginia ethics commission provided for in
article two, chapter six-b of this code; and
(13) Consolidated public retirement board provided for in
article ten-d, chapter five of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of commerce, labor and environmental resources:
(1) Forest management review commission provided for inarticle twenty-four, chapter five of this code;
(2) Division of tourism and parks provided for in article
one, chapter five-b of this code;
(3) Office of community and industrial development or
successor agency provided for in article two, chapter five-b of
this code;
(4) Enterprise zone authority provided for in article two-b,
chapter five-b of this code;
(5) Office of federal procurement assistance provided for in
article two-c, chapter five-b of this code;
(6) Labor-management council provided for in article four,
chapter five-b of this code;
(7) Public energy authority and board provided for in
chapter five-d of this code;
(8) Air pollution control commission quality board provided
for in article twenty two, chapter sixteen twenty-two-b of this
code;
(9) Solid waste management board provided for in article
twenty-six three, chapter sixteen twenty-two-c of this code;
(10) Division of forestry and forestry commission provided
for in article one-a, chapter nineteen of this code;
(11) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this
code;
(12) Water resources Environmental quality board provided
for in article five three, chapter twenty twenty-two-b of thiscode;
(13) Water development authority and board provided for in
article five-c one, chapter twenty twenty-two-c of this code;
(14) Division of labor provided for in article one, chapter
twenty-one of this code;
(15) Occupational safety and health review commission
provided for in article three-a, chapter twenty-one of this code;
(16) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(17) Division of environmental protection provided for in
article one, chapter twenty-two of this code;
(18) Reclamation board of review Surface mine board provided
for in article four, chapter twenty-two twenty-two-b of this
code;
(19) Board of appeals provided for in article five, chapter
twenty-two twenty-two-a of this code;
(20) Board of coal mine health and safety and coal mine
safety and technical review committee provided for in article
six, chapter twenty-two twenty-two-a of this code;
(21) Shallow gas well review board provided for in article
seven eight, chapter twenty-two twenty-two-c of this code;
(22) Oil and gas conservation commission provided for in
article eight nine, chapter twenty-two twenty-two-c of this code;
(23) Board of miner training, education and certification
provided for in article nine seven, chapter twenty-two twenty-
two-a of this code;
(24) Mine inspectors' examining board provided for in
article eleven nine, chapter twenty-two twenty-two-a of this
code;
(25) Oil and gas inspectors' examining board provided for in
article thirteen seven, chapter twenty-two twenty-two-c of this
code;
(26) Geological and economic survey provided for in article
two, chapter twenty-nine of this code;
(27) Blennerhassett historical state park commission
provided for in article eight, chapter twenty-nine of this code;
(28) Economic development authority provided for in article
fifteen, chapter thirty-one of this code;
(29) Division of banking provided for in article two,
chapter thirty-one-a of this code;
(30) Board of banking and financial institutions provided
for in article three, chapter thirty-one-a of this code;
(31) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(32) Bureau of employment programs provided for in article
one, chapter twenty-one-a of this code.
(c) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of education and the arts:
(1) Library commission provided for in article one, chapterten of this code;
(2) Educational broadcasting authority provided for in
article five, chapter ten of this code;
(3) University of West Virginia board of trustees provided
for in article two and board of directors of the state college
system provided for in article three, chapter eighteen-b of this
code; and
(4) Division of culture and history provided for in article
one, chapter twenty-nine of this code.
(d) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of health and human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Division of health provided for in article one, chapter
sixteen of this code;
(4) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen
of this code;
(5) Hospital finance authority provided for in article
twenty-nine-a, chapter sixteen of this code;
(6) Health care cost review authority provided for inarticle twenty-nine-b, chapter sixteen of this code;
(7) Structural barriers compliance board provided for in
article ten-f, chapter eighteen of this code;
(8) Commission on aging provided for in article fourteen,
chapter twenty-nine of this code;
(9) Commission on mental retardation provided for in article
fifteen, chapter twenty-nine of this code; and
(10) Women's commission provided for in article twenty,
chapter twenty-nine of this code.
(e) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter
fifteen of this code;
(3) Military awards board provided for in article one-g,
chapter fifteen of this code;
(4) Division of public safety provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five and emergency response commission
provided for in article five-a, chapter fifteen of this code;
(6) Sheriffs' bureau provided for in article eight, chapterfifteen of this code;
(7) Division of corrections provided for in chapter twenty-
five of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority
provided for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of tax and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Appraisal control and review commission provided for in
article one-a, chapter eleven of this code;
(3) Municipal bond commission provided for in article three,
chapter thirteen of this code;
(4) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(5) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of thiscode;
(6) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(7) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven and article two, chapter
sixty of this code; and
(8) Division of professional and occupational licenses which
may be hereafter created by the Legislature.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any such agency or board, are hereby transferred
to and incorporated in and shall be administered as a part of the
department of transportation:
(1) Road commission provided for in article two, chapter
seventeen of this code;
(2) Division of highways provided for in article two-a,
chapter seventeen of this code;
(3) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this
code;
(4) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(5) Driver's licensing advisory board provided for in
article two, chapter seventeen-b of this code;
(6) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(7) Railroad maintenance authority provided for in article
eighteen, chapter twenty-nine of this code; and
(8) Port authority provided for in article sixteen-b,
chapter seventeen of this code.
(h) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence of the
position of administrator and of the agency and the powers,
authority and duties of each administrator and agency shall are
not be affected by the enactment of this chapter.
(i) Except for such powers, authority and duties as have
been delegated to the secretaries of the departments by the
provisions of section two of this article, the existence, powers,
authority and duties of boards and the membership, terms and
qualifications of members of such boards shall are not be
affected by the enactment of this chapter, and all boards which
are appellate bodies or were otherwise established to be
independent decision makers shall do not have their appellate or
independent decision-making status affected by the enactment of
this chapter.
(j) Any department previously transferred to and
incorporated in a department created in section two, article one
of this chapter by prior enactment of this section in chapter
three, acts of the Legislature, first extraordinary session, one
thousand nine hundred eighty-nine, and subsequent amendments
thereto, shall henceforth be read, construed and understood tomean a division of the appropriate department so created.
Wherever elsewhere in this code, in any act, in general or other
law, in any rule, or regulation or in any ordinance, resolution
or order, reference is made to any department transferred to and
incorporated in a department created in section two, article one
of this chapter, such reference shall henceforth be read,
construed and understood to mean a division of the appropriate
department so created, and any such reference elsewhere to a
division of a department so transferred and incorporated shall
henceforth be read, construed and understood to mean a section of
the appropriate division of the department so created.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers;
appointment; qualifications; powers and salaries of such
officers.
(a) Notwithstanding any other provision of this code to the
contrary, each of the following appointive state officers named
in this subsection shall be appointed by the governor, by and
with the advice and consent of the Senate. Each of such
appointive state officers
shall serve serves at the will and
pleasure of the governor for the term for which the governor was
elected and until the respective state officers' successors have
been appointed and qualified. Each of such appointive state
officers
shall hereafter be is subject to the existing
qualifications for holding each such respective office and each
shall have and is hereby granted has all of the powers and
authority and shall perform all of the functions and services
heretofore previously vested in and performed by virtue of
existing law respecting each such office.
Beginning on the first day of January, one thousand nine
hundred ninety, the annual salary of each such named appointive
state officer
shall be is as follows:
Administrator, division of highways, sixty thousand dollars;
administrator, division of health, fifty-seven thousand two
hundred dollars; administrator, division of human services,
forty-seven thousand eight hundred dollars; administrator, state
tax division, forty-nine thousand nine hundred dollars;
administrator, division of
energy environmental protection,
sixty-five thousand dollars; administrator, division of finance
and administration, forty-seven thousand eight hundred dollars;
administrator, division of corrections, forty-five thousand
dollars; administrator, division of community and industrial
development, sixty-three thousand six hundred dollars;
administrator, division of workers' compensation, forty-five
thousand dollars; administrator, division of commerce, sixty-two
thousand five hundred dollars; administrator, division of natural
resources, forty-seven thousand eight hundred dollars;
administrator, division of public safety, forty-four thousand six
hundred dollars; administrator, lottery division, sixty thousand
dollars; director, public employees insurance agency, fifty-five
thousand dollars; administrator, division of employment security,forty-five thousand dollars; administrator, division of banking,
thirty-eight thousand three hundred dollars; administrator,
division of insurance, thirty-six thousand seven hundred dollars;
administrator, division of culture and history, thirty-eight
thousand three hundred dollars; chairman, public service
commission, fifty thousand dollars; members, public service
commission, forty-six thousand two hundred dollars;
administrator, alcohol beverage control commission, thirty-eight
thousand three hundred dollars; administrator, division of motor
vehicles, forty thousand dollars; director, division of
personnel, thirty-eight thousand three hundred dollars; adjutant
general, thirty-five thousand seven hundred dollars; chairman,
health care cost review authority, forty thousand dollars;
members, health care cost review authority, thirty-six thousand
five hundred dollars; director, human rights commission, forty
thousand dollars; administrator, division of labor, thirty-five
thousand seven hundred dollars; administrator, division of
veterans affairs, thirty-two thousand dollars; administrator,
division of emergency services, thirty-two thousand dollars;
administrator, nonintoxicating beer commission, thirty-two
thousand dollars; members, board of probation and parole, twenty-
eight thousand three hundred dollars; members, employment
security review board, seventeen thousand dollars; members,
workers' compensation appeal board, seventeen thousand eight
hundred dollars.
Prior to the first day of January, one thousand nine hundredninety, each of the aforesaid officers shall continue to receive
the annual salaries they were receiving as of the last day of
March, one thousand nine hundred eighty-nine.
(b) Notwithstanding any other provisions of this code to the
contrary, each of the state officers named in this subsection
shall continue to be appointed in the manner prescribed in this
code, and shall be paid an annual salary as follows:
except that
any increase in salary over and above the salary being received
by any of the following state officers as of the last day of
March, one thousand nine hundred eighty-nine, shall not become
effective until the first day of January, one thousand nine
hundred ninety:
Chancellor, board of regents, seventy thousand dollars;
state superintendent of schools, seventy thousand dollars;
administrator, division of risk and insurance management, forty-
two thousand dollars; director, division of rehabilitation
services, fifty-five thousand dollars; executive director,
educational broadcasting authority, forty-seven thousand five
hundred dollars; secretary, library commission, forty-seven
thousand five hundred dollars; director, geologic and economic
survey, forty-seven thousand five hundred dollars; executive
director, water development authority, fifty-four thousand two
hundred dollars; executive secretary, teacher's retirement
system, forty-seven thousand two hundred dollars; executive
secretary, public employees retirement system, forty thousand one
hundred dollars;
director, air pollution control commission,forty-four thousand eight hundred dollars; executive director,
public legal services council, forty seven thousand five hundred
dollars; director, commission on aging, forty thousand dollars;
commissioner, oil and gas conservation commission, forty thousand
dollars; director, farm management commission, thirty-two
thousand five hundred dollars; state fire administrator, twenty-
five thousand two hundred dollars; executive secretary, municipal
bond commission, thirty thousand two hundred dollars; director,
railroad maintenance authority, thirty-two thousand five hundred
dollars; executive secretary, women's commission, thirty thousand
one hundred dollars; executive director, regional jail authority,
forty-two thousand six hundred dollars; director, hospital
finance authority, twenty-five thousand eight hundred dollars.
(c) No increase in the salary of any appointive state
officer pursuant to this section shall be paid until and unless
such appointive state officer
shall have has first filed with the
state auditor and the legislative auditor a sworn statement, on
a form to be prescribed by the attorney general, certifying that
such spending unit is in compliance with any general law
providing for a salary increase for his
or her employees. The
attorney general shall prepare and distribute such form to the
affected spending units:
Provided,
That no decrease in salary
shall be is effective for any current appointive state officer
appointed prior to the first day of January, one thousand nine
hundred eighty-nine:
Provided, however,
That such decreases
shall take effect at such time as any appointive office isvacated.
§6-7-8. Public carriage for state officials and employees and
the state board of regents.
State law-enforcement officials, including, but not limited
to, the director of the department division of public safety, the
adjutant general of the West Virginia national guard, the
director of the office of emergency services, the director of the
department division of natural resources, the director of the
division of environmental protection, the commissioner of the
department division of corrections, the state fire marshal, state
fire administrator and officials of the state board of regents,
at the discretion of the chancellor thereof, shall have the
authority to use, and permit and allow or disallow their
designated employees to use, publicly provided carriage to travel
from their residences to their workplace and return:
Provided,
That such usage is subject to the supervision of such official
and is directly connected with and required by the nature and in
the performance of such official's or designated employee's
duties and responsibilities.
CHAPTER 7. TRAINING PROGRAMS FOR COUNTY EMPLOYEES, ETC.;
COMPENSATION OF ELECTED COUNTY OFFICIALS; COUNTY ASSISTANTS,
DEPUTIES AND EMPLOYEES, THEIR NUMBER AND COMPENSATION.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Duty to require clearance of refuse and debris from
private lands; notice of demand thereof; procedure to
contest demand.
In addition to all other powers and duties conferred by law
upon county commissions, as set forth in this article, and county
health officers, as set forth in section two, article two,
chapter sixteen of this code, such commissions and health
officers are hereby authorized and obliged to require clearance
of any refuse or debris consisting of remnants or remains of any
unused or unoccupied dwelling, non-farm building, structure or
manmade appurtenance on all private lands within their respective
scopes of authority by the owners thereof that has accumulated as
the result of any natural or manmade force or effect which
presents a safety or health hazard or which has deteriorated to
such a degree as to be unsightly, visually offensive and be
depressive of the value of the adjacent properties or uses of
such properties.
Upon a determination by a county commission or county health
officer that substantial accumulations of refuse or the presence
of debris, as described above, exist on any such private lands,
notice shall be forwarded to the owner thereof informing the
landowner of the following:
(a) Of the commission's or health officer's demand to remove
all refuse and debris within ninety days of the receipt of such
notice unless an extension be granted by said commission or
health officer;
(b) Of the landowner's right to contest such demand and of
the proper procedure in which to do so;
(c) That if the landowner fails to both properly contest andcomply with the commission's or health officer's demand, that
removal will be achieved otherwise and that the reasonable costs
incurred thereto will become a civil debt owed by the landowner
to the county;
(d) That if the county incurs costs of removal and the
landowner fails to pay such costs within two months of such
removal that a judgment lien on the subject property will be
filed in the county clerk's office wherein the subject property
exists.
The commission or health officer shall send notice as
described herein by certified mail. If, for any reason, such
certified mail is returned without evidence of proper receipt
thereof, then in such event, a Class III-0 legal advertisement
shall be published in a newspaper of general circulation in the
county wherein such land is situated, in order to render proper
notice in accordance with this section:
Provided,
That if the
commission or health officer determines, after notice and inquiry
as provided herein, that such refuse or debris was created by
someone other than the present landowner, without such
landowner's expressed or implied permission, the commission or
health officer shall remove any such refuse or debris and shall
apply to and be eligible to receive from the solid waste
reclamation and environmental response fund created under section
five-a eleven, article five-f fifteen, chapter twenty twenty-two
of this code for reimbursement for all reasonable costs incurred
for such removal.
In the event any landowner desires to contest any demand
brought forth pursuant to this section, the landowner shall do so
in accordance with article three, chapter fifty-eight of this
code.
ARTICLE 5. FISCAL AFFAIRS.
§7-5-22. County solid waste assessment fees authorized.
Each county or regional solid waste authority is hereby
authorized to impose a similar solid waste assessment fee to that
imposed by section five ten, article five-f fifteen, chapter
twenty twenty-two of this code at a rate not to exceed fifty
cents per ton or part thereof upon the disposal of solid waste in
that county or region. All assessments due shall be applied to
the reasonable costs of administration of the county's regional
or county solid waste authority including the necessary and
reasonable expenses of its members, and any other expenses
incurred from refuse cleanup, litter control programs, or any
solid waste programs deemed necessary to fulfill its duties.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 20. COMBINED WATERWORKS AND SEWERAGE SYSTEMS.
§8-20-17. Additional and alternative method for constructing,
etc., and financing combined waterworks and sewerage system;
cumulative authority.
This article
shall is, without reference to any other
statute or charter provision,
be deemed full authority for the
acquisition, construction, establishment, extension, equipment,
additions, betterment, improvement, repair, maintenance andoperation of or to the combined waterworks and sewerage system
herein provided for and for the issuance and sale of the bonds by
this article authorized, and
shall be construed as is an
additional and alternative method therefor and for the financing
thereof, and no petition, referendum or election or other or
further proceeding with respect to any such undertaking or to the
issuance or sale of bonds under this article and no publication
of any resolution, ordinance, notice or proceeding relating to
any such undertaking or to the issuance or sale of such bonds
shall be is required, except as prescribed by this article, any
provisions of other statutes of the state to the contrary
notwithstanding:
Provided,
That all functions, powers and duties
of the state department of bureau of public health and the
division of water resources of the department of natural
resources shall division of environmental protection remain
unaffected by this article.
This article shall be construed as is cumulative authority
for any undertaking herein authorized, and shall does not be
construed to repeal any existing laws with respect thereto.
ARTICLE 24. PLANNING AND ZONING.
§8-24-27. Cooperation between planning commissions; cooperation
between commissions and governing and administrative bodies
and officials.
In the exercise of the powers and authority granted by this
article, the planning commission of any municipality or county
may cooperate with the planning commissions or governing andadministrative bodies and officials of other municipalities
within or without such county and of other counties, with a view
to coordinating and integrating the planning and zoning of such
municipality or county with the plans of such other
municipalities and of such other counties, and may appoint such
committee or committees and may adopt such rules and regulations
as may be thought proper to effect such cooperation. Such
planning commissions and governing and administrative bodies and
officials of other municipalities and counties are hereby
authorized to cooperate with such municipal or county planning
commissions for the purposes of such coordination and
integration. Similarly, such municipal or county planning
commissions may cooperate with the department of natural
resources division of environmental protection of this state and
make use of advice and information furnished by such department
division and by other appropriate state and federal officials,
departments and agencies, and all state departments and agencies
having information, maps and data pertinent to the planning and
zoning of such municipality or county may make such available for
the use of such planning commissions.
CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.
§11-1C-10. Valuation of industrial property and natural
resources property by tax commissioner; penalties; methods;
values sent to assessors.
(a) As used in this section:
(1) "Industrial property" means real and personal property
integrated as a functioning unit intended for the assembling,
processing and manufacturing of finished or partially finished
products.
(2) "Natural resources property" means coal, oil, natural
gas, limestone, fireclay, dolomite, sandstone, shale, sand and
gravel, salt, lead, zinc, manganese, iron ore, radioactive
minerals, oil shale, managed timberland as defined in section
two of this article, and other minerals.
(b) All owners of industrial property and natural resources
property each year shall make a return to the state tax
commissioner and, if requested in writing by the assessor of the
county where situated, to such county assessor at a time and in
the form specified by the commissioner of all industrial or
natural resources property owned by them. The commissioner may
require any information to be filed which would be useful in
valuing the property covered in the return. Any penalties
provided for in this chapter or elsewhere in this code relating
to failure to list any property or to file any return or report
may be applied to any owner of property required to make a return
pursuant to this section.
(c) The state tax commissioner shall value all industrial
property in the state at its fair market value within three years
of the approval date of the plan for industrial property required
in subsection (e) of this section. The commissioner shall
thereafter maintain accurate values for all such property. Thetax commissioner shall forward each industrial property appraisal
to the county assessor of the county in which that property is
located and the assessor shall multiply each such appraisal by
sixty percent and include the resulting assessed value in the
land book or the personal property book, as appropriate for each
tax year. The commissioner shall supply support data that the
assessor might need to evaluate the appraisal.
(d) Within three years of the approval date of the plan
required for natural resources property required pursuant to
subsection (e) of this section, the state tax commissioner shall
determine the fair market value as defined in section one,
article three of this chapter of all natural resources property
in the state. The commissioner shall thereafter maintain
accurate values for all such property.
(1) In order to qualify for identification as managed
timberland for property tax purposes the owner must annually
certify, in writing to the division of forestry, that the
property meets the definition of managed timberland as set forth
in this article and contracts to manage property according to a
plan that will maintain the property as managed timberland. In
addition, each owner's certification must state that forest
management practices will be conducted in accordance with
approved practices from the publication "Best Management
Practices for Forestry". Property certified as managed
timberland shall be valued according to its use and productive
potential. The tax commissioner shall promulgate rules
andregulations for certification as managed timberland.
(2) In the case of all other natural resources property, the
commissioner shall develop an inventory on a county by county
basis of all such property and may use any resources, including,
but not limited to, geological survey information; exploratory,
drilling, mining and other information supplied by natural
resources property owners; and maps and other information on file
with the state
department of energy division of environmental
protection and office of miners' health, safety and training.
Any information supplied by natural resources owners or any
proprietary or otherwise privileged information supplied by the
state
department of energy division of environmental protection
and office of miner's health, safety and training shall be kept
confidential unless needed to defend an appraisal challenged by
a natural resources owner. Formulas for natural resources
valuation may contain differing variables based upon known
geological or other common factors. The tax commissioner shall
forward each natural resources property appraisal to the county
assessor of the county in which that property is located and the
assessor shall multiply each such appraisal by sixty percent and
include the resulting assessed value in the land book or the
personal property book, as appropriate, for each tax year. The
commissioner shall supply support data that the assessor might
need to explain or defend the appraisal. The commissioner shall
directly defend any challenged appraisal when the assessed value
of the property in question exceeds two million dollars or anowner challenging an appraisal holds or controls property
situated in the same county with an assessed value exceeding two
million dollars. At least every five years, the commissioner
shall review current technology for the recovery of natural
resources property to determine if valuation methodologies need
to be adjusted to reflect changes in value which result from
development of new recovery technologies.
(e) The tax commissioner shall develop a plan for the
valuation of industrial property and a plan for the valuation of
natural resources property. The plans shall include expected
costs and reimbursements, and shall be submitted to the property
valuation training and procedures commission on or before the
first day of January, one thousand nine hundred ninety-one, for
its approval on or before the first day of July of such year.
Such plan shall be revised, resubmitted to the commission and
approved every three years thereafter.
(f) To perform the valuation duties under this section, the
state tax commissioner
shall have has the authority to contract
with a competent property appraisal firm or firms to assist with
or to conduct the valuation process as to any discernible species
of property statewide if the contract and the entity performing
such contract is specifically included in a plan required by
subsection (e) of this section or otherwise approved by the
commission. If the tax commissioner desires to contract for
valuation services only in one county or a group of counties, the
contract must be approved by the commission.
(g) The county assessor may accept the appraisal provided,
pursuant to this section, by the state tax commissioner:
Provided,
That if the county assessor fails to accept the
appraisal provided by the state tax commissioner, the county
assessor shall show just cause to the valuation commission for
the failure to accept such appraisal and shall further provide to
the valuation commission a plan by which a different appraisal
will be conducted.
(h) The costs of appraising the industrial and natural
resources property within each county, and any costs of defending
same shall be paid by the state:
Provided,
That the office of
the state attorney general shall provide legal representation on
behalf of the tax commissioner or assessor, at no cost, in the
event the industrial and natural resources appraisal is
challenged in court.
(i) For purposes of revaluing managed timberland as defined
in section two of this article, any increase or decrease in
valuation by the commissioner shall does not become effective
prior to the first day of July, one thousand nine hundred
ninety-one. The property owner may request a hearing by the
director of the division of forestry, who may thereafter rescind
the disqualification or allow the property owner a reasonable
period of time in which to qualify the property. A property
owner may appeal a disqualification to the circuit court of the
county in which the property is located.
ARTICLE 6A. POLLUTION CONTROL FACILITIES TAX TREATMENT.
§11-6A-1. Declaration of policy.
It is declared to be the public policy of the state of West
Virginia to maintain reasonable standards of purity and quality
of the water of the state and a reasonable degree of purity of
the air resources of the state. In the exercise of the police
power of the state to protect the environment and promote the
public health, safety and general welfare, the Legislature has
heretofore enacted the Water Pollution Control Act as article
five-a eleven, chapter twenty twenty-two of this code and the Air
Pollution Control Act as article twenty five, chapter sixteen
twenty-two thereof. It is recognized and declared by the
Legislature that pollution control facilities, as hereinafter
defined, are required for the protection and benefit of the
environment and the general welfare of the people, are
nonproductive, do not add to the economic value of a business
enterprise and do not have a market value after installation in
excess of salvage value.
§11-6A-2. Definition.
As used in this article, "pollution control facility" means
any personal property designed, constructed or installed
primarily for the purpose of abating or reducing water or air
pollution or contamination by removing, altering, disposing,
treating, storing or dispersing the concentration of pollutants,
contaminants, wastes or heat in compliance with air or water
quality or effluent standards prescribed by or promulgated under
the laws of this state or the United States, the design,construction and installation of which personal property was
approved as a pollution control facility by either the office of
water resources or the office of air quality, both of the
division of environmental protection, division of the department
of natural resources or the air pollution control commission as
the case may be.
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-6. Additional tax on the severance, extraction and
production of coal; dedication of additional tax for benefit
of counties and municipalities; distribution of major
portion of such additional tax to coal-producing counties;
distribution of minor portion of such additional tax to all
counties and municipalities; reports; rules; and
regulations; creation of special funds in office of state
treasurer; method and formulas for distribution of such
additional tax; expenditure of funds by counties and
municipalities for public purposes; creating special funds
in counties and municipalities; and requiring special county
and municipal budgets and reports thereon.
(a) Additional coal severance tax. -- Upon every person
exercising the privilege of engaging or continuing within this
state in the business of severing coal, or preparing coal (or
both severing and preparing coal), for sale, profit or commercial
use, there is hereby imposed an additional severance tax, the
amount of which shall be equal to the value of the coal severed
or prepared (or both severed and prepared), against which the taximposed by section three of this article is measured as shown by
the gross proceeds derived from the sale thereof by the producer,
multiplied by thirty-five one hundredths of one percent. The tax
imposed by this subsection shall be in addition to the tax
imposed by section three of this article, and this additional tax
is hereinafter in this section referred to as the "additional tax
on coal".
(b) This additional tax on coal is imposed pursuant to the
provisions of section six-a, article ten of the West Virginia
constitution. Seventy-five percent of the net proceeds of this
additional tax on coal shall, after appropriation thereof by the
Legislature, be distributed by the state treasurer in the manner
hereinafter specified, to the various counties of this state in
which the coal upon which this additional tax is imposed was
located at the time it was severed from the ground. Those
counties are hereinafter in this section referred to as the
"coal-producing counties". The remaining twenty-five percent of
the net proceeds of this additional tax on coal shall be
distributed, after appropriation, among all the counties and
municipalities of this state in the manner hereinafter specified.
(c) Such additional tax on coal shall be due and payable,
reported and remitted as elsewhere provided in this article for
the tax imposed by said section three of this article, and all of
the enforcement and other provisions of this article shall apply
to such additional tax. In addition to the reports and other
information required under the provisions of this article and thetonnage reports required to be filed under the provisions of
section seventy-two seventy-seven, article two, chapter twenty-
two twenty-two-a of this code, the tax commissioner is hereby
granted plenary power and authority to promulgate reasonable
rules and regulations requiring the furnishing by producers of
such additional information as may be necessary to compute the
allocation required under the provisions of subsection (f) of
this section. The tax commissioner is also hereby granted
plenary power and authority to promulgate such other reasonable
rules and regulations as may be necessary to implement the
provisions of this section:
Provided,
That notwithstanding any
language contained in this code to the contrary, the gross amount
of additional tax on coal collected under this article shall be
paid over and distributed without the application of any credits
against the tax imposed by this section.
(d) In order to provide a procedure for the distribution of
seventy-five percent of the net proceeds of such additional tax
on coal to such coal-producing counties, there is hereby created
continued in the state treasurer's office a the special fund to
be known as the "county coal revenue fund"; and in order to
provide a procedure for the distribution of the remaining twenty-
five percent of the net proceeds of such additional tax on coal
to all counties and municipalities of the state, without regard
to coal having been produced therein, there is also hereby
created continued in the state treasurer's office a the special
fund to be known as the "all counties and municipalities revenuefund".
Seventy-five percent of the net proceeds of such additional
tax on coal shall be deposited in the "county coal revenue fund"
and twenty-five percent of such net proceeds shall be deposited
in the "all counties and municipalities revenue fund", from time
to time, as such proceeds are received by the tax commissioner.
The moneys in such funds shall, after appropriation thereof by
the Legislature, be distributed to the respective counties and
municipalities entitled thereto in the manner set forth in
subsection (e) of this section.
(e) The moneys in the "county coal revenue fund" and the
moneys in the "all counties and municipalities revenue fund"
shall be allocated among and distributed quarterly to the
counties and municipalities entitled thereto by the state
treasurer in the manner hereinafter specified. On or before each
distribution date, the state treasurer shall determine the total
amount of moneys in each fund which will be available for
distribution to the respective counties and municipalities
entitled thereto on that distribution date. The amount to which
a coal-producing county is entitled from the "county coal revenue
fund" shall be determined in accordance with subsection (f) of
this section, and the amount to which every county and
municipality shall be entitled from the "all counties and
municipalities revenue fund" shall be determined in accordance
with subsection (g) of this section. After determining as set
forth in subsection (f) and subsection (g) of this section theamount each county and municipality is entitled to receive from
the respective fund or funds, a warrant of the state auditor for
the sum due to such county or municipality shall issue and a
check drawn thereon making payment of such sum shall thereafter
be distributed to such county or municipality.
(f) The amount to which a coal-producing county is entitled
from the "county coal revenue fund" shall be determined by: (1)
Dividing the total amount of moneys in such fund then available
for distribution by the total number of tons of coal mined in
this state during the preceding quarter; and (2) multiplying the
quotient thus obtained by the number of tons of coal removed from
the ground in such county during the preceding quarter.
(g) The amount to which each county and municipality shall
be is entitled from the "all counties and municipalities revenue
fund" shall be determined in accordance with the provisions of
this subsection. For purposes of this subsection "population"
shall mean means the population as determined by the most recent
decennial census taken under the authority of the United States:
(1) The treasurer shall first apportion the total amount of
moneys available in the "all counties and municipalities revenue
fund" by multiplying the total amount in such fund by the
percentage which the population of each county bears to the total
population of the state. The amount thus apportioned for each
county shall be is the county's "base share".
(2) Each county's "base share" shall then be subdivided into
two portions. One portion shall be is determined by multiplyingthe "base share" by that percentage which the total population of
all unincorporated areas within the county bears to the total
population of the county, and the other portion shall be is
determined by multiplying the "base share" by that percentage
which the total population of all municipalities within the
county bears to the total population of the county. The former
portion shall be paid to the county and the latter portion shall
be the "municipalities' portion" of the county's "base share".
The percentage of such latter portion to which each municipality
in the county is entitled shall be determined by multiplying the
total of such latter portion by the percentage which the
population of each municipality within the county bears to the
total population of all municipalities within the county.
(h) All counties and municipalities shall create a "coal
severance tax revenue fund" which shall be the depository for
moneys distributed to any county or municipality under the
provisions of this section, from either or both special funds.
Moneys in such "coal severance tax revenue funds", in compliance
with subsection (i), may be expended by the county commission or
governing body of the municipality for such public purposes as
the county commission or governing body shall determine to be in
the best interest of the people of its respective county or
municipality:
Provided,
That in counties with population in
excess of two hundred thousand at least seventy-five percent of
such funds received from the county coal revenue fund shall be
apportioned to, and expended within the coal-producing area orareas of the county, said coal-producing areas of each county to
be determined generally by the state tax commissioner:
Provided,
however,
That a line item budgeted amount from the current levy
estimated for a county shall be funded at one hundred percent of
the preceding year's expenditure from the county general fund
prior to the use of coal severance tax revenue fund moneys for
the same general purpose:
Provided further,
That said coal
severance tax revenue fund moneys shall not be budgeted for
personal services in an amount to exceed one fourth of the total
funds available in such fund.
(i) On or before the twenty-eighth day of March, one
thousand nine hundred eighty-six, and each twenty-eighth day of
March thereafter, each county commission or governing body of a
municipality receiving such revenue shall submit to the tax
commissioner on forms provided by the tax commissioner a special
budget, detailing how such revenue is to be spent during the
subsequent fiscal year. Such budget shall be followed in
expending such revenue unless a subsequent budget is approved by
the state tax commissioner. All unexpended balances remaining in
said special fund at the close of a fiscal year shall be
reappropriated to the budget for the subsequent fiscal year.
Such reappropriation shall be entered as an amendment to the new
budget and submitted to the tax commissioner on or before the
fifteenth day of July of the current budget year.
(j) On or before the fifteenth day of December, one thousand
nine hundred eighty-six, and each fifteenth day of Decemberthereafter, the tax commissioner shall deliver to the clerk of
the Senate and the clerk of the House of Delegates a consolidated
report of the special budgets, created by subsection (i) of this
section, for all county commissions and municipalities as of the
fifteenth day of July of the current year.
(k) The state tax commissioner shall retain for the benefit
of the state from the additional taxes on coal collected the
amount of thirty-five thousand dollars annually as a fee for the
administration of such additional tax by the tax commissioner.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5A. WEST VIRGINIA EMERGENCY RESPONSE AND COMMUNITY
RIGHT-TO-KNOW ACT.
§15-5A-4. State emergency response commission created;
composition and organization, qualifications, terms,
removal, compensation, meetings.
(a) There is hereby created the state emergency response
commission.
(b) The state emergency response commission shall consist of
eleven members, including the director of the
department of
natural resources division of environmental protection, the
director of the health department commissioner of the division of
public health, the
director chief of the
office of air
quality
pollution control commission of the division of environmental
protection, the director of the office of emergency services, the
superintendent of the
department division of public safety, the
commissioner of the
department division of highways; one designeeof the public service commission and one designee of the state
fire marshal, all of whom
shall be are members ex officio. A
representative from the chemical industry, a representative of a
municipal or volunteer fire department and a representative of
the public who
shall be is knowledgeable in the area of emergency
response shall be appointed by the governor as public members of
the state emergency response commission. The director of the
office of emergency services
shall serve serves as the
chairman
chair of the commission and
shall may cast a vote only in the
event of a tie vote. Members
shall serve without compensation,
but shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of their duties under this
article. The initial public members appointed by the governor
shall shall serve for a term ending on the first day of July, one
thousand nine hundred ninety-one. A successor to a public member
of the commission shall be appointed in the same manner as the
original public members and
shall have has a term of office
expiring two years from the date of the expiration of the term
for which his
or her predecessor was appointed. In cases of any
vacancy among the public members, such vacancy shall be filled by
appointment by the governor. Any member appointed to fill a
vacancy on the commission occurring prior to the expiration of
the term for which his
or her predecessor was appointed shall be
appointed for the remainder of such term. Members appointed by
the governor may be removed by the governor in case of
incompetency, neglect of duty, gross immorality or malfeasance inoffice.
(c) The commission shall elect from its membership a vice
chairman chair and appoint a secretary. The secretary need not
be a member of the commission. The vice
chairman chair shall
preside over the meetings and hearings of the commission in the
absence of the
chairman chair. The commission may appoint and
employ such personnel as may be required, whose duties shall be
defined by the commission and whose compensation, to be fixed by
the commission, shall be paid out of the state treasury, upon the
requisition of the commission, from moneys appropriated for such
purposes.
(d) The commission may establish procedural rules in
accordance with chapter twenty-nine-a of the code for the
regulation of its affairs and the conduct of all proceedings
before it. All proceedings of the commission shall be entered in
a permanently bound record book, properly indexed, and the same
shall be carefully preserved and attested by the secretary of the
commission. The commission shall meet at such times and places
as may be agreed upon by the commissioners, or upon the call of
the chairman of the commission or any two members of the
commission, all of which meetings shall be general meetings for
the consideration of any and all matters which may properly come
before the commission. A majority of the commission
shall
constitute constitutes a quorum for the transaction of business.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE BUREAU OF PUBLIC HEALTH.
§16-1-9. Supervision over local sanitation.
No person, firm, company, corporation, institution or
association, whether public or private, county or municipal,
shall install or establish any system or method of drainage,
water supply, or sewage or excreta disposal without first
obtaining a written permit to install or establish such system or
method from the commissioner of the bureau of public health or
his or her authorized representative. All such systems or
methods shall be installed or established in accordance with
plans, specifications and instructions issued by the commissioner
or which have been approved in writing by the commissioner or his
or her authorized representative.
Whenever the commissioner of the bureau of public health or
his or her authorized representative finds upon investigation
that any system or method of drainage, water supply, or sewage or
excreta disposal, whether publicly or privately owned, has not
been installed in accordance with plans, specifications and
instructions issued by the commissioner approved in writing by
the commissioner or his or her duly authorized representative,
the commissioner or his or her duly authorized representative may
issue an order requiring the owner of such system or method to
make alterations as may be necessary to correct the improper
condition. Such alterations shall be made within a reasonable
time which shall not exceed thirty days, unless a time extension
is authorized by the commissioner or his or her duly authorized
representative.
The presence of sewage or excreta being disposed of in a
manner not approved by the commissioner of the bureau of public
health or his or her authorized representative
shall constitute
constitutes prima facie evidence of the existence of a condition
endangering public health.
The personnel of the bureau of public health shall be
available to consult and advise with any person, firm, company,
corporation, institution or association, whether publicly or
privately owned, county or municipal, or public service
authority, as to the most appropriate design, method of operation
or alteration of any such system or method.
Any person, firm, company, corporation, institution or
association, whether public or private, county or municipal, who
shall violate violates any provisions of this section
shall be
deemed is guilty of a misdemeanor, and, upon conviction thereof,
shall be punished by a fine of not less than twenty-five dollars
nor more than five hundred dollars. The continued failure or
refusal of such convicted person, firm, company, corporation,
institution or association, whether public or private, county or
municipal, to make the alterations necessary to protect the
public health required by the commissioner of the bureau of
public health or his or her duly authorized representative
shall
constituten
is a separate, distinct and additional offense for
each twenty-four hour period of such failure or refusal, and,
upon conviction thereof, the violator shall be fined not less
than twenty-five dollars nor more than five hundred dollars foreach such conviction:
Provided,
That none of the provisions
contained in this section shall apply to those commercial or
industrial wastes which are subject to the regulatory control of
the West Virginia division of natural resources or the West
Virginia air pollution control commission environmental
protection.
Magistrates shall have concurrent jurisdiction with the
circuit courts of this state for violations of any provisions of
this section.
§16-1-14a. Director Commissioner authorized to designate a
representative to serve in his or her place on certain
boards and commissions.
Notwithstanding any other provision of this code to the
contrary, the director commissioner may, at his or her
discretion, designate in writing a representative to serve in his
or her stead at the meetings and in the duties of all boards and
commissions on which the director commissioner is designated as
a member ex officio. Such appropriately designated
representative or proxy may act with the full power and authority
of the director commissioner in voting, acting upon matters
concerning the public health and welfare and such other business
as may properly be the duty of any such said board or commission,
with any such representative serving as proxy for the director
commissioner at his or her will and pleasure:
Provided,
That the
provisions of this section shall do not apply to the state board
of health, the medical licensing board, the air pollution controlcommission quality board or any other board, commission or body
on which the director commissioner is designated by this code as
chairman ex officio, secretary ex officio or any board,
commission or body on which the director commissioner is
designated by this code as being that person whose signature must
appear on licenses, minutes or other documents necessary to carry
out the intents and purposes of said board, commission or body.
ARTICLE 9. OFFENSES GENERALLY.
§16-9-2. Throwing or releasing dead animals or offensive
substances into waters used for domestic purposes;
penalties; jurisdiction; failure to bury or destroy
offensive substances after conviction; successive offenses.
Any person who knowingly and willfully throws, causes to be
thrown or releases any dead animal, carcass, or part thereof,
garbage, sink or shower waste, organic substance, human or animal
excrement, contents of privy vault, septic tank, cesspool or the
effluent from any cesspool or nauseous or offensive or poisonous
substances into any well, cistern, spring, brook, pond, stream or
other body of water which is used for domestic purposes, shall be
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than twenty-five dollars nor more than two
hundred dollars. None of the provisions contained in this
section shall apply to those commercial or industrial wastes
which are subject to the regulatory control of the West Virginia
department of natural resources or the West Virginia air
pollution control commission division of environmentalprotection.
Upon conviction of any such offense, the person convicted
shall, within twenty-four hours after such conviction, remove and
bury or cause to be buried at least three feet under the ground
or destroy or cause to be destroyed as otherwise directed by the
state director of commissioner of the bureau of public of health
or his or her duly authorized representative any of such
offensive materials which the person so convicted has thrown,
caused to be thrown, released or knowingly permitted to remain in
water used for domestic purposes, contrary to the provisions of
this section, and his or her failure or refusal to do so shall
constitute is a misdemeanor and a second violation of the
provisions of this section. The continued failure or refusal of
such convicted person to so bury or destroy such offensive
materials shall constitute is a separate, distinct and additional
offense for each successive twenty-four hour period of such
failure or refusal. Any person convicted of any offense
described in this paragraph shall be fined not less than twenty-
five dollars nor more than two hundred dollars, or imprisoned in
the county jail not more than ninety days, or both fined and
imprisoned.
§16-9-3. Depositing dead animals or offensive substances in or
near waters or on or near roads or on public or private
grounds; penalties; failure to bury or destroy offensive
substances after conviction; successive offenses.
Any person (1) who throws, causes to be thrown or releasesany dead animal, carcass, or part thereof, garbage, sink or
shower waste, organic substances, contents of a privy vault,
septic tank, cesspool or the effluent from any cesspool, spoiled
meat or nauseous or offensive or poisonous substances into any
river, creek or other stream, or upon the surface of any land
adjacent to any river, creek or other stream in such a location
that high water or normal drainage conditions will cause such
offensive materials to be washed, drained or cast into the river,
creek or other stream; or (2) who throws, or causes to be thrown
or releases any of such offensive materials upon the surface of
any road, right-of-way, street, alley, city or town lot, public
ground, market space, common or private land, or (3) who, being
the owner, lessee or occupant of any city or town lot, public
ground, market space, common or private land knowingly permits
any such offensive materials to remain thereon or neglects or
refuses to remove or abate the public health menace or nuisance
occasioned thereby, within twenty-four hours of the service of
notice thereof in writing from the state director of commissioner
of the bureau of public health or his or her duly authorized
representative, shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than one thousand dollars. None of the
provisions contained in this section shall apply to those
commercial or industrial wastes which are subject to the
regulatory control of the West Virginia department of natural
resources or the West Virginia air pollution control commissiondivision of environmental protection.
Upon a conviction for any such offense, the person shall,
within twenty-four hours after such conviction, remove and bury
or cause to be buried at least three feet under the ground, or
destroy or cause to be destroyed as otherwise directed by the
state director of commissioner of the bureau of public health or
his or her duly authorized representative, any of such offensive
materials which the person so convicted has placed or knowingly
permitted to remain upon such city or town lot, public ground,
market space, common or private land, contrary to the provisions
of this section. Such person's failure or refusal to do so shall
constitute is a misdemeanor and a second offense against the
provisions of this section. The continued failure or refusal of
such convicted person to remove and bury or destroy such
offensive materials shall constitute is a separate, distinct and
additional offense for each successive twenty-four-hour period of
such failure and refusal. Any person convicted of any offense
described in this paragraph shall be fined not less than one
hundred dollars nor more than one thousand dollars, or imprisoned
in the county jail not more than ninety days, or both fined and
imprisoned.
ARTICLE 12. SANITARY DISTRICTS FOR SEWAGE DISPOSAL.
§16-12-6. Penalty for failure to provide sewers and sewage
treatment plant; duties of office of water resources;
prosecution.
All sanitary districts organized under the provisions ofthis article shall proceed as rapidly as possible to provide
sewers and a plant or plants for the treatment or purification of
its sewage, which plant or plants shall be of suitable kind and
sufficient capacity to properly treat and purify such sewage so
as to conduce to the preservation of the public health, comfort
and convenience and to render said sewage harmless, insofar as is
reasonably possible, to animal, fish and plant life. Any
violation of this proviso and any failure to observe and follow
same, by any sanitary district organized under this article,
shall be held, and is hereby declared, to be is a misdemeanor on
the part of the sanitary district and upon conviction, said
sanitary district shall be punished by such fine as law and
equity may require, and the trustees thereof may be removed from
office as trustees of said sanitary district by an order of the
court before whom the cause is heard. It shall be is the duty of
the state water resources board division of environmental
protection or state department of the bureau of public health or
other body having proper supervision of such matters, to cause
enforce the foregoing provisions; to be enforced; and upon
complaint of said board office or department bureau it shall be
is the duty of the attorney general or prosecuting attorney of
the county in which such violation may occur, to institute and
prosecute such cause by indictment or in the manner provided by
law.
ARTICLE 13. SEWAGE WORKS OF MUNICIPAL CORPORATIONS AND SANITARY
DISTRICTS.
§16-13-23a. Additional powers of municipality upon receipt of
order to cease pollution.
Notwithstanding any other provision contained in this
article, and in addition thereto, the governing body of any
municipal corporation which has received or which hereafter
receives an order issued by the chief director of the division of
water resources environmental protection or the state water
resources environmental quality board requiring such municipal
corporation to cease the pollution of any stream or waters, is
hereby authorized and empowered to fix, establish and maintain,
by ordinance, just and equitable rates or charges for the use of
the services and facilities of the existing sewer system of such
municipal corporation, and/or for the use of the services and
facilities to be rendered upon completion of any works and system
necessary by virtue of said order, to be paid by the owner,
tenant or occupant of each and every lot or parcel of real estate
or building that is connected with and uses any part of such
sewer system, or that in any way uses or is served thereby, and
may change and readjust such rates or charges from time to time.
Such rates or charges shall be sufficient for the payment of all
the proper and reasonable costs and expenses of the acquisition
and construction of plants, machinery and works for the
collection and/or treatment, purification and disposal of sewage,
and the repair, alteration and extension of existing sewer
facilities, as may be necessary to comply with such order of the
chief director of the division of water resources environmentalprotection or the state water resources environmental quality
board, and for the operation, maintenance and repair of the
entire works and system; and the governing body shall create, by
ordinance, a sinking fund to accumulate and hold any part or all
of the proceeds derived from rates or charges until completion of
said construction, to be remitted to and administered by the
state sinking fund municipal bond commission by expending and
paying said costs and expenses of construction and operation in
the manner as provided by said ordinance; and after the
completion of the construction such rates or charges shall be
sufficient in each year for the payment of the proper and
reasonable costs and expenses of operation, maintenance, repair
replacement, and extension from time to time, of the entire sewer
and works. No such rates or charges shall be established until
after a public hearing, at which all the potential users of the
works and owners of property served or to be served thereby and
others interested shall have had an opportunity to be heard
concerning the proposed rates or charges. After introduction of
the ordinance fixing such rates or charges, and before the same
is finally enacted, notice of such hearing, setting forth the
proposed schedule of such rates or charges, shall be given by
publication of such notice as a Class II-O legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area for such
publication shall be is the municipality. The first publication
shall be made at least ten days before the date fixed therein forthe hearing. After such hearing, which may be adjourned from
time to time, the ordinance establishing the rates or charges,
either as originally introduced or as modified and amended, may
be passed and put into effect. A copy of the schedule of such
rates and charges so established shall be kept on file in the
office of the sanitary board having charge of the construction
and operation of such works, and also in the office of the clerk
of the municipality, and shall be open to inspection by all
parties interested. The rates or charges so established for any
class of users or property served shall be extended to cover any
additional premises thereafter served which fall within the same
class, without the necessity of any hearing or notice. Any
change or readjustment of such rates or charges may be made in
the same manner as such rates or charges were originally
established as hereinbefore provided:
Provided,
That if such
change or readjustment be made substantially pro rata, as to all
classes of service, no hearing or notice shall be is required.
If any rate or charge so established shall is not be paid within
thirty days after the same is due, the amount thereof, together
with a penalty of ten percent, and a reasonable attorney's fee,
may be recovered by the sanitary board of such municipal
corporation in a civil action in the name of the municipality.
Any municipal corporation exercising the powers given herein
shall have has authority to construct, acquire, improve, equip,
operate, repair and maintain any plants, machinery, or works
necessary to comply with such order of the state water resourcesdirector of the division of environmental protection or the
environmental quality board, and the authority provided herein to
establish, maintain and collect rates or charges shall be
construed as a further is an additional and alternative method of
financing such works and matters, and shall be is independent of
any other provision of this article insofar as such article
provides for or requires the issuance of revenue bonds or the
imposition of rates and charges in connection with such bonds:
Provided, however,
That except for the method of financing such
works and matters, the construction, acquisition, improvement,
equipment, custody, operation, repair and maintenance of any
plants, machinery or works in compliance with an order of the
state water resources director of the division of environmental
protection or the environmental quality board, and the rights,
powers, and duties of such municipal corporation and the
respective officers and departments thereof, including the
sanitary board, shall be are governed by the provisions of this
article.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND
GAS SERVICES.
§16-13A-1b. County commissions to develop plan to create,
consolidate, merge, expand or dissolve public service
districts.
Each county commission shall conduct a study of all public
service districts which have their principal offices within its
county and shall develop a plan relating to the creation,consolidation, merger, expansion or dissolution of such districts
or the consolidation or merger of management and administrative
services and personnel and shall present such plan to the public
service commission for approval, disapproval, or modification:
Provided,
That within ninety days of the effective date of this
section each county commission in this state shall elect either
to perform its own study or request that the public service
commission perform such study. Each county commission electing
to perform its own study shall have has one year from the date of
election to present such plan to the public service commission.
For each county wherein the county commission elects not to
perform its own study, the public service commission shall
conduct a study of such county. The public service commission
shall establish a schedule for such studies upon a priority
basis, with those counties perceived to have the greatest need of
creation or consolidation of public service districts receiving
the highest priority. In establishing the priority schedule, and
in the performance of each study, the department of bureau of
public health and the department of natural resources division of
environmental protection shall offer their assistance and
cooperation to the public service commission. Upon completion by
the public service commission of each study, it shall be
submitted to the appropriate county commission for review and
comment. Each county commission shall have has six months in
which to review the study conducted by the public service
commission, suggest changes or modifications thereof, and presentsuch plan to the public service commission. All county plans,
whether conducted by the county commission itself or submitted as
a result of a public service commission study, shall, by order,
be approved, disapproved or modified by the public service
commission in accordance with rules and regulations promulgated
by the public service commission and such order shall be
implemented by the county commission.
§16-13A-3. District to be a public corporation and political
subdivision; powers thereof; public service boards.
From and after the date of the adoption of the order
creating any public service district, it shall thereafter be is
a public corporation and political subdivision of the state, but
without any power to levy or collect ad valorem taxes. Each
district may acquire, own and hold property, both real and
personal, in its corporate name, and may sue, may be sued, may
adopt an official seal and may enter into contracts necessary or
incidental to its purposes, including contracts with any city,
incorporated town or other municipal corporation located within
or without its boundaries for furnishing wholesale supply of
water for the distribution system of the city, town or other
municipal corporation, and contract for the operation,
maintenance, servicing, repair and extension of any properties
owned by it or for the operation and improvement or extension by
the district of all or any part of the existing municipally owned
public service properties of any city, incorporated town or other
municipal corporation included within the district:
Provided,
That no contract shall extend beyond a maximum of forty years,
but provisions may be included therein for a renewal or
successive renewals thereof and shall conform to and comply with
the rights of the holders of any outstanding bonds issued by the
municipalities for the public service properties.
The powers of each public service district shall be vested
in and exercised by a public service board consisting of not less
than three members, who shall be persons residing within the
district who possess certain educational, business or work
experience which will be conducive to operating a public service
district. Each board member shall, within six months of taking
office, successfully complete the training program to be
established and administered by the public service commission in
conjunction with the department of natural resources division of
environmental protection and the department of bureau of public
health. Board members shall not be or become pecuniarily
interested, directly or indirectly, in the proceeds of any
contract or service, or in furnishing any supplies or materials
to the district, nor shall a former board member be hired by the
district in any capacity within a minimum of twelve months after
such board member's term has expired or such board member has
resigned from the district board. The members shall be appointed
in the following manner:
Each city, incorporated town or other municipal corporation
having a population of more than three thousand but less than
eighteen thousand shall be is entitled to appoint one member ofthe board, and each such city, incorporated town or other
municipal corporation having a population in excess of eighteen
thousand shall be entitled to appoint one additional member of
the board for each additional eighteen thousand population. The
members of the board representing such cities, incorporated towns
or other municipal corporations shall be residents thereof and
shall be appointed by a resolution of the governing bodies
thereof and upon the filing of a certified copy or copies of the
resolution or resolutions in the office of the clerk of the
county commission which entered the order creating the district,
the persons so appointed shall thereby become members of the
board without any further act or proceedings. If the number of
members of the board so appointed by the governing bodies of
cities, incorporated towns or other municipal corporations
included in the district shall equal or exceed equals or exceeds
three, then no further members shall be appointed to the board
and the members shall be and constitute so appointed are the
board of the district.
If no city, incorporated town or other municipal corporation
having a population of more than three thousand is included
within the district, then the county commission which entered the
order creating the district shall appoint three members of the
board, who are persons residing within the district, which three
members shall become members of and constitute the board of the
district without any further act or proceedings.
If the number of members of the board appointed by thegoverning bodies of cities, incorporated towns or other municipal
corporations included within the district is less than three,
then the county commission which entered the order creating the
district shall appoint such additional member or members of the
board, who are persons residing within the district, as is
necessary to make the number of members of the board equal three;
and the additional member or members shall thereupon become
members of the board; and the member or members appointed by the
governing bodies of the cities, incorporated towns or other
municipal corporations included within the district and the
additional member or members appointed by the county commission
as aforesaid, shall be and constitute are the board of the
district. A person may serve as a member of the board in one or
more public service districts.
The population of any city, incorporated town or other
municipal corporation, for the purpose of determining the number
of members of the board, if any, to be appointed by the governing
body or bodies thereof, shall be conclusively considered to be is
the population stated for such city, incorporated town or other
municipal corporation in the last official federal census.
Notwithstanding any provision of this code to the contrary,
whenever a district is consolidated or merged pursuant to section
two of this article, the terms of office of the existing board
members shall end on the effective date of the merger or
consolidation. The county commission shall appoint a new board
according to rules and regulations promulgated by the publicservice commission.
The respective terms of office of the members of the first
board shall be fixed by the county commission and shall be as
equally divided as may be, that is approximately one third of the
members for a term of two years, a like number for a term of
four, and the term of the remaining member or members for six
years, from the first day of the month during which the
appointments are made. The first members of the board appointed
as aforesaid shall meet at the office of the clerk of the county
commission which entered the order creating the district as soon
as practicable after the appointments and shall qualify by taking
an oath of office:
Provided,
That any member or members of the
board may be removed from their respective office as provided in
section three-a of this article.
Any vacancy shall be filled for the unexpired term within
thirty days, otherwise successor members of the board shall be
appointed for terms of six years and the terms of office shall
continue until successors have been appointed and qualified. All
successor members shall be appointed in the same manner as the
member succeeded was appointed.
The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of
its members to serve as chairman chair and by appointing a
secretary and a treasurer who need not be members of the board.
The secretary shall keep a record of all proceedings of the boardwhich shall be available for inspection as other public records.
Duplicate records shall be filed with the county commission and
shall include the minutes of all board meetings. The treasurer
is lawful custodian of all funds of the public service district
and shall pay same out on orders authorized or approved by the
board. The secretary and treasurer shall perform other duties
appertaining to the affairs of the district and shall receive
salaries as shall be prescribed by the board. The treasurer
shall furnish bond in an amount to be fixed by the board for the
use and benefit of the district.
The members of the board, and the chairman chair, secretary
and treasurer thereof, shall make available to the county
commission, at all times, all of its books and records pertaining
to the district's operation, finances and affairs, for inspection
and audit. The board shall meet at least monthly.
§16-13A-9. Rules; and regulations service rates and charges;
discontinuance of service; required water and sewer
connections; lien for delinquent fees.
The board may make, enact and enforce all needful rules and
regulations in connection with the acquisition, construction,
improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or
controlled by the district, and the board shall establish rates
and charges for the services and facilities it furnishes, which
shall be sufficient at all times, notwithstanding the provisions
of any other law or laws, to pay the cost of maintenance,operation and depreciation of such public service properties and
principal of and interest on all bonds issued, other obligations
incurred under the provisions of this article and all reserve or
other payments provided for in the proceedings which authorized
the issuance of any bonds hereunder. The schedule of such rates
and charges may be based upon either (a) the consumption of water
or gas on premises connected with such facilities, taking into
consideration domestic, commercial, industrial and public use of
water and gas; or (b) the number and kind of fixtures connected
with such facilities located on the various premises; or (c) the
number of persons served by such facilities; or (d) any
combination thereof; or (e) may be determined on any other basis
or classification which the board may determine to be fair and
reasonable, taking into consideration the location of the
premises served and the nature and extent of the services and
facilities furnished. Where water, sewer and gas services are
all furnished to any premises, the schedule of charges may be
billed as a single amount for the aggregate thereof. The board
shall require all users of services and facilities furnished by
the district to designate on every application for service
whether the applicant is a tenant or an owner of the premises to
be served. If the applicant is a tenant, he or she shall state
the name and address of the owner or owners of the premises to be
served by the district. All new applicants for service shall
deposit a minimum of fifty dollars with the district to secure
the payment of service rates and charges in the event they becomedelinquent as provided in this section. In any case where a
deposit is forfeited to pay service rates and charges which were
delinquent at the time of disconnection or termination of
service, no reconnection or reinstatement of service may be made
by the district until another minimum deposit of fifty dollars
has been remitted to the district. Whenever any rates, rentals
or charges for services or facilities furnished remain unpaid for
a period of thirty days after the same become due and payable,
the property and the owner thereof, as well as the user of the
services and facilities provided shall be are delinquent and the
owner, user and property shall be held are liable at law until
such time as all such rates and charges are fully paid:
Provided,
That the property owner shall be given notice of any
said delinquency by certified mail, return receipt requested.
The board may, under reasonable rules and regulations promulgated
by the public service commission, shut off and discontinue water
or gas services to all delinquent users of either water or gas
facilities, or both:
Provided, however,
That upon written
request of the owner or owners of the premises, the board shall
shut off and discontinue water and gas services where any rates,
rentals, or charges for services or facilities remain unpaid by
the user of the premises for a period of sixty days after the
same became due and payable.
In the event that any publicly or privately owned utility,
city, incorporated town, other municipal corporation or other
public service district included within the district owns andoperates separately either water facilities or sewer facilities,
and the district owns and operates the other kind of facilities,
either water or sewer, as the case may be, then the district and
such publicly or privately owned utility, city, incorporated town
or other municipal corporation or other public service district
shall covenant and contract with each other to shut off and
discontinue the supplying of water service for the nonpayment of
sewer service fees and charges:
Provided,
That any contracts
entered into by a public service district pursuant to this
section shall be submitted to the public service commission for
approval. Any public service district providing water and sewer
service to its customers shall have has the right to terminate
water service for delinquency in payment of either water or sewer
bills. Where one public service district is providing sewer
service and another public service district or a municipality
included within the boundaries of the sewer district is providing
water service, and the district providing sewer service
experiences a delinquency in payment, the district or the
municipality included within the boundaries of the sewer district
that is providing water service, upon the request of the district
providing sewer service to the delinquent account, shall
terminate its water service to the customer having the delinquent
sewer account:
Provided, however,
That any termination of water
service must comply with all rules, regulations and orders of the
public service commission.
Any district furnishing sewer facilities within the districtmay require, or may by petition to the circuit court of the
county in which the property is located, compel or may require
the department of bureau of public health to compel all owners,
tenants or occupants of any houses, dwellings and buildings
located near any such sewer facilities, where sewage will flow by
gravity or be transported by such other methods approved by the
department of bureau of public health including, but not limited
to, vacuum and pressure systems, approved under the provisions of
section nine, article one, chapter sixteen of this code, from
such houses, dwellings or buildings into such sewer facilities,
to connect with and use such sewer facilities, and to cease the
use of all other means for the collection, treatment and disposal
of sewage and waste matters from such houses, dwellings and
buildings where there is such gravity flow or transportation by
such other methods approved by the department of bureau of public
health including, but not limited to, vacuum and pressure
systems, approved under the provisions of section nine, article
one, chapter sixteen of this code, and such houses, dwellings and
buildings can be adequately served by the sewer facilities of the
district, and it is hereby found, determined and declared that
the mandatory use of such sewer facilities provided for in this
paragraph is necessary and essential for the health and welfare
of the inhabitants and residents of such districts and of the
state:
Provided,
That if the public service district determines
that the property owner must connect with the sewer facilities
even when sewage from such dwellings may not flow to the mainline by gravity and the property owner must incur costs for any
changes in the existing dwellings' exterior plumbing in order to
connect to the main sewer line, the public service district board
shall authorize the district to pay all reasonable costs for such
changes in the exterior plumbing, including, but not limited to,
installation, operation, maintenance and purchase of a pump, or
any other method approved by the department of bureau of public
health; maintenance and operation costs for such extra
installation should be reflected in the users charge for approval
of the public service commission. The circuit court shall
adjudicate the merits of such petition by summary hearing to be
held not later than thirty days after service of petition to the
appropriate owners, tenants or occupants.
Whenever any district has made available sewer facilities to
any owner, tenant or occupant of any house, dwelling or building
located near such sewer facility, and the engineer for the
district has certified that such sewer facilities are available
to and are adequate to serve such owner, tenant or occupant, and
sewage will flow by gravity or be transported by such other
methods approved by the department of bureau of public health
from such house, dwelling or building into such sewer facilities,
the district may charge, and such owner, tenant or occupant shall
pay the rates and charges for services established under this
article only after thirty-day notice of the availability of the
facilities has been received by the owner.
All delinquent fees, rates and charges of the district foreither water facilities, sewer facilities or gas facilities are
liens on the premises served of equal dignity, rank and priority
with the lien on such premises of state, county, school and
municipal taxes. In addition to the other remedies provided in
this section, public service districts are hereby granted a
deferral of filing fees or other fees and costs incidental to the
bringing and maintenance of an action in magistrate court for
the collection of delinquent water, sewer or gas bills. If the
district collects the delinquent account, plus reasonable costs,
from its customer or other responsible party, the district shall
pay to the magistrate the normal filing fee and reasonable costs
which were previously deferred. In addition, each public service
district may exchange with other public service districts a list
of delinquent accounts.
Anything in this section to the contrary notwithstanding,
any establishment, as defined in section two three, article five-
a eleven, chapter twenty twenty-two, now or hereafter operating
its own sewage disposal system pursuant to a permit issued by the
department of natural resources division of environmental
protection, as prescribed by section seven eleven, article five-a
eleven, chapter twenty twenty-two of this code, is exempt from
the provisions of this section.
§16-13A-21. Complete authority of article; liberal
construction; district to be public instrumentality; tax
exemption.
This article shall constitute is full and complete authorityfor the creation of public service districts and for carrying out
the powers and duties of same as herein provided. The provisions
of this article shall be liberally construed to accomplish its
purpose and no procedure or proceedings, notices, consents or
approvals, shall be are required in connection therewith except
as may be prescribed by this article:
Provided,
That all
functions, powers and duties of the public service commission of
West Virginia, the state department of bureau of public health,
the division of environmental protection and the state water
resources environmental quality board shall remain unaffected by
this article. Every district organized, consolidated, merged or
expanded under this article is declared to be a public
instrumentality created and functioning in the interest and for
the benefit of the public, and its property and income and any
bonds issued by it shall be are exempt from taxation by the state
of West Virginia, and the other taxing bodies of the state:
Provided, however,
That the board of any such district may use
and apply any of its available revenues and income for the
payment of what such board determines to be tax or license fee
equivalents to any local taxing body and in any proceedings for
the issuance of bonds of such district may reserve the right to
annually pay a fixed or computable sum to such taxing bodies as
such tax or license fee equivalent.
ARTICLE 13B. COMMUNITY IMPROVEMENT ACT.
§16-13B-10. Notice to property owners of assessments; hearings,
correcting and laying assessments; report on project
completion; permits.
(a) After the execution of an agreement or agreements for
the construction of a project with another governmental agency or
the acceptance by the board of a bid by one or more contractors
as contemplated by section nine of this article, but prior to the
commencement of construction, the board shall cause the engineer,
governmental agency or person charged by the board with the
supervision of the project, to prepare a report describing each
lot or parcel of land abutting the project in the case of a
wastewater or water project, or each lot or parcel on which a
flood relief project shall be undertaken or shall protect in the
case of such a project; and setting forth the total cost of the
project based on the contract with the governmental agency, or
the accepted bid or bids, and all other costs incurred prior to
the commencement of construction, and the respective amounts
chargeable upon each lot or parcel of land which may be assessed
and the proper amount to be assessed against the respective lots
or parcels of land in accordance with sections eleven and twelve
of this article, with a description of the lots and parcels of
land as to ownership, frontage and location. If two or more
different kinds of projects are involved, the report shall set
forth the portion of the assessment attributable to each
respective project. The board shall thereupon give notice to the
owners of property to be assessed that on or after a date
specified in the notice an assessment may be levied against the
property:
Provided,
That construction of a project shall notcommence until the assessment district has laid all assessments
on the property to be benefitted by the project and has issued
all assessment certificates necessary to evidence the assessments
in accordance with section fifteen of this article. The notice
shall state that the owner of assessed property, or other
interested party, may on said date appear before the board to
move the revision or correction of the proposed assessment, and
shall show the total cost of the project, whether the assessments
will pay for all or part of the total cost of the project, and
the lots or parcels of property to be assessed and the respective
amounts to be assessed against such lots or parcels, with a
description of the respective lots and parcels of land as to
ownership, frontage and location. The notice shall be published
as a Class II-O legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of the code, and
the publication area for such publication shall be is the
assessment district. On or after the date so advertised, the
board may revise, amend, correct and verify the report and
proceed by resolution to lay the assessments as corrected and
verified.
(b) Upon completion of a project, or the completion of that
portion of a project that provides water, wastewater or flood
protection benefits to the property subject to the assessments,
the board shall cause the engineer or committee charged by the
board with the supervision of the project, to prepare a final
report certifying the completion of the project and showing thetotal cost of the project and whether the cost is greater or less
than the cost originally estimated. If the total cost of the
project is less or greater than the cost shown in the report
prepared prior to construction, the board may revise the
assessment charged on each lot or parcel of land pursuant to
subsection (a) of this section to reflect the total cost of the
project as completed, and in so doing shall, in the case of an
assessment increase only, (1) follow the same procedure with
regard to notice and providing each owner of assessed property
the right to appear before the board to move for the revision or
correction of such proposed reassessment as required for the
original assessment, and (2) issue such additional assessment
certificates as may be necessary to evidence the amount by which
the assessment applicable to each lot or parcel of land has
increased. If an assessment is decreased, the board shall, by
resolution and written notice to the sheriff of the county in
which the assessment district is located, cause the next
installment or installments of assessment fees then due and
payable by each affected property owner to be reduced pro rata,
and shall provide written notice to such property owners of the
amount of such decrease by the deposit of such notice in the
United States mail, postage prepaid. In such cases the board
shall also transmit to the sheriff an amount of funds equal to
the difference between the cost of the project upon which the
assessments were originally laid and the cost of the project as
completed, and the sheriff shall disburse such funds to theholders of the assessment certificates issued in connection with
the project on a pro rata basis.
(c) Prior to the construction of a project, the board shall
obtain all permits and licenses required by law for the
construction and operation of the project:
Provided,
That the
board shall is not be required to obtain a certificate of public
convenience from the public service commission under article two,
chapter twenty-four of this code:
Provided, however,
That prior
to the construction of each project, the board shall apply to the
public service commission for authorization enabling the
construction and shall submit with said application any
certificate required by the division of public health, any
certification or permit required by the division of natural
resources environmental protection, the contract for utility
service, if a utility will be involved, a copy of the utility's
applicable, existing rate tariff, a copy of the order or
ordinance creating the board and a certificate of a qualified
professional engineer that the utility providing service has the
capacity to provide or treat, as the case may be. The public
service commission shall render its final decision on any
application filed under the provisions of this section within (i)
ninety days in the case of a project serving twenty-five or fewer
residential customers, or (ii) one hundred twenty days in the
case projects serving commercial customers or more than twenty-
five residential customers, following the submission of such
application and all information herein required.
ARTICLE 27. STORAGE AND DISPOSAL OF RADIOACTIVE WASTE MATERIALS.
§16-27-2. Storage or disposal of radioactive waste material
within the state prohibited; exceptions.
(a) No person shall store or dispose of any radioactive
waste material within the state:
Provided,
That the provisions
of this section shall not be deemed to do not prohibit (1) the
storage or disposal of such material produced within the state as
a result of medical, educational, research or industrial
activities and so stored or disposed of in compliance with all
applicable state and federal laws, or (2) the transportation of
such material out of or through the state when done in compliance
with all applicable state and federal laws:
Provided, however,
That such waste from industrial activities shall does not
include, for the purpose of this article, such material produced
from the operation of any nuclear power generation facility,
nuclear processing facility, or nuclear reprocessing facility.
(b) The disposal of radioactive waste material in a solid
waste facility or in a commercial solid waste facility, as
defined in section four two, article five-f fifteen, chapter
twenty twenty-two of this code, is prohibited.
ARTICLE 32. LICENSURE OF ASBESTOS ABATEMENT PROJECT DESIGNER,
INSPECTORS, CONTRACTORS, MANAGEMENT PLANNERS, WORKERS AND
SUPERVISORS.
§16-32-4. Asbestos management planner's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be is unlawful for an individual who doesnot possess a valid asbestos management planner's license to
design a building's or facility's asbestos management plan.
(b) To qualify for an asbestos management planner's license,
an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
management planners;
(2) Possess a valid asbestos inspector's license;
(3) Demonstrate to the satisfaction of the director that the
applicant is familiar with, and capable of complying fully, with
all applicable requirements, procedures and standards of the
United States environmental protection agency, the United States
occupational safety and health administration, the state
departments of bureau of public health, natural resources the
division of environmental protection and the division of labor
and the state air pollution control commission covering any part
of an asbestos project; and
(4) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos management planner's license
shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos management
planners to the department bureau and shall pay the applicable
fee. The director commissioner may deny a license if there has
been a failure to comply with the application procedures or ifthe applicant fails to satisfy the application criteria. Written
notice of such denial and an opportunity for reapplication shall
be afforded to all applicants.
§16-32-5. Asbestos abatement project designer's license
required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be unlawful for any person who does not
possess a valid asbestos abatement project designer's license to
specify engineering methods and work practices under asbestos
abatement contract to another person.
(b) To qualify for an asbestos abatement project designer's
license, an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for abatement project
designers;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, the United States
occupational safety and health administration, the state
departments of bureau of public health, natural resources the
division of environmental protection and the division of labor
and the state air pollution control commission covering any part
of an asbestos project;
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos abatement project designer's
license shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos abatement project
designers to the department bureau on the required form and shall
pay the applicable fee to the department bureau. The director
commissioner may deny a license if there has been a failure to
comply with the application procedure or if the applicant fails
to satisfy the application criteria. Written notice of denial
and an opportunity for reapplication shall be afforded to all
applicants.
§16-32-6. Asbestos contractor's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be is unlawful for any person who does not
possess a valid asbestos contractor's license to contract with
another person to abate, enclose, remove or encapsulate asbestos.
(b) To qualify for an asbestos contractor's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for contractors;
(2) Demonstrate to the satisfaction of the director that the
applicant and the applicant's employees or agents are familiar
with and are capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, the United States occupational
safety and health administration, the state departments of bureauof public health, natural resource the division of environmental
protection and the division of labor and the state air pollution
control commission covering any part of an asbestos project;
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos contractor's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environment protection agency
asbestos training course for contractors to the department bureau
on the required form and shall pay the applicable fee to the
department bureau. The director commissioner may deny a license
if there has been a failure to comply with the application
procedure or if the applicant fails to satisfy the application
criteria. Written notice of denial and an opportunity for
reapplication shall be afforded to all applicants.
(d) Licensed asbestos contractors shall carry out the
following duties:
(1) Ensure that each of the applicant's employees or agents
who will come into contact with asbestos or who will be
responsible for an asbestos project is licensed as an asbestos
worker;
(2) Ensure that each asbestos project is supervised by a
licensed asbestos abatement supervisor;
(3) Notify the department bureau and all other entities as
may be required by state or federal law at least twenty days
prior to commencement of each asbestos project. Notificationshall be sent by certified mail or hand-delivered to the
department;
(4) A licensed asbestos contractor shall keep a record of
each asbestos project and shall make the record available to the
state departments of bureau of public health, natural resources
the division of environmental protection and the division of
labor and the state air pollution control commission upon
request. Records required by this section shall be kept for at
least thirty years. The records shall include:
(A) The name, address and asbestos worker's license number
of the individual who supervised the asbestos project and each
employee or agent who worked on the project;
(B) The location and a description of the project and the
amount of asbestos material that was removed;
(C) The starting and completion dates of each project and a
summary of the procedures that were used to comply with all
federal and state standards; and
(D) The name and address of each asbestos disposal site
where waste containing asbestos was deposited and the disposal
site receipts.
§16-32-7. Asbestos abatement supervisor's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be is unlawful for an individual who does
not possess a valid asbestos abatement supervisor's license to
direct an asbestos abatement project.
(b) To qualify for an asbestos abatement supervisor'slicense, an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos abatement
supervisors;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, United States
occupational safety and health administration, the state
departments of bureau of public health, natural resources the
division of environmental protection and the division of labor
and the state air pollution control commission covering any part
of an asbestos project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos inspector's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos abatement supervisors to the
department bureau and shall pay the applicable fee. The director
commissioner may deny a license if there has been a failure to
comply with the application procedures or if the applicant fails
to satisfy the application criteria. Written notice of such
denial and an opportunity for reapplication shall be afforded to
all applicants.
§16-32-8. Asbestos inspector's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be is unlawful for an individual who does
not possess a valid asbestos inspector's license to work as an
asbestos inspector on an asbestos project.
(b) To qualify for an asbestos inspector's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
inspectors;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and capable of complying fully with
all applicable requirements, procedures and standards of the
United States environmental protection agency, United States
occupational safety and health administration, the state
departments of bureau of public health, natural resources the
division of environmental protection and the division of labor
and the state air pollution control commission covering any part
of an asbestos project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos inspector's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos inspectors to the department bureau
and shall pay the applicable fee. The director commissioner may
deny a license if there has been a failure to comply with theapplication procedures or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplication shall be afforded to all
applicants.
§16-32-9. Asbestos worker's license required.
(a) After the first day of July, one thousand nine hundred
eighty-nine, it shall be is unlawful for an individual who does
not possess a valid asbestos worker's license to work as an
asbestos worker on an asbestos project.
(b) To qualify for an asbestos worker's license an
individual shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos workers.
(2) Demonstrate to the satisfaction of the director that the
applicant and the applicant's employees or agents are familiar
with and are capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, the United States occupational
safety and health administration, the state departments of bureau
of public health, natural resources the division of environmental
protection and the division of labor and the state air pollution
control commission covering any part of an asbestos project.
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos worker's license shall submit
an application and a certificate that shows satisfactorycompletion of the United States environmental protection agency
training course for asbestos workers to the department bureau and
shall pay the applicable fee. The director commissioner may deny
a license if there has been a failure to comply with the
application procedures or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplication shall be afforded to all
applicants.
CHAPTER 19. AGRICULTURE.
ARTICLE 1A. DIVISION OF FORESTRY.
§19-1A-5. Forestry commission; qualifications and appointment
of director; powers and duties generally; appointment of
director by governor.
There is hereby created in the division of forestry in the
department of agriculture a forestry commission composed of three
members who are the commissioner of agriculture, the commissioner
of commerce and the director of the
department of natural
resources division of environmental protection. The commissioner
of agriculture
shall be the chairman is the chair of the
commission. No business shall be transacted by the commission in
the absence of a quorum which consists of two members including
the
chairman chair. The forestry commission shall hold meetings
quarterly or at the call of the
chairman chair. The commission
shall appoint the director of the division of forestry. In the
event that the commission cannot agree upon the appointment of a
director within sixty days of any vacancy therein, theappointment shall be made by the governor within sixty days
thereafter, but with the advice and consent of the Senate, in
either event. The salary of the director
shall be is forty-five
thousand dollars a year. The director shall be a graduate of a
school of forestry accredited by the Society of American
Foresters or have a minimum of ten years experience in forest
management and
shall serve serves at the will and pleasure of the
forestry commission. The commission serves as an advisory board
for the director and shall approve the division budget before it
is submitted to the department of
finance and administration by
the department.
ARTICLE 1B. SEDIMENT CONTROL DURING COMMERCIAL TIMBER HARVESTING
OPERATIONS.
§19-1B-3. Definitions.
(a) "Best management practices" means sediment control
measures, structural or nonstructural, used singly or in
combination, to reduce soil runoff from land disturbances
associated with commercial timber harvesting.
(b) "Chief" means the chief of the
section office of water
resources of the division of
natural resources environmental
protection, or his or her designee.
(c) "Director" means the director of the division of
forestry of the department of commerce, labor and environmental
resources, or his or her authorized designee.
(d) "Operator" means any person who conducts timbering
operations.
(e) "Timbering operations" means activities directly related
to the severing or removal of standing trees from the forest as
a raw material for commercial processes or purposes. For the
purpose of this article, timbering operations
shall do not
include the severing of evergreens grown for and severed for the
traditional Christmas holiday season,
or the severing of trees
incidental to ground-disturbing construction activities,
including well sites, access roads and gathering lines for oil
and natural gas operations,
nor or the severing of trees for
maintaining existing, or during construction of, rights-of-way
for public highways or public utilities or any company subject
to the jurisdiction of the federal energy regulatory commission
unless the trees so severed are being sold or provided as raw
material for commercial wood product purposes,
nor or the
severing of trees by an individual on the individual's own
property for his or her individual use provided that the
individual does not have the severing done by a person whose
business is the severing or removal of trees.
(f) "Sediment" means solid particulate matter, usually soil
or minute rock fragments, moved by wind, rainfall or snowmelt
into the streams of the state.
§19-1B-5. Compliance orders, suspension of timbering operating
license.
(a) Upon a finding by the chief that failure to use a
particular best management practice is causing or contributing,
or has the potential to cause or contribute, to soil erosion orwater pollution, the chief shall notify the director of the
location of the site, the problem associated with the site, and
any suggested corrective action. Upon the failure of the
director to take appropriate action within three days of
providing notice to the director, the chief may seek relief
through the conference panel in accordance with section eleven of
this article.
(b) Upon notification of the chief or upon a finding by the
director that failure to use a particular best management
practice is causing or contributing, or has the potential to
cause or contribute, to soil erosion or water pollution, the
director shall issue a written compliance order requiring the
person conducting the timber operation to take corrective action.
The order shall mandate compliance within a reasonable and
practical time, not to exceed ten days. The person subject to
the order may appeal the order within forty-eight hours of its
issuance to the conference panel in accordance with section
eleven of this article.
(c) In any circumstance where observed damage or
circumstances on a logging operation, in the opinion of the
director, are sufficient to endanger life or result in
uncorrectable soil erosion or water pollution, or if the operator
is not licensed pursuant to this article, or if a certified
logger is not supervising the operation, the director shall order
the immediate suspension of the timber operation and the
operation shall remain suspended until the corrective actionmandated in the compliance order suspending the operation is
instituted. The director shall not issue an order cancelling the
suspension order until compliance is satisfactory or until
overruled on appeal. Failure to comply with any compliance order
shall be is a violation of this article. The person subject to
the order may appeal to the conference panel in accordance with
the provisions of section eleven of this article.
(d) The director may suspend the license of any person
conducting a timbering operation or the certification of any
certified logger supervising a timbering operation, for no less
than thirty nor more than ninety days, if the person is found in
violation of this article or article
five-a eleven, chapter
twenty twenty-two of this code, for a second time within any two-
year period:
Provided,
That one or more violations for the same
occurrence may constitute is only one violation for purposes of
this subsection.
(e) The director may revoke the license of any person
conducting timbering operations or the certification of any
certified logger if the person is found in violation of this
article or article five-a eleven, chapter twenty twenty-two of
this code, for a third time within any two-year period:
Provided,
That one or more violations for the same occurrence may
constitute is only one violation for purposes of this subsection.
A revoked license shall is not be subject to reissue during the
licensing period for which it was issued.
(f) The director shall notify the chief of any order issuedor any suspension or revocation of a license pursuant to this
section within three days of the date of the director's action.
§19-1B-7. Certification of persons supervising timbering
operations, timbering operations to be supervised,
promulgation of rules and regulations.
(a) After the first day of July, one thousand nine hundred
ninety-three, any individual supervising any timbering operation
must be certified pursuant to this article.
(b) The director is responsible for the development of
standards and criteria for establishment of a regularly scheduled
program of education, training and examination that all persons
must successfully complete in order to be certified to supervise
any timbering operation. The program for certified loggers shall
provide, at a minimum, for education and training in the safe
conduct of timbering operations, in first aid procedures, and in
the use of best management practices to prevent, in-so-far as
possible, soil erosion on timbering operations. The goals of
this program will be to assure that timbering operations are
conducted in accordance with applicable state and federal safety
regulations in a manner that is safest for the individuals
conducting the operations and that they are performed in an
environmentally sound manner.
(c) The director shall provide for such programs by using
the resources of the division, other appropriate state agencies,
educational systems, and other qualified persons. Each inspector
under the jurisdiction of the chief shall attend a certificationprogram free of charge and complete the certification
requirements of this section.
(d) The director shall promulgate legislative rules in
accordance with article three, chapter twenty-nine-a, of this
code, which provide the procedure by which certification pursuant
to this article may be obtained and shall require the payment of
an application fee and an annual renewal fee of fifty dollars.
(e) Upon a person's successful completion of the
certification requirements, the director shall provide that
person with proof of the completion by issuing a numbered
certificate and a wallet-sized card to that person. The division
shall maintain a record of each certificate issued and the person
to whom it was issued.
(f) A certification granted pursuant to this section shall
be is renewable only for two succeeding years. For the third
renewal and every third renewal thereafter, the licensee shall
first attend a program designed by the director to update the
training.
(g) After the first day of July, one thousand nine hundred
ninety-three, every timbering operation must have at least one
person certified pursuant to this section supervising the
operation at any time the timbering operation is being conducted
and all timbering operators shall be guided by the West Virginia
forest practice standards and the West Virginia silvicultural
best management practices in selecting practices appropriate and
adequate for reducing sediment movement during a timberoperation.
(h) The director shall, at no more than three year intervals
after the effective date of this article, convene a committee to
review the best management practices so as to ensure that they
reflect and incorporate the most current technologies. The
committee shall, at a minimum, include a person doing research in
the field of silvicultural best management practices, a person
doing research in the field of silviculture, two loggers
certified under this article, a representative of the office of
water resources section of the division of natural resources
environmental protection, and a representative of an
environmentally active organization. The director shall chair
the committee and may adjust the then current best management
practices according to the suggestions of the committee in time
for the next certification cycle.
ARTICLE 12A. FARM MANAGEMENT COMMISSION.
§19-12A-5. Powers, duties and responsibilities of commission.
(a) On or before the first day of July, one thousand nine
hundred ninety, the commission shall meet and confer with respect
to the development of a management plan to determine the optimum
use or disposition of all institutional farms, at which time the
farm management director shall provide the commission with a
complete inventory of all institutional farms, and such
information relating to easements, mineral rights, appurtenances,
farm equipment, agricultural products, livestock, inventories and
farm facilities as may be necessary to develop such managementplan. The commission shall complete and provide to the governor
a management plan, which plan shall set forth the objectives of
the commission with respect to institutional farms, the criteria
by which the commission shall determine the optimum use or
disposition of such property, and determinations as to whether
each institutional farm shall be used in production, sold, or
leased, in whole or in part. Prior to the adoption of any plan,
the commission shall consult with the secretaries of the various
departments of state government and shall request from such
secretaries suggestions for land use and resource development on
farm commission lands. On or before the first day of December,
one thousand nine hundred ninety, such management plan shall be
presented to the Legislature, by providing a copy to the
president of the Senate and the speaker of the House of
Delegates. The commission may confer with any other agency or
individual in implementing and adjusting its management plan.
The management plan established pursuant to this subsection may
be amended, from time to time, as may be necessary.
(b) The commission shall manage its institutional farms,
equipment and other property in order to most efficiently produce
food products for state institutions and shall implement the
intent of the Legislature as set forth by this article. From the
total amount of food, milk and other commodities produced on
institutional farms, the commission shall sell, at prevailing
wholesale prices, and each of the institutions under the control
of the division of bureau of public health and the division ofcorrections shall purchase, a proportionate amount of these
products based on the dietary needs of each institution.
(c) If requested by the commissioner of corrections, the
commission may authorize the division of corrections to operate
a farm or other enterprise using inmates as labor on such lands.
The commissioner of corrections shall be is responsible for the
selection, direction and supervision of the inmates and shall
assign the work to be performed by inmates.
(d) The commission is hereby authorized and empowered to:
(1) Lease to public or private parties, for purposes
including agricultural production or experimentation, public
necessity, or other purposes permitted by the management plan,
any land, easements, equipment, or other property, except that
property may not be leased for any use in any manner that would
render the land toxic for agricultural use, nor may toxic or
hazardous materials as identified by the commissioner of
agriculture be used or stored upon such property unless all
applicable state and federal permits necessary are obtained. Any
lease for an annual consideration of one thousand dollars or more
shall be by sealed bid auction and the commission shall give
notice of such auction by publication thereof as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication shall be is the county in which the property
to be leased is located;
(2) Transfer to the public land corporation land designatedin its management plan as land to be disposed of, which land
shall be sold, exchanged or otherwise transferred pursuant to
sections four and five, article one-a, chapter twenty of this
code:
Provided,
That the net proceeds of the sale of farm
commission lands shall be deposited in the general revenue fund
of the state:
Provided, however,
That no sale may be concluded
until on or after the fifteenth day of March, one thousand nine
hundred ninety-one, except with respect to: (A) Properties
located at institutions closed on or before the effective date of
this section, the tenth day of March, one thousand nine hundred
ninety; or (B) properties conveyed to or from the farm management
commission to or from any other entity in order to facilitate the
construction of a regional jail or correctional facility by the
regional jail and correctional facilities authority or the state
building commission, with the decision to execute any such
conveyance being solely within the discretion of, and at the
direction of, the regional jail and correctional facilities
authority;
(3) Develop lands to which it has title for the public use
including forestation, recreation, wildlife, stock grazing,
agricultural production, rehabilitation and/or other conservation
activities and may contract or lease for the proper development
of timber, oil, gas or mineral resources, including coal by
underground mining or by surface mining where reclamation as
required by specifications of the division of energy
environmental protection will increase the beneficial use of suchproperty. Any such contract or lease shall be by sealed bid
auction as provided for in subdivision (1) above;
(4) Exercise all other powers and duties necessary to
effectuate the purposes of this article.
(e) Notwithstanding the provisions of subsection (d) herein,
no timberland may be leased, sold, exchanged or otherwise
disposed of unless the division of forestry of the department of
commerce, labor and environmental resources certifies that there
is no commercially salable timber on the timberland, an inventory
is provided, an appraisal of the timber is provided, and the
sale, lease, exchange or other disposition is accomplished by the
sealed bid auction procedure provided above in subdivisions (1)
or (2), as applicable.
(f) The commission shall promulgate, pursuant to chapter
twenty-nine-a of this code, rules and regulations relating to the
powers and duties of the commission as enumerated in this
section.
ARTICLE 21A. SOIL CONSERVATION DISTRICTS.
§19-21A-4. State soil conservation committee.
(a) There is hereby established, to serve as an agency of
the state and to perform the functions conferred upon it in this
article, the state soil conservation committee. The committee
shall consist consists of seven members. The following shall
serve, ex officio, as members of the committee: The director of
the state cooperative extension service; the director of the
state agricultural experiment station; the director of thedepartment of natural resources division of environmental
protection; and the state commissioner of agriculture, who shall
be chairman is chair of the committee.
The governor shall appoint as additional members of the
committee three representative citizens. The term of members
thus appointed shall be is four years, except that of the first
members so appointed, one shall be appointed for a term of two
years, one for a term of three years, and one for a term of four
years. In the event of a vacancy, appointment shall be is for
the unexpired term.
The committee may invite the secretary of agriculture of the
United States of America to appoint one person to serve with the
committee as an advisory member.
The committee shall keep a record of its official actions,
shall adopt a seal, which seal shall be judicially noticed, and
may perform such acts, hold such public hearings and promulgate
such rules and regulations as may be necessary for the execution
of its functions under this article.
(b) The state soil conservation committee may employ an
administrative officer and such technical experts and such other
agents and employees, permanent and temporary, as it may require,
and shall determine their qualifications, duties and
compensation. The committee may call upon the attorney general
of the state for such legal services as it may require. It shall
have has authority to delegate to its chairman chair, to one or
more of its members, or to one or more agents or employees, suchpowers and duties as it may deem proper. The committee is
empowered to secure necessary and suitable office accommodations,
and the necessary supplies and equipment. Upon request of the
committee, for the purpose of carrying out any of its functions,
the supervising officer of any state agency, or of any state
institution of learning shall, insofar as may be possible, under
available appropriations, and having due regard to the needs of
the agency to which the request is directed, assign or detail to
the committee, members of the staff or personnel of such agency
or institution of learning, and make such special reports,
surveys or studies as the committee may request.
(c) A member of the committee shall hold office so long as
he shall retain or she retains the office by virtue of which he
shall be or she is serving on the committee. A majority of the
committee shall constitute is a quorum, and the concurrence of a
majority in any matter within their duties shall be is required
for its determination. The chairman chair and members of the
committee shall receive no compensation for their services on the
committee, but shall be entitled to expenses, including traveling
expenses, necessarily incurred in the discharge of their duties
on the committee. The committee shall provide for the execution
of surety bonds for all employees and officers who shall be are
entrusted with funds or property; shall provide for the keeping
of a full and accurate public record of all proceedings and of
all resolutions, regulations rules and orders issued or adopted;
and shall provide for an annual audit of the accounts of receiptsand disbursements.
(d) In addition to the duties and powers hereinafter
conferred upon the state soil conservation committee, it shall
have has the following duties and powers:
(1) To offer such assistance as may be appropriate to the
supervisors of soil conservation districts, organized as provided
hereinafter, in the carrying out of any of their powers and
programs;
(2) To keep the supervisors of each of the several
districts, organized under the provisions of this article,
informed of the activities and experience of all other districts
organized hereunder, and to facilitate an interchange of advice
and experience between such districts and cooperation between
them;
(3) To coordinate the programs of the several soil
conservation districts organized hereunder so far as this may be
done by advice and consultation;
(4) To secure the cooperation and assistance of the United
States and any of its agencies, and of agencies of this state, in
the work of such districts;
(5) To disseminate information throughout the state
concerning the activities and programs of the soil conservation
districts organized hereunder, and to encourage the formation of
such districts in areas where their organization is desirable;
(6) To accept and receive donations, gifts, contributions,
grants and appropriations in money, services, materials orotherwise, from the United States or any of its agencies, from
the state of West Virginia, or from other sources, and to use or
expend such money, services, materials or other contributions in
carrying out the policy and provisions of this article, including
the right to allocate such money, services or materials in part
to the various soil conservation districts created by this
article in order to assist them in carrying on their operations;
(7) To obtain options upon and to acquire by purchase,
exchange, lease, gift, grant, bequest, devise or otherwise, any
property, real or personal, or rights or interests therein; to
maintain, administer, operate and improve any properties
acquired, to receive and retain income from such property and to
expend such income as required for operation, maintenance,
administration or improvement of such properties or in otherwise
carrying out the purposes and provisions of this article; and to
sell, lease or otherwise dispose of any of its property or
interests therein in furtherance of the purposes and the
provisions of this article. Money received from the sale of land
acquired in the small watershed program shall be deposited in the
special account of the state soil conservation committee and
expended as herein provided.
Pursuant to the provisions of section four, article ten,
chapter four of this code, the state soil conservation committee
shall continue to exist until the first day of July, one thousand
nine hundred ninety-two, to allow for the completion of an audit
by the joint committee on government operations ninety-eight.
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-5. Definitions.
For purposes of this article: (a) The term "land" shall
includes, but is not be limited to, roads, water, watercourses,
private ways and buildings, structures and machinery or equipment
thereon when attached to the realty; (b) the term "owner" shall
include includes, but is not be limited to, tenant, lessee,
occupant or person in control of the premises; (c) the term
"recreational purposes" shall include includes, but is not be
limited to, any one or any combination of the following: Hunting,
fishing, swimming, boating, camping, picnicking, hiking, pleasure
driving, nature study, water skiing, winter sports and visiting,
viewing or enjoying historical, archaeological, scenic or
scientific sites, or otherwise using land for purposes of the
user; (d) the term "wildlife propagation purposes" shall apply
applies to and include includes all ponds, sediment control
structures, permanent water impoundments, or any other similar or
like structure created or constructed as a result of or in
connection with surface mining activities, as governed by article
six three, chapter twenty twenty-two of this code, or from the
use of surface in the conduct of underground coal mining as
governed by articles one and two article three, chapter
twenty-two of this code, and regulations rules promulgated
thereunder, which ponds, structures or impoundments are hereafter
designated and certified in writing by the director of the
department of natural resources division of environmentalprotection and the owner to be necessary and vital to the growth
and propagation of wildlife, animals, birds and fish or other
forms of aquatic life, and finds and determines that such
premises has the potential of being actually used by such
wildlife for such purposes and that such premises are no longer
used or necessary for mining reclamation purposes. Such
certification shall be in form satisfactory to the director and
shall provide that such designated ponds, structures or
impoundments shall are not be removed without the joint consent
of the director and the owner; and (e) the term "charge" shall
mean means the amount of money asked in return for an invitation
to enter or go upon the land.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-2. Definitions.
As used in this chapter, unless the context clearly requires
a different meaning:
"Agency" means any branch, department or unit of the state
government, however designated or constituted.
"Alien" means any person not a citizen of the United States.
"Bag limit" or "creel limit" means the maximum number of
wildlife which may be taken, caught, killed or possessed by any
licensee.
"Board" means the water resources board of the department of
natural resources.
"Bona fide resident, tenant or lessee" means a person whopermanently resides on the land.
"Citizen" means any native born citizen of the United
States, and foreign born persons who have procured their final
naturalization papers.
"Closed season" means the time or period during which it
shall be unlawful to take any wildlife as specified and limited
by the provisions of this chapter.
"Commission" means the natural resources commission.
"Commissioner" means a member of the advisory commission of
the natural resources commission.
"Director" means the director of the
department division of
natural resources.
"Fishing" or "to fish" means the taking, by any means, of
fish, minnows, frogs, or other amphibians, aquatic turtles, and
other forms of aquatic life used as fish bait.
"Fur-bearing animals"
shall include (a) the mink, (b) the
weasel, (c) the muskrat, (d) the beaver, (e) the opossum, (f) the
skunk, and civet cat, commonly called polecat, (g) the otter, (h)
the red fox, (i) the gray fox, (j) the wildcat, bobcat or bay
lynx, (k) the raccoon and (l) the fisher.
"Game" means game animals, game birds and game fish as
herein defined.
"Game animals"
shall include (a) the elk, (b) the deer, (c)
the cottontail rabbits and hares, (d) the fox squirrels, commonly
called red squirrels, and gray squirrels, and all their color
phases -- red, gray, black or albino, (e) the raccoon, (f) theblack bear and (g) the wild boar.
"Game birds"
shall include (a) the Anatidae, commonly known
as swan, geese, brants and river and sea ducks, (b) the Rallidae,
commonly known as rails, sora, coots, mudhens, and gallinales,
(c) the Limicolae, commonly known as shorebirds, plover, snipe,
woodcock, sandpipers, yellow legs, and curlews, (d) the Galli,
commonly known as wild turkey, grouse, pheasants, quails and
partridges (both native and foreign species), and (e) the
Columbidae, commonly known as doves and the Icteridae, commonly
known as blackbirds, redwings and grackle.
"Game fish"
shall include (a) brook trout, (b) brown trout,
(c) rainbow trout, (d) golden rainbow trout, (e) Kokanee salmon,
(f) largemouth bass, (g) smallmouth bass, (h) Kentucky or spotted
bass, (i) striped bass, (j) pickerel, (k) muskellunge, (l)
walleye pike, or pike perch, (m) northern pike, (n) rock bass,
(o) white bass, (p) white and black crappie, (q) all sunfish, (r)
channel and flathead catfish and (s) sauger.
"Hunt" means to pursue, chase, catch or take any wild birds
or wild animals.
"Lands" means land, waters, and all other appurtenances
connected therewith.
"Migratory birds" means any migratory game or nongame birds
included in the terms of conventions between the United States
and Great Britain and between the United States and United
Mexican States, known as the "Migratory Bird Treaty Act," for the
protection of migratory birds and game mammals concluded,respectively, August sixteen, one thousand nine hundred sixteen,
and February seven, one thousand nine hundred thirty-six.
"Nonresident" means any person who is a citizen of the
United States and who has not been a domiciled resident of the
state of West Virginia for a period of thirty consecutive days
immediately prior to the date of his
or her application for a
license or permit except any full-time student of any college or
university of this state, even though he
or she be paying a
nonresident tuition.
"Open season" means the time during which the various
species of wildlife may be legally caught, taken, killed or
chased in a specified manner, and shall include both the first
and the last day of the season or period designated by the
director.
"Person," except as otherwise defined elsewhere in this
chapter, means the plural "persons," and shall include
individuals, partnerships, corporations, or other legal entity.
"Preserve" means all duly licensed private game farmlands,
or private plants, ponds or areas, where hunting or fishing is
permitted under special licenses or seasons other than the
regular public hunting or fishing seasons.
"Protected birds" means all wild birds not included within
the definition of "game birds" and "unprotected birds."
"Resident" means any person who is a citizen of the United
States and who has been a domiciled resident of the state of West
Virginia for a period of thirty consecutive days or moreimmediately prior to the date of his
or her application for a
license or permit:
Provided,
That a member of the armed forces
of the United States who is stationed beyond the territorial
limits of this state, but who was a resident of this state at the
time of his or her entry into such service, and any full-time
student of any college or university of this state, even though
he be or she is paying a nonresident tuition, shall be considered
a resident under the provisions of this chapter.
"Roadside menagerie" means any place of business, other than
commercial game farm, commercial fish preserve, place or pond,
where any wild bird, game bird, unprotected bird, game animal or
fur-bearing animal is kept in confinement for the attraction and
amusement of the people for commercial purposes.
"Take" means to hunt, shoot, pursue, lure, kill, destroy,
catch, capture, keep in captivity, gig, spear, trap, ensnare,
wound or injure any wildlife, or attempt to do so.
"Unprotected birds" shall include (a) the English sparrow,
(b) the European starling, (c) the cowbird, and (d) the crow.
"Wild animals" means all mammals native to the State of West
Virginia occurring either in a natural state or in captivity,
except house mice or rats.
"Wild birds" shall include all birds other than (a) domestic
poultry - chickens, ducks, geese, guinea fowl, peafowls and
turkeys, (b) psittacidae, commonly called parrots and parakeets,
and (c) other foreign cage birds such as the common canary,
exotic finches and ring dove. All wild birds, either (a) thoseoccurring in a natural state in West Virginia or (b) those
imported foreign game birds, such as waterfowl, pheasants,
partridges, quail and grouse, regardless of how long raised or
held in captivity, shall remain wild birds under the meaning of
this chapter.
"Wildlife" means wild birds, wild animals, game and fur-
bearing animals, fish (including minnows), frogs and other
amphibians, aquatic turtles and all forms of aquatic life used as
fish bait, whether dead or alive.
"Wildlife refuse" means any land set aside by action of the
director as an inviolate refuge or sanctuary for the protection
of designated forms of wildlife.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities
granted and assigned to the director in this chapter and
elsewhere by law, the director is hereby authorized and empowered
to:
(1) With the advice of the commission, prepare and
administer, through the various divisions created by this
chapter, a long-range comprehensive program for the conservation
of the natural resources of the state which best effectuates the
purpose of this chapter and which makes adequate provisions for
the natural resources laws of the state;
(2) Sign and execute in the name of the state by the
"department division of natural resources" any contract or
agreement with the federal government or its departments oragencies, subdivisions of the state, corporations, associations,
partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the
habits of wildlife, and for purposes of control and protection,
to classify by regulation the various species into such
categories as may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the natural
resources commission may appear to be necessary and proper for
the purpose of giving interested persons in the various sections
of the state an opportunity to be heard concerning open season
for their respective areas, and report the results of the
meetings to the natural resources commission before such season
and bag limits are fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
governor in case of an emergency such as a drought, forest fire
hazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until
rescinded by the director. Suspension, or reopening after such
suspension, of open seasons may be made upon twenty-four hours'notice by delivery of a copy of the order of suspension or
reopening to the wire press agencies at the state capitol;
(8) Supervise the fiscal affairs and responsibilities of the
department division;
(9) Designate such localities as he or she shall determine
to be necessary and desirable for the perpetuation of any species
of wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of
provisions of this chapter, to serve and execute warrants and
processes, to make arrests and to otherwise effectively enforce
the provisions of this chapter;
(11) Acquire for the state in the name of the "department
division of natural resources" by purchase, condemnation, lease
or agreement, or accept or reject for the state, in the name of
the department division of natural resources, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property, including lands and waters, which he or she deems
suitable for the following purposes:
(a) For state forests for the purpose of growing timber,
demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural,
archaeological or historical values or natural wonders, orproviding public recreation;
(c) For public hunting, trapping or fishing grounds or
waters for the purpose of providing areas in which the public may
hunt, trap or fish, as permitted by the provisions of this
chapter, and the rules and regulations issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter;
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the
provisions of this chapter;
(13) Sell, with the approval in writing of the governor,
timber for not less than the value thereof, as appraised by a
qualified appraiser appointed by the director, from all lands
under the jurisdiction and control of the director, except those
lands that are designated as state parks and those in the Kanawha
state forest. The appraisal shall be made within a reasonable
time prior to any sale, reduced to writing, filed in the office
of the director and shall be available for public inspection.
When the appraised value of the timber to be sold is more than
five hundred dollars, the director, before making sale thereof,
shall receive sealed bids therefor, after notice by publicationas a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be each county in
which the timber is located. The timber so advertised shall be
sold at not less than the appraised value to the highest
responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall
designate; but the director shall have the right to reject any
and all bids and to readvertise for bids. If the foregoing
provisions of this section have been complied with, and no bid
equal to or in excess of the appraised value of the timber is
received, the director may, at any time, during a period of six
months after the opening of the bids, sell the timber in such
manner as he or she deems appropriate, but the sale price shall
not be less than the appraised value of the timber advertised.
No contract for sale of timber made pursuant to this section
shall extend for a period of more than ten years. And all
contracts heretofore entered into by the state for the sale of
timber shall not be validated by this section if the same be
otherwise invalid. The proceeds arising from the sale of the
timber so sold, shall be paid to the treasurer of the state of
West Virginia, and shall be credited to the department division
and used exclusively for the purposes of this chapter:
Provided,
That nothing contained herein shall prohibit the sale of timber
which otherwise would be removed from rights-of-way necessary for
and strictly incidental to the extraction of minerals;
(14) Sell or lease, with the approval in writing of the
governor, coal, oil, gas, sand, gravel and any other minerals
that may be found in the lands under the jurisdiction and control
of the director, except those lands that are designated as state
parks. The director, before making sale or lease thereof, shall
receive sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the
publication area for such publication shall be each county in
which such lands are located. The minerals so advertised shall be
sold or leased to the highest responsible bidder, who shall give
bond for the proper performance of the sales contract or lease as
the director shall designate; but the director shall have the
right to reject any and all bids and to readvertise for bids. The
proceeds arising from any such sale or lease shall be paid to the
treasurer of the state of West Virginia and shall be credited to
the department division and used exclusively for the purposes of
this chapter;
(15) Exercise the powers granted by this chapter for the
protection of forests, and regulate fires and smoking in the
woods or in their proximity at such times and in such localities
as may be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, local
and federal governments in the conservation of natural resources
and the beautification of the state;
(17) Report to the governor each year all informationrelative to the operation and functions of his department the
division and he the director shall make such other reports and
recommendations as may be required by the governor, including an
annual financial report covering all receipts and disbursements
of the department division for each fiscal year, and he or she
shall deliver such report to the governor on or before the first
day of December next after the end of the fiscal year so covered.
A copy of such report shall be delivered to each house of the
Legislature when convened in January next following;
(18) Keep a complete and accurate record of all proceedings,
record and file all bonds and contracts taken or entered into,
and assume responsibility for the custody and preservation of all
papers and documents pertaining to his or her office, except as
otherwise provided by law;
(19) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) Purchase as provided by law all equipment necessary for
the conduct of his department the division;
(22) Conduct and encourage research designed to further newand more extensive uses of the natural resources of this state
and to publicize the findings of such research;
(23) Encourage and cooperate with other public and private
organizations or groups in their efforts to publicize the
attractions of the state;
(24) Accept and expend, without the necessity of
appropriation by the Legislature, any gift or grant of money made
to the department division for any and all purposes specified in
this chapter, and he or she shall account for and report on all
such receipts and expenditures to the governor;
(25) Cooperate with the state historian and other
appropriate state agencies in conducting research with reference
to the establishment of state parks and monuments of historic,
scenic and recreational value, and to take such steps as may be
necessary in establishing such monuments or parks as he or she
deems advisable;
(26) Maintain in his or her office at all times, properly
indexed by subject matter, and also, in chronological sequence,
all rules and regulations made or issued under the authority of
this chapter. Such records shall be available for public
inspection on all business days during the business hours of
working days;
(27) Delegate the powers and duties of his or her office,
except the power to execute contracts, to appointees and
employees of the department division, who shall act under the
direction and supervision of the director and for whose acts heor she shall be responsible;
(28) Conduct schools, institutions and other educational
programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the
natural resources programs of the state;
(29) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the department
division in moving his or her household furniture and effects as
a result of a reassignment of the employee:
Provided,
That no
part of the moving expenses of any one such employee shall be
paid more frequently than once in twelve months; and
(30) Promulgate rules, and regulations in accordance with
the provisions of chapter twenty-nine-a of this code, to
implement and make effective the powers and duties vested in him
or her by the provisions of this chapter and take such other
steps as may be necessary in his or her discretion for the proper
and effective enforcement of the provisions of this chapter.
Provided,
That all rules and regulations relating to articles
five and five-a of this chapter shall be promulgated by the water
resources board.
§20-1-14. Sections within division. continuation of the water
resources section.
Sections of wildlife resources of water resources and of law
enforcement are hereby created and established continued within
the division of natural resources. Subject to provisions of law,
the director of the division of natural resources shall allocatethe functions and services of the division to the sections,
offices and activities thereof and may from time to time
establish and abolish other sections, offices and activities
within the division in order to carry out fully and in an orderly
manner the powers, duties and responsibilities of the office as
director. The director shall select and designate a competent
and qualified person to be chief of each section. The chief
shall be is the principal administrative officer of that section
and shall be is accountable and responsible for the orderly and
efficient performance of the duties, functions and services
thereof.
Pursuant to the provisions of section four, article ten,
chapter four of this code, the water resources section of the
division of natural resources shall continue to exist until the
first day of July, one thousand nine hundred ninety-three, to
allow for the completion of an audit by the joint committee on
government operations.
ARTICLE 5J. MEDICAL WASTE ACT.
§20-5J-6. Powers of secretary; authority to promulgate rules.
(a) The secretary shall promulgate legislative rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, necessary to effectuate the findings and purposes of this
article. Said rules shall include, but not be limited to, the
following:
(1) A plan designed to encourage and foster reduction in the
volume of infectious and noninfectious medical waste and theseparation of infectious and noninfectious medical waste;
(2) Guidelines and procedures for the development and
implementation of local infectious medical waste management
plans, to be followed by all generators, that set forth proper
methods for the management of infectious and noninfectious
medical waste;
(3) Criteria for identifying the characteristics of
infectious medical waste and identifying the characteristics of
infectious medical waste;
(4) Standards applicable to generators of medical waste
necessary to protect public health, safety and the environment,
which standards shall establish requirements respecting:
(A) Record-keeping practices that accurately identify the
quantities of infectious medical waste generated, the
constituents thereof which are significant in quantity or in
potential harm to human health or the environment, and the
disposition of such waste;
(B) Labeling practices for containers used in the storage,
transportation or disposal of infectious medical waste which
will accurately identify such waste;
(C) Use of appropriate containers for infectious medical
waste;
(D) Furnishing of information regarding the general
composition of infectious medical wastes to persons transporting,
treating, storing or disposing of such waste;
(E) Use of a manifest system and other reasonable means toassure that all infectious medical waste is designated for and
arrives at treatment, storage or disposal facilities for which
the secretary has issued permits, other than facilities on the
premises where the waste is generated; and
(F) The submission of reports to the secretary, at such
times as the secretary deems necessary, setting out the quantity
of infectious medical waste generated during a particular time
period, and the disposition of such infectious medical waste;
(5) Performance standards applicable to owners and operators
of facilities for the treatment, storage or disposal of
infectious medical waste necessary to protect public health and
safety and the environment, which standards shall include, but
need not be limited to, requirements respecting:
(A) Maintaining records of all infectious medical waste and
the manner in which such waste was treated, stored or disposed
of;
(B) Reporting, monitoring and inspection of and compliance
with the manifest system referred to in subdivision (4),
subsection (a) of this section;
(C) Treatment, storage or disposal of all infectious medical
waste received by the facility pursuant to operating methods,
techniques and practices as may be satisfactory to the secretary;
(D) The location, design and construction of infectious
medical waste treatment, disposal or storage facilities;
(E) Contingency plans for effective action to minimize
unanticipated damage from any treatment, storage or disposal ofinfectious medical waste;
(F) The maintenance or operation of such facilities and
requiring additional qualifications as to ownership, continuity
of operation, training for personnel and financial responsibility
as may be necessary or desirable:
Provided,
That no private
entity may be precluded by reason of criteria established under
this subsection from the ownership or operation of facilities
providing infectious medical waste treatment, storage or disposal
services where such entity can provide assurances of financial
responsibility and continuity of operation consistent with the
degree and duration of risks associated with the treatment,
storage or disposal of infectious medical waste; and
(G) Compliance with the requirements of this article
respecting permits for treatment, storage or disposal;
(6) The terms and conditions under which the secretary shall
issue, modify, suspend, revoke or deny permits required by this
article. The legislative rules required by this subdivision
shall be promulgated by the first day of August, one thousand
nine hundred ninety-one;
(7) Establishing and maintaining records; making reports;
taking samples and performing tests and analyses; installing,
calibrating, operating and maintaining monitoring equipment or
methods; and providing any other information necessary to achieve
the purposes of this article;
(8) Standards and procedures for the certification of
personnel at infectious medical waste treatment, storage ordisposal facilities or sites;
(9) Procedures for public participation in the
implementation of this article;
(10) Procedures and requirements for the use of manifests
during the transportation of infectious medical wastes;
(11) Procedures and requirements for the submission and
approval of a plan by the owners or operators of infectious
medical waste storage, treatment and disposal facilities, for
closure of such facilities, post-closure monitoring and
maintenance, and for both sudden and nonsudden accidental
occurrences; and
(12) A schedule of fees to recover the costs of processing
permit applications and renewals, training, enforcement,
inspections and program development.
(b) The legislative rules required by subsection (a) shall
be promulgated within six months after the effective date of this
article.
(c) Within twelve months after the effective date of this
article, the secretary shall conduct and publish a study of
infectious medical waste management in this state which shall
include, but not be limited to:
(1) A description of the sources of infectious medical waste
generation within the state, including the types and quantities
of such waste;
(2) A description of current infectious medical waste
management practices and costs, including treatment, storage anddisposal within the state; and
(3) An inventory of existing infectious medical waste
treatment, storage and disposal sites.
(d) Any person aggrieved or adversely affected by an order
of the secretary pursuant to this article, or by the denial or
issuance of a permit, or the failure or refusal of said secretary
to act within a reasonable time on an application for a permit or
the terms or conditions of a permit granted under the provisions
of this article, may appeal to a special hearing examiner
appointed to hear contested cases in accordance with the
provisions of chapter twenty-nine-a of this code. The secretary
shall promulgate legislative rules establishing procedures for
appeal and the conduct of hearings.
(e) In addition to those enforcement and inspection powers
conferred upon the secretary elsewhere by law, the secretary
shall have has the enforcement and inspection powers as provided
in sections seven, eight and nine of this article.
(f) Nothing in this section shall be construed to diminish
or alter diminishes or alters the authority of the air pollution
control commission or its director director of the division of
environmental protection under article twenty five, chapter
sixteen twenty-two of this code.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-4. Powers and duties of conservation officers.
Conservation officers and all other persons authorized to
enforce the provisions of this chapter shall be under thesupervision and direction of the director in the performance of
their duties as herein provided. The authority, powers and
duties of the conservation officers shall be statewide and they
shall have authority to:
(1) Arrest on sight, without warrant or other court process,
any person or persons committing a criminal offense in violation
of any of the laws of this state, in the presence of such
officer, but no such arrest shall be made where any form of
administrative procedure is prescribed by this chapter for the
enforcement of any of the particular provisions contained herein;
(2) Carry such arms and weapons as may be prescribed by the
director in the course and performance of their duties, upon
giving the bond required by the provisions of section five,
article seven, chapter sixty-one of this code, but no license or
other authorization shall be required of such officers for this
privilege;
(3) Search and examine, in the manner provided by law, any
boat, vehicle, automobile, conveyance, express or railroad car,
fish box, fish bucket or creel, game bag or game coat, or any
other place in which hunting and fishing paraphernalia, wild
animals, wild birds, fish, amphibians or other forms of aquatic
life could be concealed, packed or conveyed whenever they have
reason to believe that they would thereby secure or discover
evidence of the violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any
process of law issued under the authority of this chapter or anylaw relating to wildlife, forests, and all other natural
resources, by a magistrate or any court having jurisdiction
thereof, or copies of orders made and entered by the chief of the
division of water resources, or, without fee, any subpoena or
subpoena duces tecum issued in accordance with the provisions of
article five-a of this chapter, in the same manner, with the same
authority, and with the same legal effect, as any constable or
sheriff can serve or execute such warrant, notice or process;
(5) Require the operator of any motor vehicle or other
conveyance on or about the public highways or roadways, or in or
near the fields and streams of this state, to stop for the
purpose of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing
any warrants, notices or processes, and they shall have the same
rights and powers as sheriffs have in their respective counties
in so doing;
(7) Enter private lands or waters within the state while
engaged in the performance of their official duties hereunder;
Provided, That in connection with all surveys, examinations,
inspections, inquiries, investigations and studies needed in the
gathering of facts concerning water resources and their use or
the pollution thereof under article five or article five-a of
this chapter, such conservation officers and all other persons
authorized to enforce the provisions of this chapter, shall act
pursuant to and under the direction of the chief of the division
of water resources or the state water resources board, and suchofficers and other persons shall be subject to the provisions of
subsection (c), section five, article five, and subsection (d),
section three, article five-a of this chapter
(8) Arrest on sight, without warrant or other court process,
subject to the limitations set forth in subdivision (1) of this
section, any person or persons committing a criminal offense in
violation of any law of this state in the presence of any such
officer on any state-owned lands and waters and lands and waters
under lease by the division of natural resources and all national
forest lands, waters and parks, and U.S. Corps of Army Engineers'
properties within the boundaries of the state of West Virginia,
and, in addition to any authority conferred in the other
subdivisions of this section, execute all warrants of arrest on
such state and national lands, waters and parks, and U.S. Corps
of Army Engineers' properties, consistent with the provisions of
article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises
of another without written permission from the owner of the land
or premises in order to cut, damage, or carry away, or cause to
be cut, damaged, or carried away any timber, trees, logs, posts,
fruit, nuts, growing plants, or products of any growing plant.
Any person convicted of the foregoing shall be liable to the
owner in the amount of three times the value of the timber,
trees, logs, posts, fruit, nuts, growing plants, or products of
any growing plant, which shall be in addition to and
notwithstanding any other penalties by law provided by sectionthirteen, article three, chapter sixty-one of this code; and
(10) Do all things necessary to carry into effect the
provisions of this chapter.
§20-7-26. Unlawful disposal of litter; civil and criminal
penalties; litter control fund; evidence; notice of
violations; litter receptacle placement; penalties; duty to
enforce violations.
(a) (1) Any person who places, deposits, dumps or throws or
causes to be placed, deposited, dumped or thrown any litter as
defined in section twenty-four of this article, in or upon any
public or private highway, road, street or alley, or upon any
private property without the consent of the owner, or in or upon
any public park or other public property other than in such place
as may be set aside for such purpose by the governing body having
charge thereof, is guilty of a misdemeanor, and, upon his or her
first conviction, shall be fined not less than fifty dollars nor
more than five hundred dollars:
Provided,
That a person shall
not be held responsible for the actions of animals under their
direct control. At the request of the defendant or in the
discretion of the court, the court may sentence the defendant to
pick up and remove from any public highway, road, street, alley
or any other public park or public property as designated by the
court, any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of thissection by anyone prior to the date of such conviction. For the
first offense, the alternative sentence of litter pickup shall be
not less than eight hours nor more than sixteen hours in lieu of
other such fine. For purposes of this subdivision, the term
"court" shall include includes circuit, magistrate and municipal
courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less than
twenty-four hours nor more than six months:
Provided,
That a
person shall not be held responsible for the actions of animals
under their direct control. At the request of the defendant or
in the discretion of the court, the court may sentence the
defendant to pick up and remove from any public highway, road,
street, alley or any other public park or public property as
designated by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal
or any part thereof, offal or any other offensive or unsightly
matter placed, deposited, dumped or thrown contrary to the
provisions of this section by anyone prior to the date of such
conviction. For the second offense, the alternative sentence of
litter pickup shall be not less than sixteen hours nor more than
thirty-two hours in lieu of such fine or incarceration, but not
both. For purposes of this subdivision, the term "court" shall
include circuit and magistrate courts.
(3) Upon such person's third and successive conviction, heor she shall be fined not less than five hundred dollars nor more
than two thousand dollars and imprisoned in the county jail not
less than forty-eight hours nor more than one year:
Provided,
That a person shall not be held responsible for the actions of
animals under their direct control. At the request of the
defendant or in the discretion of the court, the court may
sentence the defendant to pick up and remove from any public
highway, road, street, alley or any other public park or public
property as designated by the court, any and all litter, garbage,
refuse, trash, cans, bottles, papers, ashes, carcass of any dead
animal or any part thereof, offal or any other offensive or
unsightly matter placed, deposited, dumped or thrown contrary to
the provisions of this section by anyone prior to the date of
such conviction. Upon a third conviction, the alternative
sentence of litter pickup shall be not less than thirty-two hours
nor more than sixty-four hours in lieu of such fine or
incarceration, but not both. For purposes of this subdivision,
the term "court" shall include includes circuit and magistrate
courts.
(4) The alternative sentence of litter pickup herein set
forth shall be verified by the conservation officers from the
division of natural resources or environmental inspectors from
the division of natural resources environmental protection,
office of environmental enforcement or a regional engineering
technician from the division of natural resources environmental
protection, pollution prevention and open dumps program (PPOD) ofthe county in which the offense occurred. Any defendant
receiving the herein specified alternative sentence of litter
pickup shall provide within a time to be set by the court written
acknowledgement from said conservation officers or environmental
officers that the sentence has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section shall be
is subject at the discretion of the court to up to twice the
original penalty provisions available to the court at the time of
conviction.
(6) If any litter be is thrown or cast from a motor vehicle
or boat, such action is prima facie evidence that the driver of
such motor vehicle or boat intended to violate the provisions of
this section. If any litter be is dumped or discharged from a
motor vehicle or boat, such action is prima facie evidence that
the owner and driver of such motor vehicle or boat intended to
violate the provisions of this section.
(b) Any litter found on any public or private property with
any indication of ownership on it will be evidence creating a
rebuttable inference it was deposited improperly by the person
whose identity is indicated, and any person who improperly
disposes of litter shall be is subject to either a civil fine of
up to five hundred dollars for such litter or required to pay the
costs of removal of such litter if the removal of such litter is
required to be done by the division, at the discretion of thedirector. All such fines and costs shall be deposited to the
litter control fund:
Provided,
That no inference shall be drawn
solely from the presence of any logo, trademark, trade name or
other similar mass reproduced identifying character appearing on
litter found.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this
section shall pay the sum of not less than fifty dollars nor more
than five hundred dollars as costs for clean-up, investigation
and prosecution in such case, in addition to any other court
costs that the court is otherwise required by law to impose upon
such convicted person.
The clerk of the circuit court, magistrate court or
municipal court wherein such additional costs are imposed shall,
on or before the last day of each month, transmit all such costs
received under this subsection to the state treasurer for deposit
in the state treasury to the credit of a special revenue fund to
be known as the litter control fund which is hereby continued.
Expenditures for purposes set forth in this section are not
authorized from collections but are to be made only in accordance
with appropriation and in accordance with the provisions of
article three, chapter twelve of this code and upon fulfillment
of the provisions set forth in article two, chapter five-a of
this code:
Provided,
That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-three,
expenditures shall be authorized from collections. Amountscollected which are found from time to time to exceed the funds
needed for the purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature.
(d) (1) The commissioner of the division of motor vehicles,
upon registering a motor vehicle or issuing an operator's or
chauffeur's license, shall issue to the owner or licensee, as the
case may be, a copy of subsection (a) of this section.
(2) The commissioner of the division of highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a)
of this section.
(e) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be
designated by the director by rule promulgated pursuant to
subdivision (8), subsection (a), section twenty-five of this
article, shall procure and place litter receptacles at his its
own expense upon his its premises and shall remove and dispose of
litter collected in such litter receptacles. After receiving two
written warnings from any law-enforcement officer or officers to
comply with this subsection or the said rules of the director,
any person who fails to place and maintain such litter
receptacles upon his or her premises in violation of this
subsection or the rules of the director shall be fined fifteendollars per day of such violation.
(f) No portion of this section shall be construed to
restrict a private owner in the use of his the owner's own
private property in any manner otherwise authorized by law.
(g) Any law-enforcement officer who shall observe a person
violating the provisions of this section shall have has a
mandatory duty to arrest or otherwise prosecute the violator to
the limits provided herein. The West Virginia division of
highways shall investigate and cause to be prosecuted violations
of this section occurring upon the highways of the state as the
term "highways" is defined in chapter seventeen of this code.
§20-7-28. 20-5-15. Litter along streams, criminal penalties,
enforcement.
(a) It shall be is unlawful to place, deposit, dump or
throw, or cause to be placed, deposited, dumped or thrown, any
litter as defined in section twenty-four of this article seven of
this chapter and also any garbage, refuse, trash, can, bottle,
paper, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter into any river,
stream, creek, branch, brook, lake or pond, or upon the surface
of any land within one hundred yards thereof, or in such location
that high water or normal drainage conditions will cause any such
materials or substances to be washed into any river, stream,
creek, branch, brook, lake or pond.
(b) No portion of this section shall be construed to
restrict restricts an owner, renter or lessee in the use of hisor her own private property or rented or leased property or to
prohibit the disposal of any industrial and other wastes into
waters of this state in a manner consistent with the provisions
of article five-a of this eleven, chapter twenty-two of this
code. But if any owner, renter or lessee, private or otherwise,
knowingly permits any such materials or substances to be placed,
deposited, dumped or thrown in such location that high water or
normal drainage conditions will cause any such materials or
substances to wash into any river, stream, creek, branch, brook,
lake or pond, it shall be deemed is prima facie evidence that
such owner, renter or lessee intended to violate the provisions
of this section:
Provided,
That if a landowner, renter or
lessee, private or otherwise, reports any such placing,
depositing, dumping or throwing of any such substances or
materials upon his or her property to the prosecuting attorney,
county commission, or the division of natural resources or the
division of environmental protection, then the landowner, renter
or lessee will be presumed to not have knowingly permitted such
placing, depositing, dumping or throwing of such materials or
substances.
(c) In addition to enforcement by the director, the director
of the division of environmental protection, the chief of the
division office of water resources of the division of
environmental protection, and the division's division of natural
resources' chief law-enforcement officer, the provisions of this
section may be enforced by all other proper law-enforcementagencies.
(d) (1) Any person violating any provision of this section
shall be is guilty of a misdemeanor, and, upon his or her first
conviction, shall be fined not less than fifty nor more than five
hundred dollars. At the request of the defendant or in the
discretion of the court, the court may sentence the defendant to
pick up and remove from any area of a bank of any river, stream,
creek, branch, brook, lake or pond, or other property with prior
permission of the owner, the area to be specified by the court,
any and all litter, garbage, refuse, trash, cans, bottles,
papers, ashes, carcass of any dead animal or any part thereof,
offal or any other offensive or unsightly matter placed,
deposited, dumped or thrown contrary to the provisions of this
section by anyone prior to the date of such conviction. For the
first offense, the alternative sentence of litter pickup shall be
not less than eight hours nor more than sixteen hours in lieu of
a fine. For purposes of this subdivision, the term "court" shall
include includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less than
twenty-four hours nor more than six months. At the request of
the defendant or in the discretion of the court, the court may
sentence the defendant to pick up and remove from any area of a
bank of any river, stream, creek, branch, brook, lake or pond, or
other property with prior permission of the owner, the area to bespecified by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal
or any part thereof, offal or any other offensive or unsightly
matter placed, deposited, dumped or thrown contrary to the
provisions of this section by anyone prior to the date of such
conviction. For the second offense, the alternative sentence of
litter pickup shall be not less than sixteen hours nor more than
thirty-two hours in lieu of such fine or incarceration, but not
both. For purposes of this subdivision, the term "court" shall
include includes circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he
or she shall be fined not less than five hundred dollars nor more
than two thousand dollars and imprisoned in the county jail not
less than forty-eight hours nor more than one year. At the
request of the defendant or in the discretion of the court, the
court may sentence the defendant to pick up and remove from any
area of a bank of any river, stream, creek, branch, brook, lake
or pond, or other property with prior permission of the owner,
the area to be specified by the court, any and all litter,
garbage, refuse, trash, cans, bottles, papers, ashes, carcass of
any dead animal or any part thereof, offal or any other offensive
or unsightly matter placed, deposited, dumped or thrown contrary
to the provisions of this section by anyone prior to the date of
such conviction. Upon a third conviction the alternative
sentence of litter pickup shall be not less than thirty-two hours
nor more than sixty-four hours in lieu of such fine orincarceration, but not both. For purposes of this subdivision,
the term "court" shall include includes circuit and magistrate
courts.
(4) The alternative sentence of litter pickup herein set
forth shall be verified by the division of natural resources
conservation officers or by environmental inspectors from the
division of natural resources office of environmental enforcement
or a regional engineering technician from the division of natural
resource pollution prevention and open dumps program (PPOD), both
of the division of environmental protection, of the county in
which the offense occurred. Any defendant receiving the herein
specified alternative sentence of litter pickup shall provide
within a time to be set by the court written acknowledgement from
said conservation officers or environmental officers that the
sentence has been completed.
(5) Any person who has been found by the court to have
willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section shall be
is subject at the discretion of the court to up to twice the
original penalty provisions available to the court at the time of
conviction.
§20-7-29. 20-5F-4 Assistance to solid waste authorities.
(j) The director may expend funds from the litter control
fund established pursuant to section twenty-six of this article
seven of this chapter to assist county and regional solid waste
authorities in the formulation of their comprehensive litter andsolid waste control plans pursuant to section seven eight,
article eight of this four, chapter twenty-two-c of this code and
in the construction and maintenance of approved commercial solid
waste facilities and collection equipment, including the
provision of grants as well as bonding assistance for those
authorities which would in the opinion of the director be unable
to construct or maintain an approved commercial solid waste
facility without grant funds.
ARTICLE 8. GENERAL AND MISCELLANEOUS PROVISIONS.
§20-8-1. Transition in terms; continuity.
Whenever in this code and elsewhere in law the terms "the
Conservation Commission of West Virginia," "conservation
commission,""director of conservation" and similar and related
terms are used and referenced, they shall be read, understood and
construed in the light of the enactment of this chapter by which
the conservation commission and the office of director of
conservation are abolished and the responsibilities, functions
and services thereof are transferred to and absorbed in the
department division of natural resources, the natural resources
commission and the office of director of the department division
of natural resources as in this chapter provided.
Wherever in this code and elsewhere in law the terms "state
water commission" and "state water resources commission" are used
and referenced, they shall be read, understood and construed to
mean and refer to the state water resources board established and
continued in this chapter as an activity of the department ofnatural resources.
Any litigation instituted, entered into or pending to which
any of the governmental corporations and agencies abolished by
this chapter are named parties may be continued and prosecuted to
completion in such party names or, at the option of the litigants
and by leave of court, such party names may be amended or changed
to correspond with the names of the successor governmental
corporations and agencies as in this chapter provided.
All contracts, compacts and agreements, heretofore entered
into by any of the governmental corporations and agencies hereby
abolished, shall continue to be the obligations of the respective
successor corporations and agencies as in this chapter provided.
No provision of this chapter shall be construed as impairing the
obligation of any contract.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-4. Recycling plans.
(a) Each county or regional solid waste authority, as part
of the comprehensive litter and solid waste control plan required
pursuant to the provisions of section seven eight, article nine
of this four, chapter twenty-two-c of this code, shall prepare
and adopt a comprehensive recycling plan to assist in the
implementation of the recycling goals in section three of this
article.
(b) Each recycling plan required by this section shall
include, but not be limited to:
(1) Designation of the recyclable materials that can be mosteffectively source separated in the region or county, which shall
include at least three recyclable materials; and
(2) Designation of potential strategies for the collection,
marketing and disposition of designated source separated
recyclable materials in each region or county.
§20-11-5a. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a) Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a recycling assessment fee is
hereby levied and imposed upon the disposal of solid waste at all
solid waste disposal facilities in this state, to be collected at
the rate of two dollars per ton or part thereof of solid waste.
The fee imposed by this section shall be is in addition to all
other fees levied by law.
(b) Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to filereturns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be is personally liable for such amount
as he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain remains in effect until
a notice of cancellation is served on the operator or owner by
the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator
shall be is primarily liable for collection and remittance of the
fee imposed by this section and the owner shall be is secondarily
liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge
his or her obligations under this section, the owner and the
operator of the solid waste facility shall be are jointly and
severally responsible and liable for compliance with the
provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof shall be are liable, jointly and severally, for
any default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them and against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules and regulations of the tax commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section shall be considered is a necessary and reasonable cost
for motor carriers of solid waste subject to the jurisdiction of
the public service commission under chapter twenty-four-a of this
code. Notwithstanding any provision of law to the contrary, upon
the filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removalservice. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definitions. -- For purposes of this section:
"Solid waste disposal facility" means any approved solid
waste facility or open dump in this state and includes a transfer
station when the solid waste collected at the transfer station is
not finally disposed of at a solid waste facility within this
state that collects the fee imposed by this section.
Nothing herein shall be construed to authorize authorizes in
any way the creation or operation of or contribution to an open
dump.
(e) Exemptions. -- The following transactions shall be are
exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by such person in such person's regular business or
personal activities or by persons utilizing the facility on a
cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
natural resources environmental protection by regulation rule asexempt from the fee imposed pursuant to section five-a eleven,
article five-f fifteen, chapter twenty twenty-two of this code.
(f) Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code shall
apply applies to the fee imposed by this section with like effect
as if said act were applicable only to the fee imposed by this
section and were set forth in extenso herein.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were the only fee imposed by this section and were set
forth in extenso herein.
(h) Dedication of proceeds. -- The proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, in a special revenue account
designated as the "Recycling Assistance Fund" which is hereby
created. The director of the division of natural resources shall
allocate the proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs, and recycling market procurement
efforts, established pursuant to this article. The director ofthe division of natural resources shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, containing
application procedures, guidelines for eligibility, reporting
requirements and other matters deemed appropriate;
(2) Twelve and one-half percent of the total proceeds shall
be expended for personal services and benefit expenses of full-
time salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall
be transferred to the governor's office of community and
industrial West Virginia development office, to be used in
assisting counties and municipalities in the design and
construction of wastewater treatment facilities;
(4) Twelve and one-half percent of the total proceeds shall
be transferred to the solid waste reclamation and environmental
response fund, established pursuant to section five-a eleven,
article five-f of this fifteen, chapter twenty-two of this code,
to be expended by the division of natural resources environmental
protection to assist in the funding of the pollution prevention
and open dumps program (PPOD) which encourages recycling, reuse,
waste reduction and clean-up activities; and
(5) Twelve and one-half percent of the total proceeds shall
be deposited in the hazardous waste emergency response fund
established in article five-g of this nineteen, chapter twenty-
two of this code.
(i) Severability. -- If any provision of this section or the
application thereof shall is for any reason be adjudged by anycourt of competent jurisdiction to be invalid, such judgment
shall does not affect, impair or invalidate the remainder of this
section, but shall be is confined in its operation to the
provision thereof directly involved in the controversy in which
such judgment shall have been is rendered, and the applicability
of such provision to other persons or circumstances shall is not
be affected thereby.
(j) Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§20-11-5b. Solid and hazardous waste supplemental assessment
fee.
(a) Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a solid and hazardous waste
supplemental assessment fee is hereby levied and imposed upon the
disposal of solid or hazardous waste at all solid waste or
hazardous waste disposal facilities in this state, to be
collected at the rate of twenty-five cents per ton or part
thereof of solid or hazardous waste. The fee imposed by this
section shall be is in addition to all other fees levied by law.
(b) Collection, return, payment and records. -- The person
disposing of solid or hazardous waste at the solid or hazardous
waste disposal facility shall pay the fee imposed by this
section, whether or not such person owns the solid or hazardous
waste, and the fee shall be collected by the operator of the
solid or hazardous waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid or hazardous waste is delivered to the solid or hazardous
waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be personally liable for such amount as
he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee, or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain remains in effect untila notice of cancellation is served on the operator or owner by
the tax commissioner.
(6) Whenever the owner of a solid or hazardous waste
disposal facility leases the solid or hazardous waste facility to
an operator, the operator shall be is primarily liable for
collection and remittance of the fee imposed by this section and
the owner shall be is secondarily liable for remittance of the
fee imposed by this section. However, if the operator fails, in
whole or in part, to discharge his or her obligations under this
section, the owner and the operator of the solid or hazardous
waste disposal facility shall be are jointly and severally
responsible and liable for compliance with the provisions of this
section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof shall be are liable, jointly and severally, for
any default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them and against the association or
corporation which they represent.
(8) Each person disposing of solid or hazardous waste at a
solid or hazardous waste disposal facility and each person
required to collect the fee imposed by this section shall keep
complete and accurate records in such form as the tax
commissioner may require in accordance with the rules andregulations of the tax commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section shall be considered is a necessary and reasonable cost
for motor carriers of solid or hazardous waste subject to the
jurisdiction of the public service commission under chapter
twenty-four-a of this code. Notwithstanding any provision of law
to the contrary, upon the filing of a petition by an affected
motor carrier, the public service commission shall, within
fourteen days, reflect the cost of said fee in said motor
carrier's rates for solid or hazardous waste removal service. In
calculating the amount of said fee to said motor carrier, the
commission shall use the national average of pounds of waste
generated per person per day as determined by the United States
Environmental Protection Agency.
(d) Definitions. -- For purposes of this section:
(1) "Solid or hazardous waste disposal facility" means any
approved solid or hazardous waste facility or open dump in this
state and includes a transfer station when the solid or hazardous
waste collected at the transfer station is not finally disposed
of at a solid or hazardous waste facility within this state that
collects the fee imposed by this section.
(2) "Coal combustion byproduct" means the residuals,
including fly ash, bottom ash, bed ash, and boiler slag produced
by coal-fired or coal/gas-fired electrical or steam generating
units. For nonelectrical steam generating units burning a
combination of solid waste and coal, a carbon monoxide level ofless than or equal to one hundred parts per million on a twenty-
four hour average basis is required for the byproducts to meet
this definition. The carbon monoxide level shall be calculated
on a dry gas basis corrected to seven percent oxygen; and
(3) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
Nothing herein shall be construed to authorize authorizes in
any way the creation or operation of or contribution to an open
dump.
(e) Exemptions. -- The following transactions shall be are
exempt from the fee imposed by this section:
(1) Disposal of solid waste in which the recycling
assessment fee levied and imposed by section five-a of this
article has been paid;
(2) Disposal of sludge or coal combustion byproducts;
(3) Reuse or recycling of any solid or hazardous waste; or
(4) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
natural resources environmental protection by regulation rule as
exempt from the fee imposed pursuant to section five-a eleven,
article five-f fifteen, chapter twenty twenty-two of this code.
(f) Procedure and administration. -- Notwithstanding sectionthree, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code shall
apply applies to the fee imposed by this section with like effect
as if said act were applicable only to the fee imposed by this
section and were set forth in extenso herein.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were the only fee imposed by this section and were set
forth in extenso herein.
(h) Dedication of proceeds. -- The proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, to the hazardous waste emergency
response fund established in article five-g of this nineteen,
chapter twenty-two of this code.
(i) Severability. -- If any provision of this section or the
application thereof shall is for any reason be adjudged by any
court of competent jurisdiction to be invalid, such judgment
shall does not affect, impair or invalidate the remainder of this
section, but shall be is confined in its operation to the
provision thereof directly involved in the controversy in which
such judgment shall have been is rendered, and the applicability
of such provision to other persons or circumstances shall is not
be affected thereby.
(j) Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§20-11-9. Recycled oil advisory committee.
(a) The division of natural resources recycled oil advisory
committee is hereby created continued. The recycled oil advisory
committee shall consist of nine members appointed by the
governor, for terms of two years, who shall serve without
compensation. One member of the committee shall have significant
experience in the oil refining industry, one member shall have
significant experience in the jobbing or distributing of motor
oil, one member shall be a representative of retail gasoline
dealers, one member shall be a representative of retail
merchants, one member shall be a representative of the insurance
industry, one member shall be a member of a county or regional
solid waste authority, one member shall be a member of the
general public, one member shall be a member of the House of
Delegates recommended by the speaker of the House of Delegates,
and one member shall be a member of the Senate recommended by the
president of the Senate. The director of the division of natural
resources or his or her designated representative shall be an ex
officio member of the committee and shall serve as chairman chair
of the committee. The recycled oil advisory committee shall meet
at least monthly, or upon the call of four members, to discuss
all aspects of the collection, handling, transportation, storage,
disposal and recycling of used motor oil.
(b) The functions of the committee shall include, but arenot be limited to, the following:
(1) Making recommendations to the division of natural
resources, division of environmental protection and the
Legislature concerning the adoption of management standards with
respect to collection, handling, transportation, storage,
disposal and recycling of used motor oil. The committee shall
make the first report of its recommendations on or before the
fifteenth day of January, one thousand nine hundred ninety-two,
and other such reports may be made at such times as the committee
deems appropriate.
(2) Carrying out education and promotional activities
regarding the use of recycled oil.
(3) Identifying areas in the public and private sectors
where recycled oil could be utilized.
(4) Entertaining proposals from citizens, corporations and
businesses related to all aspects of used motor oil.
(5) Identifying administrative requirements at both the
state and local levels to ascertain resources and needs relating
to used motor oil.
(6) Examining federal law and regulations, both existing and
proposed, to assure that West Virginia businesses and individuals
who generate used motor oil may participate in a program of
handling and disposing of used motor oil that complies with
federal statutes and regulatory requirements.
§20-11-12. Recycling facilities exemption.
Facilities which only accept, buy or transfer sourceseparated material or recycled material for use, resale or
transfer for further processing shall be are exempt from the
provisions of articles five-f fifteen, chapter twenty-two and
nine of this article four, chapter twenty-two-c and sections one-
c and one-f, article two, chapter twenty-four of this code.
CHAPTER 21. LABOR.
ARTICLE 3B. EMPLOYER ASSISTANCE FOR ENVIRONMENTAL PROTECTION.
§21-3B-3. Environmental assistance resource board.
There is hereby created within the division of labor an
environmental assistance resource board to advise and assist the
commissioner of labor in developing the technical resources
necessary to administer the provisions of this article. The
board is composed the commissioner of labor, who
shall serve
serves as chair; the
director of the air pollution control
commission chief of the office of air quality of the division of
environmental protection; the chief of the
division office of
water resources of the division of
natural resources
environmental protection; the chief of the
division office of
waste management of the division of
natural resources
environmental protection; the
commissioner director of the
division of environmental protection; one member of the House of
Delegates appointed by the speaker of the House; and one member
of the Senate appointed by the president of the Senate. Terms of
legislative members of the board
shall run concurrent with the
member's legislative term of office.
The board shall meet within thirty days of the effectivedate of this article and thereafter at the call of the chair.
The board shall establish an information network wherein the
commissioner of labor and any consultant advising employers, in
order to provide accurate information regarding compliance with
environmental and hazardous waste
regulations rules, may access
written materials or staff having technical expertise within the
agencies represented on the board. At the request of the board,
the secretary of the department of commerce, labor and
environmental resources is authorized to direct the assignment of
staff, on a temporary or permanent basis, from any agency
represented on the board to the division of labor to assist in
the implementation of the employer assistance program set forth
in this article.
CHAPTER 22.
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-1. Legislative findings; legislative statement of policy
and purpose.
(a) The Legislature finds that:
(1) Restoring and protecting the environment is fundamental
to the health and welfare of individual citizens, and our
government has a duty to provide and maintain a healthful
environment for our citizens.
(2) The state has the primary responsibility for protecting
the environment; other governmental entities, public and private
organizations and our citizens have the primary responsibility of
supporting the state in its role as protector of the environment.
(3) Governmental decisions on matters which relate to the
use, enhancement, preservation, protection and conservation of
the environment should be made after public participation and
public hearings.
(4)
The dispersion of environmental protection programs
across a number of state agencies and the mixing of environmental
programs with policies and programs which promote the development
of industrial manufacturing and the production and utilization of
natural resources have led to fragmented, duplicative and often
inconsistent state policies relating to the protection of the
environment.
(5) Efficiency in the wise use, enhancement, preservation,
protection and conservation of the environment can best be
accomplished by an integrated and interdisciplinary approach in
decision making and would benefit from the coordination,
consolidation and integration of state programs and agencies
which are significantly concerned with the use, enhancement,
preservation, protection and conservation of the environment.
(6) Governmental and public consideration of issues relating
to environmental programs is hindered by the present
organizational structure of environmental programs in the
executive branch of state government.
(7) There is a need for improvement in the management and
coordination of state environmental protection programs.
(8) (5) Those functions of government which regulate the
environment should be consolidated
in a single state agency, inorder to accomplish the purposes set forth in this article, to
carry out the environmental functions of government in the most
efficient and cost effective manner, to protect human health and
safety and, to the greatest degree practicable, to prevent injury
to plant, animal and aquatic life, improve and maintain the
quality of life of our citizens, and promote economic development
consistent with environmental goals and standards.
(9) Such consolidation, in a phased approach, is best
accomplished by action of the executive.
(b) The Legislature declares that the establishment of a
division of environmental protection is in the public interest
and will promote the general welfare of the state of West
Virginia without sacrificing social and economic development. It
is the policy of the state of West Virginia, in cooperation with
other governmental agencies, public and private organizations,
and the citizens of this state, to use all practicable means and
measures to prevent or eliminate harm to the environment and
biosphere, to create and maintain conditions under which man and
nature can exist in productive harmony, and fulfill the social,
economic and other requirements of present and future
generations. The purposes of this
article chapter are:
(1) To strengthen the commitment of this state to restore,
maintain and protect the environment;
(2) To
authorize the consolidation of consolidate
environmental regulatory programs in a single state agency;
in
consultation with and subject to oversight and review by theLegislature
(3) To provide a comprehensive program for the conservation,
protection, exploration, development, enjoyment and use of the
natural resources of the state of West Virginia;
(4) To supplement and complement the efforts of the state by
coordinating state programs with the efforts of other
governmental entities, public and private organizations, and the
general public; to improve the quality of the environment, the
public health and public enjoyment of the environment, and the
propagation and protection of animal, aquatic and plant life, in
a manner consistent with the benefits to be derived from strong
agricultural, manufacturing, tourism and energy-producing
industries;
(5) Insofar as federal environmental programs require state
participation, to endeavor to obtain and continue state primacy
in the administration of such federally-mandated environmental
programs, and to endeavor to maximize federal funds which may be
available to accomplish the purposes of the state and federal
environmental programs and to cooperate with appropriate federal
agencies to meet environmental goals;
(6) To encourage the increased involvement of all citizens
in the development and execution of state environmental programs;
(7) To promote improvements in the quality of the
environment through research, evaluation and sharing of
information;
(8) To improve the management and effectiveness of stateenvironmental protection programs; and
(9) To increase the accountability of state environmental
protection programs to the governor, the Legislature and the
public generally.
§22-1-2. Definitions.
As used in this article, unless otherwise provided or
indicated by the context:
(1)
The term "Department" means the department of commerce,
labor and environmental resources.
(2) (4) The term "Director" means the director of the
division of environmental protection.
(3)
The term "Division" means the division of environmental
protection.
(4) (5) The term "Function" includes any duty, obligation,
power, authority, responsibility, right, privilege, activity or
program.
(5) (6) The term "Office" includes any office, board,
agency, unit, organizational entity, or component thereof.
(6) (2) The term "Secretary" means the secretary of the
department of commerce, labor and environmental resources.
§22-1-3. 22-1-13. Rules and regulations. Rule-making
generally; relationship to federal programs.
(a) The director has the power and authority to propose
legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code
for the orderly transfer of functions and offices and thereorganization of the division, and to carry out and implement
the provisions of this chapter
, and chapters twenty-two-a and
twenty-two-b of this code or and to carry out and implement any
other provision of law relating to offices or functions
transferred pursuant to this article of the division.
(b) The requirements and limitations set forth in this
section apply to any rule-
making authority granted pursuant to
this chapter or chapters twenty-two-b and twenty-two-c of this
code.
(c) Prior to the proposal of any new rule, the director,
after consultation with the division of environmental protection
advisory council, shall determine whether such rule should be
substantially similar in content to a counterpart federal
authority. If the director determines that such rule should be
substantially similar in content to a counterpart federal
regulation, then to the greatest degree practical such proposed
rule shall incorporate by reference the counterpart federal
regulation. If the director determines that such rule should not
be substantially similar in content to a counterpart federal
regulation, then contemporaneously with the proposal of such
rule, the director shall file, in the same manner as provided in
chapter twenty-nine-a for the proposal of rules, a statement
setting forth the reasons why the proposed rule should be
different in content from a counterpart federal regulations.
(d) Whenever any existing rule is modified, amended or
replaced, the provisions of subsection (c) of this section applyto the proposal of any such modification, amendment or
replacement rule.
(e) Notwithstanding the provisions of article three, chapter
twenty-nine-a of this code, at least one public hearing shall be
held in conjunction with each rule-making prior to the expiration
of the public comment period for the proposed rules.
§22-1-4. 22-1-3. Creation of Division of environmental
protection; appointment of director.
There is hereby created within the department of commerce,
labor and environmental resources an executive agency to be known
as The division of environmental protection
is continued within
the department of commerce, labor and environmental resources.
The division shall be administered, in accordance with the
provisions of this article, under the supervision and direction
of the director.
of the division of environmental protection
§22-1-5. 22-1-4. Jurisdiction vested in division.
(a) Except as otherwise expressly provided in this chapter
or in chapter twenty-two-a or twenty-two-b of this code,
jurisdiction over the issuance of regulations, or any and all
permits and other governmental authorizations required or to be
required in all matters pertaining to the exploration,
development, production, storage and recovery of coal, oil and
gas, and other mineral resources in this state, including all
conservation, land, water, waste disposal, reclamation and
environmental regulations, permits and authorizations of such
activities called for pursuant to articles five, five-a, five-dand five-f, chapter twenty of this code, and the enforcement and
implementation thereof is vested exclusively in the division.
Except as may be otherwise provided in this code, the division is
hereby designated as the lead regulatory agency for this state
for all purposes of federal legislation relating to
such all
activities
regulated under this chapter.
(b) The division shall exercise all power and duties vested
in the director of the division of natural resources pursuant to
subsection (f), section seven, article five-e, chapter twenty of
this code, and in the administrator of the office of oil and gas
and shallow gas well review board pursuant to subsection (g),
section seven, article five-e, chapter twenty of this code.
§22-1-6. 22-1-5. Director of the division of environmental
protection.
(a) The director
shall be is the chief executive officer of
the division. Subject to
section seven of this article and other
provisions of law,
he or she the director shall organize the
division into such offices, sections, agencies and other units of
activity as may be found by the director to be desirable for the
orderly, efficient and economical administration of the division
and for the accomplishment of its objects and purposes. The
director may appoint assistants, hearing officers, clerks,
stenographers, and other officers, technical personnel and
employees needed for the operation of the division and may
prescribe their powers and duties and fix their compensation
within amounts appropriated therefor.
(b) The director
shall have has the power to and may
designate
the supervisory officers or other officers or employees
of the division to substitute for him or her on any board or
commission established under this
chapter code or to sit in his
or her place in any hearings, appeals, meetings or other
activities with such substitute having the same powers, duties,
authority and responsibility as the director. Additionally, the
director
shall have has the power to delegate
, as he or she
considers appropriate, to
the supervisory officers or other
officers or employees of the division his or her powers, duties,
authority and responsibility relating to issuing permits, hiring
and training inspectors and other employees of the division,
conducting hearings and appeals and such other duties and
functions set forth in this chapter or
chapters twenty-two-a and
twenty-two-b as he or she considers appropriate elsewhere in this
code.
(c) The director
shall have has responsibility for the
conduct of the intergovernmental relations of the division,
including assuring: (1) That the division carries out its
functions in a manner which supplements and complements the
environmental policies, programs and procedures of the federal
government, other state governments, and other instrumentalities
of this state; and (2) that appropriate officers and employees of
the division consult with individuals responsible for making
policy relating to environmental issues in the federal
government, other state governments, and other instrumentalitiesof this state concerning differences over environmental policies,
programs and procedures and concerning the impact of statutory
law and rules
and regulations upon the environment of this state.
(d) In addition to other powers, duties and responsibilities
granted and assigned to the director by this
section or by a
transfer of functions or offices in accordance with the
provisions of this article chapter, the director is hereby
authorized and empowered to:
(1) Sign and execute in the name of the state by the
"division of environmental protection" any contract or agreement
with the federal government or its departments or agencies,
subdivisions of the state, corporations, associations,
partnerships or individuals:
Provided,
That the powers granted
to the director to enter into agreements or contracts and to make
expenditures and obligations of public funds under this
subdivision shall not exceed or be interpreted as authority to
exceed the powers heretofore granted by the Legislature to the
various commissioners, directors or board members of the various
departments, agencies or boards that comprise and are
incorporated into each secretary's department pursuant to the
provisions of chapter five-f of this code;
(2) Conduct research in improved environmental protection
methods and disseminate information to the citizens of this
state;
(3) Enter private lands to make surveys and inspections for
environmental protection purposes; to investigate for violationsof statutes or rules which the division is charged with
enforcing; to serve and execute warrants and processes; to make
arrests; issue orders, which for the purposes of this chapter
include consent agreements; and to otherwise enforce the statutes
or rules which the division is charged with enforcing;
(4) Acquire for the state in the name of the "division of
environmental protection" by purchase, condemnation, lease or
agreement, or accept or reject for the state, in the name of the
division of environmental protection, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property;
(5) Conduct schools, institutions Provide for workshops,
training programs and other educational programs, apart from or
in cooperation with other governmental agencies, necessary to
insure adequate standards of public service for instruction and
training in all phases of environmental protection programs in
this state in the division. The director may also provide for
technical training and specialized instruction of any employee.
Approved educational programs, training, and instruction time may
be compensated for as a part of regular employment. The director
is further authorized to pay out of federal or state funds, or
both, as such funds are available, fees and expenses incidental
to such educational programs, training, and instruction.
Eligibility for participation by employees will be in accordance
with guidelines established by the director.
(6) Issue certifications required under 33 U.S.C. §1341.
Prior to issuing any such certification the director shall
solicit from the division of natural resources reports and
comments concerning the possible certification. The reports and
comments shall be directed from the division of natural resources
to the director for consideration. [Drafter's Note: The language
for this subdivision came from current §22-1-9(c).]
(e) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and shall serve serves
at the will and pleasure of the governor:
Provided,
That in lieu
of appointing a director, the governor may order the secretary to
directly exercise the powers of the director. The secretary
shall designate the order in which other officials of the
division shall act for and perform the functions of the secretary
or the director during the absence or disability of both the
secretary and the director or in the event of vacancies in both
of those offices.
(f) At the time of his or her initial appointment, the
director shall be at least thirty years old and shall be selected
with special reference and consideration given to his or her
administrative experience and ability, to his or her demonstrated
interest in the effective and responsible regulation of the
energy industry and the conservation and wise use of natural
resources. The director shall have at least a bachelor's degree
in a related field and shall have at least three years of
experience in a position of responsible charge in at least onediscipline relating to the duties and responsibilities for which
the director will be responsible upon assumption of the office of
director. The director shall not be a candidate for or hold any
other public office, shall not be a member of any political party
committee and shall immediately forfeit and vacate his or her
office as director in the event he or she becomes a candidate for
or accepts appointment to any other public office or political
party committee.
(g) The director shall receive an annual salary of sixty-
five thousand dollars and shall be allowed and paid necessary
expenses incident to the performance of his or her official
duties. Prior to the assumption of the duties of his or her
office, the director shall take and subscribe to the oath
required of public officers prescribed by section five, article
four of the constitution of West Virginia and shall execute a
bond, with surety approved by the governor, in the penal sum of
ten thousand dollars, which executed oath and bond shall be filed
in the office of the secretary of state. Premiums on the bond
shall be paid from the division funds.
§22-1-7. Offices within division.
Consistent with the provisions of this article the director
shall, at a minimum, maintain the following offices within the
division:
(1) The office of abandoned mine lands and reclamation,
which is charged, at a minimum, with administering and enforcing,
under the supervision of the director, the provisions of articletwo of this chapter;
(2) The office of mining and reclamation, which is charged,
at a minimum, with administering and enforcing, under the
supervision of the director the provisions of articles three and
four of this chapter;
(3) The office of air quality, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of article five of this chapter;
(4) The office of oil and gas, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles six, seven, eight,
nine and ten of this chapter;
(5) The office of water resources, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles eleven, twelve,
thirteen and fourteen of this chapter; and
(6) The office of waste management, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles fifteen, sixteen,
seventeen, eighteen, nineteen and twenty of this chapter.
§22-1-8. 22-1-6. Supervisory officers.
(a) The director shall appoint a competent and qualified
person to be chief of each office specified in section eight of
this article. The chief is the principal administrative officer
of that office and is accountable and responsible for the orderly
and efficient performance of the duties, functions and servicesof her or his office.
(b) There shall be in the division such number of other
supervisory officers as the director may determine determines is
necessary to administer the functions and offices transferred to
of the division. in accordance with the provisions of this
article. Such supervisory officers shall be deemed to be are
"administrators" as such term is defined in section two, article
six, chapter twenty-nine of this code, notwithstanding the fact
that the positions filled by such persons are not statutorily
created. Any such supervisory officer may be designated by the
director as a deputy director, assistant director, chief,
administrator, or other administrative title or designation.
Such supervisory officers may supervise the general subject areas
of administration, mines and minerals, oil and gas, and abandoned
mine lands and reclamation, as such functions and offices are
transferred to the division in accordance with the provisions of
sections seven and eight of this article, and such other
functions and offices as may be transferred to the division by
executive order in accordance with the provisions of section nine
of this article. The governor may, at any time prior to the
first day of January, one thousand nine hundred ninety-three, by
executive order, redefine the subject areas to be administered by
any such supervisory officers, stating in such executive order or
orders the title or designation to be assigned to the positions
of supervisory officers and the particular functions and offices
transferred by this article which are subject to administrationby such designated supervisory officers. Each of the supervisory
officers shall be appointed by the director and serve at the will
and pleasure of the director. The compensation of such
supervisory officers shall be fixed by the director. A single
individual may be appointed to serve simultaneously in two
distinct supervisory positions, but in a case where such dual
appointment is made, such supervisory officer shall not receive
additional compensation above that which would be paid for
serving in one supervisory position.
(b) (c) A supervisory officer appointed pursuant to the
provisions of this section shall report directly to the director
and shall, in addition to any functions vested in or required to
be delegated to such officer, perform such additional functions
as the director may prescribe.
(c) (d) The supervisory officers of the division shall,
before entering upon the discharge of their duties, take the oath
of office prescribed by section five, article four of the
constitution of West Virginia, and shall execute a bond in the
penalty of two thousand dollars, with security to be approved by
the governor, conditioned upon the faithful discharge of their
duties, a certificate of which oath and which bond shall be filed
in the office of the secretary of state. Premiums on such bond
shall be paid from the division funds.
§22-1-9. Environmental protection advisory council.
(a) There is created within the department of commerce,
labor and environmental resources the environmental protectionadvisory council. The environmental protection advisory council
consists of seven members. The director serves as an ex officio
member of the council and as its chair. The remaining six
members are appointed by the governor. Each member serves for a
term of four years and may be reappointed. Of the members of the
council first appointed, two shall be appointed for terms ending
on the thirtieth day of June, one thousand, nine hundred
ninety-five, and two each for terms ending one and two years
thereafter. Vacancies on the council shall be filled within sixty
days after the vacancy occurs.
(b) Two members of the council shall represent industries
regulated by the division or their trade associations. Two
members shall represent organizations advocating environmental
protection. One member shall represent organizations
representing local governments. One member shall represent
public service districts. In making subsequent appointments this
balance of membership shall be maintained.
(c) Appointed members are entitled to one hundred dollars
per day when attending council meetings, in addition to
reimbursement for all reasonable and necessary expenses incurred
in the performance of their duties.
(d) The council shall meet at least once every quarter and
at the call of the chair.
(e) The council shall:
(1) Consult with and advise the director on program and
policy development, problem solving and other appropriatesubjects;
(2) Identify and define problems associated with the
implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups; and
(5) To the extent possible, strive for consensus on the
development of overall environmental policy.
§22-1-10. 22-1-14. Transfer and Allocation of appropriations and
effect on personnel.
(a) Except as otherwise provided in this article, the
personnel employed in connection with, and the assets,
liabilities, contracts, property, records, and unexpended balance
of appropriations, authorizations, allocations, and other funds
employed, held, used, arising from, available to, or to be made
available in connection with the functions and offices
transferred by this article, may be transferred by the secretary
to the division for appropriate allocation. Unexpended funds
transferred pursuant to this subsection shall be used only for
the purposes for which the funds were originally authorized and
appropriated.
(b) Except as herein exempted and notwithstanding any other
provisions in this code to the contrary, the director may, with
the exception of the special reclamation fund established insection eleven, article three, of this chapter, twenty-two-a of
this code expend, in accordance with the provisions of chapter
five-a of this code, from special revenue accounts, and funds
established pursuant to this chapter and chapters twenty-two-a
and twenty-two-b and twenty-two-c of this code, amounts necessary
to implement and administer the general powers, duties and
responsibilities of the division of environmental protection:
Provided,
That federal funds required by law to be expended for
a specific purpose may not be expended for any purpose contrary
to the laws, rules or regulations of the federal government.
(b) Notwithstanding the provisions of subsection (a) of this
section and section two, article two, chapter twelve of this code
to the contrary, all moneys received and collected for accounts
established or continued in this chapter or chapters twenty-two-b
and twenty-two-c of this code, shall be credited to those special
revenue accounts created in the state treasury with all earnings
generated by those accounts being deposited in those accounts.
Such moneys and earnings shall be used and expended only for the
purposes for which the same are authorized to be collected by
law.
§22-1-15 Effect on personnel.
(a) (c) With respect to employees affected by the provisions
of this article or article seven of chapter twenty-two-a of the
code, creation of the division or the transfer of functions and
offices to the division the layoff and recall rights of such
employees within the classified service of the state as providedin subsections (5) and (6), section ten, article six, chapter
twenty-nine of this code shall be are limited to the department
of commerce, labor and environmental resources and further
limited to an occupational group substantially similar to the
occupational group established by the classification and
compensation plan for the classified service of the agency or
board in which the employee was employed:
Provided,
That the
employee shall possess has the qualifications established for the
job class. The duration of recall rights provided in this
subsection shall be is limited to two years or the length of
tenure, whichever is less. Except as provided in this
subsection, nothing contained in this section shall be construed
to abridge abridges the rights of employees within the classified
service of the state as provided in sections ten and ten-a,
article six, chapter twenty-nine of this code.
(b) (d) The director is empowered to authorize the payment
of all or any part of the reasonable expenses of an employee
employees of the division in moving his their household furniture
and effects as a result of a reassignment of such employee caused
by a transfer of functions or offices pursuant to this article to
the division.
§22-1-11. 22-1-16. Saving provisions.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted, or allowed
to become effective by the governor, any state department oragency or official thereof, or by a court of competent
jurisdiction, in the performance of functions which are have been
transferred under this article to the secretary, to the director
or to the division, and which are were in effect on the date such
transfer occurs, shall occurred continue in effect, for the
benefit of the division, according to their terms until modified,
terminated, superseded, set aside, or revoked in accordance with
the law by the governor, the secretary, the director, or other
authorized official, a court of competent jurisdiction, or by
operation of law.
(b) The provisions of this article shall not affect Any
proceedings, including notices of proposed rule making, or any
application for any license, permit, certificate, or financial
assistance pending before any department, division or other
office, functions of which are were transferred by this article
or article seven, chapter twenty-two-a of this code. Orders shall
be issued in such proceedings, appeals shall be taken therefrom,
and payments shall be made pursuant to such orders, as if this
article had not been enacted; and to the division are not
affected by the transfer. Orders issued in any such proceedings
shall continue in effect until modified, terminated, superseded,
or revoked by the governor, the secretary, the director, by a
court of competent jurisdiction, or by operation of law. Nothing
in this subsection shall be deemed to prohibit prohibits the
discontinuance or modification of any such proceeding under the
same terms and conditions and to the same extent that suchproceeding could have been discontinued or modified if this
article had not been enacted the division had not been created or
if functions or offices had not been transferred to the division.
The director is authorized to propose legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code for the orderly transfer of proceedings continued under the
provisions of this subsection.
(c) Except as provided in subsection (e) of this section,
the provisions of this article shall creation of the division and
the subsequent transfer of functions to it do not affect suits
commenced prior to the effective date of the creation or any
transfer of functions or offices made pursuant to the provisions
of this article to it, and in all such suits, proceedings shall
be had, appeals taken, and judgments rendered in the same manner
and with like effect as if this article had not been enacted the
creation or transfer had not occurred.
(d) No suit, action, or other proceeding commenced by or
against any officer in the official capacity of such individual
as an officer of any department, division or other office,
functions of which are were transferred pursuant to the
provisions of this article, shall abate to the division abates by
reason of the enactment of this article such transfer. No cause
of action by or against any department, division or other office,
functions of which are were transferred pursuant to the
provisions of this article to the division, or by or against any
officer thereof in the official capacity of such officer, shallabate abates by reason of the enactment of this article the
transfer.
(e) If, before the transfer, of any function or office
pursuant to the provisions of this article any department,
division or other office, or officer thereof in the official
capacity of such officer, is was a party to a suit, and under
this article any function of such department, division or other
office, or officer is was transferred to the secretary, the
director or other officer of the division, then such suit shall
be continued with the secretary, the director or other
appropriate officer substituted or added as a party.
(f) Orders and actions of the secretary or the director in
the exercise of functions transferred under this article shall be
subject to judicial review to the same extent and in the same
manner as if such orders and actions had been by such department,
division or other office, or part thereof, exercising such
functions immediately preceding their transfer. Any statutory
requirements relating to notice, hearings, action upon the
record, or administrative review that apply to any function
transferred pursuant to the provisions of this article shall
apply to the exercise of such function by the secretary, the
director or other officer.
§22-1-12. Public information.
The division shall collect, organize and from time to time
distribute to the public, through news media or otherwise,
interesting facts, information and data concerning the state'senvironment and its environmental regulatory programs. The
director may organize and promote lectures, demonstrations,
symposiums, schools and other educational programs relating to
the state's environment and its protection. Video tapes, motion
pictures, slide films and other photographic services may be
provided for instruction on the environment and its protection
for schools, other governmental agencies, and civic organizations
under such rules as may be prescribed by the director.
The director shall select and designate a competent and
qualified person as division public information officer, who is
responsible for the organization and management of the division's
public information and public affairs programs.
§22-1-13. Notification of permitting decisions.
Any person may request the director to notify the person of
a decision to issue or deny a specific permit applied for under
this chapter. The request must be in writing and received by the
director within the public comment period or at a public hearing
held for the specific permit application. If there is no public
comment period or public hearing held for the specific permit
application the director is required to make the notification
under this section only if the request for notification is
received by the director at least two working days prior to
notifying the applicant of the decision. The director shall
notify all persons who have made a timely request under this
section of the decision on the application at the same time the
applicant is notified of the decision. The notification shalladvise the person of any appeal rights under this chapter.
§22-1-14. Steam restoration fund; creation; special account;
purposes and expenditures.
(a) There is hereby created in the state treasury a special
account known as the "stream restoration fund." Moneys received
by the division pursuant to transfers from any other account
lawfully transferred, from the federal government and other
sources, from mitigation, moneys, from gifts, bequests, donations
and contributions, and other moneys lawfully received from
whatever source, may be deposited in the state treasury to the
credit of the stream restoration fund.
(b) Notwithstanding the provisions of section two, article
two, chapter twelve of this code to the contrary, all moneys
received and collected for the stream restoration fund shall be
recorded in a separate interest-bearing account, with the amount
of interest earned being credited to the account as it is earned.
The moneys are to be used and expended only for the restoration
and enhancement of the streams and water resources of this state
including those streams and water resources which have been
affected by coal mining or acid mine drainage. Expenditures shall
be made by the director and are authorized first from the
interest accumulated in the fund:
Provided,
That nothing herein
limits the authority of the director to expend principal amounts
contained in the fund.
§22-1-15. Laboratory certification; rules; fees; revocation and
suspension; environmental laboratory certification fund;programs affected; and appeals.
(a) The director shall promulgate rules to require the
certification of laboratories conducting tests and analyses to be
used for purposes of demonstrating compliance under the covered
statutory programs, including reasonable annual certification
fees for laboratories not to exceed an annual program aggregate
of one hundred fifty thousand dollars, to be assessed against
laboratory owners or operators in such an amount as is necessary
to cover the actual costs of administration of this program and
the processing of certification applications, to be deposited in
the state environmental laboratory certification fund created
pursuant to this section. By the first day of July of each year
beginning the first day of July, nineteen hundred ninety-four,
the director shall provide to the secretary a written report
reflecting funds collected, how the funds were expended, and an
assessment of the adequacy of the funding to administer the
program.
(b) After the effective date of the rules promulgated
pursuant to this section, tests and analyses conducted in
laboratories that are not certified for the parameters or
toxicity being tested or analyses shall not be accepted by the
division, except as otherwise provided, as being in compliance
with the requirements, rules or orders of the division issued
under authority of one or more of the covered statutory programs:
Provided,
That field tests and remote monitoring or testing
equipment which is conducted or located away from any laboratoryshall not be deemed a laboratory but shall be subject to such
quality assurance and quality control standards as may be
established by the director in rules promulgated pursuant to this
section. The director shall provide by rule for the granting of
certification for laboratories located outside of West Virginia
without performance testing or assessment of certification fee
pursuant to this section if such laboratories provide written
documentation that approval has been received under requirements
in another state determined by the director to be equivalent to
the West Virginia laboratory certification program. Such
reciprocal certification shall be granted only for testing
methods and parameters for which the laboratory holds a valid
authorization in such other state and only for laboratories in
states which allow reciprocity with respect to laboratories
located in this state.
(c) Application shall be made to the director for approval
or certification by laboratories on forms and in a manner
prescribed by the director.
(d) Certification shall be renewed on an annual basis. The
existing certification shall remain in effect until the director
notifies the applicant for renewal that renewal of certification
has been granted or denied.
(e) Certification shall be granted for those tests or
parameters for which the laboratory demonstrates adequate
performance on performance evaluation tests based on the criteria
established in rules by the director. The director shall, byrule, establish criteria governing what shall be considered in
any decision to deny or issue a certification.
(f) Failure to comply with the requirements of the
applicable analytical methods and procedures or standards
specified in the rules of the director shall be grounds for
revocation or suspension of certification for the affected test
procedures or parameters.
(g) No person subject to the covered statutory programs
shall be allowed to use data or test results from tests and
analyses conducted at laboratories lacking certification for
purposes of demonstrating compliance under the covered statutory
programs:
Provided,
That any person whose data or test results
are invalidated because such person had relied upon a laboratory
which loses its certification, shall be granted thirty days after
notice thereof by the director during which data or test results
may be repeated or reanalyzed by a certified laboratory for
purposes of demonstrating compliance under the covered statutory
programs, unless waived by the director:
Provided, however,
That
such thirty-day period may be extended by the director for good
cause shown.
(h) A special revenue fund designated the "environmental
laboratory certification fund" shall be established in the state
treasury on the first day of July, one thousand nine hundred
ninety-three. The net proceeds of all fees collected pursuant to
this section shall be deposited in the environmental laboratory
certification fund. Upon appropriation by the Legislature, thedirector shall expend the proceeds of the environmental
laboratory certification fund solely for the administration of
the requirements of this section:
Provided,
That for fiscal year
one thousand nine hundred ninety-four, expenditures are permitted
from collection without further appropriation by the Legislature.
(i) For purposes of this section, "covered statutory
program" means one of the regulatory programs developed under
statutory authority of one of the following acts of the
Legislature: Water Pollution Control Act, article eleven of this
chapter; Hazardous Waste Management Act, article eighteen of this
chapter; Hazardous Waste Emergency Response Fund Act, article
nineteen of this chapter; Underground Storage Tank Act, article
seventeen of this chapter; the Solid Waste Management Act,
article fifteen of this chapter; or the Groundwater Protection
Act, article twelve of this chapter.
(j) Any person adversely affected by an order or action by
the director pursuant to this section, or aggrieved by the
failure or refusal of the director to act within a reasonable
time, or by the action of the director in granting or denying a
certification or renewal thereof, may appeal to the environmental
quality board pursuant to article one, chapter twenty-two-b of
this code.
§22-1-16. Conflicting provisions.
This chapter is intended to supplement and reorganize
existing law and it is not the intention of the Legislature to
repeal, expressly or by implication, any other provision of thiscode. In the event that some provision of this chapter is
inconsistent or conflicts with any other provisions of the code,
making it impossible to comply with both, the provisions of this
chapter control.
ARTICLE 3. ARTICLE 2. ABANDONED MINE LANDS AND RECLAMATION ACT.
§22-2-1. 22-3-1. Short title.
This article shall be known and cited as the "Abandoned Mine
Lands and Reclamation Act".
§22-2-2. 22-3-2. Legislative findings; intent and purpose of
article; jurisdiction and authority of director.
The Legislature finds that there are a substantial number of
acres of land throughout the state that were disturbed by
surface-mining operations prior to the time of present day
effective control and regulation. There was little or no
reclamation conducted and the impacts from these unreclaimed
lands impose social and economic costs on residents in nearby
and adjoining areas as well as continue to impair environmental
quality, prevent or damage the beneficial use of land or water
resources, or endanger the health and safety of the public.
Further, the Legislature finds and declares that, due to the
passage of Public Law 95-87 the federal Surface Mining Control
and Reclamation Act of 1977, certain areas within the boundaries
of this state do not meet present day standards for reclamation.
Further, the Legislature finds that Title IV of the federal
Surface Mining Control and Reclamation Act of 1977, Public Law
95-87, provides for the collection of thirty-five cents per tonof coal produced from surface-mine operations and fifteen cents
per ton of coal produced from underground mine operations in West
Virginia to be collected by the secretary of the United States
department of the interior until the thirtieth day of September,
one thousand nine hundred ninety-five two thousand four. At
least fifty percent of the funds collected are to be allocated
directly to the state of West Virginia to accomplish reclamation
of abandoned coal mining operations, as of the date the state of
West Virginia obtained an approved abandoned mine reclamation
plan in accordance with Sections 405 and 503 of Public Law 95-87
the federal Surface Mining Control and Reclamation Act of 1977,
as amended.
Therefore, it is the intent of the Legislature by this
article to vest jurisdiction and authority in the director of the
division of environmental protection to maintain program approval
by, and receipt of funds from, the United States department of
the interior to accomplish the desired restoration and
reclamation of our land and water resources.
§22-2-3. 22-3-3. Definitions.
(a) All definitions set forth in article three of this
chapter twenty-two-a of this code apply to those defined terms
which also appear in this article, if applicable.
(b) For the purposes of this article the following words
have the meanings ascribed to them in this subsection:
(1) "Director" means the director of the division of
environmental protection or such other person the director hasdelegated authority or duties to pursuant to sections six or
eight, article one of this chapter;
(2) "Division" means the division of environmental
protection; and
(3) "Secretary" means the secretary of the United States
Department of Interior.
§22-2-4. 22-3-4. Abandoned land reclamation fund and objectives
of fund; lands eligible for reclamation.
(a) All abandoned land reclamation funds available under
Title IV of Public Law 95-87 the federal Surface Mining Control
and Reclamation Act of 1977, as amended, private donations
received, any state appropriated or transferred funds, or funds
received from the sale of land by the director, under this
article shall be deposited with the treasurer of the state of
West Virginia to the credit of the abandoned land reclamation
fund heretofore created, and expended pursuant to the
requirements of this article.
(b) Moneys in the fund may be used by the director for the
following:
(1) Reclamation and restoration of land and water resources
adversely affected by past coal surface-mining operations,
including, but not limited to, reclamation and restoration of
abandoned surface mine areas, abandoned coal processing areas and
abandoned coal processing waste areas; sealing and filling
abandoned deep mine entries and voids; planting of land adversely
affected by past coal surface-mining operations to preventerosion and sedimentation; prevention, abatement, treatment and
control of water pollution created by coal mine drainage,
including restoration of stream beds and construction and
operation of water treatment plants; prevention, abatement and
control of burning coal processing waste areas and burning coal
in situ; prevention, abatement and control of coal mine
subsidence; and payment of administrative expenses and all other
necessary expenses incurred to accomplish the purpose of this
article:
Provided,
That all expenditures from this fund shall
reflect the following priorities in the order stated:
(A) The protection of public health, safety, general welfare
and property from extreme danger of adverse effects of past
surface-mining practices;
(B) The protection of public health, safety and general
welfare from adverse effects of past coal surface-mining
practices;
(C) The restoration of land and water resources and
environment previously degraded by adverse effects of past coal
surface-mining practices, including measures for the conservation
and development of soil, water (excluding channelization),
woodland, fish and wildlife, recreation resources and
agricultural productivity;
(D) Research and demonstration projects relating to the
development of surface-mining reclamation and water quality
control program methods and techniques;
(E) The protection, repair, replacement, construction orenhancement of public facilities such as utilities, roads,
recreation and conservation facilities adversely affected by past
coal surface-mining practices; and
(F) The development of publicly owned land adversely
affected by past coal surface-mining practices, including land
acquired as provided in this article for recreation and historic
purposes, conservation and reclamation purposes and open space
benefits.
(2) (A) The director may expend up to thirty percent of the
funds allocated to the state in any year through the grants made
available under paragraphs (1) and (5), subsection (g) of Section
402 of Public Law 95-87 the federal Surface Mining Control and
Reclamation Act of 1977, as amended, for the purpose of
protecting, repairing, replacing, constructing or enhancing
facilities relating to water supply, including water distribution
facilities and treatment plants, to replace water supplies
adversely affected by coal surface-mining practices.
(B) If the adverse effects on water supplies referred to in
this subdivision occurred both prior to and after the third day
of August, one thousand nine hundred seventy-seven, subdivision
(3) of this subsection shall not be construed to (c) of this
section does not prohibit the state from using funds for the
purposes of this subdivision if the director determines that the
adverse effects occurred predominantly prior to the third day of
August, one thousand nine hundred seventy-seven.
(3) The director may receive and retain up to ten percent ofthe total of the grants made annually to the state under
paragraphs (1) and (5), subsection (g) of Section 404 402 of
Public Law 95-87 the federal Surface Mining Control and
Reclamation Act of 1977, as amended, if the amounts are deposited
to the credit of either:
(A) A The special account in the state treasury designated
the "Reclamation and Restoration Fund" which is hereby created
continued. Moneys in the fund may be expended by the director
for administrative and personnel expenses and to achieve the
priorities stated in subdivision (1) of this subsection after the
thirtieth day of September, one thousand nine hundred ninety-five
and for associated administrative and personnel expenses; or
(B) A The special account in the state treasury designated
the "Acid Mine Drainage Abatement and Treatment Fund" which is
hereby created continued. Moneys in the fund may be expended by
the director for administrative and personnel expenses and to
implement, in consultation with the United States soil
conservation service, acid mine drainage abatement and treatment
plans approved by the secretary of the United States department
of interior and for associated administrative and personnel
expenses. The plans shall provide for the comprehensive
abatement of the causes and treatment of the effects of acid mine
drainage within qualified hydrologic units affected by coal
surface-mining practices.
(c) Except as provided for in this subsection, lands and
water eligible for reclamation or drainage abatement expendituresunder this article are those which were mined for coal or which
were affected by the mining, wastebanks, coal processing or other
coal mining processes, and abandoned or left in an inadequate
reclamation status prior to the third day of August, one thousand
nine hundred seventy-seven, and for which there is no continuing
reclamation responsibility:
Provided,
That moneys from the funds
made available by the secretary of the United States department
of interior pursuant to paragraphs (1) and (5), subsection (g),
Section 402 of Public Law 95-87 the federal Surface Mining
Control and Reclamation Act of 1977, as amended, may be expended
for the reclamation or drainage abatement of a site that: (1)
The surface-mining operation occurred during the period beginning
on the fourth day of August, one thousand nine hundred seventy-
seven, and ending on or before the twenty-first day of January,
one thousand nine hundred eighty-one, and that any funds for
reclamation or abatement which are available pursuant to a bond
or other financial guarantee or from any other source, and not
sufficient to provide for adequate reclamation or abatement of
the site; or (2) the surface-mining operation occurred during the
period beginning on the fourth day of August, one thousand nine
hundred seventy-seven, and ending on or before the first day of
October, one thousand nine hundred ninety-one fifth day of
November, one thousand nine hundred ninety, and that the surety
of the surface-mining operation became insolvent during that
period, and as of the first day of October, one thousand nine
hundred ninety-one fifth day of November, one thousand ninehundred ninety, funds immediately available from proceeding
relating to the insolvency or from any financial guarantees or
other sources are not sufficient to provide for adequate
reclamation of the site:
Provided, however,
That the director,
with the concurrence of the secretary, makes either of the above-
stated findings, and that the site is eligible, or more urgent
than the reclamation priorities set forth in paragraphs (A) and
(B), subdivision (1), subsection (b) of this section.
(d) One purpose of this article is to provide additional and
cumulative remedies to abate the pollution of the waters of the
state and nothing contained in this article abridges or alters
rights of action or remedies now or hereafter existing, nor shall
do any provisions in this article or any act done by virtue of
this article be construed as estopping estop the state,
municipalities, public health officers or persons as riparian
owners or otherwise in the exercise of their rights to suppress
nuisances or to abate any pollution now or hereafter existing or
to recover damages.
(e) Where the governor certifies that the above objectives
of the fund have been achieved and there is a need for
construction of specific public facilities in communities
impacted by coal development, and other sources of federal funds
are inadequate and the secretary concurs, then the director may
expend money from the fund for the construction.
§22-2-5. 22-3-5. Powers and duties of director; program plans
and reclamation projects.
(a) The director shall submit to the secretary of the
interior a state reclamation plan and annual projects to carry
out the purposes of this article.
(b) That reclamation plan shall generally identify the areas
to be reclaimed, the purposes for which the reclamation is
proposed, the relationship of the lands to be reclaimed and the
proposed reclamation to surrounding areas, the specific criteria
for ranking and identifying projects to be funded and the legal
authority and programatic capability to perform the work in
conformance with the provisions of this article.
(c) On an annual basis, the director shall submit to the
secretary of the interior an application for the support of the
state program and implementation of specific reclamation
projects. The annual requests shall include information as may
be requested by the secretary of the interior including:
(1) A general description of each proposed project;
(2) A priority evaluation of each proposed project;
(3) A statement of the estimated benefits in such terms as
number of acres restored, miles of stream improved, acres of
surface lands protected from subsidence, population protected
from subsidence, air pollution and hazards of mine and coal
refuse disposal area fires;
(4) An estimate of the cost for each proposed project;
(5) In the case of proposed research and demonstration
projects, a description of the specific techniques to be
evaluated or objective to be attained;
(6) An identification of lands or interest therein to be
acquired and the estimated cost; and
(7) In each year after the first in which a plan is filed
under this article, an inventory of each project funded under the
previous year's grant, which inventory shall include details of
financial expenditures on the project together with a brief
description of the project, including the project's location, the
landowner's name, acreage and the type of reclamation performed.
(d) The costs for each proposed project under this section
shall include actual construction costs, actual operation and
maintenance costs of permanent facilities, planning and
engineering costs, construction inspection costs and other
necessary administrative expenses.
§22-2-6. 22-3-6. Acquisition and reclamation of land adversely
affected by past coal surface-mining practices.
(a) If the director makes a finding of fact that:
(1) Land or water resources have been adversely affected by
past coal surface-mining practices;
(2) The adverse effects are at a stage where, in the public
interest, action to restore, reclaim, abate, control or prevent
should be taken;
(3) The owners of the land or water resources where entry
must be made to restore, reclaim, abate, control or prevent the
adverse effects of past coal surface-mining practices are not
known or readily available; or
(4) The owners will not give permission for the director,his or her agents, employees or contractors to enter upon the
property to restore, reclaim, abate, control or prevent the
adverse effects of past coal surface-mining practices, then, upon
giving notice by mail to the owners, if known, or if not known by
posting notice upon the premises and advertising once in a
newspaper of general circulation in the county in which the land
lies, the director, his or her agents, employees or contractors
have the right to enter upon the property adversely affected by
past coal surface-mining practices and any other property to have
access to the property to do all things necessary or expedient to
restore, reclaim, abate, control or prevent the adverse effects.
The entry shall be construed as an exercise of the police power
of the state for the protection of public health, safety and
general welfare and shall not be construed as an act of
condemnation of property nor of trespass thereon. The moneys
expended for the work and the benefits accruing to any premises
so entered upon is chargeable against the land and mitigates or
offsets any claim in or any action brought by any owner of any
interest in the premises for any alleged damages by virtue of the
entry:
Provided,
That this provision is not intended to create
new rights of action or eliminate existing immunities.
(b) The director, his or her agents, employees or
contractors have the right to enter upon any property for the
purpose of conducting studies or exploratory work to determine
the existence of adverse effects of past coal surface-mining
practices and to determine the feasibility of restoration,reclamation, abatement, control or prevention of the adverse
effects. The entry shall be construed as an exercise of the
police power of the state for the protection of public health,
safety and general welfare and shall not be construed as an act
of condemnation of property nor trespass thereon.
(c) The director may acquire any land by purchase, donation
or condemnation, which is adversely affected by past coal
surface-mining practices, if the director determines that
acquisition of the land is necessary to successful reclamation
and that:
(1) The acquired land, after restoration, reclamation,
abatement, control or prevention of the adverse effects of past
coal surface-mining practices will serve recreation, historic,
conservation or reclamation purposes or provide open space
benefits;
(2) Permanent facilities such as a treatment plant or a
relocated stream channel will be constructed on the land for the
restoration, reclamation, abatement, control or prevention of the
adverse effects of past coal surface-mining practices; or
(3) Acquisition of coal refuse disposal sites and all coal
refuse thereon will serve the purposes of this article or that
public ownership is desirable to meet emergency situations and
prevent recurrences of the adverse effects of past coal surface-
mining practices.
(d) Title to all lands acquired pursuant to this section
shall be in the name of the state of West Virginia, by the WestVirginia division of environmental protection. The price paid
for land acquired under this section shall reflect the fair
market value of the land as adversely affected by past coal
surface-mining practices.
(e) The director is hereby authorized to transfer land
obtained under subsection (c) of this section to the secretary.
The director may purchase the land from the secretary after
reclamation at the fair market value less the state's original
acquisition price.
(f) The director may accept and local political subdivisions
may transfer to the director land belonging to them to carry out
the purposes set out in this article and in that event they shall
have a preferential right to purchase the land after reclamation
at the fair market value less the political subdivision's cost of
acquisition, but at no time shall the director sell the land to
a political subdivision at a price less than the cost of the
acquisition and reclamation of the land:
Provided,
That if any
land sold to a political subdivision under this subsection is not
used for a valid public purpose as specified by the director in
the terms and conditions of the sales agreement, then all rights,
title and interest in the land shall revert to the West Virginia
division of environmental protection. Any moneys received from
the sale shall be deposited in the abandoned land reclamation
fund.
(g) Where land acquired pursuant to this section is
considered to be suitable for industrial, commercial, residentialor recreational development, the director may sell the land by
public sale under a system of competitive bidding at not less
than fair market value and pursuant to regulations rules
promulgated to ensure that the lands are put to proper use
consistent with state and local land use plans.
(h) The director, if requested and after appropriate public
notice, shall hold a public hearing in the county in which land
acquired pursuant to this section is located. The hearing shall
be held at a time which shall afford affords local citizens and
government the maximum opportunity to participate in the decision
concerning the use and disposition of the land after restoration,
reclamation, abatement, control or prevention of the adverse
effects of past coal surface-mining practices.
(i) In addition to the authority to acquire land under other
provisions of this section, the director is authorized to use
money in the fund to acquire land from any federal, state or
local government or from a political subdivision thereof, or from
any person, firm, association or corporation, if he or she
determines that such is an integral and necessary element of an
economically feasible plan for the project to construct or
rehabilitate housing for persons disabled as the result of
employment in the mines or work incidental thereto, persons
displaced by acquisition of land pursuant to this section, or
persons dislocated as the result of adverse effects of coal
surface-mining practices which constitute an emergency as
provided in section 410 of Public Law 95-87 the federal SurfaceMining Control and Reclamation Act of 1977, as amended, or
persons dislocated as the result of natural disasters or
catastrophic failures from any cause. The activities shall be
accomplished under such terms and conditions as the director
shall require requires, which may include transfers of land with
or without monetary consideration:
Provided,
That to the extent
that the consideration is below the fair market value of the land
transferred, no portion of the difference between the fair market
value and the consideration shall accrue as a profit to such
persons, firm, association or corporation. No part of the funds
provided under this article may be used to pay the actual
construction costs of housing. The director may carry out the
purposes of this subsection directly or he or she may make grants
and commitments for grants, and may advance money under such
terms and conditions as he or she may require to any department,
agency or political subdivision of this state, or any public body
or nonprofit organization designated by the director.
§22-2-7. 22-3-7. Liens against reclaimed land; petition by
landowner; appeal; priority of liens.
(a) Within six months after the completion of a project to
restore, reclaim, abate, control or prevent adverse effects of
past coal surface-mining practices on a privately owned land, the
director shall itemize the moneys so expended and may file a
statement thereof in the office of the clerk of the county
commission in the county in which the land lies, together with a
notarized appraisal by an independent appraiser of the value ofthe land before the restoration, reclamation, abatement, control
or prevention of adverse effects of past coal surface-mining
practices, if the moneys so expended result in a significant
increase in property value. The statement constitutes a lien
upon the land. The lien shall not exceed the amount determined
by the appraisal to be the increase in the market value of the
land as a result of the restoration, reclamation, abatement,
control or prevention of the adverse effects of past coal
surface-mining practices. No lien may be filed against the
property of any person in accordance with this subsection, who
owned the surface prior to the second day of May, one thousand
nine hundred seventy-seven, and who neither consented to, nor
participated in, nor exercised control over the mining operation
which necessitated the reclamation performed hereunder.
(b) The landowner may petition the director within sixty
days of the filing of the lien to determine the increase in the
market value of the land as a result of the restoration,
reclamation, abatement, control or prevention of the adverse
effects of past coal surface-mining practices. The amount
reported to be the increase in value of the premises constitutes
is the amount of lien and shall be recorded with the statement
herein provided. Any party aggrieved by the decision may appeal
to the circuit court of the county in which the land is located.
(c) The statement filed pursuant to subsection (a) of this
section constitutes is a lien upon the land as of the date of the
expenditure of the moneys and has priority as a lien second onlyto the lien of real estate taxes imposed upon the land.
§22-2-8. 22-3-8. Filling voids and sealing tunnels.
(a) The Legislature declares that voids, open and abandoned
tunnels, shafts and entryways and subsidence resulting from any
previous coal surface-mining operation constitute are a hazard to
the public welfare and safety and that surface impacts of any
underground or surface-mining operation may degrade the
environment. The director is authorized to fill the voids, seal
the abandoned tunnels, shafts and entryways, and reclaim surface
impacts of underground or surface mines and remove water and
other matter from mines which the director determines could
endanger life and property, constitute are a hazard to the public
welfare and safety or degrade the environment.
(b) In those instances where coal mine waste piles are being
reworked for conservation purposes, the incremental costs of
disposing of the wastes from such operations by filling voids and
sealing tunnels may be eligible for funding, if the disposal of
those wastes meets the purposes of this article.
(c) The director may acquire by purchase, donation, easement
or otherwise such interest in land as he or she determines
necessary to carry out the provisions of this section.
§22-2-9. 22-3-9. General and miscellaneous powers and duties of
director; cooperative agreements; injunctive relief; water
treatment plants and facilities; transfer of funds and
interagency cooperation.
(a) The director is authorized to engage in any work and todo all things necessary and proper, including promulgation of
rules and regulations, to implement and administer the provisions
of this article.
(b) The director is authorized to engage in cooperative
projects under this article with any other agency of the United
States of America, any state, county or municipal agency or
subdivision thereof.
(c) The director may request the attorney general, who is
hereby authorized to initiate, in addition to any other remedies
provided for in this article, in any court of competent
jurisdiction, an action in equity for an injunction to restrain
any interference with the exercise of the right to enter or to
conduct any work provided in this article.
(d) The director has the authority to construct and operate
a plant or any facilities for the control and treatment of water
pollution resulting from mine drainage. The extent of this
control and treatment may be dependent upon the ultimate use of
the water:
Provided,
That this subsection shall does not repeal
or supersede any portion of the applicable federal or state water
pollution control laws and no control or treatment under this
section may be less than that required under any applicable
federal or state water pollution control law. The construction
of any facilities may include major interceptors and other
facilities appurtenant to the plant.
(e) All departments, boards, commissions and agencies of the
state shall cooperate with the director by providing technicalexpertise, personnel, equipment, materials and supplies to
implement and administer the provisions of this article.
ARTICLE 3. WEST VIRGINIA SURFACE COAL MINING AND RECLAMATION
ACT.
§22-3-1. 22A-3-1. Short title.
This article shall be known and cited as the "West Virginia
"Surface Coal Mining and Reclamation Act."
§22-3-2. 22A-3-2. Legislative findings and purpose; jurisdiction
vested in department of energy division of environmental
protection; authority of commissioner and director of
division of mines and minerals director; apportionment of
responsibility; inter-departmental cooperation.
(a) The Legislature finds that it is essential to the
economic and social well-being of the citizens of the state of
West Virginia to strike a careful balance between the protection
of the environment and the economical mining of coal needed to
meet energy requirements.
Further, the Legislature finds that there is great diversity
in terrain, climate, biological, chemical and other physical
conditions in parts of this nation where mining is conducted;
that the state of West Virginia in particular needs an
environmentally sound and economically healthy mining industry;
and by reason of the above it may be necessary for the
commissioner as provided in article four, chapter twenty-two of
this code, director to promulgate regulations rules which vary
from federal regulations as is provided for in sections 101 (f)and 201 (c)(9) of the federal Surface Mining Control and
Reclamation Act of 1977, as amended, "Public Law 95-87."
Further, the Legislature finds that unregulated surface coal
mining operations may result in disturbances of surface and
underground areas that burden and adversely affect commerce,
public welfare and safety by destroying or diminishing the
utility of land for commercial, industrial, residential,
recreational, agricultural and forestry purposes; by causing
erosion and landslides; by contributing to floods; by polluting
the water and river and stream beds; by destroying fish, aquatic
life and wildlife habitats; by impairing natural beauty; by
damaging the property of citizens; by creating hazards dangerous
to life and property; and by degrading the quality of life in
local communities, all where proper mining and reclamation is not
practiced.
(b) Therefore, it is the purpose of this article to:
(1) Expand the established and effective statewide program
to protect the public and the environment from the adverse
effects of surface-mining operations;
(2) Assure that the rights of surface and mineral owners and
other persons with legal interest in the land or appurtenances to
land are adequately protected from such operations;
(3) Assure that surface-mining operations are not conducted
where reclamation as required by this article is not feasible;
(4) Assure that surface-mining operations are conducted in
a manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to
reclaim surface areas as contemporaneously as possible with the
surface-mining operations;
(6) Assure that adequate procedures are provided for public
participation where appropriate under this article;
(7) Assure the exercise of the full reach of state common
law, statutory and constitutional powers for the protection of
the public interest through effective control of surface-mining
operations; and
(8) Assure that the coal production essential to the
nation's energy requirements and to the state's economic and
social well-being is provided.
(c) In recognition of these findings and purposes, the
Legislature hereby vests authority in the commissioner of the
department of energy director of the division of environmental
protection to:
(1) Administer and enforce the provisions of this article as
it relates to surface mining to accomplish the purposes of this
article;
(2) Conduct hearings and conferences or appoint persons to
conduct them in accordance with this article;
(3) Promulgate, administer and enforce regulations rules
pursuant to this article;
(4) Enter into a cooperative agreement with the secretary of
the United States department of the interior to provide for state
regulations regulation of surface-mining operations on federallands within West Virginia consistent with section 523 of Public
Law 95-87 the federal Surface Mining Control and Reclamation Act
of 1977, as amended; and
(5) Administer and enforce regulations rules promulgated
pursuant to this chapter to accomplish the requirements of
programs under Public Law 95-87 the federal Surface Mining
Control and Reclamation Act of 1977, as amended.
(d) The commissioner of the department of energy director of
the division of environmental protection and the director of the
division of mines and minerals office of miners' health, safety
and training shall cooperate with respect to departmental each
agency's programs and records to effect an orderly and harmonious
administration of the provisions of this article. The
commissioner of the department of energy director of the division
of environmental protection may avail himself or herself of any
services which may be provided by other state agencies in this
state and other states or by agencies of the federal government,
and may reasonably compensate them for such services. Also, he
or she may receive any federal funds, state funds or any other
funds, and enter into cooperative agreements, for the reclamation
of land affected by surface mining.
§22-3-3. 22A-3-3. Definitions.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner so thatthe treated water shall does not violate the effluent limitations
or cause a violation of the water quality standards established
for the river, stream or drainway into which such water is
released.
(b) "Affected area" means, when used in the context of
surface-mining activities, all land and water resources within
the permit area which are disturbed or utilized during the term
of the permit in the course of surface-mining and reclamation
activities. "Affected area" means, when used in the context of
underground mining activities, all surface land and water
resources affected during the term of the permit: (1) By surface
operations or facilities incident to underground mining
activities; or (2) by underground operations.
(c) "Adjacent areas" means, for the purpose of permit
application, renewal, revision, review and approval, those land
and water resources, contiguous to or near a permit area, upon
which surface-mining and reclamation operations conducted within
a permit area during the life of such operations may have an
impact. "Adjacent areas" means, for the purpose of conducting
surface-mining and reclamation operations, those land and water
resources contiguous to or near the affected area upon which
surface-mining and reclamation operations conducted within a
permit area during the life of such operations may have an
impact.
(d) "Applicant" means any person who has or should have
applied for any permit pursuant to this article.
(e) "Approximate original contour" means that surface
configuration achieved by the backfilling and grading of the
disturbed areas so that the reclaimed area, including any
terracing or access roads, closely resembles the general surface
configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with
all highwalls and spoil piles eliminated:
Provided,
That water
impoundments may be permitted pursuant to subdivision (8),
subsection (b), section twelve thirteen of this article:
Provided, however,
That minor deviations may be permitted in
order to minimize erosion and sedimentation, retain moisture to
assist revegetation, or to direct surface runoff.
(f) "Assessment officer" means an employee of the department
division, other than a surface-mining reclamation supervisor,
inspector or inspector-in-training, appointed by the commissioner
director to issue proposed penalty assessments and to conduct
informal conferences to review notices, orders and proposed
penalty assessments.
(g) "Breakthrough" means the release of water which has been
trapped or impounded, or the release of air into any underground
cavity, pocket or area as a result of surface-mining operations.
(h) "Coal processing wastes" means earth materials which are
or have been combustible, physically unstable or acid-forming or
toxic-forming, which are wasted or otherwise separated from
product coal, and slurried or otherwise transported from coal
processing plants after physical or chemical processing, cleaningor concentrating of coal.
(i) "Commissioner" means the commissioner of the department
of energy or his or her authorized agent.
(j) "Department" means the department of energy.
(k) (i) "Director" means the director of the division of
mines and minerals environmental protection or such other person
the director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter.
(l) (j) "Disturbed area" means an area where vegetation,
topsoil or overburden has been removed or placed by surface-
mining operations, and reclamation is incomplete.
(m) (k) "Division" means the division of mines and minerals
of the department of energy environmental protection.
(n) (l) "Imminent danger to the health or safety of the
public" means the existence of such condition or practice, or any
violation of a permit or other requirement of this article, which
condition, practice or violation could reasonably be expected to
cause substantial physical harm or death to any person outside
the permit area before such condition, practice or violation can
be abated. A reasonable expectation of death or serious injury
before abatement exists if a rational person, subjected to the
same conditions or practices giving rise to the peril, would not
expose himself the person to the danger during the time necessary
for the abatement.
(o) (m) "Minerals" means clay, coal, flagstone, gravel,
limestone, manganese, sand, sandstone, shale, iron ore and anyother metal or metallurgical ore.
(p) (n) "Operation" means those activities conducted by an
operator who is subject to the jurisdiction of this article.
(q) (o) "Operator" means any person who is granted or who
should obtain a permit to engage in any activity covered by this
article and any rule promulgated hereunder and includes any
person who engages in surface mining or surface mining and
reclamation operations, or both. The term shall also be
construed in a manner consistent with the federal program
pursuant to Public Law 95-87 the federal Surface Mining Control
and Reclamation Act of 1977, as amended.
(r) (p) "Permit" means a permit to conduct surface-mining
operations pursuant to this article.
(s) (q) "Permit area" means the area of land indicated on
the approved proposal map submitted by the operator as part of
his the operator's application showing the location of perimeter
markers and monuments and shall be readily identifiable by
appropriate markers on the site.
(t) (r) "Permittee" means a person holding a permit issued
under this article.
(u) (s) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity
or any agency, unit or instrumentality of federal, state or local
government.
(v) (t) "Prime farmland" has the same meaning as that
prescribed by the United States secretary of agriculture on thebasis of such factors as moisture availability, temperature
regime, chemical balance, permeability, surface layer
composition, susceptibility to flooding and erosion
characteristics, and which historically have been used for
intensive agricultural purposes and as published in the federal
register.
(w) (u) "Surface mine","surface mining" or "surface-mining
operations" means:
(1) Activities conducted on the surface of lands for the
removal of coal, or, subject to the requirements of section
fourteen of this article, surface operations and surface impacts
incident to an underground coal mine, including the drainage and
discharge therefrom. Such activities include: Excavation for
the purpose of obtaining coal, including, but not limited to,
such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit and area mining; the uses of
explosives and blasting; reclamation; in situ distillation or
retorting, leaching or other chemical or physical processing; the
cleaning, concentrating or other processing or preparation and
loading of coal for commercial purposes at or near the mine site;
and
(2) The areas upon which the above activities occur or where
such activities disturb the natural land surface. Such areas
shall also include any adjacent land, the use of which is
incidental to any such activities; all lands affected by the
construction of new roads or the improvement or use of existingroads to gain access to the site of such activities and for
haulage; and excavations, workings, impoundments, dams,
ventilation shafts, entryways, refuse banks, dumps, stockpiles,
overburden piles, spoil banks, culm banks, tailings, holes or
depressions, repair areas, storage areas, processing areas,
shipping areas and other areas upon which are sited structures,
facilities, or other property or materials on the surface,
resulting from or incident to such activities:
Provided,
That
such activities do not include the extraction of coal incidental
to the extraction of other minerals where coal does not exceed
sixteen and two-thirds percent of the tonnage of minerals removed
for purposes of commercial use or sale, or coal prospecting
subject to section seven of this article.
(x) (v) "Underground mine" means the surface effects
associated with the shaft, slopes, drifts or inclines connected
with excavations penetrating coal seams or strata and the
equipment connected therewith which contribute directly or
indirectly to the mining, preparation or handling of coal.
(y) (w) "Significant, imminent environmental harm to land,
air or water resources" means the existence of any condition or
practice, or any violation of a permit or other requirement of
this article, which condition, practice or violation could
reasonably be expected to cause significant and imminent
environmental harm to land, air or water resources. The term
"environmental harm" means any adverse impact on land, air or
water resources, including, but not limited to, plant, wildlifeand fish, and the environmental harm is imminent if a condition
or practice exists which is causing such harm or may reasonably
be expected to cause such harm at any time before the end of the
abatement time set by the commissioner director. An
environmental harm is significant if that harm is appreciable and
not immediately repairable.
§22-3-4. 22A-3-4. Reclamation; duties and functions of
commissioner director.
(a) The commissioner director shall administer the
provisions of this article relating to surface-mining operations.
The commissioner shall have director has within his or her
jurisdiction and supervision all lands and areas of the state,
mined or susceptible of being mined, for the removal of coal and
all other lands and areas of the state deforested, burned over,
barren or otherwise denuded, unproductive and subject to soil
erosion and waste. Included within such lands and areas shall
be are lands seared and denuded by chemical operations and
processes, abandoned coal mining areas, swamplands, lands and
areas subject to flowage easements and backwaters from river
locks and dams, and river, stream, lake and pond shore areas
subject to soil erosion and waste. The jurisdiction and
supervision exercised by the commissioner director shall be
consistent with other provisions of this chapter.
(b) The commissioner shall have director has the authority
to:
(1) Promulgate rules and regulations, in accordance with theprovisions of chapter twenty-nine-a of this code, to implement
the provisions of this article:
Provided,
That the commissioner
director shall give notice by publication of the public hearing
required in article three, chapter twenty-nine-a of this code:
Provided, however,
That any forms, handbooks or similar materials
having the effect of a rule or regulation as defined in article
three, chapter twenty-nine-a of this code were issued, developed
or distributed by the commissioner director pursuant to or as a
result of a rule or regulation, shall be are subject to the
provisions of article three, chapter twenty-nine-a of this code;
(2) Make investigations or inspections necessary to ensure
complete compliance with the provisions of this code;
(3) Conduct hearings or appoint persons to conduct hearings
under provisions of this article or rules and regulations adopted
by the commissioner director; and for the purpose of any
investigation or hearing hereunder, the commissioner director or
his or her designated representative, may administer oaths or
affirmations, subpoena witnesses, compel their attendance, take
evidence and require production of any books, papers,
correspondence, memoranda, agreements, or other documents or
records relevant or material to the inquiry;
(4) Enforce the provisions of this article as provided
herein; and
(5) Appoint such advisory committees as may be of assistance
to the commissioner director in the development of programs and
policies:
Provided,
That such advisory committees shall, in eachinstance, include members representative of the general public.
(c) (1) After the commissioner director has adopted the
regulations rules required by this article, any person may
petition the commissioner director to initiate a proceeding for
the issuance, amendment or appeal of a rule under this article.
(2) The petition shall be filed with the commissioner
director and shall set forth the facts which support the
issuance, amendment or appeal of a rule under this article.
(3) The commissioner director may hold a public hearing or
may conduct such investigation or proceeding as he or she
considers appropriate in order to determine whether the petition
should be granted or denied.
(4) Within ninety days after filing of a petition described
in subdivision (1) of this subsection, the commissioner director
shall either grant or deny the petition. If the commissioner
director grants the petition, he or she shall promptly commence
an appropriate proceeding in accordance with the provisions of
chapter twenty-nine-a of this code. If the commissioner director
denies the petition, he or she shall notify the petitioner in
writing setting forth the reasons for the denial.
§22-3-5. 22A-3-5. Surface-mining reclamation supervisors and
inspectors; appointment and qualifications; salary.
The commissioner director shall determine the number of
surface-mining reclamation supervisors and inspectors needed to
carry out the purposes of this article and appoint them as such.
All such appointees shall be qualified civil service employees,but no person shall be is eligible for such appointment until he
or she has served in a probationary status for a period of six
months to the satisfaction of the commissioner director.
Every surface-mining reclamation supervisor shall be paid
not less than thirty thousand dollars per year. Every surface-
mining reclamation inspector shall be paid not less than twenty-
five thousand dollars per year.
§22-3-6. 22A-3-6. Duties of surface-mining reclamation
inspectors and inspectors in training.
Except as otherwise provided in this article, surface-mining
reclamation inspectors and inspectors in training shall make all
necessary surveys and inspections of surface-mining operations
required by the provisions of this article, shall administer and
enforce all surface-mining laws and rules and regulations, and
shall perform such other duties and services as may be prescribed
by the commissioner director. Such inspectors shall give
particular attention to all conditions of each permit to ensure
complete compliance therewith. Such inspectors shall note and
describe all violations of this article and immediately report
such violations to the commissioner director in writing,
furnishing at the same time a copy of such report to the operator
concerned.
§22-3-7. 22A-3-7. Notice of intention to prospect, requirements
therefor; bonding; commissioner's director's authority to
deny or limit; postponement of reclamation; prohibited
acts; exceptions.
(a) Any person intending to prospect for coal in an area not
covered by a surface-mining permit, in order to determine the
location, quantity or quality of a natural coal deposit, making
feasibility studies or for any other purpose, shall file with the
commissioner director, at least fifteen days prior to
commencement of any disturbance associated with prospecting, a
notice of intention to prospect, which notice shall include a
description of the prospecting area, the period of supposed
prospecting and such other information as required by rules or
regulations promulgated pursuant to this section:
Provided,>fo=1> That prior to the commencement of such
prospecting, the commissioner director may issue an order denying
or limiting permission to prospect where he the director finds
that prospecting operations will damage or destroy a unique
natural area, or will cause serious harm to water quality, or
that the operator has failed to satisfactorily reclaim other
prospecting sites, or that there has been an abuse of prospecting
by previous prospecting operations in the area.
(b) Notice of intention to prospect shall be made in writing
on forms prescribed by the commissioner director and shall be
signed and verified by the applicant. The notice shall be
accompanied by (1) a United States geological survey topographic
map showing by proper marking the crop line and the name, where
known, of the seam or seams to be prospected, and (2) a bond, or
cash, or collateral securities or certificates of the same type
and form and in the same manner as provided in section eleven ofthis article, in the amount of five hundred dollars per acre or
fraction thereof for the total estimated disturbed area. If such
bond is used, it shall be payable to the state of West Virginia
and conditioned that the operator shall faithfully perform the
requirements of this article as they relate to backfilling and
revegetation of the disturbed area.
(c) Any person prospecting under the provisions of this
section shall ensure that such prospecting operation is conducted
in accordance with the performance standards in section twelve
thirteen of this article for all lands disturbed in explorations,
including excavations, roads, drill holes, and the removal of
necessary facilities and equipment.
(d) Information submitted to the commissioner director
pursuant to this section as confidential, concerning trade
secrets or privileged commercial or financial information, which
relates to the competitive rights of the person or entity
intended to prospect the described area, shall is not be
available for public examination.
(e) Any person who conducts any prospecting activities which
substantially disturb the natural land surface in violation of
this section or regulations rules issued pursuant thereto shall
be is subject to the provisions of sections sixteen and seventeen
of this article.
(f) No operator shall remove more than two hundred fifty
tons of coal without the specific written approval of the
commissioner director. Such approval shall be requested by theoperator on forms prescribed by the commissioner director. The
commissioner director shall promulgate regulations rules
governing such operations and setting forth information required
in the application for approval. Each such application shall be
accompanied by a two thousand dollar filing fee.
(g) The bond accompanying said notice of intention to
prospect shall be released by the commissioner director when the
operator demonstrates that a permanent species of vegetative
cover is established.
(h) In the event an operator desires to mine the area
currently being prospected, and has requested and received an
appropriate surface mine application (S.M.A.) number, the
commissioner director may permit the postponement of the
reclamation of the area prospected. Any part of a prospecting
operation, where reclamation has not been postponed as provided
above, shall be reclaimed within a period of three months from
disturbance.
(i) For the purpose of this section, the word "prospect" or
"prospecting" does not include core drilling related solely to
taxation or highway construction.
§22-3-8. 22A-3-8. Prohibition of surface mining without a
permit; permit requirements; successor in interest; duration
of permits; proof of insurance; termination of permits;
permit fees.
No person may engage in surface-mining operations unless
such person has first obtained a permit from the commissionerdirector in accordance with the following:
(a) Within two months after the secretary of the interior
approves a permanent state program for West Virginia, all
surface-mining operators shall file an application for a permit
or modification of a valid existing permit or underground opening
approval relating to those lands to be mined eight months after
that approval.
(b) No later than eight months after the secretary's
approval of a permanent state program for West Virginia, no
person may engage in or carry out, on lands within this state,
any surface-mining operations unless such person has first
obtained a permit from the commissioner: Provided, That those
persons conducting such operations under a permit or underground
opening approval issued in accordance with section 502 (c) of
Public Law 95-87, and in compliance therewith, may conduct such
operations beyond such period if an application for a permit or
modification of a valid existing permit or underground opening
approval was filed within two months after the secretary's
approval, and the administrative decision pertaining to the
granting or denying of such permit has not been made by the
commissioner.
(c) (1) All permits issued pursuant to the requirements of
this article shall be issued for a term not to exceed five years:
Provided,
That if the applicant demonstrates that a specified
longer term is reasonably needed to allow the applicant to obtain
necessary financing for equipment and the opening of theoperation, and if the application is full and complete for such
specified longer term, the commissioner director may extend a
permit for such longer term:
Provided, however,
That subject to
the prior approval of the commissioner director, with such
approval being subject to the provisions of subsection (c),
section eighteen of this article, a successor in interest to a
permittee who applies for a new permit, or transfer of a permit,
within thirty days of succeeding to such interest, and who is
able to obtain the bond coverage of the original permittee, may
continue surface-mining and reclamation operations according to
the approved mining and reclamation plan of the original
permittee until such successor's permit application or
application for transfer is granted or denied.
(d) (2) Proof of insurance shall be is required on an annual
basis.
(e) (3) A permit shall terminate terminates if the permittee
has not commenced the surface-mining operations covered by such
permit within three years of the date the permit was issued:
Provided,
That the commissioner director may grant reasonable
extensions of time upon a timely showing that such extensions are
necessary by reason of litigation precluding such commencement,
or threatening substantial economic loss to the permittee, or by
reason of conditions beyond the control and without the fault or
negligence of the permittee:
Provided, however,
That with
respect to coal to be mined for use in a synthetic fuel facility
or specific major electric generating facility, the permitteeshall be deemed to have commenced surface-mining operations at
such time as the construction of the synthetic fuel or generating
facility is initiated.
(f) (4) Each application for a new surface-mining permit
filed pursuant to this article shall be accompanied by a fee of
one thousand dollars. All permit fees and renewal fees provided
for in this section or elsewhere in this article shall be
collected by the commissioner director and 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 commissioner director, for the administration of this
article.
(g) (5) Prior to the issuance of any permit, the
commissioner of energy director shall ascertain from the
commissioner of the division of labor compliance with section
fourteen, article five, chapter twenty-one of this code. Upon
issuance of the permit, the commissioner of energy director shall
forward a copy to the commissioner of the division of labor, who
shall assure continued compliance under such permit.
§22-3-9. 22A-3-9. Permit application requirements and contents.
(a) The surface-mining permit application shall contain:
(1) The names and addresses of: (A) The permit applicant;
(B) the owner of record of the property, surface and mineral, to
be mined; (C) the holders of record of any leasehold interest in
the property; (D) any purchaser of record of the property under
a real estate contract; (E) the operator, if he is a persondifferent from the applicant; and (F) if any of these are
business entities other than a single proprietor, the names and
addresses of the principals, officers and resident agent;
(2) The names and addresses of the owners of record of all
surface and subsurface areas contiguous to any part of the
proposed permit area:
Provided,
That all residents living on
property contiguous to the proposed permit area shall be notified
by the applicant, by registered or certified mail, of such
application on or before the first day of publication of the
notice provided for in subdivision (6) of this subsection;
(3) A statement of any current surface-mining permits held
by the applicant in the state and the permit number and each
pending application;
(4) If the applicant is a partnership, corporation,
association or other business entity, the following where
applicable: The names and addresses of every officer, partner,
resident agent, director or person performing a function similar
to a director, together with the names and addresses of any
person owning of record ten percent or more of any class of
voting stock of the applicant; and a list of all names under
which the applicant, officer, director, partner or principal
shareholder previously operated a surface-mining operation in the
United States within the five-year period preceding the date of
submission of the application;
(5) A statement of whether the applicant, or any officer,
partner, director, principal shareholder of the applicant, anysubsidiary, affiliate or persons controlled by or under common
control with the applicant, has ever been an officer, partner,
director or principal shareholder in a company which has ever
held a federal or state mining permit which in the five-year
period prior to the date of submission of the application has
been permanently suspended or revoked or has had a mining bond or
similar security deposited in lieu of bond forfeited and, if so,
a brief explanation of the facts involved;
(6) A copy of the applicant's advertisement to be published
in a newspaper of general circulation in the locality of the
proposed permit area at least once a week for four successive
weeks. The advertisement shall contain in abbreviated form the
information required by this section including the ownership and
map of the tract location and boundaries of the proposed site so
that the proposed operation is readily locatable by local
residents, the location of the office of the division of energy
where the application is available for public inspection and
stating that written protests will be accepted by the
commissioner director until a certain date which shall be is at
least thirty days after the last publication of the applicant's
advertisement;
(7) A description of the type and method of surface-mining
operation that exists or is proposed, the engineering techniques
used or proposed, and the equipment used or proposed to be used;
(8) The anticipated starting and termination dates of each
phase of the surface-mining operation and the number of acres ofland to be affected;
(9) A description of the legal documents upon which the
applicant bases his applicant's legal right to enter and conduct
surface-mining operations on the proposed permit area is based
and whether that right is the subject of pending court
litigation:
Provided,
That nothing in this article may be
construed as vesting in the commissioner director the
jurisdiction to adjudicate property-rights disputes;
(10) The name of the watershed and location of the surface
stream or tributary into which surface and pit drainage will be
discharged;
(11) A determination of the probable hydrologic consequences
of the mining and reclamation operations, both on and off the
mine site, with respect to the hydrologic regime, quantity and
quality of water in surface and ground water systems, including
the dissolved and suspended solids under seasonal flow conditions
and the collection of sufficient data for the mine site and
surrounding areas so that an assessment can be made by the
commissioner director of the probable cumulative impacts of all
anticipated mining in the area upon the hydrology of the area,
and particularly upon water availability:
Provided,
That this
determination shall is not be required until such time as
hydrologic information on the general area prior to mining is
made available from an appropriate federal or state agency or, if
existing and in the possession of the applicant, from the
applicant:
Provided, however,
That the permit application shallnot be approved until the information is available and is
incorporated into the application;
(12) Accurate maps to an appropriate scale clearly showing:
(A) The land to be affected as of the date of application; (B)
the area of land within the permit area upon which the applicant
has the legal right to enter and conduct surface-mining
operations; and (C) all types of information set forth on
enlarged topographical maps of the United States geological
survey of a scale of 1:24,000 or larger, including all man-made
features and significant known archaeological sites existing on
the date of application. In addition to other things specified
by the commissioner director, the map shall show the boundary
lines and names of present owners of record of all surface areas
abutting the proposed permit area and the location of all
structures within one thousand feet of the proposed permit area;
(13) Cross-section maps or plans of the proposed affected
area, including the actual area to be mined, prepared by or under
the direction of and certified by a person approved by the
commissioner director, showing pertinent elevation and location
of test borings or core samplings, where required by the
commissioner director, and depicting the following information:
(A) The nature and depth of the various strata or overburden; (B)
the location of subsurface water, if encountered, and its
quality; (C) the nature and thickness of any coal or rider seams
above the seam to be mined; (D) the nature of the stratum
immediately beneath the coal seam to be mined; (E) all mineralcrop lines and the strike and dip of the coal to be mined, within
the area of land to be affected; (F) existing or previous
surface-mining limits; (G) the location and extent of known
workings of any underground mines, including mine openings to the
surface; (H) the location of any significant aquifers; (I) the
estimated elevation of the water table; (J) the location of
spoil, waste or refuse areas and topsoil preservation areas; (K)
the location of all impoundments for waste or erosion control;
(L) any settling or water treatment facility or drainage system;
(M) constructed or natural drainways and the location of any
discharges to any surface body of water on the area of land to be
affected or adjacent thereto; and (N) adequate profiles at
appropriate cross sections of the anticipated final surface
configuration that will be achieved pursuant to the operator's
proposed reclamation plan;
(14) A statement of the result of test borings or core
samples from the permit area, including: (A) Logs of the drill
holes; (B) the thickness of the coal seam to be mined and
analysis of the chemical and physical properties of the coal; (C)
the sulfur content of any coal seam; (D) chemical analysis of
potentially acid or toxic forming sections of the overburden; and
(E) chemical analysis of the stratum lying immediately underneath
the coal to be mined:
Provided,
That the provisions of this
subdivision may be waived by the commissioner director with
respect to the specific application by a written determination
that such requirements are unnecessary;
(15) For those lands in the permit application which a
reconnaissance inspection suggests may be prime farmlands, a soil
survey shall be made or obtained according to standards
established by the secretary of agriculture in order to confirm
the exact location of such prime farmlands;
(16) A reclamation plan as presented in section ten of this
article;
(17) Information pertaining to coal seams, test borings,
core samplings or soil samples as required by this section shall
be made available to any person with an interest which is or may
be adversely affected:
Provided,
That information which pertains
only to the analysis of the chemical and physical properties of
the coal, except information regarding mineral or elemental
content which is potentially toxic to the environment, shall be
kept confidential and not made a matter of public record;
(18) When requested by the commissioner director, the
climatological factors that are peculiar to the locality of the
land to be affected, including the average seasonal
precipitation, the average direction and velocity of prevailing
winds, and the seasonal temperature ranges; and
(19) Other information that may be required by rules and
regulations reasonably necessary to effectuate the purposes of
this article.
(b) If the commissioner director finds that the probable
total annual production at all locations of any coal surface-
mining operator will not exceed three hundred thousand tons, thedetermination of probable hydrologic consequences and the
statement of the result of test borings or core samplings shall,
upon the written request of the operator, be performed by a
qualified public or private laboratory designated by the
commissioner director and a reasonable cost of the preparation of
such determination and statement shall be assumed by the division
from funds provided by the United States department of the
interior pursuant to Public Law 95-87 the federal Surface Mining
Control and Reclamation Act of 1977, as amended.
(c) Before the first publication of the applicant's
advertisement, each applicant for a surface-mining permit shall
file, except for that information pertaining to the coal seam
itself, a copy of the application for public inspection in the
nearest office of the division of energy as specified in the
applicant's advertisement.
(d) Each applicant for a permit shall be required to submit
to the commissioner director as a part of the permit application
a certificate issued by an insurance company authorized to do
business in this state covering the surface-mining operation for
which the permit is sought, or evidence that the applicant has
satisfied state self-insurance requirements. The policy shall
provide for personal injury and property damage protection in an
amount adequate to compensate any persons damaged as a result of
surface coal mining and reclamation operations, including use of
explosives, and entitled to compensation under the applicable
provisions of state law. The policy shall be maintained in fullforce and effect during the terms of the permit or any renewal,
including the length of all reclamation operations.
(e) Each applicant for a surface-mining permit shall submit
to the commissioner director as part of the permit application a
blasting plan where explosives are to be used, which shall
outline the procedures and standards by which the operator will
meet the provisions of the blasting performance standards.
(f) The applicant shall file as part of his the permit
application a schedule listing all notices of violation, bond
forfeitures, permit revocations, cessation orders or permanent
suspension orders resulting from a violation of Public Law 95-87
the federal Surface Mining Control and Reclamation Act of 1977,
as amended, this article or any law or regulation of the United
States or any department or agency of any state pertaining to air
or environmental protection received by the applicant in
connection with any surface-mining operation during the three-
year period prior to the date of application, and indicating the
final resolution of any notice of violation, forfeiture,
revocation, cessation or permanent suspension.
(g) Within five working days of receipt of an application
for a permit, the commissioner director shall notify the operator
in writing, stating whether the application is administratively
complete and whether the operator's advertisement may be
published. If the application is not administratively complete,
the commissioner director shall state in writing why the
application is incomplete not administratively complete.
§22-3-10. 22A-3-10. Reclamation plan requirements.
(a) Each reclamation plan submitted as part of a surface-
mining permit application shall include, in the degree of detail
necessary to demonstrate that reclamation required by this
article can be accomplished, a statement of:
(1) The identification of the lands subject to surface
mining over the estimated life of these operations and the size,
sequence and timing of the operations for which it is anticipated
that individual permits for mining will be sought;
(2) The condition of the land to be covered by the permit
prior to any mining, including: (A) The uses existing at the
time of the application and, if such land has a history of
previous mining, the uses which preceded any mining; (B) the
capability of the land prior to any mining to support a variety
of uses, giving consideration to soil and foundation
characteristics, topography and vegetation cover and, if
applicable, a soil survey prepared pursuant to subdivision (15),
subsection (a), section nine of this article; and (C) the best
information available on the productivity of the land prior to
mining, including appropriate classification as prime farmlands,
and the average yield of food, fiber, forage or wood products
from such lands obtained under high levels of management;
(3) The use which is proposed to be made of the land
following reclamation, including a discussion of the utility and
capacity of the reclaimed land to support a variety of
alternative uses and the relationship of such use to existingland use policies and plans, and the comments of any owner of the
surface, other state agencies and local governments, which would
have to initiate, implement, approve or authorize the proposed
use of the land following reclamation;
(4) A detailed description of how the proposed postmining
land use is to be achieved and the necessary support activities
which may be needed to achieve the proposed land use;
(5) The engineering techniques proposed to be used in mining
and reclamation and a description of the major equipment; a plan
for the control of surface water drainage and of water
accumulation; a plan where appropriate, for backfilling, soil
stabilization and compacting, grading, revegetation and a plan
for soil reconstruction, replacement and stabilization pursuant
to the performance standards in subdivision (7), subsection (b),
section twelve thirteen of this article for those food, forage
and forest lands identified therein; and a statement as to how
the operator plans to comply with each of the applicable
requirements set out in section twelve thirteen or fourteen of
this article;
(6) A detailed estimated timetable for the accomplishment of
each major step in the reclamation plan;
(7) The consideration which has been given to conducting
surface-mining operations in a manner consistent with surface
owner plans and applicable state and local land use plans and
programs;
(8) The steps to be taken to comply with applicable air andwater quality laws and regulations rules and any applicable
health and safety standards;
(9) The consideration which has been given to developing the
reclamation plan in a manner consistent with local physical
environmental and climatological conditions;
(10) All lands, interests in lands or options on such
interests held by the applicant or pending bids on interests in
lands by the applicant, which lands are contiguous to the area to
be covered by the permit;
(11) A detailed description of the measures to be taken
during the surface-mining and reclamation process to assure the
protection of: (A) The quality of surface and ground water
systems, both on-and off-site, from adverse effects of the
surface-mining operation; (B) the rights of present users to such
water; and (C) the quantity of surface and ground water systems,
both on-and off-site, from adverse effects of the surface-mining
operation or to provide alternative sources of water where such
protection of quantity cannot be assured;
(12) The results of tests borings which the applicant has
made at the area to be covered by the permit, or other equivalent
information and data in a form satisfactory to the commissioner
director, including the location of subsurface water, and an
analysis of the chemical properties, including acid forming
properties of the mineral and overburden:
Provided,
That
information which pertains only to the analysis of the chemical
and physical properties of the coal, except information regardingsuch mineral or elemental contents which are potentially toxic in
the environment, shall be kept confidential and not made a matter
of public record;
(13) The consideration which has been given to maximize the
utilization and conservation of the solid fuel resource being
recovered so that reaffecting the land in the future can be
minimized; and
(14) Such other requirements as the commissioner director
may prescribe by regulation rule.
(b) The reclamation plan shall be available to the public
for review except for those portions thereof specifically
exempted in subsection (a) of this section.
§22-3-11. 22A-3-11. Performance Bonds; amount and method of
bonding; bonding requirements; special reclamation tax and
fund; prohibited acts; period of bond liability.
(a) After a surface-mining permit application has been
approved pursuant to this article, but before a permit has been
issued, each operator shall furnish a penal bond, on a form to be
prescribed and furnished by the commissioner director, payable to
the state of West Virginia and conditioned upon the operator
faithfully performing all of the requirements of this article and
of the permit. The penal amount of the bond shall be one
thousand dollars for each 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 theinitial term of the permit. If the operator chooses to use
incremental bonding, as succeeding increments of surface mining
and reclamation operations are to be initiated and conducted
within the permit area, the operator shall file with the
commissioner director an 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 the operator 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.
(b) The period of liability for performance bond coverage
shall commence begins with issuance of a permit and continue
continues for the full term of the permit plus any additional
period necessary to achieve compliance with the requirements in
the reclamation plan of the permit.
(c) (1) The form of the performance bond shall be approved
by the commissioner director and may include, at the option of
the operator, surety bonding, collateral bonding (including cash
and securities), establishment of an escrow account, self-bonding
or a combination of these methods. If collateral bonding is
used, the operator may elect to deposit cash, or collateral
securities or certificates as follows: Bonds of the United
States or its possessions, of the federal land bank, or of the
homeowners' 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 division.
The cash deposit or market value of such securities or
certificates shall be equal to or greater than the penal sum of
the bond. The commissioner director shall, upon receipt of any
such deposit of cash, securities or certificates, promptly place
the same with the treasurer of the state of West Virginia whose
duty it shall be is to receive and hold the same in the name of
the state in trust for the purpose for which the deposit is made
when the permit is issued. The operator making the deposit shall
be is entitled from time to time to receive from the state
treasurer, upon the written approval of the commissioner
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.
(2) The commissioner director may approve an alternative
bonding system if it will (A) reasonably assure that sufficient
funds will be available to complete the reclamation, restoration
and abatement provisions for all permit areas which may be in
default at any time, and (B) provide a substantial economic
incentive for the permittee to comply with all reclamation
provisions.
(d) The commissioner director may accept the bond of theapplicant itself without separate surety when the applicant
demonstrates to the satisfaction of the commissioner director the
existence of a suitable agent to receive service of process and
a history of financial solvency and continuous operation
sufficient for authorization to self-insure.
(e) It shall be is unlawful for the owner of surface or
mineral rights to interfere with the present operator in the
discharge of his the operator's obligations to the state for the
reclamation of lands disturbed by him the operator.
(f) All bond releases shall be accomplished in accordance
with the provisions of section twenty-three of this article.
(g) All special reclamation taxes deposited by the
commissioner with the treasurer or the state of West Virginia to
the credit of the special reclamation fund prior to the effective
date of this article shall be transferred to the special
reclamation fund created by this section and shall be expended
pursuant to the provisions of this subsection: Provided, That no
taxes transferred into the special reclamation fund created by
this section shall be subject to refund. The special reclamation
fund previously created is continued. The moneys accrued in the
fund, including interest, are reserved solely and exclusively for
the purposes set forth in this subsection. The fund shall be
administered by the commissioner director, and he or she is
authorized to expend the moneys in the fund for the reclamation
and rehabilitation of lands which were subjected to permitted
surface-mining operations and abandoned after the third day ofAugust, one thousand nine hundred seventy-seven, where the amount
of the bond posted and forfeited on such land is less than the
actual cost of reclamation. The commissioner director shall
develop a long-range planning process for selection and
prioritization of sites to be reclaimed so as to avoid inordinate
short-term obligations of the assets in the fund of such
magnitude that the solvency of the fund is jeopardized. The
commissioner director may use an amount, not to exceed
twenty-five percent of the annual amount of the fees collected,
for the purpose of designing, constructing and maintaining water
treatment systems when they are required for a complete
reclamation of the affected lands described in this subsection.
The commissioner director may also expend an amount not to exceed
ten percent of the total annual assets in the fund to implement
and administer the provisions of this chapter and chapters
twenty-two and article, articles two and four of this chapter
and, as they apply to the surface mine board, articles one and
four, chapter twenty-two-b of this code.
After the effective date of this subsection, Every person
then conducting coal surface-mining operations shall contribute
into the fund a sum equal to three cents per ton of clean coal
mined. thereafter. This fee shall be collected by the state tax
commissioner in the same manner, as the West Virginia business
and occupation tax in accordance with the provisions of chapter
eleven of this code. at the same time, and upon the same tonnage
as the minimum severance tax imposed by article twelve-b, chaptereleven of this code is collected:
Provided,
That under no
circumstance shall this tax be construed to be an increase in
either the minimum severance tax imposed by said article twelve-b
or the severance tax imposed by article thirteen of said chapter
eleven. Every person liable for payment of this special tax
shall pay the amount due without notice or demand for payment.
The tax commissioner shall provide to the director a quarterly
listing of all persons known to be delinquent in payment of the
special tax. The director may take such delinquencies into
account in making determinations on the issuance, renewal or
revision of any permit. Such tax shall be collected whenever the
liabilities of the state established in this subsection exceed
the accrued amount in the fund. The tax commissioner shall
deposit the fees collected with the treasurer of the state of
West Virginia to the credit of the special reclamation fund. The
moneys in the fund shall be placed by the treasurer in interest
bearing account with the interest being returned to the fund on
an annual basis. At the beginning of each quarter, the
commissioner director shall advise the state tax commissioner and
the governor of the assets, excluding payments, expenditures and
liabilities, in the fund.
§22-3-12. 22A-3-11a. Site-specific bonding; legislative rule;
contents of legislative rule; legislative intent; expiration
of rule; reporting.
(a) Notwithstanding the provisions of section eleven of this
article, the director of the division of environmental protectionmay establish and implement a site-specific bonding system in
accordance with the provisions of this section.
(b) Such site-specific bonding system shall be established
by a legislative rule proposed by the director. The rule shall
be proposed for promulgation in accordance with the provisions of
article three, chapter twenty-nine-a of this code, except as the
provisions of this section otherwise direct. The notice of the
proposed promulgation and the text of the proposed rule shall be
filed in the state register in compliance with the requirements
of section five, article three, chapter twenty-nine-a of this
code:
Provided,
That such filing shall be made on or before the
thirtieth day of June, one thousand nine hundred ninety-two:
Provided, however,
That a period for receiving public comment on
the merits of such rule shall be afforded, which period shall
extend for not less than sixty days next following the filing of
the proposed rule in the state register. The notice establishing
the period for public comment shall also fix a date, time and
place for a hearing for public comment at which both written and
oral presentations may be made, and such hearing shall be held
after the thirtieth day of the public comment period but before
the forty-sixth day of such comment period. The provisions of
section nine, article three, chapter twenty-nine-a of this code
to the contrary notwithstanding, after the close of the public
comment period, the director shall proceed to agency approval and
final adoption of the rule, including any amendments made by the
director prior to such final adoption, without further hearing orpublic comment. No such amendment may change the main purpose of
the rule. Such final adoption shall occur on or before the first
day of November, one thousand nine hundred ninety-two, and such
rule shall become effective, and have the full force and effect
of law on and after the first day of December, one thousand nine
hundred ninety-two, without submission to the Legislature. Such
rule shall continue in effect until the first day of May, one
thousand nine hundred ninety-three, or until sooner modified,
codified or abrogated by the Legislature. Such rule shall not be
promulgated as an emergency legislative rule.
(c) A legislative rule proposed or promulgated pursuant to
this section must provide, at a minimum, for the following:
(1) The penal amount of a performance bond shall be not less
than one thousand dollars nor more than five thousand dollars per
acre or fraction thereof.
(2) Any such bond, subject to the limitations of subdivision
(1) of this subsection, shall reflect a relative potential cost
of reclamation associated with the activities proposed to be
permitted, which cost would not otherwise be reflected by
performance bonds calculated by merely applying a specific dollar
amount per acre for all permits.
(3) Such bond, subject to the provisions of subdivision (1)
of this subsection, shall also reflect an analysis under the
legislative rule of various factors, as applicable, which affect
the cost of reclamation, including, but not limited to: (A) The
general category of mining, whether surface or underground; (B)mining techniques and methods proposed to be utilized; (C)
support facilities, fixtures, improvements and equipment; (D)
topography and geology; and (E) the potential for degrading or
improving water quality.
(d) A legislative rule proposed or promulgated pursuant to
the provisions of this section may, in addition to the
requirements of subsection (c) of this section, provide for a
consideration of other factors deemed relevant by the director.
For example, such rule may provide for the following:
(1) A consideration as to whether the bond relates to a new
permit application, a renewal of an existing permit, an
application for an incidental boundary revision, or the
reactivation of an inactive permit;
(2) A consideration of factors which may result in
environmental enhancement, as in a case where remining may
improve water quality or reduce or eliminate existing highwalls,
or a permitted operation may create or improve wetlands; or
(3) An analysis of various factors related to the specific
permit applicant, including, but not limited to: (A) The prior
mining experience of the applicant with the activities sought to
be permitted; and (B) the history of the applicant as it relates
to prior compliance with statutory and regulatory requirements
designed to protect, maintain or enhance the environment in this
or any other state.
(e) It is the intent of the Legislature that a legislative
rule proposed or promulgated pursuant to the provisions of thissection shall be constructed so that when the findings of fact by
the division of environmental protection with respect to the
proposed mining activity and the particular permit applicant
coincide with the particular factors or criteria to be considered
and analyzed under the rule, the rule will direct a conclusion as
to the amount of the bond to be required, subject to rebuttal and
refutation of the findings by the applicant. To the extent
practicable, the rule shall limit subjectivity and discretion by
the director and the division in fixing the amount of the bond.
(f) On or before the thirty-first day of December, one
thousand nine hundred ninety-one, and every ninety days
thereafter, the director shall report in writing to the joint
committee on government and finance of the Legislature or its
designated subcommittee as to the progress of the division in
developing or implementing, as the case may be, the provisions of
this section.
§22-3-13. 22A-3-12. General environmental protection performance
standards for surface mining; variances.
(a) Any permit issued by the commissioner director pursuant
to this article to conduct surface-mining operations shall
require that such surface-mining operations will meet all
applicable performance standards of this article and other
requirements as the commissioner shall promulgate director
promulgates.
(b) The following general performance standards shall be are
applicable to all surface mines and shall require the operation,as 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 deemed 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 isinsufficient, 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, such overburden or spoil shall be shaped and graded
in such a way as to prevent slides, erosion and water pollution
and is revegetated in accordance with the requirements of this
article:
Provided further,
That the commissioner director shall
promulgate rules and regulations governing variances to the
requirements for return to approximate original contour orhighwall 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 such 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) 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, as at a minimum, shall be
required to: (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 such
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 subparagraph (B) above 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 subparagraph (A) above;
(8) 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
regulations rules promulgated by the commissioner; director
(9) 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 commissioner director
determines that the resulting impoundment of water in such auger
holes may create a hazard to the environment or the public
welfare and safety:
Provided,
That the commissioner 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) 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 ground water
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 thebest technology currently available, additional contributions of
suspended solids to streamflow or runoff outside the permit area,
but in no event shall contributions be in excess of requirements
set by applicable state or federal law; (C) constructing an
approved drainage system pursuant to subparagraph (B) of this
subdivision prior to commencement of surface-mining operations,
such system to be certified by a person approved by the
commissioner 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 commissioner
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 commissioner director; (F)
restoring recharge capacity of the mined area to approximate
premining conditions; and (G) such other actions as the
commissioner director may prescribe;
(11) 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 thisarticle;
(12) 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) 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 commissioner 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 commissioner director; and (B) such
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) 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) Ensure that explosives are used only in accordance with
existing state and federal law and the regulations rules
promulgated by the commissioner director, which shall include
provisions to: (A) Provide adequate advance written notice to
local governments and residents who might be affected by the use
of the explosives by publication of the planned blasting schedule
in a newspaper of general circulation in the locality and by
mailing a copy of the proposed blasting schedule to every
resident living within one-half mile of the proposed blasting
site:
Provided,
That this notice shall suffice as daily notice
to residents or occupants of the areas; (B) 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; (C) limit the type of explosives and detonating
equipment, the size, the timing and frequency of blasts based
upon the physical conditions of the site so as to prevent: (i)
Injury to persons; (ii) damage to public and private property
outside the permit area; (iii) adverse impacts on any underground
mine; and (iv) change in the course, channel or availability of
ground or surface water outside the permit area; (D) require thatall blasting operations be conducted by persons certified by the
director; of the division of mines and minerals; and (E) provide
that upon written request of a resident or owner of a man-made
dwelling or structure within one-half mile of any portion of the
permit area, the applicant or permittee shall conduct a
preblasting survey or other appropriate investigation of the
structures and submit the results to the commissioner director
and a copy to the resident or owner making the request. The area
of the survey shall be determined by the commissioner director in
accordance with regulations rules promulgated by him or her;
(16) 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 commissioner 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 commissioner 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 commissioner 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 arenecessary 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 commissioner director has promulgated specific
regulations rules to govern the granting of such variances in
accordance with the provisions of this subparagraph and has
imposed such additional requirements as he the director deems
necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the commissioner 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 ofthe date the permit was issued, unless extended as set forth in
subsection (e) subdivision (3), section eight of this article;
and
(D) If liability under the bond filed by the applicant with
the commissioner director pursuant to subsection (b), section
eleven of this article shall be 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) Ensure that the construction, maintenance and
postmining conditions of access and haulroads 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, shall be
are exempt from specific construction criteria provided adequate
stabilization to control erosion is achieved through alternative
measures;
(18) 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) 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 suitablefor 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 postmining land use plan;
(20) 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
commissioner, 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 commissioner director issues a written finding
approving a long-term agricultural postmining land use as a part
of the mining and reclamation plan, the commissioner director may
grant exception to the provisions of subdivision (19) of this
subsection:
Provided, however,
That when the commissioner
director approves an agricultural postmining land use, the
applicable five growing seasons of responsibility for
revegetation shall commence at begins on the date of initial
planting for such agricultural postmining land use;
(21) 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 commissioner
director after a finding that environmental benefits will resultfrom such;
(22) Place all excess spoil material resulting from surface-
mining activities in such 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 shall be 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 underdrains 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 commissioner director, the spoil
could be placed in compliance with all the requirements of this
article, and shall be 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)
design of the spoil disposal area is certified by a qualified
registered professional engineer in conformance with professionalstandards; 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 commissioner 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 such
approval shall not be unreasonably withheld if the site is
suitable;
(23) Meet such other criteria as are 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) 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) 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 maximumutilization of the mineral resource:
Provided, however,
That at
a minimum, the constructed barrier must be of sufficient width
and height to provide adequate stability and the stability factor
must equal or exceed that of the natural outcrop barrier:
Provided further,
That where water quality is paramount, the
constructed barrier must be composed of impervious material with
controlled discharge points.
(c) (1) The commissioner 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 postmining uses in accordance with the requirements
of this subsection.
(3) In cases where an industrial, commercial, woodland,
agricultural, residential or public use is proposed for the
postmining use of the affected land, the commissioner director
may grant a permit for a surface-mining operation of the naturedescribed in subdivision (2) of this subsection where: (A) The
proposed postmining land use is deemed 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
postmining 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) supported by
commitments from public agencies where appropriate; (iv)
practicable with respect to private financial capability for
completion of the proposed use; (v) planned pursuant to a
schedule attached to the reclamation plan so as to integrate the
mining operation and reclamation with the postmining land use;
and (vi) designed by a person approved by the commissioner
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 commissioner director provides the county
commission of the county in which the land is located and any
state or federal agency which the commissioner, 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
commissioner director shall require that: (A) A natural barrierbe 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 must be sufficient width and height to
provide adequate stability and the stability factor must equal or
exceed that of the natural outcrop barrier:
Provided further,
That where water quality is paramount, the constructed barrier
must 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 postmining 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 isproceeding 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 such lesser slopes as may be
defined by regulation 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 commissioner director that
the soil or spoil will not slide and that the other requirements
of this section can still be met.
(e) The commissioner director may promulgate rules 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 shall be is required to
completely cover the highwall, which material will maintain
stability following mining and reclamation.
(f) The commissioner director shall promulgate regulations
rules for the design, location, construction, maintenance,
operation, enlargement, modification, removal and abandonment of
new and existing coal mine waste piles. In addition toengineering and other technical specifications, the standards and
criteria developed pursuant to this subsection must 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 commissioner 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 such coal
processing waste pile exists and may take or order to be taken
such remedial action as 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
commissioner director under this subsection may be paid for
initially by funds appropriated to the department of energy
division for these purposes, and the sums so 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 commissioner director. Forpurposes of this subsection "operates" or "operated" means to
enter upon a coal processing waste pile, or part thereof, for the
purpose of disposing, depositing, dumping coal processing wastes
thereon or removing coal processing waste therefrom, or to employ
a coal processing waste pile for retarding the flow of or for the
impoundment of water.
§22-3-14. 22A-3-14. General environmental protection
performance standards for the surface effects of
underground mining; application of other provisions of
article to surface effects of underground mining.
(a) The commissioner director shall promulgate separate
regulations rules directed toward the surface effects of
underground coal mining operations, embodying the requirements in
subsection (b) of this section:
Provided,
That in adopting such
regulations rules, the commissioner director shall consider the
distinct difference between surface coal mines and underground
coal mines in West Virginia. Such regulations rules may not
conflict with or supersede any provision of the federal or state
coal mine health and safety laws or any regulation rule issued
pursuant thereto.
(b) Each permit issued by the commissioner director pursuant
to this article and relating to underground coal mining shall
require the operation as at a minimum to:
(1) Adopt measures consistent with known technology in order
to prevent subsidence causing material damage to the extent
technologically and economically feasible, maximize minestability and maintain the value and reasonably foreseeable use
of overlying surface lands, except in those instances where the
mining technology used requires planned subsidence in a
predictable and controlled manner:
Provided,
That this
subsection does not prohibit the standard method of room and
pillar mining;
(2) Seal all portals, entryways, drifts, shafts or other
openings that connect the earth's surface to the underground mine
workings when no longer needed for the conduct of the mining
operations in accordance with the requirements of all applicable
federal and state law and regulations rules promulgated pursuant
thereto;
(3) Fill or seal exploratory holes no longer necessary for
mining and maximize to the extent technologically and
economically feasible, if environmentally acceptable, return of
mine and processing waste, tailings and any other waste incident
to the mining operation to the mine workings or excavations;
(4) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine workings or excavations, stabilize all waste piles
created by the operator from current operations through
construction in compacted layers, including the use of
incombustible and impervious materials, if necessary, and assure
that any leachate therefrom will not degrade surface or ground
waters below water quality standards established pursuant to
applicable federal and state law and that the final contour ofthe waste accumulation will be compatible with natural
surroundings and that the site is stabilized and revegetated
according to the provisions of this section;
(5) Design, locate, construct, operate, maintain, enlarge,
modify and remove or abandon, in accordance with the standards
and criteria developed pursuant to subsection (f), section twelve
thirteen of this article, all existing and new coal mine waste
piles consisting of mine wastes, tailings, coal processing wastes
and solid wastes and used either temporarily or permanently as
dams or embankments;
(6) Establish on regraded areas and all other disturbed
areas a diverse and permanent vegetative cover capable of self-
regeneration and plant succession and at least equal in extent of
cover to the natural vegetation of the area within the time
period prescribed in subdivision (20), subsection (b), section
twelve thirteen of this article;
(7) Protect off-site areas from damages which may result
from such mining operations;
(8) Eliminate fire hazards and otherwise eliminate
conditions which constitute a hazard to health and safety of the
public;
(9) Minimize the disturbance of the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quantity and the quality of water in surface and ground water
systems both during and after mining operations and during
reclamation by: (A) Avoiding acid or other toxic mine drainage bysuch 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 before being released to water courses; and
(iii) casing, sealing or otherwise managing boreholes, shafts and
wells to keep acid or other toxic drainage from entering ground
and surface waters; and (B) conducting 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
shall the contributions be in excess of requirements set by
applicable state or federal law, and avoiding channel deepening
or enlargement in operations requiring the discharge of water
from mines:
Provided,
That in recognition of the distinct
differences between surface and underground mining the monitoring
of water from underground coal mine workings shall be in
accordance with the provisions of the Clean Water Act of 1977;
(10) With respect to other surface impacts of underground
mining not specified in this subsection, including the
construction of new roads or the improvement or use of existing
roads to gain access to the site of such activities and for
haulage, repair areas, storage areas, processing areas, shipping
areas, and other areas upon which are sited structures,
facilities or other property or materials on the surface,
resulting from or incident to such activities, operate in
accordance with the standards established under section twelvethirteen of this article for such effects which result from
surface-mining operations:
Provided,
That the commissioner
director shall make such modifications in the requirements
imposed by this subdivision as are necessary to accommodate the
distinct difference between surface and underground mining in
West Virginia;
(11) To the extent possible using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, aquatic life, wildlife and related
environmental values, and achieve enhancement of such resources
where practicable; and
(12) Unless otherwise permitted by the commissioner director
and in consideration of the relevant safety and environmental
factors, locate openings for all new drift mines working in acid
producing or iron producing coal seams in a manner as to prevent
a gravity discharge of water from the mine.
(c) In order to protect the stability of the land, the
commissioner director shall suspend underground mining under
urbanized areas, cities, towns and communities and adjacent to
industrial or commercial buildings, major impoundments or
permanent streams if he or she finds imminent danger to
inhabitants of the urbanized areas, cities, towns or communities.
(d) The provisions of this article relating to permits,
bonds, insurance, inspections, reclamation and enforcement,
public review and administrative and judicial review shall are
also be applicable to surface operations and surface impactsincident to an underground mine with such modifications by
regulation rule to the permit application requirements, permit
approval or denial procedures and bond requirements as are
necessary to accommodate the distinct difference between surface
mines and underground mines in West Virginia.
§22-3-15. 22A-3-15. Inspections; monitoring; right of entry;
inspection of records; identification signs; progress maps.
(a) The commissioner director shall cause to be made such
inspections of surface-mining operations as are necessary to
effectively enforce the requirements of this article and for such
purposes the commissioner director or his or her authorized
representative shall without advance notice and upon presentation
of appropriate credentials: (A) Have the right of entry to, upon
or through surface-mining operations or any premises in which any
records required to be maintained under subdivision (1),
subsection (b) of this section are located; and (B) at reasonable
times and without delay, have access to and copy any records and
inspect any monitoring equipment or method of operation required
under this article.
(b) For the purpose of enforcement under this article, in
the administration and enforcement of any permit under this
article, or for determining whether any person is in violation of
any requirement of this article:
(1) The commissioner shall, at a minimum, require any
operator to: (A) Establish and maintain appropriate records; (B)
make monthly reports to the department division; (C) install, useand maintain any necessary monitoring equipment or methods
consistent with subdivision (11), subsection (a), section nine of
this article; (D) evaluate results in accordance with such
methods, at such locations, intervals and in such manner as the
commissioner shall prescribe director prescribes; and (E) provide
such other information relative to surface-mining operations as
the commissioner deems director finds reasonable and necessary;
and
(2) For those 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, the commissioner director shall require that: (A)
Monitoring sites be established to record the quantity and
quality of surface drainage above and below the mine site as well
as in the potential zone of influence; (B) monitoring sites be
established to record level, amount and samples of ground water
and aquifers potentially affected by the surface mining and also
below the lowermost mineral seam to be mined; (C) records or well
logs and borehole data be maintained; and (D) monitoring sites be
established to record precipitation. The monitoring data
collection and analysis required by this section shall be
conducted according to standards and procedures set forth by the
commissioner director in order to assure their reliability and
validity.
(c) All surface-mining operations shall be inspected at
least once every thirty days. Such inspections shall be made onan irregular basis without prior notice to the operator or his
the operator's agents or employees, except for necessary on-site
meetings with the operator. The inspections shall include the
filing of inspection reports adequate to enforce the
requirements, terms and purposes of this article.
(d) Each permittee shall maintain at the entrances to the
surface-mining operations a clearly visible monument which sets
forth the name, business address and telephone number of the
permittee and the permit number of the surface-mining operations.
(e) Copies of any records, reports, inspection materials or
information obtained under this article by the commissioner
director shall be made immediately available to the public at
central and sufficient locations in the county, multicounty or
state area of mining so that they are conveniently available to
residents in the areas of mining unless specifically exempted by
this article.
(f) Within thirty days after service of a copy of an order
of the commissioner director upon an operator by registered or
certified mail, the operator shall furnish to the commissioner
director five copies of a progress map prepared by or under the
supervision of a person approved by the commissioner director
showing the disturbed area to the date of such map. Such
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 commissioner director. Such progress map shall include ageologic 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 commissioner director. If no land has been disturbed by
operations during the preceding year, the operator shall notify
the commissioner director of that fact.
(g) Whenever on the basis of available information,
including reliable information from any person, the commissioner
director has cause to believe that any person is in violation of
this article, any permit condition or any regulation rule
promulgated under this article, the commissioner director shall
immediately order state inspection of the surface-mining
operation at which the alleged violation is occurring unless the
information is available as a result of a prior state inspection.
The commissioner director shall notify any person who supplied
such reliable information when the state inspection will be
carried out. Such person may accompany the inspector during the
inspection.
§22-3-16. 22A-3-16. Cessation of operation by order of
inspector; informal conference; imposition of affirmative
obligations; appeal.
(a) Notwithstanding any other provisions of this article, a
surface-mining reclamation inspector shall have has the authority
to issue a cessation order for any portion of a surface-mining
operation when an inspector determines that any condition or
practice exists, or that any permittee is in violation of anyrequirements 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 cessation order shall take takes 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
cessation order within twenty-four hours after the order becomes
effective or such order shall expire. The conference shall be
held before a surface-mining reclamation supervisor who shall,
immediately upon conclusion of said hearing, determine when and
if the operation or portion thereof may resume. Any operator
Operators who believes he is believe they are aggrieved by the
decision of the surface-mining reclamation supervisor may
immediately appeal to the commissioner director, setting forth
reasons why the operation should not be halted. The commissioner
director forthwith shall determine when the operation or portion
thereof may be resumed.
(b) The cessation order shall remain remains in effect until
the commissioner director determines that the condition, practice
or violation has been abated, or until modified, vacated or
released by the commissioner director. Where the commissioner
director finds that the ordered cessation of any portion of a
surface coal mining operation will not completely abate the
imminent danger to health or safety of the public or thesignificant imminent environmental harm to land, air or water
resources, the commissioner director shall, in addition to the
cessation order, impose affirmative obligations on the operator
requiring him the operator to take whatever steps the
commissioner deems director determines necessary to abate the
imminent danger or the significant environmental harm.
(c) Any cessation order issued pursuant to this section or
any other provision of this article may be released by any
inspector. An inspector shall be readily available to terminate
a cessation order upon abatement of the violation.
§22-3-17. 22A-3-17. Notice of violation; procedure and actions;
enforcement; permit revocation and bond forfeiture; civil
and criminal penalties; appeals to the board; prosecution;
injunctive relief.
(a) If any of the requirements of this article, rules and
regulations promulgated pursuant thereto or permit conditions
have not been complied with, the commissioner director shall
cause a notice of violation to be served upon the operator or his
the operator's duly authorized agent. A copy of the notice shall
be handed to the operator or his the operator's duly authorized
agent in person or served by certified mail addressed to the
operator at the permanent address shown on the application for a
permit. The notice shall specify in what respects the operator
has failed to comply with this article, rules and regulations or
permit conditions and shall specify a reasonable time for
abatement of the violation not to exceed thirty days. If theoperator has not abated the violation within the time specified
in the notice, or any reasonable extension thereof, not to exceed
sixty days, the commissioner director shall order the cessation
of the operation or the portion thereof causing the violation,
unless the operator affirmatively demonstrates that compliance is
unattainable due to conditions totally beyond the control of the
operator. If a violation is not abated within the time specified
or any extension thereof, or any cessation order is issued, a
mandatory civil penalty of not less than seven hundred fifty
dollars per day per violation shall be assessed. A cessation
order shall remain remains in effect until the commissioner
director determines that the violation has been abated or until
modified, vacated or terminated by the commissioner director or
by a court. In any cessation order issued under this subsection,
the commissioner director shall determine the steps necessary to
abate the violation in the most expeditious manner possible and
shall include the necessary measures in the order.
(b) If the commissioner director determines that a pattern
of violations of any requirement of this article or any permit
condition exists or has existed, as a result of the operator's
lack of reasonable care and diligence, or that the violations are
willfully caused by the operator, the commissioner 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 commissioner director shall inform allinterested parties of the time and place of the hearing. Any
hearing under this section shall be recorded and is subject to
the provisions of chapter twenty-nine-a of this code. Within
sixty days following the public hearing, the commissioner
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 commissioner director shall
immediately suspend or revoke the operator's permit. If the
permit is revoked, the commissioner director shall initiate
procedures in accordance with rules promulgated by the
commissioner director to forfeit the entire amount of the
operator's bond, or other security posted pursuant to section
sections eleven or twelve of this article, and give notice to the
attorney general, who shall collect the forfeiture without delay:
Provided,
That the entire proceeds of such forfeiture shall be
deposited with the treasurer of the state of West Virginia to the
credit of the special reclamation fund. All forfeitures
collected prior to the effective date of this article shall be
deposited in the special reclamation fund and shall be expended
back upon the areas for which the bond was posted:
Provided,
however,
That any excess therefrom shall remain in the special
reclamation fund.
(c) Any person engaged in surface-mining operations who
violates any permit condition or who violates any other provisionof this article or rules and regulations promulgated pursuant
thereto may also be assessed a civil penalty. The penalty shall
not exceed five thousand dollars. Each day of continuing
violation may be deemed a separate violation for purposes of
penalty assessments. In determining the amount of the penalty,
consideration shall be given to the operator's history of
previous violations at the particular surface-mining operation,
the seriousness of the violation, including any irreparable harm
to the environment and any hazard to the health or safety of the
public, whether the operator was negligent, and the demonstrated
good faith of the operator charged in attempting to achieve rapid
compliance after notification of the violation.
(d) (1) Upon the issuance of a notice or order pursuant to
this section, the assessment officer shall, within thirty days,
set a proposed penalty assessment and notify the operator in
writing of such proposed penalty assessment. The proposed
penalty assessment must be paid in full within thirty days of
receipt or, if the operator wishes to contest either the amount
of the penalty or the fact of violation, an informal conference
with the assessment officer may be requested within fifteen days
or a formal hearing before the reclamation board of review
surface mine board may be requested within thirty days. The
notice of proposed penalty assessment shall advise the operator
of the right to an informal conference and a formal hearing
pursuant to this section. When an informal conference is
requested, the operator shall have has fifteen days from receiptof the assessment officer's decision to request a formal hearing
before the board.
(A) When an informal conference is held, the assessment
officer shall have has authority to affirm, modify or vacate the
notice, order or proposed penalty assessment.
(B) When a formal hearing is requested, the amount of the
proposed penalty assessment shall be forwarded to the
commissioner director for placement in an escrow account. Formal
hearings shall be of record and subject to the provisions of
article five, chapter twenty-nine-a of this code. Following the
hearing the board shall affirm, modify or vacate the notice,
order or proposed penalty assessment and, when appropriate,
incorporate an assessment order requiring that the assessment be
paid.
(2) Civil penalties owed under this section may be recovered
by the commissioner director in the circuit court of Kanawha
county. Civil penalties collected under this article shall be
deposited with the treasurer of the state of West Virginia to the
credit of the special reclamation fund established in section
eleven of this article. 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 commissioner director shall within thirty days remit
the appropriate amount to the person, with interest at the rate
of six percent or at the prevailing United States department of
the treasury rate, whichever is greater. Failure to forward themoney to the commissioner director within thirty days shall
result in is a waiver of all legal rights to contest the
violation or the amount of the penalty.
(e) Any person having an interest which is or may be
adversely affected by any order of the commissioner director or
the surface mine board may file an appeal only in accordance with
the provisions of article four one, chapter twenty-two
twenty-two-b of this code, within thirty days after receipt of
the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section shall
does not stay execution of the order appealed from. Pending
completion of the investigation and conference or hearing
required by this section, the applicant may file with the
commissioner director a written request that the commissioner
director grant temporary relief from any notice or order issued
under section sixteen or seventeen of this article, together with
a detailed statement giving reasons for granting such relief.
The commissioner director shall issue an order or decision
granting or denying such relief expeditiously:
Provided,
That
where the applicant requests relief from an order for cessation
of surface-mining and reclamation operations, the decision on the
request shall be issued within five days of its receipt. The
commissioner director may grant such relief, under such
conditions as he or she may prescribe if:
(1) All parties to the proceedings have been notified andgiven 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 they will prevail on the merits in
the final determination of the proceedings;
(3) The relief will not adversely affect the public health
or safety or cause significant imminent environmental harm to
land, air or water resources; and
(4) The relief sought is not the issuance of a permit where
a permit has been denied, in whole or in part, by the
commissioner director.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or
regulations rules promulgated pursuant thereto, or fails or
refuses to comply with any order issued under said article and
regulations rules or any order incorporated in a final decision
issued by the commissioner director, is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than ten thousand dollars, or imprisoned
in the county jail not more than one year, or both fined and
imprisoned.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, regulations rules
promulgated pursuant thereto, or any order incorporated in a
final decision issued by the commissioner director, any director,
officer or agent of the corporation who willfully and knowinglyauthorized, ordered or carried out the failure or refusal, shall
be is subject to the same civil penalties, fines and imprisonment
that may be imposed upon a person under subsections (c) and (g)
of this section.
(i) Any person who knowingly makes any false statement,
representation or certification, or knowingly fails to make any
statement, representation or certification in any application,
petition, record, report, plan or other document filed or
required to be maintained pursuant to this article or regulations
rules promulgated pursuant thereto, is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than ten thousand dollars, or imprisoned
in the county jail not more than one year, or both fined and
imprisoned.
(j) Whenever any person: (A) Violates or fails or refuses
to comply with any order or decision issued by the commissioner
director under this article; or (B) interferes with, hinders or
delays the commissioner director in carrying out the provisions
of this article; or (C) refuses to admit the commissioner
director to the mine; or (D) refuses to permit inspection of the
mine by the commissioner director; or (E) refuses to furnish any
reasonable information or report requested by the commissioner
director in furtherance of the provisions of this article; or (F)
refuses to permit access to, and copying of, such records as the
commissioner director determines necessary in carrying out the
provisions of this article; or (G) violates any other provisionsof this article, the regulations rules promulgated pursuant
thereto, or the terms and conditions of any permit, the
commissioner director, the attorney general or the prosecuting
attorney of the county in which the major portion of the permit
area is located may institute a civil action for relief,
including a permanent or temporary injunction, restraining order
or any other appropriate order, in the circuit court of Kanawha
county or any court of competent jurisdiction to compel
compliance with and enjoin such violations, failures or refusals.
The court or the judge thereof may issue a preliminary injunction
in any case pending a decision on the merits of any application
filed without requiring the filing of a bond or other equivalent
security.
(k) Any person who shall, except as permitted by law,
willfully resist, prevent, impede or interfere resists, prevents,
impedes or interferes with the commissioner director or any of
his or her agents in the performance of duties pursuant to this
article is guilty of a misdemeanor, and, upon conviction thereof,
shall be punished by a fine of not more than five thousand
dollars or by imprisonment for not more than one year, or both.
§22-3-18. 22A-3-18. Approval, denial, revision and prohibition
of permit.
(a) Upon the receipt of a complete surface-mining
application or significant revision or renewal thereof, including
public notification and an opportunity for a public hearing, the
commissioner director shall grant, require revision of, or denythe application for a permit within sixty days and notify the
applicant in writing of his the decision. The applicant for a
permit, or revision of a permit, has the burden of establishing
that the application is in compliance with all the requirements
of this article and the rules promulgated hereunder.
(b) No permit or significant revision of a permit may be
approved unless the applicant affirmatively demonstrates and the
commissioner director finds in writing on the basis of the
information set forth in the application or from information
otherwise available which shall be documented in the approval and
made available to the applicant that:
(1) The permit application is accurate and complete and that
all the requirements of this article and regulations rules
thereunder have been complied with;
(2) The applicant has demonstrated that reclamation as
required by this article can be accomplished under the
reclamation plan contained in the permit application;
(3) The assessment of the probable cumulative impact of all
anticipated mining in the area on the hydrologic balance, as
specified in section nine of this article, has been made by the
commissioner director and the proposed operation has been
designed to prevent material damage to the hydrologic balance
outside the permit area;
(4) The area proposed to be mined is not included within an
area designated unsuitable for surface mining pursuant to section
twenty-two of this article or is not within an area underadministrative study by the commissioner director for such
designation; and
(5) In cases where the private mineral estate has been
severed from the private surface estate, the applicant has
submitted: (A) The written consent of the surface owner to the
extraction of coal by surface mining; or (B) a conveyance that
expressly grants or reserves the right to extract the coal by
surface mining; or (C) if the conveyance does not expressly grant
the right to extract coal by surface mining, the surface-
subsurface legal relationship shall be determined in accordance
with applicable law:
Provided,
That nothing in this article
shall be construed to authorize the commissioner director to
adjudicate property rights disputes.
(c) Where information available to the department division
indicates that any surface-mining operation owned or controlled
by the applicant is currently in violation of this article or
other environmental laws or regulations rules, the permit shall
not be issued until the applicant submits proof that such
violation has been corrected or is in the process of being
corrected to the satisfaction of the commissioner director or the
department or agency which has jurisdiction over the violation,
and no permit may be issued to any applicant after a finding by
the commissioner director, after an opportunity for hearing, that
the applicant or the operator specified in the application
controls or has controlled mining operations with a demonstrated
pattern of willful violations of this article or of other stateor federal programs implementing the federal Surface Mining
Control and Reclamation Act of 1977, as amended, of such nature
and duration with such irreparable damage to the environment as
to indicate an intent not to comply with the provisions of this
article or the federal Surface Mining Control and Reclamation Act
of 1977, as amended:
Provided,
That if the commissioner 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 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 shall not issue a permit to the applicant:
Provided, however,
That subject to the discretion of the
commissioner director and based upon a petition for
reinstatement, permits may be issued to any applicant if: (1)
After the revocation or forfeiture, the operator whose permit has
been revoked or bond forfeited shall have has paid into the
special reclamation fund any additional sum of money determined
by the commissioner director to be adequate to reclaim the
disturbed area; (2) the violations which resulted in the
revocation or forfeiture have not caused irreparable damage to
the environment; and (3) the commissioner director is satisfied
that the petitioner will comply with this article.
(d) (1) In addition to finding the application in compliance
with subsection (b) of this section, if the area proposed to be
mined contains prime farmland, the commissioner director may,pursuant to regulations rules promulgated hereunder, grant a
permit to mine on prime farmland if the operator affirmatively
demonstrates that he the operator has the technological
capability to restore such mined area, within a reasonable time,
to equivalent or higher levels of yield as nonmined prime
farmland in the surrounding area under equivalent levels of
management, and can meet the soil reconstruction standards in
subdivision (7), subsection (b), section twelve thirteen of this
article. Except for compliance with subsection (b) of this
section, the requirements of subdivision (1) of this subsection
shall apply to all permits issued after the third day of August,
one thousand nine hundred seventy-seven.
(2) Nothing in this subsection shall apply applies to any
permit issued prior to the third day of August, one thousand nine
hundred seventy-seven, or to any revisions or renewals thereof,
or to any existing surface-mining operations for which a permit
was issued prior to said date.
(e) If the commissioner 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 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) acid-water pollution, the commissioner
director may delete such part of the land described in the
application upon which such overburden exists.
§22-3-19. 22A-3-19. Permit revision and renewal requirements;
incidental boundary revisions; requirements for transfer;
assignment and sale of permit rights; and operator
reassignment.
(a) (1) Any valid permit issued pursuant to this article
shall carry carries with it the right of successive renewal upon
expiration with respect to areas within the boundaries of the
existing permit. The holders of the permit may apply for renewal
and the renewal shall be issued:
Provided,
That on application
for renewal, the burden shall be is on the opponents of renewal,
unless it is established that and written findings by the
commissioner director are made that: (A) The terms and
conditions of the existing permit are not being satisfactorily
met:
Provided, however,
That if the permittee is required to
modify operations pursuant to mining or reclamation requirements
which become applicable after the original date of permit
issuance, the permittee shall be provided an opportunity to
submit a schedule allowing a reasonable period to comply with
such revised requirements; (B) the present surface-mining
operation is not in compliance with the applicable environmental
protection standards of this article; (C) the renewal requested
substantially jeopardizes the operator's continuing
responsibility on existing permit areas; (D) the operator has not
provided evidence that the performance bond in effect for said
operation will continue in effect for any renewal requested as
required pursuant to section sections eleven or twelve of thisarticle; or (E) any additional revised or updated information as
required pursuant to rules and regulations promulgated by the
commissioner director has not been provided.
(2) If an application for renewal of a valid permit includes
a proposal to extend the surface-mining operation beyond the
boundaries authorized in the existing permit, that portion of the
application for renewal which addresses any new land area is
subject to the full standards of this article, which includes,
but is not limited to: (A) Adequate bond; (B) a map showing the
disturbed area and facilities; and (C) a reclamation plan.
(3) Any permit renewal shall be for a term not to exceed the
period of time for which the original permit was issued.
Application for permit renewal shall be made at least one hundred
twenty days prior to the expiration of the valid permit.
(4) Any renewal application for an active permit shall be on
forms prescribed by the commissioner director and shall be
accompanied by a filing fee of two thousand dollars. The
application shall contain such information as the commissioner
director requires pursuant to rule. or regulation
(b)(1) During the term of the permit, the permittee may
submit to the commissioner director an application for a revision
of the permit, together with a revised reclamation plan.
(2) An application for a significant revision of a permit
shall be is subject to all requirements of this article and
regulations rules promulgated pursuant thereto.
(3) Any extension to an area already covered by the permit,except incidental boundary revisions, shall be made by
application for another permit. If the permittee desires to add
the new area to his or her existing permit in order to have
existing areas and new areas under one permit, the commissioner
director may so amend the original permit:
Provided,
That the
application for the new area is subject to all procedures and
requirements applicable to applications for original permits
under this article.
(c) The commissioner director shall review outstanding
permits of a five-year term before the end of the third year of
the permit. Other permits shall be reviewed within the time
established by regulations rules. The commissioner director may
require reasonable revision or modification of the permit
following review:
Provided,
That such revision or modification
shall be based upon written findings and shall be preceded by
notice to the permittee of an opportunity for hearing.
(d) No transfer, assignment or sale of the rights granted
under any permit issued pursuant to this article shall be made
without the prior written approval of the commissioner director.
§22-3-20. 22A-3-20. Public notice; written objections; public
hearings; informal conferences.
(a) At the time of submission of an application for a
surface-mining permit or a significant revision of an existing
permit pursuant to the provisions of this article, the applicant
shall submit to the department division a copy of the required
advertisement. At the time of submission, the applicant shallplace the advertisement in a local newspaper of general
circulation in the county of the proposed surface-mining
operation at least once a week for four consecutive weeks. The
commissioner director shall notify various appropriate federal
and state agencies as well as local governmental bodies, planning
agencies and sewage and water treatment authorities or water
companies in the locality in which the proposed surface-mining
operation will take place, notifying them of the operator's
intention to mine on a particularly described tract of land and
indicating the application number and where a copy of the
proposed mining and reclamation plan may be inspected. These
local bodies, agencies, authorities or companies may submit
written comments within a reasonable period established by the
commissioner director on the mining application with respect to
the effect of the proposed operation on the environment which is
within their area of responsibility. Such comments shall be
immediately transmitted by the commissioner director to the
applicant and to the appropriate office of the department
division. The commissioner director shall provide the name and
address of each applicant to the commissioner of the division of
labor who shall within fifteen days from receipt notify the
commissioner director as to the applicant's compliance, if
necessary, with section fourteen, article five, chapter twenty-
one of this code.
(b) Any person having an interest which is or may be
adversely affected, or the officer or head of any federal, stateor local governmental agency, shall have has the right to file
written objections to the proposed initial or revised permit
application for a surface-mining operation with the commissioner
director within thirty days after the last publication of the
advertisement required in subsection (a) of this section. Such
objections shall be immediately transmitted to the applicant by
the commissioner director and shall be made available to the
public. If written objections are filed and an informal
conference requested within thirty days of the last publication
of the above notice, the commissioner director shall then hold a
conference in the locality of the proposed mining within three
weeks after the close of the public comment period. Those
requesting the conference shall be notified and the date, time
and location of the informal conference shall also be advertised
by the commissioner director in a newspaper of general
circulation in the locality at least two weeks prior to the
scheduled conference date. The commissioner director may
arrange with the applicant, upon request by any party to the
conference proceeding, access to the proposed mining area for the
purpose of gathering information relevant to the proceeding. An
electronic or stenographic record shall be made of the conference
proceeding unless waived by all parties. Such record shall be
maintained and shall be accessible to the parties at their
respective expense until final release of the applicant's
performance bond or other security posted in lieu thereof. The
commissioner's director's authorized agent will preside over theconference. In the event all parties requesting the informal
conference stipulate agreement prior to the conference and
withdraw their request, a conference need not be held.
§22-3-21. 22A-3-21. Decision of commissioner director on permit
application; hearing thereon.
(a) If an informal conference has been held, the
commissioner director shall issue and furnish the applicant for
a permit and persons who were parties to the informal conference
with the written finding granting or denying the permit in whole
or in part and stating the reasons therefor within thirty days of
the informal conference, notwithstanding the requirements of
subsection (a), section eighteen of this article.
(b) If the application is approved, the permit shall be
issued. If the application is disapproved, specific reasons
therefor must be set forth in the notification. Within thirty
days after the applicant is notified of the commissioner's
director's decision, the applicant or any person with an interest
which is or may be adversely affected may request a hearing
before the reclamation board of review surface mine board as
provided in article four one, chapter twenty-two twenty-two-b of
this code to review the commissioner's director's decision.
§22-3-22. 22A-3-22. Designation of areas unsuitable for surface
mining; petition for removal of designation; prohibition of
surface mining on certain areas; exceptions; taxation of
minerals underlying land designated unsuitable.
(a) The commissioner director shall establish a planningprocess to enable objective decisions based upon competent and
scientifically sound data and information as to which, if any,
land areas of this state are unsuitable for all or certain types
of surface-mining operations pursuant to the standards set forth
in subdivisions (1) and (2) of this subsection:
Provided,
That
such designation shall not prevent prospecting pursuant to
section seven of this article on any area so designated.
(1) Upon petition pursuant to subsection (b) of this
section, the commissioner director shall designate an area as
unsuitable for all or certain types of surface-mining operations,
if it determines that reclamation pursuant to the requirements of
this article is not technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this
section, a surface area may be designated unsuitable for certain
types of surface-mining operations, if the operations: (A)
Conflict with existing state or local land use plans or programs;
(B) affect fragile or historic lands in which the operations
could result in significant damage to important historic,
cultural, scientific and aesthetic values and natural systems;
(C) affect renewable resource lands, including significant
aquifers and aquifer recharge areas, in which the operations
could result in a substantial loss or reduction of long-range
productivity of water supply, food or fiber products; or (D)
affect natural hazard lands in which the operations could
substantially endanger life and property. Such lands to include
lands subject to frequent flooding and areas of unstable geology.
(3) The commissioner director shall develop a process which
includes: (A) The review of surface-mining lands; (B) a data base
and an inventory system which will permit proper evaluation of
the capacity of different land areas of the state to support and
permit reclamation of surface-mining operations; (C) a method for
implementing land use planning decisions concerning surface-
mining operations; and (D) proper notice and opportunities for
public participation, including a public hearing prior to making
any designation or redesignation pursuant to this section.
(4) Determinations of the unsuitability of land for surface
mining, as provided for in this section, shall be integrated as
closely as possible with present and future land use planning and
regulation processes at federal, state and local levels.
(5) The requirements of this section shall do not apply to
lands on which surface-mining operations were being conducted on
the third day of August, one thousand nine hundred seventy-seven,
or under a permit issued pursuant to this article, or where
substantial legal and financial commitments in the operations
were in existence prior to the fourth day of January, one
thousand nine hundred seventy-seven.
(b) Any person having an interest which is or may be
adversely affected shall have has the right to petition the
commissioner director to have an area designated as unsuitable
for surface-mining operations or to have such a designation
terminated. The petition shall contain allegations of fact with
supporting evidence which would tend to establish theallegations. After receipt of the petition, the commissioner
director shall immediately begin an administrative study of the
area specified in the petition. Within ten months after receipt
of the petition, the commissioner director shall hold a public
hearing in the locality of the affected area after appropriate
notice and publication of the date, time and location of the
hearing. After the commissioner director or any person having
an interest which is or may be adversely affected has filed a
petition and before the hearing required by this subsection, any
person may intervene by filing allegations of fact with
supporting evidence which would tend to establish the
allegations. Within sixty days after the hearing, the
commissioner director shall issue and furnish to the petitioner
and any other party to the hearing, a written decision regarding
the petition and the reasons therefor. In the event that all the
petitioners stipulate agreement prior to the requested hearing
and withdraw their request, the hearing need not be held.
(c) Prior to designating any land areas as unsuitable for
surface-mining operations, the commissioner director shall
prepare a detailed statement on: (1) The potential coal
resources of the area; (2) the demand for the coal resources; and
(3) the impact of the designation on the environment, the economy
and the supply of coal.
(d) After the third day of August, one thousand nine hundred
seventy-seven, and subject to valid existing rights, no surface-
mining operations, except those which existed on that date, shallbe permitted:
(1) On any lands in this state within the boundaries of
units of the national park system, the national wildlife refuge
systems, the national system of trails, the national wilderness
preservation system, the wild and scenic rivers system, including
study rivers designated under section five-a of the wild and
scenic rivers act, and national recreation areas designated by
act of Congress;
(2) Which will adversely affect any publicly owned park or
places included in the national register of historic sites, or
national register of natural landmarks unless approved jointly by
the commissioner director and the federal, state or local agency
with jurisdiction over the park, the historic site or natural
landmark;
(3) Within one hundred feet of the outside right-of-way line
on any public road, except where mine access roads or haulage
roads join such right-of-way line, and except that the
commissioner director may permit the roads to be relocated or the
area affected to lie within one hundred feet of the road if,
after public notice and an opportunity for a public hearing in
the locality, the commissioner director makes a written finding
that the interests of the public and the landowners affected
thereby will be protected;
(4) Within three hundred feet from any occupied dwelling,
unless waived by the owner thereof, or within three hundred feet
of any public building, school, church, community orinstitutional building, public park, or within one hundred feet
of a cemetery; or
(5) On any federal lands within the boundaries of any
national forest:
Provided,
That surface coal mining operations
may be permitted on the lands if the secretary of the interior
finds that there are no significant recreational, timber,
economic or other values which may be incompatible with the
surface-mining operations:
Provided, however,
That the surface
operations and impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the
coal underlying any lands designated unsuitable for surface-
mining operations under any provisions of this article or
underlying any land upon which mining is prohibited by any
provisions of this article shall be assessed for taxation
purposes according to their value and the Legislature hereby
finds that the coal has no value for the duration of the
designation or prohibition unless suitable for underground mining
not in violation of this article:
Provided,
That the owner of
the coal shall forthwith notify the proper assessing authorities
if the designation or prohibition is removed so that the coal may
be reassessed.
§22-3-23. 22A-3-23. Release of performance bond or deposits;
application; notice; duties of commissioner director; public
hearings; final maps on grade release.
(a) The permittee may file a request with the commissioner
director for the release of a performance bond or deposit. Thepermittee shall publish an advertisement regarding such request
for release in the same manner as is required of advertisements
for permit applications. A copy of such advertisement shall be
submitted to the commissioner director as part of any bond
release application and shall contain a notification of the
precise location of the land affected, the number of acres, the
permit and the date approved, the amount of the bond filed and
the portion sought to be released, the type and appropriate dates
of reclamation work performed and a description of the results
achieved as they relate to the permittee's approved reclamation
plan. In addition, as part of any bond release application, the
permittee shall submit copies of letters which he the permittee
has sent to adjoining property owners, local government bodies,
planning agencies, sewage and water treatment authorities or
water companies in the locality in which the surface-mining
operation is located, notifying them of the permittee's intention
to seek release from the bond. Any request for grade release
shall also be accompanied by final maps.
(b) Upon receipt of the application for bond release, the
commissioner director, within thirty days, taking into
consideration existing weather conditions, shall conduct an
inspection and evaluation of the reclamation work involved. Such
evaluation shall consider, among other things, the degree of
difficulty to complete any remaining reclamation, whether
pollution of surface and subsurface water is occurring, the
probability of continuance or future occurrence of such pollutionand the estimated cost of abating such pollution. The
commissioner director shall notify the permittee in writing of
his or her decision to release or not to release all or part of
the performance bond or deposit within sixty days from the date
of the initial publication of the advertisement if no public
hearing is requested. If a public hearing is held, the
commissioner's director's decision shall be issued within thirty
days thereafter.
(c) If the commissioner director is satisfied that
reclamation covered by the bond or deposit or portion thereof has
been accomplished director of the division of environmental
protection as required by this article, he or she may release
said bond or deposit, in whole or in part, according to the
following schedule:
(1) When the operator completes the backfilling, regrading
and drainage control of a bonded area in accordance with his the
operator's approved reclamation plan, the release of sixty
percent of the bond or collateral for the applicable bonded area:
Provided,
That a minimum bond of ten thousand dollars shall be
retained after grade release;
(2) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section twelve thirteen of this article,
the release of an additional twenty-five percent of the bond or
collateral for the applicable bonded area:
Provided,
That a
minimum bond of ten thousand dollars shall be retained after therelease provided for in this subdivision; and
(3) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section twelve
thirteen of this article:
Provided,
That the revegetation has
been established on the regraded mined lands in accordance with
the approved reclamation plan:
Provided, however,
That such a
release may be made where the quality of the untreated post-
mining water discharged is better than or equal to the premining
water quality discharged form the mining site.
No part of the bond or deposit may be released under this
subsection so long as the lands to which the release would be
applicable are contributing additional suspended solids to
streamflow or runoff outside the permit area in excess of the
requirements set by section twelve or thirteen of this article,
or until soil productivity for prime farmlands has returned to
equivalent levels of yield as nonmined land of the same soil type
in the surrounding area under equivalent management practices as
determined from the soil survey performed pursuant to section
nine of this article. Where a sediment dam is to be retained as
a permanent impoundment pursuant to section twelve thirteen of
this article, or where a road or minor deviation is to be
retained for sound future maintenance of the operation, the
portion of the bond may be released under this subsection so long
as provisions for sound future maintenance by the operator or thelandowner have been made with the commissioner director.
(d) If the commissioner director disapproves the application
for release of the bond or portion thereof, the commissioner
director shall notify the permittee, in writing, stating the
reasons for disapproval and recommending corrective actions
necessary to secure said release and notifying the operator of
his the right to a hearing.
(e) When any application for total or partial bond release
is filed with the commissioner director, he or she shall notify
the municipality in which a surface-mining operation is located
by registered or certified mail at least thirty days prior to the
release of all or a portion of the bond.
(f) Any person with a valid legal interest which is or may
be adversely affected by release of the bond or the responsible
officer or head of any federal, state or local governmental
agency which has jurisdiction by law or special expertise with
respect to any environmental, social or economic impact involved
in the operation, or is authorized to develop and enforce
environmental standards with respect to such operations, has the
right to file written objections to the proposed bond release and
request a hearing with the commissioner director within thirty
days after the last publication of the permittee's advertisement.
If written objections are filed and a hearing requested, the
commissioner director shall inform all of the interested parties
of the time and place of the hearing and shall hold a public
hearing in the locality of the surface-mining operation proposedfor bond release within three weeks after the close of the public
comment period. The date, time and location of such public
hearing shall also be advertised by the commissioner director in
a newspaper of general circulation in the same locality.
(g) Without prejudice to the rights of the objectors, the
applicant, or the responsibilities of the commissioner director
pursuant to this section, the commissioner director may hold an
informal conference to resolve any written objections and satisfy
the hearing requirements of this section thereby.
(h) For the purpose of such hearing, the commissioner
director has the authority and is hereby empowered to administer
oaths, subpoena witnesses and written or printed materials,
compel the attendance of witnesses, or production of materials,
and take evidence including, but not limited to, inspections of
the land affected and other surface-mining operations carried on
by the applicant in the general vicinity. A verbatim record of
each public hearing required by this section shall be made and a
transcript made available on the motion of any party or by order
of the commissioner director at the cost of the person requesting
the transcript.
§22-3-24. 22A-3-24. Water rights and replacement; waiver of
replacement.
(a) Nothing in this article shall be construed as affecting
affects in any way the rights of any person to enforce or
protect, under applicable law, his the person's interest in water
resources affected by a surface-mining operation.
(b) Any operator shall replace the water supply of an owner
of interest in real property who obtains all or part of his the
owner's 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 such surface-mining operation,
unless waived by said owner.
§22-3-25. 22A-3-25. Citizen suits; order of court; damages.
(a) Except as provided in subsection (b) of this section,
any person having an interest which is or may be adversely
affected may commence a civil action in the circuit court of the
county to which the surface-mining operation is located on his
the person's own behalf to compel compliance with this article:
(1) Against the state of West Virginia or any other
governmental instrumentality or agency thereof, to the extent
permitted by the West Virginia constitution and by law, which is
alleged to be in violation of the provisions of this article or
any rule, regulation, order or permit issued pursuant thereto, or
against any other person who is alleged to be in violation of any
rule, regulation, order or permit issued pursuant to this
article; or
(2) Against the commissioner, department, director,
division, reclamation board of review surface mine board or
appropriate department division employees, to the extent
permitted by the West Virginia constitution and by law, where
there is alleged a failure of the above to perform any act orduty under this article which is not discretionary.
(b) No action may be commenced:
(1) Under subdivision (1), subsection (a) of this section:
(A) prior to sixty days after the plaintiff has given notice in
writing of the violation to the commissioner director or to any
alleged violator, or (B) if the commissioner director has
commenced and is diligently prosecuting a civil action in a
circuit court to require compliance with the provisions of this
article or any rule, or regulation order or permit issued
pursuant to this article; or
(2) Under subdivision (2), subsection (a) of this section
prior to sixty days after the plaintiff has given notice in
writing of such action to the commissioner director, except that
such action may be brought immediately after such notification in
the case where the violation or order complained of constitutes
an imminent threat to the health or safety of the plaintiff or
would immediately affect a legal interest of the plaintiff.
(c) Any action respecting a violation of this article or the
regulations rules thereunder may be brought in any appropriate
circuit court. In such action under this section, the
commissioner director, if not a party, may intervene as a matter
of right.
(d) The court in issuing any final order in any action
brought pursuant to subsection (a) of this section may award
costs of litigation, including reasonable attorney and expert
witness fees, to any party whenever the court determines suchaward is appropriate. The court may, if a temporary restraining
order or preliminary injunction is sought, require the filing of
a bond or equivalent security.
(e) Nothing in this section shall restrict restricts any
right which any person or class of persons may have under any
statute or common law to seek enforcement of any of the
provisions of this article and the regulations rules thereunder
or to seek any other relief.
(f) Any person or property who is injured in his person
through the violation by any operator of any rule, regulation,
order or permit issued pursuant to this article may bring an
action for damages, including reasonable attorney and expert
witness fees, in any court of competent jurisdiction. Nothing in
this subsection shall affect affects the rights established by or
limits imposed under state workers' compensation laws.
(g) This section shall apply applies to violations of this
article and the regulations rules promulgated thereto, or orders
or permits issued pursuant to said article insofar as said
violations, regulations, rules orders and permits relate to
surface-mining operations.
§22-3-26. 22A-3-26. Surface-mining operations not subject to
article.
The provisions of this article do not apply to any of the
following activities:
(a) The extraction of coal by a landowner for his the
landowner's own noncommercial use from land owned or leased byhim the landowner.
(b) The extraction of coal as an incidental part of federal,
state, county, municipal or other local government-financed
highway or other construction:
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 extraction.
§22-3-27. 22A-3-27. Leasing of lands owned by state for surface
mining of coal.
No land or interest in land owned by the state may be
leased, and no present lease may be renewed by the state, nor any
agency of the state, for the purpose of conducting surface-mining
operations thereon unless said lease or renewal shall have has
been first authorized by an act of the Legislature:
Provided,
That the provisions of this section shall do not apply to
underground mining on such land.
§22-3-28. 22A-3-28. Special permits for reclamation of existing
abandoned coal processing waste piles.
(a) Except where exempted by section twenty-six of this
article, it shall hereafter be is unlawful for any person to
engage in surface mining as defined in this article as an
incident to the development of land for commercial, residential,
industrial or civic use without having first obtained from the
commissioner director a permit therefor as provided in section
eight of this article, unless a special permit therefor shall
have has been first obtained from the commissioner director asprovided in this section.
Application for a special permit to engage in surface mining
as an incident to the development of land for commercial,
residential, industrial or civic use shall be made in writing on
forms prescribed by the commissioner director and shall be signed
and verified by the applicant. The application shall be
accompanied by:
(1) A site preparation plan, prepared and certified by or
under the supervision of a person approved by the commissioner
director, showing the tract of land which the applicant proposes
to develop for commercial, residential, industrial or civic use;
the probable boundaries and areas of the coal deposit to be mined
and removed from said tract of land incident to the proposed
commercial, residential, industrial or civic use thereof; and
such other information as prescribed by the commissioner
director;
(2) A development plan for the proposed commercial,
residential, industrial or civic use of said land;
(3) The name of owner of the surface of the land to be
developed;
(4) The name of owner of the coal to be mined incident to
the development of the land;
(5) A reasonable estimate of the number of acres of coal
that would be mined as a result of the proposed development of
said land:
Provided,
That in no event may such number of acres
to be mined, excluding roadways, exceed five acres; and
(6) Such other information as the commissioner director may
require to satisfy and assure the commissioner director that the
surface mining under special permit is incidental or secondary to
the proposed commercial, residential, industrial or civic use of
said land.
(b) There shall be attached to the application for the
special permit a certificate of insurance certifying that the
applicant has in force a public liability insurance policy issued
by an insurance company authorized to do business in this state
affording personal injury protection in accordance with
subsection (d), section nine of this article.
The application for the special permit shall also be
accompanied by a bond, or cash or collateral securities or
certificates of the same type, in the form as prescribed by the
commissioner director and in the minimum amount of two thousand
dollars per acre, for a maximum disturbance of five acres.
The bond shall be payable to the state of West Virginia and
conditioned that the applicant shall complete the site
preparation for the proposed commercial, residential, industrial
or civic use of said land. At the conclusion of the site
preparation, in accordance with the site preparation plan
submitted with the application, the bond conditions shall be are
satisfied and the bond and any cash, securities or certificates
furnished with said bond may be released and returned to the
applicant. The filing fee for the special permit shall be is
five hundred dollars. The special permit shall be is valid untilwork permitted is completed.
(c) The purpose of this section is to vest jurisdiction in
the commissioner director, where the surface mining is incidental
or secondary to the preparation of land for commercial,
residential, industrial or civic use and where, as an incident to
such preparation of land, minerals must be removed, including,
but not limited to, the building and construction of railroads,
shopping malls, factory and industrial sites, residential and
building sites and recreational areas. Anyone who has been
issued a special permit shall not be issued an additional special
permit on the same or adjacent tract of land unless satisfactory
evidence has been submitted to the commissioner director that
such permit is necessary to subsequent development or
construction. As long as the operator complies with the purpose
and provisions of this section, the other sections of this
article shall are not be applicable to the operator holding a
special permit:
Provided,
That the commissioner director shall
promulgate regulations rules establishing applicable performance
standards for operations permitted under this section.
(d) The commissioner director may, in the exercise of his or
her sound discretion, when not in conflict with the purposes and
findings of this article and to bring about a more desirable land
use or to protect the public and the environment, issue a special
permit solely for the removal of existing abandoned coal
processing waste piles. The commissioner director shall
promulgate specific regulations rules for such operations:
Provided,
That a bond and a reclamation plan shall be is required
for such operations.
§22-3-29. 22A-3-30. Experimental practices.
In order to encourage advances in surface mining and
reclamation practices or to allow postmining land use for
industrial, commercial, residential, agricultural or public use,
including recreational facilities, the commissioner director may
authorize departures, in individual cases and on an experimental
basis, from the environmental protection performance standards
promulgated under this article. Such departures may be
authorized if the experimental practices are potentially more or
at least as environmentally protective during and after surface-
mining operations as those required by promulgated standards; the
surface-mining operations approved for particular land use or
other purposes are not larger or more numerous than necessary to
determine the effectiveness and economic feasibility of the
experimental practices; and the experimental practices do not
reduce the protection afforded health or safety of the public
below that provided by promulgated standards.
§22-3-30. 22A-3-31. Certification and training of blasters.
The director of the division of mines and minerals shall be
is responsible for the training, examination and certification of
persons engaging in or directly responsible for blasting or use
of explosives in surface-mining operations.
§22-3-31. 22A-3-37. Conflict of interest prohibited; criminal
penalties therefor; employee protection.
(a) No employee of the division of mines and minerals
engaged in the enforcement or administration of this article or
employee of the reclamation board of review surface mine board
performing any function or duty under this article shall have a
direct or indirect financial interest in any surface-mining
operation. Whoever knowingly violates the provisions of this
subsection is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than two thousand five hundred
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned. The commissioner director shall
establish methods by which the provisions of this subsection will
be monitored and enforced, including appropriate provisions for
the filing and the review of statements and supplements thereto
concerning any financial interest which may be affected by this
subsection.
(b) No person shall discharge or in any other way
discriminate against, or cause to be fired or discriminated
against, any employee or any authorized representative of
employees by reason of the fact that the employee or
representative has filed, instituted, or caused to be filed or
instituted, any proceeding under this article, or has testified
or is about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this article.
(c) Any employee or a representative of employees who has
reason to believe that he or she has been fired or otherwise
discriminated against by any person in violation of subsection(b) of this section may, within thirty days after the alleged
violation occurs, petition to the reclamation board of review
surface mine board for a review of the firing or discrimination.
The employee or representative shall be known as is the
petitioner and shall serve a copy of the petition upon the person
or operator who will be the respondent. The participants shall
be given ten days' written notice of the hearing before the board
and the hearing shall be held within thirty days of the filing of
the petition. The board shall have the same powers and shall
hear the petition in the same manner as provided in subsections
(e) and (f), section two, article four one, chapter twenty-two
twenty-two-b of this code.
(d) If the board finds that the alleged violation did occur,
it shall issue an order incorporating therein findings of fact
and conclusions requiring the participant committing the
violation to take such affirmative action to abate the violation
by appropriate action, including, but not limited to, the hiring
or reinstatement of the employee or representative to his former
position with compensation. If the board finds no violation, it
shall issue a finding to that effect. Orders issued by the board
under this section shall be subject to judicial review in the
same manner as other orders of the board issued under this
article or article one, chapter twenty-two-b of this code.
(e) Whenever an order is issued under this section to abate
any violation, at the request of the petitioner a sum equal to
the aggregate costs and expenses, including attorneys' fees tohave been reasonably incurred by the petitioner for, or in
connection with, the institution and prosecution of the
proceedings, shall be assessed against the person committing the
violation.
§22-3-32. 22-1-18. Special tax on coal production; mines and
minerals operations fund. created
(a) Imposition of tax. -- Upon every person in this state
engaging in the privilege of severing, extracting, reducing to
possession or producing coal for sale, profit or commercial use,
there is hereby imposed an annual tax equal to two cents per ton
of coal produced by such person for sale, profit or commercial
use during such person's taxable year. The special tax imposed
by this section is in addition to all other taxes levied by law.
In no event may a ton of coal be taxed more than once under the
provisions of this section.
(b) Payment and collection of tax. -- The tax imposed by
this section shall be collected by the tax commissioner in the
same manner, at the same time, and upon the same tonnage as the
minimum severance tax imposed by article twelve-b, chapter eleven
of this code is collected:
Provided,
That under no circumstance
shall this tax be construed to be an increase in either the
minimum severance tax imposed by said article twelve-b or the
severance tax imposed by article thirteen of said chapter eleven.
Every person liable for payment of this special tax shall pay the
amount due without notice or demand for payment. The tax
commissioner shall provide to the director of the division ofenvironmental protection a quarterly listing of all persons known
to be delinquent in payment of the special tax. The director of
the division of environmental protection may take such
delinquencies into account in making determinations on the
issuance, renewal or revision of any permit.
(c) Mines and minerals operations fund. -- There is hereby
The special fund previously created in the state treasury a
special fund known as the "Mines and Minerals Operations Fund"
into which is renamed the "Mining and Reclamation Operations
Fund". The tax commissioner shall, at least quarterly, deposit
the net amount of tax collected by him or her under this section,
including any additions to tax, penalties and interest collected
with respect there into the fund.to. The treasurer shall deposit
all moneys deposited in or credited to this fund in an
interest-bearing account, with the amount of interest earned
being credited to this fund as it is earned. The moneys in this
special fund shall be expended solely for the purposes of
carrying out those statutory duties relating to the enforcement
of environmental regulatory programs for the coal industry as
imposed by this chapter and chapter twenty-two-a of this code and
the federal Surface Mining Control and Reclamation Act of 1977
and any amendments thereto. Expenditures from the "Mines and
Minerals Operations Fund" fund are not authorized from
collections but are to be made only in accordance with
appropriations by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and uponfulfillment of the provisions set forth in article two, chapter
five-a of this code.
(d) General procedure and administration. -- Each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of the code shall
also apply applies to the special tax imposed by this section
with like effect as if such act were applicable only to the
special tax imposed by this section and were set forth in extenso
in this article, notwithstanding the provisions of section three
of said article ten.
(e) Crimes and penalties. -- Each and every provision of the
"West Virginia Tax Crimes and Penalties Act" set forth in article
nine of said chapter eleven shall apply applies to the special
tax imposed by this section with like effect as if such act were
applicable only to the special tax imposed by this section and
set forth in extenso in this article, notwithstanding the
provisions of section two of said article nine.
(f) Effective date. -- The special tax imposed by this
section shall apply applies to all coal produced in this state
after the thirtieth day of September, one thousand nine hundred
ninety-one.
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER THAN
COAL.
§22-4-1. 22A-4-1. Jurisdiction vested in department of energy
division of environmental protection; legislative purpose;
apportionment of responsibility.
Except as otherwise provided in section eighteen of this
thirty-eight, article one, chapter twenty-two-a of this code the
department of energy division of environmental protection is
hereby vested with jurisdiction over all aspects of surface
mining and with jurisdiction and control over land, water and
soil aspects pertaining to surface-mining operations, and the
restoration and reclamation of lands surface mined and areas
affected thereby.
The Legislature finds that, although surface mining provides
much needed employment and has produced good safety records,
unregulated surface mining causes soil erosion, pyritic shales
and materials, landslides, noxious materials, stream pollution
and accumulation of stagnant water, increases the likelihood of
floods and slides, destroys the value of some lands for
agricultural purposes and some lands for recreational purposes,
destroys aesthetic values, counteracts efforts for the
conservation of soil, water and other natural resources, and
destroys or impairs the health, safety, welfare and property
rights of the citizens of West Virginia, where proper mining and
reclamation is not practiced.
The Legislature also finds that there are wide variations
regarding location and terrain conditions surrounding and arising
out of the surface mining primarily in topographical and
geological conditions, and by reason thereof, it is necessary to
provide the most effective, beneficial and equitable solution to
the problems involved.
The Legislature further finds that authority should be
vested in the commissioner of the department of energy director
of the division of environmental protection to administer and
enforce the provisions of this article.
The commissioner of the department of energy director of the
division of environmental protection and the director of the
division of mines and minerals office of miners' health, safety
and training shall cooperate with respect to departmental each
agency's programs and records so as to effect an orderly and
harmonious administration of the provisions of this article. The
commissioner of energy director of the division of environmental
protection may avail himself or herself of any services which may
be provided by other state agencies in this state and other
states or by agencies of the federal government, and may
reasonably compensate them for such services. He or she may also
receive any federal funds, state funds or any other funds for the
reclamation of land affected by surface mining.
No public officer or employee in the department of energy
division of environmental protection, the division of mines and
minerals office of miners' health, safety and training, of or in
the office of attorney general, having any responsibility or duty
either directly or of a supervisory nature with respect to the
administration or enforcement of this article shall (1) engage in
surface mining as a sole proprietor or as a partner or (2) be an
officer, director, stockholder, owner or part owner of any
corporation or other business entity engaged in surface mining or(3) be employed as an attorney, agent or in any other capacity by
any person, partnership, firm, association, trust or corporation
engaged in surface mining. Any violation of this paragraph by any
such public officer or employee shall constitute grounds for his
or her removal from office or dismissal from his or her
employment, as the case may be.
§22-4-2. 22A-4-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner that
will cause the analyzed pH level of the treated water to be 6.0 -
9.0 and analyzed content of iron of the treated water to be
seven milligrams per liter or less, or approved treatment which
will not lower the water quality standards established for the
river, stream 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) "Commissioner" "Director" means the commissioner of the
department of energy director of the division of environmental
protection or his authorized agents such other person the
director has delegated authority or duties to pursuant to section
six or eight, article one of this chapter.
(d) "Disturbed land" or "land disturbed" means (1) the area
from which overburden has been removed in surface-miningoperations, (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 clay, flagstone, gravel, limestone,
manganese, sand, sandstone, shale, iron ore and any other metal
or metallurgical ore:
Provided,
That the term minerals does not
include coal.
(f) "Mulch" means any natural or plant residue, organic or
inorganic material, applied to the surface of the earth to retain
moisture and curtail or limit soil erosion.
(g) "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.
(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 seven of this article showing the exact
location of end strip markers, permit markers and monument.
(i) "Person" means any individual, partnership, firm,
association, trust or corporation.
(j) "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 and haulageways, roads or trails.
(k) "Surface mining" means all activity for the recovery of
minerals, and all plants and equipment used in processing said
minerals:
Provided,
That the bonding and reclamation provisions
of this article shall do not apply to surface mining of
limestone, sandstone and sand:
Provided, however,
That the
surface mining of limestone, sandstone and sand shall be is
subject to separate rules and regulations to be promulgated by
the commissioner director.
(l) "Surface of a regraded bench" means the top portion or
part of any regraded area.
§22-4-3. 22A-4-3. Department of energy Director of the division
of environmental protection; duties and functions.
Except as otherwise provided in this article, the
commissioner director shall administer all of the laws of this
state relating to surface mining and shall exercise all of the
powers and perform all of the duties by law vested in and imposed
upon him or her in relation to said operations. The
jurisdiction, supervision and enforcement authority granted the
commissioner in this article shall be in addition to the
jurisdiction, supervision and enforcement authority granted in
this chapter.
§22-4-4. 22A-4-4. Surface-mining reclamation supervisors and
inspectors; appointment and qualifications; salary.
The commissioner director shall determine the number of
surface-mining reclamation supervisors and inspectors needed to
carry out the purposes of this article and appoint them as such.All such appointees shall be eligible civil service employees,
but no person shall be is qualified for such appointment until he
or she has served in a probationary status for a period of one
year to the satisfaction of the commissioner of energy.
Provided, That the provisions of this section shall not affect
the status of persons employed on the effective date of this
article as reclamation inspectors under the former provisions of
chapter twenty, if such persons are qualified civil service
employees. director.
Every surface-mining reclamation supervisor or inspector
shall be paid not less than sixteen thousand dollars per year.
§22-4-5. 22A-4-5. Duties of surface-mining reclamation
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 regulations, and shall perform such other duties and services
as may be prescribed by the commissioner director. Such
inspectors shall give particular attention to all conditions of
each permit to ensure complete compliance therewith. The
commissioner 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 fifteen days. Said
inspector shall note and describe violations of this article and
immediately report such violations to the commissioner director
in writing, furnishing at the same time a copy of such report tothe operator concerned.
§22-4-6. 22A-4-6. Permit required; applications; issuance and
renewals; fees and use of proceeds.
It shall hereafter be is unlawful for any person to engage
in surface mining without having first obtained from the
department of energy division of environmental protection a
permit therefor as provided in this section. Application for a
surface-mining permit shall be made in writing on forms
prescribed by the commissioner of energy 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 commissioner 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 seven 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; (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 theapplicant, 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,
That if
such list be so large as to cause undue inconvenience, the
commissioner 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 issued under the laws of this state revoked or has ever
had a 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 commissioner director. There
shall be attached to the application a true copy of an original
policy 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 one hundred thousand
dollars and property damage including blasting damage, protection
in an amount of not less than three hundred thousand dollars.
The commissioner 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 commissioner's director's statement that
written protests to such application will be received by him or
her until a specified date, which date shall be is at least
thirty days after the first publication of the notice.
The publication area of the notices required by this section
shall be is 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
said true copy of the policy of insurance, and after
consideration of the merits of the application and written
protests, if any, the commissioner director may issue the permit
applied for if the applicant has complied with all of the
provisions of this article. If the commissioner 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 thisstate, he or she shall not issue a permit to the applicant:
Provided,
That no surface-mining permit shall be refused because
of any past revocation of a permit and forfeiture of a bond or
other security if such revocation and forfeiture occurred before
the first day of July, one thousand nine hundred seventy-one, and
if, after such revocation and forfeiture, the operator whose
permit has been revoked and bond forfeited shall have has paid
into the surface-mining reclamation fund the full amount of the
bond so forfeited, and any additional sum of money determined by
the commissioner director to be adequate to reclaim the land
covered by such forfeited bond:
Provided, however,
That in no
event shall such additional sum be less than sixty dollars per
acre.
The permit shall be is valid for one year from its date of
issue. Upon verified application, containing such information as
the commissioner director may reasonably require, accompanied by
such fees and bond as are required by this article, and a true
copy of the policy of insurance as aforesaid, the commissioner
director shall from year to year renew the permit, if the
operation is in compliance with the provisions of this article.
The registration fee for all permits for surface mining,
shall be is five hundred dollars. The annual renewal fee for
permits for surface mining shall be is one hundred dollars
payable on the anniversary date of said permit upon renewal.
The permit of any operator who fails to pay any fees
provided for in this article shall be revoked.
All registration and renewal fees for surface mining shall
be collected by the commissioner 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 commissioner director, for the administration
of this article.
§22-4-7. 22A-4-7. Preplans.
Under the provisions of this article, and rules and
regulations adopted by the commissioner director, the operator
shall prepare a complete reclamation and mining plan for the area
of land to be disturbed. Said reclamation and mining plan shall
include a proposed method of operation, prepared by a registered
professional engineer or a person approved by the director, for
grading, backfilling, soil preparation, mining and planting and
such other proposals as may be necessary to develop the complete
reclamation and mining plan contemplated by this article. In
developing this complete reclamation and mining plan all
reasonable measures shall be taken to eliminate damages to
members of the public, their real and personal property, public
roads, streams and all other public property from soil erosion,
rolling stones and overburden, water pollution and hazards
dangerous to life and property. The plan shall be submitted to
the commissioner director and the commissioner director shall
notify the applicant by certified mail within thirty days after
receipt of the plan and complete application if it is or is not
acceptable. If the plan is not acceptable, the commissionerdirector shall set forth the reasons why the plan is not
acceptable, and he or she may propose modifications, delete areas
or reject the entire plan. Should the applicant disagree with the
decision of the commissioner director, he the applicant may, by
written notice, request a hearing before the commissioner
director. The commissioner director shall hold such hearing
within thirty days after receipt of this notice. When a hearing
is held by the commissioner director, he or she shall notify the
applicant of his or her decision by certified mail within twenty
days after the hearing. Any person aggrieved by a final order of
the commissioner director made after the hearing or without a
hearing may appeal to the reclamation board of review surface
mine board.
The application for a permit shall be accompanied by copies
of an enlarged United States geological survey topographic map
meeting the requirements of the subdivisions below. Aerial
photographs of the area shall be are acceptable if the plan for
reclamation can be shown to the satisfaction of the commissioner
director. 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 commissioner director a certificate of
registration as a qualified engineer or land surveyor;
(b) Identify the area to correspond with application;
(c) Show probable limits of adjacent deep-mining operations,probable limits of adjacent inactive or mined-out deep-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
commissioner 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 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
commissioner director may furnish to the chief of the division
the office of water resources of the department of natural
resources division a copy of all information required by thissubdivision, 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 acid-producing materials which
when present in the overburden, may cause spoil with a pH factor
below 3.5, preventing effective revegetation. 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 acid-bearing
spoil will be suitably prepared for revegetation and
stabilization, whether by application of mulch or suitable soil
material to the surface or by some other type of treatment,
subject to approval of the commissioner director.
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 commissioner
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 department of energydirector shall be placed in an approved location near the
operation. If the operations under a single permit are not
geographically continuous, the operator shall locate additional
monuments and submit additional maps before mining other areas.
Upon an order of the commissioner director, the operator
shall, within thirty days after service of a copy of said order
upon said operator by certified United States mail, furnish to
the department of energy director 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 such map. Such 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
commissioner director. Such 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 commissioner director. If no land has been disturbed by
operations during the preceding year, the operator shall notify
the commissioner director of this fact. A final map shall be
submitted within sixty days after completion of mining
operations. Failure to submit maps or aerial photographs or
notices at specified times shall cause the permit in question to
be suspended.
§22-4-8. 22A-4-8. Installation of drainage system.
Prior to the beginning of surface-mining operations, the
operator shall complete and shall thereafter maintain a drainage
system including any necessary settling ponds in accordance with
the rules and regulations as established by the commissioner
director.
§22-4-9. 22A-4-9. Alternative plans; time.
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.
Such plans shall be submitted to the commissioner director, and
if such plans are approved by the commissioner director and
complied with within such 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 regulations rule of the commissioner 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 deep
mining upon the premises or use a deep-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 for until such
deep mining or other use is completed, during which time the bondon 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 seven 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 commissioner director, the commissioner 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 two hundred fifty dollars per acre, but not less than a
total amount of five 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 commissioner
director, at which time the commissioner 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
commissioner director. In proper season, all fill and cut slopes
of the operation and haulageways shall be seeded and planted in
a manner as prescribed by the commissioner director, as soil
tests indicate soil suitability and in accordance with acceptedagricultural and reforestation practices.
In any such area where surface mining is being conducted,
mulch shall be is required on all disturbed areas where the
remaining slope exceeds twenty degrees from horizontal as shown
on the preplan map filed with the commissioner director as
required by the provisions of section seven of this article.
After the operation has been backfilled, graded and approved
by the commissioner 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, mulch, and any other measures
necessary to provide a suitable vegetative cover shall be defined
by the rules and regulations of the commissioner 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. Such planting shall be done by the operator or such
operator may contract in writing with the soil conservation
district for the district in which the operation covered by such
permit is located or with a private contractor approved by the
commissioner director to have such planting done by such district
or private contractor. The commissioner director shall not
release the operator's bond until all haulageways, roads andtrails within the permit area have been abandoned according to
the provisions of this article and the rules and regulations
promulgated thereunder or such operator or any other person has
secured a permit to deep mine such area as required by article
three of this chapter. twenty-two-a of this code.
The purpose of this section is to require restoration of
land disturbed by surface mining to a desirable purpose and use.
The commissioner 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 such modified program is
not carried to completion within a reasonable length of time.
§22-4-10. 22A-4-10. Limitations; mandamus.
The Legislature finds 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 surface
mining is conducted in these certain areas such operations may
naturally cause stream pollution, landslides, the accumulation of
stagnant water, flooding, the destruction of land for
agricultural 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 andproperty 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 the surface-mining process.
Therefore, authority is hereby vested in the commissioner
director to delete certain areas from all surface-mining
operations.
No application for a permit shall be approved by the
commissioner director if there is found on the basis of the
information set forth in the application or from information
available to the commissioner director and made available to the
applicant that the requirements of this article or rules and
regulations hereafter adopted will not be observed or that there
is not probable cause to believe that the proposed method of
operation, backfilling, grading or reclamation of the affected
area can be carried out consistent with the purpose of this
article.
If the commissioner 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) acid-water pollution, the
commissioner director may delete such part of the land described
in the application upon which such overburden exists.
If the commissioner 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.
The commissioner director shall not give approval to surface
mine any area which is within one hundred feet of any public
road, stream, lake or other public property, and shall not
approve the application for a permit where the surface-mining
operation will adversely affect a state, national or interstate
park unless adequate screening and other measures approved by the
commission are to be utilized and the permit application so
provides:
Provided,
That the one-hundred-foot restriction
aforesaid shall does not include ways used for ingress and egress
to and from the minerals as herein defined and the transportation
of the removed minerals, nor shall does it apply to the dredging
and removal of minerals from the streams or watercourses of this
state.
Whenever the commissioner director finds that ongoing
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 commissioner director to discharge the
mandatory duty imposed on him by this section shall be is
subject to a writ of mandamus, in any court of competent
jurisdiction by any private citizen affected thereby.
§22-4-11. 22A-4-11. Blasting restriction; formula; filing
preplan; penalties; notice.
Where blasting of overburden or mineral is necessary, such
blasting shall be done in accordance with established principles
for preventing vibration damage to residences, buildings and
communities. Such blasting shall be considered is in compliance
with provisions of this article if the following measures are
followed:
(1) The weight in pounds of explosive charge detonated at
any one time shall conform with the following scaled distance
formula: W = (D/50)(to the second power). Where W equals weight
in pounds of explosives detonated at any one instant time, then
D equals distance in feet from nearest point of blast to nearest
residence, building, or structure, other than operation
facilities of the mine:
Provided,
That explosive charges shall
be considered to be are detonated at one time if their detonation
occurs within eight milliseconds or less of each other.
(2) Where blast sizes would exceed the limits under
subdivision (1) of this section, blasts shall be detonated by the
use of delay detonators (either electric or nonelectric) to
provide detonation times separated by nine milliseconds or more
for each section of the blast complying with the scaled distanceof the formula.
(3) A plan of each operation's methods for compliance with
this section (blast delay design) for typical blasts which shall
be adhered to in all blasting at each operation, shall be
submitted to the department of energy director with the
application for a permit. It shall be accepted if it meets the
scaled distance formula established in subdivision (1) of this
section.
(4) Records of each blast shall be kept in a log to be
maintained for at least three years, which will show for each
blast other than secondary (boulder-breaking) blasts the
following information:
(a) Date and time of blast,
(b) Number of holes,
(c) Typical explosive weight per delay period,
(d) Total explosives in blast at any one time,
(e) Number of delays used,
(f) Weather conditions, and
(g) Signature of operator employee in charge of the blast.
(5) Where inspection by the department of energy director
establishes that the scaled distance formula and the approved
preplan are not being adhered to, the following penalties shall
be imposed:
(a) For the first offense in any one permit year under this
section, the permit holder shall be assessed not less than five
hundred dollars nor more than one thousand dollars;
(b) For the second offense in any one permit year under this
section, the permit holder shall be assessed not less than one
thousand dollars nor more than five thousand dollars;
(c) For the third offense in any one permit year under this
section or for the failure to pay any assessment hereinabove set
forth within a reasonable time established by the commissioner
director, the permit shall be revoked.
All such assessments as set forth in this section shall be
assessed by the commissioner director, collected by him or her
and deposited with the treasurer of the state of West Virginia,
to the credit of the operating permit fees fund.
The commissioner director shall promulgate rules and
regulations which shall provide for a warning of impending
blasting to the owners, residents or other persons who may be
present on property adjacent to the blasting area.
§22-4-12. 22A-4-12. Time in which reclamation shall be done.
It shall be is the duty of an operator to commence the
reclamation of the area of land disturbed by his the operator's
operation after the beginning of surface mining of that area in
accordance with plans previously approved by the commissioner
director and to complete such reclamation within twelve months
after the permit has expired, 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 and regulations of the commission director and no permit or
supplement to a permit shall be issued or renewed, if in thediscretion of the commissioner director, these practices are not
current.
§22-4-13. 22A-4-13. Obligations of the operator.
In addition to the method of operation, grading, backfilling
and reclamation requirements of this article and rules and
regulations adopted pursuant thereto, the operator shall be is
required to perform the following:
(1) Cover the face of the coal and the disturbed area with
material suitable to support vegetative cover and of such
thickness as may be prescribed by the commissioner director, or
with a permanent water impoundment.
(2) Bury under adequate fill, all materials determined by
the commissioner director to be acid-producing materials, toxic
material or materials constituting a fire hazard.
(3) Seal off any breakthrough of acid water caused by the
operator:
Provided,
That any breakthrough caused by the operator
during the course of his the operator's operations shall be
sealed immediately and reported immediately to the commissioner
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, the seal shall prevent the acid water from flowing.
Seals shall be constructed of stone, brick, block, earth or
similar impervious materials which are acid resistant. Anycement or concrete employed in the construction of these seals
shall also be of an acid resistant, impervious type.
(4) Impound, drain or treat all runoff water so as to reduce
soil erosion, damage to agricultural lands and pollution of
streams and other waters.
In the case of storm water accumulations or any breakthrough
of water, adequate treatment shall be undertaken by the operator
so as to prevent pollution occurring from the release of such
water into the natural drainway or stream. Treatment may include
check-dams, settling ponds and chemical or physical treatment.
In the case of a breakthrough of water, where it is possible, the
water released shall be impounded immediately. All water so
impounded shall receive adequate treatment by the operator before
it is released into the natural drainway or stream.
Storm water or water which escapes, including that which
escapes after construction of the seals, and is polluted as
defined in this code, or as defined in the rules and regulations
promulgated under this code, shall be is subject to the
requirements of article five-a, chapter twenty of this code
eleven of this chapter.
(5) Remove or bury all metal, lumber, equipment and other
refuse resulting from the operation. No operator shall 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 outsidethe area of land which is under permit and for which bond has
been posted; nor shall 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 and
for which bond has been posted.
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 or 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 during the first cut. No overburden material in excess of
the first cut shall be placed over the fill bench. With the
exception of haulageways and auger-mining operations, trees and
brush shall be removed from the upper one half of all fill
sections prior to excavation, and no trees or brush removed from
the cut section shall be placed therein or thereon.
No fill bench shall be produced on slopes of more than
sixty-five percent, except for construction of haulageways, and
such haulageways shall not exceed thirty-five feet in width, with
very scattered forty-five-foot passing areas permitted.
Lateral drainage ditches connecting to natural or
constructed waterways shall be constructed to control waterrunoff and prevent erosion whenever required by the commissioner
director. There shall be no depressions that will accumulate
water except those the commissioner director may specify and
approve. The depth and width of natural drainage ditches and
any other diversion ditches may vary depending on the length and
degree of slope.
With the exception of limestone, sandstone and sand,
complete backfilling shall be is required, not to exceed the
approximate original contour of the land. Such backfilling shall
eliminate highwalls and spoil peaks. Whenever directed by the
commissioner director, the operator shall construct, in the final
grading, such diversion ditches or terraces as will control the
water runoff. Additional restoration work may be required by the
commissioner director, according to rules and regulations adopted
by the commissioner director.
§22-4-14. 22A-4-14. Cessation of operation by inspector.
Notwithstanding any other provisions of this article, a
surface-mining reclamation inspector shall have has authority to
order the immediate cessation of any operation where (1) any of
the requirements of this article or the rules and regulations
promulgated pursuant thereto or the orders of the commissioner
director have not been complied with or (2) the public welfare or
safety calls for the immediate cessation of the operation. Such
cessation of operation shall continue until corrective steps have
been started by the operator to the satisfaction of the surface-
mining reclamation inspector. Any operator Operators whobelieves he is believe they are aggrieved by the actions of the
surface-mining reclamation inspector may immediately appeal to
the commissioner director, setting forth reasons why the
operation their operations should not be halted. The
commissioner director shall determine immediately when and if the
an operation may continue.
§22-4-15. 22A-4-15. Completion of planting; inspection and
evaluation.
When the planting of an area has been completed, the
operator shall file or cause to be filed a planting report with
the commissioner director on a form to be prescribed and
furnished by the commissioner 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 commissioner 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 aforesaid.
§22-4-16. 22A-4-16. Performance bonds.
Each operator who shall make makes application for a permit
under section six of this article shall, at the time such permit
is requested, furnish bond, on a form to be prescribed and
furnished by the commissioner 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 ofthe bond shall be not less than six hundred dollars for each acre
or fraction thereof of the land to be disturbed:
Provided,
That
the commissioner shall have director has the discretion to
determine the amount per acre of the bond that shall be is
required before a permit is issued, such amount to be based upon
the estimated reclamation costs per acre, not to exceed a maximum
of one thousand dollars per acre or fraction thereof. 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, however,
That in lieu of corporate surety, the operator
may elect to deposit with the commissioner 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
commissioner 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 commissioner 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 is to receive and hold the
same in the name of the state in trust for the purpose for whichsuch deposit is made. The operator making the deposit shall be
is entitled from time to time to receive from the state
treasurer, upon the written order of the commissioner director,
the whole or any portion of any cash, securities or certificates
so deposited, upon depositing with him the treasurer 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.
It shall be 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 the operator's obligation to
the state for the reclamation of lands disturbed by him the
operator. If the owner or owners of the surface rights or the
owner or owners of the mineral rights desire another operator or
other operators to conduct mining operations on lands disturbed
by the operator furnishing bond hereunder, it shall be is the
duty of said owner or owners to require the other operator or
operators to secure the necessary mining permit and furnish
suitable bond as herein provided. The commissioner director may
then release an equivalent amount of the bond of the operator
originally furnishing bond on the disturbed area.
The commissioner 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 all acid-
bearing or acid-producing spoil within the permit area hasreceived adequate treatment as specified in section nine of this
article.
§22-4-17. 22A-4-17. Exception as to highway construction
projects for reclamation requirements.
Any provision of this article to the contrary
notwithstanding, a person or operator shall is not be subject to
any duty or requirement whatever with respect to reclamation
requirements when engaged in the removal of borrow and fill
material for grading in federal and state highway construction
projects:
Provided,
That the provisions of the highway
construction contract require the furnishing of a suitable bond
which provides for reclamation wherever practicable of the area
affected by such recovery activity.
§22-4-18. 22A-4-20. Rules. and regulations
The commissioner director shall promulgate rules and
regulations, in accordance with the provisions of chapter twenty-
nine-a of said code, for the effective administration of this
article.
§22-4-19. 22A-4-21. Noncompliance.
If any of the requirements of this article or rules and
regulations promulgated pursuant thereto or the orders of the
commissioner director have not been complied with within the time
limits set by the commissioner director or by this article, the
commissioner director shall cause a notice of noncompliance to be
served upon the operator, which notice shall order the operation
to cease, or where found necessary, the commissioner directorshall order the suspension of a permit. A copy of such notice or
order shall be handed to the operator in person or served by
certified mail addressed to the operator at the permanent address
shown on the application for a permit. The notice of
noncompliance or order of suspension shall specify in what
respects the operator has failed to comply with this article or
the rules and regulations of the commission or orders of the
commissioner director. If the operator has not reached an
agreement with the commissioner director or has not complied with
the requirements set forth in the notice of noncompliance or
order of suspension within the time limits set therein, the
permit may be revoked by order of the commissioner director and
the performance bond shall then be forfeited. If an agreement
satisfactory to the commissioner director has not been reached
within thirty days after suspension of any permit, any and all
suspended permits shall then be declared revoked and the
performance bonds with respect thereto forfeited.
When any bond is forfeited pursuant to the provisions of
this article, the commissioner director shall give notice to the
attorney general who shall collect the forfeiture without delay.
§22-4-20. 22A-4-22. Adjudications, findings, etc., to be by
written order; contents; notice.
Every adjudication, determination or finding by the
commissioner 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 commissionerdirector 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.
§22-4-21. 22A-4-23. Appeals to board. ; hearing; record;
findings and orders of board
Any person claiming to be aggrieved or adversely affected by
any rule and regulation or order of the commissioner director or
his or her failure to enter an order may appeal to the
reclamation board of review surface mine board, pursuant to the
provisions of article one, chapter twenty-two-b of this code, for
an order vacating or modifying such rule and regulation or order,
or for such order as the commissioner director should have
entered.
The person so appealing to the board shall be known as the
appellant and the commissioner shall be known as the appellee.
The appellant and appellee shall be deemed to be parties to the
appeal.
Such appeal shall be in writing and shall set forth the rule
and regulation, 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, such 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 beaggrieved or adversely affected by any rule and regulation or
omission, such appeal may be filed with the board at any time.
A notice of the filing of such appeal shall be filed with the
commissioner within three days after the appeal is filed with the
board.
Within seven days after receipt of such notice of appeal,
the commissioner shall prepare and certify to the board a
complete record of the proceedings before him, 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 such 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
commissioner 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 commissioner.
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 ofany 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 such
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. Such fees and
mileage expenses incurred at the request of the appellant shall
be paid in advance by the appellant, and the remainder of such
fees and expenses shall be paid out of funds appropriated for the
expenses of the department.
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 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 such 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 stenographicrecord 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. Such 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 such proffer
shall be made a part of the record of such hearing.
If upon completion of the hearing the board finds that the
rule and regulation or order appealed from was lawful and
reasonable, it shall make a written order affirming the rule and
regulation or order appealed from; if the board finds that such
rule and regulation or order was unreasonable or unlawful, it
shall make a written order vacating or modifying the rule and
regulation or order appealed from; and if the board finds that
the commissioner has unreasonably or unlawfully failed to enter
an order, it shall enter such order as it finds the commissioner
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 such order shall be given
forthwith to each party to the appeal by mailing a certified copy
thereof to each such party by certified mail.
The order of the board shall be final unless vacated upon
judicial review thereof.
§22-4-22. 22A-4-25. Offenses; penalties; prosecutions; treble damages; injunctive relief.
(a) Any person who shall conduct conducts any surface-mining
operation, or any part thereof, without a permit or without
having furnished the required bond, or who shall carry carries on
such operation or be a party thereto on land not covered by a
permit, or who shall falsely represent represents any material
fact in an application for a permit or in an application for the
renewal of a permit, or who willfully violates any provision of
this article, shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be punished by a fine of not less than
one hundred nor more than one thousand dollars or by imprisonment
not exceeding six months, or by both. Any person who
deliberately violates any provision of this article or conducts
surface-mining operations without a permit shall be is guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than one thousand nor more than ten thousand
dollars or by imprisonment not exceeding six months, or by both.
Each day of violation constitutes is a separate offense. It
shall be is the duty of the commissioner director to institute
prosecutions for violations of the provisions hereof. Any person
convicted under the provisions of this section shall, in addition
to any fine imposed, pay to the commissioner director for deposit
in the surface-mining reclamation fund an amount sufficient to
reclaim the area with respect to which such conviction relates.
The commissioner shall institute any suit or other legal action
necessary for the effective administration of the provisions ofthis article.
(b) In addition to and notwithstanding any other penalties
provided by law, any operator who directly causes damage to the
property of others as a result of surface mining shall be is
liable to them, in an amount not in excess of three times the
provable amount of such damage, if and only if such damage occurs
before or within one year after such operator has completed all
reclamation work with respect to the land on which such surface
mining was carried out and all bonds of such operator with
respect to such reclamation work are released. Such damages
shall be are recoverable in an action at law in any court of
competent jurisdiction. The commissioner director shall require,
in addition to any other bonds and insurance required by other
provisions of this article, that any person engaged in the
business of surface mining shall file with the commissioner
director a certificate of insurance, or other security in an
amount of not less than ten thousand dollars, to cover possible
damage to property for which a recovery may be sought under the
provisions of this subsection.
(c) Upon application by the commissioner director, the
attorney general, or the prosecuting attorney of the county in
which the major portion of the permit area is located, any court
of competent jurisdiction may by injunction compel compliance
with and enjoin violations of the provisions of this article.
The court or the judge thereof in vacation may issue a
preliminary injunction in any case pending a decision on themerits of any application filed.
An application for an injunction under the provisions of
this section may be filed and injunctive relief granted
notwithstanding that all of the administrative remedies provided
for in this article have not been pursued or invoked against the
person or persons against whom such relief is sought and
notwithstanding that the person or persons against whom such
relief is sought have not been prosecuted or convicted under the
provisions of this article.
The judgment of the circuit court upon any application filed
under the provisions of this article shall be is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner provided
by law for appeals from circuit courts in other civil cases,
except that the petition seeking such review must be filed with
said supreme court of appeals within thirty days from the date of
entry of the judgment of the circuit court.
§22-4-23. 22A-4-26. Validity and construction of existing
surface-mining permits.
Any valid surface-mining permit existing on the effective
date of this article shall remain in full force and effect until
such permit expires under its terms or is otherwise terminated
under the provisions of this article. The provisions of this
section shall not be construed to do not require the regrading or
replanting of any area on which such work was satisfactorily
performed prior to the effective date of this article.
ARTICLE 20. 5. AIR POLLUTION CONTROL.
§22-5-1. 16-20-1. Declaration of policy and purpose.
It is hereby declared to be the public policy of this state
and the purpose of this article to achieve and maintain such
levels of air quality as will protect human health and safety,
and to the greatest degree practicable, prevent injury to plant
and animal life and property, foster the comfort and convenience
of the people, promote the economic and social development of
this state and facilitate the enjoyment of the natural
attractions of this state.
To these ends it is the purpose of this article to provide
for a coordinated statewide program of air pollution prevention,
abatement and control; to facilitate cooperation across
jurisdictional lines in dealing with problems of air pollution
not confined within single jurisdictions; and to provide a
framework within which all values may be balanced in the public
interest.
Further, it is the public policy of this state to fulfill
its primary responsibility for assuring air quality pursuant to
the "Federal Clean Air Act," as amended.
§22-5-2. 16-20-2. Definitions.
The terms used in this article are defined as follows:
(d) (1) "Air pollutants" means solids, liquids or gases
which, if discharged into the air, may result in a statutory air
pollution.
(b) (2) "Commission" "Board" means the air pollution controlcommission created quality board continued pursuant to the
provisions of this article two, chapter twenty-two-b of this
code.
(c) "Commissioner" means a member of the air pollution
control commission.
(g) (3) "Director" means the person appointed by the air
pollution control commission to act as the director or the
director's designated representative director of the division of
environmental protection or such other person the director has
delegated authority or duties to pursuant to sections six or
eight, article one, chapter twenty-two of this code.
(e) (4) "Discharge" means any release, escape or emission of
air pollutants into the air.
(a) (5) "Person" means any and all persons, natural or
artificial, including the state of West Virginia or any other
state, the United States of America, any municipal, statutory,
public or private corporation organized or existing under the
laws of this or any other state or country, and any firm,
partnership or association of whatever nature.
(f) (6) "Statutory air pollution" means and is limited to
the discharge into the air by the act of man of substances
(liquid, solid, gaseous, organic or inorganic) in a locality,
manner and amount as to be injurious to human health or welfare,
animal or plant life, or property, or which would interfere with
the enjoyment of life or property.
§22-5-3. 16-20-3. Causing statutory pollution unlawful; article
not to provide persons with additional legal remedies.
It shall be is unlawful for any person to cause a statutory
air pollution, to violate the provisions of this article, to
violate any rules or regulations promulgated pursuant to this
article to operate any facility subject to the permit
requirements of the commission director without a valid permit,
or to knowingly misrepresent to any person in the state of West
Virginia that the sale of air pollution control equipment will
meet the standards of this article or any rules and regulations
promulgated thereto: Provided, however, That nothing pursuant to
this article. Nothing contained in this article shall be
construed to provide provides any person with a legal remedy or
basis for damages or other relief not otherwise available to such
person immediately prior to enactment of this article.
§22-5-4. 16-20-5. Air pollution control commission -- Powers and
duties of director; and legal services; rules. public
hearings
(a) The commission hereby director is authorized: and
empowered:
(1) To develop ways and means for the regulation and control
of pollution of the air of the state;
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries, and with affected
groups in furtherance of the declared purposes of this article;
(3) To encourage and conduct such studies and researchrelating to air pollution and its control and abatement as the
commission director may deem advisable and necessary;
(4) To promulgate legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code not inconsistent
with the provisions of this article, relating to the control of
air pollution:
Provided,
That no rule of the commission director
shall specify a particular manufacturer of equipment nor a single
specific type of construction nor a particular method of
compliance except as specifically required by the "Federal Clean
Air Act," as amended, nor shall any such rule apply to any aspect
of an employer-employee relationship:
Provided, however,
That no
legislative rule or program of the commission director hereafter
adopted shall be any more stringent than any federal rule or
program except to the limited extent that the commission director
first makes a specific written finding for any such departure
that there exists scientifically supportable evidence for such
rule or program reflecting factors unique to West Virginia or
some area thereof;
(5) To enter orders requiring compliance with the provisions
of this article and the rules lawfully promulgated hereunder;
(6) To consider complaints, subpoena witnesses, administer
oaths, make investigations and hold hearings relevant to the
promulgation of rules and the entry of compliance orders
hereunder;
(7) To encourage voluntary cooperation by municipalities,
counties, industries and others in preserving the purity of theair within the state;
(8) To employ personnel, including specialists and
consultants, purchase materials and supplies, and enter into
contracts necessary, incident or convenient to the accomplishment
of the purpose of this article;
(9) To enter and inspect any property, premise or place on
or at which a source of air pollutants is located or is being
constructed, installed or established at any reasonable time for
the purpose of ascertaining the state of compliance with this
article and rules in force pursuant thereto promulgated under the
provisions of this article. No person shall refuse entry or
access to any authorized representative of the commission
director who requests entry for purposes of inspection, and who
presents appropriate credentials; nor shall any person obstruct,
hamper or interfere with any such inspection:
Provided,
That
nothing contained in this article shall be construed to allow a
search of a private dwelling, including the curtilage thereof,
without a proper warrant eliminates any obligation to follow any
process that may be required by law;
(10) Upon reasonable evidence of a violation of this
article, which presents an imminent and serious hazard to public
health, to give notice to the public or to that portion of the
public which is in danger by any and all appropriate means;
(11) To cooperate with, receive and expend money from the
federal government and other sources; and the commission director
may cooperate with any public or private agency or person andreceive therefrom and on behalf of the state gifts, donations,
and contributions, which shall be deposited to the credit of the
"Air Pollution Education and Environment Fund" which is hereby
created continued in the state treasury. The moneys collected
pursuant to this article which are directed to be deposited in
the air pollution education and environment fund must be
deposited in a separate account in the state treasury and
expenditures for purposes set forth in this article are not
authorized from collection but are to be made only in accordance
with appropriation and in accordance with the provisions of
article three, chapter twelve of this code and upon fulfillment
of the provisions set forth in article two, chapter five-a of
this code. Amounts collected which are found from time to time
to exceed the funds needed for the purposes set forth in this
article may be transferred to other accounts or funds and
redesignated for other purposes by appropriation of the
Legislature;
(12) To represent the state in any and all matters
pertaining to plans, procedures and negotiations for interstate
compacts in relation to the control of air pollution;
(13) To appoint advisory councils from such areas of the
state as it he or she may determine. The members shall possess
some knowledge and interest in matters pertaining to the
regulation, control and abatement of air pollution. The council
may advise and consult with the commission director about all
matters pertaining to the regulation, control and abatement ofair pollution within such area;
(14) To require any and all persons who are directly or
indirectly discharging air pollutants into the air to file with
the commission director such information as the director may
require in a form or manner prescribed by him or her for such
purpose, including, but not limited to, location, size and height
of discharge outlets, processes employed, fuels used and the
nature and time periods of duration of discharges. Such
information shall be filed with the director, when and in such
reasonable time, and in such manner as the director may
prescribe;
(15) To require the owner or operator of any stationary
source discharging air pollutants to install such monitoring
equipment or devices as the director may prescribe and to submit
periodic reports on the nature and amount of such discharges to
the commission director;
(16) To do all things necessary and convenient to prepare
and submit a plan or plans for the implementation, maintenance
and enforcement of the "Federal Clean Air Act," as amended:
Provided,
That in preparing and submitting each such plan the
commission director shall establish in such plan that such
standard shall be first achieved, maintained and enforced by
limiting and controlling emissions of pollutants from commercial
and industrial sources and locations and shall only provide in
such plans for limiting and controlling emissions of pollutants
from private dwellings and the curtilage thereof as a lastresort:
Provided, however,
That nothing herein contained shall
be construed to affect affects plans for achievement,
maintenance and enforcement of motor vehicle emission standards
and of standards for fuels used in dwellings;
(17) Whenever the commission achieves informally, by letter,
or otherwise, an agreement with any person that said person will
cease and desist in any act resulting in the discharge of
pollutants or do any act to reduce or eliminate such discharge,
such agreement shall be embodied in a consent order and entered
as, and shall have the same effect as, an order entered after a
hearing as provided in section six of this article; and
18) (17) To promulgate legislative rules, in accordance with
the provisions of chapter twenty-nine-a of this code, providing
for the following:
(A) Procedures and requirements for permit applications,
transfers and modifications and the review thereof;
(B) Imposition of permit application and transfer fees;
(C) Establishment of criteria for construction,
modification, relocation and operating permits;
(D) Imposition of permit fees and of certificate fees:
Provided,
That any person subject to operating permit fees
pursuant to section fourteen twelve of this article shall be is
exempt from imposition of the certificate fee; and
(E) Imposition of penalties and interest for the nonpayment
of fees.
The fees, penalties and interest shall be deposited in aspecial account in the state treasury designated the "Air
Pollution Control Commission Fund", formerly the "Air Pollution
Control Commission Fund", which is hereby continued to be
appropriated for the sole purpose of paying salaries and expenses
of the commission board, the office of air quality and its their
employees to carry out the provisions of this article:
Provided,
That the fees, penalties and interest collected for operating
permits required by section fourteen twelve of this article shall
be expended solely to cover all reasonable direct and indirect
costs required to administer the operating permit program. The
fees collected pursuant to this subdivision must be deposited in
a separate account in the state treasury and expenditures for
purposes set forth in this article are not authorized from
collections but are to be made only in accordance with
appropriation and in accordance with the provisions of article
three, chapter twelve of this code and upon fulfillment of the
provisions set forth in article two, chapter five-a of the code.
Amounts collected which are found from time to time to exceed the
funds needed for the purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature: Provided, however,
That For fiscal year one thousand nine hundred ninety-three,
expenditures are permitted from collections without appropriation
by the Legislature; and
(19) (18) Receipt of any money by the commission director
as a result of the entry of any consent order shall be depositedin the state treasury to the credit of the air pollution
education and environment fund.
(b) The attorney general and his or her assistants and the
prosecuting attorneys of the several counties shall render to the
commission director without additional compensation such legal
services as the commission director may require of them to
enforce the provisions of this article.
(c) No rule of the commission pertaining to the control,
reduction or abatement of air pollution shall become effective
until after at least one public hearing thereon shall have been
held by the commission within the state. Notice to the public of
the time and place of any such hearing shall be given by the
commission at least thirty days prior to the scheduled date of
such hearing by advertisement published as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be in at least one county in each affected
air quality control region defined by the commission. A copy of
any proposed rule of the commission shall be filed in the office
of the secretary of state at least thirty days and not more than
sixty days prior to the scheduled date of any such hearing. Full
opportunity to be heard shall be accorded to all persons in
attendance and any person, whether or not in attendance at such
hearing, may submit in writing his views with respect to any such
rule to the commission within thirty days after such hearing.
After such thirty-day period, no views or comments shall bereceived in writing or otherwise, unless formally solicited by
the commission. The proceedings at the hearing before the
commission shall be recorded by mechanical means or otherwise as
may be prescribed by the commission. Such record of proceedings
need not be transcribed unless requested by an interested party
in which event the prevailing rates for such transcripts will be
required from such interested party.
§22-5-5. 16-20-6. Issuance of cease and desist orders by
director; service; permit suspension, modification and
revocation; appeals to commission; hearings, subpoenas,
etc.; orders and findings of commission board.
If, from any investigation made by him the director or from
any complaint filed with him or her, the director shall be is of
the opinion that a person is violating the provisions of this
article, or any rules and regulations promulgated pursuant
thereto, he or she shall make and enter an order directing such
person to cease and desist such activity. The director shall fix
a reasonable time in such order by which such activity must stop
or be prevented. The order shall contain the findings of fact
upon which the director determined to make and enter such order.
If, after any investigation made by him, or his designated
representative the director, or from any complaint filed with him
or her, the director shall be is of the opinion that a permit
holder is violating the provisions of this article, or any rules
or regulations promulgated pursuant thereto, or any order of the
director, or any provision of a permit, the director may issuenotice of intent to suspend, modify or revoke and reissue such
permit. Upon notice of the director's intent to suspend, modify
or revoke a permit, the permit holder may request a conference
with the director to show cause why the permit should not be
suspended, modified or revoked. The request for conference must
be received by the director within fifteen days following receipt
of notice. After conference or fifteen days after issuance of
notice of intent, if no conference is requested, the director may
enter an order suspending, modifying or revoking the permit and
send notice to the permit holder. Such order shall be considered
is a cease and desist order for purposes of administrative and
judicial review and shall contain findings of fact upon which the
director determined to make and enter such order. If an appeal
of the director's order is filed, the order of the director shall
be stayed from the date of issuance pending a final decision of
the commission board.
The director shall cause a copy of any such order to be
served upon such person by registered or certified mail or by any
proper law-enforcement officer.
Any person upon whom a copy of such final order has been
served may appeal such order to the air quality board pursuant to
the provisions of article one, chapter twenty-two-b of this code.
pollution control commission in the in the following manner
except as otherwise provided in this section. The person so
appealing shall be known as the appellant and the director shall
be known as the appellee. Such appeal shall be perfected byfiling a notice of appeal, on the form prescribed by the
commission for such purpose, with the commission within fifteen
days after the date upon which the appellant received a copy of
the order. The notice of appeal shall set forth the order
complained of and the grounds upon which the appeal is based.
Upon motion of the appellant, the commission may, by informal
conference at which the appellant may be present and held no
later than five business days after issuance of an order, stay
the effect of the order complained of until final determination
thereof is made by the commission. A copy of the notice of
appeal shall be filed by the commission with the director within
eight days after the notice of appeal is filed with the
commission.
Within seven days after receipt of his copy of the notice of
appeal, the director shall prepare and certify to the commission
a complete record of the proceedings out of which the appeal
arises, including all documents and correspondence in the
director's file relating to the matter in question. The
commission shall hear the appeal de novo, and evidence may be
offered on behalf of the appellant and appellee.
All of the pertinent provisions of article five, chapter
twenty-nine-a of this code, shall apply to and govern the hearing
on appeal authorized by the provisions of this section and the
administrative procedures in connection with and following such
hearing, with like effect as if the provisions of said article
five were set forth in extenso in this section, except that anysuch appeal hearing shall be held in the county wherein the
alleged statutory air pollution complained of originated or as
agreed to among the parties.
Any such appeal hearing shall be conducted by a quorum of
the commission. For the purpose of conducting any such appeal
hearing, any member of the commission and the secretary thereof
shall have the power and authority to issue subpoenas and
subpoenas duces tecum in the name of the commission, in
accordance with the provisions of section one, article five,
chapter twenty-nine-a of this code. All subpoenas and subpoenas
duces tecum shall be issued and served within the time and for
the fees and shall be enforced, as specified in section one,
article five of said chapter twenty-nine-a, and all of the said
section one provisions dealing with subpoenas and subpoenas duces
tecum shall apply to subpoenas and subpoenas duces tecum issued
for the purpose of an appeal hearing hereunder.
Any such hearing shall be held within thirty days after the
date upon which the commission received the timely notice of
appeal, unless there is a postponement or continuance. The
commission may postpone or continue any hearing on its own
motion, or upon application of the appellant or the appellee for
good cause shown. The director shall be represented at any such
hearing by the attorney general or his assistants. At any such
hearing the appellant may represent himself or be represented by
an attorney at law admitted to practice before any circuit court
of this state.
After such hearing and consideration of all of the
testimony, evidence and record in the case, the commission shall
make and enter an order affirming, modifying or vacating the
order of the director or shall make and enter such order as the
director should have entered.
Such order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
appellant, and his attorney of record, if any, and upon the
appellee in person or by registered or certified mail. The order
of the commission shall be final unless vacated or modified upon
judicial review thereof in accordance with the provisions of
section seven of this article.
§22-5-6. 16-20-8. Penalties; recovery and disposition; duties
of prosecuting attorneys.
(a) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
shall be or article one, chapter twenty-two-b of this code is
subject to a civil penalty not to exceed ten thousand dollars for
each day of such violation, which penalty shall be recovered in
a civil action brought by the commission director in the name of
the state of West Virginia in the circuit court of any county
wherein such person resides or is engaged in the activity
complained of or in the circuit court of Kanawha county. The
amount of the penalty shall be fixed by the court without a jury.
Provided,
That any such person shall is not be subject to such
civil penalties unless such person shall have has been given
written notice thereof by the director:
Provided, however,
That
for the first such minor violation, if such person corrects the
violation within such time as was specified in the notice of
violation issued by the director, no such civil penalty may be
recovered:
Provided further,
That if such person fails to
correct such minor violation or for any serious or subsequent
serious or minor violation, such person shall be is subject to
civil penalties imposed pursuant to this section from the first
day of such violation notwithstanding the date of the issuance or
receipt of the notice of violation. The commission director
shall, by rule and regulation subject to the provisions of
chapter twenty-nine-a of this code, determine the definitions of
serious and minor violations. The amount of any such penalty
collected by the commission director shall be deposited in the
general revenue of the state treasury according to law.
(b) (1) Any person who knowingly misrepresents any material
fact in an application, record, report, plan or other document
filed or required to be maintained under the provisions of this
article or any rules promulgated by the commission thereunder
under this article is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than twenty-five
thousand dollars or imprisoned in the county jail not more than
six months or both fined and imprisoned.
(2) Any person who knowingly violates any provision of thisarticle, any permit or any rule or order issued pursuant to this
article or article one, chapter twenty-two-b of this code is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than twenty-five thousand dollars for each day of
such violation or imprisoned in the county jail not more than one
year or both fined and imprisoned.
(c) Upon a request in writing from the commission director
it shall be is the duty of the attorney general and the
prosecuting attorney of the county in which any such action for
penalties accruing under this section or section nine seven of
this article may be brought to institute and prosecute all such
actions on behalf of the commission director.
(d) For the purpose of this section, violations on separate
days shall be considered are separate offenses.
§22-5-7. 16-20-9. Applications for injunctive relief.
The director may seek an injunction against any person in
violation of any provision of this article or any permit, rule or
order issued pursuant to this article or article one, chapter
twenty-two-b of this code. In seeking an injunction, it is not
necessary for the director to post bond nor to allege or prove at
any stage of the proceeding that irreparable damage will occur if
the injunction is not issued or that the remedy at law is
inadequate. An application for injunctive relief brought under
this section or for civil penalty brought under section eight six
of this article may be filed and relief granted notwithstanding
the fact that all administrative remedies provided in thisarticle have not been exhausted or invoked against the person or
persons against whom such relief is sought.
In any action brought pursuant to the provisions of section
eight six or of this section, the state, or any agency of the
state which prevails, may be awarded costs and reasonable
attorney's fees.
§22-5-8. 16-20-10. Emergencies.
Whenever air pollution conditions in any area of the state
become such as, in the opinion of the commission director, to
create an emergency and to require immediate action for the
protection of the public health, the commission director may,
with the written approval of the governor, so find and enter such
order as it deems necessary to reduce or prevent the emission of
air pollutants substantially contributing to such conditions. In
any such order the commission director shall also fix a time, not
later than twenty-four hours thereafter, and place for a hearing
to be held before it for the purpose of investigating and
determining the factors causing or contributing to such
conditions. A true copy of any such order shall be served upon
persons whose interests are directly prejudiced thereby in the
same manner as a summons in a civil action may be served, and a
true copy of such order shall also be posted on the front door of
the courthouse of the county in which the alleged conditions
originated. All persons whose interests are prejudiced or
affected in any manner by any such order shall have the right to
appear in person or by counsel at the hearing and to presentevidence relevant to the subject of the hearing. Within twenty-
four hours after completion of the hearing the commission
director shall affirm, modify or set aside said order in
accordance and consistent with the evidence adduced. Any person
aggrieved by such action of the commission director may
thereafter apply by petition to the circuit court of the county
for a review of the commission's director's action. The circuit
court shall forthwith fix a time for hearing de novo upon the
petition and shall, after such hearing, by order entered of
record, affirm, modify or set aside in whole or in part the order
and action of the commission director. Any person whose
interests shall have been substantially affected by the final
order of the circuit court may appeal the same to the supreme
court of appeals in the manner prescribed by law.
§22-5-9. 16-20-11. Powers reserved to state board of health
secretary of the department of health and human resources,
commissioner of bureau of public health, local health
boards and political subdivisions; conflicting statutes
repealed.
Nothing in this article shall affect or limit affects or
limits the powers or duties heretofore conferred by the
provisions of this chapter sixteen of this code upon the state
board of health the secretary of the department of health and
human resources, the commissioner of the bureau of public health,
county health boards, county health officers, municipal health
boards, municipal health officers, combined boards of health orany other health agency or political subdivision of this state
except insofar as such powers and duties might otherwise be
hereafter deemed to apply to the control, reduction or abatement
of air pollution. All existing statutes or parts of statutes
are, to the extent of their inconsistencies with the provisions
of this article and to the extent that they might otherwise be
deemed to apply to the control, reduction or abatement of air
pollution, hereby repealed:
Provided, however,
That no ordinance
heretofore previously adopted by any municipality relating to the
control, reduction or abatement of air pollution shall be deemed
is repealed by this article.
§22-5-10. 16-20-12. Records, reports, data or information;
confidentiality; proceedings upon request to inspect or
copy.
All air quality data, emission data, permits, compliance
schedules, commission orders of the director, board orders and
any other information required by a federal implementation
program (all for convenience hereinafter referred to in this
section as "records, reports, data or information") obtained
under this article shall be available to the public, except that
upon a showing satisfactory to the director, by any person, that
records, reports, data or information or any particular part
thereof, to which the director has access under this article if
made public, would divulge methods or processes entitled to
protection as trade secrets of such person, the director shall
consider such records, reports, data or information or suchparticular portion thereof confidential:
Provided,
That such
confidentiality shall does not apply to the types and amounts of
air pollutants discharged and and that such records, reports,
data or information may be disclosed to other officers, employees
or authorized representatives of the state or of the federal
environment protection agency concerned with enforcing this
article, the federal Clean Air Act, as amended, or the federal
Resource Conservation and Recovery Act, as amended, when relevant
to any official proceedings thereunder:
Provided, however,
That
such officers, employees or authorized representatives of the
state or federal environmental protection agency protect such
records, reports, data or information to the same degree required
of the director by this section. The commission director shall
promulgate legislative rules regarding the protection of records,
reports, data or information, or trade secrets, as required by
this section.
All requests to inspect or copy documents must state with
reasonable specificity the documents or type of documents sought
to be inspected or copied. Within five business days of the
receipt of such a request, the director or his or her designate
shall: (a) Advise the person making such request of the time and
place at which he the person may inspect and copy the documents;
or (b) deny the request, stating in writing the reasons for such
denial. For purposes of judicial appeal, a written denial by the
director or his designate shall be deemed an exhaustion of
administrative remedies. Any person whose request forinformation is denied in whole or in part may appeal from such
denial by filing with the director a notice of appeal. Such
notice shall be filed within thirty days from the date the
request for information was denied, and shall be signed by the
person whose request was denied or his the person's attorney.
The appeal shall be taken to the circuit court of Kanawha county,
where it shall be heard without a jury. The scope of review
shall be is limited to the question of whether the records,
reports, data or other information, or any particular part
thereof (other than emission data), sought to be inspected or
copied, would, if made public, divulge methods or processes
entitled to protection as trade secrets. The said court shall
make findings of fact and conclusions of law based upon the
evidence and testimony. The director, the person whose request
was denied, or any other person whose interest shall have has
been substantially affected by the final order of the circuit
court may appeal to the supreme court of appeals in the manner
prescribed by law.
§22-5-11. 16-20-13. Construction, modification or relocation
permits required for stationary sources of air pollutants.
No person shall construct, modify or relocate any stationary
source of air pollutants without first obtaining a construction,
modification or relocation permit as hereinafter provided in this
section.
The commission director shall by rule and regulation specify
the class or categories of stationary sources to which thissection shall apply applies. Application for permits shall be
made upon such form, in such manner, and within such time as the
rule and regulation shall prescribe prescribes and shall include
such information, as in the judgment of the director, will enable
him or her to determine whether such source will be so designed
as to operate in conformance with the provisions of this article
or any rules and regulations promulgated thereunder of the
director.
The director shall, within a reasonable time not to exceed
twelve months for major sources, as defined by the commission
director, and six months for all other sources after the receipt
of a complete application, issue such permit unless he or she
determines that the proposed construction, modification or
relocation will not be in accordance with this article or rules
and regulations promulgated thereunder, in which case he the
director shall issue an order for the prevention of such
construction, modification or relocation. For the purposes of
this section, a modification is deemed to be any physical change
in, or change in the method of operation of, a stationary source
which increases the amount of any air pollutant discharged by
such source above a de minimis level set by the commission
director.
§22-5-12. 16-20-14. Operating permits required for stationary
sources of air pollution.
No person may operate a stationary source of air pollutants
without first obtaining an operating permit as hereinafterprovided in this section. The commission director shall
promulgate legislative rules, in accordance with chapter
twenty-nine-a of this code, which specify classes or categories
of stationary sources which shall be are required to obtain an
operating permit. The legislative rule shall provide for the
form and content of the application procedure including time
limitations for obtaining the required permits. Any person who
has filed a timely and complete application for a permit or
renewal thereof required by this section, and who is abiding by
the requirements of this article and the rules promulgated
pursuant thereto shall be deemed to be is in compliance with the
requirements of this article and any regulation rule promulgated
thereunder until a permit is issued or denied. Any legislative
rule promulgated pursuant to the authority granted by this
section shall be equivalent to and consistent with rules and
regulations adopted by the administrator of United States
environmental protection agency pursuant to Title IV and Title V
of the Clean Air Act Amendments of 1990, 42 U.S.C §7651 et seq.
and 42 U.S.C. §7661 et seq., respectively:
Provided,
That such
legislative rule may deviate from the federal rules and
regulations where a deviation is appropriate to implement the
policy and purpose of this article taking into account such
factors unique to West Virginia.
§22-5-13. 16-20-15. Consolidation of permits.
For permits required by sections thirteen eleven and
fourteen twelve of this article, the commission director mayincorporate the required permits with an existing permit or
consolidate the required permits into a single permit.
§22-5-14. 16-20-16. Administrative review of permit actions.
Any person whose interest may be affected, including, but
not necessarily limited to the applicant and any person who
participated in the public comment process, by a permit issued,
modified or denied by the director may appeal such action of the
director to the commission air quality board pursuant to section
six of this article one, chapter twenty-two-b of this code.
§22-5-15. 16-20-18. Motor vehicle pollution, inspection and
maintenance.
(a) As the state of knowledge and technology relating to the
control of emissions from motor vehicles may permit or make
appropriate, and in furtherance of the purposes of this article,
the commission director may provide by legislative rule for the
control of emissions from motor vehicles. Such legislative rule
may prescribe requirements for the installation and use of
equipment designed to reduce or eliminate emissions and for the
proper maintenance of such equipment and of vehicles. Any
legislative rule pursuant to this section shall be consistent
with provisions of federal law, if any, relating to control of
emissions from the vehicles concerned. The commission director
shall not require, as a condition precedent to the initial sale
of a vehicle or vehicular equipment, the inspection,
certification or other approval of any feature or equipment
designed for the control of emissions from motor vehicles, ifsuch feature or equipment has been certified, approved, or
otherwise authorized pursuant to federal law.
(b) Except as permitted or authorized by law or legislative
rule, no person shall fail to maintain in good working order or
remove, dismantle, or otherwise cause to be inoperative any
equipment or feature constituting an operational element of the
air pollution control system or mechanism of a motor vehicle
required by rules and regulations of the commission director to
be maintained in or on the vehicle. Any such failure to maintain
in good working order or removal, dismantling, or causing of
inoperability shall subject subjects the owner or operator to
suspension or cancellation of the registration for the vehicle by
the department of transportation, division of motor vehicles.
The vehicle shall is not thereafter be eligible for registration
until all parts and equipment constituting operational elements
of the motor vehicle have been restored, replaced or repaired and
are in good working order.
(c) The department of transportation, division of motor
vehicles, department of administration, information and
communication services division, and the department of public
safety shall make available technical information and records to
the commission director to implement the legislative rule
regarding motor vehicle pollution, inspection and maintenance.
The commission director shall promulgate a legislative rule
establishing motor vehicle pollution, inspection and maintenance
standards and imposing an inspection fee at a rate sufficient toimplement the motor vehicle inspection program.
(d) The commission director shall promulgate a legislative
rule requiring maintenance of features of equipment in or on
motor vehicles for the purpose of controlling emissions
therefrom, and no motor vehicle may be issued a division of motor
vehicles registration certificate, or the existing registration
certificate shall be revoked, unless the motor vehicle has been
found to be in compliance with the commission's director's
legislative rule.
(e) The remedies and penalties provided in this section
eighteen of this article and section one, article three, chapter
seventeen-a of this code, shall apply to violations hereof, and
no the provisions of sections eight six or nine seven of this
article shall do not apply thereto.
(f) As used in this section "motor vehicle" shall have has
the same meaning as in chapter seventeen-c of this code.
§22-5-16. 16-20-19. Small business environmental compliance
assistance program, compliance advisory panel.
The secretary of the department of commerce, labor, and
environmental resources shall establish a small business
stationary source technical and environmental compliance
assistance program which meets the requirements of Title V of
the Clean Air Act Amendments of 1990, 42 U.S.C. §7661 et seq. A
compliance advisory panel composed of seven members appointed as
follows shall be created to periodically review the effectiveness
and results of this assistance program:
(a) Two members who are not owners, nor representatives of
owners, of small business stationary sources, selected by the
governor to represent the general public;
(b) One member selected by the speaker of the House of
Delegates who is an owner or who represents owners of small
business stationary sources;
(c) One member selected by the minority leader of the House
of Delegates who is an owner or who represents owners of small
business stationary sources;
(d) One member selected by the president of the Senate who
is an owner or who represents owners of small business stationary
sources;
(e) One member selected by the minority leader of the Senate
who is an owner or who represents owners of small business
stationary sources; and
(f) One member selected by the commission director to
represent the commission director.
ARTICLE 1. 6. DIVISION OFFICE OF OIL AND GAS; OIL AND GAS WELLS;
ADMINISTRATION; ENFORCEMENT.
§22-6-1. 22B-1-1. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Casing" means a string or strings of pipe commonly
placed in wells drilled for natural gas or petroleum or both;
(b) "Cement" means hydraulic cement properly mixed with
water;
(c) "Chairman Chair" means the chairman chair of the West
Virginia shallow gas well review board as provided for in section
four, article seven eight, chapter twenty-two twenty-two-c of
this code;
(d) "Chief" means chief of the division of water resources
of the department of natural resources;
(e) (d) "Coal operator" means any person or persons, firm,
partnership, partnership association or corporation that proposes
to or does operate a coal mine;
(f) (e) "Coal seam" and "workable coal bed" are
interchangeable terms and mean any seam of coal twenty inches or
more in thickness, unless a seam of less thickness is being
commercially worked, or can in the judgment of the department
foreseeably be commercially worked and will require protection if
wells are drilled through it;
(g) (f) "Commissioner" "Director" means commissioner the
director of the department of energy division of environmental
protection as established in article one of this chapter or such
other person as the director has delegated authority or duties to
pursuant to sections six or eight, article one of this chapter.
(h) (g) "Deep well" means any well other than a shallow
well, drilled and completed in a formation at or below the top of
the uppermost member of the "Onondaga Group";
(i) "Division" means, for purposes of this article and
articles three and four of this chapter, the division of oil and
gas of the department of energy;
(h) "Director" means, for the purposes of this article and
articles two, three and four of this chapter, the director of the
division of oil and gas of the department of energy;
(k) (h) "Expanding cement" means any cement approved by the
division office of oil and gas which expands during the hardening
process, including, but not limited to, regular oil field cements
with the proper additives;
(l) (i) "Facility" means any facility utilized in the oil
and gas industry in this state and specifically named or referred
to in this article or in article three eight or four nine of
this chapter, other than a well or well site;
(m) (j) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (n) of this
section;
(n) (k) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoirs;
(o) (l) "Owner" when used with reference to any well, shall
include any person or persons, firm, partnership, partnership
association or corporation that owns, manages, operates, controls
or possesses such well as principal, or as lessee or contractor,
employee or agent of such principal;
(p) (m) "Owner" when used with reference to any coal seam,
shall include any person or persons who own, lease or operatesuch coal seam;
(q) (n) "Person" means any natural person, corporation,
firm, partnership, partnership association, venture, receiver,
trustee, executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(r) (o) "Plat" means a map, drawing or print showing the
location of a well or wells as herein defined;
(s) (p) "Review board" means the West Virginia shallow gas
well review board as provided for in section four, article seven
eight, chapter twenty-two twenty-two-c of this code;
(t) (q) "Safe mining through of a well" means the mining of
coal in a workable coal bed up to a well which penetrates such
workable coal bed and through such well so that the casing or
plug in the well bore where the well penetrates the workable coal
bed is severed;
(u) (r) "Shallow well" means any gas well drilled and
completed in a formation above the top of the uppermost member of
the "Onondaga Group":
Provided,
That in drilling a shallow well
the operator may penetrate into the "Onondaga Group" to a
reasonable depth, not in excess of twenty feet, in order to allow
for logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(v) (s) "Stimulate" means any action taken by a well
operator to increase the inherent productivity of an oil or gaswell, including, but not limited to, fracturing, shooting or
acidizing, but excluding cleaning out, bailing or workover
operations;
(w) (t) "Waste" means (i) physical waste, as the term is
generally understood in the oil and gas industry; (ii) the
locating, drilling, equipping, operating or producing of any oil
or gas well in a manner that causes, or tends to cause a
substantial reduction in the quantity of oil or gas ultimately
recoverable from a pool under prudent and proper operations, or
that causes or tends to cause a substantial or unnecessary or
excessive surface loss of oil or gas; or (iii) the drilling of
more deep wells than are reasonably required to recover
efficiently and economically the maximum amount of oil and gas
from a pool; (iv) substantially inefficient, excessive or
improper use, or the substantially unnecessary dissipation of,
reservoir energy, it being understood that nothing in this
chapter shall be construed to authorize any agency of the state
to impose mandatory spacing of shallow wells except for the
provisions of section eight, article eight nine, chapter twenty-
two twenty-two-c this code and the provisions of article seven
eight, chapter twenty-two twenty-two-c this code; (v) inefficient
storing of oil or gas:
Provided,
That storage in accordance with
a certificate of public convenience issued by the federal energy
regulatory commission shall be conclusively presumed to be
efficient and (vi) other underground or surface waste in the
production or storage of oil, gas or condensate, however caused. Waste does not include gas vented or released from any mine areas
as defined in section one two, article one-a one, chapter
twenty-two-a of this code or from adjacent coal seams which are
the subject of a current permit issued under article two of
chapter twenty-two-a of this code:
Provided, however,
That
nothing in this exclusion is intended to address ownership of the
gas;
(x) (u) "Well" means any shaft or hole sunk, drilled, bored
or dug into the earth or into underground strata for the
extraction or injection or placement of any liquid or gas, or any
shaft or hole sunk or used in conjunction with such extraction or
injection or placement. The term "well" does not include any
shaft or hole sunk, drilled, bored or dug into the earth for the
sole purpose of core drilling or pumping or extracting therefrom
potable, fresh or usable water for household, domestic,
industrial, agricultural or public use;
(y) (v) "Well work" means the drilling, redrilling,
deepening, stimulating, pressuring by injection of any fluid,
converting from one type of well to another, combining or
physically changing to allow the migration of fluid from one
formation to another or plugging or replugging of any well;
(z) (w) "Well operator" or "operator" means any person or
persons, firm, partnership, partnership association or
corporation that proposes to or does locate, drill, operate or
abandon any well as herein defined;
(aa) (x) "Pollutant" shall have the same meaning as providedin subsection (x) (17), section two three, article five-a eleven,
chapter twenty twenty-two of this code; and
(bb) (y) "Waters of this state" shall have the same meaning
as the term "waters" as provided in subsection (e) (23), section
two three, article five-a eleven, chapter twenty twenty-two of
this code.
§22-6-2. 22B-1-2. Director -- Powers and duties generally;
departmental division records open to public; inspectors.
(a) The director of the division of oil and gas shall have
as his or her duty the supervision of the execution and
enforcement of matters related to oil and gas set out in this
article and in articles three eight and four nine of this
chapter. subject to review and approval of the commissioner.
(b) The director of the division of oil and gas is
authorized to enact rules and regulations necessary to effectuate
the above stated purposes. subject to review and approval by the
commissioner.
(c) The director shall have full charge of the oil and gas
matters set out in this article and in articles three eight and
four nine of this chapter. subject always to the direct
supervision and control of the commissioner of the department of
energy. In addition to all other powers and duties conferred
upon him, the director shall have the power and duty to:
(1) Supervise and direct the activities of the division
office of oil and gas and see that the purposes set forth in
subsections (a) and (b) of this section are carried out;
(2) Employ a supervising oil and gas inspector and oil and
gas inspectors. upon approval by the commissioner;
(3) Supervise and direct such oil and gas inspectors and
supervising inspector in the performance of their duties;
(4) Suspend for good cause any oil and gas inspector or
supervising inspector without compensation for a period not
exceeding thirty days in any calendar year;
(5) Prepare report forms to be used by oil and gas
inspectors or the supervising inspector in making their findings,
orders and notices, upon inspections made in accordance with this
article and articles seven, eight, nine and ten of this chapter;
(6) Employ a hearing officer and such clerks, stenographers
and other employees, as may be necessary to carry out his duties
and the purposes of the division office of oil and gas and fix
their compensation;
(7) Hear and determine applications made by owners, well
operators and coal operators for the annulment or revision of
orders made by oil and gas inspectors or the supervising
inspector, and to make inspections, in accordance with the
provisions of this article and articles three eight and four nine
of this chapter;
(8) Cause a properly indexed permanent and public record to
be kept of all inspections made by himself the director or by oil
and gas inspectors or the supervising inspector;
(9) Make annually a full and complete written report to the
commissioner as he may from time to time request, so that thecommissioner can complete the preparation of the commissioner's
annual report to the governor of the state;
(10) (9) Conduct such research and studies as the
commissioner director shall deem necessary to aid in protecting
the health and safety of persons employed within or at potential
or existing oil or gas production fields within this state, to
improve drilling and production methods and to provide for the
more efficient protection and preservation of oil and gas-bearing
rock strata and property used in connection therewith;
(11) Perform any and all acts necessary to carry out and
implement the state requirements established by 92 Statutes at
Large 3352, et seq., the "Natural Gas Policy Act of 1978," which
are to be performed by a designated state jurisdictional agency
regarding determinations that wells within the state qualify for
a maximum lawful price under certain categories of natural gas as
set forth by the provisions of the said "Natural Gas Policy Act
of 1978";
(12) Collect a filing and processing fee of forty dollars
for each well, for which a determination of qualification to
receive a maximum lawful price under the provisions of the
"Natural Gas Policy Act of 1978" is sought from the director;
(13) (10) Collect a permit fee of two hundred fifty dollars
for each permit application filed:
Provided,
That no permit
application fee shall be required when an application is
submitted solely for the plugging or replugging of a well. All
application fees required hereunder shall be in addition to anyother fees required by the provisions of this article;
(14) (11) Perform all other duties which are expressly
imposed upon him the director by the provisions of this chapter.
(15) (12) Perform all duties as the permit issuing authority
for the state in all matters pertaining to the exploration,
development, production, storage and recovery of this state's oil
and gas; in accordance with section thirteen, article one,
chapter twenty-two of this code
(16) (13) Adopt rules and regulations in accordance with
section thirteen, article one, chapter twenty-two of this code
with respect to the issuance, denial, retention, suspension or
revocation of permits, authorizations and requirements of this
chapter, which rules and regulations shall assure that the
regulations rules, permits and authorizations issued by the
director are adequate to satisfy the purposes of this article and
articles seven, eight, nine and ten of this chapter and chapter
twenty-two of this code particularly with respect to the
consolidation of the various state and federal programs which
place permitting requirements on the exploration, development,
production, storage and recovery of this state's oil and gas:
Provided,
That notwithstanding any provisions of this article and
articles seven, eight, nine and ten of this chapter or chapter
twenty-two of this code to the contrary, the water resources
environmental quality board shall have the sole authority
pursuant to section three-a three, article five-a three, chapter
twenty twenty-two-b of this code to promulgate rules andregulations setting standards of water quality applicable to
waters of the state; and
(17) (14) Perform such acts as may be necessary or
appropriate to secure to this state the benefits of federal
legislation establishing programs relating to the exploration,
development, production, storage and recovery of this state's oil
and gas, which programs are assumable by the state.
(d) The director shall have authority to visit and inspect
any well or well site and any other oil or gas facility in this
state and may call for the assistance of any oil and gas
inspector or inspectors or supervising inspector whenever such
assistance is necessary in the inspection of any such well or
well site or any other oil or gas facility. Similarly, all oil
and gas inspectors and the supervising inspector shall have
authority to visit and inspect any well or well site and any
other oil or gas facility in this state. Any well operator, coal
operator operating coal seams beneath the tract of land, or the
coal seam owner or lessee, if any, if said owner or lessee is not
yet operating said coal seams beneath said tract of land may
request the director to have an immediate inspection made. The
operator or owner of every well or well site or any other oil or
gas facility shall cooperate with the director, all oil and gas
inspectors and the supervising inspector in making inspections or
obtaining information.
(e) Oil and gas inspectors shall devote their full time and
undivided attention to the performance of their duties, and theyshall be responsible for the inspection of all wells or well
sites or other oil or gas facilities in their respective
districts as often as may be required in the performance of their
duties.
(f) All records of the division office shall be open to the
public.
§22-6-3. 22B-1-3. Findings and orders of inspectors concerning
violations; determination of reasonable time for abatement;
extensions of time for abatement; special inspections;
notice of findings and orders.
(a) If an oil and gas inspector, upon making an inspection
of a well or well site or any other oil or gas facility, finds
that any provision of this article is being violated, he the
inspector shall also find whether or not an imminent danger to
persons exists, or whether or not there exists an imminent danger
that a fresh water source or supply will be contaminated or lost.
If he the inspector finds that such imminent danger exists, he
shall forthwith make an order requiring the operator of such well
or well site or other oil or gas facility to cease further
operations until such imminent danger has been abated shall be
issued by the inspector. If he the inspector finds that no such
imminent danger exists, he the inspector shall determine what
would be a reasonable period of time within which such violation
should be totally abated. Such findings shall contain reference
to the provisions of this article which he the inspector finds
are being violated, and a detailed description of the conditionswhich cause and constitute such violation.
(b) The period of time so found by such oil and gas
inspector to be a reasonable period of time shall not exceed
seven days. Such period may be extended by such inspector, or by
any other oil and gas inspector duly authorized by the director,
from time to time, for good cause, but not to exceed a total of
thirty days, upon the making of a special inspection to ascertain
whether or not such violation has been totally abated:
Provided,
That such thirty day period may be extended beyond thirty days by
such inspectors where abatement is shown to be incapable of
accomplishment because of circumstances or conditions beyond the
control of the well operator. The director shall cause a special
inspection to be made: (A) Whenever an operator of a well or well
site or any other oil or gas facility, prior to the expiration of
any such period of time, requests him the director to cause a
special inspection to be made at such well or well site or any
other oil or gas facility; and (B) upon expiration of such period
of time as originally fixed or as extended, unless the director
is satisfied that the violation has been abated. Upon making
such special inspection, such oil and gas inspector shall
determine whether or not such violation has been totally abated.
If he the inspector determines that such violation has not been
totally abated, he the inspector shall determine whether or not
such period of time as originally fixed, or as so fixed and
extended, should be extended. If he the inspector determines
that such period of time should be extended, he the inspectorshall determine what a reasonable extension would be. If he the
inspector determines that such violation has not been totally
abated, and if such period of time as originally fixed, or as so
fixed and extended, has then expired, and if he the inspector
also determines that such period of time should not be further
extended, he the inspector shall thereupon make an order
requiring the operator of such well or well site or other oil or
gas facility to cease further operations of such well, well site
or facility, as the case may be. Such findings and order shall
contain reference to the specific provisions of this article
which are being violated.
(c) Notice of each finding and order made under this section
shall promptly be given to the operator of the well or well site
or other oil or gas facility to which it pertains by the person
making such finding or order.
(d) No order shall be issued under the authority of this
section which is not expressly authorized herein.
§22-6-4. 22B-1-4. Review of findings and orders by director;
special inspection; annulment, revision, etc., of order;
notice.
(a) Any well operator, complaining coal operator, owner or
lessee, if any, aggrieved by findings or an order made by an oil
or gas inspector pursuant to section three of this article, may
within fifteen days apply to the director for annulment or
revision of such order. Upon receipt of such application the
director shall make a special inspection of the well, well siteor other oil and gas facility affected by such order, or cause
two duly authorized oil and gas inspectors, other than the oil
and gas inspector who made such order or the supervising
inspector and one duly authorized oil and gas inspector other
than the oil and gas inspector who made such order, to make such
inspection of such well, or well site or other oil or gas
facility and to report thereon to them. Upon making such special
inspection himself, or upon receiving the report of such special
inspection, as the case may be, the director shall make an order
which shall include his the director's findings and shall annul,
revise or affirm the order of the oil and gas inspector.
(b) The director shall cause notice of each finding and
order made under this section to be given promptly to the
operator of the well, well site or other oil or gas facility to
which such findings and order pertain, and the complainant under
section three, if any.
(c) At any time while an order made pursuant to section
three of this article is in effect, the operator of the well,
well site or other oil or gas facility affected by such order may
apply to the director for annulment or revision of such order.
The director shall thereupon proceed to act upon such application
in the manner provided in this section.
(d) In view of the urgent need for prompt decision of
matters submitted to the director under this article, all actions
which he the director, or oil and gas inspectors or the
supervising inspector is are required to take under this article,shall be taken as rapidly as practicable, consistent with
adequate consideration of the issues involved.
§22-6-5. 22B-1-5. Requirements for findings, orders and notices;
posting of findings and orders; judicial review of final
orders of director.
(a) All findings and orders made pursuant to section three
or four of this article, and all notices required to be given of
the making of such findings and orders, shall be in writing. All
such findings and orders shall be signed by the person making
them, and all such notices shall be signed by the person charged
with the duty of giving the notice. All such notices shall
contain a copy of the findings and orders referred to therein.
(b) Notice of any finding or order required by section three
or four of this article to be given to an operator shall be given
by causing such notice, addressed to the operator of the well,
well site or other oil and/or gas facility to which such finding
or order pertains, to be delivered to such operator by causing a
copy thereof to be sent by registered mail to the permanent
address of such operator as filed with the division and by
causing a copy thereof to be posted upon the drilling rig or
other equipment at the well, well site or other oil and/or gas
facility, as the case may be. The requirement of this article
that a notice shall be "addressed to the operator of the well,
well site or other oil and/or gas facility to which such finding
or order pertains," shall not require that the name of the
operator for whom it is intended shall be specifically set out insuch address. Addressing such notice to "Operator of
______________," specifying the well, well site or other oil
and/or gas facility sufficiently to identify it, shall satisfy
such requirement.
(c) Any well operator, complaining coal operator, owner or
lessee, if any, adversely affected by a final order issued by the
director under section four of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code
shall apply to and govern such judicial review with like effect
as if the provisions of said section four were set forth in
extenso in this section.
(d) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
(e) Legal counsel and services for the director in all
appeal proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his or her
assistants and in any circuit court by the prosecuting attorney
of the county as well, all without additional compensation.
The director, with written approval of the attorney general, may
employ special counsel to represent the director at any such
appeal proceedings.
§22-6-6. 22B-1-6. Permit required for well work; permit fee;
application; soil erosion control plan.
(a) It is unlawful for any person to commence any well work,
including site preparation work which involves any disturbance of
land, without first securing from the director a well work
permit. An application may propose and a permit may approve two
or more activities defined as well work.
(b) The application for a well work permit shall be
accompanied by applicable bond as prescribed by section twelve,
fourteen or twenty-three of this article, and the applicable plat
required by section twelve or fourteen of this article.
(c) Every permit application filed under this section shall
be verified and shall contain the following:
(1) The names and addresses of (i) the well operator, (ii)
the agent required to be designated under subsection (e) of this
section, and (iii) every person whom the applicant must notify
under any section of this article together with a certification
and evidence that a copy of the application and all other
required documentation has been delivered to all such persons;
(2) The name and address of every coal operator operating
coal seams under the tract of land on which the well is or may be
located, and the coal seam owner of record and lessee of record
required to be given notice by section twelve, if any, if said
owner or lessee is not yet operating said coal seams;
(3) The number of the well or such other identification as
the director may require;
(4) The type of well;
(5) The well work for which a permit is requested;
(6) The approximate depth to which the well is to be drilled
or deepened, or the actual depth if the well has been drilled;
(7) Any permit application fee required by law;
(8) If the proposed well work will require casing or tubing
to be set, the entire casing program for the well, including the
size of each string of pipe, the starting point and depth to
which each string is to be set, and the extent to which each such
string is to be cemented;
(9) If the proposed well work is to convert an oil well or
a combination well or to drill a new well for the purpose of
introducing pressure for the recovery of oil as provided in
section twenty-five of this article, specifications in accordance
with the data requirements of section fourteen of this article;
(10) If the proposed well work is to plug or replug the
well, (i) specifications in accordance with the data requirements
of section twenty-three of this article, (ii) a copy of all logs
in the operator's possession as the director may require, and
(iii) a work order showing in detail the proposed manner of
plugging or unplugging the well, in order that a representative
of the director and any interested persons may be present when
the work is done. In the event of an application to drill,
redrill or deepen a well, if the well work is unsuccessful so
that the well must be plugged and abandoned, and if the well is
one on which the well work has been continuously progressing
pursuant to a permit, the operator may proceed to plug the well
as soon as he the operator has obtained the verbal permission ofthe director or his the director's designated representative to
plug and abandon the well, except that the operator shall make
reasonable effort to notify as soon as practicable the surface
owner and the coal owner, if any, of the land at the well
location, and shall also timely file the plugging affidavit
required by section twenty-three of this article;
(11) If the proposed well work is to stimulate an oil or gas
well, specifications in accordance with the data requirements of
section thirteen of this article;
(12) The erosion and sediment control plan required under
subsection (d) of this section for applications for permits to
drill; and
(13) Any other relevant information which the director may
require by rule.
(d) An erosion and sediment control plan shall accompany
each application for a well work permit except for a well work
permit to plug or replug any well. Such plan shall contain
methods of stabilization and drainage, including a map of the
project area indicating the amount of acreage disturbed. The
erosion and sediment control plan shall meet the minimum
requirements of the West Virginia erosion and sediment control
manual as adopted and from time to time amended by the division,
of oil and gas, in consultation with the several soil
conservation districts pursuant to the control program
established in this state through section 208 of the federal
Water Pollution Control Act Amendments of 1972 (33 U.S.C.1288). The erosion and sediment control plan shall become part of the
terms and conditions of a well work permit, except for a well
work permit to plug or replug any well, which is issued and the
provisions of the plan shall be carried out where applicable in
the operation. The erosion and sediment control plan shall set
out the proposed method of reclamation which shall comply with
the requirements of section thirty of this article.
For the purpose of ascertaining whether or not issuance of
any permit for well work will cause or contribute to a pollution
problem, the director shall consult with the director of the
department of natural resources.
(e) The well operator named in such application shall
designate the name and address of an agent for such operator who
shall be the attorney-in-fact for the operator and who shall be
a resident of the state of West Virginia upon whom notices,
orders or other communications issued pursuant to this article or
article five-a eleven, chapter twenty twenty-two, may be served,
and upon whom process may be served. Every well operator
required to designate an agent under this section shall within
five days after the termination of such designation notify the
division director of such termination and designate a new agent.
(f) The well owner or operator shall install the permit
number as issued by the director in a legible and permanent
manner to the well upon completion of any permitted work. The
dimensions, specifications and manner of installation shall be in
accordance with the rules of the director.
(g) The director may waive the requirements of this section
and sections nine, ten and eleven of this article in any
emergency situation, if he the director deems such action
necessary. In such case the director may issue an emergency
permit which would be effective for not more than thirty days,
but which would be subject to reissuance by the director.
(h) The director shall deny the issuance of a permit if he
the director determines that the applicant has committed a
substantial violation of a previously issued permit, including
the erosion and sediment control plan, or a substantial violation
of one or more of the rules promulgated hereunder, and has failed
to abate or seek review of the violation within the time
prescribed by the director pursuant to the provisions of sections
three and four of this article and the rules promulgated
hereunder, which time may not be unreasonable:
Provided,
That in
the event that the director does find that a substantial
violation has occurred and that the operator has failed to abate
or seek review of the violation in the time prescribed, he the
director may suspend the permit on which said violation exists,
after which suspension the operator shall forthwith cease all
well work being conducted under the permit:
Provided, however,
That the director may reinstate the permit without further
notice, at which time the well work may be continued. The
director shall make written findings of any such determination
made by him and may enforce the same in the circuit courts of
this state and the operator may appeal such suspension pursuantto the provisions of section forty of this article. The director
shall make a written finding of any such determination.
(i) Any person who violates any provision of this section
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars, or be
imprisoned in the county jail not more than twelve months, or
both fined and imprisoned.
§22-6-7. 22B-1-7. Water pollution control permits; powers and
duties of the director; penalties.
(a) In addition to a permit for well work, the director,
after public notice and an opportunity for public hearings, may
either issue a separate permit, general permit or a permit
consolidated with the well work permit for the discharge or
disposition of any pollutant or combination of pollutants into
waters of this state upon condition that such discharge or
disposition meets or will meet all applicable state and federal
water quality standards and effluent limitations and all other
requirements of the director.
(b) It shall be unlawful for any person conducting
activities which are subject to the requirements of this article,
unless he that person holds a water pollution control permit
therefor from the director, which is in full force and effect to:
(1) Allow pollutants or the effluent therefrom, produced by
or emanating from any point source, to flow into the water of
this state;
(2) Make, cause or permit to be made any outlet, orsubstantially enlarge or add to the load of any existing outlet,
for the discharge of pollutants or the effluent therefrom, into
the waters of this state;
(3) Acquire, construct, install, modify or operate a
disposal system or part thereof for the direct or indirect
discharge or deposit treated or untreated pollutants or the
effluent therefrom, into the waters of this state, or any
extension to or addition to such disposal system;
(4) Increase in volume or concentration any pollutants in
excess of the discharges or disposition specified or permitted
under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration
of any pollutants discharging or flowing into the waters of the
state;
(6) Operate any disposal well for the injection or
reinjection underground of any pollutant, including, but not
limited to, liquids or gasses, or convert any well into such a
disposal well or plug or abandon any such disposal well.
(c) Notwithstanding any provision of this article or
articles seven, eight, nine or ten of this chapter to the
contrary, the director shall have the same powers and duties
relating to inspection and enforcement as those granted to the
chief of water resources, his authorized agent or any authorized
employee as the case may be under article five-a eleven, chapter
twenty twenty-two of this code in connection with the issuance ofany water pollution control permit or any person required to have
such permit.
(d) Any person who violates any provision of this section,
any order issued under this section or any permit issued pursuant
to this section or any rule or regulation of the director
relating to water pollution or who willfully or negligently
violates any provision of this section or any permit issued
pursuant to this section or any rule or regulation or order of
the director relating to water pollution or who fails or refuses
to apply for and obtain a permit or who intentionally
misrepresents any material fact in an application, record,
report, plan or other document files or required to be maintained
under this section shall be subject to the same penalties for
such violations as are provided for in sections seventeen and
nineteen twenty-two and twenty-four, article five-a eleven,
chapter twenty twenty-two of this code:
Provided,
That the
provisions of section twenty twenty-six, article five-a eleven,
chapter twenty twenty-two of this code relating to exceptions to
criminal liability shall also apply.
All applications for injunction filed pursuant to section
seventeen twenty-two, article five-a eleven, chapter twenty
twenty-two of the code shall take priority on the docket of the
circuit court in which pending, and shall take precedence over
all other civil cases.
(e) Notwithstanding any provisions of this chapter or
chapter twenty-two of this code to the contrary, any Any waterpollution control permit of the director of the division of oil
and gas issued pursuant to this section or any order issued in
connection with it or such permit for the purpose of implementing
the "national pollutant discharge elimination system" established
under the federal Clean Water Act or the requirements of this
section, shall be appealable only to the state water resources
board and such appeal shall be governed by the provisions of
section fifteen, article five-a, chapter twenty of this code.
issued by the chief of the office of water resources of the
division in consultation with the chief of the office of oil and
gas of the division and shall be appealable to the environmental
quality board pursuant to the provisions of section twenty-five,
article eleven, chapter twenty-two and section seven, article
one, chapter twenty-two-b of this code.
(f) If any loss of game-fish or aquatic life results from a
person's or persons' failure or refusal to discharge any duty
imposed upon him by this section, the West Virginia department of
natural resources shall have a cause of action on behalf of the
state of West Virginia to recover from such person or persons
causing such a loss a sum equal to the cost of replacing such
game-fish or aquatic life. Any moneys so collected by the
director of the department of natural resources shall be
deposited in a special revenue fund entitled "natural resources
game-fish and aquatic life fund" and shall be expended as
hereinafter provided. The fund shall be expended to stock waters
of this state with game-fish and aquatic life. Where feasible,the director of the department of natural resources shall use any
sum collected in accordance with the provisions of this section
to stock waters in the area in which the loss resulting in the
collection of such sum occurred. Any balance of such sum shall
remain in the fund and be expended to stock state-owned and
operated fishing lakes and ponds, wherever located in this state,
with game-fish and aquatic life. The commissioner shall assist
the director of the department of natural resources by providing
witnesses, records, reports, or other evidence relating to such
cause of action.
[Drafter's Note: Reference to this section has been added to
the general fish kill section. § 22-11-25.]
§22-6-8. 22B-1-8. Permits not to be on flat well royalty leases;
legislative findings and declarations; permit requirements.
(a) The Legislature hereby finds and declares:
(1) That a significant portion of the oil and gas underlying
this state is subject to development pursuant to leases or other
continuing contractual agreements wherein the owners of such oil
and gas are paid upon a royalty or rental basis known in the
industry as the annual flat well royalty basis, in which the
royalty is based solely on the existence of a producing well, and
thus is not inherently related to the volume of the oil and gas
produced or marketed;
(2) That continued exploitation of the natural resources of
this state in exchange for such wholly inadequate compensation isunfair, oppressive, works an unjust hardship on the owners of the
oil and gas in place, and unreasonably deprives the economy of
the state of West Virginia of the just benefit of the natural
wealth of this state;
(3) That a great portion, if not all, of such leases or
other continuing contracts based upon or calling for an annual
flat well royalty, have been in existence for a great many years
and were entered into at a time when the techniques by which oil
and gas are currently extracted, produced or marketed, were not
known or contemplated by the parties, nor was it contemplated by
the parties that oil and gas would be recovered or extracted or
produced or marketed from the depths and horizons currently being
developed by the well operators;
(4) That while being fully cognizant that the provisions of
section 10, article I of the United States constitution and of
section 4, article III of the constitution of West Virginia,
proscribe the enactment of any law impairing the obligation of a
contract, the Legislature further finds that it is a valid
exercise of the police powers of this state and in the interest
of the state of West Virginia and in furtherance of the welfare
of its citizens, to discourage as far as constitutionally
possible the production and marketing of oil and gas located in
this state under the type of leases or other continuing contracts
described above.
(b) In the light of the foregoing findings, the Legislature
hereby declares that it is the policy of this state, to theextent possible, to prevent the extraction, production or
marketing of oil or gas under a lease or leases or other
continuing contract or contracts providing a flat well royalty or
any similar provisions for compensation to the owner of the oil
and gas in place, which is not inherently related to the volume
of oil or gas produced or marketed, and toward these ends, the
Legislature further declares that it is the obligation of this
state to prohibit the issuance of any permit required by it for
the development of oil or gas where the right to develop,
extract, produce or market the same is based upon such leases or
other continuing contractual agreements.
(c) In addition to any requirements contained in this
article with respect to the issuance of any permit required for
the drilling, redrilling, deepening, fracturing, stimulating,
pressuring, converting, combining or physically changing to allow
the migration of fluid from one formation to another, no such
permit shall be hereafter issued unless the lease or leases or
other continuing contract or contracts by which the right to
extract, produce or market the oil or gas is filed with the
application for such permit. In lieu of filing the lease or
leases or other continuing contract or contracts, the applicant
for a permit described herein may file the following:
(1) A brief description of the tract of land including the
district and county wherein the tract is located;
(2) The identification of all parties to all leases or other
continuing contractual agreements by which the right to extract,produce or market the oil or gas is claimed;
(3) The book and page number wherein each such lease or
contract by which the right to extract, produce or market the oil
or gas is recorded; and
(4) A brief description of the royalty provisions of each
such lease or contract.
(d) Unless the provisions of subsection (e) are met, no such
permit shall be hereafter issued for the drilling of a new oil or
gas well, or for the redrilling, deepening, fracturing,
stimulating, pressuring, converting, combining or physically
changing to allow the migration of fluid from one formation to
another, of an existing oil or gas production well, where or if
the right to extract, produce or market the oil or gas is based
upon a lease or leases or other continuing contract or contracts
providing for flat well royalty or any similar provision for
compensation to the owner of the oil or gas in place which is not
inherently related to the volume of oil and gas so extracted,
produced and marketed.
(e) To avoid the permit prohibition of subsection (d), the
applicant may file with such application an affidavit which
certifies that the affiant is authorized by the owner of the
working interest in the well to state that it shall tender to the
owner of the oil or gas in place not less than one eighth of the
total amount paid to or received by or allowed to the owner of
the working interest at the wellhead for the oil or gas so
extracted, produced or marketed before deducting the amount to bepaid to or set aside for the owner of the oil or gas in place, on
all such oil or gas to be extracted, produced or marketed from
the well. If such affidavit be filed with such application, then
such application for permit shall be treated as if such lease or
leases or other continuing contract or contracts comply with the
provisions of this section.
(f) The owner of the oil or gas in place shall have a cause
of action to enforce his the owner's rights established by this
section.
(g) The provisions of this section shall not affect or apply
to any lease or leases or other continuing contract or contracts
for the underground storage of gas or any well utilized in
connection therewith or otherwise subject to the provisions of
article four nine of this chapter.
(h) The director shall enforce this requirement irrespective
of whether such when the lease or other continuing contract was
executed. before or after the effective date of this chapter.
(i) The provisions of this section shall not adversely
affect any rights to free gas.
§22-6-9. 22B-1-9. Notice to property owners.
(a) No later than the filing date of the application, the
applicant for a permit for any well work shall deliver by
personal service or by certified mail, return receipt requested,
copies of the application, well plat and erosion and sediment
control plan required by section six of this article to each of
the following persons:
(1) The owners of record of the surface of the tract on
which the well is, or is to be located; and
(2) The owners of record of the surface tract or tracts
overlying the oil and gas leasehold being developed by the
proposed well work, if such surface tract is to be utilized for
roads or other land disturbance as described in the erosion and
sediment control plan submitted pursuant to section six of this
article.
(b) If more than three tenants in common or other co-owners
of interests described in subsection (a) of this section hold
interests in such lands, the applicant may serve the documents
required upon the person described in the records of the sheriff
required to be maintained pursuant to section eight, article one,
chapter eleven-a of this code, or publish in the county in which
the well is located or to be located a Class II legal
advertisement as described in section two, article three, chapter
fifty-nine of this code, containing such notice and information
as the director shall prescribe by rule, and regulation with the
first publication date being at least ten days prior to the
filing of the permit application:
Provided,
That all owners
occupying the tracts where the well work is, or is proposed to be
located at the filing date of the permit application shall
receive actual service of the documents required by subsection
(a) of this section.
(c) Materials served upon persons described in subsections
(a) and (b) of this section shall contain a statement of themethods and time limits for filing comments, who may file
comments and the name and address of the director for the purpose
of filing comments and obtaining additional information and a
statement that such persons may request, at the time of
submitting comments, notice of the permit decision and a list of
persons qualified to test water as provided in this section.
(d) Any person entitled to submit comments shall also be
entitled to receive a copy of the permit as issued or a copy of
the order denying the permit if such person requests the receipt
thereof as a part of the comments concerning said permit
application.
(e) Persons entitled to notice may contact the district
office of the division to ascertain the names and location of
water testing laboratories in the area capable and qualified to
test water supplies in accordance with standard accepted methods.
In compiling such list of names the division shall consult with
the state bureau of public health and local health departments.
§22-6-10. 22B-1-10. Procedure for filing comments; certification
of notice.
(a) All persons described in subsections (a) and (b),
section nine of this article may file comments with the director
as to the location or construction of the applicant's proposed
well work within fifteen days after the application is filed with
the director.
(b) Prior to the issuance of any permit for well work, the
applicant shall certify to the director that the requirements ofsection nine of this article have been completed by the
applicant. Such certification may be by affidavit of personal
service or the return receipt card, or other postal receipt for
certified mailing.
§22-6-11. 22B-1-11. Review of application; issuance of permit
in the absence of objections; copy of permits to county
assessor.
The director shall review each application for a well work
permit and shall determine whether or not a permit shall be
issued.
No permit shall be issued less than fifteen days after the
filing date of the application for any well work except plugging
or replugging; and no permit for plugging or replugging shall be
issued less than five days after the filing date of the
application except a permit for plugging or replugging a dry
hole:
Provided,
That if the applicant certifies that all persons
entitled to notice of the application under the provisions of
this article have been served in person or by certified mail,
return receipt requested, with a copy of the well work
application, including the erosion and sediment control plan, if
required, and the plat required by section six of this article,
and further files written statements of no objection by all such
persons, the director may issue the well work permit at any time.
The director may cause such inspections to be made of the
proposed well work location as to assure adequate review of the
application. The permit shall not be issued, or shall beconditioned including conditions with respect to the location of
the well and access roads prior to issuance if the director
determines that:
(1) The proposed well work will constitute a hazard to the
safety of persons; or
(2) The plan for soil erosion and sediment control is not
adequate or effective; or
(3) Damage would occur to publicly owned lands or resources;
or
(4) The proposed well work fails to protect fresh water
sources or supplies.
The director shall promptly review all comments filed. If
after review of the application and all comments received, the
application for a well work permit is approved, and no timely
objection or comment has been filed with the director or made by
the director under the provisions of section fifteen, sixteen or
seventeen of this article, the permit shall be issued, with
conditions, if any. Nothing in this section shall be construed to
supersede the provisions of sections six, twelve, thirteen,
fourteen, fifteen, sixteen, and seventeen of this article.
The director shall mail a copy of the permit as issued or a
copy of the order denying a permit to any person who submitted
comments to the director concerning said permit and requested
such copy.
Upon the issuance of any permit pursuant to the provisions
of this article, the director shall transmit a copy of suchpermit to the office of the assessor for the county in which the
well is located.
§22-6-12. 22B-1-12. Plats prerequisite to drilling or fracturing
wells; preparation and contents; notice and information
furnished to coal operators, owners or lessees; issuance of
permits; performance bonds or securities in lieu thereof;
bond forfeiture.
(a) Before drilling for oil or gas, or before fracturing or
stimulating a well on any tract of land, the well operator shall
have a plat prepared by a licensed land surveyor or registered
engineer showing the district and county in which the tract of
land is located, the name and acreage of the same, the names of
the owners of adjacent tracts, the proposed or actual location of
the well determined by survey, the courses and distances of such
location from two permanent points or landmarks on said tract and
the number to be given the well and the date of drilling
completion of a well when it is proposed that such well be
fractured and shall forward by registered or certified mail a
copy of the plat to the director. In the event the tract of land
on which the said well proposed to be drilled or fractured is
located is known to be underlaid with one or more coal seams,
copies of the plat shall be forwarded by registered or certified
mail to each and every coal operator operating said coal seams
beneath said tract of land, who has mapped the same and filed his
such maps with the division of mines and minerals office of
miners' health, safety and training in accordance with chaptertwenty-two-a of this code and the coal seam owner of record and
lessee of record, if any, if said owner or lessee has recorded
the declaration provided in section thirty-six of this article,
and if said owner or lessee is not yet operating said coal seams
beneath said tract of land. With each of such plats there shall
be enclosed a notice (form for which shall be furnished on
request by the director) addressed to the director and to each
such coal operator, owner and lessee, if any, at their respective
addresses, informing them that such plat and notice are being
mailed to them respectively by registered or certified mail,
pursuant to the requirements of this article.
(b) If no objections are made, or are found by the director,
to such proposed location or proposed fracturing within fifteen
days from receipt of such plat and notice by the director, the
same shall be filed and become a permanent record of such
location or fracturing subject to inspection at any time by any
interested person, and the director may forthwith issue to the
well operator a permit reciting the filing of such plat, that no
objections have been made by the coal operators, owners and
lessees, if any, or found thereto by the director, and
authorizing the well operator to drill at such location, or to
fracture the well. Unless the director has objections to such
proposed location or proposed fracturing or stimulating, such
permit may be issued prior to the expiration of such fifteen-day
period upon the obtaining by the well operator of the consent in
writing of the coal operator or operators, owners and lessees, ifany, to whom copies of the plat and notice shall have been mailed
as herein required, and upon presentation of such written consent
to the director. The notice above provided for may be given to
the coal operator by delivering or mailing it by registered or
certified mail as above to any agent or superintendent in actual
charge of mines.
(c) A permit to drill, or to fracture or stimulate an oil or
gas well, shall not be issued unless the application therefor is
accompanied by a bond as provided in section twenty-six of this
article.
§22-6-13. 22B-1-13. Notice to coal operators, owners or lessees
and director of division of mines and minerals of intention
to fracture certain other wells; contents of such notice;
bond; permit required.
Before fracturing any well the well operator shall, by
registered or certified mail, forward a notice of intention to
fracture such well to the director and to each and every coal
operator operating coal seams beneath said tract of land, who has
mapped the same and filed his such maps with the division of
mines and minerals office of miners' health, safety and training
in accordance with chapter twenty-two-a of this code, and the
coal seam owner and lessee, if any, if said owner of record or
lessee of record has recorded the declaration provided in section
thirty-six of this article, and if said owner or lessee is not
yet operating said coal seams beneath said tract of land.
The notice shall be addressed to the director and to eachsuch coal operator at their respective addresses, shall contain
the number of the drilling permit for such well and such other
information as may be required by the director to enable that the
division and the coal operators to locate and identify such well
and shall inform them that such notice is being mailed to them,
respectively, by registered or certified mail, pursuant to the
requirements of this article. The form for such notice of
intention shall be furnished on request by the director.
If no objections are made, or are found by the director to
such proposed fracturing within fifteen days from receipt of such
notice by the director, the same shall be filed and become a
permanent record of such fracturing, subject to inspection at any
time by any interested person, and the director shall forthwith
issue to the well operator a permit reciting the filing of such
notice, that no objections have been made by the coal operators,
or found thereto by the director, and authorizing the well
operator to fracture such well. Unless the director has
objections to such proposed fracturing, such permit shall be
issued prior to the expiration of such fifteen-day period upon
the obtaining by the well operator of the consent in writing of
the coal operator or operators, owners or lessees, if any, to
whom notice of intention to fracture shall have been mailed as
herein required, and upon presentation of such written consent to
the director. The notice above provided for may be given to the
coal operator by delivering or mailing it by registered or
certified mail as above to any agent or superintendent in actualcharge of mines.
§22-6-14. 22B-1-14. Plats prerequisite to introducing liquids
or waste into wells; preparation and contents; notice and
information furnished to coal operators, owners or lessees
and division of mines and minerals; chief of water
resources; director; issuance of permits; performance bonds
or security in lieu thereof.
(a) Before drilling a well for the introduction of liquids
for the purposes provided for in section twenty-five of this
article or for the introduction of liquids for the disposal of
pollutants or the effluent therefrom on any tract of land, or
before converting an existing well for such purposes, the well
operator shall have a plat prepared by a registered engineer or
licensed land surveyor showing the district and county in which
the tract of land is located, the name and acreage of the same,
the names of the owners of all adjacent tracts, the proposed or
actual location of the well or wells determined by a survey, the
courses and distances of such location from two permanent points
of land marked on said tract and the number to be given to the
well, and shall forward by registered or certified mail the
original and one copy of the plat to the division of oil and gas
director. In addition, the well operator shall provide the
following information on the plat or by way of attachment thereto
to the director of the division of oil and gas in the manner and
form prescribed by the director's rules and regulations: (1) The
location of all wells, abandoned or otherwise located within thearea to be affected; (2) where available, the casing records of
all such wells; (3) where available, the drilling log of all such
wells; (4) the maximum pressure to be introduced; (5) the
geological formation into which such liquid or pressure is to be
introduced; (6) a general description of the liquids to be
introduced; (7) the location of all water-bearing horizons above
and below the geological formation into which such pressure,
liquid or waste is to be introduced; and (8) such other
information as the director by rule and regulation may require.
(b) In the event the tract of land on which said well
proposed to be drilled or converted for the purposes provided for
in this section is located is known to be underlaid with coal
seams, copies of the plat and all information required by this
section shall be forwarded by the operator by registered or
certified mail to each and every coal operator operating coal
seams beneath said tract of land, who has mapped the same and
filed his such maps with the division of mines and minerals
office of miners' health, safety and training in accordance with
chapter twenty-two-a of this code, and the coal seam owner of
record and lessee of record, if any, if said owner or lessee has
recorded the declaration provided in section thirty-six of this
article, and if said owner or lessee is not yet operating said
seams beneath said tract of land. With each of such plats, there
shall be enclosed a notice (form for which shall be furnished on
request by the director) addressed to the director and to each
such coal operator, owner or lessee, if any, at their respectiveaddresses, informing them that such plat and notice are being
mailed to them, respectively, by registered or certified mail,
pursuant to the requirements of this section.
(c) If no objections are made by any such coal operator,
owner or lessee, or the chief of the division of water resources
of the department of natural resources or are found by the
director of the division of oil and gas to such proposed drilling
or converting of the well or wells for the purposes provided for
in this section within thirty days from the receipt of such plat
and notice by the director, the same shall be filed and become a
permanent record of such location or well, subject to inspection
at any time by any interested person, and the director may after
public notice and opportunity to comment, issue such permit
authorizing the well operator to drill at such location or
convert such existing well or wells for the purposes provided for
in this section. The notice above provided for may be given to
the coal operator by delivering or mailing it by registered or
certified mail as above to any agent or superintendent in actual
charge of the mines.
(d) A permit to drill a well or wells or convert an existing
well or wells for the purposes provided for in this section shall
not be issued until all of the bonding provisions required by the
provisions of section twelve of this article have been fully
complied with and all such bonding provisions shall apply to all
wells drilled or converted for the purposes provided for in this
section as if such wells had been drilled for the purposesprovided for in section twelve of this article, except that such
bonds shall be conditioned upon full compliance with all laws,
rules and regulations relating to the drilling of a well or the
converting of an existing well for the purposes provided for in
said section twenty-five, or introducing of liquids for the
disposal of pollutants including the redrilling, deepening,
casing, plugging or abandonment of all such wells.
§22-6-15. 22B-1-15. Objections to proposed drilling of deep
wells and oil wells; objections to fracturing; notices and
hearings; agreed locations or conditions; indication of
changes on plats, etc.; issuance of permits.
(a) When a proposed deep well drilling site or oil well
drilling site or any site is above a seam or seams of coal, then
the coal operator operating said coal seams beneath the tract of
land, or the coal seam owner or lessee, if any, if said owner or
lessee is not yet operating said coal seams, may within fifteen
days from the receipt by the director of the plat and notice
required by section twelve of this article, or within fifteen
days from the receipt by the director of notice required by
section thirteen of this article, file objections in writing
(forms for which will be furnished by the director on request) to
such proposed drilling or fracturing with the director, setting
out therein as definitely as is reasonably possible the ground or
grounds on which such objections are based.
If any objection is filed, or if any objection is made by
the director, the director shall notify the well operator of thecharacter of the objections and by whom made and fix a time and
place, not less than fifteen days from the end of said fifteen-
day period, at which such objections will be considered of which
time and place the well operator and all objecting coal
operators, owners or lessees, if any, shall be given at least ten
days' written notice by the director, by registered or certified
mail, and summoned to appear. At the time and place so fixed the
well operator and the objecting coal operators, owners or
lessees, if any, or such of them as are present or represented,
shall proceed to consider the objections. In the case of
proposed drilling, such parties present or represented may agree
upon either the location as made or so moved as to satisfy all
objections and meet the approval of the director, and any change
in the original location so agreed upon and approved by the
director shall be indicated on said plat on file with the
director, and the distance and direction of the new location from
the original location shall be shown, and as so altered, the plat
shall be filed and become a permanent record, and in the case of
proposed fracturing, such parties present or represented may
agree upon conditions under which the well is to be fractured
which will protect life and property and which will satisfy all
objections and meet the approval of the director, at which time
the plat and notice required by section twelve or the notice
required by section thirteen, as the case may be, shall be filed
and become a permanent record. Whereupon the director shall
forthwith issue to the well operator a drilling or fracturingpermit, as the case may be, reciting the filing of the plat and
notice required by said section twelve, or the notice required by
said section thirteen, as the case may be, that at a hearing duly
held a location as shown on the plat or the conditions under
which the fracturing is to take place for the protection of life
and property were agreed upon and approved, and that the well
operator is authorized to drill at such location or to fracture
at the site shown on such plat, or to fracture the well
identified in the notice required by section thirteen, as the
case may be.
(b) In the event the well operator and the objecting coal
operators, owners or lessees, if any, or such as are present or
represented at such hearing are unable to agree upon a drilling
location, or upon a drilling location that meets the approval of
the director, then the director shall proceed to hear the
evidence and testimony in accordance with sections one and two,
article five, chapter twenty-nine-a of this code, except where
such provisions are inconsistent with the article. The director
shall take into consideration in arriving at his decision:
(1) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, travelway, airway,
haulageway, drainageway or passageway, or to any proposed
extension thereof in any operated or abandoned or operating coal
mine or coal mines already surveyed and platted, but not yet
being operated;
(2) Whether the proposed drilling can reasonably be donethrough an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(3) Whether a well can be drilled safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances due to the extraction of coal; and
(4) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal, oil and
gas.
At the close of the hearing or within ten days thereafter
the director shall issue an order: stating
(1) That he refuses Refusing to issue a permit;
(2) That he will issue Issuing a permit for the proposed
drilling location; or
(3) That he will issue Issuing a permit for a drilling
location different from that requested by the well operator.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that he will issue a permit will be
issued, he the director shall issue a permit effective ten days
after he has mailed such order is mailed, except that for good
cause shown, the director may stay the issuance of a permit for
a period not to exceed thirty days.
If a permit is issued, the director shall indicate the new
drilling location on the plat on file and shall number and keepan index of and docket each plat and notice mailed to him
received by mail as provided in section twelve of this article,
and each notice mailed to him as provided in section thirteen of
this article, entering in such docket the name of the well
operator, and the names and addresses of all persons notified,
the dates of hearings and all actions taken by the director. The
director shall also prepare a record of the proceedings, which
record shall include all applications, plats and other documents
filed with the director, all notices given and proof of service
thereof, all orders issued, all permits issued and a transcript
of the hearing. The record prepared by the director shall be open
to inspection by the public.
(c) In the event the well operator and the objecting coal
operators, owners or lessees, if any, or such as are present or
represented at such hearing, are unable to agree upon the
conditions under which the well is to be fractured as to protect
life and property, or upon conditions of fracturing that meet
with the approval of the director, then the director shall
proceed to hear the evidence and testimony in accordance with
sections one and two, article five, chapter twenty-nine-a of this
code, except where such provisions are inconsistent with this
article.
The director shall take into consideration upon his decision
whether the well can be fractured safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances.
At the close of the hearing, or within ten days thereafter,
the director shall issue an order stating the conditions under
which the well is to be fractured, provided the well can be
fractured safely, taking into consideration the dangers from
creeps, squeezes or other disturbances. If such fracturing
cannot be done safely, the director shall issue an order stating
with particularity the reasons for refusing to issue a permit.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that he will issue a permit will be
issued, he the director shall issue a permit effective ten days
after he has mailed such order is mailed, except that for good
cause shown, the director may stay the issuance of a permit for
a period not to exceed thirty days.
If a permit is issued, the director shall indicate the well
to be fractured on the plat on file and shall number and keep an
index of and docket each plat and notice mailed to him received
by mail as provided in section twelve of this article, and each
notice mailed to him received by mail as provided in section
thirteen of this article, entering in such docket the name of the
well operator, the names and addresses of all persons notified,
the dates of hearings and all actions taken by the director. The
director shall also prepare a record of the proceedings, which
record shall include all applications, plats and other documents
filed with the director, all notices given and proof of servicethereof, all orders issued, all permits issued and a transcript
of the hearing. The record prepared by the director shall be open
to inspection by the public.
§22-6-16. 22B-1-16. Objections to proposed drilling or
converting for introducing liquids or waste into wells;
notices and hearings; agreed location or conditions;
indication of changes on plats, etc.; issuance of permits;
docket of proceeding.
(a) When a well is proposed to be drilled or converted for
the purposes provided for in section fourteen of this article,
and is above a seam or seams of coal, then the coal operator
operating said coal seams beneath the tract of land, or the coal
seam owner or lessee, if any, if said owner or lessee is not yet
operating said coal seams, may within fifteen days from the
receipt by the director of the plat and notice required by
section twelve fourteen of this article, file objections in
writing (forms for which will be furnished by the director on
request) to such proposed drilling or conversion.
(b) In any case wherein a well proposed to be drilled or
converted for the purposes provided for in section fourteen of
this article shall, in the opinion of the chief of the division
office of water resources, of the department of natural resources
affect detrimentally the reasonable standards of purity and
quality of the waters of the state, such chief shall, within the
time period established by the director for the receipt of public
comment on such proposed drilling conversion, file with thedirector his such objections in writing to such proposed drilling
or conversion, setting out therein as definitely as is reasonably
possible the ground or grounds upon which such objections are
based and indicating the conditions, consistent with the
provisions of this article and the rules or regulations
promulgated thereunder, as may be necessary for the protection of
the reasonable standards of the purity and quality of such waters
under which such proposed drilling or conversion may be completed
to overcome such objections, if any.
(c) If any objection or objections are so filed, or are made
by the director, the director shall notify the well operator of
the character of the objections and by whom made and fix a time
and place, not less than thirty days from the end of said thirty-
day period, at which such objections will be considered, of which
time and place the well operator and all objecting coal
operators, the owners or lessees, if any, or such chief, shall be
given at least ten days' written notice by the director by
registered or certified mail, and summoned to appear. At the
time and place so fixed the well operator and the objecting coal
operators, owners or lessees, if any, or such of them as are
present or represented, or such chief, shall proceed to consider
the objections. In the case of proposed drilling or converting
of a well for the purposes provided for in section fourteen of
this article, such parties present or represented may agree upon
either the location as made or so moved as to satisfy all
objections and meet the approval of the director, and any changein the original location so agreed upon and approved by the
director shall be indicated on said plat on file with the
director, and the distance and direction of the new location from
the original location shall be shown, and, as so altered, the
plat shall be filed and become a permanent record. In the case
of proposed conversion, such parties present or represented may
agree upon conditions under which the conversion is to take place
for the protection of life and property or for protection of
reasonable standards of purity and quality of the waters of the
state. At which time the plat and notice required by section
fourteen shall be filed and become a permanent record. Whereupon
the director may issue to the well operator a permit to drill or
convert, as the case may be, reciting the filing of the plat and
notice required by said section fourteen that at a hearing duly
held a location as shown on the plat or the conditions under
which the conversion is to take place for the protection of life
and property and reasonable standards of purity and quality of
the waters of the state where agreed upon and approved, and that
the well operator is authorized to drill at such location or to
convert at the site shown on such plat, as the case may be.
(d) (1) In the case the well operator and the objecting coal
operators, owners or lessees, if any, and such chief, or such as
are present or represented at such hearing are unable to agree
upon a drilling location, or upon a drilling location that meets
the approval of the director, then the director shall proceed to
hear the evidence and testimony in accordance with sections oneand two, article five, chapter twenty-nine-a of this code, except
where such provisions are inconsistent with this article. The
director shall take into consideration upon his decision:
(a) (A) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, traveling, air
haulage, drainage or passageway, or to any proposed extension
thereof, in any operated or abandoned or operating coal mine, or
coal mine already surveyed and platted, but not yet being
operated;
(b) (B) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(c) (C) Whether a well can be drilled safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances, due to the extraction of coal; and
(d) (D) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal, oil and
gas.
(2) At the close of the hearing or within ten days
thereafter the director shall issue an order: stating
(a) (A) That he refuses Refusing to issue a permit;
(b) (B) That he will issue Issuing a permit for the proposed
drilling location; or
(c) (C) That he will issue Issuing a permit for a drilling
location different than that requested by the well operator.
The order shall state with particularity the reasons for the
director's order and shall be mailed by registered or certified
mail to the parties present or represented at such hearing. If
the director has ruled that he will issue a permit will be
issued, he the director shall issue a permit effective ten days
after he has mailed such order is mailed: Except that for good
cause shown, the director may stay the issuance of a permit for
a period not to exceed thirty days.
(3) If a permit is issued, the director shall indicate the
new drilling location on the plat on file with the director and
shall number and keep an index of and docket each plat and notice
mailed to him the director as provided in section twelve of this
article, and each notice mailed to him the director as provided
in section thirteen of this article, entering in such docket the
name of the well operator, and the names and addresses of all
persons notified, the dates of hearings and all actions taken by
the director, permits issued or refused, the papers filed and a
transcript of the hearing. This shall constitute a record of the
proceedings before the director and shall be open to inspection
by the public.
(e)(1) In the case, the well operator and the objecting coal
operators, owners or lessees, if any, and such chief, or such as
are present or represented at such hearing, are unable to agree
upon the conditions under which the well is to be converted as to
protect life and property, and the reasonable standards of purity
and quality of the waters of the state, or upon conditions ofconverting that meet with the approval of the director, then the
director shall proceed to hear the evidence and testimony in
accordance with sections one and two, article five, chapter
twenty-nine-a of this code, except where such provisions are
inconsistent with this article. The director shall take into
consideration upon his decision:
(a) Whether the well can be converted safely, taking into
consideration the dangers from creeps, squeezes or other
disturbances;
(b) Whether the well can be converted, taking into
consideration the reasonable standards of the purity and quality
of the waters of the state.
(2) At the close of the hearing, or within ten days
thereafter, the director shall issue an order stating the
conditions under which the conversion is to take place, providing
the well can be converted safely, taking into consideration the
dangers from creeps, squeezes or other disturbances and the
reasonable standards of purity and quality of the waters of this
state. If such converting cannot be done safely, or if the
reasonable standards of purity and quality of such waters will be
endangered, the director shall issue an order stating with
particularity the reasons for refusing to issue a permit.
(3) The order shall state with particularity the reasons for
the director's order and shall be mailed by registered or
certified mail to the parties present or represented at such
hearing. If the director has ruled that he will issue a permitwill be issued, he shall issue a such permit shall become
effective ten days after the division has mailed such order:
Except for good cause shown, the director may stay the issuance
of a permit for a period not to exceed thirty days.
(4) If a permit is issued, the director shall indicate the
well to be converted on the plat on file with the director, and
shall number and keep an index of and docket each plat and notice
mailed to him the director as provided in section fourteen of
this article, entering in such docket the name of the well
operator, and the names and addresses of all persons notified,
the dates of hearings and all actions taken by the director,
permits issued or refused, the papers filed and a transcript of
the hearings. This shall constitute a record of the proceedings
before the director and shall be open to inspection by the
public.
§22-6-17. 22B-1-17. Objections to proposed drilling of shallow
gas wells; notice to chairman chair of review board;
indication of changes on plats; issuance of permits.
When a proposed shallow well drilling site is above a seam
or seams of coal, then the owner of any such coal seam may,
within fifteen days from the receipt by the director of the plat
and notice required by section twelve of this article, file
objections in writing (forms for which will be furnished by the
director on request) to such proposed drilling with the director,
setting out therein as definitely as is reasonably possible the
ground or grounds on which such objections are based.
If any such objection is filed, or if any objection is made
by the director of the division of oil and gas, the director
shall forthwith mail, by registered or certified mail, to the
chairman chair of the review board, a notice that an objection to
the proposed drilling or deepening of a shallow well has been
filed with or made by the director, and shall enclose in such
notice a copy of all objections and of the application and plat
filed with the director in accordance with the provisions of
section twelve of this article.
Thereafter, no further action shall be taken on such
application by the director until he receives an order is
received from the review board directing the director to:
(a) Refuse a drilling permit; or
(b) Issue a drilling permit for the proposed drilling
location; or
(c) Issue a drilling permit for an alternate drilling
location different from that requested by the well operator; or
(d) Issue a drilling permit either for the proposed drilling
location or for an alternate drilling location different from
that requested by the well operator, but not allow the drilling
of the well for a period of not more than one year from the date
of issuance of such permit.
Upon receipt of such board order, the director shall
promptly undertake the action directed by the review board,
except that he the director shall not issue a drilling permit
unless all other provisions of this article (except sectionfifteen) pertaining to the application for and approval of a
drilling permit have been complied with. All permits issued by
the director pursuant to this section shall be effective ten days
after issuance unless the review board orders the director to
stay the effectiveness of a permit for a period not to exceed
thirty days from the date of issuance.
If a permit is issued, the director shall indicate the
approved drilling location on the plat filed with the director in
accordance with the provisions of section twelve of this article
and shall number and keep an index of and docket each plat and
notice mailed to him the director as provided in section twelve
of this article, and each notice mailed to him the director as
provided in section thirteen of this article, entering in such
docket the name of the well operator, and the names and addresses
of all persons notified, the dates of conferences, hearings and
all other actions taken by the director and the review board.
The director shall also prepare a record of the proceedings,
which record shall include all applications, plats and other
documents filed with the director, all notices given and proof of
service thereof, all orders issued, all permits issued and a
transcript of the hearing. The record prepared by the director
shall be open to inspection by the public.
§22-6-18. 22B-1-18. Protective devices -- When well penetrates
workable coal bed; when gas is found beneath or between
workable coal beds.
(a) When a well penetrates one or more workable coal beds,the well operator shall run and cement a string of casing in the
hole through the workable coal bed or beds in such a manner as
will exclude all oil, gas or gas pressure from the coal bed or
beds, except such oil, gas or gas pressure as may be found in
such coal bed or beds. Such string of casing shall be run to a
point at least thirty feet below the lowest workable coal bed
which the well penetrates and shall be circulated and cemented
from such point to the surface in such a manner as provided for
in reasonable rules and regulations promulgated by the director
in accordance with the provisions of chapter twenty-nine-a. After
any such string of casing has been so run and cemented to the
surface, drilling may proceed to the permitted depth.
(b) In the event that gas is found beneath a workable coal
bed before the hole has been reduced from the size it had at the
coal bed, a packer shall be placed below the coal bed, and above
the gas horizon, and the gas by this means diverted to the inside
of the adjacent string of casing through perforations made in
such casing, and through it passed to the surface without contact
with the coal bed. Should gas be found between two workable beds
of coal, in a hole, of the same diameter from bed to bed, two
packers shall be placed, with perforations in the casing between
them, permitting the gas to pass to the surface inside the
adjacent casing. In either of the cases here specified, the
strings of casing shall extend from their seats to the top of the
well.
§22-6-19. 22B-1-19. Same -- Continuance during life of well; dry
or abandoned wells.
In the event that a well becomes productive of natural gas
or petroleum, or is drilled for or converted for the introduction
of pressure, whether liquid or gas, or for the introduction of
liquid for the purposes provided for in section twenty-five of
this article or for the disposal of pollutants or the effluent
therefrom, all coal-protecting strings of casing and all water-
protecting strings of casing shall remain in place until the well
is plugged or abandoned. During the life of the well the
annular spaces between the various strings of casing adjacent to
workable beds of coal shall be kept open, and the top ends of all
such strings shall be provided with casing heads, or such other
suitable devices as will permit the free passage of gas and
prevent filling of such annular spaces with dirt or debris.
Any well which is completed as a dry hole or which is not in
use for a period of twelve consecutive months shall be presumed
to have been abandoned and shall promptly be plugged by the
operator in accordance with the provisions of this article,
unless the operator furnishes satisfactory proof to the director
that there is a bona fide future use for such well.
§22-6-20. 22B-1-20. Same -- When well is drilled through horizon
of coal bed from which coal has been removed.
When a well is drilled through the horizon of a coal bed
from which the coal has been removed, the hole shall be drilled
at least thirty feet below the coal bed, of a size sufficient to
permit the placing of a liner which shall start not less thantwenty feet beneath the horizon of the coal bed and extend not
less than twenty feet above it. Within this liner, which may be
welded to the casing to be used, shall be centrally placed the
largest sized casing to be used in the well, and the space
between the liner and casing shall be filled with cement as they
are lowered into the hole. Cement shall be placed in the bottom
of the hole to a depth of twenty feet to form a sealed seat for
both liner and casing. Following the setting of the liner,
drilling shall proceed in the manner provided above. Should it
be found necessary to drill through the horizon of two or more
workable coal beds from which the coal has been removed, such
liner shall be started not less than twenty feet below the lowest
such horizon penetrated and shall extend to a point not less than
twenty feet above the highest such horizon.
§22-6-21. 22B-1-21. Same -- Installation of fresh water casings.
When a permit has been issued for the drilling of an oil or
gas well or both, each well operator shall run and permanently
cement a string of casing in the hole through the fresh water
bearing strata in such a manner and to the extent provided for in
rules and regulations promulgated by the director in accordance
with the provisions of chapters twenty-two and twenty-nine-a of
this code this chapter.
No oil or gas well shall be drilled nearer than two hundred
feet from an existing water well or dwelling without first
obtaining the written consent of the owner of such water well or
dwelling.
§22-6-22. 22B-1-22. Well log to be filed; contents; authority
to promulgate regulations rules.
Within a reasonable time after the completion of the
drilling of a well, the well operator shall file with the
director an accurate log. Such log shall contain the character,
depth and thickness of geological formations encountered,
including fresh water, coal seams, mineral beds, brine, and oil
and gas bearing formations and such other information as the
director may require to effectuate the purposes of this chapter.
and chapter twenty-two of this code.
The director may promulgate such reasonable rules and
regulations in accordance with article three, chapter twenty-
nine-a of this code, as he may deem necessary to insure that the
character, depth and thickness of geological formations
encountered are accurately logged:
Provided,
That the director
shall not require logging by the use of an electrical logging
device.
§22-6-23. 22B-1-23. Plugging, abandonment and reclamation of
well; notice of intention; bonds; affidavit showing time and
manner.
All dry or abandoned wells or wells presumed to be abandoned
under the provisions of section nineteen of this article shall be
plugged and reclaimed in accordance with this section and the
other provisions of this article and in accordance with the rules
and regulations promulgated by the director.
Prior to the commencement of plugging operations and theabandonment of any well, the well operator shall either (a)
notify, by registered or certified mail, the director and the
coal operator operating coal seams, the coal seam owner of record
or lessee of record, if any, to whom notices are required to be
given by section twelve of this article, and the coal operators
to whom notices are required to be given by section thirteen of
this article, of its intention to plug and abandon any such well
(using such form of notice as the director may provide), giving
the number of the well and its location and fixing the time at
which the work of plugging and filling will be commenced, which
time shall be not less than five days after the day on which such
notice so mailed is received or in due course should be received
by the director, in order that a representative or
representatives of the director and such coal operator, owner or
lessee, if any, may be present at the plugging and filling of the
well:
Provided,
That whether such representatives appear or do
not appear, the well operator may proceed at the time fixed to
plug and fill the well in the manner hereinafter described, or
(b) first obtain the written approval of the director and such
coal operator, owner or lessee, if any, or (c) in the event the
well to be plugged and abandoned is one on which drilling or
reworking operations have been continuously progressing pursuant
to authorization granted by the director, first obtain the verbal
permission of the director or his the director's designated
representative to plug and abandon such well, except that the
well operator shall, within a reasonable period not to exceedfive days after the commencement of such plugging operations,
give the written notices required by subdivision (a) above.
No well may be plugged or abandoned unless prior to the
commencement of plugging operations and the abandonment of any
well the director is furnished a bond as provided in section
twenty-six of this article.
When the plugging, filling and reclamation of a well have
been completed, an affidavit, in triplicate, shall be made (on a
form to be furnished by the director) by two experienced persons
who participated in the work, the director for oil and gas or his
the director's designated representative, in which affidavit
shall be set forth the time and manner in which the well was
plugged and filled and the land reclaimed. One copy of this
affidavit shall be retained by the well operator, another (or
true copies of same) shall be mailed to the coal operator or
operators, if any, and the third to the director.
§22-6-24. 22B-1-24. Methods of plugging well.
Upon the abandonment or cessation of the operation of any
well drilled for natural gas or petroleum, or drilled or
converted for the introduction of pressure, whether liquid or
gas, or for the introduction of liquid for the purposes provided
for in section twenty-five of this article or for the disposal of
pollutants or the effluent therefrom the well operator, at the
time of such abandonment or cessation, shall fill and plug the
well in the following manner:
(a) Where the well does not penetrate workable coal beds, itshall either be filled with mud, clay or other nonporous material
from the bottom of the well to a point twenty feet above the top
of its lowest oil, gas or water-bearing stratum; or a permanent
bridge shall be anchored thirty feet below its lowest oil, gas or
water-bearing stratum, and from such bridge it shall be filled
with mud, clay or other nonporous material to a point twenty feet
above such stratum; at this point there shall be placed a plug of
cement or other suitable material which will completely seal the
hole. Between this sealing plug and a point twenty feet above
the next higher oil, gas or water-bearing stratum, the hole shall
be filled, in the manner just described; and at such point there
shall be placed another plug of cement or other suitable material
which will completely seal the hole. In like manner the hole
shall be filled and plugged, with reference to each of its oil,
gas or water-bearing strata. However, whenever such strata are
not widely separated and are free from water, they may be grouped
and treated as a single sand, gas or petroleum horizon, and the
aforesaid filling and plugging be performed as though there were
but one horizon. After the plugging of all oil, gas or water-
bearing strata, as aforesaid, a final cement plug shall be placed
approximately ten feet below the bottom of the largest casing in
the well; from this point to the surface the well shall be filled
with mud, clay or other nonporous material. In case any of the
oil or gas-bearing strata in a well shall have been shot, thereby
creating cavities which cannot readily be filled in the manner
above described, the well operator shall follow either of thefollowing methods:
(1) Should the stratum which has been shot be the lowest one
in the well, there shall be placed, at the nearest suitable
point, but not less than twenty feet above the stratum, a plug of
cement or other suitable material which will completely seal the
hole. In the event, however, that the shooting has been done
above one or more oil or gas-bearing strata in the well, plugging
in the manner specified shall be done at the nearest suitable
point, but not less than twenty feet below and above the stratum
shot, or (2), when such cavity shall be in the lowest oil or gas-
bearing stratum in the well, a liner shall be placed which shall
extend from below the stratum to a suitable point, but not less
than twenty feet above the stratum in which shooting has been
done. In the event, however, that the shooting has been done
above one or more oil or gas-bearing strata in the well, the
liner shall be so placed that it will extend not less than twenty
feet above, nor less than twenty feet below, the stratum in which
shooting has been done. Following the placing of the liner in
the manner here specified it shall be compactly filled with
cement, mud, clay or other nonporous sealing material.
(b) Where the well penetrates one or more workable coal beds
and a coal protection string of casing has been circulated and
cemented in to the surface, the well shall be filled and securely
plugged in the manner provided in subsection (a) of this section,
except that expanding cement shall be used instead of regular
hydraulic cement, to a point approximately one hundred feet belowthe bottom of the coal protection string of casing. A one
hundred foot plug of expanding cement shall then be placed in the
well so that the top of such plug is located at a point just
below the coal protection string of casing. After such plug has
been securely placed in the well, the coal protection string of
casing shall be emptied of liquid from the surface to a point one
hundred feet below the lowest workable coal bed or to the bottom
of the coal protection string of casing, whichever is shallower.
A vent or other device approved by the director shall then be
installed on the top of the coal protection string of casing in
such a manner that will prevent liquids and solids from entering
the well but will permit ready access to the full internal
diameter of the coal protection string of casing when required.
The coal protection string of casing and the vent or other device
approved by the director shall extend, when finally in place, a
distance of not less than thirty inches above ground level and
shall be permanently marked with the well number assigned by the
director;
(c) Where the well penetrates one or more workable coal beds
and a coal protection string of casing has not been circulated
and cemented in to the surface, the well shall be filled and
securely plugged in the manner provided in subsection (a) of this
section to a point fifty feet below the lowest workable coal bed.
Thereafter, a plug of cement shall be placed in the well at a
point not less than forty feet below the lowest workable coal
bed. After the cement plug has been securely placed in the well,the well shall be filled with cement to a point twenty feet above
the lowest workable coal bed. From this point the well shall be
filled with mud, clay or other nonporous material to a point
forty feet beneath the next overlying workable coal bed, if such
there be, and the well shall then be filled with cement from this
point to a point twenty feet above such workable coal bed, and
similarly, in case there are more overlying workable coal beds.
After the filling and plugging of the well to a point above the
highest workable coal bed, filling and plugging of the well shall
continue in the manner provided in subsection (a) of this section
to a point fifty feet below the surface, and a plug of cement
shall be installed from the point fifty feet below the surface to
the surface with a monument installed therein extending thirty
inches above ground level;
(d) (1) Where the well penetrates one or more workable coal
beds and a coal protection string of casing has not been
circulated and cemented in to the surface, a coal operator or
coal seam owner may request that the well be plugged in the
manner provided in subdivision (3) of this subsection rather than
by the method provided in subsection (c) of this section. Such
request (forms for which shall be provided by the director) must
be filed in writing with the director prior to the scheduled
plugging of the well, and must include the number of the well to
be plugged and the name and address of the well operator. At the
time such request is filed with the director, a copy of such
request must also be mailed by registered or certified mail tothe well operator named in the request.
(2) Upon receipt of such request, the director shall issue
an order staying the plugging of the well and shall promptly
determine the cost of plugging the well in the manner provided in
subdivision (3) of this subsection and the cost of plugging the
well in the manner provided in subsection (c) of this section.
In making such determination, the director shall take into
consideration any agreement previously made between the well
operator and the coal operator or coal seam owner making the
request. If the director determines that the cost of plugging
the well in the manner provided in subsection (c) of this section
exceeds the cost of plugging the well in the manner provided in
subdivision (3) of this subsection, the director shall grant the
request of the coal operator or owner and shall issue an order
requiring the well operator to plug the well in the manner
provided in subdivision (3) of this subsection. If the director
determines that the cost of plugging the well in the manner
provided in subsection (c) of this section is less than the cost
of plugging the well in the manner provided in subdivision (3) of
this subsection, the director shall request payment into escrow
of the difference between the determined costs by the coal
operator or coal seam owner making the request. Upon receipt of
satisfactory notice of such payment, or upon receipt of notice
that the well operator has waived such payment, the director
shall grant the request of the coal operator or coal seam owner
and shall issue an order requiring the well operator to plug thewell in the manner provided in subdivision (3) of this
subsection. If satisfactory notice of payment into escrow, or
notice that the well operator has waived such payment, is not
received by the director within fifteen days after the request
for payment into escrow, the director shall issue an order
permitting the plugging of the well in the manner provided in
subsection (c) of this section. Copies of all orders issued by
the director shall be sent by registered or certified mail to the
coal operator or coal seam owner making the request and to the
well operator. When the escrow agent has received certification
from the director of the satisfactory completion of the plugging
work and the reimbursable extra cost thereof (that is, the
difference between the director's determination of plugging cost
in the manner provided in subsection (c) of this section and the
well operator's actual plugging cost in the manner provided in
subdivision (3) of this subsection), he the escrow agent shall
pay the reimbursable sum to the well operator or his the well
operator's nominee from the payment into escrow to the extent
available. The amount by which the payment into escrow exceeds
the reimbursable sum plus the escrow agent's fee, if any, shall
be repaid to the coal owner. If the amount paid to the well
operator or his the well operator's nominee is less than the
actual reimbursable sum, the escrow agent shall inform the coal
owner, who shall pay the deficiency to the well operator or his
the well operator's nominee within thirty days. If the coal
operator breaches this duty to pay the deficiency, the welloperator shall have a right of action and be entitled to recover
damages as if for wrongful conversion of personalty, and his
reasonable attorney fees.
(3) Where a request of a coal operator or coal seam owner
filed pursuant to subdivision (1) of this subsection has been
granted by the director, the well shall be plugged in the manner
provided in subsection (a) of this section, except that expanding
cement shall be used instead of regular hydraulic cement, to a
point approximately two hundred feet below the lowest workable
coal bed. A one hundred foot plug of expanding cement shall
then be placed in the well beginning at the point approximately
two hundred feet below the lowest workable coal bed and extending
to a point approximately one hundred feet below the lowest
workable coal bed. A string of casing with an outside diameter
no less than four and one-half inches shall then be run into the
well to a point approximately one hundred feet below the lowest
workable coal bed and such string of casing shall be circulated
and cemented in to the surface. The casing shall then be
emptied of liquid from a point approximately one hundred feet
below the lowest workable coal bed to the surface, and a vent or
other device approved by the director shall be installed on the
top of the string of casing in such a manner that it will prevent
liquids and solids from entering the well but will permit ready
access to the full internal diameter of the coal protection
string of casing when required. The string of casing and the
vent or other device approved by the director shall extend, whenfinally in place, a distance of no less than thirty inches above
ground level and shall be permanently marked with the well number
assigned by the director. Notwithstanding the foregoing
provisions of this subdivision, if under particular circumstances
a different method of plugging is required to obtain the approval
of another governmental agency for the safe mining through of
said well, the director may approve such different method of
plugging if he the director finds the same to be as safe for
mining through and otherwise adequate to prevent gas or other
fluid migration from the oil and gas reservoirs as the method
above specified.
(e) Any person may apply to the director for an order to
clean out and replug a previously plugged well in a manner which
will permit the safe mining through of such well. Such
application shall be filed with the director and shall contain
the well number, a general description of the well location, the
name and address of the owner of the surface land upon which the
well is located, a copy of or record reference to a deed, lease
or other document which entitles the applicant to enter upon the
surface land, a description of the methods by which the well was
previously plugged, and a description of the method by which such
applicant proposes to clean out and replug the well. At the time
an application is filed with the director, a copy shall be mailed
by registered or certified mail to the owner or owners of the
land, and the oil and gas lessee of record, if any, of the site
land upon which the well is located. If no objection to thereplugging of the well is filed by any such landowner or oil and
gas lessee within thirty days after the filing of the
application, and if the director determines that the method
proposed for replugging the well will permit the safe mining
through of such well, the director shall grant the application by
an order authorizing the replugging of the well. Such order
shall specify the method by which the well shall be replugged,
and copies thereof shall be mailed by certified or registered
mail to the applicant and to the owner or owners of the land, and
the oil and gas lessee, if any, of the site upon which such well
is located. If any such landowner or oil and gas lessee objects
to the replugging of the well, the director shall notify the
applicant of such objection. Thereafter, the director shall
schedule a hearing to consider the objection, which hearing shall
be held after notice by registered or certified mail to the
objectors and the applicant. After consideration of the evidence
presented at the hearing, the director shall issue an order
authorizing the replugging of the well if he the director
determines that replugging of the well will permit the safe
mining through of such well. Such order shall specify the manner
in which the well shall be replugged and copies thereof shall be
sent by registered or certified mail to the applicant and
objectors. The director shall issue an order rejecting the
application if the director he determines that the proposed
method for replugging the well will not permit the safe mining
through of such well;
(f) All persons adversely affected, by a determination or
order of the director issued pursuant to the provisions of this
section shall be entitled to judicial review in accordance with
the provisions of articles five and six, chapter twenty-nine-a of
this code.
§22-6-25. 22B-1-25. Introducing liquid pressure into producing
strata to recover oil contained therein.
The owner or operator of any well or wells which produce oil
or gas may allow such well or wells to remain open for the
purpose of introducing water or other liquid pressure into and
upon the producing strata for the purpose of recovering the oil
contained therein, and may drill additional wells for like
purposes, provided that the introduction of such water or other
liquid pressure shall be controlled as to volume and pressure and
shall be through casing or tubing which shall be so anchored and
packed that no water-bearing strata or other oil, or gas-bearing
sand or producing stratum, above or below the producing strata
into and upon which such pressure is introduced, shall be
affected thereby, fulfilling requirements as set forth under
section fourteen.
§22-6-26. 22B-1-26. Performance bonds; corporate surety or other
security.
(a) No permit shall be issued pursuant to this article
unless a bond as described in subsection (d) of this section
which is required for a particular activity by this article is or
has been furnished as provided in this section.
(b) A separate bond as described in subsection (d) of this
section may be furnished for a particular oil or gas well, or for
a particular well for the introduction of liquids for the
purposes provided in section twenty-five of this article. A
separate bond as described in subsection (d) of this section
shall be furnished for each well drilled or converted for the
introduction of liquids for the disposal of pollutants or the
effluent therefrom. Every such bond shall be in the sum of ten
thousand dollars, payable to the state of West Virginia,
conditioned on full compliance with all laws, rules and
regulations relating to the drilling, redrilling, deepening,
casing and stimulating of oil and gas wells (or, if applicable,
with all laws, rules and regulations relating to drilling or
converting wells for the introduction of liquids for the purposes
provided for in section twenty-five of this article or for the
introduction of liquids for the disposal of pollutants or the
effluent therefrom) and to the plugging, abandonment and
reclamation of wells and for furnishing such reports and
information as may be required by the director.
(c) When an operator makes or has made application for
permits to drill or stimulate a number of oil and gas wells or to
drill or convert a number of wells for the introduction of
liquids for the purposes provided in section twenty-five of this
article, the operator may in lieu of furnishing a separate bond
furnish a blanket bond in the sum of fifty thousand dollars,
payable to the state of West Virginia, and conditioned asaforesaid in subsection (b) of this section.
(d) The form of the bond required by this article shall be
approved by the director and may include, at the option of the
operator, surety bonding, collateral bonding (including cash and
securities) letters of credit, establishment of an escrow
account, self-bonding or a combination of these methods. If
collateral bonding is used, the operator may elect to deposit
cash, or collateral securities or certificates as follows: Bonds
of the United States or its possessions, of the federal land
bank, or the homeowners' 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
division. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the amount of the
bond. The director shall, upon receipt of any such deposit of
cash, securities or certificates, promptly 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 of which the deposit is made when the permit is
issued. The operator shall be entitled to all interest and
income earned on the collateral securities filed by such
operator. The operator making the deposit shall be entitled from
time to time to receive from the state treasurer, upon the
written approval of the director, the whole or any portion of anycash, securities or certificates so deposited, upon depositing
with him the treasurer in lieu thereof, cash or other securities
or certificates of the classes herein specified having value
equal to or greater than the amount of the bond.
(e) When an operator has furnished a separate bond from a
corporate bonding or surety company to drill, fracture or
stimulate an oil or gas well and the well produces oil or gas or
both, its operator may deposit with the director cash from the
sale of the oil or gas or both until the total deposited is ten
thousand dollars. When the sum of the cash deposited is ten
thousand dollars, the separate bond for the well shall be
released by the director. Upon receipt of such cash, the
director shall immediately deliver the same to the treasurer of
the state of West Virginia. The treasurer shall hold such cash
in the name of the state in trust for the purpose for which the
bond was furnished and the deposit was made. The operator shall
be entitled to all interest and income which may be earned on the
cash deposited so long as the operator is in full compliance with
all laws, rules and regulations relating to the drilling,
redrilling, deepening, casing, plugging, abandonment and
reclamation of the well for which the cash was deposited and so
long as he the operator has furnished all reports and information
as may be required by the director. If the cash realized from
the sale of oil or gas or both from the well is not sufficient
for the operator to deposit with the director the sum of ten
thousand dollars within one year of the day the well startedproducing, the corporate or surety company which issued the bond
on the well may notify the operator and the director of its
intent to terminate its liability under its bond. The operator
then shall have thirty days to furnish a new bond from a
corporate bonding or surety company or collateral securities or
other forms of security, as provided in the next preceding
paragraph of this section with the director. If a new bond or
collateral securities or other forms of security are furnished by
the operator, the liability of the corporate bonding or surety
company under the original bond shall terminate as to any acts
and operations of the operator occurring after the effective date
of the new bond or the date the collateral securities or other
forms of security are accepted by the treasurer of the state of
West Virginia. If the operator does not furnish a new bond or
collateral securities or other forms of security, as provided in
the next preceding paragraph of this section, with the director,
he the operator shall immediately plug, fill and reclaim the well
in accordance with all of the provisions of law and rules and
regulations applicable thereto. In such case, the corporate or
surety company which issued the original bond shall be liable for
any plugging, filling or reclamation not performed in accordance
with such laws and rules. and regulations
(f) Any separate bond furnished for a particular well prior
to the effective date of this chapter shall continue to be valid
for all work on the well permitting prior to the effective date
of this chapter eleventh day of July, one thousand nine hundredeighty-five; but no permit shall hereafter be issued on such a
particular well without a bond complying with the provisions of
this section. Any blanket bond furnished prior to the effective
date of this chapter eleventh day of July, one thousand nine
hundred eighty-five shall be replaced with a new blanket bond
conforming to the requirements of this section, at which time the
prior bond shall be discharged by operation of law; and if the
director determines that any operator has not furnished a new
blanket bond, the director shall notify the operator by certified
mail, return receipt requested, of the requirement for a new
blanket bond; and failure to submit a new blanket bond within
sixty days after receipt of the notice from the director shall
work a forfeiture under subsection (i) of this section of the
blanket bond furnished prior to the effective date of this
chapter eleventh day of July, one thousand nine hundred eighty-
five.
(g) Any such bond shall remain in force until released by
the director and the director shall release the same when he is
satisfied upon satisfaction that the conditions thereof have been
fully performed. Upon the release of any such bond, any cash or
collateral securities deposited shall be returned by the director
to the operator who deposited same.
(h) Whenever the right to operate a well is assigned or
otherwise transferred, the assignor or transferor shall notify
the department of the name and address of the assignee or
transferee by certified mail, return receipt requested, not laterthan five days after the date of the assignment or transfer. No
assignment or transfer by the owner shall relieve the assignor or
transferor of the obligations and liabilities unless and until
the assignee or transferee files with the department the well
name and the permit number of the subject well, the county and
district in which the subject well is located, the names and
addresses of the assignor or transferor, and assignee or
transferee, a copy of the instrument of assignment or transfer
accompanied by the applicable bond, cash, collateral security or
other forms of security, described in section twelve, fourteen,
twenty-three or twenty-six of this article, and the name and
address of the assignee's or transferee's designated agent if
assignee or transferee would be required to designate such an
agent under section six of this article, if assignee or
transferee were an applicant for a permit under said section six.
Every well operator required to designate an agent under this
section shall within five days after the termination of such
designation notify the department of such termination and
designate a new agent.
Upon compliance with the requirements of this section by
assignor or transferor and assignee or transferee, the director
shall release assignor or transferor from all duties and
requirements of this article, and the deputy director shall give
written notice of release unto assignor or transferor of any bond
and return unto assignor or transferor any cash or collateral
securities deposited pursuant to section twelve, fourteen,twenty-three or twenty-six of this article.
(i) If any of the requirements of this article or rules and
regulations promulgated pursuant thereto or the orders of the
director have not been complied with within the time limit set by
the violation notice as defined in sections three, four and five
of this article, the performance bond shall then be forfeited.
(j) When any bond is forfeited pursuant to the provisions
of this article or rules and regulations promulgated pursuant
thereto, the director shall give notice to the attorney general
who shall collect the forfeiture without delay.
(k) All forfeitures shall be deposited in the treasury of
the state of West Virginia in the special reclamation fund as
defined in section twenty-nine of this article.
§22-6-27. 22B-1-27. Cause of action for damages caused by
explosions.
Any person suffering personal injury or property damage due
to any explosion caused by any permittee, shall have a cause of
action against such permittee for three years after the explosion
regardless of whether when the explosion occurred. before or
after the effective date of this article.
§22-6-28. 22B-1-28. Supervision by director over drilling and
reclamation operations; complaints; hearings; appeals.
(a) The director shall exercise supervision over the
drilling, casing, plugging, filling and reclamation of all wells
and shall have such access to the plans, maps and other records
and to the properties of the well operators as may be necessaryor proper for this purpose, and, either as the result of its own
investigations or pursuant to charges made by any well operator
or coal operator, the director may himself enter, or shall permit
any aggrieved person to file before him the director, a formal
complaint charging any well operator with not drilling or casing,
or not plugging or filling, or reclaiming any well in accordance
with the provisions of this article, or to the order of the
director. True copies of any such complaints shall be served
upon or mailed by registered mail to any person so charged, with
notice of the time and place of hearing, of which the operator or
operators so charged shall be given at least five days' notice.
At the time and place fixed for hearing, full opportunity shall
be given any person so charged or complaining to be heard and to
offer such evidence as desired, and after a full hearing, at
which the director may offer in evidence the results of such
investigations as he the director may have made, the director
shall make his findings of fact and enter such order as in his
the director's judgment is just and right and necessary to secure
the proper administration of this article, and if he the director
deems necessary, restraining the well operator from continuing to
drill or case any well or from further plugging, filling or
reclaiming the same, except under such conditions as the director
may impose in order to ensure a strict compliance with the
provisions of this article relating to such matters.
(b) Except as provided in subsection (c) of this section,
any well operator or coal operator adversely affected by a finaldecision or order of the director, may appeal in the manner
prescribed in section four, article five, chapter twenty-nine-a
of this code.
(c) Any person having an interest which is or may be
adversely affected, or who is aggrieved by an order of the
director, or by the issuance or denial of a permit, or by the
permit's terms and conditions, where the subject to such order,
permits or terms and conditions is solid waste, may appeal to the
environmental quality board in the same manner as appeals are
taken under the solid waste management act, section sixteen,
article fifteen of this chapter. For the purpose of this
subsection the term solid waste has the same meaning as would be
given that term pursuant to section two, article fifteen of this
chapter but for the exemption related to waste or material
regulated by this chapter, chapter twenty-two-b or chapter
twenty-two-c of this code.
§22-6-29. 22B-1-29. Operating permit and processing fund;
special reclamation fund; fees.
(a) There is hereby created continued within the treasury of
the state of West Virginia a the special fund to be known as the
oil and gas operating permit and processing fund, and the
director shall deposit with the state treasurer to the credit of
such special fund all fees collected under the provisions of
subdivisions twelve and thirteen subdivision ten, subsection (c),
section two of this article.
The oil and gas operating permit and processing fund shallbe administered by the director for the purposes of carrying out
the provisions of this chapter.
The director shall make an annual report to the governor and
to the Legislature on the use of the fund, and shall make a
detailed accounting of all expenditures from the oil and gas
operating permit and processing fund.
(b) In addition to any other fees required by the provisions
of this article, every applicant for a permit to drill a well
shall, before the permit is issued, pay to the director a special
reclamation fee of one hundred dollars for each well to be
drilled. Such special reclamation fee shall be paid at the time
the application for a drilling permit is filed with the director
and the payment of such reclamation fee shall be a condition
precedent to the issuance of said permit.
There is hereby created continued within the treasury of the
state of West Virginia a the special fund to be known as the oil
and gas reclamation fund, and the director shall deposit with the
state treasurer to the credit of such special fund all special
reclamation fees collected. The proceeds of any bond forfeited
under the provisions of this article shall inure to the benefit
of and shall be deposited in such oil and gas reclamation fund.
The oil and gas reclamation fund shall be administered by
the director. The director shall cause to be prepared plans for
the reclaiming and plugging of abandoned wells which have not
been reclaimed or plugged or which have been improperly reclaimed
or plugged. The director, as funds become available in the oiland gas reclamation fund, shall reclaim and properly plug wells
in accordance with said plans and specifications and in
accordance with the provisions of this article relating to the
reclaiming and plugging of wells and all rules and regulations
promulgated thereunder. Such funds may also be utilized for the
purchase of abandoned wells, where such purchase is necessary,
and for the reclamation of such abandoned wells, and for any
engineering, administrative and research costs as may be
necessary to properly effectuate the reclaiming and plugging of
all wells, abandoned or otherwise.
The director may avail himself the division of any federal
funds provided on a matching basis that may be made available for
the purpose of reclaiming or plugging any wells.
The director shall make an annual report to the governor and
to the Legislature setting forth the number of wells reclaimed or
plugged through the use of the oil and gas reclamation fund
provided for herein. Such report shall identify each such
reclamation and plugging project, state the number of wells
reclaimed or plugged thereby, show the county wherein such wells
are located and shall make a detailed accounting of all
expenditures from the oil and gas reclamation fund.
All wells shall be reclaimed or plugged by contract entered
into by the director on a competitive bid basis as provided for
under the provisions of article three, chapter five-a of this
code and the rules and regulations promulgated thereunder.
§22-6-30. 22B-1-30. Reclamation requirements.
The operator of a well shall reclaim the land surface within
the area disturbed in siting, drilling, completing or producing
the well in accordance with the following requirements:
(a) Within six months after the completion of the drilling
process, the operator shall fill all the pits for containing
muds, cuttings, salt water and oil that are not needed for
production purposes, or are not required or allowed by state or
federal law or rule and remove all concrete bases, drilling
supplies and drilling equipment. Within such period, the operator
shall grade or terrace and plant, seed or sod the area disturbed
that is not required in production of the well where necessary to
bind the soil and prevent substantial erosion and sedimentation.
No pit may be used for the ultimate disposal of salt water.
Salt water and oil shall be periodically drained or removed, and
properly disposed of, from any pit that is retained so the pit is
kept reasonably free of salt water and oil.
(b) Within six months after a well that has produced oil or
gas is plugged, or after the plugging of a dry hole, the operator
shall remove all production and storage structures, supplies and
equipment, and any oil, salt water and debris, and fill any
remaining excavations. Within such period, the operator shall
grade or terrace and plant, seed or sod the area disturbed where
necessary to bind the soil and prevent substantial erosion and
sedimentation.
The director may, upon written application by an operator
showing reasonable cause, extend the period within whichreclamation shall be completed, but not to exceed a further six-
month period.
If the director refuses to approve a request for extension,
he shall do so the refusal shall be by order.
(c) It shall be the duty of an operator to commence the
reclamation of the area of land disturbed in siting, drilling,
completing or producing the well in accordance with soil erosion
and sediment control plans approved by the director or his the
director's designate.
(d) The director shall promulgate rules setting forth
requirements for the safe and efficient installation and burying
of all production and gathering pipelines where practical and
reasonable except that such rules shall not apply to those
pipelines regulated by the public service commission.
§22-6-31. 22B-1-31. Preventing waste of gas; plan of operation
required for wasting gas in process of producing oil;
rejection thereof.
Natural gas shall not be permitted to waste or escape from
any well or pipeline, when it is reasonably possible to prevent
such waste, after the owner or operator of such gas, or well, or
pipeline, has had a reasonable length of time to shut in such gas
in the well, or make the necessary repairs to such well or
pipeline to prevent such waste:
Provided,
That (a) if, in the
process of drilling a well for oil or gas, or both, gas is found
in such well, and the owner or operator thereof desires to
continue to search for oil or gas, or both, by drilling deeper insearch of lower oil or gas-bearing strata, or (b) if it becomes
necessary to make repairs to any well producing gas, commonly
known as "cleaning out," and if in either event it is necessary
for the gas in such well to escape therefrom during the process
of drilling or making repairs, as the case may be, then the owner
or operator of such well shall prosecute such drilling or repairs
with reasonable diligence, so that the waste of gas from the well
shall not continue longer than reasonably necessary, and if,
during the progress of such deeper drilling or repairs, any
temporary suspension thereof becomes necessary, the owner or
operator of such well shall use all reasonable means to shut in
the gas and prevent its waste during such temporary suspension:
Provided, however,
That in all cases where both oil and gas are
found and produced from the same oil and gas-bearing stratum, and
where it is necessary for the gas therefrom to waste in the
process of producing the oil, the owner or operator shall use all
reasonable diligence to conserve and save from waste so much of
such gas as it is reasonably possible to save, but in no case
shall such gas from any well be wasted in the process of
producing oil therefrom until the owner or operator of such well
shall have filed with the director a plan of operation for said
well showing, among other things, the gas-oil production ratio
involved in such operation, which plan shall govern the operation
of said well unless the director shall, within ten days from the
date on which such plan is submitted to the director, make a
finding that such plan fails, under all the facts andcircumstances, to propose the exercise of all reasonable
diligence to conserve and save from waste so much of such gas as
it is reasonably possible to save, in which event production of
oil at such well by the wasting of gas shall cease and determine
desist until a plan of operation is approved by the director.
Successive plans of operation may be filed by the owner or
operator of any such well with the director.
§22-6-32. 22B-1-32. Right of adjacent owner or operator to
prevent waste of gas; recovery of cost.
If the owner or operator of any such well shall neglect or
refuse to drill, case and equip, or plug and abandon, or shut in
and conserve from waste the gas produced therefrom, as required
to be done and performed by the preceding sections of this
article, for a period of twenty days after a written notice so to
do, which notice may be served personally upon the owner or
operator, or may be posted in a conspicuous place at or near the
well, it shall be lawful for the owner or operator of any
adjacent or neighboring lands or the director to enter upon the
premises where such well is situated and properly case and equip
such well, or, in case the well is to be abandoned, to properly
plug and abandon it, or in case the well is wasting gas, to
properly shut it in and make such needed repairs to the well to
prevent the waste of gas, in the manner required to be done by
the preceding sections of this article; and the reasonable cost
and expense incurred by an owner or operator or the director in
so doing shall be paid by the owner or operator of such well andmay be recovered as debts of like amount are by law recoverable.
The director may utilize funds and procedures established
pursuant to section twenty-nine of this article for the purposes
set out in the section. Amounts recovered by the director
pursuant to this section shall be deposited in the oil and gas
reclamation fund established pursuant to section twenty-nine of
this article.
§22-6-33. 22B-1-33. Restraining waste.
Aside from and in addition to the imposition of any
penalties under this article, it shall be the duty of any circuit
court in the exercise of its equity jurisdiction to hear and
determine any bill or bills in equity action which may be filed
to restrain the waste of natural gas in violation of this
article, and to grant relief by injunction or by other decrees or
orders, in accordance with the principles and practice in equity.
The plaintiff in such bill action shall have sufficient standing
to maintain the same if he the plaintiff shall aver and prove
that he the plaintiff is interested in the lands situated within
the distance of one mile from such well, either as an owner of
such land, or of the oil or gas, or both, thereunder, in fee
simple, or as an owner of leases thereof or of rights therein for
the production of oil and gas or either of them or as the
director.
§22-6-34. 22B-1-34. Offenses; penalties.
(a) Any person or persons, firm, partnership, partnership
association or corporation who willfully violates any provisionof this article or any rule or order promulgated hereunder shall
be subject to a civil penalty not exceeding two thousand five
hundred dollars. Each day a violation continues after notice by
the division of oil and gas constitutes a separate offense. The
penalty shall be recovered by a civil action brought by the
division, of oil and gas in the name of the state, before the
circuit court of the county in which the subject well or facility
is located. All such civil penalties collected shall be
credited to the general fund of the state.
(b) Any person or persons, firm, partnership, partnership
association or corporation willfully violating any of the
provisions of this article which prescribe the manner of drilling
and casing or plugging and filling any well, or which prescribe
the methods of conserving gas from waste, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by
a fine not exceeding five thousand dollars, or imprisonment in
jail for not exceeding twelve months, or both, in the discretion
of the court, and prosecutions under this section may be brought
in the name of the state of West Virginia in the court exercising
criminal jurisdiction in the county in which the violation of
such provisions of the article or terms of such order was
committed, and at the instance and upon the relation of any
citizens of this state.
§22-6-35. 22B-1-35. Civil action for contamination or
deprivation of fresh water source or supply; presumption.
In any action for contamination or deprivation of a freshwater source or supply within one thousand feet of the site of
drilling for an oil or gas well, there shall be a rebuttable
presumption that such drilling, and such oil or gas well, or
either, was the proximate cause of the contamination or
deprivation of such fresh water source or supply.
§22-6-36. 22B-1-36. Declaration of oil and gas notice by owners
and lessees of coal seams.
For purposes of notification under this article, any owner
or lessee of coal seams shall file a declaration of his the
owner's or lessee's interest in such coal seams with the clerk of
the county commission in the county where such coal seams are
located. Said clerk shall file and index such declaration in
accordance with section two, article one, chapter thirty-nine of
this code, and shall index the name of the owner or lessee of
such coal seams in the grantor index of the record maintained for
the indexing of leases.
The declaration shall entitle such owner or lessee to the
notices provided in sections twelve, thirteen, fourteen and
twenty-three of this article:
Provided,
That the declaring owner
shall be the record owner of the coal seam, and the declaring
lessee shall be the record lessee with his the owner's or
lessee's source or sources of title recorded prior to recording
such lessee's declaration.
The declaration shall be acknowledged by such owner or
lessee, and in the case of a lessee, may be a part of the coal
lease under which the lessee claims. Such declaration may be inthe following language:
"DECLARATION OF OIL AND GAS NOTICE"
The undersigned hereby declares:
(1) The undersigned is the ('owner' or 'lessee') of one or
more coal seams or workable coal beds as those terms are defined
in section one of this article. two, chapter twenty-two-a of the
code of West Virginia
(2) The coal seam(s) or workable coal bed(s) owned or leased
partly or wholly by the undersigned lie(s) under the surface of
lands described as follows:
(Here insert a description legally adequate for a deed,
whether by metes and bounds or other locational description, or
by title references such as a book and page legally sufficient to
stand in lieu of a locational description.)
(3) The undersigned desires to be given all notices of oil
and gas operations provided by sections twelve, thirteen,
fourteen and twenty-three, of this article, one chapter twenty-
two-b of the code of West Virginia, addressed as follows:
(Here insert the name and mailing address of the undersigned
owner or lessee.)
_______________________________
(Signature)
(Here insert an acknowledgment legally adequate for a
deed)."
The benefits of the foregoing declaration shall be personal
to the declaring owner or lessee, and not transferable orassignable in any way.
§22-6-37. 22B-1-37. Rules, regulations, orders and permits
remain in effect.
The rules and regulations promulgated and all orders and
permits in effect upon the effective date of this chapter article
pursuant to the provisions of former article four, chapter
twenty-two, article one, chapter twenty-two-b of this code, shall
remain in full force and effect as if such rules, regulations,
orders and permits were adopted by the director established in
this chapter but all such rules, regulations, orders and permits
shall be subject to review by the director to ensure they are
consistent with the purposes and policies set forth in this
chapter.
§22-6-38. 22B-1-38. Application of article; exclusions.
This article shall not apply to or affect any well work
permitted prior to the effective date of this chapter article
under former article four, chapter twenty-two of this code,
article one, chapter twenty-two-b of this code, unless such well
is, after completion, whether such completion is prior to or
subsequent to the effective date of this chapter article,
deepened subsequent to the effective date of this chapter article
through another coal seam to another formation above the top of
the uppermost member of the "Onondaga Group" or to a depth of
less than six thousand feet, whichever is shallower.
§22-6-39. 22B-1-39. Injunctive relief.
(a) In addition to other remedies, and aside from variouspenalties provided by law, whenever it appears to the director
that any person is violating or threatening to violate any
provision of this article, any order or final decision of the
director, or any lawful rule or regulation promulgated hereunder,
the director may apply in the name of the state to the circuit
court of the county in which the violations or any part thereof
has occurred, is occurring or is about to occur, or the judge
thereof in vacation, for an injunction against such persons and
any other other persons who have been, are or are about to be
involved in any practices, acts or admissions so in violation,
enjoining such person or persons from any violation or
violations. Such application may be made and prosecuted to
conclusion, whether or not any violation or violations have
resulted or shall result, in prosecution or conviction under the
provisions of this article.
(b) Upon application by the director, the circuit courts of
this state may, by mandatory or prohibitory injunction compel
compliance with the provisions of this article, and all orders
and final decisions of the director. The court may issue a
temporary injunction in any case pending a decision on the merits
of any application filed. Any other section of this code to the
contrary notwithstanding, the state shall not be required to
furnish bond or other undertaking as a prerequisite to obtaining
mandatory, prohibitory or temporary injunctive relief under the
provisions of this article.
(c) The judgment of the circuit court upon applicationpermitted by the provisions of this section, shall be final
unless reversed, vacated or modified on appeal to the supreme
court of appeals. Any such appeal shall be sought in the manner
and within the time provided by law for appeals from circuit
courts in other civil actions.
(d) The director shall be represented in all such
proceedings by the attorney general or his the attorney general's
assistants or in such proceedings in the circuit courts by the
prosecuting attorney of the several counties as well, all without
additional compensation. The director, with the written approval
of the attorney general, may employ special counsel to represent
the director in any such proceedings.
(e) If the director shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of any
provision of this article, any order or final decision of the
director, or any rules or regulations promulgated hereunder,
within ten days after receipt of a written request to do so by
any well operator, coal operator, operating coal seams beneath
the tract of land, or the coal seam owner or lessee, if any, if
said owner or lessee is not yet operating said coal seams beneath
said tract of land, adversely affected by such violation or
threatened violation, the person making such request may apply in
his on their own behalf for an injunction to enjoin such
violation or threatened violation in any court in which the
director might have brought suit. The director shall be made
party defendant in such application in addition to the person orpersons violating or threatening to violate any provisions of
this article, any final order or decision of the director, or any
rule or regulation promulgated hereunder. The application shall
proceed and injunctive relief may be granted in the same manner
as if the application had been made by the director: Except that
the court may require a bond or other undertaking from the
plaintiff.
§22-6-40. 22B-1-40. Appeal from order of issuance or refusal of
permit to drill or fracture; procedure.
Any party to the proceeding under section fifteen of this
article or section seven, article seven eight, chapter twenty-two
twenty-two-c of this code, adversely affected by the issuance of
a drilling permit or to the issuance of a fracturing permit or
the refusal of the director to grant a drilling permit or
fracturing permit is entitled to judicial review thereof. All of
the pertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in extenso in this section.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
§22-6-41. 22B-1-41. Appeal from order of issuance or refusal of
permit for drilling location for introduction of liquids or
waste or from conditions of converting procedure.
Any party to the proceedings under section sixteen of this
article adversely affected by the order of issuance of a drilling
permit or to the issuance of a fracturing permit or the refusal
of the director to grant a drilling permit or fracturing permit
is entitled to judicial review thereof. All of the pertinent
provisions of section four, article five, chapter twenty-nine-a
of this code shall apply to and govern such judicial review with
like effect as if the provisions of section four were set forth
in extenso in this section.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
ARTICLE 2. 7. OIL AND GAS PRODUCTION DAMAGE COMPENSATION.
§22-7-1. 22B-2-1. Legislative findings and purpose.
(a) The Legislature finds the following:
(1) Exploration for and development of oil and gas reserves
in this state must coexist with the use, agricultural or
otherwise, of the surface of certain land and that each
constitutes a right equal to the other.
(2) Modern methods of extraction of oil and gas require the
use of substantially more surface area than the methods commonly
in use at the time most mineral estates in this state were
severed from the fee tract; and, specifically, the drilling of
wells by the rotary drilling method was virtually unknown in this
state prior to the year one thousand nine hundred sixty, so thatno person theretofore severing his their oil and gas from his
their surface land and no person theretofore leasing his their
oil and gas with the right to explore for and develop the same
could reasonably have known nor could it have been reasonably
contemplated that rotary drilling operations imposed a greater
burden on the surface than the cable tool drilling method
heretofore employed in this state; and since the year one
thousand nine hundred sixty, the use of rotary drilling methods
has spread slowly but steadily in this state, with concomitant
public awareness of its impact on surface land; and that the
public interest requires that the surface owner be entitled to
fair compensation for the loss of the use of his surface area
during the rotary drilling operation, but recognizing the right
of the oil and gas operator to conduct rotary drilling operations
as allowed by law.
(3) Prior to the first day of January, one thousand nine
hundred sixty, the rotary method of drilling oil or gas wells was
virtually unknown to the surface owners of this state nor was
such method reasonably contemplated during the negotiations which
occasioned the severance of either oil or gas from the surface.
(4) The Legislature further finds and creates a rebuttable
presumption that even after the thirty-first day of December, one
thousand nine hundred fifty-nine, and prior to the ninth day of
June, one thousand nine hundred eighty-three, it was unlikely
that any surface owner knew or should have known of the rotary
method of drilling oil or gas wells, but, that such knowledge waspossible and that the rotary method of drilling oil or gas wells
could have, in some instances, been reasonably contemplated by
the parties during the negotiations of the severance of the oil
and gas from the surface. This presumption against knowledge of
the rotary drilling method may be rebutted by a clear
preponderance of the evidence showing that the surface owner or
his the surface owner's predecessor of record did in fact know of
the rotary drilling method at the time he the owner or his the
owner's predecessor executed a severance deed or lease of oil and
gas and that he the owner or owner's predecessor fairly
contemplated the rotary drilling method and received compensation
for the same.
(b) Any surface owner entitled to claim any finding or any
presumption which is not rebutted as provided in this section
shall be entitled to the compensation and damages of this
article.
(c) The Legislature declares that the public policy of this
state shall be that the compensation and damages provided in this
article for surface owners may not be diminished by any provision
in a deed, lease or other contract entered into after the ninth
day of June, one thousand nine hundred eighty-three.
(d) It is the purpose of this article to provide
constitutionally permissible protection and compensation to
surface owners of lands on which oil and gas wells are drilled
from the burden resulting from drilling operations commenced
after the ninth day of June, one thousand nine hundred eighty-three. This article is to be interpreted in the light of the
legislative intent expressed herein. This article shall be
interpreted to benefit surface owners, regardless of whether the
oil and gas mineral estate was separated from the surface estate
and regardless of who executed the document which gave the oil
and gas developer the right to conduct drilling operations on the
land. Section four of this article shall be interpreted to
benefit all persons.
§22-7-2. 22B-2-2. Definitions.
(a) In this article, unless the context or subject matter
otherwise requires:
(1) "Agricultural production" means the production of any
growing grass or crop attached to the surface of the land,
whether or not the grass or crop is to be sold commercially, and
the production of any farm animals, whether or not the animals
are to be sold commercially;
(2) "Drilling operations" means the actual drilling or
redrilling of an oil or gas well commenced subsequent to the
ninth day of June, one thousand nine hundred eighty-three, and
the related preparation of the drilling site and access road,
which requires entry, upon the surface estate;
(3) "Oil and gas developer" means the person who secures the
drilling permit required by article one six of this chapter;
(4) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or otherrepresentative of any kind, and includes any government or any
political subdivision or agency thereof;
(5) "Surface estate" means an estate in or ownership of the
surface of a particular tract of land overlying the oil or gas
leasehold being developed; and
(6) "Surface owner" means a person who owns an estate in fee
in the surface of land, either solely or as a co-owner.
§22-7-3. 22B-2-3. Compensation of surface owners for drilling
operations.
(a) The oil and gas developer shall be obligated to pay the
surface owner compensation for:
(1) Lost income or expenses incurred as a result of being
unable to dedicate land actually occupied by the driller's
operation or to which access is prevented by such drilling
operation to the uses to which it was dedicated prior to
commencement of the activity for which a permit was obtained
measured from the date the operator enters upon the land until
the date reclamation is completed, (2) the market value of crops
destroyed, damaged or prevented from reaching market, (3) any
damage to a water supply in use prior to the commencement of the
permitted activity, (4) the cost of repair of personal property
up to the value of replacement by personal property of like age,
wear and quality, and (5) the diminution in value, if any, of the
surface lands and other property after completion of the surface
disturbance done pursuant to the activity for which the permit
was issued determined according to the actual use made thereof bythe surface owner immediately prior to the commencement of the
permitted activity.
The amount of damages may be determined by any formula
mutually agreeable between the surface owner and the oil and gas
developer.
(b) Any reservation or assignment of the compensation
provided in this section apart from the surface estate except to
a tenant of the surface estate is prohibited.
(c) In the case of surface lands owned by more than one
person as tenants in common, joint tenants or other co-ownership,
any claim for compensation under this article shall be for the
benefit of all such co-owners. The resolution of a claim for
compensation provided in this article shall operate as a bar to
the assertion of additional claims under this section arising out
of the same drilling operations.
§22-7-4. 22B-2-4. Common law right of action preserved; offsets.
(a) Nothing in section three or elsewhere in this article
shall be construed to diminish in any way the common law
remedies, including damages, of a surface owner or any other
person against the oil and gas developer for the unreasonable,
negligent or otherwise wrongful exercise of the contractual
right, whether express or implied, to use the surface of the land
for the benefit of his the developer's mineral interest.
(b) An oil and gas developer shall be entitled to offset
compensation agreed to be paid or awarded to a surface ownerunder section three of this article against any damages sought by
or awarded to the surface owner through the assertion of common
law remedies respecting the surface land actually occupied by the
same drilling operation.
(c) An oil and gas developer shall be entitled to offset
damages agreed to be paid or awarded to a surface owner through
the assertion of common-law remedies against compensation sought
by or awarded to the surface owner under section three of this
article respecting the surface land actually occupied by the same
drilling operation.
§22-7-5. 22B-2-5. Notification of claim.
Any surface owner, to receive compensation under section
three of this article, shall notify the oil and gas developer of
the damages sustained by the person within two years after the
date that the oil and gas developer files notice that he is
commencing reclamation reclamation is commencing under section
thirty, article one six of this chapter. Such notice shall be
given to surface owners by registered or certified mail, return
receipt requested, and shall be complete upon mailing. If more
than three tenants in common or other co-owners hold interests in
such lands, the developer may give such notice to the person
described in the records of the sheriff required to be maintained
pursuant to section eight, article one, chapter eleven-a of this
code or publish in the county in which the well is located or to
be located a Class II legal advertisement as described in section
two, article three, chapter fifty-nine of this code, containingsuch notice and information as the director shall prescribe by
rule.
§22-7-6. 22B-2-6. Agreement; offer of settlement.
Unless the parties provide otherwise by written agreement,
within sixty days after the oil and gas developer received the
notification of claim specified in section five of this article,
the oil and gas developer shall either make an offer of
settlement to the surface owner seeking compensation, or reject
the claim. The surface owner may accept or reject any offer so
made.
§22-7-7. 22B-2-7. Rejection; legal action; arbitration; fees and
costs.
(a) Unless the oil and gas developer has paid the surface
owner a negotiated settlement of compensation within sixty days
after the date the notification of claim was mailed under section
five of this article, the surface owner may, within eighty days
after the notification mail date, either (i) bring an action for
compensation in the circuit court of the county in which the well
is located, or (ii) elect instead, by written notice delivered by
personal service or by certified mail, return receipt requested,
to the designated agent named by the oil and gas developer under
the provisions of section six of article one six of this chapter,
to have his compensation finally determined by binding
arbitration pursuant to article ten, chapter fifty-five of this
code.
Settlement negotiations, offers and counter-offers betweenthe surface owner and the oil and gas developer shall not be
admissible as evidence in any arbitration or judicial proceeding
authorized under this article, or in any proceeding resulting
from the assertion of common law remedies.
(b) The compensation to be awarded to the surface owner
shall be determined by a panel of three disinterested
arbitrators. The first arbitrator shall be chosen by the surface
owner in his such party's notice of election under this section
to the oil and gas developer; the second arbitrator shall be
chosen by the oil and gas developer within ten days after receipt
of the notice of election; and the third arbitrator shall be
chosen jointly by the first two arbitrators within twenty days
thereafter. If they are unable to agree upon the third
arbitrator within twenty days, then the two arbitrators are
hereby empowered to and shall forthwith submit the matter to the
court under the provisions of section one, article ten, chapter
fifty-five of this code, so that, among other things, the third
arbitrator can be chosen by the judge of the circuit court of the
county wherein the surface estate lies.
(c) The following persons shall be deemed interested and not
be appointed as arbitrators: Any person who is personally
interested in the land on which rotary drilling is being
performed or has been performed, or in any interest or right
therein, or in the compensation and any damages to be awarded
therefor, or who is related by blood or marriage to any person
having such personal interest, or who stands in the relation ofguardian and ward, master and servant, principal and agent, or
partner, real estate broker, or surety to any person having such
personal interest, or who has enmity against or bias in favor of
any person who has such personal interest or who is the owner of,
or interested in, such land or the oil and gas development
thereof. No person shall be deemed interested or incompetent to
act as arbitrator by reason of his being an inhabitant of the
county, district or municipal corporation wherein the land is
located, or holding an interest in any other land therein.
(d) The panel of arbitrators shall hold hearings and take
such testimony and receive such exhibits as shall be necessary to
determine the amount of compensation to be paid to the surface
owner. However, no award of compensation shall be made to the
surface owner unless the panel of arbitrators has first viewed
the surface estate in question. A transcript of the evidence may
be made but shall not be required.
(e) Each party shall pay the compensation of his own such
party's arbitrator and one half of the compensation of the third
arbitrator, or his such party's own court costs as the case may
be.
§22-7-8. 22B-2-8. Application of article.
The remedies provided by this article shall not preclude any
person from seeking other remedies allowed by law.
ARTICLE 3. 8. TRANSPORTATION OF OILS.
§22-8-1. 22B-3-1. Scope of article.
Every person, corporation or company now engaged, or whichshall hereafter engage, in the business of transporting or
storing petroleum, by means of pipeline or lines or storage by
tanks, shall be subject to the provisions of this article and
shall conduct such business in conformity herewith:
Provided,
That the provisions of this article shall be subject to all
federal laws regulating interstate commerce on the same subject.
§22-8-2. 22B-3-2. Duty of pipeline companies to accept and
transport oil.
Any company heretofore or hereafter organized for the
purpose of transporting petroleum or other oils or liquids by
means of pipeline or lines shall be required to accept all
petroleum offered to it in merchantable order in quantities of
not less than two thousand gallons at the wells where the same is
produced, making at its own expense all necessary connections
with the tanks or receptacles containing such petroleum, and to
transport and deliver the same at any delivery station, within or
without the state, on the route of its line of pipes, which may
be designated by the owners of the petroleum so offered.
§22-8-3. 22B-3-3. Oil of 35 degrees Baume at 60 degrees
Fahrenheit; inspection, grading and measurement; receipt;
deduction for waste.
All petroleum of a gravity of thirty-five degrees Baume or
under, at a temperature of sixty degrees Fahrenheit, offered for
transportation by means of pipeline or lines, shall, before the
same is transported, as provided by section two of this article,
be inspected, graded and measured at the expense of the pipelinecompany, and the company accepting the same for transportation
shall give to the owner thereof a receipt stating therein the
number of barrels or gallons so received, and the grade, gravity
and measurement thereof, and within a reasonable time thereafter,
upon demand of the owner or his the owner's assigns, shall
deliver to him the owner or the owner's assigns at the point of
delivery a like quantity and grade or gravity of petroleum in
merchantable condition as specified in such receipt; except that
the company may deduct for waste one percent of the amount of
petroleum specified in such receipt.
§22-8-4. 22B-3-4. Oil over 35 degrees Baume at 60 degrees
Fahrenheit; inspection and measurement; loss.
All petroleum of a gravity exceeding thirty-five degrees
Baume, at a temperature of sixty degrees Fahrenheit, offered for
transportation by means of pipeline or lines, shall be inspected
and measured at the expense of the company transporting the same,
before the same is transported. The company accepting the same
for transportation shall give to the owner thereof, or to the
person in charge of the well or wells from which such petroleum
has been produced and run, a ticket signed by its gauger, stating
the number of feet and inches of petroleum which were in the tank
or receptacle containing the same before the company began to run
the contents from such tank, and the number of feet and inches of
petroleum which remained in the tank after such run was
completed. All deductions made for water, sediment or the like
shall be made at the time such petroleum is measured. Within areasonable time thereafter the company shall, upon demand,
deliver from the petroleum in its custody to the owner thereof,
or to his the owner's assignee, at such delivery station on the
route of its line of pipes as he the owner or the owner's
assignee may elect, a quantity of merchantable petroleum, equal
to the quantity of petroleum run from such tank, or receptacle,
which shall be ascertained by computation; except that the
company transporting such petroleum may deduct for evaporation
and waste two percent of the amount of petroleum so run, as shown
by such run ticket, and except that in case of loss of any
petroleum while in the custody of the company caused by fire,
lightning, storm or other like unavoidable cause, such loss shall
be borne pro rata by all the owners of such petroleum at the time
thereof. But the company shall be liable for all petroleum that
is lost while in its custody by the bursting of pipes or tanks,
or by leakage from pipes or tanks; and it shall also be liable
for all petroleum lost from tanks at the wells produced before
the same has been received for transportation, if such loss be
due to faulty connections made to such tanks; and the company
shall be liable for all petroleum lost by the overflow of any
tanks with which pipeline connections have been made, if such
overflow be due to the negligence of such company, and for all
the petroleum lost by the overflow of any tanks with which
pipeline connections should have been made under the provisions
of this article, but were not so made by reason of negligence or
delay on the part of the company.
§22-8-5. 22B-3-5. Lien for charges.
Any company engaged in transporting or storing petroleum
shall have a lien upon such petroleum until all charges for
transporting and storing the same are paid.
§22-8-6. 22B-3-6. Accepted orders and certificates for oil --
Negotiability.
Accepted orders and certificates for petroleum, issued by
any company engaged in the business of transporting and storing
petroleum in this state by means of pipeline or lines and tanks,
shall be negotiable, and may be transferred by indorsement either
in blank or to the order of another, and any person to whom such
accepted orders and certificates shall be so transferred shall be
deemed and taken to be the owner of the petroleum therein
specified.
§22-8-7. 22B-3-7. Same -- Further provisions.
No receipt, certificate, accepted order or other voucher
shall be issued or put in circulation, nor shall any order be
accepted or liability incurred for the delivery of any petroleum,
crude or refined, unless the amount of such petroleum represented
in or by such receipt, certificate, accepted order, or other
voucher or liability, shall have been actually received by and
shall then be in the tanks and lines, custody and control of the
company issuing or putting in circulation such receipt,
certificate, accepted order or voucher, or written evidence of
liability. No duplicate receipt, certificate, accepted order or
other voucher shall be issued or put in circulation, or anyliability incurred for any petroleum, crude or refined, while any
former liability remains in force, or any former receipt,
certificate, accepted order or other voucher shall be outstanding
and uncanceled, except such original papers shall have been lost,
in which case a duplicate, plainly marked "duplicate" upon the
face, and dated and numbered as the lost original was dated and
numbered, may be issued. No receipt, voucher, accepted order,
certificate or written evidence of liability of such company on
which petroleum, crude or refined, has been delivered, shall be
reissued, used or put in circulation. No petroleum, crude or
refined, for which a receipt, voucher, accepted order,
certificate or liability incurred, shall have been issued or put
in circulation, shall be delivered, except upon the surrender of
the receipt, voucher, order or liability representing such
petroleum, except upon affidavit of loss of such instrument made
by the former holder thereof. No duplicate receipt, certificate,
voucher, accepted order or other evidence of liability, shall be
made, issued or put in circulation until after notice of the loss
of the original, and of the intention to apply for a duplicate
thereof, shall have been given by advertisement over the
signature of the owner thereof as a Class II legal advertisement
in compliance with the provisions of article three, chapter
fifty-nine of this code, and the publication area for such
publication shall be the county where such duplicate is to be
issued. Every receipt, voucher, accepted order, certificate or
evidence of liability, when surrendered or the petroleumrepresented thereby delivered, shall be immediately canceled by
stamping and punching the same across the face in large and
legible letters with the word "canceled," and giving the date of
such cancellation; and it shall then be filed and preserved in
the principal office of such company for a period of six years.
§22-8-8. 22B-3-8. Dealing in oil without consent of owner.
No company, its officers or agents, or any person or persons
engaged in the transportation or storage of petroleum, crude or
refined, shall sell or encumber, ship, transfer, or in any manner
remove or procure, or permit to be sold, encumbered, shipped,
transferred, or in any manner removed from the tanks or pipes of
such company engaged in the business aforesaid, any petroleum,
crude or refined, without the written order of the owner or a
majority of the owners in interest thereof.
§22-8-9. 22B-3-9. Monthly statements.
Every company now or hereafter engaged in the business of
transporting by pipelines or storing crude or refined petroleum
in this state shall, on or before the tenth day of each month,
make or cause to be made and posted in its principal business
office in this state, in an accessible and convenient place for
the examination thereof by any person desiring such examination,
and shall keep so posted continuously until the next succeeding
statement is so posted, a statement plainly written or printed,
signed by the officer, agent, person or persons having charge of
the pipes and tanks of such company, and also by the officer or
officers, person or persons, having charge of the books andaccounts thereof, which statement shall show in legible and
intelligent intelligible form the following details of the
business: (a) How much petroleum, crude or refined, was in the
actual and immediate custody of such company at the beginning and
close of the previous month, and where the same was located or
held; describing in detail the location and designation of each
tank or place of deposit, and the name of its owner; (b) how much
petroleum, crude or refined, was received by such company during
the previous month; (c) how much petroleum, crude or refined, was
delivered by such company during the previous month; (d) for how
much petroleum, crude or refined, such company was liable for the
delivery or custody of to other corporations, companies or
persons at the close of the month; (e) how much of such liability
was represented by outstanding receipts or certificates, accepted
orders or other vouchers, and how much was represented by credit
balances; (f) that all the provisions of this article have been
faithfully observed and obeyed during the previous month. The
statement so required to be made shall also be sworn to by such
officer, agent, person or persons before some officer authorized
by law to administer oaths, which shall be in writing, and shall
assert the familiarity and acquaintance of the deponent with the
business and condition of such company, and with the facts sworn
to, and that the statements made in such report are true.
§22-8-10. 22B-3-10. Statements of amount of oil.
All amounts in the statements required by this article, when
the petroleum is handled in bulk, shall be given in barrels andhundredths of barrels, reckoning forty-two gallons to each
barrel, and when such petroleum is handled in barrels or
packages, the number of such barrels or packages shall be given,
and such statements shall distinguish between crude and refined
petroleum, and give the amount of each. Every company engaged in
the business aforesaid shall at all times have in their pipes and
tanks an amount of merchantable oil equal to the aggregate of
outstanding receipts, certificates, accepted orders, vouchers,
acknowledgments, evidences of liability, and credit balances, on
the books thereof.
§22-8-11. 22B-3-11. Penalty -- Wrongful issuance, sale or
alteration of receipts, orders, etc.
Any company, or its officers or agents, who shall make or
cause to be made, sign or cause to be signed, issue or cause to
be issued, put in circulation or cause to be put in circulation,
any receipt, accepted order, certificate, voucher or evidence of
liability, or shall sell, transfer or alter the same, or cause
such sale, transfer or alteration, contrary to the provisions of
this article, or shall do or cause to be done any of the acts
prohibited by section seven of this article, or omit to do any of
the acts by said section directed, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
exceeding one thousand dollars, and, if the offender be a natural
person, imprisoned not less than ten days nor exceeding one year.
§22-8-12. 22B-3-12. Same -- Dealing in oil without consent of
owner in interest.
Any company, its officers or agents, who shall sell,
encumber, transfer or remove, or cause or procure to be sold,
transferred or removed from the tanks or pipes of such company,
any petroleum, crude or refined, without the written consent of
the owner or a majority of the owners in interest thereof, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined one thousand dollars and, if the offender be a natural
person, imprisoned in the county jail not less than ninety days
nor more than one year.
§22-8-13. 22B-3-13. Same -- Failure to make report and
statement.
Any company engaged in the business of transporting by
pipelines or storing petroleum, crude or refined, and each and
every officer or agent of such company, who shall neglect or
refuse to make the report and statement required by section nine
of this article, within the time and the manner directed by said
section, shall forfeit and pay the sum of one thousand dollars,
and in addition thereto the sum of five hundred dollars for each
day after the tenth day of the month that the report and
statement required by said section nine shall remain unposted as
therein directed.
ARTICLE 4. 9. UNDERGROUND GAS STORAGE RESERVOIRS.
§22-9-1. 22B-4-1. Definitions.
In this article unless the context otherwise requires:
(1) The term "coal mine" means those operations in a coal
seam which include the excavated and abandoned portions as wellas the places actually being worked; also all underground
workings and shafts, slopes, tunnels, and other ways and openings
and all such shafts, slopes, tunnels and other openings in the
course of being sunk or driven, together with all roads and
facilities connected with them below the surface.
(2) The term "operating coal mine" means (a) a coal mine
which is producing coal or has been in production of coal at any
time during the twelve months immediately preceding the date its
status is put in question under this article and any worked out
or abandoned coal mine connected underground with or contiguous
to such operating coal mine as herein defined and (b) any coal
mine to be established or reestablished as an operating coal mine
in the future pursuant to section four of this article.
(3) The term "outside coal boundaries" when used in
conjunction with the term "operating coal mine" means the
boundaries of the coal acreage assigned to such coal mine and
which can be practicably and reasonably expected to be mined
through such coal mine.
(4) The term "well" means a borehole drilled or proposed to
be drilled within the storage reservoir boundary or reservoir
protective area for the purpose of or to be used for producing,
extracting or injecting any gas, petroleum or other liquid but
excluding boreholes drilled to produce potable water to be used
as such.
(5) The term "gas" means any gaseous substance.
(6) The term "storage reservoir" means that portion of anysubterranean sand or rock stratum or strata into which gas is or
may be injected for the purpose of storage or for the purpose of
testing whether said stratum is suitable for storage.
(7) The term "bridge" means an obstruction placed in a well
at any specified depth.
(8) The term "linear foot" means a unit of measurement in a
straight line on a horizontal plane.
(9) The term "person" means any individual, association,
partnership or corporation.
(10) The term "reservoir protective area" means all of that
area outside of and surrounding the storage reservoir boundary
but within two thousand linear feet thereof.
(11) The term "retreat mining" means the removal of such
coal, pillars, ribs and stumps as remain after the development
mining has been completed in that section of a coal mine.
(12) The term "pillar" means a solid block of coal
surrounded by either active mine workings or a mined out area.
(13) The term "inactivate" means to shut off all flow of gas
from a well by means of a temporary plug, or other suitable
device or by injecting aquagel or other such equally nonporous
material into the well.
(14) The term "storage operator" means any person as herein
defined who proposes to or does operate a storage reservoir,
either as owner or lessee.
(15)The term "workable coal seam" shall have has the same
meaning as the term "workable coal bed" as set out in sectionone, article one six of this chapter.
(16) The terms "owner," "coal operator," "well operator,"
"division," "division of mines and minerals," "plat," "casing,"
"oil" and "cement" shall have the meanings set out in section
one, article one six of this chapter.
§22-9-2. 22B-4-2. Filing of maps and data by persons operating
or proposing to operate gas storage reservoirs.
(a) Any person who, on the eighth day of June, one thousand
nine hundred fifty-five, is injecting gas into or storing gas in
a storage reservoir which underlies or is within three thousand
linear feet of an operating coal mine which is operating in a
coal seam that extends over the storage reservoir or the
reservoir protective area shall, within sixty days thereafter,
file with the division a copy of a map and certain data in the
form and manner provided in this subsection.
Any person who, on the eighth day of June, one thousand nine
hundred fifty-five, is injecting gas into or storing gas in a
storage reservoir which is not at such date under or within three
thousand linear feet, but is less than ten thousand linear feet
from an operating coal mine which is operating in a coal seam
that extends over the storage reservoir or the reservoir
protective area, shall file such map and data within such time in
excess of sixty days as the director may fix.
Any person who, after the eighth day of June, one thousand
nine hundred fifty-five, proposes to inject or store gas in a
storage reservoir located as above shall file the required mapand data with the director not less than six months prior to the
starting of actual injection or storage.
The map provided for herein shall be prepared by a competent
engineer or geologist. It shall show the stratum or strata in
which the existing or proposed storage reservoir is or is to be
located, the geographic location of the outside boundaries of the
said storage reservoir and the reservoir protective area, the
location of all known oil or gas wells which have been drilled
into or through the storage stratum within the reservoir or
within three thousand linear feet thereof, indicating which of
these wells have been, or are to be cleaned out and plugged or
reconditioned for storage and also indicating the proposed
location of all additional wells which are to be drilled within
the storage reservoir or within three thousand linear feet
thereof.
The following information, if available, shall be furnished
for all known oil or gas wells which have been drilled into or
through the storage stratum within the storage reservoir or
within three thousand linear feet thereof; name of the operator,
date drilled, total depth, depth of production if the well was
productive of oil or gas, the initial rock pressure and volume,
the depths at which all coal seams were encountered and a copy of
the driller's log or other similar information. At the time of
the filing of the aforesaid maps and data such person shall file
a detailed statement of what efforts he has have been made to
determine, (1) that the wells shown on said map are accuratelylocated thereon, and (2) that to the best of his such person's
knowledge they the wells are all the oil or gas wells which have
ever been drilled into or below the storage stratum within the
proposed storage reservoir or within the reservoir protective
area. This statement shall also include information as to
whether or not the initial injection is for testing purposes, the
maximum pressures at which injection and storage of gas is
contemplated, and a detailed explanation of the methods to be
used or which theretofore have been used in drilling, cleaning
out, reconditioning or plugging wells in the storage reservoir or
within the reservoir protective area. The map and data required
to be filed hereunder shall be amended or supplemented
semiannually in case any material changes have occurred:
Provided,
That the director may require a storage operator to
amend or supplement such map or data at more frequent intervals
if material changes have occurred justifying such earlier filing.
At the time of the filing of the above maps and data, and
the filing of amended or supplemental maps or data, the director
shall give written notice of said filing to all persons who may
be affected under the provisions of this subsection by the
storage reservoir described in such maps or data. Such notices
shall contain a description of the boundaries of such storage
reservoir. When a person operating a coal mine or owning an
interest in coal properties which are or may be affected by the
storage reservoir, requests in writing a copy of any map or data
filed with the director such copy shall be furnished by thestorage operator.
(b) Any person who, on the eighth day of June, one thousand
nine hundred fifty-five, is injecting gas into or storing gas in
any other storage reservoir in this state not subject to
subsection (a) of this section shall, on or before the first day
of July, one thousand nine hundred eighty-three, file with the
division a map in the same detail as the map required for a
storage reservoir subject to subsection (a) of this section; and,
if the initial injection of gas into the storage reservoir by
such person or any predecessor occurred after the thirty-first
day of December, one thousand nine hundred seventy, data in the
same detail as the data required for a storage reservoir shall be
filed subject to subsection (a) of this section:
Provided,
That
in the case of a storage reservoir the operation of which has
been certified by the federal power commission or the federal
energy regulatory commission under section seven of the federal
Natural Gas Act, the person may, in lieu of the data, submit
copies of the application and all amendments and supplements of
record in the federal docket, together with the certificate of
public convenience and necessity and any amendments thereto.
Any person who, after the eighth day of June, one thousand
nine hundred fifty-five, proposes to inject or store gas in any
other storage reservoir in this state not subject to subsection
(a) of this section shall file with the division a map and data
in the same detail as the map and data required for a storage
reservoir subject to subsection (a) of this section not less thansix months prior to the starting of actual injection or storage:
Provided,
That in the case of a storage reservoir the operation
of which will be required to be certificated by the federal
energy regulatory commission, the person may, in lieu of the
data, submit copies of the application and all amendments and
supplementals filed in the federal docket, together with the
certificate of public convenience and necessity and any
amendments thereto, within twenty days after the same have been
filed by such person or issued by the federal energy regulatory
commission.
At the time of the filing of the above maps and data or
documents in lieu of data and filing of amended or supplemental
maps or data or documents in lieu of data, or upon receipt of an
application filed with the federal energy regulatory commission
for a new storage reservoir, the director shall give notice of
said filing by a Class II legal advertisement in accordance with
the provisions of article three, chapter fifty-nine of this code,
the publication area for which shall be the county or counties in
which the storage reservoir is located. Such legal advertisements
shall contain a description of the boundaries of such storage
reservoir. The storage operator shall pay for the legal
advertisement upon receipt of the invoice therefor from the
division. When any person owning an interest in land which is or
may be affected by the storage reservoir requests in writing a
copy of any map or data or documents in lieu of data filed with
the division, such copy shall be furnished by the storageoperator.
(c) The director shall also intervene in the federal docket,
and participate in the proceedings for the purpose of assuring
that the certificate of public convenience and necessity issued
by the federal energy regulatory commission does not authorize
operations or practices in conflict with the provisions of this
article. The director may cooperate with the public service
commission if the commission also intervenes. The attorney
general is hereby directed to provide legal representation to the
director to achieve the purposes of this subsection.
(d) For all purposes of this article, the outside boundaries
of a storage reservoir shall be defined by the location of those
wells around the periphery of the storage reservoir which had no
gas production when drilled in said storage stratum:
Provided,
however,
That the boundaries as thus defined shall be originally
fixed or subsequently changed where, based upon the number and
nature of such wells, upon the geological and production
knowledge of the storage stratum, its character, permeability,
and distribution, and operating experience, it is determined in
a conference or hearing under section ten of this article that
modification should be made.
§22-9-3. 22B-4-3. Filing of maps and data by persons operating
coal mines.
(a) Any person owning or operating a coal mine, who has not
already done so with respect to the department of mines pursuant
to the former provisions of article seven four, chapter twenty-two twenty-two-b of this code, shall, within thirty days from the
effective date of this article, file with the director of the
division of mines and minerals a map, prepared by a competent
engineer, showing the outside coal boundaries of the said
operating coal mine, the existing workings and exhausted areas
and the relationship of said boundaries to identifiable surface
properties and landmarks. Any person who is storing or
contemplating the storage of gas in the vicinity of such
operating coal mines shall, upon written request, be furnished a
copy of the aforesaid map by the coal operator and such person
and the director shall thereafter be informed of any boundary
changes at the time such changes occur. The director shall keep
a record of such information and shall promptly notify both the
coal operator and the storage operator if it is found that the
coal mine and the storage reservoir are within ten thousand
linear feet of each other.
(b) Any person owning or operating any coal mine which, on
the tenth day of March, one thousand nine hundred fifty-five, is
or which thereafter comes within ten thousand linear feet of a
storage reservoir, and where the coal seam being operated extends
over the storage reservoir or the reservoir protective area,
shall within forty-five days after he such person has notice from
the director of such fact, file with the director and furnish to
the person operating such storage reservoir, a map in the form
hereinabove provided and showing in addition, the existing and
projected excavations and workings of such operating coal minefor the ensuing eighteen-month period, and also the location of
any oil or gas wells of which said coal operator has knowledge.
Such person owning or operating said coal mine shall each six
months thereafter file with the director and the director of the
division of mines and minerals and furnish to the person
operating such storage reservoir a revised map showing any
additional excavations and workings, together with the projected
excavations and workings for the then ensuing eighteen-month
period which may be within ten thousand linear feet of said
storage reservoir:
Provided,
That the director of the division
of mines and minerals may require a coal operator to file such
revised map at more frequent intervals if material changes have
occurred justifying such earlier filing. Such person owning or
operating said coal mine shall also file with the director and
furnish the person operating said reservoir prompt notice of any
wells which have been cut into, together with all available
pertinent information.
§22-9-4. 22B-4-4. Notice by persons operating coal mines.
(a) Any person owning or operating a coal mine on the eighth
day of June, one thousand nine hundred fifty-five, and having
knowledge that it overlies or is within two thousand linear feet
of a gas storage reservoir, shall within thirty days notify the
director and the storage operator of such fact unless such
notification has already been provided to the director of the
division mines and minerals pursuant to the provisions of former
article seven four, chapter twenty-two twenty-two-b this code.
(b) When any person owning or operating a coal mine
hereafter expects that within the ensuing nine-month period such
coal mine will be extended to a point which will be within two
thousand linear feet of any storage reservoir, he such person
shall notify the director and the storage operator in writing of
such fact.
(c) Any person hereafter intending to establish or
reestablish an operating coal mine which when established or
reestablished will be over a storage reservoir or within two
thousand linear feet of a storage reservoir, or which upon being
established or reestablished may within nine months thereafter be
expected to be within two thousand linear feet of a storage
reservoir, shall notify the director and the storage operator in
writing before doing so and such notice shall include the date on
which it is intended the operating coal mine will be established
or reestablished.
Any person who serves such notice of an intention to
establish or reestablish an operating coal mine under this
subsection, without intending in good faith to establish or
reestablish such mine, shall be liable for continuing damages to
any storage operator injured by the serving of such improper
notice and shall be guilty of a misdemeanor under this article
and subject to the same penalties as set forth in section twelve
of this article.
§22-9-5. 22B-4-5. Obligations to be performed by persons
operating storage reservoirs.
(a) Any person who, on or after June eighth, one thousand
nine hundred fifty-five, is operating a storage reservoir which
underlies or is within two thousand linear feet of an operating
coal mine which is operating in a coal seam that extends over the
storage reservoir or the reservoir protective area, shall:
(1) Use every known method which is reasonable under the
circumstances for discovering and locating all wells which have
or may have been drilled into or through the storage stratum in
that acreage which is within the outside coal boundaries of such
operating coal mine and which overlies the storage reservoir or
the reservoir protective area;
(2) Plug or recondition, in the manner provided by sections
twenty-three and twenty-four, article one six of this chapter and
subsection (e) of this section, all known wells (except to the
extent otherwise provided in subsections (e), (f), (g) and (h) of
this section) drilled into or through the storage stratum and
which are located within that portion of the acreage of the
operating coal mine overlying the storage reservoir or the
reservoir protective area:
Provided,
That where objection is
raised as to the use of any well as a storage well, and after a
conference or hearing in accordance with section ten of this
article it is determined, taking into account all the
circumstances and conditions, that such well should not be used
as a storage well, such well shall be plugged:
Provided,
however,
That if, in the opinion of the storage operator, the
well to which such objection has been raised may at some futuretime be used as a storage well, the storage operator may
recondition and inactivate such well instead of plugging it, if
such alternative is approved by the director after taking into
account all of the circumstances and conditions.
The requirements of clause (2) of this subsection shall be
deemed to have been fully complied with if, as the operating coal
mine is extended, all wells which, from time to time, come within
the acreage described in said clause (2) are reconditioned or
plugged as provided in subsection (e) or (f) of this section and
in section twenty-four, article one six of this chapter so that
by the time the coal mine has reached a point within two thousand
linear feet of any such wells, they will have been reconditioned
or plugged so as to meet the requirements of said subsection (e)
or (f) and of said section twenty-four of article one six.
(b) Any person operating a storage reservoir referred to in
subsection (a) of this section who has not already done so with
respect to the department of mines pursuant to the provisions of
former article seven four, chapter twenty-two twenty-two-b of
this code, shall within sixty days after the effective date of
this article file with the director and furnish a copy to the
person operating the affected operating coal mine, a verified
statement setting forth:
(1) That the map and any supplemental maps required by
subsection (a), section two of this article have been prepared
and filed in accordance with section two;
(2) A detailed explanation of what the storage operator hasdone to comply with the requirements of clauses (1) and (2),
subsection (a) of this section and the results thereof;
(3) Such additional efforts, if any, as the storage operator
is making and intends to make to locate all oil and gas wells;
and
(4) Any additional wells that are to be plugged or
reconditioned to meet the requirements of clause (2), subsection
(a) of this section.
If such statement is not filed by the storage reservoir
operator within the time specified herein, the director shall
summarily order such operator to file such statement.
(c) Within one hundred twenty days after the receipt of any
such statement, the director may, and he shall, if so requested
by either the storage operator or the coal operator affected,
direct that a conference be held in accordance with section ten
of this article to determine whether the information as filed
indicates that the requirements of section two of this article
and of subsection (a) of this section have been fully complied
with. At such conference, if any person shall be of the opinion
that such requirements have not been fully complied with, the
parties shall attempt to agree on what additional things are to
be done and the time within which they are to be completed,
subject to the approval of the director, to meet the said
requirements.
If such agreement cannot be reached, the director shall
direct that a hearing be held in accordance with section ten ofthis article. At such hearing the director shall determine
whether the requirements of said section two of this article and
of subsection (a) of this section have been met and shall issue
an order setting forth such determination. If the director shall
determine that any of the said requirements have not been met,
the order shall specify, in detail, both the extent to which such
requirements have not been met, and the things which the storage
operator must do to meet such requirements. The order shall
grant to the storage operator such time as is reasonably
necessary to complete each of the things which he such operator
is directed to do. If, in carrying out said order, the storage
operator encounters conditions which were not known to exist at
the time of the hearing and which materially affect the validity
of said order or the ability of the storage operator to comply
with the order, the storage operator may apply for a rehearing or
modification of said order.
(d) Whenever, in compliance with subsection (a) of this
section, a storage operator, after the filing of the statement
provided for in subsection (b) of this section, plugs or
reconditions a well, he such operator shall so notify the
director and the coal operator affected in writing, setting forth
such facts as will indicate the manner in which the plugging or
reconditioning was done. Upon receipt thereof, the coal operator
affected or the director may request a conference or hearing in
accordance with section ten of this article.
(e) In order to meet the requirements of subsection (a) ofthis section, wells which are to be plugged shall be plugged in
the manner specified in section twenty-four, article one six of
this chapter. When a well located within the storage reservoir
or the reservoir protective area has been plugged prior to the
tenth day of March, one thousand nine hundred fifty-five, and on
the basis of the data, information and other evidence submitted
to the director, it is determined that: (1) Such plugging was
done in the manner required in section twenty-four, article one
six of this chapter; and (2) said plugging is still sufficiently
effective to meet the requirements of this article, the
obligations imposed by subsection (a) of this section as to
plugging said well shall be considered fully satisfied.
(f) In order to meet the requirements of subsection (a) of
this section, wells which are to be reconditioned shall be
cleaned out from the surface through the storage horizon and the
following casing strings shall be pulled and replaced with new
casing, using the same procedure as is applicable to drilling a
new well as provided for in sections eighteen, nineteen and
twenty, article one six of this chapter: (1) The producing
casing; (2) the largest diameter casing passing through the
lowest workable coal seam unless such casing extends at least
twenty-five feet below the bottom of such coal seam and is
determined to be in good physical condition:
Provided,
That the
storage operator may, instead of replacing the largest diameter
casing, replace the next largest casing string if such casing
string extends at least twenty-five feet below the lowestworkable coal seam; and (3) such other casing strings which are
determined not to be in good physical condition. In the case of
wells to be used for gas storage, the annular space between each
string of casing, and the annular space behind the largest
diameter casing to the extent possible, shall be filled to the
surface with cement or aquagel or such equally nonporous material
as is approved by the director pursuant to section eight of this
article. At least fifteen days prior to the time when a well is
to be reconditioned the storage operator shall give notice
thereof to the coal operator or owner and to the director setting
forth in such notice the manner in which it is planned to
recondition such well and any pertinent data known to the storage
operator which will indicate the then existing condition of such
well. In addition the storage operator shall give the coal
operator or owner and such representative of the director as the
director shall have designated at least seventy-two hours notice
of the time when such reconditioning is to begin. The coal
operator or owner shall have the right to file, within ten days
after the receipt of the first notice required herein, objections
to the plan of reconditioning as submitted by the storage
operator. If no such objections are filed or if none is raised
by the director within such ten-day period, the storage operator
may proceed with the reconditioning in accordance with the plan
as submitted. If any such objections are filed by the coal
operator or owner or are made by the director, the director shall
fix a time and place for a conference in accordance with sectionten of this article at which conference the well operator and the
person who has filed such objections shall endeavor to agree upon
a plan of reconditioning which meets the requirements herein and
which will satisfy such objections. If no plan is approved at
such conference, the director shall direct that a hearing be held
in accordance with section ten of this article and, after such
hearing, shall by an appropriate order determine whether the plan
as submitted meets the requirements set forth herein, or what
changes, if any, should be made to meet such requirements. If,
in reconditioning a well in accordance with said plan, physical
conditions are encountered which justify or necessitate a change
in said plan, the storage operator or the coal operator may
request that the plan be changed. If the storage operator and
the coal operator cannot agree upon such change, the director
shall arrange for a conference or hearing in accordance with
section ten of this article to determine the matter in the same
manner as set forth herein in connection with original objections
to said plan. Application may be made to the director in the
manner prescribed in section eight of this article for approval
of an alternative method of reconditioning a well. When a well
located within the storage reservoir or the reservoir protective
area has been reconditioned prior to the tenth day of March, one
thousand nine hundred fifty-five, or was so drilled and equipped
previously and on the basis of the data, information and other
evidence submitted to the director, it is determined that: (1)
Such reconditioning or previous drilling and equipping was donein the manner required in this subsection, or in a manner
approved as an alternative method in accordance with section
eight of this article and (2) such reconditioning or previous
drilling and equipping is still sufficiently effective to meet
the requirements of this article, the obligations imposed by
subsection (a) as to reconditioning said well shall be considered
fully satisfied. Where a well requires emergency repairs this
subsection shall not be construed to require the storage operator
to give the notices specified herein before making such repairs.
(g) When a well located within the reservoir protective area
is a producing well in a stratum below the storage stratum the
obligations imposed by subsection (a) of this section shall not
begin until such well ceases to be a producing well.
(h) When a well within a storage reservoir or the reservoir
protective area penetrates the storage stratum but does not
penetrate the coal seam being mined by an operating coal mine the
director may, upon application of the operator of such storage
reservoir, exempt such well from the requirements of this
section. Either party affected may request a conference and
hearing with respect to the exemption of any such well in
accordance with section ten of this article.
(i) In fulfilling the requirements of clause (2), subsection
(a) of this section with respect to a well within the reservoir
protective area, the storage operator shall not be required to
plug or recondition such well until he has received from the coal
operator written notice that the mine workings will within theperiod stated in such notice, be within two thousand linear feet
of such well. Upon the receipt of such notice the storage
operator shall use due diligence to complete the plugging or
reconditioning of such well in accordance with the requirements
of this section and of section twenty-four, article one six of
this chapter. If the said mine workings do not, within a period
of three years after said well has been plugged, come within two
thousand linear feet of said well, the coal operator shall
reimburse the storage operator for the cost of said plugging,
provided such well is still within the reservoir protective area
as of that time.
(j) When retreat mining approaches a point where within
ninety days it is expected that such retreat work will be at the
location of the pillar surrounding an active storage well the
coal operator shall give written notice of such approach to the
storage operator and by agreement said parties shall determine
whether it is necessary or advisable to inactivate effectively
said well temporarily. The well shall not be reactivated until
a reasonable period has elapsed, such reasonable period to be
determined by the said parties. In the event that the said
parties cannot agree upon either of the foregoing matters, such
question shall be submitted to the director for decision in
accordance with section ten of this article. The number of wells
required to be temporarily inactivated during the retreat period
shall not be such as to materially affect the efficient operation
of such storage pool. This provision shall not preclude thetemporary inactivation of a particular well where the practical
effect of inactivating such well is to render the pool
temporarily inoperative.
(k) The requirements of subsections (a), (l) and (m) of this
section shall not apply to the injection of gas into any stratum
when the sole purpose of such injection (such purpose being
herein referred to as testing) is to determine whether the said
stratum is suitable for storage purposes:
Provided,
That such
testing shall be conducted only in compliance with the following
requirements:
(1) The person testing or proposing to test shall comply
with all the provisions and requirements of section two of this
article and shall verify the statement required to be filed
thereby;
(2) If any part of the proposed storage reservoir is under
or within two thousand linear feet of an operating coal mine
which is operating in a coal seam that extends over the proposed
storage reservoir or the reservoir protective area, the storage
operator shall give at least six months' written notice to the
director and to the coal operator of the fact that injection of
gas for testing purposes is proposed;
(3) The coal operator affected may at any time file
objections with the director in accordance with subsection (d),
section nine of this article. If any such objections are filed
by the coal operator or if the director shall have any
objections, the director shall fix a time and place for aconference in accordance with section ten of this article, not
more than ten days from the date of the notice to the storage
operator, at which conference the storage operator and the person
who has filed such objections shall attempt to agree, subject to
the approval of the director, on the questions involved. If such
agreement cannot be reached at such conference, the director
shall direct that a hearing be held in accordance with section
ten of this article. At such hearing the director shall
determine and set forth in an appropriate order the conditions
and requirements which he the director shall deem necessary or
advisable in order to prevent gas from such storage reservoir
from entering any operating coal mine. The storage operator
shall comply with such conditions and requirements throughout the
period of the testing operations. In determining such conditions
and requirements the director shall take into account the extent
to which the matters referred to in subsection (a) of this
section have been performed. If, in carrying out said order,
either the storage operator or the coal operator encounters or
discovers conditions which were not known to exist at the time of
the hearing and which materially affect said order or the ability
of the storage operator to comply with the order, either operator
may apply for a rehearing or modification of said order;
(4) Where, at any time, a proposed storage reservoir being
tested comes under or within two thousand linear feet of an
operating coal mine either because of the extension of the
storage reservoir being tested or because of the extension orestablishment or reestablishment of the operating coal mine, then
and at the time of any such event the requirements of this
subsection shall become applicable to such testing.
(l) Any person who after the effective date of this article
proposes to establish a storage reservoir under, or within two
thousand linear feet of an operating coal mine which is operating
in a coal seam that extends over the storage reservoir or the
reservoir protective area, shall, prior to establishing such
reservoir, in addition to complying with the requirements of
section two of this article and subsection (a) of this section,
file the verified statement required by subsection (b) of this
section and fully comply with such order or orders, if any, as
the director may issue in the manner provided for under
subsection (b) or (c) of this section before beginning the
operation of such storage reservoir. After the person proposing
to operate such storage reservoir shall have complied with such
requirements and shall have thereafter begun to operate such
reservoir, he such person shall continue to be subject to all of
the provisions of this article.
(m) When a gas storage reservoir, (1) was in operation on
the eighth day of June, one thousand nine hundred fifty-five, and
at any time thereafter it is under or within two thousand linear
feet of an operating coal mine, or (2) when a gas storage
reservoir is put in operation after the eighth day of June, one
thousand nine hundred fifty-five, and at any time after such
storage operations begin it is under or within two thousandlinear feet of an operating coal mine, then and in either such
event, the storage operator shall comply with all of the
provisions of this section except that the time for filing the
verified statement under subsection (b) shall be sixty days after
the date stated in the notice filed by the coal operator under
subsection (b) or (c), section four of this article as to when
the operating coal mine will be at a point within two thousand
linear feet of such reservoir:
Provided,
That if the extending
of the projected workings or the proposed establishment or
reestablishment of the operating coal mine is delayed after the
giving of the notice provided in subsections (b) and (c), section
four of this article, the coal operator shall give notice of such
delay to the director and the director shall, upon the request of
the storage operator, extend the time for filing such statement
by the additional time which will be required to extend or
establish or reestablish such operating coal mine to a point
within two thousand linear feet of such reservoir. Such
verified statement shall also indicate that the map referred to
in subsection (a), section two of this article has been currently
amended as of the time of the filing of such statement. The
person operating any such storage reservoir shall continue to be
subject to all of the provisions of this article.
(n) If, in any proceeding under this article, the director
shall determine that any operator of a storage reservoir has
failed to carry out any lawful order of the director issued under
this article, the director shall have authority to require suchstorage operator to suspend the operation of such reservoir and
to withdraw the gas therefrom until such violation is remedied.
In such an event the gas shall be withdrawn under the following
conditions. The storage operator shall remove the maximum amount
of gas which is required by the director to be removed from the
storage reservoir that can be withdrawn in accordance with
recognized engineering and operating procedures and shall proceed
with due diligence insofar as existing facilities used to remove
gas from the reservoir will permit.
(o) In addition to initial compliance with the other
provisions of this article and any lawful orders issued
thereunder, it shall be the duty at all times of the person
owning or operating any storage reservoir which is subject to the
provisions of this article to keep all wells drilled into or
through the storage stratum in such condition and to operate the
same in such manner as to prevent the escape of gas into any coal
mine therefrom, and to operate and maintain such storage
reservoir and its facilities in such manner and at such pressures
as will prevent gas from escaping from such reservoir or its
facilities into any coal mine:
Provided,
That this duty shall
not be construed to include the inability to prevent the escape
of gas where such escape results from an act of God or an act of
any person not under the control of the storage operator other
than in connection with any well which the storage operator has
failed to locate and to make known to the director:
Provided,
however,
That if any escape of gas into a coal mine does resultfrom an act of God or an act of any person not under the control
of the storage operator, the storage operator shall be under the
duty of taking such action thereafter as is reasonably necessary
to prevent further escape of gas into the coal mine.
§22-9-6. 22B-4-6. Inspection of facilities and records; reliance
on maps; burden of proof.
(a) In determining whether a particular coal mine or
operating coal mine is or will be within any distance material
under this article from any storage reservoir, the owner or
operator of such coal mine and the storage operator may rely on
the most recent map of the storage reservoir or coal mine filed
by the other with the director.
(b) In any proceeding under this article where the accuracy
of any map or data filed by any person pursuant to the
requirements of this article is in issue, the person filing the
same shall at the request of any party to such proceeding be
required to disclose the information and method used in compiling
such map and data and such information as is available to such
person that might affect the current validity of such map or
data. If any material question is raised in such proceeding as
to the accuracy of such map or data with respect to any
particular matter or matters contained therein, the person filing
such map or data shall then have the burden of proving the
accuracy of the map or data with respect to such matter or
matters.
(c) The person operating any storage reservoir affected bythe terms of this article shall, at all reasonable times, be
permitted to inspect the applicable records and facilities of any
coal mine overlying such storage reservoir or the reservoir
protective area, and the person operating any such coal mine
affected by the terms of this article, shall similarly, at all
reasonable times, be permitted to inspect the applicable records
and facilities of any such storage reservoir underlying any such
coal mine. In the event that either such storage operator or
coal operator shall refuse to permit any such inspection of
records or facilities, the director shall, on his the director's
own motion, or on application of the party seeking the inspection
after reasonable written notice, and a hearing thereon, if
requested by either of the parties affected, make an order
providing for such inspection.
§22-9-7. 22B-4-7. Exemptions.
(a) The provisions of this article shall not apply to strip
mines and auger mines operating from the surface.
(b) Injection of gas for storage purposes in any workable
coal seam, whether or not such seam is being or has been mined,
shall be prohibited. Nothing in this article shall be construed
to prohibit the original extraction of natural gas, crude oil or
coal. No storage operator shall have authority to appropriate
any coal or coal measure whether or not being mined, or any
interest therein.
§22-9-8. 22B-4-8. Alternative method.
(a) Whenever provision is made in this article by referenceto this section for using an alternative method or material in
carrying out any obligation imposed by the article, the person
seeking the authority to use such alternative method or material
shall file an application with the director describing such
proposed alternative method or material in reasonable detail.
Notice of filing of any such application shall be given by
registered mail to any coal operator or operators affected. Any
such coal operator may within ten days following such notice,
file objections to such proposed alternative method or material.
If no objections are filed within said ten-day period or if none
is raised by the director, the director shall forthwith issue a
permit approving such proposed alternative method or material.
(b) If any such objections are filed by any coal operator or
are raised by the director, the director shall direct that a
conference be held in accordance with section ten of this article
within the ten days following the filing of such objections. At
such conferences the person seeking approval of the alternative
method or material and the person who has filed such objections
shall attempt to agree on such alternative method or material or
any modification thereof, and if such agreement is reached and
approved by the director, the director shall forthwith issue a
permit approving the alternative method or material. If no such
agreement is reached and approved, the director shall direct that
a hearing be held in accordance with section ten of this article:
Provided,
That if the alternative method or material involves a
new development in technology or technique the director may,before such a hearing is held, grant such affected parties a
period not to exceed ninety days to study and evaluate said
proposed alternative method or material. Following such hearing,
if the director shall find that such proposed alternative method
or material will furnish adequate protection to the workable coal
seams, the director shall by order approve such alternative
method or material; otherwise the director shall deny the said
application.
§22-9-9. 22B-4-9. Powers and duties of director.
(a) The director may review the maps and data filed under
sections two and three hereof for the purpose of determining the
accuracy thereof. Where any material question is raised by any
interested storage operator or coal operator or owner as to the
accuracy of any such map or data, the director shall hold
hearings thereon and shall by an appropriate order require the
person filing such map or data to correct the same if they are
found to be erroneous.
(b) It shall be the duty of the director to receive and keep
in a safe place for public inspection any map, data, report, well
log, notice or other writing required to be filed with it
pursuant to the provisions of this article. The director shall
keep such indices of all such information as will enable any
person using the same to readily locate such information either
by the identity of the person who filed the same or by the person
or persons affected by such filing or by the geographic location
of the subject matter by political subdivision. The directorshall also keep a docket for public inspection of all
proceedings, in which shall be entered the dates of any notices,
the names of all persons notified and their addresses, the dates
of hearings, conferences and all orders, decrees, decisions,
determinations, rulings or other actions issued or taken by the
director and such docket shall constitute the record of each and
every proceeding before the director.
(c) The director shall have authority to make any
inspections and investigations of records and facilities which he
shall deem are deemed necessary or desirable to perform his the
director's functions under this article.
(d) Where in any section of this article provision is made
for the filing of objections, such objections shall be filed in
writing with the director, by the person entitled to file the
same or by the director, and shall state as definitely as is
reasonably possible the reasons for such objections. The person
filing such objections shall send a copy thereof by registered
mail to the person or persons affected thereby.
§22-9-10. 22B-4-10. Conferences, hearings and appeals.
(a) The director or any person having a direct interest in
the subject matter of this article may at any time request that
a conference be held for the purpose of discussing and
endeavoring to resolve by mutual agreement any matter arising
under the provisions of this article. Prompt notice of any such
conference shall be given by the director to all such interested
parties. At such conference a representative of the directorshall be in attendance, and the director may make such
recommendations as he deems are deemed appropriate. Any
agreement reached at such conference shall be consistent with the
requirements of this article and, if approved by such
representative of the director, it shall be reduced to writing
and shall be effective unless reviewed and rejected by the
director within ten days after the close of the conference. The
record of any such agreement approved by the director shall be
kept on file by the director with copies furnished to the
parties. The conference shall be deemed terminated as of the
date any party refuses to confer thereafter. Such a conference
shall be held in all cases prior to conducting any hearing under
this section.
(b) Within ten days after termination of the conference
provided for in this section at which no approved agreement has
been reached or within ten days after the rejection by the
director of any agreement approved at any such conference, any
person who has a direct interest in the subject matter of the
conference may submit the matter or matters, or any part thereof,
considered at the conference, to the director for determination
at a public hearing. The hearing procedure shall be formally
commenced by the filing of a petition with the director upon
forms prescribed by the director or by specifying in writing the
essential elements of the petition, including name and address of
the petitioner and of all other persons affected thereby, a clear
and concise statement of the facts involved, and a specificstatement of the relief sought. The hearing shall thereafter be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code and with such regulations
rules and such provisions as to reasonable notice as the director
may prescribe. Consistent with the requirements for reasonable
notice all hearings under this article shall be held by the
director promptly. All testimony taken at such hearings shall be
under oath and shall be reduced to writing by a reporter
appointed by the director, and the parties shall be entitled to
appear and be heard in person or by attorney. The director may
present at such hearing any evidence which is material to the
matter under consideration and which has come to the director's
attention in any investigation or inspection made pursuant to
provisions of this article.
(c) After the conclusion of hearings, the director shall
make and file his the director's findings and order with his the
director's opinion, if any. A copy of such order shall be served
by registered mail upon the person against whom it runs, or his
such person's attorney of record, and notice thereof shall be
given to the other parties to the proceedings, or their attorney
of record.
(d) The director may, at any time after notice and after
opportunity to be heard as provided in this section, rescind or
amend any approved agreement or order made by him the director.
Any order rescinding or amending a prior agreement or order
shall, when served upon the person affected, and after noticethereof is given to the other parties to the proceedings, have
the same effect as is herein provided for original orders; but no
such order shall affect the legality or validity of any acts done
by such person in accordance with the prior agreement or order
before receipt by such person of the notice of such change.
(e) The director shall have power, either personally or by
any of his the director's authorized representatives, to subpoena
witnesses and take testimony, and administer oaths to any witness
in any hearing, proceeding or examination instituted before the
director or conducted by him the director with reference to any
matter within the jurisdiction of the director. In all hearings
or proceedings before the director the evidence of witnesses and
the production of documentary evidence may be required at any
designated place of hearing; and in case of disobedience to a
subpoena or other process the director or any party to the
proceedings before the director may invoke the aid of any circuit
court in requiring the evidence and testimony of witnesses and
the production of such books, records, maps, plats, papers,
documents and other writings as he the director may deem
necessary or proper in and pertinent to any hearing, proceeding
or investigation held or had by him the director. Such court, in
case of the refusal of any such person to obey the subpoena,
shall issue an order requiring such person to appear before the
director and produce the required documentary evidence, if so
ordered, and give evidence touching the matter in question. Any
failure to obey such order of the court may be punished by suchcourt as contempt thereof. A claim that any such testimony or
evidence may tend to criminate incriminate the person giving the
same shall not excuse such witness from testifying, but such
witness shall not be prosecuted for any offense concerning which
he is the witness compelled hereunder to testify.
(f) With the consent of the director, the testimony of any
witness may be taken by deposition at the instance of a party to
any hearing before the director at any time after hearing has
been formally commenced. The director may, of his the director's
own motion, order testimony to be taken by deposition at any
stage in any hearing, proceeding or investigation pending before
him the director. Such deposition shall be taken in the manner
prescribed by the laws of West Virginia for taking depositions in
civil cases in courts of record.
(g) Whether or not it be so expressly stated, an appeal from
any final order, decision or action by the director in
administering the provisions of this article may be taken by any
aggrieved person within ten days of notice of such order,
decision or action, to the circuit court of the county in which
the subject matter of such order, decision or action is located,
and in all cases of appeals to the circuit court, that court
shall certify its decisions to the director. The circuit court
to which the appeal is taken shall hear the appeal without a jury
on the record certified by the director. In any such appeal the
findings of the director shall, if supported by substantial
evidence, be conclusive. If the order of the director is notaffirmed, the court may set aside or modify it, in whole or in
part, or may remand the proceedings to the director for further
disposition in accordance with the order of the court. From all
final decisions of the circuit court an appeal shall lie to the
supreme court of appeals as is now provided by law in cases in
equity, by the director as well as by any other party of record
before the circuit court.
Any party feeling aggrieved by the final order of the
circuit court affecting him, may present his petition in writing
to the supreme court of appeals, or to a judge thereof in
vacation, within twenty days after the entry of such order,
praying for the suspension or modification of such final order.
The applicant shall deliver a copy of such petition to the
director and to all other parties of record before presenting the
same to the court or judge. The court or judge shall fix a time
for the hearing on the application, but such hearing shall not be
held sooner than seven days after its presentation unless by
agreement of the parties, and notice of the time and place of
such hearing shall be forthwith given to the director and to all
other parties of record. If the court or judge, after such
hearing, be of opinion that such final order should be suspended
or modified, the court or the judge may require bond, upon such
conditions and in such penalty, and impose such terms and
conditions upon the petitioner as are just and reasonable. For
such hearing the entire record before the circuit court, or a
certified copy thereof, shall be filed in the supreme court, andthat court, upon such papers, shall promptly decide the matter in
controversy as may seem to it to be just and right, and may award
costs in each case as to it may seem just and equitable.
§22-9-11. 22B-4-11. Enforcement.
(a) The director or any person having a direct interest in
the subject matter of this article may complain in writing
setting forth that any person is violating or is about to
violate, any provisions of this article, or has done, or is about
to do, any act, matter or thing therein prohibited or declared to
be unlawful, or has failed, omitted, neglected or refused, or is
about to fail, omit, neglect or refuse, to perform any duty
enjoined upon him by this article. Upon the filing of a
complaint against any person, the director shall cause a copy
thereof to be served upon such person by registered mail
accompanied by a notice from the director setting such complaint
for hearing at a time and place specified in such notice. At
least five days' notice of such hearing shall be given to the
parties affected and such hearing shall be held in accordance
with the provisions of section ten of this article. Following
such hearing, the director shall, if he the director finds that
the matter alleged in the complaint is not in violation of this
article, dismiss the complaint, but if the director shall find
that the complaint is justified, he the director shall by
appropriate order compel compliance with this article.
(b) Whenever the director shall be of the opinion that any
person is violating, or is about to violate, any provisions ofthis article, or has done, or is about to do, any act, matter or
thing therein prohibited or declared to be unlawful, or has
failed, omitted, neglected or refused, or is about to fail, omit,
neglect or refuse, to perform any duty enjoined upon him the
director by this article, or has failed, omitted, neglected or
refused, or is about to fail, omit, neglect or refuse to obey any
lawful requirement or order made by the director, or any final
judgment, order or decree made by any court pursuant to this
article, then and in every such case the director may institute
in the circuit court of the county or counties wherein the
operation is situated, injunction, mandamus or other appropriate
legal proceedings to restrain such violations of the provisions
of this article or of orders of the director to enforce obedience
therewith. No injunction bond shall be required to be filed in
any such proceeding. Such persons or corporations as the court
may deem necessary or proper to be joined as parties in order to
make its judgment, order or writ effective may be joined as
parties. The final judgment in any such action or proceeding
shall either dismiss the action or proceeding or direct that the
writ of mandamus or injunction or other order, issue or be made
permanent as prayed for in the petition or in such modified or
other form as will afford appropriate relief. An appeal may be
taken as in other civil actions.
(c) In addition to the other remedies herein provided, any
storage operator or coal operator affected by the provisions of
this article may proceed by injunction or other appropriateremedy to restrain violations or threatened violations of the
provisions of this article or of orders of the director or the
judgments, orders or decrees of any court or to enforce obedience
therewith.
(d) Each remedy prescribed in this section shall be deemed
concurrent or contemporaneous with any other remedy prescribed
herein and the existence or exercise of any one such remedy shall
not prevent the exercise of any other such remedy.
§22-9-12. 22B-4-12. Penalties.
Any person who shall willfully violate any order of the
director issued pursuant to the provisions of this article shall
be guilty of a misdemeanor, and, on conviction thereof, shall be
punished by a fine not exceeding two thousand dollars, or
imprisoned in jail for not exceeding twelve months, or both, in
the discretion of the court, and prosecutions under this section
may be brought in the name of the state of West Virginia in the
court exercising criminal jurisdiction in the county in which the
violation of such provisions of the article or terms of such
order was committed, and at the instance and upon the relation of
any citizen of this state.
§22-9-13. 22B-4-13. Orders remain in effect.
All orders in effect upon the effective date of this article
pursuant to the provisions of former article seven four, chapter
twenty-two twenty-two-b of this code, shall remain in full force
and effect as if such orders were adopted by the division
established in this chapter but all such orders shall be subjectto review by the director to ensure they are consistent with the
purposes and policies set forth in this chapter.
ARTICLE 5. 10. THE WEST VIRGINIA ABANDONED WELL ACT.
§22-10-1. 22B-5-1. Short title.
This article may be cited as "The West Virginia "Abandoned
Well Act."
§22-10-2. 22B-5-2. Legislative findings; legislative statement
of policy and purpose.
(a) The Legislature finds and declares that:
(1) Oil and gas have been continuously produced in West
Virginia for over one hundred years, during which time operators
of wells have been required by the laws of this state to plug
wells upon cessation of use;
(2) The plugging requirements for certain older oil and gas
and other wells may not have been sufficient to protect
underground water supplies, to prevent the movement of fluids
between geologic horizons, to allow coal operators to mine
through such wells safely, nor to allow for enhanced recovery of
oil, gas or other mineral resources of this state;
(3) Many wells may exist in West Virginia which are
abandoned and either not plugged or not properly plugged in a
manner to protect underground water supplies, to prevent the
movement of fluids between geologic horizons, to allow coal
operators to mine through such wells safely, to allow for
enhanced recovery of oil, gas and other mineral resources, and
generally to protect the environment and mineral resources ofthis state, as aforesaid;
(4) Requirements for financial responsibility to assure
plugging of abandoned wells have not been required in this state
for older wells, and adequate financial responsibility should be
established with respect to all wells;
(5) Programs and policies should be implemented to foster,
encourage and promote through the fullest practical means the
proper plugging of abandoned wells to protect the environment and
mineral resources of this state;
(6) Criteria should be established with respect to
priorities for the expenditure of moneys available for plugging
abandoned wells and identifying those abandoned wells which, as
a matter of public policy, should be plugged first; and
(7) The plugging of many abandoned wells may be accomplished
through the establishment of rights and procedures allowing
interested persons to apply for a permit to plug an abandoned
well.
(b) The Legislature hereby declares that it is in the public
interest and it is the public policy of this state, to foster,
encourage and promote the proper plugging of all wells at the
time of their abandonment to protect the environment and mineral
resources of this state.
§22-10-3. 22B-5-3. Definitions.
Unless the context in which it is used clearly requires a
different meaning, as used in this article:
(a) "Abandoned well" means any well which is required to beplugged under the provisions of section nineteen, article one six
of this chapter and regulations rules promulgated pursuant
thereto.
(b) "Director" means for the purpose of this article, the
director of the division of environmental protection as
established in section two, article one of this chapter twenty-
two of this code or such other person as the director may
delegate his authority or duties to pursuant to section seven
sections six or eight, article one of this chapter. twenty-two of
this code.
(c) "Interested party" means, for the purpose of this
article, any owner, operator or lessee of the surface, oil, gas,
water, coal or other mineral resource under, on, adjacent or in
close proximity to any lands upon which an abandoned well exists,
and whose lands, rights or interests are or might be affected by
such abandoned well.
§22-10-4. 22B-5-4. Financial responsibility -- Applicability.
(a) Operators of all wells, not otherwise required to
demonstrate financial responsibility through bonding or otherwise
in accordance with the provisions of article one six of this
chapter, shall, no later than the first day of July, one thousand
nine hundred ninety-three, demonstrate financial responsibility
in accordance with the methods and in the amounts prescribed by
this article.
(b) If the operator demonstrates to the satisfaction of the
director that an unjust hardship to an operator will occur as aresult of the financial responsibility requirements of this
article:
(1) The director may suspend such financial responsibility
requirements to a date no later than the first day of July, one
thousand nine hundred ninety-five; or
(2) The director may authorize an operator to demonstrate
such financial responsibility by supplying twenty percent of any
required amount by no later than the first day of July, one
thousand nine hundred ninety-four; forty percent no later than
the first day of July, one thousand nine hundred ninety-five;
sixty percent no later than the first day of July, one thousand
nine hundred ninety-six; eighty percent by the first day of July,
one thousand nine hundred ninety-seven; and one hundred percent
by the first day of July, one thousand nine hundred ninety-eight.
(c) The operator making a demonstration of financial
responsibility pursuant to this section shall provide the
director with information sufficient to establish the location
and identification of the well, any well completion, recompletion
and reworking records which may exist and such other information
as the director may reasonably require.
§22-10-5. 22B-5-5. Financial responsibility -- Amount.
The financial responsibility requirements applicable to all
wells shall be as set forth in section twenty-six, article one
six of this chapter, except that the amount of financial
responsibility through bonding or otherwise, as provided for in
said section, for an individual well shall be in the amount offive thousand dollars. In lieu of separate, single well bonds,
an operator may either furnish a blanket bond in the sum of fifty
thousand dollars in accordance with the provisions of subsection
(c) of section twenty-six, article one six of this chapter, or if
the operator has previously provided a blanket bond in the sum of
fifty thousand dollars which remains in effect, the operator may
cover wells subject to this article by such existing blanket
bond.
§22-10-6. 22B-5-6. Establishment of priorities for plugging
expenditures.
(a) Within one year of the effective date of this article,
the director shall promulgate legislative rules establishing a
priority system by which available funds from the oil and gas
reclamation fund, established pursuant to section twenty-nine,
article one six of this chapter, will be expended to plug
abandoned wells. The rules shall, at a minimum, establish three
primary classifications to be as follows:
(1) Wells which are an immediate threat to the environment
or which may hinder or impede the development of mineral
resources of this state so as to require immediate plugging;
(2) Wells which are not an immediate threat to the
environment or which do not hinder or impede the development of
mineral resources of this state but which should be plugged
consistent with available resources; and
(3) Wells which are not a threat to the environment and
which do not hinder or impede the development of mineralresources of this state and for which plugging may be deferred
for an indefinite period.
(b) Such classifications shall, among other things, take
into consideration the following factors, as appropriate:
(1) The age of the well;
(2) The length of time the well has been abandoned;
(3) The casing remaining in the well;
(4) The presence of any leaks either at the surface or
underground;
(5) The possibility or existence of groundwater
contamination;
(6) Whether the well is located in an area to be developed
for enhanced recovery;
(7) Whether the well hinders or impedes mineral development;
and
(8) Whether the well is located in close proximity to
population.
§22-10-7. 22B-5-7. Right of interested person to plug, replug
and reclaim abandoned wells.
(a) Upon twenty days' advance written notice, it shall be
lawful for any interested person, the operator or the director to
enter upon the premises where any abandoned well is situated and
properly plug or replug such abandoned well, and to reclaim any
area disturbed by such plugging or replugging in the manner
required by article one six of this chapter. Such notice shall
be served by certified mail, returned receipt requested, or suchother manner as is sufficient for service of process in a civil
action, upon any owner of the surface of the land upon which such
abandoned well exists, upon any oil and gas lessee of record with
the director and upon any owner or operator of such abandoned
well of record with the director, or in the event there is no
such lessee, owner or operator of record with the director, by
posting such notice in a conspicuous place at or near such
abandoned well. The notice given the surface owner shall include
a statement advising the surface owner of the right to repairs or
damages as provided in this section and the potential right to
take any casing, equipment or other salvage. Such notice shall
be on forms approved by the director.
(b) Any interested person who plugs a well pursuant to the
provisions of this section shall, to the extent damage or
disturbance results from such plugging, either repair the damage
or disturbance or compensate the surface owner for (i) the
reasonable cost of repairing or replacing any water well, (ii)
the reasonable value of any crops destroyed, damaged or prevented
from reaching market, (iii) the reasonable cost of repair to
personal property up to the value of the replacement value of
personal property of like age, wear and quality, (iv) lost income
or expense incurred, and (v) reasonable costs to reclaim or
repair real property including roads.
(c) The interested person who is plugging the well pursuant
to the provisions of this section, may elect to take any casing,
equipment or other salvage which may result from the plugging ofsuch abandoned well by including notice of such election in the
written notice mandated by subsection (a) of this section.
Should such interested person who is plugging the well not give
such notice of election, the surface owner may elect to take any
casing, equipment or other salvage which may result from the
plugging of such abandoned well by giving written notice of such
election to the interested person who is plugging the well at
least ten days in advance of such plugging. In the event such
notice is given, such interested person who is plugging the well
may leave such casing, equipment or salvage at a location which
will not adversely affect any reclamation of a disturbed area.
In the event the surface owner does not give notice of an
election to take such casing, equipment or salvage as provided
herein, such interested person who plugs the well shall properly
dispose thereof. Nothing in this subsection shall be construed
to require or create a duty upon such interested person who plugs
the well to protect or pull casing or otherwise take any action
or incur any expense to retrieve or protect any casing, equipment
or salvageable material:
Provided,
That nothing contained in
this section may be construed to relieve the interested person
from the responsibility to perform in accordance with the
requirements of this article, article one six of this chapter, or
any condition of the permit.
(d) Prior to releasing any bond which is obtained in
connection with plugging or replugging an abandoned well under
the provisions of this section, the director shall obtain fromthe interested person who has obtained the bond a copy of a
letter that such interested person has sent to the surface owner
advising that reclamation has been completed.
(e) Where an interested person who intends to plug an
abandoned well pursuant to this section is unable to obtain a
bond in the full amount required by section twenty-six, article
one six of this chapter, the director may authorize a bond in a
lesser amount; which lesser amount shall be equal or greater than
the estimated cost of reclaiming the surface areas disturbed by
the plugging operation:
Provided,
That an owner or operator of
a well shall comply with the financial responsibility provisions
of section five of this article and section twenty-six, article
one six of this chapter.
(f) In the event the owner or operator of a well fails or
has failed to plug a well in accordance with laws and regulations
rules in effect at the time the well is or was first subject to
plugging requirements, any interested person who plugs or replugs
such well pursuant to the provisions of this section may recover
from the owner or operator of such well all reasonable costs
incidental to such plugging or replugging, including any
compensation provided for in this section. In the event funds
from the oil and gas reclamation fund established pursuant to
section twenty-nine, article one six of this chapter are used to
plug or replug such well, the director shall be entitled to
recover from the owner or operator of such well any amounts so
expended from the fund. Any amounts so recovered by the directorshall be deposited in said fund.
§22-10-8. 22B-5-8. Arbitration; fees and costs.
(a) If the interested person who plugs a well and the
surface owner are unable to agree as to the adequacy of the
repairs performed or the amount of compensation to which the
surface owner may be entitled, either party upon written notice
to the other may elect to have such issue finally determined by
binding arbitration pursuant to article ten, chapter fifty-five
of this code.
(b) The adequacy of the repairs or compensation to which the
surface owner may be entitled shall, if such election is made, be
determined by a panel of three disinterested arbitrators. The
first arbitrator shall be chosen by the party electing to
arbitrate in his such person's notice of election; the second
arbitrator shall be chosen by the other party within ten days
after receipt of the notice of election; and the third arbitrator
shall be chosen jointly by the first two arbitrators within
twenty days thereafter. If they are unable to agree upon the
third arbitrator within twenty days, then the two arbitrators are
hereby empowered to and shall forthwith submit the matter to the
court under the provisions of section one, article ten, chapter
fifty-five of this code, so that, among other things, the third
arbitrator can be chosen by the judge of the circuit court of the
county wherein the surface estate lies.
(c) The following persons shall be deemed interested and not
be appointed as arbitrators: Any person who is personallyinterested in the land on which the plugging is being performed
or has been performed, or in any interest or right therein, or in
the compensation and any damages to be awarded therefor, or who
is related by blood or marriage to any person having such
personal interest, or who stands in the relation of guardian and
ward, master and servant, principal and agent, or partner, real
estate broker, or surety to any person having such personal
interest, or who has enmity against or bias in favor of any
person who has such personal interest or who is the owner of, or
interested in, such land or the oil and gas development thereof.
No person shall be deemed interested or incompetent to act as
arbitrator by reason of his being an inhabitant of the county,
district or municipal corporation wherein the land is located, or
holding an interest in any other land therein.
(d) The panel of arbitrators shall hold hearings and take
such testimony and receive such exhibits as shall be necessary to
determine the required repairs or the amount of compensation to
be paid to the surface owner. However, no award requiring
repairs or compensation shall be made to the surface owner unless
the panel of arbitrators has first viewed the surface estate in
question. A transcript of the evidence may be made but shall not
be required.
(e) Each party shall pay the compensation of his such
party's own arbitrator and one half of the compensation of the
third arbitrator, and his such party's own costs.
§22-10-9. 22B-5-9. Civil penalties.
(a) Any person who fails to plug an abandoned well within
thirty days, or upon a showing of good cause, within a longer
period as determined by the director not to exceed one hundred
eighty days, from the date such plugging is ordered by the
director, shall be liable for a civil penalty of twenty-five
thousand dollars which penalty shall be recovered in a civil
action in the circuit court wherein the abandoned well is
located.
(b) The net proceeds of all civil penalties collected
pursuant to subsection (a) of this section shall be deposited
into the oil and gas reclamation fund established pursuant to
section twenty-nine, article one six of this chapter.
§22-10-10. 22B-5-10. Rule making; procedure; judicial review.
(a) The director shall have the power and authority to
promulgate legislative rules, procedural rules and interpretive
rules in accordance with the provisions of chapter twenty-nine-a
of this code in order to carry out and implement the provisions
of this article.
(b) Any hearings or proceedings before the director on any
matter other than rule making shall be conducted and heard by the
director or a representative designated by him the director and
shall be in accordance with the provisions of article five,
chapter twenty-nine-a of this code.
(c) Any person having an interest which is or may be
adversely affected, who is aggrieved by an order of the director
issued pursuant to this article, or by the issuance or denial ofa permit pursuant to this article or by the permit's terms or
conditions, is entitled to judicial review thereof. All of the
pertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in extenso in this section.
(d) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
§22-10-11. 22B-5-11. Existing rights and remedies preserved.
(a) It is the purpose of this article to provide additional
and cumulative remedies to address abandoned wells in this state
and nothing herein contained shall abridge or alter rights of
action or remedies now or hereafter existing, nor shall any
provisions in this article, or any act done by virtue of this
article, be construed as estopping the state, municipalities,
public health officers or persons in the exercise of their rights
to suppress nuisance or to abate any pollution now or hereafter
existing, or to recover damages.
(b) An order of the director, the effect of which is to find
that an abandoned well exists, or in ordering an abandoned well
to be plugged, or any other order, or any violation of any of the
provisions of this article shall give rise to no presumptions of
law or findings of fact inuring to or for the benefit of persons
other than the state of West Virginia.
(c) Nothing contained in this article shall be construed to
place any duty or responsibility on the landowner, well owner or
operator or lessee to plug a well in addition to those set forth
in article one six of this chapter.
§22-10-12. 22B-5-12. Conflicting Provisions of article
supplemental.
The provisions of this article shall be in addition to and
supplement all other provisions of article one eight of this
chapter and rights with respect to plugging or replugging wells.
Nothing in this article shall be construed to eliminate the
permit requirement for plugging and replugging wells. In the
event of any inconsistency or conflict between any provision of
this article and any provision of this code, the provisions of
this article shall control.
ARTICLE 11. WATER POLLUTION CONTROL ACT
§22-11-1. 20-5A-21. Short title.
This article may be known and cited as the "Water Pollution
Control Act."
§22-11-2. 20-5A-1. Declaration of policy.
(a) It is declared to be the public policy of the state of
West Virginia to maintain reasonable standards of purity and
quality of the water of the state consistent with (1) public
health and public enjoyment thereof; (2) the propagation and
protection of animal, bird, fish, aquatic and plant life; and (3)
the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanentfoundation for healthy industrial development.
(b) It is also the public policy of the state of West
Virginia that the water resources of this state with respect to
the quantity thereof be available for reasonable use by all of
the citizens of this state.
§22-11-3. 20-5A-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(r) (1) "Activity" or "activities" shall mean means any
activity or activities for which a permit is required by the
provisions of section five seven of this article;
(b) (2) "Board" shall mean means the state water resources
environmental quality board, provided for in article three,
chapter twenty-two-b of this code;
(c) (3) "Chief" shall mean means the chief of the section
office of water resources of the division of natural resources
environmental protection;
(u) (4) "Code" shall mean means the code of West Virginia,
one thousand nine hundred thirty-one, as amended;
(a) (5) "Director" shall mean means the director of the
division of natural resources environmental protection or such
other person the director has delegated authority or duties to
pursuant to sections six or eight, article one of this chapter;
(o) (6) "Disposal system" shall mean means a system for
treating or disposing of sewage, industrial wastes or other
wastes, or the effluent therefrom, either by surface orunderground methods, and shall be construed to include includes
sewer systems, the use of subterranean spaces, treatment works,
disposal wells and other systems;
(s) (7) "Disposal well" shall mean means any well drilled or
used for the injection or disposal of treated or untreated
sewage, industrial wastes or other wastes into underground
strata;
(v) (8) "Division" shall mean means the division of natural
resources environmental protection;
(t) (9) "Effluent limitation" shall mean means any
restriction established on quantities, rates and concentrations
of chemical, physical, biological and other constituents which
are discharged into the waters of this state;
(k) (10) "Establishment" shall mean means an industrial
establishment, mill, factory, tannery, paper or pulp mill, mine,
colliery, breaker or mineral processing operation, quarry,
refinery, well and each and every industry or plant or works in
the operation or process of which industrial wastes, sewage or
other wastes are produced;
(i) (11) "Industrial user" shall mean means those industries
identified in the standard industrial classification manual,
United States Bureau of the Budget, 1967, as amended and
supplemented, under the category "division d--manufacturing" and
other classes of significant waste producers identified under
regulations issued by the board director or the administrator of
the United States environmental protection agency;
(h) (12) "Industrial wastes" shall mean means any liquid,
gaseous, solid or other waste substance, or a combination
thereof, resulting from or incidental to any process of industry,
manufacturing, trade or business, or from or incidental to the
development, processing or recovery of any natural resources; and
the admixture with such industrial wastes of sewage or other
wastes, as hereinafter defined, shall is also be considered
"industrial wastes waste" within the meaning of this article;
(j) (13) "Other wastes" shall mean means garbage, refuse,
decayed wood, sawdust, shavings, bark and other wood debris and
residues resulting from secondary processing; sand, lime,
cinders, ashes, offal, night soil, silt, oil, tar, dyestuffs,
acids, chemicals, heat or all other materials and substances not
sewage or industrial wastes which may cause or might reasonably
be expected to cause or to contribute to the pollution of any of
the waters of the state;
(p) (14) "Outlet" shall mean means the terminus of a sewer
system or the point of emergence of any water-carried sewage,
industrial wastes or other wastes, or the effluent therefrom,
into any of the waters of this state, and shall include includes
a point source;
(d) (15) "Person", "persons" or "applicant" shall mean means
any industrial user, public or private corporation, institution,
association, firm or company organized or existing under the laws
of this or any other state or country; state of West Virginia;
governmental agency, including federal facilities; politicalsubdivision; county commission; municipal corporation; industry;
sanitary district; public service district; drainage district;
soil conservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or any
legal entity whatever;
(q) (16) "Point source" shall mean means any discernible,
confined and discrete conveyance, including, but not limited to,
any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock or vessel or other floating
craft, from which pollutants are or may be discharged;
(x) (17) "Pollutant" shall mean means industrial wastes,
sewage or other wastes as defined in this section.
(f) (18) "Pollution" shall mean means the man-made or man-
induced alteration of the chemical, physical, biological and
radiological integrity of the waters of the state;
(n) (19) "Publicly owned treatment works" shall mean means
any treatment works owned by the state or any political
subdivision thereof, any municipality or any other public entity,
for the treatment of pollutants;
(g) (20) "Sewage" shall mean means water-carried human or
animal wastes from residences, buildings, industrial
establishments or other places, together with such groundwater
infiltration and surface waters as may be present;
(l) (21) "Sewer system" shall mean means pipelines or
conduits, pumping stations, force mains and all otherconstructions, facilities, devices and appliances appurtenant
thereto, used for collecting or conducting sewage, industrial
wastes or other wastes to a point of disposal or treatment;
(m) (22) "Treatment works" shall mean means any plant,
facility, means, system, disposal field, lagoon, pumping station,
constructed drainage ditch or surface water intercepting ditch,
diversion ditch above or below the surface of the ground,
settling tank or pond, earthen pit, incinerator, area devoted to
sanitary landfills or other works not specifically mentioned
herein, installed for the purpose of treating, neutralizing,
stabilizing, holding or disposing of sewage, industrial wastes or
other wastes or for the purpose of regulating or controlling the
quality and rate of flow thereof;
(e) (23) "Water resources", "water" or "waters" shall mean
means any and all water on or beneath the surface of the ground,
whether percolating, standing, diffused or flowing, wholly or
partially within this state, or bordering this state and within
its jurisdiction, and shall include includes, without limiting
the generality of the foregoing, natural or artificial lakes,
rivers, streams, creeks, branches, brooks, ponds (except farm
ponds, industrial settling basins and ponds and water treatment
facilities), impounding reservoirs, springs, wells, watercourses
and wetlands; and
(w) (24) "Well" shall mean means any shaft or hole sunk,
drilled, bored or dug into the earth or into underground strata
for the extraction or injection or placement of any liquid orgas, or any shaft or hole sunk or used in conjunction with such
extraction or injection or placement. The term "well" shall not
have included within its meaning does not include any shaft or
hole sunk, drilled, bored or dug into the earth for the sole
purpose of core drilling or pumping or extracting therefrom
potable, fresh or usable water for household, domestic,
industrial, agricultural or public use. and
§22-11-4. 20-5A-3. General powers and duties of chief and board
director with respect to pollution.
(a) In addition to all other powers and duties of the chief
of the department's division of water resources, as prescribed in
this article or elsewhere by law, the chief, under the
supervision of the director, shall have the director has and may
exercise, subject to specific grants of authority to the chief or
the board in this article or elsewhere in this code, the
following powers and authority and shall perform the following
duties:
(1) To perform any and all acts necessary to carry out the
purposes and requirements of this article and of the "Federal
Water Pollution Control Act," as amended, relating to this
state's participation in the "National Pollutant Discharge
Elimination System" established under that act;
(2) To encourage voluntary cooperation by all persons in the
conservation, improvement and development of water resources and
in controlling and reducing the pollution of the waters of this
state, and to advise, consult and cooperate with all persons, allagencies of this state, the federal government or other states,
and with interstate agencies in the furtherance of the purposes
of this article, and to this end and for the purpose of studies,
scientific or other investigations, research, experiments and
demonstrations pertaining thereto, the department division may
receive moneys from such agencies, officers and persons on behalf
of the state. The department division shall pay all moneys so
received into a special fund hereby created in the state
treasury, which fund shall be expended under the direction of the
chief director solely for the purpose or purposes for which the
grant, gift or contribution shall have been was made;
(3) To encourage the formulation and execution of plans by
cooperative groups or associations of municipal corporations,
industries, industrial users, and other users of waters of the
state, who, jointly or severally, are or may be the source of
pollution of such waters, for the control and reduction of
pollution;
(4) To encourage, participate in, or conduct or cause to be
conducted studies, scientific or other investigations, research,
experiments and demonstrations relating to the water resources of
the state and water pollution , and the its causes, control and
reduction, thereof and to collect data with respect thereto, all
as may be deemed advisable and necessary to carry out the
purposes of this article;
(5) To study and investigate all problems concerning water
flow, water pollution and the control and reduction of pollutionof the waters of the state, and to make reports and
recommendations with respect thereto;
(6) To collect and disseminate information relating to water
pollution and the control and reduction thereof;
(7) To develop a public education and promotion program to
aid and assist in publicizing the need of for, and securing
support for, pollution control and abatement;
(8) To sample ground and surface water with sufficient
frequency to ascertain the standards of purity or quality from
time to time of the waters of the state;
(9) To develop programs for the control and reduction of the
pollution of the waters of the state;
(10) To exercise general supervision over the administration
and enforcement of the provisions of this article, and all rules,
regulations, permits and orders issued pursuant to the provisions
of this article and articles one and three, chapter twenty-two-b
of this code;
(11) In cooperation with the college of engineering at West
Virginia University and the schools and departments of
engineering at other institutions of higher education operated by
this state, to conduct studies, scientific or other
investigations, research, experiments and demonstrations in an
effort to discover economical and practical methods for the
elimination, disposal, control and treatment of sewage,
industrial wastes, and other wastes, and the control and
reduction of water pollution, and to this end, the chief directormay cooperate with any public or private agency and receive
therefrom, on behalf of the state, and for deposit in the state
treasury, any moneys which such agency may contribute as its part
of the expenses thereof, and all gifts, donations or
contributions received as aforesaid shall be expended by the
chief director according to the requirements or directions of the
donor or contributor without the necessity of an appropriation
therefor, except that an accounting thereof shall be made in the
fiscal reports of the department division;
(12) To require the prior submission of plans,
specifications, and other data relative to, and to inspect the
construction and operation of, any activity or activities in
connection with the issuance and revocation of such permits as
are required by this article or the rules and regulations
promulgated hereunder or pursuant to article three, chapter
twenty-two-b of this code;
(13) To require any and all persons directly or indirectly
discharging, depositing or disposing of treated or untreated
sewage, industrial wastes or other wastes, or the effluent
therefrom, into or near any waters of the state or into any
underground strata, and any and all persons operating an
establishment which produces or which may produce or from which
escapes, releases or emanates or may escape, release or emanate
treated or untreated sewage, industrial wastes or other wastes,
or the effluent therefrom, into or near any waters of the state
or into any underground strata, to file with the division ofwater resources such information as the chief director may
require in a form or manner prescribed by him for such purpose,
including, but not limited to, data as to the kind,
characteristics, amount and rate of flow of any such discharge,
deposit, escape, release or disposition; and
(14) To adopt, modify, or repeal procedural rules and
interpretive rules in accordance with the provisions of chapter
twenty-nine-a of this code administering and implementing the
powers, duties and responsibilities vested in the chief director
by the provisions of this article;
(b) In addition to all other powers and duties of the water
resources board, as prescribed in this article or elsewhere by
law, the board shall have and may exercise the following powers
and authority and shall perform the following duties:
(1) (15) To cooperate with any interstate agencies for the
purpose of formulating, for submission to the Legislature,
interstate compacts and agreements relating to: (A) the control
and reduction of water pollution, and (B) the state's share of
waters in watercourses bordering the state; [Drafter's note: The
substance of the underscored portion of this subdivision came
from §20-5-5 (b) (1).]
(2) (16) To adopt, modify, repeal and enforce rules and
regulations, in accordance with the provisions of chapter twenty-
nine-a of this code, (A) implementing and making effective the
declaration of policy contained in section one of this article
and the powers, duties and responsibilities vested in the boarddirector and the chief by the provisions of this article and
otherwise by law; (B) preventing, controlling and abating
pollution; (C) establishing standards of quality for the waters
of the state under such conditions as the board may prescribe for
the prevention, control and abatement of pollution; and (D) and
(C) to facilitate facilitating the state's participation in the
"National Pollutant Discharge Elimination System" pursuant to the
"Federal Water Pollution Control Act," as amended:
Provided,
That no such rule and regulation adopted by the board director
shall specify the design of equipment, type of construction or
particular method which a person shall use to reduce the
discharge of a pollutant; and Provided further, That the board
may not modify or repeal by rule making procedural rules and
interpretive rules promulgated by the chief in accordance with
the provisions of chapter twenty-nine-a of this code
administering and implementing the powers, duties and
responsibilities vested in the chief by the provisions of this
article;
(3) To make and enter a consent order which shall have the
same effect as an order entered after a hearing as provided in
section fifteen of this article.
(c) The board is hereby authorized to hire one or more
individuals to serve as hearing examiners on a full or part-time
basis. Such individuals may be attorneys-at-law admitted to
practice before any circuit court of this state. All such hearing
examiners shall be individuals authorized to take depositionsunder the laws of this state.
(17) To advise all users of water resources as to the
availability of water resources and the most practicable method
of water diversion, use, development and conservation; [Drafter's
note: The above subdivision was originally §20-5-5 (a)(2).]
(d) (b) Whenever required to carry out the objectives of
this article: (A) the chief director shall require the owner or
operator of any point source or establishment to (i) establish
and maintain such records, (ii) make such reports, (iii) install,
use and maintain such monitoring equipment or methods, (iv)
sample such effluents in accordance with such methods, at such
locations, at such intervals and in such manner as the chief
director shall prescribe, and (v) provide such other information
as he the director may reasonably require. and (B)
(c) The chief or his authorized representative director upon
presentation of credentials (i) shall have has a right of entry
to, upon or through any premises in which an effluent source is
located or in which any records required to be maintained under
(A) of this subsection (b) of this section are located, and (ii)
may at reasonable times have access to and copy any records,
inspect any monitoring equipment or method required under (A) of
this subsection (b) of this section and sample any streams in the
area as well as sample any effluents which the owner or operator
of such source is required to sample under (A) of this subsection
(b) of this section. Nothing in this subsection eliminates any
obligation to follow any process that may be required by law.
(e) (d) The board director is hereby authorized and
empowered to investigate and ascertain the need and factual basis
for the establishment of public service districts as a means of
controlling and reducing pollution from unincorporated
communities and areas of the state, investigate and ascertain,
with the assistance of the public service commission, the
financial feasibility and projected financial capability of the
future operation of any such public service district or
districts, and to present reports and recommendations thereon to
the county commissions of the areas concerned, together with a
request that such county commissions create a public service
district or districts, as therein shown to be needed and required
and as provided in article thirteen-a, chapter sixteen of this
code. In the event a county commission shall fail fails to act
to establish a county-wide public service district or districts,
the board director shall act jointly with the state director of
health, the director of the department of natural resources and
the chief of the division of water resources commissioner of the
bureau of public health to further investigate and ascertain the
financial feasibility and projected financial capability and,
subject to the approval of the public service commission, order
the county commission to take action to establish such public
service district or districts as may be necessary to control,
reduce or abate the pollution, and when so ordered the county
commission members must act to establish such a county-wide
public service district or districts.
(e) The director has the authority to enter at all
reasonable times upon any private or public property for the
purpose of making surveys, examinations, investigations and
studies needed in the gathering of facts concerning the water
resources of the state and their use, subject to responsibility
for any damage to the property entered. Upon entering, and
before making any survey, examination, investigation and study,
such person shall immediately present himself or herself to the
occupant of the property. Upon entering property used in any
manufacturing, mining or other commercial enterprise, or by any
municipality or governmental agency or subdivision, and before
making any survey, examination, investigation and study, such
person shall immediately present himself or herself to the person
in charge of the operation, and if he or she is not available, to
a managerial employee. All persons shall cooperate fully with
the person entering such property for such purposes. Upon
refusal of the person owning or controlling such property to
permit such entrance or the making of such surveys, examinations,
investigations and studies, the director may apply to the circuit
court of the county in which such property is located, or to the
judge thereof in vacation, for an order permitting such entrance
or the making of such surveys, examinations, investigations and
studies; and jurisdiction is hereby conferred upon such court to
enter such order upon a showing that the relief asked is
necessary for the proper enforcement of this article:
Provided,
however,
That a dwelling occupied for residential purposes shallnot be entered without a search warrant nothing in this
subsection eliminates any obligation to follow any process that
may be required by law. [Drafter's note: Except for the change
in the proviso, the above subsection was originally §20-5-5 (c).]
§22-11-5. 20-5-14. Water areas beautification; investigations;
law enforcement.
The division of water resources shall be responsible for the
department's shall maintain a program and practices in the
husbandry of rivers, streams, creeks, branches, brooks, lakes,
industrial settling basins and ponds, waste treatment facilities,
and other water areas (except farm ponds) waters of the state
and the lands immediately adjacent thereto. The chief of the
division director shall make such investigations and surveys,
conduct such schools and public meetings and take such other
steps as may be expedient in the conservation, beautification,
improvement and use of all such water areas of the state. He The
director shall cooperate with the department's division of
natural resources' chief law enforcement officer in enforcing the
provisions of law prohibiting the disposal of litter in, along
and near such water areas.
§22-11-6. 20-5A-3a. Requirement to comply with standards of
water quality and effluent limitations.
(a) In order to carry out the purposes of this article, the
board shall promulgate rules and regulations setting standards of
water quality and effluent limitations to be applicable to the
waters of this state, which standards of quality and effluentlimitations shall be such as to protect the public health and
welfare, wildlife, fish and aquatic life, and the present and
prospective future uses of such waters for domestic,
agricultural, industrial, recreational, scenic and other
legitimate beneficial uses thereof.
(b) In establishing, amending, revising or repealing rules
and regulations relating to the water quality standards and
effluent limitations, the board shall follow all procedures
provided by article three, chapter twenty-nine-a of the code.
(c) All persons affected by rules and regulations
establishing water quality standards and effluent limitations
shall promptly comply therewith:
Provided,
That where necessary
and proper, the chief may specify a reasonable time for persons
not complying with such standards and limitations to comply
therewith, and upon the expiration of any such period of time,
the chief shall revoke or modify any permit previously issued
which authorized the discharge of treated or untreated sewage,
industrial wastes or other wastes into the waters of this state
which result in reduction of the quality of such waters below the
standards and limitations established therefor by rules and
regulations of the board or director.
§22-11-7. 20-5A-4. Cooperation with other governments and
agencies.
The division office of water resources is hereby designated
as the water pollution control agency for this state for all
purposes of federal legislation and is hereby authorized to takeall action necessary or appropriate to secure to this state the
benefits of said legislation. In carrying out the purposes of
this section, the chief is hereby authorized to cooperate with
the United States environmental protection agency and other
agencies of the federal government, other states, interstate
agencies and other interested parties in all matters relating to
water pollution, including the development of programs for
controlling and reducing water pollution and improving the
sanitary conditions of the waters of the state; to apply for and
receive, on behalf of this state, funds made available under the
aforesaid federal legislation on condition that all moneys
received from any federal agency as herein provided shall be paid
into the state treasury and shall be expended, under the
direction of the chief director, solely for purposes for which
the grants shall have been are made; to approve projects for
which applications for loans or grants under the federal
legislation are made by any municipality (including any city,
town, district or other public body created by or pursuant to the
laws of this state and having jurisdiction over the disposal of
sewage, industrial wastes or other wastes) or agency of this
state or by any interstate agency; and to participate through his
authorized representatives in proceedings under the federal
legislation to recommend measures for the abatement of water
pollution originating in this state. The governor is hereby
authorized, in his discretion, to may give consent on behalf of
this state to requests by the administrator of the United Statesenvironmental protection agency to the attorney general of the
United States for the bringing of actions for the abatement of
such pollution. Whenever a federal law requires the approval or
recommendation of a state agency or any political subdivision of
the state in any matter relating to the water resources of the
state, the director, subject to approval of the Legislature, is
hereby designated as the sole person to give the approval or
recommendation required by the federal law, unless the federal
law specifically requires the approval or recommendation of some
other state agency or political subdivision of the state.
§22-11-8. 20-5A-5. Prohibitions; permits required.
(a) The chief may, after public notice and opportunity for
public hearing, issue a permit for the discharge or disposition
of any pollutant or combination of pollutants into waters of this
state upon condition that such discharge or disposition meets or
will meet all applicable state and federal water quality
standards and effluent limitations and all other requirements of
this article and article three, chapter twenty-two-b of this
code.
(b) It shall be is unlawful for any person, unless he the
person holds a permit therefor from the department division,
which is in full force and effect, to:
(1) Allow sewage, industrial wastes or other wastes, or the
effluent therefrom, produced by or emanating from any point
source, to flow into the waters of this state;
(2) Make, cause or permit to be made any outlet, orsubstantially enlarge or add to the load of any existing outlet,
for the discharge of sewage, industrial wastes or other wastes,
or the effluent therefrom, into the waters of this state;
(3) Acquire, construct, install, modify or operate a
disposal system or part thereof for the direct or indirect
discharge or deposit of treated or untreated sewage, industrial
wastes or other wastes, or the effluent therefrom, into the
waters of this state, or any extension to or addition to such
disposal system;
(4) Increase in volume or concentration any sewage,
industrial wastes or other wastes in excess of the discharges or
disposition specified or permitted under any existing permit;
(5) Extend, modify or add to any point source, the operation
of which would cause an increase in the volume or concentration
of any sewage, industrial wastes or other wastes discharging or
flowing into the waters of the state;
(6) Construct, install, modify, open, reopen, operate or
abandon any mine, quarry or preparation plant, or dispose of any
refuse or industrial wastes or other wastes from any such mine or
quarry or preparation plant:
Provided,
That the department's
division's permit shall only be is only required wherever the
aforementioned activities cause, may cause or might reasonably be
expected to cause a discharge into or pollution of waters of the
state, except that a permit shall be is required for any
preparation plant:
Provided, however,
That unless waived in
writing by the chief, every application for a permit to open,reopen or operate any mine, quarry or preparation plant or to
dispose of any refuse or industrial wastes or other wastes from
any such mine or quarry or preparation plant shall contain a plan
for abandonment of such facility or operation, which plan shall
comply in all respects to the requirements of this article. Such
plan of abandonment shall be is subject to modification or
amendment upon application by the permit holder to the chief and
approval of such modification or amendment by the chief;
(7) Operate any disposal well for the injection or
reinjection underground of any industrial wastes, including, but
not limited to, liquids or gases, or convert any well into such
a disposal well or plug or abandon any such disposal well.
(c) Where a person has a number of outlets emerging into the
waters of this state in close proximity to one another, such
outlets may be treated as a unit for the purposes of this
section, and only one permit issued for all such outlets.
(d) For water pollution control and national pollutant
discharge elimination system permits issued for activities
regulated by the office of mining and reclamation and the office
of oil and gas, the chief of the office of water resources may
delegate functions, procedures and activities to the respective
chiefs of those offices. Permits for such activities shall be
issued under the supervision of and with the signature and
approval of the chief of the office of water resources who shall
review and approve all procedures, effluent limits and other
conditions of such permits.
§22-11-9. 20-5A-6. Form of application for permit; information
required.
The chief shall prescribe a form of application for all
permits for any activity specified in section five eight of this
article and, notwithstanding any other provision of law to the
contrary, no other discharge permit or discharge authorization
from any other state department, agency, commission, board or
officer shall be is required for such activity except that which
is required from the department of mines by the provisions of
chapter twenty-two office of miners' health, safety and training
pursuant to section seventy-six, article two, chapter twenty-two-
a of this code. All applications must be submitted on a form as
prescribed above. An applicant shall furnish all information
reasonably required by any such form, including without limiting
the generality of the foregoing, a plan of maintenance and
proposed method of operation of the activity or activities.
Until all such required information is furnished, an application
shall not be considered is not a complete application. The chief
and board division shall protect any information (other than
effluent data) contained in such permit application form, or
other records, reports or plans as confidential upon a showing by
any person that such information, if made public, would divulge
methods or processes entitled to protection as trade secrets of
such person. If, however, the information being considered for
confidential treatment is contained in a national pollutant
discharge elimination form, the chief or board shall forward suchinformation to the regional administrator of the United States
environmental protection agency for his concurrence in any
determination of confidentiality.
§22-11-10. 20-5A-6a. Water quality management fund established;
permit application fees; annual permit fees; dedication of
proceeds; rules and regulations.
(a) A special revenue fund designated the "Water Quality
Management Fund" shall be established in the state treasury on
the first day of July, one thousand nine hundred eighty-nine.
(b) The permit application fees and annual permit fees
established and collected pursuant to this section shall be
deposited into the water quality management fund. The director
shall expend the proceeds of the water quality management fund
for the review of initial permit applications, renewal permit
applications and permit issuance activities.
(c) The director shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code, to
establish a schedule of application fees for which the
appropriate fee shall be submitted by the applicant to the
department division with the application filed pursuant to this
article for any state water pollution control permit or national
pollutant discharge elimination system permit. Such schedule of
application fees shall be designed to establish reasonable
categories of permit application fees based upon the complexity
of the permit application review process required by the
department division pursuant to the provisions of this articleand the rules promulgated thereunder:
Provided,
That no initial
application fee shall exceed seven thousand five hundred dollars
for any facility nor shall any permit renewal application fee
exceed two thousand five hundred dollars. The department
division shall not process any permit application pursuant to
this article until said permit application fee has been received.
(d) The director shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code, to
establish a schedule of annual permit fees which shall be
assessed annually upon each person holding a state water
pollution control permit or national pollutant discharge
elimination system permit issued pursuant to this article. Each
person holding such a permit shall pay the prescribed annual
permit fee to the department division pursuant to the rules and
regulations promulgated hereunder. Such schedule of annual
permit fees shall be designed to establish reasonable categories
of annual permit fees based upon the relative potential of such
categories or permits to degrade the waters of the state:
Provided,
That no annual permit fee may exceed two thousand five
hundred dollars. Any such permit issued pursuant to this article
shall be is void when the annual permit fee is more than one
hundred eighty days past due pursuant to the rules promulgated
hereunder.
(e) The provisions of this section shall are not be
applicable to fees required for permits issued under article
three of this chapter. twenty-two-a of this code.
§22-11-11. 20-5A-7. Procedure concerning permits required under
article; transfer of permits; prior permits.
(a) The chief or his or her duly authorized representatives
shall conduct such investigation as is deemed necessary and
proper in order to determine whether any such application should
be granted or denied. In making such investigation and
determination as to any application pertaining solely to sewage,
the chief shall consult with the director of the division of
sanitary engineering of the state department of office of
environmental health services of the state bureau of public
health, and in making such investigation and determination as to
any application pertaining to any activity specified in
subdivision (7), subsection (b), section five eight of this
article, the chief shall consult with the director of the state
geological and economic survey and the deputy director chief of
the office of oil and gas of the division of the department of
mines, and all such persons shall cooperate with the chief and
assist him or her in carrying out the duties and responsibilities
imposed upon him or her under the provisions of this article and
the rules and regulations of the director and board; such
cooperation shall include, but not be limited to, a written
recommendation approving or disapproving the granting of the
permit and the reason or reasons for such recommendation, which
recommendation and the reason or reasons therefor shall be
submitted to the chief within the specified time period
prescribed by rules and regulations of the board director.
(b) The department's division's permit shall be issued upon
such reasonable terms and conditions as the chief may direct if
(1) the application, together with all supporting information and
data and other evidence, establishes that any and all discharges
or releases, escapes, deposits and disposition of treated or
untreated sewage, industrial wastes or other wastes, or the
effluent therefrom, resulting from the activity or activities for
which the application for a permit was made will not cause
pollution of the waters of this state or violate any effluent
limitations or any rules and regulations of the board or
director:
Provided,
That the chief may issue a permit whenever
in his or her judgment the water quality standards of the state
may be best protected by the institution of a program of phased
pollution abatement which under the terms of the permit may
temporarily allow a limited degree of pollution of the waters of
the state; and (2) in cases wherein it is required, such
applicant shall include the name and address of the responsible
agent as set forth in subsection (e), section section six, eight-
b of this article six of this chapter.
(c) Each permit issued under this article shall have a fixed
term not to exceed five years:
Provided,
That when the
applicant, in accordance with agency rules, has made a timely and
complete application for permit reissuance, the permit term may
be extended by the chief, at his or her discretion, for a period
not to exceed one hundred twenty months beyond its expiration
date. Upon expiration of a permit, a new permit may be issued bythe chief upon condition that the discharges or releases,
escapes, deposits and disposition thereunder meet or will meet
all applicable state and federal water quality standards,
effluent limitations and all other requirements of this article.
(d) An application for a permit incident to remedial action
in accordance with the provisions of section eleven sixteen of
this article shall be processed and decided as any other
application for a permit required under the provisions of section
five eight of this article.
(e) A complete application for any permit shall be acted
upon by the chief, and the department's division's permit
delivered or mailed, or a copy of any order of the chief denying
any such application delivered or mailed to the applicant by the
chief, within a reasonable time period as prescribed by rules and
regulations of the board director.
(f) When it is established that an application for a permit
should be denied, the chief shall make and enter an order to that
effect, which order shall specify the reasons for such denial,
and shall cause a copy of such order to be served on the
applicant by registered or certified mail. The chief shall also
cause a notice to be served with a copy of such order, which
notice shall advise the applicant of his the right to appeal to
the board by filing a notice of appeal on the form prescribed by
the board for such purpose, with the board, in accordance with
the provisions of, and within the time specified in, section
fifteen of this seven, article within thirty days after the dateupon which the applicant received the copy of such order one,
chapter twenty-two-b of this code. However, an applicant may
alter the plans and specifications for the proposed activity and
submit a new application for any such permit, in which event the
procedure hereinbefore outlined with respect to an original
application shall apply.
(g) A permit shall be is transferable to another person upon
proper notification to the division chief and in accordance with
applicable regulations rules. Such transfer shall does not
become effective until it is reflected in the records of the
division office of water resources.
(h) All permits for the discharge of sewage, industrial
wastes or other wastes into any waters of the state issued by the
water resources board prior to July one, one thousand nine
hundred sixty-four, and all permits heretofore issued under the
provisions of this former article five-a, chapter twenty of this
code, and which have not been heretofore revoked, are subject to
review, revocation, suspension, modification and reissuance in
accordance with the terms and conditions of this article and the
rules and regulations promulgated thereunder. Any order of
revocation, suspension or modification made and entered pursuant
to this subsection shall be upon at least twenty days' notice and
shall specify the reasons for such revocation, suspension or
modification and the chief shall cause a copy of such order,
together with a copy of a notice of the right to appeal to the
board as provided for in section eight twelve of this article, tobe served upon the permit holder as specified in said section
eight twelve.
§22-11-12. 20-5A-8. Inspections; orders to compel compliance with
permits; service of orders.
After issuance of the department's division's permit for any
activity the chief or his duly authorized representatives
director may make field inspections of the work on the activity,
and, after completion thereof, may inspect the completed
activity, and, from time to time, may inspect the maintenance and
operation of the activity.
To compel compliance with the terms and conditions of the
department's division's permit for any activity, the chief
director is hereby authorized, after at least twenty days'
notice, to make and enter an order revoking, suspending or
modifying in whole or in part such permit for cause including,
but not limited to, the following:
(1) Violation of any term or condition of the permit;
(2) Obtaining a permit by misrepresentation, or failure to
disclose fully all relevant facts; or
(3) Change in any condition that requires either a temporary
or permanent reduction or elimination of the permitted discharge,
release, escape, deposit or disposition.
The chief director shall cause a copy of any such order to
be served by registered or certified mail or by a conservation
officer or other law-enforcement officer upon the person to whom
any such permit was issued. The chief director shall also causea notice to be served with a copy of such order, which notice
shall advise such person of his the right to appeal to the board
by filing a notice of appeal on the form prescribed by the board
for such purpose, with the board, in accordance with the
provisions of, and within the time specified in, section fifteen
of this seven, article within thirty days after the date upon
which such person received the copy of such order one, chapter
twenty-two-b of this code.
§22-11-13. 20-5A-8a. Voluntary water quality monitors;
appointment; duties; compensation.
The chief director is hereby authorized to appoint voluntary
water quality monitors to serve at the will and pleasure of the
chief director. All such monitors appointed pursuant hereto
shall be eighteen years of age or over and shall be bona fide
residents of this state.
Such monitors are authorized to take water samples of the
waters of this state at such times and at such places as the
chief director shall direct and to forward such water samples to
the chief director for analysis.
The chief director is authorized to provide such monitors
with such sampling materials and equipment as he or she deems
necessary:
Provided,
That such equipment and materials shall at
all times remain the property of the state and shall be
immediately returned to the chief director upon his or her
direction.
Such monitors shall not be construed to be employees of thisstate for any purpose except that the chief director is hereby
authorized to pay such monitors a fee not to exceed fifty cents
for each sample properly taken and forwarded to him the director
as hereinabove provided.
The chief director shall conduct schools to instruct said
monitors in the methods and techniques of water sample taking and
issue to said monitors an identification card or certificate
showing their appointment and training.
Upon a showing that any water sample as herein provided was
taken and analyzed in conformity with standard and recognized
procedures, such sample and analysis shall be is admissible in
any court of this state for the purpose of enforcing the
provisions of this article.
§22-11-14. 20-5A-9. Information to be filed by certain persons
with division; of water resources tests.
Any and all persons directly or indirectly discharging or
depositing treated or untreated sewage, industrial wastes, or
other wastes, or the effluent therefrom, into or near any waters
of the state shall file with the division of water resources
director such information as the chief thereof director may
reasonably require on forms prescribed by him for such purpose,
including but not limited to, data as to the kind,
characteristics, amount and rate of flow of such discharge or
deposit. If the chief director has reasonable cause to believe
that any establishment is, or may be, polluting the waters of the
state, he the director may require any person owning, operatingor maintaining such establishment to furnish such information as
may reasonably be required to ascertain whether such
establishment is, or may be causing such pollution, and he the
director may conduct any test or tests that he or she may deem
necessary or useful in making his or her investigation and
determination.
§22-11-15. 20-5A-10. Orders of chief director to stop or prevent
discharges or deposits or take remedial action; service of
orders.
If the chief director, on the basis of investigations,
inspections and inquiries, determines that any person who does
not have a valid permit issued pursuant to the provisions of this
article is causing the pollution of any of the waters of the
state, or does on occasions cause pollution or is violating any
rule or regulation or effluent limitation of the board or the
director, he or she shall with the consent of the director,
either make and enter an order directing such person to stop such
pollution or the violation of the rule or regulation or effluent
limitation of the board or director, or make and enter an order
directing such person to take corrective or remedial action.
Such order shall contain findings of fact upon which the chief
director based on his the determination to make and enter such
order. Such order shall also direct such person to apply
forthwith for a permit in accordance with the provisions of
sections five, six and seven eight, nine and eleven of this
article. The chief director shall fix a time limit for thecompletion of such action. Whether the chief director shall make
and enter an order to stop such pollution or shall make and enter
an order to take remedial action, in either case the person so
ordered may elect to cease operations of the establishment deemed
to be the source of such discharge or deposits causing pollution,
if the pollution referred to in the chief's director's order
shall be stopped thereby.
The chief director shall cause a copy of any such order to
be served by registered or certified mail or by a conservation
officer or other law-enforcement officer upon such person. The
chief director shall also cause a notice to be served with the
copy of such order, which notice shall advise such person of his
the right to appeal to the board by filing a notice of appeal, on
the form prescribed by the board for such purpose, with the
board, in accordance with the provisions of section fifteen of
this article one, chapter twenty-two-b of this code.
§22-11-16. 20-5A-11. Compliance with orders of chief director.
Any person upon whom any order of the chief director or any
order of the board in accordance with the provisions of sections
ten and fifteen section fifteen of this article, or article one,
chapter twenty-two-b of this code has been served shall fully
comply therewith.
When such person is ordered to take remedial action and does
not elect to cease operation of the establishment deemed to be
the source of such pollution, or when such ceasing does not stop
the pollution, he or she shall forthwith apply for a permit underand in accordance with the provisions of sections five, six and
seven eight, nine and eleven of this article. No such remedial
action shall be taken until a permit therefor has been issued;
however, receipt of a permit shall does not in and of itself
constitute remedial action.
§22-11-17. 20-5A-11a. Power of eminent domain; procedures;
legislative finding.
(a) When any person who is owner of an establishment is
ordered by the chief director to stop or prevent pollution or the
violation of the rules and regulations of the board or director
or to take corrective or remedial action, compliance with which
order will require the acquisition, construction or installation
of a new treatment works or the extension or modification of or
an addition to an existing treatment works, (which acquisition,
construction, installation, extension, modification or addition
of or to a treatment works pursuant to such order is referred to
in this section as "such compliance") such person may exercise
the power of eminent domain in the manner provided in chapter
fifty-four of this code, to acquire such real property or
interests in real property as may be determined by the chief
director to be reasonably necessary for such compliance.
(b) Upon application by such person and after twenty days'
written notice to all persons whose property may be affected, the
chief director shall make and enter an order determining the
specific real property or interests in real property, if any,
which are reasonably necessary for such compliance. In anyproceeding under this section, the person seeking to exercise the
right of eminent domain herein conferred shall establish the need
for the amount of land sought to be condemned and that such land
is reasonably necessary for the most practical method for such
compliance.
(c) The right of eminent domain herein conferred shall does
not apply to the taking of any dwelling house or for the taking
of any land within five hundred feet of any such dwelling house.
(d) The Legislature hereby declares and finds that the
taking and use of real property and interests in real property
determined to be reasonably necessary for such compliance
promotes the health, safety and general welfare of the citizens
of this state by reducing and abating pollution in the waters of
this state in which the public at large has an interest and
otherwise; that such taking and use are necessary to provide and
protect a safe, pure and adequate water supply to the
municipalities and citizens of the state; that because of
topography, patterns of land development and ownership and other
factors it is impossible in many cases to effect such compliance
without the exercise of the power of eminent domain and that the
use of real property or interests in real property to effect such
compliance is a public use for which private property may be
taken or destroyed.
§22-11-18. 20-5A-12. Duty to proceed with remedial action
promptly upon receipt of permit; progress reports required;
finances and funds.
When such any person is ordered to take remedial action and
does not elect to cease operation of the establishment deemed to
be the source of such pollution or when ceasing does not stop the
pollution, such person shall immediately upon issuance of the
permit required under section eleven sixteen of this article take
or begin appropriate steps or proceedings to carry out such
remedial action. In any such case it shall be is the duty of
each individual offender, each member of a partnership, each
member of the governing body of a municipal corporation and each
member of the board of directors or other governing body of a
private corporation, association or other legal entity whatever,
to see that appropriate steps or proceedings to comply with such
order are taken or begun immediately. The chief director may
require progress reports, at such time intervals as he or she
deems necessary, setting forth the steps taken, the proceedings
started and the progress made toward completion of such remedial
action. All such remedial action shall be diligently prosecuted
to completion.
Failure of the governing body of a municipal corporation, or
the board of directors or other governing body of any private
corporation, association or other legal entity whatever, to
provide immediately for the financing and carrying out of such
remedial action, as may be necessary to comply with said order,
shall constitute constitutes failure to take or begin appropriate
steps or proceedings to comply with such order. If such person
be is a municipal corporation, the cost of all such remedialaction as may be is necessary to comply with said order shall be
paid out of funds on hand available for such purpose, or out of
the general funds of such municipal corporation, not otherwise
appropriated, and if there be is not sufficient funds on hand or
unappropriated, then the necessary funds shall be raised by the
issuance of bonds. Any direct general obligation bond issue to be
is subject to the approval of the state sinking fund municipal
bond commission and the attorney general of the state of West
Virginia.
If the estimated cost of the remedial action to be taken by
a municipal corporation to comply with such order is such that
any bond issue necessary to finance such action would not raise
the total outstanding bonded indebtedness of such municipal
corporation in excess of the constitutional limit imposed upon
such indebtedness by the constitution of this state, then and in
that event the necessary bonds may be issued as a direct
obligation of such municipal corporation, and retired by a
general tax levy to be levied against all property within the
limit of such municipal corporation listed and assessed for
taxation. If the amount of such bonds necessary to be issued
would raise the total outstanding bonded indebtedness of such
municipal corporation above said constitutional limitation on
such indebtedness, or if such municipal corporation by its
governing body shall decide against the issuance of direct
obligation bonds, then such municipal corporation shall issue
revenue bonds and provide for the retirement thereof in the samemanner and subject to the same conditions as provided for the
issuance and retirement of bonds in chapter twenty-five, acts of
the Legislature, first extraordinary session, one thousand nine
hundred thirty-three, and any amendment thereof article thirteen,
chapter sixteen of this code:
Provided,
That the provisions of
section six of the above mentioned act said article, allowing
objections to be filed with the governing body, and providing
that a written protest of thirty percent or more of the owners of
real estate shall require requires a four-fifths vote of the
governing body for the issuance of said revenue bonds, shall does
not apply to bond issues proposed by any municipal corporation to
comply with an order made and entered under the authority of this
article, and such objections and submission of written protest
shall is not be authorized, nor shall does the same, if made or
had, operate to justify or excuse failure to comply with such
order.
The funds made available by the issuance of either direct
obligation bonds or revenue bonds, as herein provided, shall does
constitute a "sanitary fund," and shall be used for no other
purpose than for carrying out such order; no public money so
raised shall be expended by any municipal corporation for any
purpose enumerated in this article, unless such expenditure and
the amount thereof have been approved by the chief director.
The acquisition, construction or installation, use and operation,
repair, modification, alteration, extension, equipment, custody
and maintenance of any disposal system by any municipalcorporation, as herein provided, and the rights, powers and
duties with respect thereto, of such municipal corporation and
the respective officers and departments thereof, whether the same
shall be is financed by the issuance of revenue or direct
obligation bonds, shall be governed by the provisions of said
chapter twenty-five, acts of the Legislature, first extraordinary
session, one thousand nine hundred thirty-three, and any
amendments thereof article thirteen, chapter sixteen of this
code.
§22-11-19. 20-5A-12a. Emergency orders.
Whenever the chief director finds that any discharge,
release, escape, deposit or disposition of treated or untreated
sewage, industrial wastes or other wastes into any waters within
this state, when considered alone or in conjunction with other
discharges, releases, escapes, deposits or dispositions,
constitutes a clear, present and immediate danger to the health
of the public, or to the fitness of a private or public water
supply for drinking purposes, the chief director may, with the
concurrence in writing of the director of the department of
natural resources and the director of the department of
commissioner of the bureau of public health, without notice or
hearing, issue an order or orders requiring the immediate
cessation or abatement of any such discharge, release, escape,
deposit or disposition, and the cessation of any drilling,
redrilling, deepening, casing, fracturing, pressuring, operating,
plugging, abandoning, converting or combining of any well, orrequiring such other action to be taken as the chief director,
with the concurrences concurrence aforesaid, deems necessary to
abate such danger.
Notwithstanding the provisions of any other section of this
article, any order issued under the provisions of this section
shall be is effective immediately and may be served in the same
manner as a notice may be served under the provisions of section
two, article seven, chapter twenty-nine-a of the code. Any
person to whom such order is directed shall comply therewith
immediately, but on notice of appeal to the board shall be
afforded a hearing as promptly as possible, and not later than
ten days after the board receives such notice of appeal. On the
basis of such hearing, and within five days thereafter, the board
shall make and enter an order continuing the order of the chief
director in effect, revoking it, or modifying it. For the
purpose of such appeal and judicial review of the order entered
following an appeal hearing, all pertinent provisions of sections
fifteen and sixteen of this article one, chapter twenty-two-b of
this code shall govern.
§22-11-20. 20-5A-14. Control by state as to pollution;
continuing jurisdiction.
No right to violate the rules and regulations of the board
or director or to continue existing pollution of any of the
waters of the state shall exist exists nor shall may such right
be or be deemed to have been acquired by virtue of past or future
pollution by any person. The right and control of the state inand over the quality of all waters of the state are hereby
expressly reserved and reaffirmed. It is recognized that with
the passage of time, additional efforts may have to be made by
all persons toward control and reduction of the pollution of the
waters of the state, irrespective of the fact that such persons
may have previously complied with all orders of the chief
director or board. It is also recognized that there should be
continuity and stability respecting pollution control measures
taken in cooperation with, and with the approval of, the chief
director, or pursuant to orders of the chief director or board.
When a person is complying with the terms and conditions of a
permit granted pursuant to the provisions of section seven eleven
of this article or when a person has completed remedial action
pursuant to an order of the chief director or board, additional
efforts may be required wherever and whenever the rules and
regulations of the board or director or effluent limitations are
violated or the waters of the state are polluted by such person.
§22-11-21. 20-5A-15. Appeal to water resources environmental
quality board.
(a) Any person adversely affected by an order made and
entered by the chief director in accordance with the provisions
of this article, or aggrieved by failure or refusal of the chief
to act within the specified time as provided in subsection (e) of
section seven eleven of this article on an application for a
permit or aggrieved by the terms and conditions of a permit
granted under the provisions of this article, may appeal to thewater resources board environmental quality board, pursuant to
the provisions of article one, chapter twenty-two-b of this code.
for an order vacating or modifying such order, or for such order,
action or terms and conditions as the chief should have entered,
taken or imposed. The person so appealing shall be known as the
appellant and the chief shall be known as the appellee. If the
chief denies a permit because of any disapproval of a permit
application by one or more of the public officers required to
review such applications under the provisions of subsection (a),
section seven of this article, such public officers shall be
joined as a coappellee or coappellees with the chief in such
appeal.
(b) Such appeal shall be perfected by filing a notice of
appeal, on the form prescribed by the board for such purpose,
with the board within thirty days after date upon which the
appellant received the copy of such order or received such
permit, as the case may be. The filing of the notice of appeal
shall not stay or suspend the execution of the order appealed
from. If it appears to the director or the board that an unjust
hardship to the appellant will result from the execution of the
chief's order pending determination of the appeal, the director
or the board may grant a suspension of such order and fix its
terms. The notice of appeal shall set forth the order or terms
and conditions complained of and the grounds upon which the
appeal is based. A copy of the notice of appeal shall be filed
by the board with the chief within three days after the notice ofappeal is filed with the board.
(c) Within seven days after receipt of his copy of the
notice of appeal, the chief shall prepare and certify to the
board a complete record of the proceedings out of which the
appeal arises including all documents and correspondence in the
chief's file relating to the matter in question. With the
consent of the board and upon such terms and conditions as the
board may prescribe, any persons affected by any such activity or
by such alleged pollution may by petition intervene as a party
appellant or appellee. The board shall hear the appeal de novo,
and evidence may be offered on behalf of the appellant and
appellee, and, with the consent of the board, by any intervenors.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
on appeal authorized by this section and the administrative
procedures in connection with and following such hearing, with
like effect as if the provisions of said article five were set
forth in extenso in this section, with the following
modifications or exceptions:
(1) Unless the board directs otherwise, the appeal hearing
shall be held in the city of Charleston, Kanawha County, West
Virginia, and
(2) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimony
at any such hearing shall be recorded by stenographic notes and
characters or by mechanical means. Such reported testimony shallin every appeal hearing under this article be transcribed.
(e) Any such appeal hearing shall be conducted by a quorum
of the board, but the parties may by stipulation agree to take
evidence before a hearing examiner employed by the board. For
the purpose of conducting such appeal hearing, any member of the
board and the secretary thereof shall have the power and
authority to issue subpoenas and subpoenas duces tecum in the
name of the board, in accordance with the provisions of section
one, article five, chapter twenty-nine-a of this code. All
subpoenas and subpoenas duces tecum shall be issued and served
within the time and for the fees and shall be enforced, as
specified in section one, article five of said chapter twenty-
nine-a, and all of the said section one provisions dealing with
subpoenas and subpoenas duces tecum shall apply to subpoenas and
subpoenas duces tecum issued for the purpose of an appeal hearing
hereunder.
(f) Any such hearing shall be held within twenty days after
the date upon which the board received the timely notice of
appeal, unless there is a postponement or continuance. The board
may postpone or continue any hearing upon its own motion, or upon
application of the appellant, the appellee or any intervenors for
good cause shown. The chief shall be represented at any such
hearing by the attorney general or his assistants, or the chief,
with the written approval of the attorney general, may employ
counsel to represent him. At any such hearing the appellant and
any intervenor may represent himself or be represented by anattorney-at-law admitted to practice before any circuit court of
this state.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case, the board shall make
and enter an order affirming, modifying or vacating the order of
the chief, or shall make and enter such order as the chief should
have entered, or shall make and enter an order approving or
modifying the terms and conditions of any permit issued. In
determining its course of action, the board shall take into
consideration not only the factors which the chief was authorized
to consider in making his order and in fixing the terms and
conditions of any permit, but also the economic feasibility of
treating and/or controlling the sewage, industrial wastes or
other wastes involved.
(h) Such order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
appellant, and any intervenors, and their attorneys of record, if
any, and upon the appellee in person or by registered or
certified mail.
(i) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,
the appellee and any intervenors of their right to judicial
review, in accordance with the provisions of section sixteen of
this article. The order of the board shall be final unlessvacated or modified upon judicial review thereof in accordance
with the provisions of section sixteen of this article.
§22-11-22. 20-5A-17. Civil penalties and injunctive relief.
Any person who violates any provision of any permit issued
under or subject to the provisions of this article shall be is
subject to a civil penalty not to exceed ten thousand dollars per
day of such violation, and any person who violates any provision
of this article or of any rule and regulation or who violates any
standard or order promulgated or made and entered under the
provisions of this article shall be or articles one or three,
chapter twenty-two-b of this code is subject to a civil penalty
not to exceed ten thousand dollars per day of such violation.
Any such civil penalty may be imposed and collected only by a
civil action instituted by the chief director in the circuit
court of the county in which the violation occurred or is
occurring or of the county in which the waters thereof are
polluted as the result of such violation.
Upon application by the chief director, the circuit courts
of this state or the judges thereof in vacation may by injunction
compel compliance with and enjoin violations of the provisions of
this article, the rules and regulations of the board or director,
effluent limitations, the terms and conditions of any permit
granted under the provisions of this article, or any order of the
chief director or board, and the venue of any such action shall
be the county in which the violation or noncompliance exists or
is taking place or in any county in which the waters thereof arepolluted as the result of such violation or noncompliance. The
court or the judge thereof in vacation may issue a temporary or
preliminary injunction in any case pending a decision on the
merits of any injunctive application filed. Any other section of
this code to the contrary notwithstanding, the state shall is not
be required to furnish bond as a prerequisite to obtaining
injunctive relief under this article. An application for an
injunction under the provisions of this section may be filed and
injunctive relief granted notwithstanding that all of the
administrative remedies provided for in this article have not
been pursued or invoked against the person or persons against
whom such relief is sought and notwithstanding that the person or
persons against whom such relief is sought have not been
prosecuted or convicted under the provisions of this article.
The judgment of the circuit court upon any application filed
or in any civil action instituted under the provisions of this
section shall be is final unless reversed, vacated or modified on
appeal to the supreme court of appeals. Any such appeal shall
be sought in the manner provided by law for appeals from circuit
courts in other civil cases, except that the petition seeking
review in any injunctive proceeding must be filed with said
supreme court of appeals within ninety days from the date of
entry of the judgment of the circuit court.
Legal counsel and services for the chief, director or the
board in all civil penalty and injunction proceedings in the
circuit court and in the supreme court of appeals of this stateshall be provided by the attorney general or his or her
assistants and by the prosecuting attorneys of the several
counties as well, all without additional compensation, or the
chief, director or the board, with the written approval of the
attorney general, may employ counsel to represent him or her or
it in a particular proceeding.
§22-11-23. 20-5A-18. Priority of actions.
All applications under section seventeen twenty-two of this
article and all proceedings for judicial review under section
sixteen of this article one, chapter twenty-two-b of this code
shall take priority on the docket of the circuit court in which
pending, and shall take precedence over all other civil cases.
Where such applications and proceedings for judicial review are
pending in the same court at the same time, such applications
shall take priority on the docket and shall take precedence over
proceedings for judicial review.
§22-11-24. 20-5A-19. Violations; criminal penalties.
Any person who causes pollution or who fails or refuses to
discharge any duty imposed upon him such person by this article
or by any rule or regulation of the board or director,
promulgated pursuant to the provisions and intent of this article
or article three, chapter twenty-two-b of this code, or by an
order of the chief director or board, or who fails or refuses to
apply for and obtain a permit as required by the provisions of
this article, or who fails or refuses to comply with any term or
condition of such permit, shall be 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 one thousand dollars,
or by imprisonment in the county jail for a period not exceeding
six months, or by both such fine and imprisonment.
Any person who shall intentionally misrepresent
misrepresents any material fact in an application, record,
report, plan or other document filed or required to be maintained
under the provisions of this article or any rules and regulations
promulgated by the board director thereunder shall be is guilty
of a misdemeanor, and, upon conviction thereof, shall be punished
by a fine of not less than one thousand dollars nor more than ten
thousand dollars or by imprisonment in the county jail not
exceeding six months or by both such fine and imprisonment.
Any person who willfully or negligently violates any
provision of any permit issued under or subject to the provisions
of this article or who willfully or negligently violates any
provision of this article or any rule or regulation of the board
or director or any effluent limitation or any order of the chief
director or board shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be punished by a fine of not less than
two thousand five hundred dollars nor more than twenty-five
thousand dollars per day of violation or by imprisonment in the
county jail not exceeding one year or by both such fine and
imprisonment.
Any such person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of theadministrative remedies provided for in this article have been
pursued or invoked against said person and notwithstanding that
a civil action for the imposition and collection of a civil
penalty or an application for an injunction under the provisions
of this article has not been filed against such person.
Where a person holding a permit is carrying out a program of
pollution abatement or remedial action in compliance with the
conditions and terms of such permit, he shall the person is not
be subject to criminal prosecution for pollution recognized and
authorized by such permit.
§22-11-25. 20-5A-19a. Civil liability; natural resources game
fish and aquatic life fund; use of funds.
If any loss of game fish or aquatic life results from a
person's or persons' failure or refusal to discharge any duty
imposed upon him such person by this article or section seven,
article six of this chapter, either the West Virginia department
division of natural resources shall have a cause of or the
division of environmental protection, or both jointly may
initiate a civil action on behalf of the state of West Virginia
to recover from such person or persons causing such loss a sum
equal to the cost of replacing such game fish or aquatic life.
Any moneys so collected by the director shall be deposited in a
special revenue fund entitled "natural resources game fish and
aquatic life fund" and shall be expended as hereinafter provided.
The fund shall be expended to stock waters of this state with
game fish and aquatic life. Where feasible, the director of thedivision of natural resources shall use any sum collected in
accordance with the provisions of this section to stock waters in
the area in which the loss resulting in the collection of such
sum occurred. Any balance of such sum shall remain in said fund
and be expended to stock state-owned and operated fishing lakes
and ponds, wherever located in this state, with game fish and
aquatic life.
§22-11-26. 20-5A-20. Exceptions as to criminal liabilities.
The criminal liabilities may not be imposed by pursuant to
section nineteen twenty-four of this article shall not be
construed to include any violation for violations resulting from
accident or caused by an act of God, war, strike, riot or other
catastrophe as to which negligence or wilful misconduct on the
part of such person was not the proximate cause.
§22-11-27. 20-5A-22. Existing rights and remedies preserved;
article for benefit of state only.
It is the purpose of this article to provide additional and
cumulative remedies to abate the pollution of the waters of the
state and nothing herein contained shall abridge or alter rights
of action or remedies now or hereafter existing, nor shall any
provisions in this article, or any act done by virtue of this
article, be construed as estopping the state, municipalities,
public health officers, or persons as riparian owners or
otherwise, in the exercise of their rights to suppress nuisances
or to abate any pollution now or hereafter existing, or to
recover damages.
The provisions of this article inure solely to and are for
the benefit of the people generally of the state of West
Virginia, and this article is not intended to in any way create
new, or enlarge existing rights of riparian owners or others. An
order of the chief or of the board, the effect of which is to
find that pollution exists, or that any person is causing
pollution, or any other order, or any violation of any of the
provisions of this article shall give rise to no presumptions of
law or findings of fact inuring to or for the benefit of persons
other than the state of West Virginia.
§22-11-28. 20-5-4. Functions, services and reports of chief
director of the division; obtaining information from others.
The chief of the division of water resources director shall
make surveys and investigations of the water resources of the
state and , as soon as practicable, shall maintain an inventory
of the water resources of the state and to the extent practicable
shall divide the state into watershed drainage areas in making
this inventory. The chief director shall investigate and study
the problems of agriculture, industry, conservation, health,
water pollution, domestic and commercial uses and allied matters
as they relate to the water resources of the state, and shall
make and formulate comprehensive plans and recommendations for
the further development, improvement, protection, preservation,
regulation and use of such water resources, giving proper
consideration to the hydrologic cycle in which water moves.
Annually, not later than the first of November, he shall prepareand publish a full report on his work as to the collection and
The director shall provide to the Legislature a biennial report
on the quality of the state's waters, including an evaluation of
the information which has been obtained in accordance with the
requirements of this section and shall include in this report the
plans and recommendations which have been formulated pursuant to
the requirements of this section. Where possible the timing and
content of this report shall be structured so that it may also be
used to fulfill any federal program reporting requirements. The
report shall include his reasons for such plans and
recommendations, as well as any changes in the law which are
deemed desirable to effectuate such plans and recommendations.
Such report shall be made available to the public at a reasonable
price to be determined by the chief and the director.
The chief director may request, and, upon his request, shall
be is entitled to receive from any agency of the state or any
political subdivision thereof, or from any other person who
engages in a commercial use or controls any of the water
resources of the state, such necessary information and data as
will assist him in obtaining a complete picture of the water
resources of the state and the existing control and commercial
use thereof. The chief director shall reimburse such agencies,
political subdivisions and other persons for any expenses, which
would not otherwise have been incurred, in making such
information and data available. to him.
ARTICLE 12. WEST VIRGINIA GROUNDWATER PROTECTION ACT.
§22-12-1. 20-5M-1. Short title.
This article may be known and cited as the "Groundwater
Protection Act."
§22-12-2. 20-5M-2. Legislative findings, public policy and
purposes.
(a) The Legislature finds that:
(1) West Virginia has relatively pure groundwater resources
which are abundant and readily available;
(2) Over fifty percent of West Virginia's overall
population, and over ninety percent of the state's rural
population, depend on groundwater for drinking water;
(3) A rural lifestyle has created a quality of life in many
parts of West Virginia which is highly valued. Maintaining this
lifestyle depends upon protecting groundwater to avoid increased
expenses associated with providing treated drinking water
supplies to rural households;
(4) West Virginia's groundwater resources are geologically
complex, with the nature and vulnerability of groundwater
aquifers and recharge areas not fully known;
(5) Contamination of groundwater is generally much more
difficult and expensive to clean up than is the case with surface
water;
(6) Groundwaters and surface waters can be highly
interconnected. The quality of any given groundwater can have a
significant impact on the quality of groundwaters and surface
waters to which it is hydrologically connected;
(7) A diverse array of human activities can adversely impact
groundwater, making it necessary to develop regulatory programs
that utilize a variety of approaches;
(8) Various agencies of state government currently exercise
regulatory control over activities which may impact on
groundwater. Coordination and streamlining of the regulatory
activities of these agencies is necessary to assure that the
state's groundwater is maintained and protected through an
appropriate groundwater protection program;
(9) Disruption of existing state regulatory programs should
be avoided to the maximum extent practical;
(10) The maintenance and protection of the state's
groundwater resources can be achieved consistent with the
maintenance and expansion of employment opportunities,
agriculture, and industrial development; and
(11) A state groundwater management program will provide
economic, social, and environmental benefits for the citizens of
West Virginia now and in the future.
(b) Therefore, the Legislature establishes that it is the
public policy of the state of West Virginia to maintain and
protect the state's groundwater so as to support the present and
future beneficial uses and further to maintain and protect
groundwater at existing quality where the existing quality is
better than that required to maintain and protect the present
and future beneficial uses. Such existing quality shall be
maintained and protected unless it is established that (1) themeasures necessary to preserve existing quality are not
technically feasible or economically practical and (2) a change
in groundwater quality is justified based upon economic or
societal objectives. Such a change shall maintain and protect
groundwater quality so as to support the present and future
beneficial uses of such groundwater.
(c) The purposes of this article are to:
(1) Maintain and protect the state's groundwater resources
consistent with this article to protect the present and future
beneficial uses of the groundwater:
(2) Provide for the establishment of a state groundwater
management program which will:
(i) Define the roles of agencies of the state and political
subdivisions with respect to the maintenance and protection of
groundwater, and designate a lead agency for groundwater
management;
(ii) Designate a state agency responsible for establishment
of groundwater quality standards;
(iii) Provide for the establishment of standards of purity
and quality for all groundwater;
(iv) Provide for the establishment of groundwater protection
programs consistent with this article;
(v) Establish groundwater protection and groundwater
remediation funds;
(vi) Provide for the mapping and analysis of the state's
groundwater resources and coordination of the agencies involved;and
(vii) Provide for public education on groundwater resources
and methods for preventing contamination.
(3) Provide such enforcement and compliance mechanisms as
will assure the implementation of the state's groundwater
management program.
(4) Assure that actions taken to implement this article are
consistent with the policies set forth in section one two,
article five-a eleven of this chapter.
§22-12-3. 20-5M-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Agency action" means the issuance, renewal or denial of
any permit, license or other required agency approval, or any
terms or conditions thereof, or any order or other directive
issued by the division of natural resources, division of health,
division of energy, environmental protection, bureau of public
health, department of agriculture or any other agency of the
state or a political subdivision to the extent that such action
relates directly to the implementation, administration or
enforcement of this article.
(b) "Beneficial uses" means those uses which are protective
of human health and welfare and the environment. Pollution of
groundwater shall not be is not considered a beneficial use.
(c) "Board" means the state water resources environmental
quality board.
(d) "Constituent" means any chemical or biological substance
found in groundwater due to either natural or man-made
conditions.
(e) "Director" means the director of the division of natural
resources environmental protection of the department of commerce,
labor and environmental resources or such other person the
director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter.
(f) "Groundwater" means the water occurring in the zone of
saturation beneath the seasonal high water table, or any perched
water zones.
(g) "Groundwater certification" means an assurance issued by
the director of the division of natural resources environmental
protection that a permit or other approval issued by a state,
county or local government body regarding an activity that
affects or is reasonably anticipated to affect groundwater
complies with all requirements of this chapter, the legislative
rules promulgated pursuant to this chapter in accordance with
chapter twenty-nine-a of this code and any other requirements of
state law, regulations rules or agreements regarding groundwater.
(h) "Person" means any industrial user, public or private
corporation, institution, association, firm or company organized
or existing under the laws of this or any other state or country;
state of West Virginia; governmental agency, including federal
facilities; political subdivision; county commission; municipal
corporation; industry; sanitary district; public servicedistrict; soil conservation district; watershed improvement
district; partnership; trust; estate; person or individual; group
of persons or individuals acting individually or as a group; or
any legal entity whatever.
(i) "Pollution" shall mean means the man-made or man-induced
alteration of the chemical, physical, biological or radiological
integrity of the groundwater.
(j) "Preventative action limit" means a numerical value
expressing the concentration of a substance in groundwater that,
if exceeded, shall cause causes action to be taken to assure that
standards of purity and quality of groundwater are not violated.
(k) "Water" means any and all water on or beneath the
surface of the ground, whether percolating, standing, diffused or
flowing, wholly or partially within this state, or bordering this
state and within its jurisdiction, and shall include includes
without limiting the generality of the foregoing, natural or
artificial lakes, rivers, streams, creeks, branches, brooks,
ponds (except farm ponds, industrial settling basins and ponds
and water treatment facilities), impounding reservoirs, springs,
wells, watercourses and wetlands.
§22-12-4. 20-5M-4. Authority of state water resources
environmental quality board to promulgate standards of
purity and quality.
(a) The state water resources environmental quality board
shall have has the sole and exclusive authority to promulgate
standards of purity and quality for groundwater of the state andshall promulgate such standards following a public hearing within
one year from the effective date of this article, by legislative
rules in accordance with the provisions of chapter twenty-nine-a
of this code.
(b) Such standards shall establish the maximum contaminant
levels permitted for groundwater, but in no event shall such
standards allow contaminant levels in groundwater to exceed the
maximum contaminant levels adopted by the United States
Environmental Protection Agency pursuant to the federal Safe
Drinking Water Act. The board may set standards more restrictive
than the maximum contaminant levels where it finds that such
standards are necessary to protect drinking water use where
scientifically supportable evidence reflects factors unique to
West Virginia or some area thereof, or to protect other
beneficial uses of the groundwater. For contaminants not
regulated by the federal Safe Drinking Water Act, standards for
such contaminants shall be established by the board to be no less
stringent than may be reasonable and prudent to protect drinking
water or any other beneficial use. Where the concentration of a
certain constituent exceeds such standards due to natural
conditions, the natural concentration shall be is the standard
for that constituent. Where the concentration of a certain
constituent exceeds such standard due to human-induced
contamination, no further contamination by that constituent
shall be is allowed, and every reasonable effort shall be made to
identify, remove or mitigate the source of such contamination,and to strive where practical to reduce the level of
contamination over time to support drinking water use.
(d) (c) The standards of purity and quality for groundwater
promulgated by the board shall recognize the degree to which
groundwater is hydrologically connected with surface water and
other groundwater and such standards shall provide protection
for such surface water and other groundwater.
(e) (d) In the promulgation of such standards the board
shall consult with the division of natural resources
environmental protection, department of agriculture division of
energy, and division of and the bureau of public health, as
appropriate.
(f) (e) Any groundwater standard of the board that is in
effect on the effective date of this article shall remain in
effect until modified by the board. Notwithstanding any other
provisions of this code to the contrary, the authority of the
board to adopt standards of purity and quality for groundwater
granted by the provisions of this article is exclusive, and to
the extent that any other provisions of this code grant such
authority to any person, body, agency or entity other than the
board, those other provisions shall be are void.
§22-12-5. 20-5M-5. Authority of other agencies; applicability.
(a) Notwithstanding any other provision of this code to the
contrary, no agency of state government or any political
subdivision may regulate any facility or activities for the
purpose of maintaining and protecting the groundwater except asexpressly authorized pursuant to this article.
(b) To the extent that such agencies have the authority
pursuant to any provision of this code, other than this article,
to regulate facilities or activities, the division of natural
resources environmental protection, the department of
agriculture, the division of energy, the division of bureau of
public health, and such agencies of the state or any political
subdivision as may be specifically designated by the director
with the concurrence of such designated agencies or political
subdivisions, as appropriate, are hereby authorized to be
groundwater regulatory agencies for purposes of regulating such
facilities or activities to satisfy the requirements of this
article. In addition, the department of agriculture is hereby
authorized to be the groundwater regulatory agency for purposes
of regulating the use or application of pesticides and
fertilizers. Where the authority to regulate facilities or
activities which may adversely impact groundwater is not
otherwise assigned to the division of natural resources
environmental protection, the department of agriculture, the
division of energy, the division of bureau of public health or
such other specifically designated agency pursuant to any other
provision of this code, the division of natural resources
environmental protection is hereby authorized to be the
groundwater regulatory agency with respect to such unassigned
facilities or activities. The division of natural resources
environmental protection shall cooperate with the department ofagriculture division of energy, and division of and the bureau of
public health, as appropriate, in the regulation of such
unassigned facilities or activities.
(c) Within one year of the effective date of this article,
the department of agriculture, division of energy, division of
bureau of public health and division of natural resources
environmental protection shall promulgate in accordance with the
provisions of chapter twenty-nine-a of this code such legislative
rules as may be necessary to implement the authority granted them
by this article.
(d) Groundwater regulatory agencies shall develop
groundwater protection practices to prevent groundwater
contamination from facilities and activities within their
respective jurisdictions consistent with this article. Such
practices shall include, but not be limited to, criteria related
to facility design, operational management, closure, remediation
and monitoring. Such agencies shall issue such rules, permits,
policies, directives or any other appropriate regulatory devices,
as necessary, to implement the requirements of this article.
(e) Groundwater regulatory agencies shall take such action
as may be necessary to assure that facilities or activities
within their respective jurisdictions maintain and protect
groundwater at existing quality, where the existing quality is
better than that required to maintain and protect the standards
of purity and quality promulgated by the board to support the
present and future beneficial uses of the state's groundwater.
(f) Where a person establishes to the director that (1) the
measures necessary to preserve existing quality are not
technically feasible or economically practical and (2) a change
in groundwater quality is justified based upon economic or
societal objectives, the director may allow for a deviation from
such existing quality. Upon the director's finding of (1) and
(2) above, the director may grant or deny such a deviation for a
specific site, activity or facility or for a class of activities
or facilities which have impacts which are substantially similar
and exist in a defined geographic area. The director's reasons
for granting or denying such a deviation shall be set forth in
writing and the director shall have has the exclusive authority
to determine the terms and conditions of such a deviation. To
insure that groundwater standards promulgated by the board are
not violated and that the present and future beneficial uses of
groundwater are maintained and protected, the director shall
evaluate the cumulative impacts of all facilities and activities
on the groundwater resources in question prior to any granting of
such deviation from existing quality. The director shall consult
with the department of agriculture division of health and
division of energy, and the bureau of public health as
appropriate in the implementation of this subsection. The
director or the chief of the water resources section of the
division of natural resources shall, upon a written request for
such information, provide notice of any deviations from existing
quality granted pursuant to this subsection.
(g) Should the approval required in subsection (f) of this
section be granted allowing for a deviation from existing
quality, the groundwater regulatory agencies shall take such
alternative action as may be necessary to assure that facilities
and activities within their respective jurisdictions maintain and
protect the standards of purity and quality promulgated by the
board to support the present and future beneficial uses for that
groundwater. In maintaining and protecting such standards of the
board, such agencies shall establish preventative action limits
which, once reached, shall require action to control a source of
contamination to assure that such standards are not violated.
The director shall provide guidelines to the groundwater
regulatory agencies with respect to the establishment of such
preventative action limits.
(h) Subsections (e), (f) and (g) of this section shall do
not apply to coal extraction and earth disturbing activities
directly involved in coal extraction that are subject to either
or both article three or eleven of this chapter. twenty-two-a of
this code and article five-a of this chapter. Such activities
shall be are subject to all other provisions of this article.
(i) This article shall is not be applicable to groundwater
within areas of geologic formations which are site specific to:
(1) The production or storage zones of crude oil or natural
gas and which are utilized for the exploration, development or
production of crude oil or natural gas permitted pursuant to
chapter twenty-two-b of this code articles six, seven, eight,nine or ten of this chapter; and
(2) The injection zones of Class II or III wells permitted
pursuant to the statutes and regulations rules governing the
underground injection control program.
All groundwater outside such areas shall remain subject to
the provisions of this article. Groundwater regulatory agencies
shall have the right to require the submission of data with
respect to the nature of the activities subject to this
subsection.
(j) Those agencies regulating the activities specified in
subsections (h) and (i), of this section shall retain their
groundwater regulatory authority as provided for in the relevant
statutes and regulations rules governing such activities, other
than this article.
(k) The director shall have has authority to modify the
requirements of subsection (g) of this section with respect to
noncoal mining activities subject to article four of this
chapter. Such modification shall assure protection of human
health and the environment. Those agencies regulating such
noncoal mining activities shall retain their groundwater
regulatory authority as provided for in the relevant statutes and
regulations rules governing such activities other than this
article.
(l) If the director proposes a need for a variance for
classes of activities which by their nature cannot be conducted
in compliance with the requirements of subsection (g) of thissection, then the director shall promulgate legislative rules in
accordance with chapter twenty-nine-a of this code, following
public hearing on the record. The rules so promulgated shall set
forth the director's findings to substantiate such need and the
criteria by which such variances shall be granted or denied.
Should any person petition or request the director to undertake
such a determination, that person will give contemporaneous
notice of such petition or request by Class I advertisement in a
newspaper of general circulation in the area to be affected by
the request.
(m) All rules, permits, policies, directives and orders of
the department of agriculture, the division of health, the
division of energy bureau of public health and division of
natural resources environmental protection, in effect on the
effective date of this article and which are consistent with this
article shall remain in full force and effect as if they were
issued pursuant to this article unless and until modified
pursuant to this article.
§22-12-6. 20-5M-6. Lead agency designation; additional powers
and duties.
(a) The division of natural resources environmental
protection is hereby designated to be the lead agency for
groundwater and is authorized and shall perform the following
additional powers and duties:
(1) To maintain the state groundwater management strategy;
(2) To develop, as soon as practical, a central groundwaterdata management system for the purpose of providing information
needed to manage the state's groundwater program;
(3) To provide a biannual biennial report to the Legislature
on the status of the state's groundwater and groundwater
management program, including detailed reports from each
groundwater regulatory agency;
(4) To coordinate with other agencies to develop a uniform
groundwater program;
(5) To perform any and all acts necessary to obtain the
benefits to the state of any federal program related to
groundwater;
(6) To receive grants, gifts or contributions for purposes
of implementing this article from federal agencies, state
agencies or any other persons interested in the management of
groundwater resources; and
(7) To promulgate legislative rules implementing this
subsection in accordance with the provisions of chapter twenty-
nine-a of this code, including rules relating to monitoring and
analysis of groundwater.
(b) The division of natural resources, division of energy,
division of environmental protection, bureau of public health,
and department of agriculture shall participate in the data
management system developed by the division of natural resources
environmental protection pursuant to subsection (a) of this
section and shall provide the director with such information as
the director shall reasonably request in support of his or herpromulgation of rules pursuant to this article.
(c) The division of natural resources, division of energy,
division of environmental protection, bureau of public health,
and department of agriculture are hereby authorized:
(1) To engage the voluntary cooperation of all persons in
the maintenance and protection of groundwater, and to advise,
consult and cooperate with all persons, all agencies of this
state, universities and colleges, the federal government or other
states, and with interstate agencies in the furtherance of the
purposes of this article, and to this end and for the purposes
of studies, scientific or other investigations, research,
experiments and demonstrations pertaining thereto, receive and
spend funds as appropriated by the Legislature, and from such
agencies and other officers and persons on behalf of the state;
(2) To encourage the formulation and execution of plans to
maintain and protect groundwater by cooperative groups or
associations of municipal corporations, industries, industrial
users and other users of groundwaters of the state, who, jointly
or severally, are or may be impacting on the maintenance and
protection of groundwater;
(3) To encourage, participate in, or conduct or cause to be
conducted studies, scientific or other investigations, research,
experiments and demonstrations relating to the maintenance and
protection of groundwater, and to collect data with respect
thereto, all as may be deemed advisable and necessary to carry
out the purposes of this article, and to make reports andrecommendations with respect thereto;
(4) To conduct groundwater sampling, data collection,
analyses and evaluation with sufficient frequency so as to
ascertain the characteristics and quality of groundwater, and the
sufficiency of the groundwater protection programs established
pursuant to this article;
(5) To develop a public education and promotion program to
aid and assist in publicizing the need of and securing support
for the maintenance and protection of groundwater.
§22-12-7. 20-5M-7. Groundwater coordinating committee; creation.
(a) There is hereby created a The state groundwater
coordinating committee which shall consist of the director of the
division of health, the commissioner of the division of energy,
is continued. It consists of the commissioner of the bureau of
public health, the commissioner of agriculture, the chairperson
chair of the water resources environmental quality board, the
chief of the office of water resources section of the division of
natural resources environmental protection and the director of
the division of natural resources environmental protection who
shall serve as its chairperson chair.
(b) The groundwater coordinating committee shall consult,
review and make recommendations on the implementation of this
article by each of the groundwater regulatory agencies. Such
committee shall require the periodic submittal to it of the
groundwater protection programs of each groundwater regulatory
agency including all rules, permits, policies, directives and anyother regulatory devices employed to implement this article.
(c) Upon a review of such programs, the groundwater
coordinating committee shall recommend to the director approval
of such programs, in whole or in part, and identify in writing
any aspect of such programs that are not sufficient to satisfy
the requirements of this article and specify a reasonable time
period for correcting those portions of the program that are
found not to be sufficient.
(d) The director may accept the recommendation of the
committee, in whole or in part and identify in writing any
additional aspects of such programs that are not sufficient to
satisfy the requirements of this article and specify a time
period for correcting those portions of the program that are
found not to be sufficient.
(e) In the biannual biennial report to the Legislature
required by this article, the director shall identify all
portions of groundwater protection programs which have been
determined not to be sufficient to satisfy the requirements of
this article and which have not been adequately addressed within
the time period specified by the director.
(f) No agency shall modify any aspect of its groundwater
protection program as approved by the director without the prior
written approval of the director of such modification. This
requirement does not relieve such agency of any other
requirements of law that may be applicable to such a
modification.
(g) The groundwater coordinating committee is authorized and
empowered to promulgate such legislative rules as may be
necessary to implement this section in accordance with the
provisions of chapter twenty-nine-a of this code.
§22-12-8. 20-5M-8. Groundwater certification.
(a) To ensure a comprehensive, consistent and unfragmented
approach to the management and protection of groundwater,
including evaluation of the cumulative effects of all activities
that have the potential to impact on groundwater, the director
shall oversee and coordinate the implementation of this article
by each of the groundwater regulatory agencies through a
groundwater certification program as hereby established.
(b) Every state, county or local government body which
reviews or issues permits, licenses, registrations, certificates
of other forms of approval, or renewal thereof, for activities or
practices which may affect groundwater quality shall first submit
to the director of the division of natural resources for review
and approval an application for certification. Such application
shall include a copy of the approval proposed by such body,
including any terms and conditions which have been imposed by it.
Upon receipt of this application, the director shall act within
thirty days to determine whether to waive or exercise his or her
certification powers. If no decision is made or communicated by
the director within said thirty day period, groundwater
certification shall be deemed is approved. If the director
decides to exercise his or her certification powers, he or shemay utilize additional time, not to exceed an additional sixty
days, to further review the materials submitted or to conduct
such investigations as he or she deems necessary.
(c) The director may waive, grant, grant with conditions, or
deny groundwater certification. Groundwater certification, and
all conditions required under such certification, shall become a
condition on any permit, approval, or renewal thereof, issued by
any state, county or local government body. Where appropriate,
the director may provide general groundwater certification for or
may waive certification for classes or categories of activities
or approvals.
§22-12-9. 20-5M-9. Groundwater protection fees authorized;
director to promulgate rules; dedication of fee proceeds;
groundwater protection fund established; groundwater
remediation fund established.
(a) The director of the division of natural resources
environmental protection shall promulgate legislative rules in
accordance with the provisions of chapter twenty-nine-a of this
code establishing a schedule of groundwater protection fees
applicable to persons who own or operate facilities or conduct
activities subject to the provisions of this article. The
schedule of fees shall be calculated by the director to recover
the reasonable and necessary costs of implementing the provisions
of this article as it relates to a particular facility or
activity. In addition, the fee may include an appropriate
assessment of other program costs not otherwise attributable toany particular facility or activity. Such fees in the aggregate
shall not exceed one million dollars per year and shall be
deposited into the groundwater protection fund established
pursuant to this article:
Provided,
That any unexpended balance
in the groundwater protection fund at the end of each fiscal year
may, by an act of the Legislature, be transferred to the
groundwater remediation fund created by this article:
Provided,
however,
That if no action is taken to transfer the unexpended
balance to the remediation fund, such moneys shall not be
transferred to the general revenue fund, but shall remain in the
groundwater protection fund. Such fees imposed by this section
are in addition to all other fees and taxes levied by law. The
director shall require such fees to be paid at the time of
certification pursuant to section eight of this article, or at
such more frequent time as the director may deem to be
appropriate. The director may withhold certification pursuant to
section eight of this article where such fees have not been
timely paid.
(b) The director of the division of natural resources
environmental protection shall also promulgate legislative rules
in accordance with the provisions of chapter twenty-nine-a of
this code establishing a schedule of groundwater remediation fees
which in the aggregate shall not exceed two hundred fifty
thousand dollars. Such groundwater remediation fees shall be
assessed over a time period not to exceed two years from
effective date of such rules and shall be deposited into thegroundwater remediation fund established pursuant to this
article. Such fees shall be assessed against persons who own or
operate facilities or conduct activities subject to the
provisions of this article in proportion to the groundwater
protection fees assessed pursuant to subsection (a) of this
section for the year in which such groundwater remediation fees,
or any portion thereof, are assessed.
(c) There are hereby created and established in the state
treasury The following two special revenue accounts are continued
in the state treasury:
(1) The "Groundwater Protection Fund", the moneys of which
shall be expended by the director in the administration,
certification, enforcement, inspection, monitoring, planning,
research, and other activities of the state water resources
environmental quality board, division of natural resources
division of energy, division of environmental protection, bureau
of public health and department of agriculture in accordance with
legislative rules promulgated pursuant to the provisions of
chapter twenty-nine-a of this code. The moneys, including the
interest thereon, in said fund shall be kept and maintained by
the director and expended without appropriation by the
Legislature for the purpose of implementing the provisions of
this article. The director may withhold the payment of any such
moneys to any agency whose groundwater protection program has
been determined by the director, in consultation with the
groundwater coordinating committee, not to be sufficient tosatisfy the requirements of this article and where such agency
has failed to adequately address such determination within the
time period specified by the director. At the end of each fiscal
year, any unexpended balance of said fund may not be transferred
to the general revenue fund, but shall remain in the groundwater
protection fund.
(2) The "Groundwater Remediation Fund", the moneys of which,
to the extent that moneys are available, shall be expended by the
director for the purposes of investigation, clean-up and remedial
action intended to identify, minimize or mitigate damage to the
environment, natural resources, public and private water
supplies, surface waters and groundwaters and the public health,
safety and general welfare which may result from contamination of
groundwater or the related environment. The director or other
authorized agency officials are authorized to recover through
civil action or cooperative agreements with responsible persons
the full amount of any and all groundwater remediation fund
moneys expended pursuant to this article. All moneys expended
from such fund which are so recovered shall be deposited in such
fund. The director may expend moneys from said fund and the
interest thereon without necessity of appropriation by the
Legislature. All civil penalties and assessments of civil
administrative penalties collected pursuant to this article shall
be deposited into the said fund. In addition, said fund may
receive proceeds from any gifts, grants, contributions or other
moneys accruing to the state which are specifically designatedfor inclusion in the fund.
§22-12-10. 20-5M-10. Civil and criminal penalties; civil
administrative penalties; dedication of penalty proceeds;
injunctive relief; enforcement orders; hearings.
(a) Any person who violates any provision of this article,
or any permit or agency approval, rule or order issued to
implement this article, shall be is subject to civil penalties in
accordance with the provisions of section seventeen twenty-two,
article five-a eleven of this chapter:
Provided,
That such
penalties shall be are in lieu of civil penalties which may be
imposed under other provisions of this code for the same
violation.
(b) Any person who willfully or negligently violates any
provision of this article, or any provision of a permit or agency
approval, rule or order issued to implement this article, shall
be is subject to criminal penalties in accordance with the
provisions of section nineteen twenty-four, article five-a eleven
of this chapter:
Provided,
That such penalties shall be are in
lieu of other criminal penalties which may be imposed under other
provisions of this code for the same violation.
(c) Any person who violates any provision of this article,
or any permit or rule or order issued to implement this article,
shall be is subject to a civil administrative penalty to be
levied by the director, of the division of natural resources the
commissioner of agriculture or the director of the division of
health or the commissioner of the division of energy commissionerof the bureau of public health, as appropriate, of not more than
five thousand dollars for each day of such violation, not to
exceed a maximum of twenty thousand dollars. In assessing any
such penalty, any such official shall take into account the
seriousness of the violation and any good faith efforts to comply
with applicable requirements as well as any other appropriate
factors as may be established by such official by legislative
rules promulgated pursuant to this article and the provisions of
chapter twenty-nine-a of this code. No assessment may be levied
pursuant to this subsection until after the alleged violator has
been notified by such official by certified mail or personal
service. The notice shall include a reference to the section of
the statute, rule, order or statement of permit conditions that
was allegedly violated, a concise statement of the facts alleged
to constitute the violation, a statement of the amount of the
administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged
violator shall have twenty calendar days from receipt of the
notice within which to deliver to such official a written request
for an informal hearing. If no hearing is requested, the notice
becomes a final order after the expiration of the twenty-day
period. If a hearing is requested, such official shall inform
the alleged violator of the time and place of the hearing. Such
official may appoint an assessment officer to conduct the
informal hearing who shall make a written recommendation to such
official concerning the assessment of a civil administrativepenalty. Within thirty days following the informal hearing, such
official shall issue and furnish to the violator a written
decision, and the reasons therefor, concerning the assessment of
a civil administrative penalty. Within thirty days after
notification of such official's decision, the alleged violator
may request a formal hearing before the board in accordance with
the provisions of section eleven of this article. Any
administrative civil penalty assessed pursuant to this section
shall be is in lieu of any other civil penalty which may be
assessed under any provision of this code for the same violation.
No combination of assessments against any violator under this
section may exceed twenty-five thousand dollars per day of each
such violation. All administrative penalties shall be levied in
accordance with legislative rules promulgated by such official in
accordance with the provisions of chapter twenty-nine-a of this
code.
(d) The net proceeds of all civil penalties collected
pursuant to subsection (a) of this section and all assessments of
any civil administrative penalties collected pursuant to
subsection (c) of this section shall be deposited into the
groundwater remediation fund established pursuant to this
article.
(e) Any such official may seek an injunction, or may
institute a civil action against any person in violation of any
provision of this article or any permit, agency approval, rule or
order issued to implement this article. In seeking aninjunction, it is not necessary for such official to post bond
nor to allege or prove at any point in the proceeding that
irreparable damage will occur if the injunction is not issued or
that the remedy at law is inadequate. An application for
injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not
been exhausted or invoked against the person or persons against
whom such relief is sought.
(f) If any such official upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, or any permit, order or rules
issued to implement the provisions of this article, he or she may
issue an order stating with reasonable specificity the nature of
the violation and requiring compliance immediately or within a
specified time. An order under this section includes, but is not
limited to, any or all of the following: Orders implementing
this article which (1) suspend, revoke or modify permits; (2)
require a person to take remedial action; or (3) are cease and
desist orders.
(g) Any person issued a cease and desist order under
subsection (f) of this section may file a notice of request for
reconsideration with such official not more than seven days from
the issuance of such order and shall have a hearing before such
official to contest the terms and conditions of such order within
ten days after filing such notice of a request forreconsideration. The filing of a notice of request for
reconsideration does not stay or suspend the execution or
enforcement of such cease and desist order.
§22-12-11. 20-5M-11. Appeal and review procedures.
(a) Any person having an interest which is or may be
adversely affected, or who is aggrieved by an order of the
director or any public official authorized to take or implement
an agency action, or by the issuance or denial of a permit issued
to implement this article or by such permit's term or conditions,
or by the failure or refusal to act within a reasonable time, may
appeal to the water resources environmental quality board in the
same manner as appeals are taken under section fifteen, article
five-a of this chapter as provided in article one, chapter
twenty-two-b of this code.
(b) Any person, the director or any public official
adversely affected by an order made and entered by the water
resources board may obtain judicial review thereof in the same
manner as provided for under section sixteen, article five-a of
this chapter.
§22-12-12. 20-5M-12. Rule-making petition.
Any person may petition the appropriate rule-making agency
for rule making on an issue arising under this article. The
appropriate rule-making agency, if it believes such issue to
merit rule making, may initiate rule making in accordance with
the provisions of chapter twenty-nine-a of this code. A decision
by the appropriate rule-making agency not to pursue rule makingmust set forth in writing reasons for refusing to do so. Any
person may petition an agency to issue a declaratory ruling
pursuant to section one, article four, chapter twenty-nine-a of
this code with respect to the applicability to any person,
property or state of facts of any rules promulgated by that
agency pursuant to this article.
§22-12-13. 20-5M-13. Existing rights and remedies preserved;
effect of compliance.
(a) It is the purpose of this article to provide additional
and cumulative remedies to address the quality of the groundwater
of the state. This article shall not be interpreted to does not
alter the authority of any agency with respect to water other
than groundwater. Except as expressly stated in this article, it
is not the intention of the Legislature in enacting this article
to repeal any other provision of this code.
(b) Nothing contained in this article shall abridge or alter
abridges or alters rights of action or remedies now or hereafter
existing, nor shall do any provisions in this article, or any act
done by virtue of this article, be construed as estopping estop
the state, municipalities, public health officers or persons as
riparian owners or otherwise, in the exercise of their rights to
suppress nuisances or to abate any pollution now or hereafter
existing, or to recover damages.
(c) Where a person is operating a source or conducting an
activity in compliance with the terms and conditions of a permit,
rule, order, directive, or other authorization issued by agroundwater regulatory agency pursuant to this article, such
person shall is not be subject to criminal prosecution for
pollution recognized and authorized by such permit, rule, order,
directive, or other authorization.
§22-12-14. 20-5M-15. Effective dates of provisions subject to
federal approval.
To the extent that this article modifies any powers, duties,
functions and responsibilities of any state agency that may
require approval of one or more federal agencies or officials in
order to avoid disruption of the federal-state relationship
involved in the implementation of federal regulatory programs by
the state, any such modifications shall become effective upon a
proclamation by the governor stating either that final approval
of such modifications has been given by the appropriate federal
agency or official or that final approval of such modification
is not necessary to avoid disruption of the federal-state
relationship under which such regulatory programs are
implemented.
ARTICLE 5B. 13. NATURAL STREAMS PRESERVATION ACT.
§22-13-1. 20-5B-16. Short title.
This article may be known and cited as the "Natural Streams
Preservation Act."
§22-13-2. 20-5B-1. Declaration of public policy.
In order to assure that an increasing population,
accompanied by expanding settlement and growing mechanization,
does not impound, flood or divert all streams within the state ofWest Virginia, leaving no streams designated for preservation and
protection in their natural condition, it is hereby declared to
be the public policy of this state to secure for the citizens of
West Virginia of present and future generations the benefits of
an enduring resource of free-flowing streams possessing
outstanding scenic, recreational, geological, fish and wildlife,
botanical, historical, archeological, or other scientific or
cultural values.
§22-13-3. 20-5B-2. Definitions.
Unless the context, in which used, clearly requires a
different meaning, as used in this article:
(a) (1) "Board" shall mean means the state water resources
environmental quality board;
(b) "Chief" shall mean the chief of the division of water
resources of the department of natural resources;
(c) (2) "Director" shall mean means the director of the
department of natural resources division of environmental
protection or such other person the director has delegated
authority or duties to pursuant to sections six or eight, article
one of this chapter;
(d) (3) "Free-flowing" shall mean means existing or flowing
in natural condition without impoundment, by diversion, or
flooding of the waterway;
(e) (4) "Modification" shall mean means the impounding,
diverting or flooding of a stream within the natural stream
preservation system;
(f) (5) "Modify" shall mean means to impound, divert or
flood a stream within the natural stream preservation system;
(g) (6) "Permit" shall mean means a permit required by
section six seven of this article;
(h) (7) "Person," "persons" or "applicants" shall mean means
any public or private corporation, institution, association, firm
or company organized or existing under the laws of this or any
other state or country; state of West Virginia; governmental
agencies; political subdivision; county court; municipal
corporations; industries; sanitary district; public service
district; drainage district; soil conservation district;
watershed improvement district; partnership; trust; estate;
person or individual; group of persons or individuals acting
individually or as a group; or any other legal entity whatever;
(i) (8) "Protected stream" shall mean means any stream
designated as such in section four five of this article, but
shall does not include tributaries or branches unless
specifically designated or described in section four five of this
article;
(j) (9) "Stream" shall mean means a flowing body of water or
a section or portion thereof, including rivers, streams, creeks,
branches or small lakes.
§22-13-4. 20-5B-3. Establishment of natural stream preservation
system.
For the purpose of implementing the public policy declared
in section one two of this article, there is hereby establisheda natural stream preservation system to be composed of streams
designated by the Legislature as "protected streams," and these
shall be administered for the use and enjoyment of the citizens
of West Virginia in such manner as will leave them unimpaired for
future use and enjoyment as free-flowing streams, and so as to
provide for the protection and the preservation of these streams
in their natural character.
§22-13-5. 20-5B-4. Designation of protected streams.
The following streams are hereby designated as protected
streams within the natural streams preservation system, namely:
(a) Greenbrier River from its confluence with Knapps Creek
to its confluence with the New River.
(b) Anthony Creek from its headwaters to its confluence with
the Greenbrier River.
(c) Cranberry River from its headwaters to its confluence
with the Gauley River.
(d) Birch River from the Cora Brown bridge in Nicholas
county to the confluence of the river with the Elk River.
(e) New River from its confluence with the Gauley River to
its confluence with the Greenbrier River.
§22-13-6. 20-5B-5. General powers and duties of chief of
division of water resources and water resources board
director with respect to protected streams.
(a) In addition to all other powers and duties of the chief
of the department's division of water resources director, as
prescribed in this article or elsewhere by law, the chief, underthe supervision of the director shall exercise general
supervision over the administration and enforcement of the
provisions of this article, and all orders and permits issued
pursuant to the provisions of this article.
(b) In addition to all other powers and duties of the water
resources board director, as prescribed in this article or
elsewhere by law, the board shall have director has authority to
promulgate rules and regulations, in accordance with the
provisions of chapter twenty-nine-a of this code, to implement
and make effective the powers, duties and responsibilities vested
in the board and the chief director by the provisions of this
article and otherwise by law:
Provided,
That all such rules and
regulations shall be consistent with the declaration of public
policy set forth in section one two of this article.
(c) The board is hereby authorized to hire one or more
individuals to serve as hearing examiners on a full or part-time
basis. Such individuals may be attorneys at law admitted to
practice before any circuit court of this state. All such
hearing examiners shall be individuals authorized to take
depositions under the laws of this state.
(d) The board, any member thereof and the chief, and their
director and duly authorized representatives, shall have the
power and authority to make investigations, inspections and
inquiries concerning compliance with the provisions of this
article, any order made and entered in accordance with the
provisions of this article, any rules or regulations promulgatedby the board director, and with the terms and conditions of any
permit issued in accordance with the provisions of section eight
nine of this article. In order to make such investigations,
inspections and inquiries, the board, any member thereof and the
chief, and their director and duly authorized representatives,
shall have the power and authority to enter at all reasonable
times upon any private or public property, subject to
responsibility for any damage to the property entered. Upon
entering, and before making any investigation, inspection and
inquiry, such person shall immediately present himself or herself
to the occupant of the property. Upon entering property used in
any manufacturing, mining or other commercial enterprise, or by
any municipality or governmental agency or a subdivision, and
before making any investigation, inspection and inquiry, such
person shall immediately present himself or herself to the person
in charge of the operation, and if he or she is not available, to
a managerial employee. All persons shall cooperate fully with
the person entering such property for such purposes. Upon a
refusal of the person owning or controlling such property to
permit such entrance or the making of such inspections,
investigations and inquiries, the board or the chief director
may apply to the circuit court of the county in which such
property is located, or to the judge thereof in vacation, for an
order permitting such entrance and the making of such
inspections, investigations, and inquiries; and jurisdiction is
hereby conferred upon such court to enter such order upon ashowing that the relief asked is necessary for the proper
enforcement of this article. : Provided, however, That a dwelling
occupied for residential purposes shall not be entered without a
search warrant. Nothing contained in this section eliminates any
obligation to follow any process that may be required by law.
§22-13-7. 20-5B-6. When permits required; when permits not to
be issued.
It shall be is unlawful for any person, until the
department's division's permit therefor has been granted, to
modify any protected stream or any part thereof. No permit shall
be issued unless the work proposed to be done under such permit:
(a) Will not materially alter or affect the free-flowing
characteristics of a substantial part of a protected stream or
streams; (b) is necessary to prevent an undue hardship; and (c)
meets with the approval of the chief director.
§22-13-8. 20-5B-7. Application for permit; form of application;
information required; fees.
The chief director shall prescribe a form of application for
all permits. All applications for permits shall be submitted to
the division of water resources and shall be on the prescribed
form.
A permit fee of ten dollars shall accompany the application
when filed with the division. of water resources. The permit fee
shall be deposited in the state treasury to the credit of the
state general fund.
§22-13-9. 20-5B-8. Procedure for issuance or denial of permit;
transfer of permits.
(a) Before issuing a permit, a public hearing shall be held.
The chief director shall consider the application and shall fix
a time and place for hearing on such application. The hearing
shall be held in a county in which the proposed modification is
to be made and, if the proposed modification is to be made in
more than one county, then a separate hearing shall be held in
each county in which the proposed modification is to be made.
The applicant shall cause a notice of the time and place of such
hearing and the purpose thereof to be published as a Class III-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code, and the publication area
for such publication shall be is the county or counties in which
the proposed modification is to be made. Publication of the
notice shall be completed at least fifteen days before such
hearing. The applicant shall also cause to be served, at least
fifteen days before such hearings, in the manner provided by law
for the service of notice and process, a notice showing the time,
place and purpose of such hearing, upon every owner of property,
and every person holding a lien thereon, abutting on that portion
of the stream on which the modification is to be made, or
abutting on any portion of such stream within two miles above or
below the proposed modification. The affidavit of publication of
such notice shall be filed with the chief director or his or her
duly designated hearing examiner at or before the hearing as a
part of the record in the proceedings.
(b) At the time and place fixed for the hearings, the chief
director or his or her duly designated hearing examiner shall
hear any evidence relating to the proposed modification, the
necessity therefor, the effect of such modification on the stream
and any and all other matters relevant to the application and the
proposed modification. If the chief director concludes and finds
upon the record and evidence in the proceedings that the proposed
modification should be permitted, he or she shall proceed to
issue the permit:
Provided, however,
That the director may
attach such conditions, qualifications or limitations to such
permit as he or she finds appropriate.
(c) An application for any such permit shall be acted upon
by the chief director and the department's division's permit
delivered or mailed, or a copy of any order of the chief director
denying any such application mailed as hereinafter specified, as
the case may be, to the applicant by the chief director within
forty-five days after the hearings have been completed.
(d) When it is established that an application for a permit
should be denied, the chief director shall make and enter an
order to that effect, which order shall specify the reasons for
such denial, and shall cause a copy of such order to be served on
the applicant by registered or certified mail. The chief
director shall also cause a notice to be served with the copy of
such order, which notice shall advise the applicant of his or her
right to appeal to the board by filing a notice of appeal, on a
form prescribed by the board for such purpose, with the board,within the time specified in and in accordance with the
provisions of section ten of this seven, article within thirty
days after the date upon which the applicant received the copy of
such order one, chapter twenty-two-b of this code. However, an
applicant may offer the plans and specifications for the proposed
modification and submit a new application for any such permit, in
which event the procedure hereinbefore outlined with respect to
an original application shall apply.
(e) Upon the sale of property which includes an activity for
which the department's division's permit was granted, the permit
shall be is transferable to the new owner, but the transfer shall
does not become effective until it is made in the records of the
division. of water resources.
§22-13-10. 20-5B-9. Inspections; orders to compel compliance
with permits; service of order.
After issuance of the department's division's permit for any
such modification, the chief and his director and duly authorized
representatives may make field inspections of the work on the
modification, and, after completion thereof, may inspect the
completed modification, and, from time to time, may inspect the
maintenance and operation of such modification.
To compel compliance with the terms and conditions of the
department's division's permit for any such modification and with
the plans and specifications therefor and the plan of maintenance
and method of operation thereof, the chief director is hereby
authorized after reasonable notice to make and enter an orderrevoking or suspending such permit and directing the person to
whom such permit was issued to stop or suspend any and all work
on such activity or, to take affirmative action to correct the
deficiencies specified in such order so there will be full
compliance with the terms and conditions of such permit and with
the plans and specifications therefor, and the plan of
maintenance and method of operation thereof.
The chief director shall cause a copy of any such order to
be served by registered or certified mail or by a conservation
officer or other law-enforcement officer upon the person to whom
any such permit was issued. The chief shall also cause a notice
to be served with the copy of such order, which notice shall
advise such person of his or her right to appeal to the board by
filing a notice of appeal on the form prescribed by the board for
such purpose, with the board, within the time specified in and
in accordance with the provisions of section ten of this seven,
article within thirty days after the date upon which such person
received the copy of such order one, chapter twenty-two-b of this
code.
§22-13-11. 22-5B-10. Appeal to Water resources environmental
quality board.
(a) Any person adversely affected by an order made and
entered by the chief director in accordance with the provisions
of this article, or aggrieved by failure or refusal of the chief
director to act within the time required by section eight nine of
this article on an application for a permit or aggrieved by theterms and conditions of a permit granted under the provisions of
this article, may appeal to the water resources environmental
quality board for an order vacating or modifying such order, or
for such order, action or terms and conditions as the chief
director should have entered, taken or imposed. The person so
appealing shall be known as the appellant and the chief shall be
known as the appellee.
(b) Such appeal shall be perfected by filing a notice of
appeal, on the form prescribed by the board for such purpose,
with the board within thirty days after the date upon which the
appellant received the copy of such order, or received such
permit, as the case may be. The filing of the notice of appeal
shall stay or suspend execution of any order appealed from. The
notice of appeal shall set forth the order or terms and
conditions complained of and the grounds upon which the appeal is
based. A copy of the notice of appeal shall be filed by the
board with the chief within three days after the notice of appeal
is filed with the board.
(c) Within seven days after receipt of his copy of the
notice of appeal, the chief shall prepare and certify to the
board a complete record of the proceedings out of which the
appeal arises, including all documents and correspondence in the
chief's file relating to the matter in question. With the
consent of the board and upon such terms and conditions as the
board may prescribe, any persons affected by any such
modification may by petition intervene as a part appellant orappellee. The board shall hear the appeal de novo, and evidence
may be offered on behalf of the appellant and appellee, and, with
the consent of the board, by any intervenors. No such hearing
shall be heard on such appeal until ten days following service of
notice of such appeal on all persons shown by the record to be
interested in the matter.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
on appeal authorized by this section and the administrative
procedures in connection with and following such hearing, with
like effect as if the provisions of said article five were set
forth in extenso in this section, with the following
modifications or exceptions:
(1) Unless the board directs otherwise, the appeal hearing
shall be held in the city of Charleston, Kanawha county, West
Virginia; and
(2) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimony
at any such hearing shall be recorded by stenographic notes and
characters or by mechanical means. Such reported testimony shall
in every appeal hearing under this article be transcribed.
(e) Any such appeal hearing shall be conducted by a quorum
of the board, but the parties may by stipulation agree to take
evidence before a hearing examiner employed by the board. Upon
request of any party to the appeal, the evidence taken before a
hearing examiner shall be taken in the county in which themodification is proposed to take place, or, if the modification
is to take place in more than one county, the hearing shall be
held in the county most extensively affected by the modification.
For the purpose of conducting such appeal hearing, any member of
the board and the secretary thereof shall have the power and
authority to issue subpoenas duces tecum in the name of the
board, in accordance with the provisions of section one, article
five, chapter twenty-nine-a of this code. All subpoenas and
subpoenas duces tecum shall be issued and served within the time
and for the fees and shall be enforced, as specified in section
one, article five of said chapter twenty-nine-a, and all of the
said section one provisions dealing with subpoenas and subpoenas
duces tecum shall apply to subpoenas and subpoenas duces tecum
issued for the purpose of an appeal hearing hereunder.
(f) Any such hearing shall be held within twenty days after
the date upon which the board received the timely notice of
appeal, unless there is a postponement or continuance. The board
may postpone or continue any hearing upon its own motion, or upon
application of the appellant, the appellee or any intervenors for
good cause shown. The chief shall be represented at any such
hearing by the attorney general or his assistant. At any such
hearing the appellant and any intervenor may represent himself or
be represented by an attorney at law admitted to practice before
any circuit court of this state.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case, the board shall makeand enter an order affirming, modifying or vacating the order of
the chief, or shall make and enter such order as the chief should
have entered, or shall make and enter an order approving or
modifying the terms and conditions of any permit issued. In
determining its course of action, the board shall take into
consideration the factors which the chief had to consider in
making his order, and fixing the terms and conditions of such
permit, as set forth in section eight or nine of this article, as
the case may be.
(h) Such order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
appellant, and any intervenors, and their attorneys of record, if
any, and upon the appellee in person or by registered or
certified mail.
(i) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,
the appellee and any intervenors of their right to judicial
review, in accordance with the provisions of section eleven of
this article. The order of the board shall be final unless
vacated or modified upon judicial review thereof in accordance
with the provisions of section eleven of this article.
(b) Notwithstanding the provisions of section nine, article
one, chapter twenty-two-b of this code:
(1) As to Appeals from orders of the board in casesinvolving an order denying an application for a permit, or
approving or modifying the terms and conditions of a permit, the
petition shall be filed, within the time specified in said
section, four in the circuit court of any county in which such
modification is proposed to be made.
(2) As to Appeals from orders of the board in cases
involving an order revoking or suspending a permit and directing
any and all work on such modification to stop, or directing that
affirmative action be taken to correct alleged and specified
deficiencies concerning any such modification, the petition shall
be filed, within the time specified in said section, four in the
circuit court of any county in which any part of such
modification is proposed to be made.
[Drafter's note: The above language minus the strike-throughs and
the language underscored was originally §20-5B-11(a) (1) and
(2).]
§22-13-12. 20-5B-12. Actions to abate nuisances; injunctive
relief.
Whether any violation of the provisions of this article or
any final order of the chief director or the board shall result
results in prosecution or conviction or not, any such violation
shall be deemed is a nuisance which may be abated upon
application by the chief to the circuit court of the county in
which such nuisance or any part thereof shall exist exists, or to
the judge thereof in vacation. Upon application by the chief
director, the circuit courts of this state may by mandatory orprohibitive injunction compel compliance with all final orders of
the chief director or board. Any application for an injunction
to compel compliance with any final order of the chief director
or board shall be made to the circuit court of any county in
which the modification to which the order relates is proposed to
be made, or in which the modification to which the order relates
is situate or would be situate upon completion thereof. Upon
application by the chief director to the circuit court of the
county in which a municipal corporation is located, or in which
any person resides or does business, or to the judge thereof in
vacation, such court may by injunction require the performance of
any duty imposed upon such municipal corporation or person by the
provisions of this article. The court may issue a temporary
injunction in any case pending a decision on the merits of any
application filed. In cases of modifications where irreparable
damage will result from any delay incident to the administrative
procedures set forth in this article, the chief, with the consent
of the director may forthwith apply to the circuit court of any
county in which the modification is taking place for a temporary
injunction. Such court may issue a temporary injunction pending
final disposition of the case by the chief director or the board,
in the event an appeal is taken to the board.
The judgment of the circuit court upon any application
permitted by the provisions of this section shall be is final
unless reversed, vacated or modified on appeal to the supreme
court of appeals. Any such appeal shall be sought in a mannerprovided by law for appeals for circuit courts in other civil
cases, except that the petition seeking such review must be filed
with said supreme court of appeals within ninety days from the
date of entry of the judgment of the circuit court.
The chief director shall be represented in all such
proceedings by the attorney general or his or her assistant and
in such proceedings in the circuit court by the prosecuting
attorneys of the several counties as well, all without additional
compensation.
§22-13-13. 20-5B-13. Priority of actions.
All applications under section twelve of this article and
all proceedings for judicial review under section eleven of this
article article one, chapter twenty-two-b of this code shall take
priority on the docket of the circuit court in which pending, and
shall take precedence over all other civil cases. Where such
applications and proceedings for judicial review are pending at
the same time, such applications shall take priority on the
docket and shall take precedence over proceedings for judicial
review.
§22-13-14. 20-5B-14. Violations; criminal penalties.
Any person who fails or refuses to discharge any duty
imposed upon him or her by this article or by any final order of
the chief director or board, or who fails or refuses to apply for
and obtain a permit as required by the provisions of this
article, shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be punished for a first offense by afine of not less than twenty-five dollars nor more than one
hundred dollars, and for a second offense by a fine of not less
than two hundred dollars nor more than five hundred dollars, and
for a third offense and each subsequent offense by a fine of not
less than five hundred dollars nor more than one thousand dollars
or by imprisonment for a period not to exceed six months, or in
the discretion of the court by both such fine and imprisonment.
§22-13-15. 20-5B-15. Exceptions as to criminal liabilities.
The criminal liabilities imposed by provided for in section
fourteen of this article shall not be construed to include may
not be imposed for any violation resulting from accident or
caused by an act of God, war, strike, riot or other catastrophe
as to which negligence or wilful conduct on the part of such
person was not the approximate proximate cause.
ARTICLE 5D. 14. DAM CONTROL ACT.
§22-14-1. 20-5D-1. Short title.
This article shall be known and cited as the "Dam Control
and Safety Act".
§22-14-2. 20-5D-2. Legislative findings; intent and purpose of
article.
The Legislature finds that dams may constitute a potential
hazard to people and property; therefore, dams in this state must
be properly regulated and controlled to protect the health,
safety and welfare of people and property in this state. It is
the intent of the Legislature by this article to provide for the
regulation and supervision of dams in this state to the extentnecessary to protect the public health, safety and welfare. The
Legislature has ordained this article to fulfill its
responsibilities to the people of this state and to protect their
lives and private and public property from the danger of a
potential or actual dam failure. The Legislature finds and
declares that in light of the limited state resources available
for the purposes of this article, and in view of the high
standards to which the United States soil conservation service
designs dams, independent state review of the plans and
specifications for dams designed by the soil conservation service
and construction oversight should not be required. The
Legislature further finds and declares that dams designed and
constructed by the soil conservation service but not owned or
operated by it should be subject to the same provisions of
inspection, after construction and certification by the soil
conservation service, as other dams covered by this article, so
long as any dam under the soil conservation service program is
designed with standards equal to or exceeding state requirements
under this article.
§22-14-3. 20-5D-3. Definition of terms used in article.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Alterations" or "repairs" means only those changes in
the structure or integrity of a dam which may affect its safety,
which determination shall be made by the director.
(b) "Application for a certificate of approval" means therequest in writing by a person to the director requesting that
person be issued a certificate of approval.
(c) "Appurtenant works" means any structure or facility
which is an adjunct of, or connected, appended or annexed to a
dam, including, but not limited to, spillways, a reservoir and
its rim, low level outlet works or water conduits such as
tunnels, pipelines and penstocks either through the dam or its
abutments.
(d) "Certificate of approval" means the approval in writing
issued by the director to a person who has applied to the
director for a certificate of approval which authorizes the
person to place, construct, enlarge, alter, repair or remove a
dam and specifies the conditions or limitations under which the
work is to be performed by that person.
(e) "Director" means the director of the division of natural
resources environmental protection or his or her authorized
agents such other person the director has delegated authority or
duties to pursuant to sections six or eight, article one of this
chapter
(f) "Division" means the division of natural resources
environmental protection.
(g) "Dam" means an artificial barrier or obstruction,
including any works appurtenant to it and any reservoir created
by it, which is or will be placed, constructed, enlarged, altered
or repaired so that it does or will impound or divert water and:
(1) Is or will be twenty-five feet or more in height from thenatural bed of the stream or watercourse measured at the
downstream toe of the barrier and which does or can impound
fifteen acre-feet or more of water; or (2) is or will be six feet
or more in height from the natural bed of the stream or
watercourse measured at the downstream toe of the barrier and
which does or can impound fifty acre-feet or more of water:
Provided,
That the term "dam" shall does not include: (A) Any
dam owned by the federal government; (B) any dam for which the
operation and maintenance thereof is the responsibility of the
federal government; (C) slack-water dams constructed and
maintained in connection with public highways, streets, bridges,
culverts or viaducts, which shall continue to be regulated and
controlled as provided in article five of this chapter; (D) farm
ponds constructed and used primarily for agricultural purposes,
including, but not limited to, livestock watering, irrigation,
retention of animal wastes and fish culture, and which have no
potential to cause loss of human life in the event of embankment
failure; or (E) (D) structures which do not or will not impound
water under normal conditions and which have a designed culvert
or similar conveyance or such capacity as would be used under a
highway at the same location:
Provided, however,
That the
director may apply the provisions of section ten of this article
for hazardous, nonimpounding structures which are brought to his
or her attention.
(h) "Enlargement" means any change in or addition to an
existing dam which: (1) Raises the height of the dam; (2) raisesor may raise the water storage elevation of the water impounded
by the dam; (3) increases or may increase the amount of water
impounded by the dam; or (4) increases or may increase the
watershed area from which water is impounded by the dam.
(i) "Person" means any public or private corporation,
institution, association, society, firm, organization or company
organized or existing under the laws of this or any other state
or country; the state of West Virginia; any state governmental
agency; any political subdivision of the state or of its counties
or municipalities; sanitary district; public service district;
drainage district; soil conservation district; watershed
improvement district; partnership; trust; estate; person or
individual; group of persons or individuals acting individually
or as a group; or any other legal entity whatever. The term
"person", when used in this article, includes and refers to any
authorized agent, lessee or trustee of any of the foregoing or
receiver or trustee appointed by any court for any of the
foregoing.
(j) "Reservoir" means any basin which contains or will
contain impounded water.
(k) "Soil conservation service" means the soil conservation
service of the United States department of agriculture or any
successor agency.
(l) "Water" means any liquid, including any solids or other
matter which may be contained therein, which is or may be
impounded by a dam.
(m) "Water storage elevation" means the maximum elevation
that water can reach behind a dam without encroaching on the
freeboard approved for the dam under flood conditions.
§22-14-4. 20-5D-4. General powers and duties of director;
maximum fee established for certificates of approval and
annual registration.
The director shall have has the following powers and duties:
(a) To control and exercise regulatory jurisdiction over
dams as provided for in this article;
(b) To review all applications for a certificate of approval
for the placement, construction, enlargement, alteration, repair
or removal of any dam;
(c) To grant, modify, amend, revoke, restrict or refuse to
grant any certificate of approval if proper or necessary to
protect life and property as provided in this article;
(d) To adopt, modify, repeal and enforce rules and issue
orders, in such manner as the director may otherwise do, to
implement and make effective the powers and duties vested in it
by the provisions of this article;
(e) To take any lawful action considered necessary for the
effective enforcement of the provisions of this article;
(f) To establish and charge reasonable fees not to exceed
three hundred dollars for the review of applications for
certificates of approval and the issuance thereof and for
assessment of an annual registration fee not to exceed one
hundred dollars for persons holding a certificate of approval forexisting dams. The director shall promulgate rules to establish
a schedule of application fees and to establish annual
registration fees:
Provided,
That no fee shall be assessed for
dams designed and constructed by the soil conservation service
for soil conservation districts;
(g) To employ qualified consultants or additional persons as
necessary to review applications for certificates of approval and
to recommend whether they should be approved, to inspect dams and
to enforce the provisions of this article;
(h) To cooperate and coordinate with agencies of the federal
government, this state and counties and municipalities of this
state to improve, secure, study and enforce dam safety and dam
technology within this state;
(i) To investigate and inspect dams as is necessary to
implement or enforce the provisions of this article and when
necessary to enter the public or private property of any dam
owner. The director may investigate, inspect or enter private or
public property after notifying the dam owner or other person in
charge of the dam of an intent to investigate, inspect or enter:
Provided,
That where the owner or person in charge of the dam is
not available, the director may investigate, inspect and enter
without notice; and
(j) To prepare and publish within a reasonable time,
criteria to govern the design, construction, repair, inspection
and maintenance of proposed dams herein defined, and to review
these criteria annually in order to consider improved technologyfor inclusion in such criteria.
§22-14-5. 20-5D-5. Unlawful to place, construct, enlarge, alter,
repair, remove or abandon dam without certificate of
approval; application required to obtain certificate.
It is unlawful for any person to place, construct, enlarge,
alter, repair, remove or abandon any dam under the jurisdiction
of the director until he or she has first: (a) Filed an
application for a certificate of approval with the division; and
(b) obtained from the division a certificate of approval:
Provided,
That routine repairs which do not affect the safety of
a dam are not subject to the application and approval
requirements. A separate application for a certificate of
approval must be submitted by a person for each dam he or she
desires to place, construct, enlarge, alter, repair, remove or
abandon. One application may be valid for more than one dam
involved in a single project or in the formation of a reservoir.
Each application for a certificate of approval shall be made
in writing on a form prescribed by the director and shall be
signed and verified by the applicant. The application shall
contain and provide information which may be reasonably required
by the director to administer the provisions of this article.
In the case of dams designed by the soil conservation
service for transfer to any political subdivision, the director
shall, within sixty days after receipt of a completed application
therefor, issue a certificate of approval without review of the
plans and specifications.
§22-14-6. 20-5D-6. Plans and specifications for dams to be in
charge of registered professional engineer.
Plans and specifications for the placement, construction,
enlargement, alteration, repair or removal of dams shall be in
the charge of a registered professional engineer licensed to
practice in West Virginia. Any plans or specifications submitted
to the division shall bear the seal of a registered professional
engineer.
§22-14-7. 20-5D-7. Granting or rejecting applications for
certificate of approval by division; publication of notice
of application; hearing upon application.
Upon receipt of an application for a certificate of approval
and the fee required under the provisions of this article, the
director shall proceed to consider the application for
sufficiency. The director shall approve or disapprove the
application within sixty days after receipt.
If an application is defective, it shall be returned to the
applicant by certified or registered mail, return receipt
requested, in order that the applicant may correct any defect:
Provided,
That a defective application must be returned to the
division by the applicant within thirty days after it has been
returned to the applicant or it shall be treated as a new
application:
Provided, however,
That for good cause shown, the
director may extend the thirty-day period.
Upon approval by the director of the sufficiency of the
application, the applicant shall immediately publish theapplication as a Class I legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area for the publication shall be is the
county in which the proposed dam is to be located or in which the
existing dam is located. The notice shall include, but not be
limited to, the name and address of the owner of the dam and the
location of the dam for which the application was filed.
Any person who may be adversely affected by the issuance of
a certificate of approval has a right to a hearing before the
director if the person demands the hearing in writing within
fifteen days of publication of the certificate of approval. The
written request for hearing shall include specific objections to
the certificate of approval.
Upon receipt by the director of the written request for
hearing, the director shall immediately set a date for the
hearing and shall notify the person or persons demanding a
hearing. The hearing shall be held within ten days after receipt
of the written request. The director shall hear evidence from
all interested parties and shall either: (1) Refuse to issue a
certificate of approval; or (2) issue a certificate of approval
which shall be subject to terms, conditions and limitations as
the director may consider necessary to protect life and property.
Unless otherwise extended by the director, a certificate of
approval is valid for a period of not more than one year.
§22-14-8. 20-5D-8. Content of certificates of approval for dams;
revocation or suspension of certificates.
Each certificate of approval issued by the director under
the provisions of this article may contain other terms and
conditions as the director may prescribe.
The director may revoke or suspend any certificate of
approval whenever it is determined that the dam for which the
certificate was issued constitutes a danger to life and property.
If necessary to safeguard life and property, the director may
also amend the terms and conditions of any certificate by issuing
a new certificate containing the revised terms and conditions.
Before any certificate of approval is amended or revoked by
the director, the director shall hold a hearing in accordance
with the provisions of article five, chapter twenty-nine-a of
this code.
Any person adversely affected by an order entered following
the hearing has the right of judicial review of the order in
accordance with the provisions of section four, article five,
chapter twenty-nine-a of this code to appeal to the environmental
quality board pursuant to the provisions of article one, chapter
twenty-two-b of this code.
§22-14-9. 20-5D-9. Inspections during progress of work on dam.
During the placement, construction, enlargement, repair,
alteration or removal of any dam, the director shall, either with
the division's own engineers or by consulting engineers or
engineering organizations, make periodic inspections for the
purpose of ascertaining compliance with the certificate of
approval. The director shall require the owner at his or herexpense to perform work or tests as necessary and to provide
adequate supervision during the placement, construction,
enlargement, repair, alteration or removal of a dam:
Provided,
That with respect to dams designed by and constructed under the
supervision of the soil conservation service, as to such dams no
state inspections shall be are required.
If at any time during placement, construction, enlargement,
repair, alteration or removal of any dam, the director finds that
the work is not being done in accordance with the provisions of
the original or revised certificate of approval, the director
shall notify the owner by certified or registered mail, return
receipt requested, to correct the deficiency, cease and desist
work or to show cause as to why the certificate of approval
should not be revoked.
The notice shall state the reason or reasons why the work is
not in accordance with the certificate of approval. The director
may order that work on the dam cease until the owner has complied
with the notice.
If the director finds that amendments, modifications or
changes are necessary to ensure the safety of the dam, the
director may order the owner to revise his or her plans and
specifications. If conditions are revealed which will not permit
the placement, construction, enlargement, repair, alteration or
removal of the dam in a safe manner, the certificate of approval
may be revoked.
Immediately upon completion of a new dam or enlargement,repair or alteration of a dam, the owner shall notify the
director:
Provided,
That immediately upon completion of a dam
constructed under the supervision of the soil conservation
service, a certification of completion shall be sent to the
director by the soil conservation service, and a complete set of
design documents "as built" plans, and specifications and safety
plan of evacuation shall be provided to the director within
ninety days after completion of the dam.
§22-14-10. 20-5D-10. Procedures for handling emergencies
involving dams; remedial actions to alleviate emergency;
payment of costs of remedial actions to be paid by dam
owner.
The owner of a dam has the primary responsibility for
determining when an emergency involving a dam exists. When the
owner of a dam determines an emergency does exist, the owner
shall take necessary remedial action and shall notify the
director and the owner shall also notify any persons who may be
endangered if the dam should fail.
The director shall notify any persons, not otherwise
notified, who may be endangered if the dam should fail. The
director may take any remedial action necessary to protect life
and property if: (a) The condition of the dam so endangers life
and property that time is not sufficient to permit the issuance
and enforcement of an order for the owner to correct the
condition; or (b) passing or imminent floods or other conditions
threaten the safety of the dam. Remedial actions may include,but are not limited to:
(1) Taking full charge and control of the dam.
(2) Lowering the level of water impounded by the dam by
releasing such impounded water.
(3) Completely releasing all water impounded by the dam.
(4) Performing any necessary remedial or protective work at
the site of the dam.
(5) Taking any other steps necessary to safeguard life and
property.
Once the director has taken full charge of the dam, the
director shall remain in charge and control until in the
director's opinion it has been rendered safe or the emergency
occasioning the action has ceased and the director concludes that
the owner is competent to reassume control of the dam and its
operation. The assumption of control of the dam will not relieve
the owner of a dam of liability for any negligent act or acts of
the owner or the owner's agent or employee.
When the director declares that making repairs to the dam or
breaching the dam is necessary to safeguard life and property,
repairs or breaching shall be started immediately by the owner,
or by the director at the owner's expense, if the owner fails to
do so. The owner shall notify the director at once of any
emergency repairs or breaching the owner proposes to undertake
and of work he or she has under way to alleviate the emergency.
The proposed repairs, breaching and work shall be made to conform
with orders of the director. The director may obtain equipmentand personnel for emergency work from any person as is necessary
and expedient to accomplish the required work. Any person
undertaking work at the request of the division shall be paid by
the division and shall be is immune from civil liability under
the provisions of section fifteen, article seven, chapter fifty-
five of this code.
The costs reasonably incurred in any remedial action taken
by the director shall be paid out of funds appropriated to the
division. All costs incurred by the division shall be promptly
repaid by the owner upon request or, if not repaid, the division
may recover costs and damages from the owner by appropriate civil
action.
§22-14-11. 20-5D-11. Requirements for dams completed prior to
effective date of this section.
The director shall give notice to file an application for a
certificate of approval to every owner of a dam which was
completed prior to the effective date of this section:
Provided,
That no such notice need be given to a person who has applied for
and obtained a certificate of approval on or after the first day
of July, one thousand nine hundred seventy-three, in accordance
with the provisions of the prior enactment of section five of
this article. Such notice shall be given by certified or
registered mail, return receipt requested, to the owner at his or
her last address of record in the office of the county assessor
of the county in which the dam is located and such mailing shall
constitute service. A separate application for each dam a personowns shall be filed with the director in writing upon forms
supplied by him or her and shall include or be accompanied by
appropriate information concerning the dam as the director
requires.
The director shall make inspections of such dams or
reservoirs at state expense. The director shall require owners
of such dams to perform at their expense such work or tests as
may reasonably be required to disclose information sufficient to
enable the director to determine whether to issue a certificate
of approval or to issue an order directing further work at the
owner's expense necessary to safeguard life and property. For
this purpose, the director may require an owner to lower the
water level of, or to empty, water impounded by the dam adjudged
by the director to be unsafe. If, upon inspection or upon
completion to the satisfaction of the director of all work that
he or she ordered, the director finds that the dam is safe to
impound water, a certificate of approval shall be issued.
§22-14-12. 20-5D-12. Dam owner not relieved of legal
responsibilities by any provision of article.
Nothing in this article shall be construed to relieve
relieves the owner of a dam of the legal duties, obligations or
liabilities incident to the ownership or operation of a dam.
§22-14-13. 20-5D-13. Offenses and penalties.
(a) Any person who violates any of the provisions of this
article or any certificate of approval, order, rule or
requirement of the director or division is guilty of amisdemeanor, and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than one thousand dollars,
or imprisoned in the county jail not more than six months, or
both fined and imprisoned.
(b) Any person who willfully obstructs, hinders or prevents
the director or division or its agents or employees from
performing the duties imposed on them by the provisions of this
article or who willfully resists the exercise of the control and
supervision conferred by the provisions of this article upon the
director or division or its agents or employees or any owner or
any person acting as a director, officer, agent or employee of an
owner, or any contractor or agent or employee of a contractor who
engages in the placement, construction, enlargement, repair,
alteration, maintenance or removal of any dam who knowingly does
work or permits work to be executed on the dam without a
certificate of approval or in violation of or contrary to any
approval as provided for by the provisions of this article; and
any inspector, agent or employee of the division who has
knowledge of and who fails to notify the director of unapproved
modifications to a dam is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than five thousand dollars, or imprisoned in the
county jail not more than one year, or both fined and imprisoned.
§22-14-14. 20-5D-14. Enforcement orders; hearings.
(a) If the director, upon inspection, investigation or
through other means observes, discovers or learns of a violationof the provisions of this article, any certificate of approval,
notice, order or rules or regulations issued or promulgated
hereunder, he or she may:
(1) Issue an order stating with reasonable specificity the
nature of the violation and requiring compliance immediately or
within a specified time. An order under this section includes,
but is not limited to, any or all of the following: Orders
suspending, revoking or amending certificates of approval, orders
requiring a person to take remedial action or cease and desist
orders;
(2) Seek an injunction in accordance with subsection (c),
section fifteen of this article;
(3) Institute a civil action in accordance with subsection
(c), section fifteen of this article; or
(4) Request the attorney general, or the prosecuting
attorney of the county in which the alleged violation occurred,
to bring a criminal action in accordance with section twelve of
this article.
(b) Any person issued a cease and desist order may file a
notice of request for reconsideration with the director not more
than seven days from the issuance of the order and shall have a
hearing before the director contesting the terms and conditions
of the order within ten days of the filing of the notice of a
request for reconsideration. The filing of a notice of request
for reconsideration shall does not stay or suspend the execution
or enforcement of the cease and desist order.
§22-14-15. 20-5D-15. Civil penalties and injunctive relief.
(a) Any person who violates any provision of this article,
any certificate of approval or any rule, regulation, notice or
order issued pursuant to this article is subject to a civil
administrative penalty, to be levied by the director, of not more
than two hundred dollars for each day of the violation, not to
exceed a maximum of four hundred dollars. In assessing any
penalty, the director shall take into account the seriousness of
the violation and any good faith efforts to comply with
applicable requirements as well as any other appropriate factors
as may be established by rules and regulations promulgated by the
director. No assessment shall be levied pursuant to this
subsection until after the alleged violator has been notified by
certified mail or personal service. The notice shall include a
reference to the section of the statute, rule, regulation,
notice, order or statement of the certificate of approval's terms
that was allegedly violated, a concise statement of the facts
alleged to constitute the violation, a statement of the amount of
the administrative penalty to be imposed and a statement of the
alleged violator's right to an informal hearing. The alleged
violator has twenty calendar days from receipt of the notice
within which to deliver to the director a written request for an
informal hearing. If no hearing is requested, the notice becomes
a final order after the expiration date of the twenty-day period.
If a hearing is requested, the director shall inform the alleged
violator of the time and place of the hearing. Within thirtydays following the informal hearing, the director shall issue and
furnish to the violator a written decision, and the reasons
therefor, concerning the assessment of a civil administrative
penalty. The authority to levy an administrative penalty is in
addition to all other enforcement provisions of this article and
the payment of any assessment does not affect the availability of
any other enforcement provision in connection with the violation
for which the assessment is levied:
Provided,
That no
combination of assessments against a violator shall exceed four
hundred dollars per day of each violation:
Provided, however,
That any violation for which the violator has paid a civil
administrative penalty assessed under this subsection is not
subject to a separate civil penalty action under this article to
the extent of the amount of the civil administrative penalty
paid. Civil administrative penalties shall be levied in
accordance with the rules and regulations promulgated under the
authority of section four of this article. The net proceeds of
assessments collected pursuant to this subsection shall be
deposited in the dam safety fund established pursuant to section
seventeen of this article. Any person adversely affected by the
assessment of a civil administrative penalty has the right of
judicial review of the assessment in accordance with the
provisions of section four, article five, chapter twenty-nine-a
to appeal to the environmental quality board pursuant to the
provisions of article one, chapter twenty-two-b of this code.
(b) No assessment levied pursuant to subsection (a) of thissection is due and payable until the procedures for review of the
assessment as set out in said subsection have been completed.
(c) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any certificate of approval, rule, regulation,
notice or order issued pursuant to this article. In seeking an
injunction, it is not necessary for the director to post bond on
or to allege or prove at any stage of the proceeding that
irreparable damage will occur if the injunction is not issued or
that the remedy at law is inadequate. An application for
injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not
been exhausted or invoked against the person or persons against
whom the relief is sought.
(d) Upon request of the director, the attorney general or
the prosecuting attorney of the county in which the violation
occurs, shall assist the director in any civil action under this
section.
(e) In any action brought pursuant to the provisions of this
section, the state or any agency of the state which prevails, may
be awarded costs and reasonable attorney's fees.
§22-14-16. 20-5D-16. Schedule of application fees established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a
schedule of application fees for which the appropriate fee shallbe submitted by the applicant to the division together with the
application for a certificate of approval filed pursuant to this
article. The schedule of application fees shall be designed to
establish reasonable categories of certificate application fees
based upon the complexity of the permit application review
process required by the director pursuant to the provisions of
this article and the rules promulgated under this article. The
director shall not process any certificate application pursuant
to this article until the certificate application fee has been
received.
§22-14-17. 20-5D-17. Schedule of annual registration fees
established.
The director shall promulgate rules in accordance with the
provisions of section four of this article, to establish a
schedule of annual registration fees which shall be assessed
annually upon each person holding a certificate of approval
issued pursuant to this article. Each person holding a
certificate of approval shall pay the prescribed annual
registration fee to the division pursuant to the rules and
regulations promulgated under this article. The schedule of
annual registration fees shall be designed to establish
reasonable categories of annual registration fees, including, but
not limited to, the size of the dam and its classification. Any
certificate of approval issued pursuant to this article shall
become becomes void without notification to the person holding a
certificate of approval when the annual registration fee is morethan one hundred eighty days past due pursuant to the rules
promulgated under this section.
§22-14-18. 20-5D-18. Creation Continuation of dam safety fund;
components of fund.
(a) A The special fund designated "The Dam Safety Fund"
hereinafter referred to as "the fund" shall be established in the
state treasury on the thirtieth day of September, one thousand
nine hundred ninety-two continued.
(b) All certificate application fees and annual registration
fee assessments, any interest or surcharge assessed and collected
by the division, interest accruing on investments and deposits of
the fund, and any other moneys designated by the division shall
be paid into the fund. Accrual of funds shall not exceed three
hundred thousand dollars per year, exclusive of application fees.
The division shall expend the proceeds of the fund for the review
of applications, inspection of dams, payment of costs of remedial
emergency actions and enforcement of the provisions of this
article.
ARTICLE 5F. 15. SOLID WASTE MANAGEMENT ACT.
§22-15-1. 20-5F-1. Purpose and legislative findings.
(a) The purpose of this article is to transfer jurisdiction
over the management of solid waste under section nine, article
one, chapter sixteen of this code from the division of health to
the division of natural resources and to establish a
comprehensive program of controlling all phases of solid waste
disposal management.
(b) The Legislature finds that uncontrolled, inadequately
controlled and improper collection, transportation, processing
and disposal of solid waste: (1) Is a public nuisance and a
clear and present danger to people; (2) provides harborages and
breeding places for disease-carrying, injurious insects, rodents
and other pests harmful to the public health, safety and welfare;
(3) constitutes a danger to livestock and domestic animals; (4)
decreases the value of private and public property, causes
pollution, blight and deterioration of the natural beauty and
resources of the state and has adverse economic and social
effects on the state and its citizens; (5) results in the
squandering of valuable nonrenewable and nonreplenishable
resources contained in solid waste; (6) that materials recovery
and recycling reduces the need for landfills and extends their
life; and that (7) proper disposal, materials recovery or
recycling of solid waste is for the general welfare of the
citizens of this state.
(c) The Legislature further finds that disposal in West
Virginia of solid waste of unknown composition threatens the
environment and the public health, safety and welfare, and
therefore, it is in the interest of the public to identify the
type, amount and origin of solid waste accepted for disposal at
West Virginia solid waste facilities.
(d) The Legislature further finds that other states of these
United States of America have imposed stringent standards for the
proper collection and disposal of solid waste and that therelative lack of such standards and enforcement for such
activities in West Virginia has resulted in the importation and
disposal in the state of increasingly large amounts of
infectious, dangerous and undesirable solid wastes and hazardous
waste from other states by persons and firms who wish to avoid
the costs and requirements for proper, effective and safe
disposal of such wastes. in the states of origin.
(e) The Legislature further finds that Class A facilities
often have capacities far exceeding the needs of the state or the
areas of the state which they serve and that such landfills
create special environmental problems that require statewide
coordination of the management of such landfills.
§22-15-2. 20-5F-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(q) (1) "Applicant" means the person applying for a
commercial solid waste facility permit or similar renewal permit
and any person related to such person by virtue of common
ownership, common management or family relationships as the
director of the division of natural resources may specify,
including the following: Spouses, parents and children and
siblings.
(a) (2) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(b) (3) "Backhauling" means the practice of using the same
container to transport solid waste and to transport any substanceor material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(c) "Chief" means the chief of the section of waste
management of the division of natural resources.
(p) (4) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten thousand and
thirty thousand tons of solid waste per month. Class A facility
shall include includes two or more Class B solid waste landfills
owned or operated by the same person in the same county, if the
aggregate tons of solid waste handled per month by such landfills
exceeds nine thousand nine hundred ninety-nine tons of solid
waste per month.
(d) (5) "Commercial recycler" means any person, corporation
or business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(f) (6) "Commercial solid waste facility" means any solid
waste facility which accepts solid waste generated by sources
other than the owner or operator of the facility and shall does
not include an approved solid waste facility owned and operated
by a person for the sole purpose of disposing of solid wastes
created by that person or such person and other persons on a
cost-sharing or nonprofit basis and shall does not include the
legitimate reuse and recycling of materials for structural fill,road base, mine reclamation and similar applications.
(h) (7) "Director" means the director of the division of
natural resources environmental protection or such other person
the director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter.
(g) (8) "Division" means the division of natural resources
environmental protection.
(r) (9) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(s) (10) "Incineration technologies" means any technology
that uses controlled flame combustion to thermally break down
solid waste, including refuse-derived fuel, to an ash residue
that contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation or any other method by which solid waste is
incinerated.
(t) (11) "Incinerator" means an enclosed device using
controlled flame combustion to thermally break down solid waste,
including refuse-derived fuel, to an ash residue that contains
little or no combustible materials.
(u) (12) "Materials recovery facility" means any solid waste
facility at which solid wastes are manually or mechanically
shredded or separated so that materials are recovered from the
general waste stream for purposes of reuse and recycling.
(e) (13) "Municipal solid waste incineration" means the
burning of any solid waste collected by any municipal or
residential solid waste disposal company.
(i) (14) "Open dump" means any solid waste disposal which
does not have a permit under this article, or is in violation of
state law, or where solid waste is disposed in a manner that does
not protect the environment.
(j) (15) "Person" or "persons" or "applicant" mean any
industrial user, public or private corporation, institution,
association, firm or company organized or existing under the laws
of this or any other state or country; state of West Virginia;
governmental agency, including federal facilities; political
subdivision; county commission; municipal corporation; industry;
sanitary district; public service district; drainage district;
soil conservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or any
legal entity whatever.
(k) (16) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(l) (17) "Solid waste" means any garbage, paper, litter,
refuse, cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supplytreatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article five-a eleven of this chapter, or source,
special nuclear or byproduct material as defined by the Atomic
Energy Act of 1954, as amended, including any nuclear or
byproduct material considered by federal standards to be below
regulatory concern, or a hazardous waste either identified or
listed under article five-e eighteen of this chapter or refuse,
slurry, overburden or other wastes or material resulting from
coal-fired electric power or steam generation, the exploration,
development, production, storage and recovery of coal, oil and
gas, and other mineral resources placed or disposed of at a
facility which is regulated under articles two, three, four, six,
seven, eight, nine or ten of this chapter, twenty-two, chapter
twenty-two-a, or twenty-two-b articles two, seven, eight or nine,
chapter twenty-two-c of this code, so long as such placement or
disposal is in conformance with a permit issued pursuant to such
chapters. "Solid waste" shall does not include materials which
are recycled by being used or reused in an industrial process to
make a product, as an effective substitute for commercial
products, or are returned to the original process as a substitutefor raw material feedstock.
(m) (18) "Solid waste disposal" means the practice of
disposing of solid waste including placing, depositing, dumping
or throwing or causing to be placed, deposited, dumped or thrown
any solid waste.
(n) (19) "Solid waste disposal shed" means the geographical
area which the solid waste management board designates and files
in the state register pursuant to section eight nine, article
twenty-six three, chapter sixteen twenty-two-c of this code.
(o) (20) "Solid waste facility" means any system, facility,
land, contiguous land, improvements on the land, structures or
other appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities and other such facilities not
herein specified. Such facility shall be deemed to be situated,
for purposes of this article, in the county where the majority of
the spatial area of such facility is located.
§22-15-3. 20-5F-2a. Special provision for wood waste.
(a) The purpose of this section is to allow for the
combustion of wood waste without a solid waste facility permit
and to allow facilities to use wood waste as an alternative fuel.
(b) "Wood waste" means wood residues from logging
operations, sawmills, wood product manufacturing, furniture
making operations, recycling of wood products and other
industrial processes, but does not include wood waste which
contains hazardous constituents, including copper chromiumarsenate, which would cause such wood waste to be regulated
pursuant to article five-e, chapter twenty of the code eighteen
of this chapter.
(c) For purposes of section two of this article and section
two, article nine of this four, chapter twenty-two-c of this
code:
(1) Wood waste is not "solid waste" unless disposed of at a
solid waste facility or an open dump;
(2) Wood waste is a material which may be used as an
effective substitute for commercial products or raw material
feedstock.
(d) The use of incineration technologies in an energy
recovery incinerator for the purposes of combusting wood waste is
not prohibited and no solid waste facility permit is required.
The provisions of this section shall not be construed to do not
allow the combustion of wood waste without a source permit from
the air pollution control commission director if such permit is
required by article twenty, five of this chapter sixteen of this
code or the rules promulgated thereunder under the provisions of
said article five.
(e) The division of natural resources, in consultation with
the air pollution control commission, may promulgate legislative
rules, in accordance with the provisions of chapter twenty-nine-a
of this code, to effectuate the purposes of this section.
§22-15-4. 20-5F-3. Transfer of authority. Authority of
commissioner of bureau of public health.
The Legislature hereby transfers from the department of
health to the department of natural resources the duties,
responsibilities and authority of the state director of health
under section nine, article one, chapter sixteen of the code as
to the permitting and regulating of solid wastes and hereby
designates the chief to be the authorized representative denoted
in that section for this purpose: Provided, That the state
director of health shall retain authority under chapter sixteen
of the code to Although the director is primarily responsible
for the permitting and regulating of solid wastes, the
commissioner of the bureau of public health may enforce the
public health laws over solid waste disposal management which
presents an imminent and substantial endangerment to the public
health.
§22-15-5. 20-5F-4. Powers and duties; rules and rulemaking.
In addition to all other powers, duties, responsibilities
and authority granted and assigned to the director in this code
and elsewhere described by law, they are hereby empowered as
follows:
(a) The director shall adopt rules and regulations in
compliance with the West Virginia administrative procedures act
to carry out the provisions of this article including modifying
any existing rules and regulations and establishing permit
application fees up to an amount sufficient to defray the costs
of permit review. In promulgating rules and regulations the
director shall consider and establish requirements based on thequantity of solid waste to be handled, including different
requirements for solid waste facilities or approved solid waste
facilities which handle more than one hundred tons of solid waste
per day, the environmental impact of solid waste disposal, the
nature, origin or characteristics of the solid waste, potential
for contamination of public water supply, requirements for public
roadway standards and design for access to the facilities with
approval by the commissioner of the department division of
highways, public sentiment, the financial capability of the
applicant, soil and geological considerations and other natural
resource considerations. All existing rules and regulations of
the department of health relating to solid waste disposal shall
remain valid and be enforceable by the division of natural
resources on the tenth day of June, one thousand nine hundred
eighty-eight, until changed or modified by the director, in
compliance with chapter twenty-nine-a of this code.
(b) The chief director, after public notice and opportunity
for public hearing near the affected community, may issue a
permit with reasonable terms and conditions for installation,
establishment, modification, operation or closure of a solid
waste facility:
Provided,
That the director may deny the
issuance of a permit on the basis of information in the
application or from other sources including public comment, if
the solid waste facility is likely to cause adverse impacts on
the environment. The director may also prohibit the installation
or establishment of specific types and sizes of solid wastefacilities in a specified geographical area of the state based on
the above cited factor and may delete such geographical area from
consideration for that type and size solid waste facility.
(c) The director may refuse to grant any permit if he or she
has reasonable cause to believe, as indicated by documented
evidence, that the applicant, or any officer, director or
manager, thereof, or person owning a five percent or more
interest, beneficial or otherwise, or other person conducting or
managing the affairs of the applicant or of the proposed licensed
premises, in whole or in part:
(1) Has demonstrated, either by his or her police record or
by his or her record as a former permittee under articles eleven
through nineteen of this chapter or chapter twenty of this code,
a lack of respect for law and order, generally, or for the laws
and rules governing the disposal of solid wastes;
(2) Has misrepresented a material fact in applying to the
director for a permit;
(3) Has been convicted of a felony or other crime involving
moral turpitude;
(4) Has exhibited a pattern of violating environmental laws
in any state or the United States or combination thereof; or
(5) Has had any permit revoked under the environmental laws
of any state or the United States.
(d) The director chief or any authorized representative,
employee or agent of the division may, at reasonable times, enter
onto any approved solid waste facility, open dump or propertywhere solid waste is present for the purpose of making an
inspection or investigation of solid waste disposal.
(e) The director chief or any authorized representative,
employee or agent of the division may, at reasonable times, enter
any approved solid waste facility, open dump or property where
solid waste is present and take samples of the waste, soils, air
or water or may, upon issuance of an order, require any person to
take and analyze samples of such waste, soil, air or water.
(f) The director or chief may also perform or require a
person, by order, to perform any and all acts necessary to carry
out the provisions of this article or the rules promulgated
thereunder.
(g) The chief director or his or her authorized
representative, employee or agent shall make periodic inspections
at every approved solid waste facility to effectively implement
and enforce the requirements of this article or its rules and
regulations and may, in coordination with the commissioner of the
department division of highways, conduct at weigh stations or any
other adequate site or facility inspections of solid waste in
transit.
(h) The director or chief shall require and set the amount
of performance bonds for persons engaged in the practice of solid
waste disposal in this state, pursuant to section five-b twelve
of this article.
(i) The director shall require: (1) That persons disposing
of solid waste at commercial solid waste facilities within thestate file with the operator of the commercial solid waste
facility records concerning the type, amount and origin of solid
waste disposed of by them; and (2) that operators of commercial
solid waste facilities within the state maintain records and file
them with the director concerning the type, amount and origin of
solid waste accepted by them.
(j) The director may expend funds from the litter control
fund established pursuant to section twenty-six, article seven of
this chapter to assist county and regional solid waste
authorities in the formulation of their comprehensive litter and
solid waste control plans pursuant to section seven, article
eight of this chapter and in the construction and maintenance of
approved commercial solid waste facilities and collection
equipment, including the provision of grants as well as bonding
assistance for those authorities which would in the opinion of
the director be unable to construct or maintain an approved
commercial solid waste facility without grant funds.
(k) (j) Identification of interests. -- The director shall
require an applicant for a solid waste facility permit to provide
the following information:
(1) The names, addresses and telephone numbers of:
(A) The permit applicant;
(B) Any other person conducting or managing the affairs of
the applicant or of the proposed permitted premises, including
any contractor for gas or energy recovery from the proposed
operation, if the contractor is a person other than theapplicant; and
(C) Parties related to the applicant by blood, marriage or
business association, including the relationship to the
applicant.
(2) The names and addresses of the owners of record of
surface and subsurface areas within, and contiguous to, the
proposed permit area.
(3) The names and addresses of the holders of record to a
leasehold interest in surface or subsurface areas within, and
contiguous to, the proposed permit area.
(4) A statement of whether the applicant is an individual,
corporation, partnership, limited partnership, government agency,
proprietorship, municipality, syndicate, joint venture or other
entity. For applicants other than sole proprietorships, the
application shall contain the following information, if
applicable:
(A) Names and addresses of every officer, general and
limited partner, director and other persons performing a function
similar to a director of the applicant;
(B) For corporations, the principal shareholders;
(C) For corporations, the names, principal places of
businesses and internal revenue service tax identification
numbers of United States parent corporations of the applicant,
including ultimate parent corporations and United States
subsidiary corporations of the applicant and the applicant's
parent corporations; and
(D) Names and addresses of other persons or entities having
or exercising control over any aspect of the proposed facility
that is regulated by the division, including, but not limited to,
associates and agents.
(5) If the applicant or an officer, principal shareholder,
general or limited partner or other related party to the
applicant, has a beneficial interest in, or otherwise manages or
controls another person or municipality engaged in the business
of solid waste collection, transportation, storage, processing,
treatment or disposal, the application shall contain the
following information:
(A) The name, address and tax identification number or
employer identification number of the corporation or other person
or municipality; and
(B) The nature of the relationship or participation with the
corporation or other person or municipality.
(6) An application shall list permits or licenses, issued by
the division or other environmental regulatory agency to each
person or municipality identified in paragraph (1) and to other
related parties to the applicant, that are currently in effect or
have been in effect in at least part of the previous ten years.
This list shall include the type of permit or license, number,
location, issuance date and when applicable, the expiration date.
(7) An application shall identify the solid waste facilities
in the state which the applicant or a person or municipality
identified in paragraph (1) of this subdivision and other relatedparties to the applicant currently owns or operates, or owned or
operated in the previous ten years. For each facility, the
applicant shall identify the location, type of operation and
state or federal permits under which they operate or have
operated. Facilities which are no longer permitted or which were
never under permit shall also be listed.
(l) (k) Compliance information. -- An application shall
contain the following information for the ten-year period prior
to the date on which the application is filed:
(1) A description of notices of violation, including the
date, location, nature and disposition of the violation, that
were sent by the division to the applicant or a related party,
concerning any environmental law, regulation rule, or order of
the division, or a condition of a permit or license. In lieu of
a description the applicant may provide a copy of notices of
violation.
(2) A description of administrative orders, civil penalty
assessments and bond forfeiture actions by the division, and
civil penalty actions adjudicated by the state, against the
applicant or a related party concerning any environmental law,
regulation rule, or order of the division, or a condition of a
permit or license. The description shall include the date,
location, nature and disposition of the actions. In lieu of a
description, the applicant may provide a copy of the orders,
assessments and actions.
(3) A description of a summary, misdemeanor or felonyconviction, a plea of guilty or plea of no contest that has been
obtained in this state against the applicant or a related party
under any environmental law or regulation rule concerning the
storage, collection, treatment, transportation, processing or
disposal of solid waste. The description shall include the date,
location, nature and disposition of the actions.
(4) A description of a court proceeding concerning any
environmental law or regulation rule that was not described under
paragraph (3), subdivision (l) of this section in which the
applicant or a related party has been party. The description
shall include the date, location, nature and disposition of the
proceedings.
(5) A description of a consent order, consent adjudication,
consent decree or settlement agreement involving the applicant or
a related party concerning any environmental law or regulation
rule in which the division, other governmental agencies, the
United States Environmental Protection Agency, or a county health
department was a party. The description shall include the date,
location, nature and disposition of the action. In lieu of a
description, the applicant may provide a copy of the order,
adjudication, a decree or agreement.
(6) For facilities and activities identified under paragraph
(1) of this subdivision, a statement of whether the facility or
activity was the subject of an administrative order, consent
agreement, consent adjudication, consent order, settlement
agreement, court order, civil penalty, bond forfeitureproceeding, criminal conviction, guilty or no contest plea to a
criminal charge or permit or license suspension or revocation
under the act or the environmental protection acts. If the
facilities or activities were subject to these actions, the
applicant shall state the date, location, nature and disposition
of the violation. In lieu of a description, the applicant may
provide a copy of the appropriate document. The application
shall also state whether the division has denied a permit
application filed by the applicant or a related party, based on
compliance status.
(7) When the applicant is a corporation, a list of the
principal shareholders that have also been principal shareholders
of other corporations which have committed violations of any
environmental law or regulation rule. The list shall include the
date, location, nature and disposition of the violation, and
shall explain the relationship between the principal shareholder
and both the applicant and the other corporation.
(8) A description of a misdemeanor or felony conviction, a
plea of guilty and a plea of no contest, by the applicant or a
related party for violations outside of this state of any
environmental protection laws or regulations. The description
shall include the date of the convictions or pleas, and the date,
location and nature of the offense.
(9) A description of final administrative orders, court
orders, court decrees, consent decrees or adjudications, consent
orders, final civil penalty adjudications, final bond forfeitureactions or settlement agreements involving the applicant or a
related party for violations outside of this state of any
environmental protection laws or regulations. The description
shall include the date of the action and the location and nature
of the underlying violation. In lieu of a description, the
applicant may provide a copy of the appropriate document.
(m) (l) All of the information provided by the applicant
pursuant to this section shall is not be confidential and shall
be is disclosable pursuant to the provisions of chapter
twenty-nine-b of this code.
§22-15-6. 20-5F-4a. Fee for filing a certificate of site
approval.
The fee for the certificate of site approval is twenty-five
dollars payable upon the filing of the application therefor with
the county, county solid waste authority or regional solid waste
authority, as the case may be.
§22-15-7. 20-5F-4b. Special provision for residential solid
waste disposal.
All commercial and public solid waste facilities shall
establish and publish a yearly schedule providing for one day per
month on which a person not in the business of hauling or
disposing of solid waste, who is a resident of the wasteshed in
which the facility is located, may dispose of an amount of
residential solid waste up to one pick-up truckload or its
equivalent, free of all charges and fees.
§22-15-8. 20-5F-4c. Limit on the size of solid waste facilities.
(a) On and after the first day of October, one thousand nine
hundred ninety-one, it shall be is unlawful to operate any
commercial solid waste facility that handles between ten thousand
and thirty thousand tons of solid waste per month, except as
provided in section four-d nine of this article and section
twelve-c, twelve-d or twelve-e sections twenty-six, twenty-seven
and twenty-eight, article nine of this four, chapter twenty-two-c
of this code.
(b) Except as provided in section four-d nine of this
article, the maximum quantity of solid waste which may lawfully
be handled at any commercial solid waste facility shall be is
thirty thousand tons per month.
§22-15-9. 20-5F-4d. Exemption for solid waste facility handling
in excess of thirty thousand tons per month.
(a) Notwithstanding any provision in this article, article
nine of this four, chapter twenty-two-c, article two, chapter
twenty-four of this code, any other section of this code, or any
prior enactment of the code to the contrary, and notwithstanding
any defects in or challenges to any actions which were or are
required to be performed in satisfaction of the following
criteria, any person who on the first day of October, one
thousand nine hundred ninety-one, has:
(1) Obtained site approval for a commercial solid waste
facility from a county or regional solid waste authority or
county commission pursuant to a prior enactment of this code, or
has otherwise satisfied the requirements of subsection (a),section twelve-b twenty-five, article nine of this four, chapter
twenty-two-c of this code;
(2) Entered into a contract with a county commission
regarding the construction and operation of a solid waste
facility, which contract contains rates for the disposal of solid
waste originating within the county;
(3) Obtained, pursuant to section one-f, article two,
chapter twenty-four of this code, following a public hearing, an
order from the public service commission approving the rates
established in the contract with the county commission; and
(4) An application for a permit for a commercial solid waste
facility pending with the division of natural resources
environmental protection, or is operating under a permit or
compliance order, shall be is permitted to handle in excess of
the limitation established in section four-c eight of this
article up to fifty thousand tons of solid waste per month at a
commercial solid waste facility so long as the person complies
with the provisions of this section.
(b) Any person desiring to operate a commercial solid waste
facility which handles an amount of solid waste per month in
excess of the limitation established in section four-c eight of
this article, but not exceeding the tonnage limitation described
in subsection (a) of this section may file a notice with the
county commission of the county in which the facility is or is to
be located requesting a countywide referendum. Upon receipt of
such notice, the county commission shall order a referendum beplaced upon the ballot, not less than fifty-six days before the
next primary or general election.
(1) Such referendum will be to determine whether it is the
will of the voters of the county that a commercial solid waste
facility be permitted to handle more than the limitation
established in section four-c eight of this article not to exceed
fifty thousand tons per month. Any such election shall be held
at the voting precincts established for holding primary or
general elections. All of the provisions of the general election
laws, when not in conflict with the provisions of this article,
shall apply to voting and elections hereunder, insofar as
practicable.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall a commercial solid waste facility, permitted to
handle up to, but no more than fifty thousand tons of solid waste
per month be located within _________________ county, West
Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
If a majority of the legal votes cast upon the question be
is against the facility handling an amount of solid waste of up
to fifty thousand tons per month then the division of natural
resources shall not proceed any further with the application. Ifa majority of the legal votes cast upon the question be is in
favor of permitting the facility within the county, then the
application process as set forth in this article may proceed:
Provided,
That such vote shall is not be binding on or require
the division of natural resources to issue a permit.
(c) If a person submits to a referendum in accordance with
this section, all approvals, certificates, and permits granted
and all actions undertaken by a regional or county solid waste
authority or county commission with regard to the person's
commercial solid waste facility within the county under this
article or article four, chapter twenty-two-c, or previously
enacted sections of articles five-f and nine, of this chapter
twenty of this code are shall be deemed valid, complete and in
full compliance with all the requirements of law and any defects
contained in such approvals, certificates, permits or actions
shall be deemed are cured and such defects may not be invoked to
invalidate any such approval, certificate, permit or action.
(d) Notwithstanding any provision of this code to the
contrary, any person described in subsection (a) of this section
who complies with the referendum requirement of this section and
complies with the permitting requirements of the division of
natural resources provided in section five, article five-f ten of
this chapter article, shall not be required to comply with the
requirements of section twelve-b, twelve-c, twelve-d or twelve-e
sections twenty-five, twenty-six, twenty-seven and twenty-eight,
article nine of this four, chapter twenty-two-c of this code:
Provided,
That such person shall be is entitled to receive a
certificate of need pursuant to the provisions of subsection (a),
section one-c, article two, chapter twenty-four of this code to
handle the tonnage level authorized pursuant to subsection (a) of
this section.
(e) The purpose of this section is to allow any person who
satisfies the four criteria contained in subsection (a),
notwithstanding any defects in or challenges to any actions which
were or are required to be performed in satisfaction of such
criteria, to submit the question of siting a facility that
accepts up to fifty thousand tons within the county to a
referendum in order to obtain a decision at the county or
regional level regarding the siting of the facility and that
submission of this question at the county level shall be is the
only approval, permit or action required at the county or
regional level to establish and site the proposed facility.
§22-15-10. 20-5F-5. Prohibitions; permits required; priority of
disposal.
(a) Open dumps are prohibited and it shall be is unlawful
for any person to create, contribute to or operate an open dump
or for any landowner to allow an open dump to exist on his the
landowner's property unless that open dump is under a compliance
schedule approved by the chief director. Such compliance
schedule shall contain an enforceable sequence of actions leading
to compliance and shall not exceed two years. Open dumps
operated prior to the first day of April, one thousand ninehundred eighty-eight, by a landowner or tenant for the disposal
of solid waste generated by the landowner or tenant at his or her
residence or farm shall not be deemed to constitute are not a
violation of this section if such open dump did not constitute a
violation of law on the first day of January, one thousand nine
hundred eighty-eight, and unauthorized dumps which were created
by unknown persons shall do not constitute a violation of this
section:
Provided,
That no person shall contribute additional
solid waste to any such dump after the first day of April, one
thousand nine hundred eighty-eight, except that the owners of the
land on which unauthorized dumps have been or are being made
shall are not be liable for such unauthorized dumping unless such
landowners refuse to cooperate with the division of natural
resources in stopping such unauthorized dumping.
(b) It shall be is unlawful for any person, unless he the
person holds a valid permit from the division to install,
establish, construct, modify, operate or abandon any solid waste
facility. All approved solid waste facilities shall be
installed, established, constructed, modified, operated or
abandoned in accordance with this article, plans, specifications,
orders, instructions and rules in effect.
(c) Any permit issued under this article shall be issued in
compliance with the requirements of this article, its rules and
article five-a eleven of this chapter and the rules promulgated
thereunder, so that only a single permit shall be is required of
a solid waste facility under these two articles. Each permitissued under this article shall have a fixed term not to exceed
five years:
Provided,
That the chief director may
administratively extend a permit beyond its five-year term if the
approved solid waste facility is in compliance with this article,
its rules and article five-a eleven of this chapter and the rules
promulgated thereunder:
Provided, however,
That such
administrative extension may not be for more than one year. Upon
expiration of a permit, renewal permits may be issued in
compliance with rules and regulations promulgated by the director
of the division of natural resources.
(d) All existing permits of the division of health for solid
waste facilities under section nine, article one, chapter sixteen
of this code shall continue in full force and effect until a
permit is issued for that approved solid waste facility under
this article: Provided, That all such existing permits of the
division of health shall expire within five years of the tenth
day of June, one thousand nine hundred eighty-three. Within
four years of the tenth day of June, one thousand nine hundred
eighty-three, all persons holding such division of health permits
shall apply to the chief for a permit under this article:
Provided, however, That the chief may require persons holding
such existing health division permits to reapply under this
section prior to four years from the tenth day of June, one
thousand nine hundred eighty-three, if persistent violations of
this article, any permit term or condition, orders or rules
promulgated under this article, exist at that facility. Notwithstanding any other provision contained in this subsection,
the division of natural resources may enter an extension order
for a period of two years while an application for a permit
pursuant to this article is pending. For existing solid waste
facilities which formerly held division of health permits which
expired by law and for which complete permit applications for new
permits pursuant to this article were submitted as required by
law, the division may enter an administrative order to govern
solid waste activities at such facilities, which may include a
compliance schedule, consistent with the requirements of the
division's solid waste management rules, to be effective until
final action is taken to issue or deny a permit for such facility
pursuant to this article, or until further order of the division.
(e) No person may dispose in the state of any solid waste,
whether such waste originates in state or out of state, in a
manner which endangers the environment or the public health,
safety or welfare as determined by the director: of the division
of natural resources:
Provided,
That the carcasses of dead
animals may be disposed of in any solid waste facility or in any
other manner as provided for in this code. Upon request by the
director, of the division of natural resources, the director of
the division of the commissioner of the bureau of public health
shall provide technical advice concerning the disposal of solid
waste or carcasses of dead animals within the state.
(f) To the extent permissible by law, a commercial solid
waste facility shall first ensure that the disposal needs of thecounty, or if applicable the region, in which it is located are
met. If the county solid waste authority, or regional solid
waste authority if applicable, in which the facility is located
determines that the present or future disposal needs of the
county, or if applicable the region, are not being, or will not
be, met by the commercial solid waste facility, such authority
may apply to the director of the division of natural resources to
modify the applicable permit in order to reduce the total monthly
tonnage of out of county waste, or if applicable, out of region
waste, the facility is permitted to accept by an amount that
shall not exceed the total monthly tonnage generated by the
county, or if applicable the region, in which the facility is
located.
(g) In addition to all the requirements of this article and
the rules promulgated hereunder, a permit to construct a new
commercial solid waste facility or to expand the spatial area of
an existing facility, not otherwise allowed by an existing
permit, may not be issued unless the public service commission
has granted a certificate of need, as provided in section one-c,
article two, chapter twenty-four of this code. If the director
approves a permit or permit modification, the certificate of need
shall become a part of the permit and all conditions contained in
the certificate of need shall be conditions of the permit and may
be enforced by the division of natural resources in accordance
with the provisions of this article.
(h) The director of the division of natural resources shallpromulgate legislative rules pursuant to chapter twenty-nine-a of
this code which reflect the purposes as set forth in this
article.
§22-15-11. 20-5F-5a. Solid waste assessment fee; penalties.
(a) Imposition. -- A solid waste assessment fee is hereby
levied and imposed upon the disposal of solid waste at any solid
waste disposal facility in this state to be collected and paid as
follows: (1) One dollar in the amount of two dollars and
twenty-five cents per ton or part thereof of solid waste. ; and
(2) one additional dollar per ton or part thereof of solid waste
for solid waste generated from sources outside the solid waste
disposal shed in which the solid waste disposal facility is
located. The fee imposed by this section shall be is in addition
to all other fees and taxes levied by law and shall be added to
and constitute part of any other fee charged by the operator or
owner of the solid waste disposal facility.
(b) Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of themonth next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be is required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be is personally liable for such amount
as he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain remains in effect until
a notice of cancellation is served on the operator or owner by
the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator
shall be is primarily liable for collection and remittance of thefee imposed by this section and the owner shall be is secondarily
liable for remittance of the fee imposed by this section.
However, if the operator fails, in whole or in part, to discharge
his or her obligations under this section, the owner and the
operator of the solid waste facility shall be are jointly and
severally responsible and liable for compliance with the
provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof shall be are liable, jointly and severally, for
any default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules and regulations of the tax commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section and section twenty-two, article five, chapter seven of
this code shall be is considered a necessary and reasonable cost
for motor carriers of solid waste subject to the jurisdiction of
the public service commission under chapter twenty-four-a of this
code. Notwithstanding any provision of law to the contrary, uponthe filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definition of solid waste disposal facility. -- For
purposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump in
this state, and includes a transfer station when the solid waste
collected at the transfer station is not finally disposed of at
a solid waste disposal facility within this state that collects
the fee imposed by this section. Nothing herein shall be
construed to authorize authorizes in any way the creation or
operation of or contribution to an open dump.
(e) Exemptions. -- The following transactions shall be are
exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual notin the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
natural resources is exempt from the solid waste assessment fee;
and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of natural resources of solid waste
authority, upon request.
(f) Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code shall
apply to the fee imposed by this section with like effect as if
said act were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(h) Dedication of proceeds. -- The net proceeds of the feecollected by the tax commissioner pursuant to this section shall
be deposited at least monthly in an account designated by the
director. of the division of natural resources. The director
shall allocate twenty-five cents for each ton of solid waste
disposed of in this state upon which the fee imposed by this
section is collected and shall deposit the total amount so
allocated into the "Solid Waste Reclamation and Environmental
Response Fund" to be expended for the purposes hereinafter
specified. The first one million dollars of the net proceeds of
the fee imposed by this section collected in each fiscal year
shall be deposited in the "Solid Waste Enforcement Fund" and
expended for the purposes hereinafter specified. The next two
hundred fifty thousand dollars of the net proceeds of the fee
imposed by this section collected in each fiscal year shall be
deposited in the "Resource Recovery -- Solid Waste Disposal
Authority Reserve Fund" which shall be renamed and hereinafter
referred to as the "Solid Waste Management Board Reserve Fund",
and expended for the purposes hereinafter specified:
Provided,
That in any year in which the water development authority
determines that the solid waste management board reserve fund is
adequate to defer any contingent liability of the fund, the water
development authority shall so certify to the director of the
division of natural resources and the director shall then cause
no less than fifty thousand dollars nor more than two hundred
fifty thousand dollars to be deposited to the fund:
Provided,
however,
That in any year in which the water developmentauthority determines that the solid waste management board
reserve fund is inadequate to defer any contingent liability of
the fund, the water development authority shall so certify to the
director of the division of natural resources and the director
shall then cause not less than two hundred fifty thousand dollars
nor more than five hundred thousand dollars to be deposited in
the fund:
Provided further,
That if a facility owned or operated
by the state of West Virginia is denied site approval by a county
or regional solid waste authority, and if such denial
contributes, in whole or in part, to a default, or drawing upon
a reserve fund, on any indebtedness issued or approved by the
solid waste management board, then in that event the solid waste
management board or its fiscal agent may withhold all or any part
of any funds which would otherwise be directed to such county or
regional authority and shall deposit such withheld funds in the
appropriate reserve fund. The director of the division of
natural resources shall allocate the remainder, if any, of said
net proceeds among the following three special revenue accounts
for the purpose of maintaining a reasonable balance in each
special revenue account, which are hereby continued in the state
treasury:
(1) The "Solid Waste Enforcement Fund" which shall be
expended by the director of the division of natural resources for
administration, inspection, enforcement and permitting activities
established pursuant to this article;
(2) The "Solid Waste Management Board Reserve Fund" whichshall be exclusively dedicated to providing a reserve fund for
the issuance and security of solid waste disposal revenue bonds
issued by the solid waste management board pursuant to article
twenty-six three, chapter sixteen twenty-two-c of this code;
(3) The "Solid Waste Reclamation and Environmental Response
Fund" which may be expended by the director of the division of
natural resources for the purposes of reclamation, cleanup and
remedial actions intended to minimize or mitigate damage to the
environment, natural resources, public water supplies, water
resources and the public health, safety and welfare which may
result from open dumps or solid waste not disposed of in a proper
or lawful manner.
(i) Findings. -- In addition to the purposes and legislative
findings set forth in section one of this article, the
Legislature finds as follows:
(1) In-state and out-of-state locations producing solid
waste should bear the responsibility of disposing of said solid
waste or compensate other localities for costs associated with
accepting such solid waste;
(2) The costs of maintaining and policing the streets and
highways of the state and its communities are increased by long
distance transportation of large volumes of solid waste; and
(3) Local approved solid waste facilities are being
prematurely depleted by solid waste originating from other
locations.
(j) Severability. -- If any provision of this section or theapplication thereof shall for any reason be adjudged by any court
of competent jurisdiction to be invalid, such judgment shall not
affect, impair or invalidate the remainder of this section, but
shall be confined in its operation to the provision thereof
directly involved in the controversy in which such judgment shall
have been rendered, and the applicability of such provision to
other persons or circumstances shall not be affected thereby.
(k) Effective date. -- This section is effective on the
first day of July, one thousand nine hundred eighty-eight.
§22-15-12. 20-5F-5b. Performance bonds; amount and method of
bonding; bonding requirements; period of bond liability.
(a) After a solid waste permit application has been approved
pursuant to this article, or once operations have commenced
pursuant to a compliance order, but before a permit has been
issued, each operator of a commercial solid waste facility shall
furnish bond, on a form to be prescribed and furnished by the
director, payable to the state of West Virginia and conditioned
upon the operator faithfully performing all of the requirements
of this article, regulations rules promulgated hereunder and the
permit:
Provided,
That the director shall have has the
discretion to waive the requirement of a bond from the operator
of a commercial solid waste facility, other than a Class A
facility, which is operating under a compliance order. The
amount of the bond required shall be is one thousand dollars per
acre and may include an additional amount determined by the
director based upon the total estimated cost to the state ofcompleting final closure according to the permit granted to such
facility and such measures as are necessary to prevent adverse
effects upon the environment; such measures shall include, but
are not be limited to, satisfactory monitoring, post-closure care
and remedial measures:
Provided, however,
That the amount of the
bond shall not exceed eight thousand dollars per acre. All
permits shall be bonded for at least ten thousand dollars. The
bond shall cover either (1) the entire area to be used for the
disposal of solid waste, or (2) that increment of land within the
permit area upon which the operator will initiate and conduct
commercial solid waste facility operations within the initial
term of the permit pursuant to legislative rules promulgated by
the director pursuant to chapter twenty-nine-a of this code. If
the operator chooses to use incremental bonding, as succeeding
increments of commercial solid waste facility operations are to
be initiated and conducted within the permit area, the operator
shall file with the director an additional bond or bonds to cover
such increments in accordance with this section:
Provided
further,
That once the operator has chosen to proceed with
bonding either the entire area to be used for the disposal of
solid waste or with incremental bonding, the operator shall
continue bonding in that manner for the term of the permit.
(b) The period of liability for performance bond coverage
shall commence with issuance of a permit and continue for the
full term of the permit and for a period of up to thirty full
years after final closure of the permit site:
Provided,
That anyfurther time period necessary to achieve compliance with the
requirements in the closure plan of the permit shall be is
considered an additional liability period.
(c) The form of the performance bond shall be approved by
the director and may include, at the option of the director,
surety bonding, collateral bonding (including cash and
securities), establishment of an escrow account, letters of
credit, performance bonding fund participation (as established by
the director), self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to deposit
cash, or collateral securities or certificates as follows: Bonds
of the United States or its possessions, of the federal land
bank, or of the homeowners' 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 division. 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, promptly place the
same with the treasurer of the state of West Virginia whose duty
it shall be is to receive and hold the same in the name of the
state in trust for the purpose for which the deposit is made when
the permit is issued. The operator making the deposit shall be
is entitled from time to time to receive from the statetreasurer, upon the written approval of the director, the whole
or any portion of any cash, securities or certificates so
deposited, upon depositing with him the treasurer 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.
(d) Within twelve months prior to the expiration of the
thirty-year period following final closure, the division will
conduct a final inspection of the facility. The purpose of the
inspection shall be is to determine compliance with this article,
the division's regulations rules the terms and conditions of the
permit, orders of the division and the terms and conditions of
the bond. Based upon this determination, the division will
either forfeit the bond prior to the expiration of the thirty-
year period following final closure, or release the bond at the
expiration of the thirty-year period following final closure.
Bond release requirements shall be provided in regulations rules
promulgated by the director.
(e) If the operator of a commercial solid waste facility
abandons the operation of a solid waste disposal facility for
which a permit is required by this article or if the permittee
fails or refuses to comply with the requirements of this article
in any respect for which liability has been charged on the bond,
the director shall declare the bond forfeited and shall certify
the same to the attorney general who shall proceed to enforce and
collect the amount of liability forfeited thereon, and where theoperation has deposited cash or securities as collateral in lieu
of corporate surety, the secretary shall declare said collateral
forfeited and shall direct the state treasurer to pay said funds
into a waste management fund to be used by the director to effect
proper closure and to defray the cost of administering this
article. Should any corporate surety fail to promptly pay, in
full, forfeited bond, it shall be is disqualified from writing
any further surety bonds under this article.
§22-15-13. 20-5F-5c. Pre-siting notice.
Any person investigating an area for the purpose of siting
a commercial solid waste facility where no current solid waste
permit exists, in order to determine a feasible, approximate
location, shall prior to filing an application for a solid waste
permit publish a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is to be
located. Such notice shall inform the public of the location,
nature and other details of the proposed activity as prescribed
in rules and regulations to be promulgated as soon as practicable
by the director. Within five days of such publication such
person shall file with the director a pre-siting notice, which
shall be made in writing on forms prescribed by the director and
shall be signed and verified by the applicant. Such notice shall
contain a certification of publication from a qualified
newspaper, description of the area, the period of investigative
review, a United States geological survey topographic map and a
map showing the location of property boundaries of the areaproposed for siting and other such information as required by
rules and regulations promulgated pursuant to this section. The
director shall hold a public hearing on the pre-siting notice in
the area affected. The director shall define pre-siting
activities by promulgating legislative rules pursuant to chapter
twenty-nine-a of this code. On or after the first day of
January, one thousand nine hundred eighty-nine, the pre-siting
notice, as prescribed by the director, shall also be filed with
the county or regional solid waste authority, established
pursuant to article nine four, chapter twenty twenty-two-c of
this code, in which the proposed site is located within five days
of the publication of the notice.
§22-15-14. 20-5F-5d. Limitations on permits; encouragement of
recycling.
(a) The director shall by rules and regulations promulgated
in accordance with chapter twenty-nine-a of this code establish
standards and criteria applicable to commercial solid waste
facilities for the visual screening of such facilities from any
interstate highway, turnpike, federal and state primary highway
or scenic parkway. The director and the chief shall not issue a
permit under this article to install, establish, construct or
operate any commercial solid waste facility without proper visual
screening from any interstate highway, turnpike, federal or state
primary highway or scenic parkway:
Provided,
That the director
and the chief may renew such permits, and may also issue permits
to renew those certificates of approval previously issued by thedirector of the department of health, for those solid waste
facilities holding such a valid permit or certificate pursuant to
this article on the first day of July, one thousand nine hundred
eighty-eight:
Provided, however,
That no such permits or
certificates of approval shall be renewed for a period extending
beyond the first day of July, one thousand nine hundred ninety-
three.
(b) The director and the chief shall give substantial
deference and consideration to the county or regional litter and
solid waste control plan approved pursuant to article nine of
this four, chapter twenty-two-c of this code and to the
comprehensive county plan adopted by the county commission
pursuant to article seventeen, chapter eight of this code in the
issuance or the renewal of any permit under this article:
Provided,
That the authority and discretion of the director and
the chief under this article shall is not be diminished or
modified by this subsection.
(c) On or before the first day of July, one thousand nine
hundred ninety-one, the The director is authorized and directed
to promulgate legislative rules and regulations pursuant to
chapter twenty-nine-a of this code encouraging each commercial
solid waste facility and each person, partnership, corporation
and governmental agency engaged in the commercial collection,
transportation, processing and disposal of solid waste to recycle
paper, glass, plastic and aluminum materials and such other solid
wastes as the director may specify.
(d) On or before the first day of July, one thousand nine
hundred ninety-one, and concurrently with the promulgation of
regulations pursuant to subsection (c) hereof, the The director
is authorized and directed to promulgate legislative rules and
regulations pursuant to chapter twenty-nine-a of this code
encouraging each person, partnership, corporation and
governmental agency subscribing to solid waste collection
services to segregate paper, glass, plastic and aluminum
material, and such other solid waste material as the director
may specify, prior to collection of such wastes at their source
for purposes of recycling.
(e) Under no condition shall transloading solid waste
materials be permitted within a municipality except those
facilities owned or operated on behalf of the municipality in
which the facility is located.
§22-15-15. 20-5F-6. Orders, inspections and enforcement; civil
and criminal penalties.
(a) If the director, or chief, upon inspection or
investigation by duly authorized representatives or through other
means observes, discovers or learns of a violation of this
article, its rules, article five-a eleven of this chapter or its
rules, or any permit or order issued under this article, he or
she may:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under thissection includes, but is not limited to, any or all of the
following: Orders suspending, revoking or modifying permits,
orders requiring a person to take remedial action or cease and
desist orders;
(2) Seek an injunction in accordance with subsection (e) of
this section;
(3) Institute a civil action in accordance with subsection
(e) of this section; or
(4) Request the attorney general, or the prosecuting
attorney of the county wherein the alleged violation occurred, to
bring an appropriate action, either civil or criminal in
accordance with subsection (b) of this section.
(b) Any person who willfully or negligently violates the
provisions of this article, any permit or any rule regulation or
order issued pursuant to this article shall be is subject to the
same criminal penalties as set forth in section nineteen twenty-
four, article five-a eleven of this chapter.
(c) Any person who violates any provision of this article,
any permit or any rule regulation or order issued pursuant to
this article shall be is subject to civil administrative penalty,
to be levied by the director, of not more than five thousand
dollars for each day of such violation, not to exceed a maximum
of twenty thousand dollars.
(1) In assessing any such penalty, the director shall take
into account the seriousness of the violation and any good faith
efforts to comply with the applicable requirements as well as anyother appropriate factors as may be established by the director
by rules and regulations promulgated pursuant to this article and
article three, chapter twenty-nine-a of this code. No assessment
shall be levied pursuant to this subsection until after the
alleged violator has been notified by certified mail or personal
service. The notice shall include a reference to the section of
the statute, rule, regulation, order or statement of permit
conditions that was allegedly violated, a concise statement of
the facts alleged to constitute the violation, a statement of the
amount of the administrative penalty to be imposed and a
statement of the alleged violator's right to an informal hearing.
The alleged violator shall have has twenty calendar days from
receipt of the notice within which to deliver to the director a
written request for an informal hearing. If no hearing is
requested, the notice shall become becomes a final order after
the expiration of the twenty-day period. If a hearing is
requested, the director shall inform the alleged violator of the
time and place of the hearing. The director may appoint an
assessment officer to conduct the informal hearing and then make
a written recommendation to the director concerning the
assessment of a civil administrative penalty. Within thirty days
following the informal hearing, the director shall issue and
furnish to the alleged violator a written decision, and the
reasons therefor, concerning the assessment of a civil
administrative penalty. Within thirty days after notification of
the director's decision, the alleged violator may request aformal hearing before the water resources environmental quality
board in accordance with the provisions of section seven sixteen
of this article. The authority to levy a civil administrative
penalty shall be is in addition to all other enforcement
provisions of this article and the payment of any assessment
shall does not be deemed to affect the availability of any other
enforcement provision in connection with the violation for which
the assessment is levied:
Provided,
That no combination of
assessments against a violator under this section shall exceed
twenty-five thousand dollars for each day of such violation:
Provided, however,
That any violation for which the violator has
paid a civil administrative penalty assessed under this section
shall not be the subject of a separate civil penalty action under
this article to the extent of the amount of the civil
administrative penalty paid. All administrative penalties shall
be levied in accordance with rules and regulations issued
pursuant to subsection (a), section four five of this article.
The net proceeds of assessments collected pursuant to this
subsection shall be deposited in the solid waste reclamation and
environmental response fund established in subdivision (3),
subsection (h), section five-a eleven of this article.
(2) No assessment levied pursuant to subdivision (1),
subsection (c) above shall become becomes due and payable until
the procedures for review of such assessment as set out in said
subsection have been completed.
(d) Any person who violates any provision of this article,Any permit or any rule regulation or order issued pursuant to
this article shall be is subject to a civil penalty not to exceed
twenty-five thousand dollars for each day of such violation,
which penalty shall be recovered in a civil action either in the
circuit court wherein the violation occurs or in the circuit
court of Kanawha county.
(e) The director or chief may seek an injunction, or may
institute a civil action against any person in violation of any
provisions of this article or any permit, rule regulation or
order issued pursuant to this article. In seeking an injunction,
it is not necessary for the director or chief to post bond nor to
allege or prove at any state stage of the proceeding that
irreparable damage will occur if the injunction is not issued or
that the remedy at law is inadequate. An application for
injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not
been exhausted or invoked against the person or persons against
whom such relief is sought.
(f) Upon request of the director, or chief, the attorney
general or the prosecuting attorney of the county in which the
violation occurs shall assist the director in any civil action
under this section.
(g) In any civil action brought pursuant to the provisions
of this section, the state, or any agency of the state which
prevails, may be awarded costs and reasonable attorney's fees.
(h) In addition to all other grounds for revocation, the
director may revoke a permit for any of the following reasons:
(1) Fraud, deceit or misrepresentation in securing the
permit, or in the conduct of the permitted activity;
(2) Offering, conferring or agreeing to confer any benefit
to induce any other person to violate the provisions of this
chapter, or of any other law relating to the collection,
transportation, treatment, storage, or disposal of solid waste,
or of any rule or regulation adopted pursuant thereto;
(3) Coercing a customer by violence or economic reprisal or
the threat thereof to utilize the services of any permittee; or
(4) Preventing, without authorization of the division, any
permittee from disposing of solid waste at a licensed treatment,
storage or disposal facility.
§22-15-16. 20-5F-7. Appeal and review procedures.
(a) Any person having an interest which is or may be
adversely affected, or who is aggrieved by an order of the
director, or chief, or by the issuance or denial of a permit or
by the permit's terms or conditions, may appeal to the water
resources environmental quality board in the same manner as
appeals are taken under the water pollution control act, section
fifteen, article five-a, chapter twenty of the code as provided
in article one, chapter twenty-two-b of this code.
(b) Any party, the director or the chief adversely affected
by an order made and entered by the water resources board may
obtain judicial review thereof in the same manner as provided forunder section sixteen, article five-a of the water pollution
control act.
§22-15-17. 20-5F-8. Limited extension of solid waste facility
closure deadline.
(a) The director of the division of natural resources shall
grant an extension of the closure deadline up to the thirty-first
day of March, one thousand nine hundred ninety-three, to a solid
waste facility required by solid waste management regulations
rules to close by the thirtieth day of November, one thousand
nine hundred ninety-one, unless the director determines by a
preponderance of the evidence that such extension will pose a
significant risk to human health or safety or cause irreparable
harm to the environment.
(b) No later than the first day of November, one thousand
nine hundred ninety-one, any facility seeking an extension of its
closure deadline must submit to the division of natural resources
an application sufficient to support the requirements of
subsection (a) of this section.
(c) The director shall grant or deny the extension no later
than the twenty-first day of November, one thousand nine hundred
ninety-one. If the director denies an extension, the facility
shall cease accepting solid waste on the thirtieth day of
November, one thousand nine hundred ninety-one. No person
seeking judicial review, pursuant to subsection (d) of this
section, of the director's denial of an extension shall accept
solid waste at the facility during the pendency of the judicialreview process.
(d) Any party who is aggrieved by an order of the director
regarding the grant or denial of an extension of the closure
deadline for a solid waste facility pursuant to this section, may
obtain judicial review thereof in the same manner as provided in
section four, article five, chapter twenty-nine-a of this code,
which provisions shall apply to and govern such review with like
effect as if the provisions of said section were set forth in
extenso in this section, except that the petition shall be filed,
within the time specified in said section, in the circuit court
of Kanawha county:
Provided,
That the court shall not in any
manner permit the continued acceptance of solid waste at the
facility pending review of the decision of the director.
(e) The judgment of the circuit court shall be is final
unless reversed, vacated or modified on appeal to the supreme
court of appeals, in accordance with the provisions of section
one, article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section, the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(f) The director of the division of natural resources shall
grant an extension of the closure deadline not to exceed the
thirtieth day of September, one thousand nine hundred ninety-
three, to a solid waste facility required by solid waste
management regulations rules to close by the thirtieth day ofNovember, one thousand nine hundred ninety-two.
§22-15-18. 20-5F-9. Condition on receiving permit.
(a) Notwithstanding any other provision of this code, a
permit application for a solid waste landfill facility submitted
by any person who has owned, operated or held a permit for a
solid waste landfill upon which funds have been, or are to be,
expended on pursuant to the provisions of article five-n sixteen
of this chapter, may be approved under the provisions of this
article only if all funds so expended are repaid in full, plus
interest, or arrangements, satisfactory to the director, are made
for the repayment of the funds and the interest. The repayment
shall be made a specific condition of a permit.
(b) In the case where a permittee has entered into a
repayment arrangement with the director in order to obtain a
permit under this article, the repayment of the funds shall be
considered by the public service commission a reasonable cost of
operating the newly permitted landfill in determining rates to be
charged at the landfill.
§22-15-19. 20-5F-10. Municipal solid waste incineration and
backhauling prohibited; exceptions.
(a) Notwithstanding any other provision of this code to the
contrary, it shall be is unlawful to install, establish or
construct a new solid waste facility for the purpose of municipal
solid waste incineration prior to the first day of May, one
thousand nine hundred ninety-three:
Provided,
That such
prohibition shall does not include the development of small-scaledemonstration or pilot projects designed to analyze the
efficiency or environmental impacts of incineration technologies.
(b) It shall be is unlawful to engage in the practice of
backhauling as such term is defined in section two of this
article.
§22-15-20. 20-5F-12. County assessment for Class A facilities;
amount; restrictions; purposes.
Notwithstanding any provision of this code to the contrary,
the county commission of any county containing a Class A facility
may, in addition to any fee otherwise imposed by law, impose a
fee, not to exceed five dollars per ton of solid waste received
from outside the wasteshed in which the facility is located and
not to exceed two dollars per ton for solid waste received from
within said wasteshed for solid waste disposed in said facility:
Provided,
That any moneys received by a county commission
pursuant to this section shall be expended exclusively for
capital improvements to the infrastructure within the county,
including, but not limited to, water supply treatment, waste
treatment, sewage systems and road maintenance, as well as the
expenses associated therewith.
ARTICLE 5N. 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-1. 20-5N-1. Legislative findings and purpose.
The Legislature finds that:
There are numerous landfills throughout the state that must
be closed before the thirtieth day of November, one thousand nine
hundred ninety-two, because they cannot be operated in anenvironmentally sound manner;
The permittees of many of the landfills that will be closing
do not have the financial resources to close their landfills in
a manner that is timely and environmentally sound;
As long as these landfills remain open, the threat of
continuing harm to the environment and the health and safety of
the citizens of West Virginia exists, and the cost to remediate
their adverse effects will continue to grow;
The untimely and disorderly closure of these landfills
represents a significant threat to the health and safety of the
people of West Virginia and its environment; and
It is in the best interests of all the citizens of this
state to provide a mechanism to assist the permittees of these
landfills in properly closing them.
Therefore, it is the purpose of this article to provide an
assistance program that will be available to permittees of
landfills that will facilitate the closure of these landfills in
a timely and environmentally sound manner.
§22-16-2. 20-5N-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility;
(2) "Cost of project" includes the cost of the services
authorized in sections three and ten fifteen of this article,
property, material and labor which are essential thereto,
financing charges, interest during construction and all other
expenses, including legal fees, trustees', engineers' and
architects' fees which are necessarily or properly incidental to
the program;
(3) "Director" means the director of the division of natural
resources environmental protection of the department of commerce,
labor and environmental resources, or his or her authorized
representative or such other person the director has delegated
duties or authority to pursuant to sections six or eight, article
one of this chapter.;
(4) "Landfill" means any solid waste facility for the
disposal of solid waste on land. , and also means any system,
facility, land, contiguous land, improvements on the land,
structures or other appurtenances or methods used for processing,
recycling or disposing of solid waste, including landfills,
transfer stations, resource recovery facilities and other such
facilities not herein specified. Such facility shall be deemed
to be is situated, for purposes of this article, in the county
where the majority of the spatial area of such facility is
located;
(5) "Permittee" means a person who has or should obtain a
permit for a commercial solid waste facility that is a landfill;
(6) "Project" means the providing of closure assistance toone or more landfills under this article.
The definitions provided in section two, article five-f
fifteen of this chapter, to the extent they are applicable, apply
in this article.
§22-16-3. 20-5N-3. Commercial solid waste facility landfill
closure assistance program.
(a) There is established within the section of waste
management of the division of natural resources environmental
protection the commercial solid waste landfill closure assistance
program. The purpose of the program is to provide assistance for
the closure of landfills which are required to cease operations
pursuant to the closure deadlines provided for in this chapter.
(b) Upon the acceptance of an application of the permittee
of a solid waste landfill that satisfies the requirements in
section five six of this article, the director shall provide, in
accordance with the provisions of this article, and to the extent
that funds are available, the following closure related services:
(1) Closure design, including an analysis of the effects of
the landfill on groundwater and the design of measures necessary
to protect and monitor the groundwater;
(2) Construction of all closure-related structures necessary
to provide sufficient leachate management, sediment and erosion
control, gas management, groundwater monitoring and final cover
and cap, all to meet the closure-related requirements of article
five-f fifteen of this chapter and rules promulgated pursuant
thereto; and
(3) All surface water and groundwater monitoring activities
required pursuant to articles five-a eleven and five-f fifteen of
this chapter and applicable rules promulgated thereunder.
(c) To the extent that there are funds available in the fund
established in section seven twelve of this article or
subdivision (3), subsection (h), section five-a eleven, article
five-f fifteen of this chapter, the director may take remedial
actions necessary to protect the groundwater and surface water,
other natural resources and the health and safety of the citizens
of this state.
§22-16-4. 20-5N-4. Solid waste assessment fee; penalties.
(a) Imposition. -- A solid waste assessment fee is hereby
levied and imposed upon the disposal of solid waste at any solid
waste disposal facility in this state in the amount of four
dollars per ton or like ratio on any part thereof of solid waste,
except as provided in subsections (e) and (i) subsection (e) of
this section:
Provided,
That any solid waste disposal facility
may deduct from this assessment fee an amount, not to exceed the
fee, equal to the amount that such facility is required by the
public service commission to set aside for the purpose of closure
of that portion of the facility required to close by the solid
waste management regulations to close by the thirtieth day of
November, one thousand nine hundred ninety-one or ninety-two,
including any extensions authorized pursuant to section eight,
article five-f fifteen of this chapter. The fee imposed by this
section is in addition to all other fees and taxes levied by lawand shall be added to and constitute part of any other fee
charged by the operator or owner of the solid waste disposal
facility.
(b) Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms
and in the manner prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be is personally liable for such amount
as he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee asrequired in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain in effect until a notice
of cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator
shall be is primarily liable for collection and remittance of the
fee imposed by this section and the owner shall be is secondarily
liable for remittance of the fee imposed by this section.
However, if the operator fails, in whole or in part, to discharge
his or her obligations under this section, the owner and the
operator of the solid waste facility shall be are jointly and
severally responsible and liable for compliance with the
provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof shall be are liable, jointly and severally, for
any default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association orcorporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules and regulations of the tax commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definitions. -- For purposes of this section, the term
"solid waste disposal facility" means any approved solid waste
facility or open dump in this state, and includes a transfer
station when the solid waste collected at the transfer station is
not finally disposed of at a solid waste facility within this
state that collects the fee imposed by this section. Nothing in
this section authorizes in any way the creation or operation of
or contribution to an open dump.
(e) Exemptions. -- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
natural resources as exempt from the solid waste assessment fee;
and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of natural resources of or solid
waste authority, upon request.
(f) Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this codeapplies to the fee imposed by this section with like effect as if
said act were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(h) Dedication of proceeds. -- Fifty percent of the proceeds
of the fee collected pursuant to this article in excess of thirty
thousand tons per month from any landfill which is permitted to
accept in excess of thirty thousand tons per month pursuant to
section four-d nine, article five-f fifteen of this chapter shall
be remitted, at least monthly, to the county commission in the
county in which the landfill is located. The remainder of the
proceeds of the fee collected pursuant to this section shall be
deposited in the closure cost assistance fund established
pursuant to section seven twelve of this article.
(i) Additional fee for out-of-shed waste. -- In addition to
the four-dollar fee imposed pursuant to the provisions of
subsection (a) of this section, on and after the first day of
January, one thousand nine hundred ninety-three, there shall be
is imposed an additional two-dollar fee on the disposal of solid
waste generated outside of the wasteshed wherein the solid waste
disposal facility is located.
(j) Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§22-16-5. 20-5N-4a. Solid waste management board empowered to
issue solid waste closure revenue bonds, renewal notes and
refunding bonds; requirements and manner of such issuance.
The solid waste management board is hereby empowered to
issue, from time to time, solid waste closure revenue bonds and
notes of the state in such principal amounts as the board deems
necessary to pay the cost of or finance in whole or in part the
closure of solid waste landfills by the division of natural
resources pursuant to the provisions of this article, but the
aggregate amount of all issues of bonds and notes outstanding at
one time for all projects authorized hereunder shall not exceed
that amount capable of being serviced by revenues received from
such projects, pledged for the payment of bonds and notes issued
pursuant to this section, and shall not exceed in the aggregate
the sum of one hundred fifty million dollars.
The board may, from time to time, issue renewal notes, issue
bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of solid waste
closure revenue refunding bonds of the state. Except as may
otherwise be expressly provided in this article or by the board,
every issue of its bonds or notes shall be are obligations of the
board payable out of the revenues and reserves created for such
purposes by the board, which are pledged for such payment,
without preference or priority of the first bonds issued, subjectonly to any agreements with the holders of particular bonds or
notes pledging any particular revenues. Such pledge shall be is
valid and binding from the time the pledge is made and the
revenue so pledged and thereafter received by the board shall is
immediately be subject to the lien of such pledge without any
physical delivery thereof or further act and the lien of any such
pledge shall be is valid and binding as against all parties
having claims of any kind in tort, contract or otherwise against
the board irrespective of whether such parties have notice
thereof. All such bonds and notes shall have all the qualities
of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
board, shall bear such dates and shall mature at such times, in
the case of any such note or any renewals thereof not exceeding
five years from the date of issue of such original note, and in
the case of any such bond not exceeding fifty years from the date
of issue, as such resolution may provide. The bonds and notes
shall bear interest at such rate, be in such denominations, be in
such form, either coupon or registered, carry such registration
privileges, be payable in such medium of payment, at such place
and be subject to such terms of redemption as the board may
authorize. The board may sell such bonds and notes at public or
private sale, at the price the board determines. The bonds and
notes shall be executed by the chairman chair and vice chairman
chair of the board, both of whom may use facsimile signatures.
The official seal of the board or a facsimile thereof shall beaffixed thereto or printed thereon and attested, manually or by
facsimile signature, by the secretary-treasurer of the board, and
any coupons attached thereto shall bear the signature or
facsimile signature of the chairman chair of the board. In case
any officer whose signature, or a facsimile of whose signature,
appears on any bonds, notes or coupons ceases to be such officer
before delivery of such bonds or notes, such signature or
facsimile is nevertheless sufficient for all purposes the same as
if he or she had remained in office until such delivery and, in
case the seal of the board has been changed after a facsimile has
been imprinted on such bonds or notes, such facsimile seal will
continue to be sufficient for all purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the board to secure
the payment of the bonds or notes or of any issue thereof; the
use and disposition of revenues of the board; a covenant to fix,
alter and collect rentals, fees, service charges and other
charges so that pledged revenues will be sufficient to pay the
costs of operation, maintenance and repairs, cost of projects as
provided in this article, related to closure activities, pay
principal of and interest on bonds or notes secured by the pledge
of such revenues and provide such reserves as may be required by
the applicable resolution; the setting aside of reserve funds,sinking funds or replacement and improvement funds and the
regulation and disposition thereof; the crediting of the proceeds
of the sale of bonds or notes to and among the funds referred to
or provided for in the resolution authorizing the issuance of the
bonds or notes; the use, lease, sale or other disposition of any
solid waste disposal project or any other assets of the board;
limitations on the purpose to which the proceeds of sale of bonds
or notes may be applied and pledging such proceeds to secure the
payment of the bonds or notes or of any issue thereof; agreement
of the board to do all things necessary for the authorization,
issuance and sale of bonds in such amounts as may be necessary
for the timely retirement of notes issued in anticipation of the
issuance of bonds; limitations on the issuance of additional
bonds or notes; the terms upon which additional bonds or notes
may be issued and secured; the refunding of outstanding bonds or
notes; the procedure, if any, by which the terms of any contract
with bondholders or noteholders may be amended or abrogated, the
holders of which must consent thereto, and the manner in which
such consent may be given; limitations on the amount of moneys to
be expended by the board for operating, administrative or other
expenses of the board; and any other matters, of like or
different character, which in any way affect the security or
protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes shall be are less than the minimum
reserve requirements established in any resolution or resolutionsauthorizing the issuance of such bonds or notes, the chairman
chair of the board shall certify, on or before the first day of
December of each year, the amount of such deficiency to the
governor of the state, for inclusion, if the governor shall so
elect, of the amount of such deficiency in the budget to be
submitted to the next session of the Legislature for
appropriation to the board to be pledged for payment of such
bonds or notes:
Provided,
That the Legislature shall is not be
required to make any appropriation so requested, and the amount
of such deficiencies shall does not constitute a debt or
liability of the state.
Neither the members of the board nor any person executing
the bonds or notes shall be are liable personally on the bonds or
notes or be subject to any personal liability or accountability
by reason of the issuance thereof.
§22-16-6. 20-5N-4b. Establishment of reserve funds, replacement
and improvement funds and sinking funds; fiscal agent;
purposes for use of bond proceeds; application of surplus.
(a) Before issuing any revenue bonds in accordance with the
provisions of this article, the solid waste management board
shall consult with and be advised by the West Virginia water
development authority as to the feasibility and necessity of the
proposed issuance of revenue bonds.
(b) Prior to issuing revenue bonds under the provisions of
this article, the board shall enter into agreements satisfactory
to the West Virginia water development authority with regard tothe selection of all consultants, advisors and other experts to
be employed in connection with the issuance of such bonds and the
fees and expenses to be charged by such persons, and to establish
any necessary reserve funds and replacement and improvement
funds, all such funds to be administered by the water development
authority, and, so long as any such bonds remain outstanding, to
establish and maintain a sinking fund or funds to retire such
bonds and pay the interest thereon as the same may become due.
The amounts in any such sinking fund, as and when so set apart by
the board, shall be remitted to the West Virginia water
development authority at least thirty days previous to the time
interest or principal payments become due, to be retained and
paid out by the water development authority, as agent for the
board, in a manner consistent with the provisions of this article
and with the resolution pursuant to which the bonds have been
issued. The water development authority shall act as fiscal
agent for the administration of any sinking fund and reserve fund
established under each resolution authorizing the issuance of
revenue bonds pursuant to the provisions of this article, and
shall invest all funds not required for immediate disbursement in
the same manner as funds are invested pursuant to the provisions
of section thirteen fifteen, article five-c one, chapter twenty
twenty-two-c of this code.
(c) Notwithstanding any other provision of this article to
the contrary, no revenue bonds shall be issued, nor the proceeds
thereof expended or distributed, pursuant to the provisions ofthis article, without the prior approval of the water development
authority.
(d) If the proceeds of revenue bonds issued for any solid
waste landfill closure project shall exceed the cost thereof, the
surplus shall be paid into the fund herein provided for the
payment of principal and interest upon such bonds. Such fund may
be used by the fiscal agent for the purchase or redemption of any
of the outstanding bonds payable from such fund at the market
price, but not at a price exceeding the price at which any of
such bonds shall are in the same year be redeemable, as fixed by
the board in its said resolution, and all bonds redeemed or
purchased shall forthwith be canceled, and shall not again be
issued.
§22-16-7. 20-5N-4c. Legal remedies of bondholders.
Any holder of solid waste disposal revenue bonds issued
under the authority of this article or any of the coupons
appertaining thereto, except to the extent the rights given by
this article may be restricted by the applicable resolution, may
by civil action, mandamus or other proceeding, protect and
enforce any rights granted under the laws of this state or
granted under this article, by the resolution authorizing the
issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
resolution, to be performed by the board or any officer or
employee thereof, including the fixing, charging and collecting
of sufficient rentals, fees, service charges or other charges.
§22-16-8. 20-5N-4d. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Solid waste closure revenue bonds and notes and solid waste
closure revenue refunding bonds issued under authority of this
article and any coupons in connection therewith shall not
constitute are not a debt or a pledge of the faith and credit or
taxing power of this state or of any county, municipality or any
other political subdivision of this state, and the holders or
owners thereof shall have no right to have taxes levied by the
Legislature or taxing authority of any county, municipality or
any other political subdivision of this state for the payment of
the principal thereof or interest thereon, but such bonds and
notes shall be are payable solely from the revenues and funds
pledged for their payment as authorized by this article unless
the notes are issued in anticipation of the issuance of bonds or
the bonds are refunded by refunding bonds issued under authority
of this article, which bonds or refunding bonds shall be are
payable solely from revenues and funds pledged for their payment
as authorized by this article. All such bonds and notes shall
contain on the face thereof a statement to the effect that the
bonds or notes, as to both principal and interest, are not debts
of the state or any county, municipality or political subdivision
thereof, but are payable solely from revenues and funds pledged
for their payment.
All expenses incurred in carrying out the provisions of thisarticle shall be are payable solely from funds provided under
authority of this article. This article does not authorize the
board to incur indebtedness or liability on behalf of or payable
by the state or any county, municipality or political subdivision
thereof.
§22-16-9. 20-5N-4e. Solid waste closure revenue bonds lawful
investments.
The provisions of sections ten and eleven, article six,
chapter twelve of this code notwithstanding, all solid waste
closure revenue bonds issued pursuant to this article shall be
are lawful investments for the West Virginia state board of
investments and shall are also be lawful investments for
financial institutions as defined in section two, article one,
chapter thirty-one-a of this code, and for insurance companies.
§22-16-10. 20-5N-5. Limitation on assistance.
The director may provide closure assistance only to
permittees who meet the following requirements:
(1) The permittee of a landfill that does not have a liner
and ceases accepting solid waste on or before the thirtieth day
of November, one thousand nine hundred ninety-one, except for
those landfills allowed to accept solid waste pursuant to the
provisions of section eight seventeen, article five-f fifteen of
this chapter and ceases accepting solid waste on or before the
extension deadline as determined by the director; or the
permittee of a landfill that has only a single liner and ceases
accepting solid waste on or before the thirtieth day of Septemberone thousand nine hundred ninety-three;
(2) The permittee of the landfill must demonstrate to the
satisfaction of the director that it does not have the financial
resources on hand or the ability to generate the amounts needed
to comply, in a timely manner, with the closure requirements
provided in article five-f fifteen of this chapter and any rules
promulgated pursuant thereto; and
(3) The permittee must maintain a permit for the landfill
pursuant to the provisions of section five ten, article five-f
fifteen of this chapter and maintain the full amount of the bond
required to be submitted pursuant to section five-b twelve,
article five-f fifteen of this chapter.
§22-16-11. 20-5N-6. Application for closure assistance.
(a) The director shall provide an application and
application procedure for all permittees of solid waste landfills
desiring to receive closure assistance under this article. At a
minimum the procedure shall require that:
(1) The permittee of a landfill that does not have a liner
system must submit its application no later than the fifteenth
day of September, one thousand nine hundred ninety-two, except
the permittee of a landfill that has been allowed to accept solid
waste pursuant to the provisions of section eight seventeen,
article five-f fifteen of this chapter must submit its
application no later than the eleven months following the
expiration of the extension; and
(2) The permittee of a landfill that has only a single linersystem must submit its application no later than eleven months
following the date of closure of the landfill.
(b) The director shall, within a reasonable time after
receipt of a complete application, notify the applicant of the
acceptance or rejection of the application. If the application
is rejected the notice shall contain the reasons for the
rejection.
§22-16-12. 20-5N-7. Solid waste facility Closure cost assistance
fund.
(a) The "Closure Cost Assistance Fund" is hereby created
continued as a special revenue account in the state treasury.
The fund shall operate as a special fund whereby all deposits and
payments thereto shall do not expire to the general revenue fund,
but shall remain in such account and be available for expenditure
in the succeeding fiscal year. Separate sub-accounts may be
established within the special account for the purpose of
identification of various revenue resources and payment of
specific obligations.
(b) Interest earned on any money in the fund shall be
deposited to the credit of the fund.
(c) The fund consists of the following:
(1) Moneys collected and deposited in the state treasury
which are specifically designated by acts of the Legislature for
inclusion in the fund, including moneys collected and deposited
into the fund pursuant to section four of this article;
(2) Contributions, grants and gifts from any source, bothpublic and private, which may be used by the director for any
project or projects;
(3) Amounts repaid by permittees pursuant to section nine
eighteen, article five-f fifteen of this chapter; and
(4) All interest earned on investments made by the state
from moneys deposited in this fund.
(d) The solid waste management board, upon written approval
of the director, has the authority to pledge all or such part of
the revenues paid into the closure cost assistance fund as may be
needed to meet the requirements of any revenue bond issue or
issues of the solid waste management board authorized by this
article, including the payment of principal of, interest and
redemption premium, if any, on such revenue bonds and the
establishing and maintaining of a reserve fund or funds for the
payment of the principal of, interest and redemption premium, if
any, on such revenue bond issue or issues when other moneys
pledged may be insufficient therefor. Any pledge of moneys in
the closure cost assistance fund for revenue bonds shall be a
prior and superior charge on such fund over the use of any of the
moneys in such fund to pay for the cost of any project on a cash
basis. Expenditures from the fund, other than for the retirement
of revenue bonds, may only be made in accordance with the
provisions of this article.
(d) (e) The amounts deposited in the fund may be expended
only on the cost of projects as provided for in sections three
and ten fifteen of this article and the amounts may be expendedfor payment of bonds and notes issued pursuant to section five of
this article:
Provided,
That no more than one percent of the
annual deposits to such fund may be used for administrative
purposes.
§22-16-13. 20-5N-8. Promulgation of rules by director.
The director shall promulgate rules that are necessary for
the efficient and orderly implementation and administration of
this article. no later than the first day of August, one thousand
nine hundred ninety-two. Due to the need for the program
provided for in this article to begin as soon as possible the
Legislature finds and declares that condition warranting rules to
be promulgated as emergency rules does exist and that the
promulgation of the initial rules required by this section should
be accorded emergency status.
§22-16-14. 20-5N-9. Liability of owner or operator.
Nothing in this article relieves the owner, operator or
permittee of a landfill of the legal duties, obligations or
liabilities incident to the ownership or operation of a landfill,
except that the performance by the director of any of the
activities set forth in subsection (b), section three of this
article relieves the operator from the requirement to perform
such activities.
§22-16-15. 20-5N-10. Procedures for handling remedial actions;
payment of costs of remedial actions to be paid by owner or
operator.
When the director, in performing activities pursuant to thisarticle determines action, not set forth in subsection (b),
section three of this article, is necessary to prevent or
remediate any adverse effects of the landfill he or she shall
notify the permittee and make and enter an order directing the
permittee to take corrective or remedial action. The order shall
contain findings of fact upon which the director based his or her
determination to make and enter such order. The director shall
fix a time limit for the completion of such action.
The director shall cause a copy of any such order to be
served by registered or certified mail or by a conservation
officer or other law-enforcement officer upon such person.
If the corrective action is not taken within the time limit
or the permittee notifies the director that it is unable to
comply with the order, the director may expend amounts, as
provided herein, to make the remediation.
The costs reasonably incurred in any remedial action taken
by the director as provided in this article may be paid for
initially by amounts available to the director in the fund
created in subdivision (3), subsection (h), section five-a
eleven, article five-f fifteen of this chapter or, to the extent
funds are available, from the fund created in section seven
twelve of this article, and such sums so expended, if not
promptly repaid by the permittee upon request of the director,
may be recovered from the permittee by appropriate civil action
to be initiated by the attorney general upon request of the
director. All funds so recovered shall be deposited in the fundfrom which said funds were expended.
§22-16-16. 20-5N-11. Right of entry.
The director or his or her duly authorized representatives
have the right, upon presentation of proper identification, to
enter upon any property for the purpose of conducting studies or
exploratory work to determine the existence of adverse effects of
a landfill, to determine the feasibility of the remediation or
prevention of such adverse effects and to perform the activities
set forth in sections three and ten fifteen of this article.
Such entry is as an exercise of the police power of the state for
the protection of public health, safety and general welfare and
is not an act of condemnation of property or trespass thereon.
Nothing contained in this section eliminates any obligation to
follow any process that may be required by law.
§22-16-17. 20-5N-12. Authority of director to accept grants and
gifts.
The director has the authority, on behalf of the division of
natural resources environmental protection, to accept for deposit
in the closure cost assistance fund established in section seven
twelve of this article, all gifts, grants, property, funds,
security interest, money, materials, labor, supplies or services
from the United States of America or from any governmental unit
or any person, firm or corporation, and to carry out the terms or
provisions of, or make agreements with respect to, or pledge, any
gifts or grants, and to do any and all things necessary, useful,
desirable or convenient in connection with the procuring,acceptance or disposition of gifts or grants.
§22-16-18. 20-5N-13. Management and control of project.
(a) The director shall manage and control all projects, and
may make and enter into all contracts or agreements necessary and
incidental to the performance of the duties imposed under this
article.
(b) On or before the thirty-first day of December, one
thousand nine hundred ninety-two, the director, in consultation
with the public service commission, shall complete a statewide
closure plan, a comprehensive analysis of the total costs of
closure anticipated under such statewide closure plan, and a
proposal for implementation of closure assistance funding. The
director, in consultation with the public service commission,
shall prepare and issue a report which shall include the
following:
(1) An identification of specific landfills expected to be
closed during the three-year period next following the completion
of the plan;
(2) An estimate of the projected closure costs associated
with each such identified landfill, including such engineering
and technical analysis as may be necessary to provide a
reasonable estimate;
(3) The extent to which closure assistance will be needed
for each such specific landfill; and
(4) An assessment of the order of priority which should be
established for closure of landfills and all moneys potentiallyavailable therefor.
The plan and report required pursuant to the provisions of
this section shall be submitted to the Legislature for its
approval or rejection by a concurrent resolution.
ARTICLE 5H. 17. WEST VIRGINIA UNDERGROUND STORAGE TANK ACT.
§22-17-1. 20-5H-1. Short title.
This article may be known and cited as the "West Virginia
"Underground Storage Tank Act."
§22-17-2. 20-5H-2. Declaration of policy and purpose.
The Legislature recognizes that large quantities of
petroleum and hazardous substances are stored in underground
storage tanks within the state of West Virginia and that
emergency situations involving these substances can and will
arise which may present a hazard to human health, safety or the
environment. The Legislature also recognizes that some of these
substances have been stored in underground storage tanks in the
state in a manner insufficient to protect human health, safety or
the environment. The Legislature further recognizes that the
federal government has enacted Subtitle I of the federal Resource
Conservation and Recovery Act of 1976, as amended, which provides
for a federal program to remove the threat and remedy the effects
of releases from leaking underground storage tanks and authorizes
federal assistance to respond to releases of petroleum from
underground storage tanks. The Legislature declares that the
state of West Virginia desires to produce revenue for matching
the federal assistance provided under the federal act; to createa program to control the installation, operation and abandonment
of underground storage tanks and to provide for corrective
action to remedy releases of regulated substances from these
tanks. Therefore, the Legislature hereby enacts the West
Virginia underground storage tank act to create an underground
storage tank program and to assume regulatory primacy for such
federal programs in this state.
§22-17-3. 20-5H-3. Definitions.
(a) "Change in status" means causing an underground storage
tank to be no longer in use or a change in the reported uses,
contents or ownership of an underground storage tank.
(b) "Director" means the director of the West Virginia
department of natural resources division of environmental
protection or his authorized representative or such other person
the director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter.
(d) (c) "Nonoperational storage tank" means an underground
storage tank in which regulated substances will not be deposited
or from which regulated substances will not be dispensed after
the eighth day of November, one thousand nine hundred eighty-
four.
(c) (d) "Operator" means any person in control of, or having
responsibility for, the daily operation of an underground storage
tank.
(e) "Owner" means:
(1) In the case of an underground storage tank in use on theeighth day of November, one thousand nine hundred eighty-four,
or brought into use after that date, a person who owns an
underground storage tank used for the storage, use or dispensing
of a regulated substance.
(2) In the case of an underground storage tank in use before
the eighth day of November, one thousand nine hundred eighty-
four, but no longer in use on that date, a person who owned such
a tank immediately before the discontinuation of its use.
(f) "Person" means any individual, trust, firm, joint stock
company, corporation (including government corporations),
partnership, association, state, municipality, commission,
political subdivision of a state, interstate body, consortium,
joint venture, commercial entity and the United States
government.
(g) "Petroleum" means petroleum, including crude oil or any
fraction thereof which is liquid at a temperature of sixty
degrees Fahrenheit and a pressure of fourteen and seven-tenths
pounds per square inch absolute.
(h) "Regulated substance" means:
(1) Any substance defined in section 101 (14) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, but not including any substance regulated as a
hazardous waste under Subtitle C of the federal Resource
Conservation and Recovery Act of 1976, as amended; or
(2) Petroleum.
(i) "Release" means any spilling, leaking, emitting,discharging, escaping, leaching or disposing from an underground
storage tank into groundwater, surface water or subsurface soils.
(j) "Subtitle I" means Subtitle I of the federal Resource
Conservation and Recovery Act of 1976, as amended.
(k) "Underground storage tank" means one tank or a
combination of tanks, and the underground pipes connected
thereto, which is used to contain an accumulation of regulated
substances and the volume of which, including the volume of the
underground pipes connected thereto, is ten percent or more
beneath the surface of the ground, but does not include:
(1) Farm or residential tanks with a capacity of eleven
hundred gallons or less and used for storing motor fuel for
noncommercial purposes;
(2) Tanks used for storing heating oil for consumptive use
on the premises where stored;
(3) Septic tanks;
(4) A pipeline facility, including gathering lines,
regulated under the Natural Gas Pipeline Safety Act of 1968, or
the Hazardous Liquid Pipeline Safety Act of 1968, or an
intrastate pipeline facility regulated under state laws
comparable to the provisions of either of those acts;
(5) Surface impoundments, pits, ponds or lagoons;
(6) Storm water or waste water collection systems;
(7) Flow-through process tanks;
(8) Liquid traps or associated gathering lines directly
related to oil or gas production and gathering operations; or
(9) Storage tanks situated in an underground area such as a
basement, cellar, mineworking, drift, shaft or tunnel, if the
storage tank is situated upon or above the surface of the floor.
The term "underground storage tank" shall does not include
any pipes connected to any tank which is described in
subparagraphs (1) through (9).
§22-17-4. 20-5H-4. Designation of department of natural
resources division of environmental protection as the state
underground storage tank program lead agency.
The department of natural resources division of
environmental protection is hereby designated as the state
underground storage tank program lead agency for purposes of
Subtitle I and is hereby authorized to take all actions necessary
or appropriate to secure to this state the benefits of said
legislation. In carrying out the purposes of this article, the
director is hereby authorized to cooperate with the United States
environmental protection agency, other agencies of the federal
government, agencies of this state or other states, and other
interested persons in all matters relating to underground storage
tank regulation.
§22-17-5. 20-5H-5. Powers and duties of director; integration
with other acts.
(a) In addition to all other powers and duties prescribed in
this article or otherwise by law, and unless otherwise
specifically set forth in this article, the director shall
perform any and all acts necessary to carry out the purposes andrequirements of Subtitle I. as of the effective date of this
article.
(b) The director shall cooperate with and may receive and
expend money from the federal government or other source.
(c) The director may enter into any agreements, including
reimbursement for services rendered, contracts and cooperative
arrangements under such terms and conditions as he or she deems
appropriate, with other state agencies, educational institutions
or other organizations and individuals as necessary to implement
the provisions of this article.
§22-17-6. 20-5H-6. Promulgation of rules regulations and
standards by director.
(a) The director has overall responsibility for the
promulgation of rules and regulations under this article. In
promulgating and revising such rules and regulations the director
shall comply with the provisions of chapter twenty-nine-a of this
code. Such rules and regulations shall be no more stringent than
the rules and regulations promulgated by the United States
environmental protection agency pursuant to Subtitle I.
(b) The director shall promulgate rules and regulations
applicable to owners or operators of underground storage tanks or
other affected persons, as appropriate, as follows:
(1) A requirement for a yearly registration fee for
underground storage tanks;
(2) A requirement that an owner or operator register with
the director each underground storage tank after the effectivedate of the regulations rules and that an owner or operator
report annually on changes in status of any underground storage
tank;
(3) Such release detection, prevention and correction rules
applicable to underground storage tanks as may be necessary to
protect human health and the environment;
(4) Requirements for maintaining a leak detection system,
inventory control systems together with tank testing, or a
comparable system or method designed to identify releases from
underground storage tanks in a manner consistent with the
protection of human health and the environment;
(5) Requirements for maintaining records of any monitoring
or leak detection system or inventory control system or tank
testing system;
(6) Regulations Rules for procedures and amount of fees to
be assessed for the underground storage tank administrative fund,
the leaking underground storage tank response fund and the
underground storage tank insurance fund established pursuant to
this article, which shall include a capitalization fee to be
assessed against all owners or operators of underground tanks to
be used for initial establishment of the underground storage tank
insurance fund;
(7) Procedures for making expenditures from the underground
storage tank administrative fund, the leaking underground storage
tank response fund and the underground storage tank insurance
fund;
(8) Acceptable methods by which an owner or operator may
demonstrate financial responsibility;
(9) Requirements for reporting of releases and corrective
action taken in response to a release;
(10) Requirements for taking corrective action in response
to a release from an underground storage tank;
(11) Requirements for the closure of tanks to prevent future
releases of regulated substances to the environment;
(12) Requirements for certification of installation,
removal, retrofit, testing and inspection of underground storage
tanks and leak detection systems by a registered professional
engineer or other qualified person;
(13) Requirements for public participation in the
enforcement of the state underground storage tank program;
(14) Procedures establishing when and how the director shall
determine determines if information obtained by any agency under
this article is confidential;
(15) Standards of performance for new underground storage
tanks; or
(16) Any other rules regulations or standards necessary and
appropriate for the effective implementation and administration
of this article.
§22-17-7. 20-5H-7. Underground storage tank advisory committee;
created purpose.
There is hereby established an The underground storage tank
advisory committee is continued. The committee shall be iscomposed of seven members, which shall include a member of the
West Virginia petroleum council, a member of the West Virginia
service station dealers association, a member of the West
Virginia petroleum marketers association, the director, of the
department of natural resources a member of the West Virginia
manufacturers association, the West Virginia insurance
commissioner, and a representative from the citizenry-at-large
who shall be is appointed by the governor.
The committee shall be is advisory to the director and the
department of natural resources division of environmental
protection regarding the expenditure of funds from the leaking
underground storage tank response fund and the underground
storage tank insurance fund created by this article. The
director shall deliver to the committee annually a report on
expenditures made from each fund. The committee shall consider
any matter brought before it by the director or any member of the
committee and may consider any matter referred to it by a person
not a member of the committee. At the conclusion of its
consideration of any proposal, the committee shall make its
recommendation to the director. The director is not bound by any
recommendations of the committee. The committee may also
formulate general or long-range plans for improvements in the
administration of the funds for the consideration of the
director.
By the second Wednesday of January of each year the
committee shall prepare and deliver to the director of thedepartment of natural resources and to the Legislature a report
of all matters it considered, recommendations it made and plans
it formulated during the preceding calendar year. The report
shall include any recommendation it may have for changes in the
law which would be necessary to implement any of its
administrative recommendations.
§22-17-8. 20-5H-8. Notification requirements.
(a) Underground storage tank owners shall notify the
director of any underground storage tank brought into use on or
after the effective date of this article tenth day of June, one
thousand nine hundred eighty-eight within thirty days of such
use, on a form prescribed by the director. The notice shall
specify the date of tank installation, tank location, type of
construction, size and age of such tank and the type of regulated
substance to be stored therein. If, at the time this information
is required to be submitted, the director has not prepared the
form required by this section, the owner shall nevertheless
submit the information in writing to the director.
(b) A person who sells a tank intended to be used as an
underground storage tank shall reasonably notify the owner or
operator of such tank of the owner's notification requirements of
this section.
(c) A new owner of any underground storage tank shall notify
the director in writing of the transfer of ownership of any
underground storage tank. The new owner shall upon the effective
date of such transfer become becomes subject to all provisions ofthis article. The director may prescribe by regulation rule the
appropriate form and timing for such notification.
§22-17-9. 20-5H-9. Registration requirements; undertaking
activities without registration.
(a) No person may operate any underground storage tank for
the purpose of storing any regulated substance identified or
listed under this article without registering with the director
and paying a registration fee for such underground storage tank.
(b) No person may install any underground storage tank after
the effective date of this article without first registering said
tank in a form and manner prescribed by the director.
(c) Subsections (a) and (b) of this section shall not become
operative prior to promulgation of rules governing registration
procedures and forms, as provided in section six of this article.
§22-17-10. 20-5H-10. Financial responsibility.
The director shall promulgate rules, as provided in section
six of this article, containing requirements for maintaining
evidence of financial responsibility as deemed necessary and
desirable for taking reasonable corrective action and for
compensating third parties for bodily injury and property damage
caused by sudden and nonsudden accidental releases arising from
operating an underground storage tank. Such means of financial
responsibility may include, but not be limited to, insurance,
guarantee, surety bond, letter of credit, proof of assets or
qualification as a self-insurer. In promulgating rules under
this section, the director is authorized to specify policy orother contractual terms, conditions or defenses which are
necessary or are unacceptable in establishing such evidence of
financial responsibility in order to effectuate the purposes of
this article.
§22-17-11. 20-5H-11. Performance standards for new underground
storage tanks.
(a) The director shall promulgate performance standards for
new underground storage tanks as provided in section six of this
article. The performance standards for new underground storage
tanks shall include, but not be limited to, design, construction,
installation, release detection and compatibility standards.
(b) New underground storage tank construction standards must
include at least the following requirements:
(1) That an underground storage tank will prevent releases
of regulated substances stored therein, which may occur as a
result of corrosion or structural failure, for the operational
life of the tank;
(2) That an underground storage tank will be cathodically
protected against corrosion, constructed of noncorrosive
material, steel clad with a noncorrosive material or designed in
a manner to prevent the release or threatened release of stored
regulated substances; and
(3) That materials used in the construction or lining of an
underground storage tank are compatible with the regulated
substances to be stored therein.
§22-17-12. 20-5H-12. Confidentiality.
(a) Any records, reports or information obtained from any
persons under this article shall be available to the public,
except that upon a showing satisfactory to the director by any
person that records, reports or information, or a particular
part thereof, to which the director or any officer, employee, or
representative thereof has access under this section, if made
public, would divulge information entitled to protection under
section 1905 of title 18 of the United States Code, such
information or particular portion thereof shall be considered is
confidential in accordance with the purposes of this section,
except that such record, report, document, or information may be
disclosed to other officers, employees, or authorized
representatives of this state implementing the provisions of
this article.
(b) Any person who knowingly and willfully divulges or
discloses any information entitled to protection under this
section is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars, or imprisoned
in the county jail for not more than one year, or both fined and
imprisoned.
(c) In submitting data under this article, a person required
to provide such data may designate the data which he or she
believes is entitled to protection under this section and submit
such designated data separately from other data submitted under
this article. A designation under this subsection shall be made
in writing and in such manner as the director may prescribe.
§22-17-13. 20-5H-13. Inspections, monitoring and testing.
(a) For the purposes of developing or assisting in the
development of any regulation rule, conducting any study, taking
any corrective action or enforcing the provisions of this
article, any owner or operator of an underground storage tank
shall, upon request of the director, furnish information relating
to such tanks, their associated equipment and contents, conduct
reasonable monitoring or testing, permit the director or his or
her authorized representative at all reasonable times to have
access to, and to copy all records relating to such tanks and
permit the director or his or her authorized representative to
have access to the underground storage tank for corrective
action.
(b) For the purposes of developing or assisting in the
development of any regulation rule, conducting any study, taking
corrective action or enforcing the provisions of this article,
the director or his or her authorized representative may:
(1) Enter at reasonable times any establishment or other
place where an underground storage tank is located;
(2) Inspect and obtain samples from any person of any
regulated substances contained in such tank;
(3) Conduct monitoring or testing of the tanks, associated
equipment, contents or surrounding soils, air, surface, water or
groundwater; and
(4) Take corrective action as specified in this article.
Each such inspection shall be commenced and completed withreasonable promptness.
§22-17-14. 20-5H-14. Corrective action for underground petroleum
storage tanks.
(a) Prior to the effective date of regulations rules
promulgated pursuant to subdivision (9) or (10), subsection (b),
section six of this article, the director is authorized to:
(1) Require the owner or operator of an underground storage
tank to undertake corrective action with respect to any release
of petroleum from said tank when the director determines that
such corrective action shall be done properly and promptly by the
owner or operator if, in the judgment of the director, such
action is necessary to protect human health and the environment;
or
(2) Undertake corrective action with respect to any release
of petroleum into the environment from an underground storage
tank if, in the judgment of the director, such action is
necessary to protect human health and the environment.
The corrective action undertaken or required under this
subsection shall be such as may be necessary to protect human
health and the environment. The director shall use funds in the
leaking underground storage tank response fund established
pursuant to this article for payment of costs incurred for
corrective action taken under subparagraph (2) of this subsection
in the manner set forth in subsection (e), section twenty-one of
this article. The director shall give priority in undertaking
corrective actions under this subsection, and in issuing ordersrequiring owners or operators to undertake such actions, to
releases of petroleum from underground storage tanks which pose
the greatest threat to human health and the environment and where
the director cannot identify a solvent owner or operator of the
tank who will undertake action properly.
(b) Following the effective date of regulations rules
promulgated under subdivision (9) or (10), subsection (b),
section six of this article, all actions or orders of the
director described in subsection (a) of this section shall be in
conformity with such regulations rules. Following such effective
date the director may undertake corrective action with respect to
any release of petroleum into the environment from an underground
storage tank only if, in the judgment of the director, such
action is necessary to protect human health and environment and
one or more of the following situations exists:
(1) If no person can be found within ninety days, or such
shorter period as may be necessary to protect human health and
the environment, who is an owner or operator of the tank
concerned, subject to such corrective action regulations rules
and capable of carrying out such corrective action properly.
(2) A situation exists which requires prompt action by the
director under this subsection to protect human health and the
environment.
(3) Corrective action costs at a facility exceed the amount
of coverage required pursuant to the provisions of section ten
of this article and, considering the class or category ofunderground storage tank from which the release occurred,
expenditures from the leaking underground storage tank response
fund are necessary to assure an effective corrective action.
(4) The owner or operator of the tank has failed or refused
to comply with an order of the director under this section or of
the environmental quality board under section eighteen of this
article one, chapter twenty-two-b of this code to comply with the
corrective action regulations rules.
(c) The director is authorized to draw upon the leaking
underground storage tank response fund in order to take action
under subdivision (1) or (2), subsection (b) of this section if
the director has made diligent good faith efforts to determine
the identity of the party or parties responsible for the release
or threatened release and:
(1) He or she is unable to determine the identity of the
responsible party or parties in a manner consistent with the need
to take timely corrective action; or
(2) The party or parties determined by the director to be
responsible for the release or threatened release have been
informed in writing of the director's determination and have been
requested by the director to take appropriate corrective action
but are unable or unwilling to take such action in a timely
manner.
(d) The written notice to a responsible party must inform
the responsible party that if that party is subsequently found
liable for releases pursuant to subsection (a) or (b) of thissection, he or she will be required to reimburse the leaking
underground storage tank response fund for the costs of the
investigation, information gathering and corrective action taken
by the director.
(e) If the director determines that immediate response to an
imminent threat to public health and welfare or the environment
is necessary to avoid substantial injury or damage to persons,
property or resources, corrective action may be taken pursuant to
subsections (a) and (b) of this section without the prior written
notice required by subdivision (2), subsection (c) of this
section. In such a case the director must give subsequent
written notice to the responsible party within fifteen days after
the action is taken describing the circumstances which required
the action to be taken without prior notice.
(f) As used in this section, the term "owner" shall does not
include any person who, without participating in the management
of an underground storage tank and otherwise not engaged in
petroleum production, refining or marketing, holds indicia of
ownership primarily to protect the person's security interest in
the tank.
§22-17-15. 20-5H-15. Administrative orders; injunctive relief;
requests for reconsideration.
(a) Whenever on the basis of any information, the director
determines that any person is in violation of any requirement of
this article, he or she may issue an order stating with
reasonable specificity the nature of the violation and requiringcompliance within a reasonable specified time period or the
director may commence a civil action in the circuit court of the
county in which the violation occurred or in the circuit court of
Kanawha county for appropriate relief, including a temporary or
permanent injunction. The director may, except as provided in
subsection (b) of this section, stay any order he or she issues
upon application, until the order is reviewed by the water
resources environmental quality board.
(b) Any person issued an order may file a notice of request
for reconsideration with the director not more than seven days
from the issuance of such order. The notice of request for
reconsideration shall identify the order to be reconsidered and
shall set forth in detail the reasons for which reconsideration
is requested. The director shall grant or deny the request for
reconsideration within twenty days of the filing of the notice of
request of reconsideration.
§22-17-16. 20-5H-16. Civil penalties.
(a) Any violator who fails to comply with an order of the
director issued under subsection (a), section fifteen of this
article within the time specified in the order shall be is liable
for a civil penalty of not more than twenty-five thousand dollars
for each day of continued noncompliance.
(b) Any owner who knowingly fails to register or knowingly
submits false information pursuant to this article shall be is
liable for a civil penalty not to exceed ten thousand dollars for
each tank which is not registered or for which false informationis submitted.
(c) Any owner or operator of an underground storage tank who
fails to comply with any requirement or standard promulgated by
the director under section six of this article shall be is
subject to a civil penalty not to exceed ten thousand dollars for
each tank for each day of violation.
§22-17-17. 20-5H-17. Public participation.
Any adversely affected person may intervene in any civil or
administrative proceeding under this article when such person
claims an interest relating to the property or transaction which
is the subject of the action and such person is so situated that
the disposition of the action may as a practical matter impair or
impede his or her ability to protect that interest.
§22-17-18. 20-5H-18. Appeal to water resources environmental
quality board. notice; hearings, orders
(a) Any person aggrieved or adversely affected by an order
of the director made and entered in accordance with the
provisions of this article may appeal to the water resources
environmental quality board, pursuant to the provisions of
article one, chapter twenty-two-b of this code. for an order
vacating or modifying such order, or for such order, action or
terms and conditions as such person believes that the director
should have entered, taken or imposed. The person so appealing
is the appellant and the director is the appellee.
(b) An appeal is perfected by filing a notice of appeal on
the form prescribed by the water resources board for such purposewith such board within thirty days after the date upon which the
appellant received the copy of such order. The filing of the
notice of appeal does not stay or suspend the execution of the
order appealed from. If it appears to the water resources board
that an unjust hardship to the appellant will result from the
execution of the director's order pending determination of the
appeal, the board may grant a suspension of such order and fix
its terms. The notice of appeal shall set forth the order,
action or terms and conditions complained of, the grounds upon
which the appeal is based and the action sought by the appellant.
A copy of the notice of appeal shall be filed by the water
resources board with the director within three days after the
notice of appeal is filed with such board.
(c) Within ten days after receipt of his or her copy of the
notice of appeal, the director shall prepare and certify to the
water resources board a complete record of the proceedings out of
which the appeal arises, including all documents and
correspondence in the possession of the director relating to the
matter in question. With the consent of the board and upon such
terms and conditions as the board may prescribe, any person
affected by any such activity may by petition intervene as a
party appellant or appellee. The board shall hear the appeal de
novo and evidence may be offered on behalf of the appellant, the
appellee and by any intervenors.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code apply to and govern the hearing onappeal authorized by this section and the administrative
procedures in connection with and following such hearing, with
like effect as if the provisions of article five were set forth
in extenso in this section, with the following modifications or
exceptions:
(1) Unless the board directs otherwise, the appeal hearing
shall be held in or near the city of Charleston, Kanawha County;
and
(2) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimony
at any such hearing shall be recorded by stenographic notes and
characters or by mechanical means. Such reported testimony in
every appeal hearing under this article shall be transcribed.
(e) Any such appeal hearing shall be conducted by a quorum
of the board but the parties by stipulation may agree to take
evidence before a hearing examiner employed by the board. For
the purpose of conducting such appeal hearing, any member of the
board and the secretary thereof may issue subpoenas and subpoenas
duces tecum. Such subpoenas shall be issued and served within
the time and for the fees and shall be enforced as specified in
section one, article five of chapter twenty-nine-a and all of the
provisions of section one of said article dealing with subpoenas
and subpoenas duces tecum shall apply to subpoenas and subpoenas
duces tecum issued for the purpose of an appeal hearing
hereunder.
(f) Any such hearing shall be held within twenty days afterthe date upon which the board received the notice of appeal
unless there is a postponement or continuance. The board may
postpone or continue any hearing upon its own motion or upon
application of the appellant, the appellee or any intervenors for
good cause shown. The director shall be represented at any such
hearing by the attorney general or his or her assistants, or the
director, with the written approval of the attorney general, may
employ counsel to represent him. At any such hearing the
appellant and any intervenor may represent himself or be
represented by an attorney-at-law admitted to practice before
any circuit court of this state.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case, the board shall make
and enter an order affirming, modifying or vacating the order of
the director or, shall make and enter such order as the director
should have entered, or shall make and enter an order taking such
action as the director should have taken.
(h) Such order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
appellant, the appellee, any intervenors and their respective
attorneys of record, if any, in person or by registered or
certified mail.
(i) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,the appellee and any intervenors of their right to judicial
review. The order of the board is final unless vacated or
modified upon judicial review.
§22-17-19. 20-5H-19. Disclosures required in deeds and leases.
(a) The grantor in any deed or other instrument of
conveyance or any lessor in any lease or other instrument whereby
any real property is let for a period of time shall disclose in
such deed, lease or other instrument the fact that such property,
or the substrata of such property whether or not the grantor or
lessor is at time of such conveyance or lease the owner of such
substrata, contains an underground storage tank. The provisions
of this subsection only apply to those grantors or lessors who
owned or had an interest in the real property when the same or
the substrata thereof contained an underground storage tank which
was being actively used for storing any regulated substance or
who have actual knowledge or reason to believe that such real
property or the substrata thereof contains an underground storage
tank.
(b) Any lessee of real estate or of any substratum
underlying said real estate who intends to install an underground
storage tank in the leased real estate or any substratum
underlying the same shall disclose in writing at the time of such
lease, or within thirty days prior to such installation, such
fact to the lessor of such real estate or substratum. Such
disclosure shall describe the proposed location upon said
property where the tank is to be located and all otherinformation required by the director.
§22-17-20. 20-5H-20. Appropriation of funds; underground storage
tank administrative fund. created
(a) The director shall collect annual registration fees from
owners of underground storage tanks. The registration fee
collected under this section shall not exceed twenty-five dollars
per tank per year. All such registration fees and the net
proceeds of all fines, penalties and forfeitures collected under
this article including accrued interest shall be paid into the
state treasury into a special fund designated "the underground
storage tank administrative fund" to be used to defray the cost
of administering this article in accordance with regulations
rules promulgated pursuant to section six of this article.
(b) For the year one thousand nine hundred eighty-eight, the
total fee assessed pursuant to subsection (a) of this section
shall be sufficient to assure an initial balance in the
underground storage tank administrative fund not to exceed fifty
thousand dollars at the beginning of the next calendar year. For
the year one thousand nine hundred eighty-nine, the total fee
assessed shall be sufficient to assure an balance in the fund not
to exceed one hundred fifty thousand dollars at the beginning of
the next calendar year. For the year one thousand nine hundred
ninety, the total fee assessed shall be sufficient to assure a
balance in the fund of not to exceed two hundred fifty thousand
dollars at the beginning of the next calendar year. For the year
one thousand nine hundred ninety-one, and each year thereafter,the The total fee assessed shall be sufficient to assure a
balance in the fund of not to exceed four hundred thousand
dollars at the beginning of each subsequent year.
(c) Any amount received pursuant to subsection (a) of this
section which exceeds the annual balance required in subsection
(b) of this section shall be deposited into the leaking
underground storage tank response fund established pursuant to
this article to be used for the purposes set forth therein.
(d) The net proceeds of all fines, penalties and forfeitures
collected under this article shall be appropriated as directed by
article XII, section 5 of the constitution of West Virginia. For
the purposes of this section, the net proceeds of such fines,
penalties and forfeitures are the proceeds remaining after
deducting therefrom those sums appropriated by the Legislature
for defraying the cost of administering this article. In making
the appropriation for defraying the cost of administering this
article, the Legislature shall first take into account the sums
included in such special fund prior to deducting such additional
sums as may be needed from the fines, penalties and forfeitures
collected pursuant to this article. At the end of each fiscal
year any unexpended balance of such collected fines, penalties,
forfeitures and registration fees shall not be transferred to the
general revenue fund but shall remain in the fund.
§22-17-21. 20-5H-21. Leaking underground storage tank response
fund. created
(a) Each underground petroleum storage tank owner withinthis state shall pay an annual fee, if assessed by the director,
to establish a fund to assure adequate response to leaking
underground petroleum storage tanks. The fees assessed pursuant
to this section shall not exceed twenty-five dollars per tank per
year. The proceeds of such assessment shall be paid into the
state treasury into a special fund designated "the leaking
underground storage tank response fund," which is hereby
continued.
(b) Each owner of an underground petroleum storage tank
subject to a fee assessment under subsection (a) of this section
shall pay a fee based on the number of underground petroleum
storage tanks he or she owns. For the year one thousand nine
hundred eighty-eight, the total fee assessed shall be sufficient
to assure a balance of two hundred fifty thousand dollars, taking
into account those amounts deposited in the fund pursuant to
subsection (c), section twenty of this article. For the year one
thousand nine hundred eighty-nine, the total fee assessed shall
be sufficient to assure a balance of five hundred thousand
dollars taking into account those amounts deposited in the fund
pursuant to subsection (c), section twenty of this article. For
subsequent years, the The director shall vary the fees annually
to a level necessary to produce a fund of at least seven hundred
fifty thousand dollars at the beginning of each calendar year
taking into account those amounts deposited in the fund pursuant
to subsection (c), section twenty of this article. In no event
shall the fees assessed in this section be set to producerevenues exceeding two hundred fifty thousand dollars in any
year.
(c) When the unobligated balance of the leaking underground
storage tank response fund exceeds one million dollars at the end
of a calendar year, fee assessment under this section shall cease
until such time as the unobligated balance at the end of any year
is less than seven hundred fifty thousand dollars.
(d) At the end of each fiscal year, any unexpended balance
including accrued interest of such collected fees shall not be
transferred to the general revenue fund but shall remain in the
fund.
(e) The director is authorized to enter into agreements and
contracts and to expend the moneys in the fund for the following
purposes:
(1) Responding to underground petroleum storage tank
releases when, based on readily available information, the
director determines that immediate action may prevent or mitigate
significant risk of harm to human health, safety or the
environment from regulated substances in situations for which no
federal funds are immediately available for such response,
cleanup or containment:
Provided,
That the director shall apply
for and diligently pursue available federal funds for such
releases at the earliest possible time.
(2) Reimbursing any person for reasonable cleanup costs
incurred with the authorization of the director in responding to
an underground petroleum storage tank release.
(3) Reimbursing any person for reasonable costs incurred
with the authorization of the director responding to perceived,
potential or threatened releases from underground petroleum
storage tanks where response activities do not indicate that any
release has occurred.
(4) Financing the nonfederal share of the cleanup and site
reclamation activities pursuant to Subtitle I of the federal
Resource Conservation and Recovery Act, as amended, as well as
future operation and maintenance costs for these sites:
Provided,
That no portion of the moneys in the leaking
underground storage tank response fund shall be used for
defraying the costs of administering this article.
(5) Financing the nonfederal share of costs incurred in
compensating third parties, including payment of judgments, for
bodily injury and property damage, caused by release of petroleum
into the environment from an underground storage tank.
§22-17-22. 20-5H-22. Underground storage tank insurance fund.
(a) The director may establish an underground storage tank
insurance fund for the purpose of satisfying the financial
responsibility requirements established pursuant to section ten
of this article. In addition to the capitalization fee to be
assessed against all owners or operators of underground storage
tanks provided by subdivision (6), subsection (b), section six of
this article, the director shall promulgate rules and regulations
establishing an annual financial responsibility assessment to be
assessed on and paid by owners or operators of undergroundstorage tanks who are unable to obtain insurance or otherwise
meet the financial responsibility requirements established
pursuant to section ten of this article. Such assessments shall
be paid into the state treasury into a special fund designated
"the underground storage tank insurance fund".
(b) At the end of each fiscal year, any unexpended balance
of such assessment shall not be transferred to the general
revenue fund but shall remain in the underground storage tank
insurance fund.
§22-17-23. 20-5H-23. Conflicting provisions. Duplicative
enforcement prohibited.
This article is intended to supplement existing law and it
is not the intention of the Legislature in enacting this article
to repeal, expressly or by implication, any other provision of
this code. In the event that some provision herein is
inconsistent with any other provisions of the code, making it
impossible to comply with both, the provisions of this article
shall control: Provided, That No enforcement proceeding brought
pursuant to this article may be duplicated by an enforcement
proceeding subsequently commenced under some other article of
this code with respect to the same transaction or event unless
such subsequent proceeding involves the violation of a permit or
permitting requirement of such other article.
ARTICLE 5E. 18. HAZARDOUS WASTE MANAGEMENT ACT.
§22-18-1. 20-5E-1. Short title.
This article may be known and cited as the "Hazardous WasteManagement Act."
§22-18-2. 20-5E-2. Declaration of policy.
(a) The Legislature finds that:
(1) Continuing technological progress and increases in the
amount of manufacture and the abatement of air and water
pollution have resulted in ever increasing quantities of
hazardous wastes;
(2) The public health and safety and the environment are
threatened where hazardous wastes are not managed in an
environmentally sound manner;
(3) The knowledge and technology necessary for alleviating
adverse health, environmental and aesthetic impacts resulting
from current hazardous waste management and disposal practices
are generally available;
(4) The manufacture, refinement, processing, treatment and
use of coal, raw chemicals, ores, petroleum, gas and other
natural and synthetic products are activities that make a
significant contribution to the economy of this state; and
(5) The problem of managing hazardous wastes has become a
matter of statewide concern.
(b) Therefore, it is hereby declared that the purposes of
this article are:
(1) To protect the public health and safety, and the
environment from the effects of the improper, inadequate or
unsound management of hazardous wastes;
(2) To establish a program of regulation over the storage,transportation, treatment and disposal of hazardous wastes;
(3) To assure the safe and adequate management of hazardous
wastes within this state; and
(4) To assume regulatory primacy through Subtitle C of the
Resource Conservation and Recovery Act.
§22-18-3. 20-5E-3. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Chief" means the chief of the section of waste
management of the division of natural resources;
(2) (1) "Director" means the director of the division of
natural resources environmental protection or such other person
the director has delegated authority or duties to pursuant to
sections six or eight, article one of this chapter;
(3) (2) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking or placing of any hazardous waste into
or on any land or water so that such hazardous waste or any
constituent thereof may enter the environment or be emitted into
the air, or discharged into any waters, including groundwaters;
(4) (3) "Division" means the division of natural resources
environmental protection;
(5) (4) "Generation" means the act or process of producing
hazardous waste materials;
(6) (5) "Hazardous and Solid Waste Amendments of 1984" means
the federal Hazardous and Solid Waste Amendments of 1984 (P.L.
98-616) amending the Resource Conservation and Recovery Act;
(7) (6) "Hazardous waste" means a waste or combination of
wastes, which because of its quantity, concentration or physical,
chemical or infectious characteristics, may: (A) Cause, or
significantly contribute to, an increase in mortality or an
increase in serious irreversible, or incapacitating reversible,
illness; or (B) pose a substantial present or potential hazard to
human health or the environment when improperly treated, stored,
transported, disposed of or otherwise managed;
(8) (7) "Hazardous waste fuel" means fuel produced from any
hazardous waste identified or listed pursuant to subdivision (2),
subsection (a), section six of this article, or produced from any
hazardous waste identified or listed pursuant to section six;
(9) (8) "Hazardous waste management" means the systematic
control of the collection, source separation, storage,
transportation, processing, treatment, recovery and disposal of
hazardous wastes;
(10) (9) "Land disposal" means any placement of hazardous
waste in a landfill, surface impoundment, waste pile, injection
well, land treatment facility, salt dome formation, salt bed
formation, or underground mine or cave;
(11) (10) "Manifest" means the form used for identifying the
quantity, composition and the origin, routing and destination of
hazardous waste during its transportation from the point of
generation to the point of disposal, treatment or storage;
(12) (11) "Person" means any individual, trust, firm, joint
stock company, public, private or government corporation,partnership, association, state or federal agency, the United
States government, this state or any other state, municipality,
county commission or any other political subdivision of a state
or any interstate body;
(13) (12) "Resource Conservation and Recovery Act" means the
federal Resource Conservation and Recovery Act of 1976, 90 Stat.
2806, as amended;
(14) "Section" means the section of waste management of the
division of natural resources;
(15) "Site work zones" means an exclusion zone, a
decontamination zone, or a clean zone established at a hazardous
waste site before clean-up work begins to prevent or reduce the
movement of contaminants from the site to uncontaminated areas
and to control public, employee and equipment exposure to
hazardous substances:
(A) The exclusion zone is the innermost of the zones and is
where contamination exists.
(B) The decontamination zone is the zone between the
exclusion zone and the clean zone and serves as a transition and
buffer between the contaminated and clean zones to further reduce
the physical transfer of contaminating substances to the public,
employees and equipment.
(C) The clean zone is the outermost of the zones and is
uncontaminated;
(16) (13) "Storage" means the containment of hazardous
waste, either on a temporary basis or for a period of years, insuch a manner as not to constitute disposal of such hazardous
waste;
(17) (14) "Subtitle C" means Subtitle C of the Resource
Conservation and Recovery Act;
(18) (15) "Treatment" means any method, technique or
process, including neutralization, designed to change the
physical, chemical or biological character or composition of any
hazardous waste so as to neutralize such waste or so as to render
such waste nonhazardous, safer for transport, amenable to
recovery, amenable to storage or reduced in volume. Such term
includes any activity or processing designed to change the
physical form or chemical composition of hazardous waste so as to
render it nonhazardous;
(19) (16) "Waste" means any garbage, refuse, sludge from a
waste treatment plant, water supply treatment plant or air
pollution control facility and other discarded material including
solid, liquid, semisolid or contained gaseous material resulting
from industrial, commercial, mining and agricultural operations,
and from community activities, but does not include solid or
dissolved material in domestic sewage, or solid or dissolved
materials in irrigation return flows or industrial discharges
which are point sources subject to permits under Section 402 of
the federal Water Pollution Control Act, as amended, or source,
special nuclear or by-product material as defined by the federal
Atomic Energy Act of 1954, as amended.
§22-18-4. 20-5E-4. Designation of department of natural
resources division of environmental protection as the state
hazardous waste management lead agency.
The department of natural resources division of
environmental protection is hereby designated as the hazardous
waste management lead agency for this state for purposes of
Subtitle C of the Resource Conservation and Recovery Act, and is
hereby authorized to take all action necessary or appropriate to
secure to this state the benefits of said legislation. In
carrying out the purposes of this article, the director is hereby
authorized to cooperate with the federal environmental protection
agency and other agencies of the federal government, this state
and other states, and other interested persons in all matters
relating to hazardous waste management.
§22-18-5. 20-5E-5. Powers and duties of director; integration
with other acts; establishment of study of hazardous waste
management.
(a) In addition to all other powers and duties prescribed in
this article or otherwise by law, and unless otherwise
specifically set forth in this article, the director shall
perform any and all acts necessary to carry out the purposes and
requirements of Subtitle C of the Resource Conservation and
Recovery Act. as of the effective date of this article.
(b) The director shall integrate all provisions of this
article for purposes of administration and enforcement and shall
avoid duplication to the maximum extent practicable, with the
appropriate provisions of: the water pollution control act,article five-a of this chapter; the surface mining and
reclamation act, article six of this chapter; the coal refuse
disposal control act, article six-c of this chapter; the air
pollution control act, article twenty, chapter; sixteen of this
code; the oil and gas laws of article four chapter; twenty-two of
this code; the public health laws, chapter sixteen of this code;
the dam control act, article five-d of this chapter; the
pesticide use and application act of 1975, article sixteen-b,
chapter nineteen of this code; and the pesticide act of 1961,
article sixteen-a, chapter nineteen the public health laws in
chapter sixteen of this code; article sixteen-a, chapter nineteen
of this code; this chapter; and chapters twenty-two-b and twenty-
two-c of this code.
(c) The director may enter into any agreements, including
reimbursement for services rendered, contracts or cooperative
arrangements, under such terms and conditions as he or she deems
appropriate, with other state agencies, educational institutions
or other organizations and individuals as necessary to implement
the provisions of this article.
(d) The director shall cooperate with and may receive and
expend money from the federal government and other sources.
(e) Within twelve months after the effective date of this
article, the director, or upon designation by the director, the
chief, shall conduct and publish a study of hazardous waste
management in this state which shall include, but not be limited
to:
(1) A description of the sources of hazardous waste
generation within the state, including the types and quantities
of such wastes;
(2) A description of current hazardous waste management
practices and costs, including treatment, storage and disposal
within the state; and
(3) An inventory of existing and abandoned hazardous waste
treatment, storage and disposal sites.
(f) The director, or upon designation by the director, the
chief, in preparing the study provided for in subsection (e) of
this section may (1) require any owner or operator of a storage,
treatment or disposal facility, or site, or any transporter or
generator of hazardous wastes to furnish or permit access to any
and all information that may reasonably be required to fulfill
the duty imposed upon him in subsection (e) of this section, and
(2) may issue subpoenas or subpoena duces tecum to compel the
production of information regarding the location of any existing
or abandoned hazardous waste treatment, disposal or storage site
as well as production of information regarding quantity, quality
and hazardous waste management practices from any generator or
transporter of hazardous waste or any owner or operator of an
existing or abandoned hazardous waste treatment, storage or
disposal site.
(g) (e) The director or upon designation by the director,
the chief shall (1) encourage, participate in and conduct an
ongoing investigation and analysis of methods, incentives,technologies of source reduction, reuse, recycling or recovery of
potentially hazardous waste and a strategy for encouraging the
utilization or reduction of hazardous waste, and (2) investigate
the feasibility of operating an information clearinghouse for
hazardous wastes.
(h) (f) The director or upon designation by the director,
the chief shall provide for the continuing education and training
of appropriate department division personnel in matters of
hazardous waste management.
§22-18-6. 20-5E-6. Promulgation of regulations rules by
director.
(a) The director has overall responsibility for the
promulgation of rules and regulations under this article. The
director shall promulgate the following rules, and regulations in
consultation with the department of health and human resources,
the air pollution control commission, the office of emergency
services, the public service commission, the state fire marshal,
the department of public safety, the division of highways, the
department of agriculture, and the water resources environmental
quality board. and the division of energy, offices of mines and
minerals and oil and gas In promulgating and revising such
rules, and regulations the director shall comply with the
provisions of chapter twenty-nine-a of this code, shall avoid
duplication to the maximum extent practicable with the
appropriate provisions of the acts and laws set out in subsection
(b), section five of this article and shall be consistent withbut no more expansive in coverage nor more stringent in effect
than the rules and regulations promulgated by the federal
environmental protection agency pursuant to the Resource
Conservation and Recovery Act:
(1) Rules and regulations establishing a plan for the safe
and effective management of hazardous wastes within the state;
(2) Rules and regulations establishing criteria for
identifying the characteristics of hazardous waste, identifying
the characteristics of hazardous waste and listing particular
hazardous wastes which are subject to the provisions of this
article:
Provided,
That:
(A) Each waste listed below shall, except as provided in
paragraph (B) of this subdivision, be subject only to regulation
under other applicable provisions of federal or state law in lieu
of this article until proclamation by the governor finding that
at least six months have elapsed since the date of submission of
the applicable study required to be conducted under Section 8002
of the federal Solid Waste Disposal Act, as amended, and that
regulations have been promulgated with respect to such wastes in
accordance with Section 3001 (b)(3)(C) of the Resource
Conservation and Recovery Act, and finding in the case of the
wastes identified in subparagraph (iv) of this paragraph that the
regulation of such wastes has been authorized by an act of
Congress in accordance with Section 3001 (b)(2) of the Resource
Conservation and Recovery Act:
(i) Fly ash waste, bottom ash waste, slag waste and flue gasemission control waste generated primarily from the combustion of
coal or other fossil fuels;
(ii) Solid waste from the extraction, beneficiation and
processing of ores and minerals, including phosphate rock and
overburden from the mining of uranium ore;
(iii) Cement kiln dust waste; and
(iv) Drilling fluids, produced waters and other wastes
associated with the exploration, development or production of
crude oil or natural gas or geothermal energy.
(B) Owners and operators of disposal sites for wastes listed
in paragraph (A) of this subdivision may be required by the
director of the division of natural resources through regulation
rule prescribed under authority of this section:
(i) As to disposal sites for such wastes which are to be
closed, to identify the locations of such sites through
surveying, platting or other measures, together with recordation
of such information on the public record, to assure that the
locations where such wastes are disposed of are known and can be
located in the future; and
(ii) To provide chemical and physical analysis and
composition of such wastes, based on available information, to be
placed on the public record;
(3) Rules and regulations establishing such standards
applicable to generators of hazardous waste identified or listed
under this article as may be necessary to protect public health
and safety and the environment, which standards shall establishrequirements respecting: (A) Record-keeping practices that
accurately identify the quantities of such hazardous waste
generated, the constituents thereof which are significant in
quantity or in potential harm to public health or the environment
and the disposition of such wastes; (B) labeling practices for
any containers used for the storage, transport or disposal of
such hazardous waste such as will identify accurately such waste;
(C) use of appropriate containers for such hazardous waste; (D)
furnishing of information on the general chemical composition of
such hazardous wastes to persons transporting, treating, storing
or disposing of such wastes; (E) use of a manifest system and any
other reasonable means necessary to assure that all such
hazardous waste generated is designated for treatment, storage or
disposal in, and arrives at treatment, storage or disposal
facilities (other than facilities on the premises where the waste
is generated) with respect to which permits have been issued
which are required: (i) By this article or any rule and
regulation required by this article to be promulgated; (ii) by
Subtitle C of the Resource Conservation and Recovery Act; (iii)
by the laws of any other state which has an authorized hazardous
waste program pursuant to Section 3006 of the Resource
Conservation and Recovery Act; or (iv) by Title I of the federal
Marine Protection, Research and Sanctuaries Act; and (F) the
submission of reports to the director at such times as the
director deems necessary setting out the quantities of hazardous
wastes identified or listed under this article that the generatorhas generated during a particular time period, and the
disposition of all such hazardous waste;
(4) Rules and regulations establishing such performance
standards applicable to owners and operators of facilities for
the treatment, storage or disposal of hazardous waste identified
or listed under this article as may be necessary to protect
public health and safety and the environment, which standards
shall, where appropriate, distinguish in such standards between
requirements appropriate for new facilities and for facilities in
existence on the date of promulgation of such rules and
regulations and shall include, but need not be limited to,
requirements respecting: (A) Maintaining records of all
hazardous wastes identified or listed under this article which
are treated, stored or disposed of, as the case may be, and the
manner in which such wastes were treated, stored or disposed of;
(B) satisfactory reporting, monitoring and inspection and
compliance with the manifest system referred to in subdivision
(3) of subsection (a) of this section; (C) treatment, storage or
disposal of all such waste received by the facility pursuant to
such operating methods, techniques and practices as may be
satisfactory to the director; (D) the location, design and
construction of such hazardous waste treatment, disposal or
storage facilities; (E) contingency plans for effective action to
minimize unanticipated damage from any treatment, storage or
disposal of any such hazardous waste; (F) the maintenance of
operation of such facilities and requiring such additionalqualifications as to ownership, continuity of operation, training
for personnel and financial responsibility as may be necessary or
desirable; however, no private entity may be precluded by reason
of criteria established under this subsection from the ownership
or operation of facilities providing hazardous waste treatment,
storage or disposal services where such entity can provide
assurances of financial responsibility and continuity of
operation consistent with the degree and duration of risks
associated with the treatment, storage or disposal of specified
hazardous waste; and (G) compliance with the requirements of
section eight of this article respecting permits for treatment,
storage or disposal;
(5) Rules and regulations specifying the terms and
conditions under which the chief shall issue, modify, suspend,
revoke or deny such permits as may be required by this article;
(6) Rules and regulations for the establishment and
maintenance of records; the making of reports; the taking of
samples and the performing of tests and analyses; the installing,
calibrating, operating and maintaining of monitoring equipment or
methods; and the providing of any other information as may be
necessary to achieve the purposes of this article;
(7) Rules and regulations establishing standards and
procedures for the certification of personnel at hazardous waste
treatment, storage or disposal facilities or sites. Provided,
That with respect to clean-up operations at any site work zone at
a hazardous waste site not having a valid treatment, storage ordisposal permit pursuant to section eight of this article, such
rules and regulations shall provide that:
(A) Workers engaged in hazardous waste operation within the
exclusion zone and the decontamination zone shall first have
received a minimum of eighty forty hours of instruction off the
site, and a minimum of three days actual field experience under
the direct supervision of a trained, experienced supervisor.
(B) Equipment operators and transport vehicle operators
engaged in hazardous waste operation within the exclusion zone
and the decontamination zone shall first have received a minimum
of forty hours of training, and a minimum of three days actual
field experience under the direct supervision of a trained,
experienced supervisor.
(C) Supervisors engaged in hazardous waste operation within
the exclusion zone and the decontamination zone shall first have
received as a minimum the same number of hours of instruction as
the workers for whom the supervisor is directly responsible, and
a minimum of three days actual field experience under the direct
supervision of a trained, experienced supervisor;
(8) Rules and regulations for public participation in the
implementation of this article;
(9) Rules and regulations establishing procedures and
requirements for the use of a manifest during the transport of
hazardous wastes;
(10) Rules and regulations establishing procedures and
requirements for the submission and approval of a plan,applicable to owners or operators of hazardous waste storage,
treatment and disposal facilities, as necessary or desirable for
closure of the facility, post-closure monitoring and maintenance,
sudden and accidental occurrences and nonsudden and accidental
occurrences;
(11) Rules and regulations establishing a schedule of fees
to recover the costs of processing permit applications and permit
renewals;
(12) Rules and regulations, including exemptions and
variances, as appropriate: (A) Establishing standards and
prohibitions relating to the management of hazardous waste by
land disposal methods; (B) establishing standards and
prohibitions relating to the land disposal of liquid hazardous
wastes or free liquids contained in hazardous wastes and any
other liquids which are not hazardous wastes; (C) establishing
standards applicable to producers, distributors or marketers of
hazardous waste fuels; (D) establishing such standards relating
to the management of used oil as may be necessary to protect
human health and the environment; (E) establishing such standards
relating to the management of recycled oil as may be necessary to
protect human health and the environment; and (F) (D) as are
otherwise necessary to allow the state to assume primacy for the
administration of the federal hazardous waste management program
under the Resource Conservation and Recovery Act and in
particular, the Hazardous and Solid Waste Amendments of 1984:
Provided,
That such rules and regulations authorized by thissubdivision shall be consistent with but no more expansive in
coverage nor more stringent in effect than rules and regulations
promulgated by the federal environmental protection agency under
Subtitle C; and
[DRAFTER'S NOTE: The following subdivision was formerly §20-
5E-7 (e). The strike-thoughs and underscoring indicate changes
made in that subdivision.
(e) The air pollution control commission, in consultation with
the director, and avoiding inconsistencies with and avoiding
duplication to the maximum extent practicable with rules and
regulations required to be promulgated pursuant to this article
by the director or any other rule-making authority, and in
accordance with the provisions of article twenty, chapter sixteen
and chapter twenty-nine-a of this code, shall promulgate such
legislative (13) Rules: (A) Establishing air pollution
performance standards and permit requirements and procedures as
may be necessary to comply with the requirements of this article
and in accordance with the provisions of article five of this
chapter. Such permits shall be in addition to those permits
required by section eight of this article; All legislative rules
promulgated pursuant to this subsection shall be consistent with
this article.
The commission shall adopt regulations (B) for the
monitoring and control of air emissions at hazardous waste
treatment storage and disposal facilities, including, but not
limited to, open tanks, surface impoundments and landfills, asmay be necessary to protect human health and the environment; and
The commission shall promulgate legislative rules (C)
establishing standards applicable to the owners and operators of
facilities which burn, for purposes of energy recovery, any fuel
produced from any hazardous waste identified or listed pursuant
to subdivision (2), subsection (a) of this section six of this
article or which is produced from any hazardous waste identified
or listed pursuant to subdivision (2), subsection (a) of this
section six of this article and any other material, as may be
necessary to protect human health and the environment:
Provided,
That such legislative rules shall be consistent with Subtitle C.
With respect to this article, and any legislative rules or
regulations promulgated pursuant thereto, the director of the air
pollution control commission has the same enforcement and
inspection powers as those of the chief under sections eleven,
twelve, thirteen, fourteen, fifteen, sixteen and seventeen of
this article : Provided, That no action for penalties may be
initiated by the director of the air pollution control commission
without the approval of that commission. Any person aggrieved or
adversely affected by an order of the director of the air
pollution control commission made and entered in accordance with
to implement or enforce the provisions of this article rules
required by this subdivision or by the failure or refusal of said
director to act within a reasonable time on an application for a
permit or by the issuance or denial of or by the terms and
conditions of a permit granted under the provisions of thisarticle the rules required by this subdivision, may appeal to the
air pollution control commission quality board in accordance with
the procedure set forth in section six article twenty one,
chapter sixteen twenty-two-b of this code, and orders made and
entered by said commission shall be board are subject to judicial
review in accordance with the procedures set forth in section
seven article twenty one, chapter sixteen twenty-two-b of this
code, except that as to cases involving an order granting or
denying an application for a permit, revoking or suspending a
permit or approving or modifying the terms and conditions of a
permit or the failure to act within a reasonable time on an
application for a permit, the petition for judicial review shall
be filed in the circuit court of Kanawha county.
(14) Rules developing performance standards and other
requirements under this section as may be necessary to protect
public health and the environment from any hazard associated with
the management of used oil and recycled oil. The director shall
ensure that such rules do not discourage the recovery or
recycling of used oil. For these purposes, "used oil" shall mean
any oil that has been refined from crude oil, or any synthetic
oil, that has been used and as a result of such use is
contaminated by physical or chemical impurities.
(13) (15) Such other rules and regulations as are necessary
to effectuate the purposes of this article.
(b) The rules and regulations required by this article to be
promulgated shall be reviewed and, where necessary, revised notless frequently than every three years. Additionally, the rules
and regulations required to be promulgated by this article shall
be revised, as necessary, within six months two years of the
effective date of any amendment of the Resource Conservation and
Recovery Act and within six months of the effective date of any
adoption or revision of rules and regulations required to be
promulgated by the Resource Conservation and Recovery Act.
(c) Notwithstanding any other provision in this article, the
director shall not promulgate rules and regulations which are
more properly within the jurisdiction and expertise of any of the
agencies empowered with rule-making authority pursuant to section
seven of this article.
§22-18-7. 20-5E-7. Authority and jurisdiction of other state
agencies.
(a) The commissioner of the division of highways, in
consultation with the director, and avoiding inconsistencies with
and avoiding duplication to the maximum extent practicable with
legislative rules required to be promulgated pursuant to this
article by the director or any other rule-making authority, and
in accordance with the provisions of chapter twenty-nine-a of
this code, shall promulgate, as necessary, legislative rules
governing the transportation of hazardous wastes by vehicle upon
the roads and highways of this state. Such legislative rules
shall be consistent with applicable rules and regulations issued
by the federal department of transportation and consistent with
this article:
Provided,
That such legislative rules shall applyto the interstate transportation of hazardous waste within the
boundaries of this state, as well as the intrastate
transportation of such waste.
In lieu of those enforcement and inspection powers conferred
upon the commissioner of the division of highways elsewhere by
law with respect to the transportation of hazardous waste, the
commissioner of the division of highways has the same enforcement
and inspection powers as those granted to the chief, his
director, or authorized representative or agent, or any
authorized employee or agent of the department of natural
resources division, as the case may be, under sections eleven,
twelve, thirteen, fourteen, fifteen, sixteen, and seventeen and
eighteen of this article. The limitations of this subsection
shall do not affect in any way the powers of the department
division of highways with respect to weight enforcement.
(b) The public service commission, in consultation with the
director, and avoiding inconsistencies with and avoiding
duplication to the maximum extent practicable with rules and
regulations required to be promulgated pursuant to this article
by the director or any other rule-making authority, and in
accordance with the provisions of chapter twenty-nine-a of this
code, shall promulgate, as necessary, rules and regulations
governing the transportation of hazardous wastes by railroad in
this state. Such rules and regulations shall be consistent with
applicable rules and regulations issued by the federal department
of transportation and consistent with this article:
Provided,
That such rules and regulations apply to the interstate
transportation of hazardous waste within the boundaries of this
state, as well as the intrastate transportation of such waste.
In lieu of those enforcement and inspection powers conferred
upon the public service commission elsewhere by law with respect
to the transportation of hazardous waste, the public service
commission has the same enforcement and inspection powers as
those granted to the chief, his director or authorized
representative or agent or any authorized employee or agent of
the department of natural resources division, as the case may be,
under sections eleven, twelve, thirteen, fourteen, fifteen,
sixteen, and seventeen and eighteen of this article.
(c) The rules and regulations required to be promulgated
pursuant to subsections (a) and (b) of this section shall apply
equally to those persons transporting hazardous wastes generated
by others and to those transporting hazardous wastes they have
generated themselves or combinations thereof. Such rules and
regulations shall establish such standards, applicable to
transporters of hazardous waste identified or listed under this
article, as may be necessary to protect public health, safety and
the environment. Such standards shall include, but need not be
limited to, requirements respecting (A) record keeping concerning
such hazardous waste transported, and its source and destination;
(B) transportation of such waste only if properly labeled; (C)
compliance with the manifest system referred to in subdivision
(3), subsection (a), section six of this article; and (D)transportation of all such hazardous waste only to the hazardous
waste treatment, storage or disposal facilities which the shipper
designates on the manifest form to be a facility holding a permit
issued under: (1) This article or any rule and regulation
required by this article to be promulgated; (2) Subtitle C; (3)
the laws of any other state which has an authorized hazardous
waste program pursuant to section 3006 of the Resource
Conservation and Recovery Act; or (4) Title I of the Federal
Marine Protection, Research and Sanctuaries Act.
(d) The secretary of the department of health and human
resources, in consultation with the director, of the division of
natural resources and avoiding inconsistencies with and avoiding
duplication to the maximum extent practicable with legislative
rules required to be promulgated pursuant to this article by the
director of the division of natural resources or any other rule-
making authority, shall promulgate rules pursuant to article
five-j, of this chapter twenty of this code. The secretary of
the department of health and human resources shall have the same
enforcement and inspection powers as those granted to the chief,
his director or authorized representative or agent or any
authorized employee or agent of the division, of natural
resources as the case may be, under sections eleven, twelve,
thirteen, fourteen, fifteen, sixteen, and seventeen and eighteen
of this article, and in addition thereto, the department of
health and human resources shall have those inspection and
enforcement powers with respect to hazardous waste withinfectious characteristics as provided for in article five-j of
this chapter twenty of this code.
(e) The air pollution control commission, in consultation
with the director, and avoiding inconsistencies with and avoiding
duplication to the maximum extent practicable with rules and
regulations required to be promulgated pursuant to this article
by the director or any other rule-making authority, and in
accordance with the provisions of article twenty, chapter,
sixteen and chapter twenty-nine-a of this code, shall promulgate
such legislative rules establishing air pollution performance
standards and permit requirements and procedures as may be
necessary to comply with the requirements of this article. Such
permits shall be in addition to those permits required by section
eight of this article. All legislative rules promulgated
pursuant to this subsection shall be consistent with this
article.
The commission shall adopt regulations for the monitoring
and control of air emissions at hazardous waste treatment storage
and disposal facilities, including, but not limited to, open
tanks, surface impoundments and landfills, as may be necessary to
protect human health and the environment.
The commission shall promulgate legislative rules
establishing standards applicable to the owners and operators of
facilities which burn, for purposes of energy recovery, any fuel
produced from any hazardous waste identified or listed pursuant
to subdivision (2), subsection (a), section six of this articleor which is produced from any hazardous waste identified or
listed pursuant to subdivision (2), subsection (a), section six
of this article and any other material, as may be necessary to
protect human health and the environment: Provided, That such
legislative rules shall be consistent with Subtitle C.
With respect to this article, and any legislative rules or
regulations promulgated pursuant thereto, the director of the air
pollution control commission has the same enforcement and
inspection powers as those of the chief under sections eleven,
twelve, thirteen, fourteen, fifteen, sixteen, and seventeen of
this article: Provided, That no action for penalties may be
initiated by the director of the air pollution control commission
without the approval of that commission. Any person aggrieved or
adversely affected by an order of the director of the air
pollution control commission made and entered in accordance with
the provisions of this article, or by the failure or refusal of
said director to act within a reasonable time on an application
for a permit or by the issuance or denial of or by the terms and
conditions of a permit granted under the provisions of this
article, may appeal to the air pollution control commission in
accordance with the procedure set forth in section six, article
twenty, chapter sixteen of this code, and orders made and entered
by said commission shall be subject to judicial review in
accordance with the procedures set forth in section seven,
article twenty, chapter sixteen of this code, except that as to
cases involving an order granting or denying an application fora permit, revoking or suspending a permit or approving or
modifying the terms and conditions of a permit or the failure to
act within a reasonable time on an application for a permit, the
petition for judicial review shall be filed in the circuit court
of Kanawha County.
(f) The director of the department of natural resources has
exclusive responsibility for carrying out any requirement of this
article with respect to coal mining wastes or overburden for
which a permit is issued under the surface coal mining and
reclamation act of 1980, article six of this chapter.
(g) To the extent that this article relates to activities
with respect to oil and gas wells, liquid injection wells and
waste disposal wells now regulated by articles four, four-b and
seven chapter twenty-two of this code, the administrator of the
office of oil and gas and the shallow gas-well review board has
the jurisdiction with respect to the regulation of such
activities and shall promulgate such rules and regulations as may
be necessary to comply with the requirements of this article:
Provided, That nothing in this subsection may be construed to
diminish or alter the authority and responsibility of the chief
or the water resources board under articles five and five-a of
this chapter.
In lieu of those enforcement and inspection powers conferred
upon the administrator of the office of oil and gas and the
shallow gas-well review board elsewhere by law, with respect to
hazardous wastes, the administrator of the office of oil and gasand the shallow gas-well review board have the same enforcement
and inspection powers as those granted to the chief, his
authorized representative or agent or any authorized employee or
agent of the department of natural resources, as the case may be,
under sections eleven, twelve, thirteen, fourteen, fifteen,
sixteen and seventeen of this article.
(h) (e) The water resources environmental quality board, in
consultation with the director, and avoiding inconsistency with
and avoiding duplication to the maximum extent practicable with
rules and regulations required to be promulgated pursuant to this
article by the director or any other rule-making authority, and
in accordance with the provisions of chapter twenty-nine-a of
this code, shall, as necessary, promulgate legislative rules
water quality standards governing discharges into the waters of
this state of hazardous waste resulting from the treatment,
storage or disposal of hazardous waste as may be required by this
article. Such legislative rules The standards shall be
consistent with this article.
(i) (f) All legislative rules promulgated pursuant to this
section shall be consistent with rules and regulations
promulgated by the federal environmental protection agency
pursuant to the resource conservation and recovery act.
(j) (g) The director shall submit his written comments to
the legislative rule-making review committee regarding all
legislative rules promulgated pursuant to this article.
§22-18-8. 20-5E-8. Permit process; undertaking activities
without a permit.
(a) No person may own, construct, modify, operate or close
any facility or site for the treatment, storage or disposal of
hazardous waste identified or listed under this article, nor
shall any person store, treat or dispose of any such hazardous
waste without first obtaining a permit from the chief director
for such facility, site or activity and all other permits as
required by law. Such permit shall be issued, after public
notice and opportunity for public hearing, upon such reasonable
terms and conditions as the chief director may direct if the
application, together with all supporting information and data
and other evidence establishes that the construction,
modification, operation or closure, as the case may be, of the
hazardous waste facility, site or activity will not violate any
provisions of this article or any of the rules and regulations
promulgated by the director as required by this article:
Provided,
That in issuing the permits required by this
subsection, the chief director shall not regulate those aspects
of a hazardous waste treatment, storage or disposal facility
which are the subject of the permitting or licensing requirements
of; (1) section seven of this article, and which need not be
regulated in order for the chief director to perform his or her
duties under this article; or (2) subdivision (13), subsection
(a), section six of this article, which need not be regulated
under any other provision of this article.
(b) The chief director shall prescribe a form of applicationfor all permits issued by the chief director.
(c) The chief director may require a plan for the closure of
such facility or site to be submitted along with an application
for a permit which plan for closure shall comply in all respects
with the requirements of this article and any rules and
regulations promulgated hereunder. Such plan of closure shall be
is subject to modification upon application by the permit holder
to the chief director and approval of such modification by the
chief director.
(d) An environmental analysis shall be submitted with the
permit application for all hazardous waste treatment, storage or
disposal facilities which are major facilities as that term may
be defined by rules and regulations promulgated by the director:
Provided,
That facilities in existence on the nineteenth day of
November, one thousand nine hundred eighty, need not comply with
this subsection. Such environmental analysis shall contain
information of the type, quality and detail that will permit
adequate consideration of the environmental, technical and
economic factors involved in the establishment and operation of
such facilities:
(1) The portion of the applicant's environmental analysis
dealing with environmental assessments shall contain, but not be
limited to:
(A) The potential impact of the method and route of
transportation of hazardous waste to the site and the potential
impact of the establishment and operation of such facilities onair and water quality, existing land use, transportation and
natural resources in the area affected by such facilities;
(B) A description of the expected effect of such facilities;
and
(C) Recommendations for minimizing any adverse impact.
(2) The portion of the applicant's environmental analysis
dealing with technical and economic assessments shall contain,
but not be limited to:
(A) Detailed descriptions of the proposed site and facility,
including site location and boundaries and facility purpose,
type, size, capacity and location on the site and estimates of
the cost and charges to be made for material accepted, if any;
(B) Provisions for managing the site following cessation of
operation of the facility; and
(C) Qualifications of owner and operation, including a
description of the applicant's prior experience in hazardous
waste management operations.
(e) Any person undertaking, without a permit, any of the
activities for which a permit is required under this section or
under section seven of this article, or any person violating any
term or condition under which a permit has been issued pursuant
to this section or pursuant to section seven of this article,
shall be is subject to the enforcement procedures of this
article.
(f) Notwithstanding any provision to the contrary in
subsections (a) through (e) of this section or section seven ofthis article, any surface coal mining and reclamation operation
that has a permit covering any coal mining wastes or overburden
which has been issued or approved under the surface coal mining
and reclamation act of 1980, article six three of this chapter,
shall be considered to have all necessary permits issued pursuant
to this article with respect to the treatment, storage or
disposal of such wastes or overburden. Rules and regulations
promulgated under this article are not applicable to treatment,
storage or disposal of coal mining wastes and overburden which
are covered by such a permit.
§22-18-9. 20-5E-8a. Corrective action.
(a) All permits issued after the date the state is delegated
authority by the federal environmental protection agency to
administer the portion of the federal hazardous waste program
covered under the Hazardous and Solid Waste Amendments of 1984
shall contain conditions requiring corrective action for all
releases of hazardous waste or constituents from any solid waste
management unit at a treatment, storage or disposal facility
seeking a permit under this article regardless of the time at
which waste was placed in such unit. Permits issued under this
article shall contain schedules of compliance for such corrective
action (where such corrective action cannot be completed prior to
issuance of the permit) and assurances of financial
responsibility for completing such corrective action.
(b) The director shall amend the standards under subdivision
(4), subsection (a), section six of this article, regardingcorrective action required at facilities for the treatment,
storage, or disposal of hazardous waste listed or identified in
rules and regulations promulgated pursuant to subdivision (2),
subsection (a), section six of this article, to require that
corrective action be taken beyond the facility boundary where
necessary to protect human health and the environment unless the
owner or operator of the facility concerned demonstrates to the
satisfaction of the director that, despite the owner or
operator's best efforts, the owner or operator was unable to
obtain the necessary permission to undertake such action. Such
regulations rules shall take effect immediately upon
promulgation, and shall apply to:
(1) All facilities operating under permits issued under
subdivision (4), subsection (a), section six of this article; and
(2) All landfills, surface impoundments and waste pile units
(including any new units, replacement of existing units or
lateral expansions of existing units) which receive hazardous
waste after the twenty-sixth day of July, one thousand nine
hundred eighty-two. Pending promulgation of such regulations
rules the director shall issue corrective action orders for
facilities referred to in subdivisions (1) and (2) above on a
case-by-case basis consistent with the purposes of this
subsection.
§22-18-10. 20-5E-9. Public participation in permit process.
Before the issuing of a permit to any person with respect to
any facility for the treatment, storage or disposal of hazardouswaste under sections seven or eight of this article, the chief
director or other permit issuing authority shall:
(a) Cause to be published as a Class I-O legal advertisement
in a newspaper of general circulation, and the publication area
shall be is the county wherein the real estate or greater portion
thereof is situate, and broadcast over local radio stations
notice of the chief's director's or other permit issuing
authority's intention to issue such permit; and
(b) Transmit written notice of the chief's director's or
other permit issuing authority's intention to issue such permit
to each unit of local government having jurisdiction over the
area in which such facility is proposed to be located and to each
state agency having any authority under state law with respect to
the construction or operation of such facility.
If within forty-five days the chief director or other permit
issuing authority receives written notice of opposition to the
chief's or other permit issuing authority's intention to issue
such permit and a request for a hearing, or if the chief or other
permit issuing authority determines on his or her own initiative,
to have a hearing he or she shall hold an informal public hearing
(including an opportunity for presentation of written and oral
views) on whether he or she should issue a permit for the
proposed facility. Whenever possible the chief or other permit
issuing authority shall schedule such hearing at a location
convenient to the nearest population center to such proposed
facility and give notice in the aforementioned manner of thedate, time and subject matter of such hearing.
§22-18-11. 20-5E-10. Transition program for existing facilities.
Any person who owns or operates a facility required to have
any permit under this article, which facility is was in existence
on the effective date of this article ninth day of July, one
thousand nine hundred eighty-one, shall be treated as having been
issued such permit until such time as final administrative
disposition is made with respect to an application for such
permit:
Provided,
That on the effective date of this article on
said date such facility is operating and continues to operate in
compliance with the interim status requirement of the federal
environmental protection agency established pursuant to section
3005 of the federal Solid Waste Disposal Act, as amended, if
applicable, and in such a manner as will not cause or create a
substantial risk of a health hazard or public nuisance or a
significant adverse effect upon the environment:
Provided,
however,
That the owner or operator of such facility shall make
a timely and complete application for such permit in accordance
with rules and regulations promulgated pursuant to this article
specifying procedures and requirements for obtaining such permit.
§22-18-12. 20-5E-11. Confidential information.
Information obtained by any agency under this article shall
be available to the public unless the chief director certifies
such information to be confidential. The chief director may
make such certification where any person shows, to thesatisfaction of the chief director, that the information or parts
thereof, if made public, would divulge methods, processes or
activities entitled to protection as trade secrets. Nothing in
this section may be construed as limiting the disclosure of
information by the division to any officer, employee or
authorized representative of the state or federal government
concerned with effecting the purposes of this article.
Any person who knowingly and willfully divulges or discloses
any information entitled to protection under this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than five thousand dollars, or imprisoned in the
county jail for not more than six months, or both fined and
imprisoned.
§22-18-13. 20-5E-12. Inspections; right of entry; sampling;
reports and analyses; subpoenas.
(a) The chief director or any authorized representative,
employee or agent of the division, upon the presentation of
proper credentials and at reasonable times, may enter any
building, property, premises, place, vehicle or permitted
facility where hazardous wastes are or have been generated,
treated, stored, transported or disposed of for the purpose of
making an investigation with reasonable promptness to ascertain
the compliance by any person with the provisions of this article
or the rules and regulations promulgated by the director or
permits issued by the chief director hereunder. Nothing contained
in this section eliminates any obligation to follow any processthat may be required by law.
(b) The chief director or his or her authorized
representative, employee or agent shall make periodic inspections
at every permitted facility as necessary to effectively implement
and enforce the requirements of this article or the rules and
regulations promulgated by the director or permits issued by the
chief director hereunder. After an inspection is made, a report
shall be prepared and filed with the chief director and a copy of
such inspection report shall be promptly furnished to the person
in charge of such building, property, premises, place, vehicle or
facility. Such inspection reports shall be available to the
public in accordance with the provisions of article one, chapter
twenty-nine-b of this code.
(c) Whenever the chief director has cause to believe that
any person is in violation of any provision of this article, any
condition of a permit issued by the chief director, any order or
any regulation rule promulgated by the director under this
article, he or she shall immediately order an inspection of the
building, property, premises, place, vehicle or permitted
facility at which the alleged violation is occurring.
(d) The chief director or any authorized representative,
employee or agent of the division may, upon presentation of
proper credentials and at reasonable times, enter any
establishment, building, property, premises, vehicle or other
place maintained by any person where hazardous wastes are being
or have been generated, transported, stored, treated or disposedof to inspect and take samples of wastes, soils, air, surface
water and ground water and samples of any containers or labelings
for such wastes. In taking such samples, the division may
utilize such sampling methods as it determines to be necessary,
including, but not limited to, soil borings and monitoring wells.
If the representative, employee or agent obtains any such
samples, prior to leaving the premises, he or she shall give to
the owner, operator or agent in charge a receipt describing the
sample obtained and, if requested, a portion of each such sample
equal in volume or weight to the portion retained. The division
shall promptly provide a copy of any analysis made to the owner,
operator or agent in charge.
(e) Upon presentation of proper credentials and at
reasonable times, the chief director or any authorized
representative, employee or agent of the division shall be given
access to all records relating to the generation, transportation,
storage, treatment or disposal of hazardous wastes in the
possession of any person who generates, stores, treats,
transports, disposes of, or otherwise handles or has handled such
waste, the chief director or an authorized representative,
employee or agent shall be furnished with copies of all such
records or given the records for the purpose of making copies.
If the chief director, upon inspection, investigation or through
other means, observes or learns of a violation or probable
violation of this article, he or she is authorized to issue
subpoenas and subpoenas duces tecum and to order the attendanceand testimony of witnesses and to compel the production of any
books, papers, documents, manifests and other physical evidence
pertinent to such investigation or inspection.
§22-18-14. 20-5E-13. Monitoring, analysis and testing.
(a) If the chief director determines, upon receipt of any
information, that (1) the presence of any hazardous waste at a
facility or site at which hazardous waste is, or has been,
stored, treated or disposed of, or (2) the release of any such
waste from such facility or site may present a substantial hazard
to human health or the environment, he or she may issue an order
requiring the owner or operator of such facility or site to
conduct such monitoring, testing, analysis and reporting with
respect to such facility or site as the chief director deems
reasonable to ascertain the nature and extent of such hazard.
(b) In the case of any facility or site not in operation at
the time a determination is made under subsection (a) of this
section with respect to the facility or site, if the chief
director finds that the owner of such facility or site could not
reasonably be expected to have actual knowledge of the presence
of hazardous waste at such facility or site and of its potential
for release, he or she may issue an order requiring the most
recent previous owner or operator of such facility or site who
could reasonably be expected to have such actual knowledge to
carry out the actions referred to in subsection (a) of this
section.
(c) An order under subsection (a) or (b) of this sectionshall require the person to whom such order is issued to submit
to the chief director within thirty days from the issuance of
such order a proposal for carrying out the required monitoring,
testing, analysis and reporting. The chief director may, after
providing such person with an opportunity to confer with the
chief director respecting such proposal, require such person to
carry out such monitoring, testing, analysis and reporting in
accordance with such proposal, and such modifications in such
proposal as the chief director deems reasonable to ascertain the
nature and extent of the hazard.
(d) The following duties shall be carried out by the chief
director:
(1) If the chief director determines that no owner or
operator referred to in subsection (a) or (b) of this section is
able to conduct monitoring, testing, analysis or reporting
satisfactory to the chief director, if the chief director deems
any such action carried out by an owner or operator to be
unsatisfactory or if the chief director cannot initially
determine that there is an owner or operator referred to in
subsection (a) or (b) of this section who is able to conduct such
monitoring, testing, analysis or reporting, he or she may conduct
monitoring, testing or analysis (or any combination thereof)
which he or she deems reasonable to ascertain the nature and
extent of the hazard associated with the site concerned, or
authorize a state or local authority or other person to carry out
any such action, and require, by order, the owner or operatorreferred to in subsection (a) or (b) of this section to reimburse
the chief director or other authority or person for the costs of
such activity.
(2) No order may be issued under this subsection requiring
reimbursement of the costs of any action carried out by the chief
director which confirms the results of the order issued under
subsection (a) or (b) of this section.
(e) If the monitoring, testing, analysis and reporting
conducted pursuant to this section indicates that a potential
hazard to human health or the environment may or does exist, the
chief director may issue an appropriate order requiring that the
hazard or risk of hazard be eliminated.
(f) The chief director may commence a civil action against
any person who fails or refuses to comply with any order issued
under this section. Such action shall be brought in the circuit
court in which the defendant is located, resides or is doing
business. Such court has jurisdiction to require compliance with
such order and to assess a civil penalty of not to exceed five
thousand dollars for each day during which such failure or
refusal occurs.
§22-18-15. 20-5E-14. Enforcement orders; hearings.
(a) If the chief director, upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, any permit, order or rules or
regulations issued or promulgated hereunder, he or she may:
(1) Issue an order stating with reasonable specificity thenature of the violation and requiring compliance immediately or
within a specified time. An order under this section includes,
but is not limited to, any or all of the following: Orders
suspending, revoking or modifying permits, orders requiring a
person to take remedial action or cease and desist orders;
(2) Seek an injunction in accordance with subsection (c) of
section sixteen seventeen of this article;
(3) Institute a civil action in accordance with subsection
(c) of section sixteen seventeen of this article; or
(4) Request the attorney general, or the prosecuting
attorney of the county in which the alleged violation occurred,
to bring a criminal action in accordance with section fifteen
sixteen of this article.
(b) Any person issued a cease and desist order may file a
notice of request for reconsideration with the chief director not
more than seven days from the issuance of such order and shall
have a hearing before the chief director contesting the terms and
conditions of such order within ten days of the filing of such
notice of a request for reconsideration. The filing of a notice
of request for reconsideration shall does not stay or suspend the
execution or enforcement of such cease and desist order.
§22-18-16. 20-5E-15. Criminal penalties.
(a) If Any person who knowingly (1) transports any hazardous
waste identified or listed under this article to a facility which
does not have a permit required by this article, Section 3005 of
the Federal Solid Waste Disposal Act, as amended, the laws of anyother state which has an authorized hazardous waste program
pursuant to Section 3006 of the federal Solid Waste Disposal Act,
as amended, or Title I of the federal Marine Protection, Research
and Sanctuaries Act; (2) treats, stores or disposes of any such
hazardous waste either (A) without having obtained a permit
required by this article, or by Title I of the federal Marine
Protection, Research and Sanctuaries Act, or by Section 3005 or
3006 of the federal Solid Waste Disposal Act, as amended, or (B)
in knowing violation of a material condition or requirement of
such permit, he shall be is guilty of a felony, and, upon
conviction thereof, shall be fined not to exceed fifty thousand
dollars for each day of violation or confined in the penitentiary
not less than one nor more than two years, or both such fine and
imprisonment or, in the discretion of the court, be confined in
jail not more than one year in addition to the above fine.
(b) If Any person who knowingly (1) makes any false material
statement or representation in any application, label, manifest,
record, report, permit or other document filed, maintained or
used for purposes of compliance with this article; or (2)
generates, stores, treats, transports, disposes of or otherwise
handles any hazardous waste identified or listed under this
article (whether such activity took place before or takes place
after the effective date of this article) and who knowingly
destroys, alters or conceals any record required to be maintained
under regulations rules promulgated by the director pursuant to
this article, he shall be is guilty of a misdemeanor, and, uponconviction thereof, shall be fined not to exceed twenty-five
thousand dollars, or sentenced to imprisonment for a period not
to exceed one year, or both fined and sentenced to imprisonment
for each violation.
(c) Any person convicted of a second or subsequent violation
of subsections (a) and (b) of this section, shall be is guilty of
a felony, and, upon such conviction, shall be confined in the
penitentiary not less than one nor more than three years, or
fined not more than fifty thousand dollars for each day of
violation, or both such fine and imprisonment.
(d) Any person who knowingly transports, treats, stores or
disposes of any hazardous waste identified or listed pursuant to
this article in violation of subsection (a) of this section, or
having applied for a permit pursuant to subdivision (13),
subsection (a), section six or sections seven and eight of this
article, and knowingly either (1) fails to include in a permit
application any material information required pursuant to this
article, or rules and regulations promulgated hereunder, or (2)
fails to comply with applicable interim status requirements as
provided in section ten eleven of this article and who thereby
exhibits an unjustified and inexcusable disregard for human life
or the safety of others and he or she thereby places another
person in imminent danger of death or serious bodily injury,
shall be is guilty of a felony, and, upon conviction thereof,
shall be fined not more than two hundred fifty thousand dollars
or imprisoned not less than one year nor more than four years orboth such fine and imprisonment.
(e) As used in subsection (d) of this section, the term
"serious bodily injury" means:
(1) Bodily injury which involves a substantial risk of
death;
(2) Unconsciousness;
(3) Extreme physical pain;
(4) Protracted and obvious disfigurement; or
(5) Protracted loss or impairment of the function of a
bodily member, organ or mental faculty.
§22-18-17. 20-5E-16. Civil penalties and injunctive relief.
(a) (1) Any person who violates any provision of this
article, any permit or any rule regulation or order issued
pursuant to this article shall be is subject to a civil
administrative penalty, to be levied by the director, of not more
than seventy-five hundred dollars for each day of such violation,
not to exceed a maximum of twenty-two thousand five hundred
dollars. In assessing any such penalty, the director shall take
into account the seriousness of the violation and any good faith
efforts to comply with applicable requirements as well as any
other appropriate factors as may be established by the director
by rules and regulations promulgated pursuant to this article and
article three, chapter twenty-nine-a of this code. No assessment
shall be levied pursuant to this subsection until after the
alleged violator has been notified by certified mail or personal
service. The notice shall include a reference to the section ofthe statute, rule, regulation, order or statement of permit
conditions that was allegedly violated, a concise statement of
the facts alleged to constitute the violation, a statement of the
amount of the administrative penalty to be imposed and a
statement of the alleged violator's right to an informal hearing.
The alleged violator shall have has twenty calendar days from
receipt of the notice within which to deliver to the director a
written request for an informal hearing. If no hearing is
requested, the notice shall become becomes a final order after
the expiration of the twenty-day period. If a hearing is
requested, the director shall inform the alleged violator of the
time and place of the hearing. The director may appoint an
assessment officer to conduct the informal hearing and then make
a written recommendation to the director concerning the
assessment of a civil administrative penalty. Within thirty days
following the informal hearing, the director shall issue and
furnish to the violator a written decision, and the reasons
therefor, concerning the assessment of a civil administrative
penalty. Within thirty days after notification of the director's
decision, the alleged violator may request a formal hearing
before the water resources environmental quality board in
accordance with the provisions of section nineteen of this
article one, chapter twenty-two-b of this code. The authority to
levy an administrative penalty shall be is in addition to all
other enforcement provisions of this article and the payment of
any assessment shall does not be deemed to affect theavailability of any other enforcement provision in connection
with the violation for which the assessment is levied:
Provided,
That no combination of assessments against a violator under this
section shall exceed twenty-five thousand dollars per day of each
such violation:
Provided, however,
That any violation for which
the violator has paid a civil administrative penalty assessed
under this section shall not be the subject of a separate civil
penalty action under this article to the extent of the amount of
the civil administrative penalty paid. All administrative
penalties shall be levied in accordance with rules and
regulations issued pursuant to subsection (a) of section six of
this article. The net proceeds of assessments collected pursuant
to this subsection shall be deposited in the hazardous waste
emergency response fund established pursuant to section three,
article five-g nineteen of this chapter.
(2) No assessment levied pursuant to subdivision (1),
subsection (a) above shall become becomes due and payable until
the procedures for review of such assessment as set out in said
subsection have been completed.
(b) Any person who violates any provision of this article,
any permit or any rule regulation or order issued pursuant to
this article shall be is subject to a civil penalty not to exceed
twenty-five thousand dollars for each day of such violation,
which penalty shall be recovered in a civil action either in the
circuit court wherein the violation occurs or in the circuit
court of Kanawha county.
(c) The chief director may seek an injunction, or may
institute a civil action against any person in violation of any
provisions of this article or any permit, rule regulation or
order issued pursuant to this article. In seeking an injunction,
it is not necessary for the chief director to post bond nor to
allege or prove at any stage of the proceeding that irreparable
damage will occur if the injunction is not issued or that the
remedy at law is inadequate. An application for injunctive
relief or a civil penalty action under this section may be filed
and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not
been exhausted or invoked against the person or persons against
whom such relief is sought.
(d) Upon request of the chief director, the attorney
general, or the prosecuting attorney of the county in which the
violation occurs, shall assist the chief director in any civil
action under this section.
(e) In any action brought pursuant to the provisions of this
section, the state, or any agency of the state which prevails,
may be awarded costs and reasonable attorney's fees.
§22-18-18. 20-5E-17. Imminent and substantial hazards; orders;
penalties; hearings.
(a) Notwithstanding any provision of this article to the
contrary, the chief director, upon receipt of information, or
upon observation or discovery that the handling, storage,
transportation, treatment or disposal of any hazardous waste maypresent an imminent and substantial endangerment to public
health, safety or the environment, may:
(1) Request the attorney general or the appropriate
prosecuting attorney to commence an action in the circuit court
of the county in which the hazardous condition exists to
immediately restrain any person contributing to such handling,
storage, transportation, treatment or disposal to stop such
handling, storage, transportation, treatment or disposal or to
take such other action as may be necessary; or
(2) Take other action under this section including, but not
limited to, issuing such orders as may be necessary to protect
public health and the environment.
(b) Any person who willfully violates, or fails or refuses
to comply with, any order of the chief director under subsection
(a) of this section may, in an action brought in the appropriate
circuit court to enforce such orders, be fined not more than five
thousand dollars for each day in which such violation occurs or
such failure to comply continues.
§22-18-19. 20-5E-18. Citizen suits; petitions for rule-making;
intervention.
(a) Any person may commence a civil action on his or her own
behalf against any person who is alleged to be in violation of
any provision of this article or any condition of a permit issued
or rules and regulations promulgated hereunder, except that no
action may be commenced under this section prior to sixty days
after the plaintiff has given notice to the appropriateenforcement, permit issuing or rule-making authority and to the
person against whom the action will be commenced, or if the state
has commenced and is diligently prosecuting a civil or criminal
action pursuant to this article:
Provided,
That such person may
commence a civil action immediately upon notification in the case
of an action under subsection (b) of this section. Such actions
may be brought in the circuit court in the county in which the
alleged violation occurs or in the circuit court of Kanawha
county.
(b) Any person may commence a civil action against the
appropriate enforcement, permit issuing or rule-making authority
where there is alleged a failure of such authority to perform any
nondiscretionary duty or act under this article. Such actions
may be brought only in the circuit court of Kanawha county.
(c) Any person may petition the appropriate rule-making
authority for rule-making on an issue arising under this article.
The appropriate rule-making authority, if it believes such issue
to merit rule-making, may commence any studies and investigations
necessary to issue rules and regulations. A decision by the
appropriate rule-making authority not to pursue rule-making must
be set forth in writing with substantial reasons for refusing to
do so.
(d) Nothing in this article may be construed to restrict
restricts any rights of any person or class of persons under
statute or common law.
(e) In issuing any final order in any action broughtpursuant to this section any court with jurisdiction may award
costs of litigation, including reasonable attorney's fees and
expert witnesses fees, to any party whenever the court determines
such award to be appropriate.
(f) Any enforcement, permit issuing or rule-making authority
may intervene as a matter of right in any suit brought under this
section.
(g) Any person may intervene as a matter of right in any
civil action or administrative action instituted under this
article.
(h) Notwithstanding any provision of this article to the
contrary, any person may maintain an action to enjoin a nuisance
against any permit holder or other person subject to the
provisions of this article and may seek damages in said action,
all to the same extent and for all intents and purposes as if
this article were not enacted, if such person maintaining such
action and seeking such damages would otherwise have standing to
maintain such action and be entitled to damages by any other rule
of law.
§22-18-20. 20-5E-19. Appeal to water resources environmental
quality board. notice; hearings; orders.
(a) Any person aggrieved or adversely affected by an order
of the chief director made and entered in accordance with the
provisions of this article, or by the failure or refusal of the
chief director to act within a reasonable time on an application
for a permit or by the issuance or denial of or by the terms andconditions of a permit granted by the chief director under the
provisions of this article, may appeal to the water resources
environmental quality board, in accordance with the provisions of
article one, chapter twenty-two-b of this code. for an order
vacating or modifying such order, or for such order, action or
terms and conditions as such person believes that the chief
should have entered, taken or imposed. The person so appealing
shall be known as the appellant and the chief shall be known as
the appellee.
(b) An appeal shall be perfected by filing a notice of
appeal, on the form prescribed by the water resources board for
such purpose, with such board within thirty days after date upon
which the appellant received the copy of such order or received
such permit, as the case may be. The filing of the notice of
appeal shall not stay or suspend the execution of the order
appealed from. If it appears to the water resources board that
an unjust hardship to the appellant will result from the
execution of the chief's order pending determination of the
appeal, the chief or such board may grant a suspension of such
order and fix its terms. The notice of appeal shall set forth
the order, action or terms and conditions complained of, the
grounds upon which the appeal is based and the action sought by
the appellant. A copy of the notice of appeal shall be filed by
the water resources board with the chief within three days after
the notice of appeal is filed with such board.
(c) Within seven days after receipt of his copy of thenotice of appeal, the chief shall prepare and certify to the
water resources board a complete record of the proceedings out of
which the appeal arises, including all documents and
correspondence in the possession of the chief relating to the
matter in question. With the consent of such board and upon such
terms and conditions as such board may prescribe, any persons
affected by any such activity may by petition intervene as a
party appellant or appellee. The board shall hear the appeal de
novo and evidence may be offered on behalf of the appellant, the
appellee and by any intervenors.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code apply to and govern the hearing on
appeal authorized by this section and the administrative
procedures in connection with and following such hearing, with
like effect as if the provisions of article five were set forth
in extenso in this section, with the following modifications or
exceptions:
(1) Unless the board directs otherwise, the appeal hearing
shall be held in the city of Charleston, Kanawha County; and
(2) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimony
at any such hearing shall be recorded by stenographic notes and
characters or by mechanical means. Such reported testimony in
every appeal hearing under this article shall be transcribed.
(e) Any such appeal hearing shall be conducted by a quorum
of the board but the parties by stipulation may agree to takeevidence before a hearing examiner employed by the board. For the
purpose of conducting such appeal hearing, any member of the
board and the secretary thereof may issue subpoenas and subpoenas
duces tecum in the name of the board, in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code. All subpoenas and subpoenas duces tecum shall be
issued and served within the time and for the fees and shall be
enforced as specified in section one, article five of chapter
twenty-nine-a and all of the provisions of section one dealing
with subpoenas and subpoenas duces tecum shall apply to subpoenas
and subpoenas duces tecum issued for the purpose of an appeal
hearing hereunder.
(f) Any such hearing shall be held within twenty days after
the date upon which the board received the notice of appeal
unless there is a postponement or continuance. The board may
postpone or continue any hearing upon its own motion or upon
application of the appellant, the appellee or any intervenors for
good cause shown. The chief shall be represented at any such
hearing by the attorney general or his assistants, or the chief,
with the written approval of the attorney general, may employ
counsel to represent him. At any such hearing the appellant and
any intervenor may represent himself or be represented by an
attorney-at-law admitted to practice before any circuit court of
this state.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case, the board shall makeand enter an order affirming, modifying or vacating the order of
the chief, or shall make and enter such order as the chief should
have entered, or shall make and enter an order approving or
modifying the terms and conditions of any permit issued or shall
make and enter an order taking such action as the chief should
have taken.
(h) Such order shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
appellant, the appellee, any intervenors and their respective
attorneys of record, if any, in person or by registered or
certified mail.
(i) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,
the appellee and any intervenors of their right to judicial
review. The order of the board is final unless vacated or
modified upon judicial review thereof.
§22-18-21. 20-5E-20. Disclosures required in deeds and leases.
(a) The grantor in any deed or other instrument of
conveyance or any lessor in any lease or other instrument whereby
any real property is let for a period of time shall disclose in
such deed, lease or other instrument the fact that such property
or the subsurface of such property, (whether or not the grantor
or lessor is at the time of such conveyance or lease the owner of
such subsurface) was used for the storage, treatment or disposalof hazardous waste. The provisions of this subsection shall only
apply to those grantors or lessors who owned or had an interest
in the real property when the same or the subsurface thereof was
used for the purpose of storage, treatment or disposal of
hazardous waste or who have actual knowledge that such real
property or the subsurface thereof was used for such purpose or
purposes at any time prior thereto.
(b) Any grantee of real estate or of any substrata
underlying said real estate or any lessee for a term who intends
to use the real estate conveyed or let or any substrata
underlying the same for the purpose of storing, treating or
disposing of hazardous waste shall disclose in writing at the
time of such conveyance or lease or within thirty days prior
thereto such fact to the grantor or lessor of such real estate or
substrata. Such disclosure shall describe the proposed location
upon said property of the site to be used for the storage,
treatment or disposal of hazardous waste, the identity of such
waste, the proposed method of storage, treatment or disposal to
be used with respect to such waste and any and all other
information required by rules and regulations of the director.
§22-18-22. 20-5E-21. Appropriation of funds; hazardous waste
management fund. created
The net proceeds of all fines, penalties and forfeitures
collected under this article shall be appropriated as directed by
Article XII, Section 5 of the constitution of West Virginia.
For the purposes of this section, the net proceeds of such fines,penalties and forfeitures shall be deemed the proceeds remaining
after deducting therefrom those sums appropriated by the
Legislature for defraying the cost of administering this article.
All permit application fees collected under this article shall be
paid into the state treasury into a special fund designated "The
Hazardous Waste Management Fund." In making the appropriation
for defraying the cost of administering this article, the
Legislature shall first take into account the sums included in
such special fund prior to deducting such additional sums as may
be needed from the fines, penalties and forfeitures collected
pursuant to this article.
§22-18-23. 20-5E-22. State program to be consistent with and
equivalent to federal program.
The program for the management of hazardous waste pursuant
to this article shall be equivalent to and consistent with the
federal program established pursuant to Subtitle C of the federal
Solid Waste Disposal Act, as amended.
§22-18-24. 20-5E-23. Conflicting provisions Duplication of
enforcement prohibited.
This article is intended to supplement existing law and it
is not the intention of the Legislature in enacting this article
to repeal, expressly or by implication, any other provision of
this code. In the event that some provision herein is
inconsistent with any other provisions of the code, making it
impossible to comply with both, the provisions of this article
shall control: Provided, That No enforcement proceeding broughtpursuant to this article may be duplicated by an enforcement
proceeding subsequently commenced under some other article of
this code with respect to the same transaction or event unless
such subsequent proceeding involves the violation of a permit or
permitting requirement of such other article.
§22-18-25. 20-5E-24. Financial responsibility provisions.
(1) Financial responsibility required by subdivision (4),
subsection (a), section six of this article may be established in
accordance with regulations rules promulgated by the director by
any one, or any combination, of the following: Insurance,
guarantee, surety bond, letter of credit or qualification as a
self-insurer. In promulgating requirements under this section,
the director is authorized to specify policy or other contractual
terms, conditions or defenses which are necessary or are
unacceptable in establishing such evidence of financial
responsibility in order to effectuate the purposes of this act.
(2) In any case where the owner or operator is in bankruptcy
reorganization, or arrangement pursuant to the federal bankruptcy
code or where (with reasonable diligence) jurisdiction in any
state court or any federal court cannot be obtained over an owner
or operator likely to be solvent at the time of judgment, any
claim arising from conduct for which evidence of financial
responsibility must be provided under this section may be
asserted directly against the guarantor providing such evidence
of financial responsibility. In the case of any action pursuant
to this subsection, such guarantor shall be is entitled to invokeall rights and defenses which would have been available to the
owner or operator if any action had been brought against the
owner or operator by the claimant and which would have been
available to the guarantor if an action had been brought against
the guarantor by the owner or operator.
(3) The total liability of any guarantor shall be is limited
to the aggregate amount which the guarantor has provided as
evidence of financial responsibility to the owner or operator
under this act. Nothing in this subsection shall be construed to
limit limits any other state or federal statutory contractual or
common law liability of a guarantor to its owner or operator
including, but not limited to, the liability of such guarantor
for bad faith either in negotiating or in failing to negotiate
the settlement of any claim. Nothing in this subsection shall be
construed to diminish diminishes the liability of any person
under section 107 or 111 of the Comprehensive Environmental
Response Compensation and Liability Act of 1980 or other
applicable law.
(4) For the purposes of this section, the term "guarantor"
means any person other than the owner or operator who provides
evidence of financial responsibility for an owner or operator
under this section.
ARTICLE 5G. 19. HAZARDOUS WASTE EMERGENCY RESPONSE FUND.
§22-19-1. 20-5G-1. Findings; purpose.
The Legislature recognizes that large quantities of
hazardous waste are generated within the state, and thatemergency situations involving hazardous waste can and will arise
which may present a hazard to human health, safety or the
environment. The Legislature also recognizes that some hazardous
waste has been stored, treated or disposed of at sites in the
state in a manner insufficient to protect human health, safety or
the environment. The Legislature further recognizes that the
federal government has enacted the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, which provides
for federal assistance to respond to hazardous substance
emergencies and to remove and remedy the threat of damage to the
public health or welfare or to the environment, and declares that
West Virginia desires to produce revenue for matching the federal
assistance provided under the federal act. Therefore, the
Legislature hereby creates a hazardous waste emergency fund to
provide state funds for responding to hazardous waste
emergencies, matching federal financial assistance for restoring
hazardous waste sites and other costs or expenses incurred in the
administration of this article.
§22-19-2. 20-5G-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(2) (1) "Cleanup" means such actions as may be necessary to
monitor, assess and evaluate the threat of release of hazardous
waste, the containment, collection, control, identification,
treatment, dispersal, removal or disposal of hazardous waste or
other such actions as may be necessary to respond to hazardouswaste emergencies or to prevent, minimize or mitigate damage to
the public health, safety, welfare or to the environment, and
includes, where necessary, replacement of existing, or provision
of alternative, drinking water supplies that have been
contaminated with hazardous waste as a result of an emergency;
(3) (2) "Cleanup costs" shall mean means all costs incurred
by the director, or with the approval of the director, by any
state agency or person participating in the cleanup of a
hazardous waste emergency or remedial action;
(1) (3) "Generator" means any person, corporation,
partnership, association or other legal entity, by site location,
whose act or process produces hazardous waste as identified or
listed by the director in regulations rules promulgated pursuant
to section six, of such article eighteen of this chapter, in an
amount greater than twelve thousand kilograms per year;
All other terms shall have the meaning as prescribed in the
regulations rules promulgated by the director pursuant to the
provisions of section six, article five-e eighteen of this
chapter.
§22-19-3. 20-5G-3. Creation of Hazardous waste emergency
response fund; components of fund.
(a) A The special fund designated "The Hazardous Waste
Emergency Response Fund," hereinafter referred to as "the fund,"
shall be established continued in the state treasury. on the
first day of July, one thousand nine hundred eighty-four.
(b) All generator fee assessments, any interest or surchargeassessed and collected by the director, interest accruing on
investments and deposits of the fund, and any other moneys
designated shall be paid into the fund.
§22-19-4. 20-5G-4. Fee assessments; tonnage fees; due dates of
payments; interest on unpaid fees.
(a) Each generator of hazardous waste within this state
shall pay a an annual fee based upon the amount of hazardous
waste generated as reported to the director in the generator's
most recent annual report by the generator on a fee assessment
form prescribed by the director submitted pursuant to article
five-e eighteen of this chapter. The director shall establish a
fee schedule according to the following: Full assessment for
generated hazardous waste disposed or treated off-site; ninety
percent of the full assessment for generated hazardous waste
either treated or disposed on-site; seventy-five percent of the
full assessment for generated hazardous waste treated off-site so
that such waste is rendered nonhazardous; and twenty-five percent
of the full assessment for generated hazardous waste treated on-
site so that such waste is rendered nonhazardous:
Provided,
That
the generator fee assessment shall does not apply to the
following: (1) Those wastes listed in paragraph (A), subdivision
two, subsection (a), section six, article five-e eighteen of this
chapter; on the effective date of this article; (2) sludge from
any publicly owned treatment works in the state; (3) any
discharge to waters of the state of hazardous waste pursuant to
a valid water pollution control permit issued under federal orstate law; (4) any hazardous wastes beneficially used or reused
or legitimately recycled or reclaimed; (5) hazardous wastes which
are created or retrieved pursuant to an emergency or remedial
action plan; (6) hazardous wastes whose sole characteristic as a
hazardous waste is based on corrosivity and which are subjected
to on-site elementary neutralization in containers or tanks.
(b) Each generator of hazardous waste within the state
subject to a fee assessment under subsection (a) of this section
shall pay a fee based on its annual tonnage of generated
hazardous waste. For calendar year one thousand nine hundred
eighty-five, the total fees assessed shall be sufficient to
produce revenue of five hundred thousand dollars. At the end of
each fiscal year, Any unexpended balance of such collected fees
shall not be transferred to the general revenue fund, but shall
remain in the fund. For subsequent years, the The director shall
vary the fees annually to a level necessary to produce a fund of
at least one million dollars at the beginning of each calendar
year, but in no event shall the fees established be set to
produce revenue exceeding five hundred thousand dollars in any
year. When the fund's unobligated balance exceeds one million
five hundred thousand dollars at the end of the calendar year,
generator assessments under this article shall cease until such
time as the fund's unobligated balance at the end of any year is
less than one million dollars.
(c) Generator fee assessments shall be are due and payable
to the department of natural resources division of environmentalprotection on the fifteenth day of January, one thousand nine
hundred eighty-five, and each succeeding year thereafter of each
year. Such payments shall be accompanied by information in such
form as the director may prescribe.
(d) If the fees or any portion thereof are not paid by the
date prescribed, interest shall accrue accrues upon the unpaid
amount at the rate of ten percent per annum from the date due
until payment is actually made. Such interest payments shall be
deposited in the fund. If any generator fails to pay the fees
imposed before April one of the year in which the are due, there
shall be is imposed in addition to the fee and interest
determined to be owed a surcharge equivalent to the total amount
of the fee which shall also be collected and deposited in the
fund.
§22-19-5. 20-5G-5. Director's responsibilities; fee schedules;
authorized expenditures; other powers of director;
authorizing civil actions; assistance of attorney general or
prosecuting attorney.
(a) The director shall collect all fees assessed pursuant to
this article and administer the fund. The fee schedule shall be
published in the state register by the first day of August of
each year. Each generator who filed an annual report with the
direction pursuant to article five-e of this chapter the fee
assessment form prescribed by the director shall be notified and
provided with a copy of the fee schedule by certified mail. In
the event the fee schedule is not published by the first day ofAugust, the date prescribed for payment in section four of this
article shall be advanced by the same number of days that the
publication of the fee schedule is delayed. The interest and
surcharge provisions of section four of this article shall be
similarly advanced.
(b) The director is authorized to enter into agreements and
contracts and to expend the moneys in the fund for the following
purposes:
(1) Responding to hazardous waste emergencies when, based on
readily available information, the director determines that
immediate action may prevent or mitigate significant risk of harm
to human health, safety or the environment from hazardous wastes
in situations for which no federal funds are immediately
available for such response clean up or containment:
Provided,
That the director shall apply for and diligently pursue available
federal funds for such emergencies at the earliest possible time:
Provided, however,
That funds shall not be expended under this
subsection to cleanup or contain off-site releases of hazardous
waste which are classified as such only as a result of such
releases;
(2) Reimbursing any person for reasonable clean-up costs
incurred with the authorization of the director in responding to
a hazardous waste emergency pursuant to authorization of the
director;
(3) Financing the nonfederal share of the clean-up and site
reclamation activities pursuant to the federal ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980,
as well as future operation and maintenance costs for these
sites; and
(4) Financing any and all preparations necessary for
responding to hazardous waste activities and emergencies within
the state, including, but not limited to, the purchase or lease
of hazardous waste emergency response equipment:
Provided,
That
after the fifteenth of January, one thousand nine hundred eighty-
seven, no funds shall be expended under this subdivision unless
the fund is greater than one million dollars and any expenditure
will not reduce the fund below one million dollars.
(c) Prior to making expenditures from the fund pursuant to
subdivision (1), (2) or (3), subsection (b) of this section, the
director will make reasonable efforts to secure agreements to pay
the costs of cleanup and remedial actions from owners or
operators of sites or other responsible persons.
(d) The director is authorized to promulgate and revise
rules and regulations in compliance with chapter twenty-nine-a of
this code to implement and effectuate the powers, duties and
responsibilities vested in him or her under this article. Prior
to the assessment of any fees under this article, the director
shall promulgate rules or regulations which account for the
mixture of hazardous and nonhazardous constituents in the
hazardous waste which is generated. The director shall not
assess a fee on the nonhazardous portion, including, but not
limited to, the weight of water.
(e) The director is authorized to recover through civil
action or cooperative agreements with responsible persons the
full amount of any funds expended for purposes enumerated in
subdivision (1), (2) or (3), subsection (b) of this section.
All moneys expended from the fund which are so recovered shall be
deposited in the fund. Any civil action instituted pursuant to
this subsection may be brought in either Kanawha county or the
county in which the hazardous waste emergency occurs or the
county in which remedial action is taken.
(f) The director is authorized to institute a civil action
against any generator for failure to pay any fee assessed
pursuant to this article. Any action instituted against a
generator pursuant to this subsection may be brought in either
Kanawha county or the county in which the generator does
business. The generator shall pay all attorney fees and costs
of such action if the director prevails.
(g) Upon request by the director, the attorney general or
prosecuting attorney for the county in which an action was
brought shall assist the director in any civil action instituted
pursuant to this section and any proceedings relating thereto.
(h) The director is authorized to enter into contracts or
cooperative agreements with the federal government to secure to
the state the benefits of funding for action taken pursuant to
the requirements of the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
(i) The director is authorized to accept gifts, donations,contributions, bequests or devises of money, security or property
for deposit in the fund.
(j) The director is authorized to invest the fund to earn a
reasonable rate of return on the unexpended balance.
§22-19-6. 20-5G-6. State hazardous waste contingency plan.
No later than eighteen months after the effective date of
this article, The director shall promulgate rules or
regulations, in compliance with chapter twenty-nine-a of this
code, establishing a state hazardous waste contingency plan which
shall set forth procedures and standards for responding to
hazardous waste emergencies, for conducting remedial cleanup and
maintenance of hazardous waste sites and for making expenditures
from the fund after the date of promulgation of the plan. The
plan shall include:
(a) Methods for discovering, reporting and investigating
sites at which hazardous waste may present significant risk of
harm to the public health and safety or to the environment;
(b) Methods and criteria for establishing priority responses
and for determining the appropriate extent of clean up,
containment and other measures authorized by this article;
(c) Appropriate roles for governmental, interstate and
nongovernmental entities in effectuating the plan;
(d) Methods for identifying, procuring, maintaining, and
storing hazardous waste response equipment and supplies; and
(e) Methods to identify the most appropriate and cost-
effective emergency and remedial actions in view of the relativerisk or danger presented by each case or event.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 7. 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-1. 22A-7-1. Redesignation of the division of health,
safety and training as Continuation of the office of miners'
health, safety and training; purpose.
The division of health, safety and training of the
department of energy is hereby redesignated the office of miners'
health, safety and training.
(a) The office of miners' health, safety and training shall
be is continued and is a separate office within the department of
commerce, labor and environmental resources. The office shall be
administered, in accordance with the provisions of this article,
under the supervision and direction of the director of the office
of miners' health, safety and training.
(b) The division of health, safety and training shall have
as its purpose the supervision of the execution and enforcement
of the provisions of this chapter and, in carrying out the
aforesaid purposes, it shall give prime consideration to the
protection of the safety and health of persons employed within or
at the mines of this state. In addition, the division shall,
consistent with the aforesaid prime consideration, protect and
preserve mining property and property used in connection
therewith.
[Drafter's note: The underscored language came from §22A-1A-2.]
§22A-1-2. §22A-1A-1. Definitions.
Unless the context in which used clearly requires a
different meaning, the following definitions shall apply to this
chapter:
(a) General.
(1) Accident: The term "accident" means any mine explosion,
mine ignition, mine fire, or mine inundation, or injury to, or
death of any person.
(2) Agent: The term "agent" means any person charged with
responsibility for the operation of all or a part of a mine or
the supervision of the miners in a mine.
(3) Approved: The term "approved" means in strict
compliance with mining law, or, in the absence of law, accepted
by a recognized standardizing body or organization whose approval
is generally recognized as authoritative on the subject.
(4) Commissioner or commissioner of energy: The terms
"commissioner" or "commissioner of energy" means the commissioner
of the department of energy as provided in chapter twenty-two of
this code.
(5) (4) Face equipment: The term "face equipment" shall
mean means mobile or portable mining machinery having electric
motors or accessory equipment normally installed or operated inby
the last open crosscut in an entry or room.
(6) (5) Imminent danger: The term "imminent danger" means
the existence of any condition or practice in a coal mine which
could reasonably be expected to cause death or serious physicalharm before such condition or practice can be abated.
(7) (6) Mine: The term "mine" includes the shafts, slopes,
drifts or inclines connected with, or intended in the future to
be connected with, excavations penetrating coal seams or strata,
which excavations are ventilated by one general air current or
divisions thereof, and connected by one general system of mine
haulage over which coal may be delivered to one or more points
outside the mine, and the surface structures or equipment
connected or associated therewith which contribute directly or
indirectly to the mining, preparation or handling of coal, or
construction thereof.
(8) (7) Miner: The term "miner" means any individual
working in a coal mine.
(9) (8) Operator: The term "operator" means any firm,
corporation, partnership or individual operating any coal mine or
part thereof, or engaged in the construction of any facility
associated with a coal mine.
(10) (9) Permissible: The term "permissible" means any
equipment, device or explosive that has been approved as
permissible by the federal mine safety and health administration
and/or the United States Bureau of Mines and meets all
requirements, restrictions, exceptions, limitations and
conditions attached to such classification by that agency or the
bureau.
(11) (10) Person: The term "person" means any individual,
partnership, association, corporation, firm, subsidiary of acorporation or other organization.
(12) (11) Work of preparing the coal: The term "work of
preparing the coal" means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing and loading of
bituminous coal or lignite, and such other work of preparing such
coal as is usually done by the operator of the coal mine.
(b) Division of Office of miners' health, safety and
training.
(1) Board of appeals: The term "board of appeals" means as
provided for in article five of this chapter. twenty-two of this
code
(2) Division: The term "division" means the state division
of health, safety and training provided for in article one,
section one of this chapter and article one, chapter twenty-two
of this code.
(3) (2) Director: The term "director" means the director of
the division of office of miners' health, safety and training
provided for in section three of this article. one of this
chapter and article one, chapter twenty-two of this code
(4) (3) Mine inspector: The term "mine inspector" means a
state mine inspector provided for in section seven eight of this
article.
(5) (4) Mine inspectors' examining board: The term "mine
inspectors' examining board" shall mean the mine inspectors'
examining board provided for in article eleven nine of this
chapter. twenty-two of this code
(5) Office: The term "office" means, when referring to a
specific office, the office of miners' health, safety and
training provided for in this article. The term "office," when
used generically, includes any office, board, agency, unit,
organizational entity or component thereof.
(c) Mine areas.
(1) Abandoned workings: The term "abandoned workings" means
excavation, either caved or sealed, that is deserted and in which
further mining is not intended, or open workings which are
ventilated and not inspected regularly.
(2) Active workings: The term "active workings" means all
places in a mine that are ventilated and inspected regularly.
(3) Drift: The term "drift" means a horizontal or
approximately horizontal opening through the strata or in a coal
seam and used for the same purposes as a shaft.
(4) Excavations and workings: The term "excavations and
workings" means any or all parts of a mine excavated or being
excavated, including shafts, slopes, drifts, tunnels, entries,
rooms and working places, whether abandoned or in use.
(5) Inactive workings: The term "inactive workings"
includes all portions of a mine in which operations have been
suspended for an indefinite period, but have not been abandoned.
(6) Mechanical working section: The term "mechanical
working section" means an area of a mine (A) in which coal is
loaded mechanically, (B) which is comprised of a number of
working places that are generally contiguous, and (C) which is ofsuch size to permit necessary supervision during shift operation,
including pre-shift and on-shift examinations and tests required
by law.
(7) Panel: The term "panel" means workings that are or have
been developed off of submain entries which do not exceed three
thousand feet in length.
(8) Return air: The term "return air" means a volume of air
that has passed through and ventilated all the working places in
a mine section.
(9) Shaft: The term "shaft" means a vertical opening
through the strata that is or may be used for the purpose of
ventilation, drainage, and the hoisting and transportation of men
individuals and material, in connection with the mining of coal.
(10) Slope: The term "slope" means a plane or incline
roadway, usually driven to a coal seam from the surface and used
for the same purposes as a shaft.
(11) Working face: The term "working face" means any place
in a coal mine in which work of extracting coal from its natural
deposit in the earth is performed during the mining cycle.
(12) Working place: The term "working place" means the area
of a coal mine inby the last open crosscut.
(13) Working section: The term "working section" means all
areas of the coal mine from the loading point of the section to
and including the working faces.
(14) Working unit: The term "working unit" means an area of
a mine in which coal is mined with a set of production equipment;a conventional mining unit by a single loading machine; a
continuous mining unit by a single continuous mining machine,
which is comprised of a number of working places.
(d) Mine personnel.
(1) Assistant mine foreman: The term "assistant mine
foreman" means a certified person designated to assist the mine
foreman in the supervision of a portion or the whole of a mine or
of the persons employed therein.
(2) Certified electrician: The term "certified electrician"
means any person who is qualified as a mine electrician and who
has passed an examination given by the division office, or has at
least three years of experience in performing electrical work
underground in a coal mine, in the surface work areas of an
underground coal mine, in a surface coal mine, in a noncoal mine,
in the mine equipment manufacturing industry, or in any other
industry using or manufacturing similar equipment, and has
satisfactorily completed a coal mine electrical training program
approved by the division office.
(3) Certified person: The term "certified person," when
used to designate the kind of person to whom the performance of
a duty in connection with the operation of a mine shall be
assigned, means a person who is qualified under the provisions of
this law to perform such duty.
(4) Interested persons: The term "interested persons"
includes the operator, members of any mine safety committee at
the mine affected and other duly authorized representatives ofthe mine workers and the department office.
(5) Mine foreman: The term "mine foreman" means the
certified person whom the operator or superintendent shall place
in charge of the inside workings of the mine and of the persons
employed therein.
(6) Qualified person: The term "qualified person" means a
person who has completed an examination and is considered
qualified on record by the division office.
(7) Shot firer: The term "shot firer" means any person
having had at least two years of practical experience in coal
mines, who has a knowledge of ventilation, mine roof and
timbering, and who has demonstrated his or her knowledge of mine
gases, the use of a flame safety lamp, and other approved
detecting devices by examination and certification given him or
her by the division office.
(8) Superintendent: The term "superintendent" means the
person who shall have has, on behalf of the operator, immediate
supervision of one or more mines.
(9) Supervisor: The term "supervisor" means a
superintendent, mine foreman, assistant mine foreman, or any
person specifically designated by the superintendent or mine
foreman to supervise work or employees and who is acting pursuant
to such specific designation and instructions.
(e) Electrical.
(1) Armored cable: The term "armored cable" means a cable
provided with a wrapping of metal, usually steel wires or tapes,primarily for the purpose of mechanical protection.
(2) Borehole cable: The term "borehole cable" means a cable
designed for vertical suspension in a borehole or shaft and used
for power circuits in the mine.
(3) Branch circuit: The term "branch circuit" means any
circuit, alternating current or direct current, connected to and
leading from the main power lines.
(4) Cable: The term "cable" means a standard conductor
(single conductor cable) or a combination of conductors insulated
from one another (multiple conductor cable).
(5) Circuit breaker: The term "circuit breaker" means a
device for interrupting a circuit between separable contacts
under normal or abnormal conditions.
(6) Delta connected: The term "delta connected" means a
power system in which the windings or transformers or a.c.
generators are connected to form a triangular phase relationship,
and with phase conductors connected to each point of the
triangle.
(7) Effectively grounded: The term "effectively grounded"
is an expression which means grounded through a grounding
connection of sufficiently low impedance (inherent or
intentionally added or both) so that fault grounds which may
occur cannot build up voltages in excess of limits established
for apparatus, circuits or systems so grounded.
(8) Flame-resistant cable, portable: The term "flame-
resistant cable, portable" means a portable flame-resistant cablethat has passed the flame tests of the Federal Mine Safety and
Health Administration.
(9) Ground or grounding conductor (mining): The term
"ground or grounding conductor (mining)," also referred to as a
safety ground conductor, safety ground and frame ground, means a
metallic conductor used to connect the metal frame or enclosure
of any equipment, device or wiring system with a mine track or
other effective grounding medium.
(10) Grounded (earthed): The term "grounded (earthed)"
means that the system, circuit or apparatus referred to is
provided with a ground.
(11) High voltage: The term "high voltage" means voltages
of more than one thousand volts.
(12) Lightning arrestor: The term "lightning arrestor"
means a protective device for limiting surge voltage on equipment
by discharging or by passing surge current; it prevents continued
flow of follow current to ground and is capable of repeating
these functions as specified.
(13) Low voltage: The term "low voltage" means up to and
including six hundred sixty volts.
(14) Medium voltage: The term "medium voltage" means
voltages from six hundred sixty-one to one thousand volts.
(15) Mine power center or distribution center: The term
"mine power center or distribution center" means a combined
transformer or distribution unit, complete within a metal
enclosure from which one or more low-voltage power circuits aretaken.
(16) Neutral (derived): The term "neutral (derived)" means
a neutral point or connection established by the addition of a
"zig-zag" or grounding transformer to a normally underground
power system.
(17) Neutral point: The term "neutral point" means the
connection point of transformer or generator windings from which
the voltage to ground is nominally zero, and is the point
generally used for system groundings in wye-connected a.c. power
system.
(18) Portable (trailing) cable: The term "portable
(trailing) cable" means a flexible cable or cord used for
connecting mobile, portable or stationary equipment in mines to
a trolley system or other external source of electric energy
where permanent mine wiring is prohibited or is impracticable.
(19) Wye-connected: The term "wye-connected" means a power
system connection in which one end of each phase windings or
transformers or a.c. generators are connected together to form a
neutral point, and a neutral conductor may or may not be
connected to the neutral point, and the neutral point may or may
not be grounded.
(20) Zig-zag transformer (grounding transformer): The term
"zig-zag transformer (grounding transformer)" means a transformer
intended primarily to provide a neutral point for grounding
purposes.
§22A-1-3. 22A-7-3. Director of the office of miners' health,
safety and training.
(a) The director of the office of miners' health, safety and
training shall be is responsible for surface and underground
safety inspections of coal mines, the administration of the
office of miners' health, safety and training and of such other
matters as are delegated or assigned to the director by the
secretary of the department of commerce, labor and environmental
resources.
(b) The director shall be is the chief executive officer of
the office. Subject to provisions of law, he or she shall
organize the office into such offices, sections, agencies and
other units of activity as may be found by the director to be
desirable for the orderly, efficient and economical
administration of the office. The director may appoint such
other employees needed for the operation of the office and may
prescribe their powers and duties and fix their compensation
within amounts appropriated therefor.
(c) The director shall be appointed by the governor, by and
with the advice and consent of the Senate, and shall serve at the
will and pleasure of the governor:
Provided,
That, in lieu of
appointing a director, the governor may order the secretary to
directly exercise the powers of the director. The secretary
shall designate the order in which other officials of the office
shall act for and perform the functions of the secretary or the
director during the absence or disability of both the secretary
or the director or in the event of vacancies in both of thoseoffices.
(d) The director of the office of miners' health, safety and
training shall be a citizen of West Virginia, shall be a
competent person of good repute and temperate habits with a
demonstrated interest and five years' experience in underground
coal mining and shall have at least three years of experience in
a position of responsible charge in at least one discipline
relating to the duties and responsibilities for which the
director will be responsible upon assumption of the office of
director. Special reference shall be given to his or her
administrative experience and ability. The director shall devote
all of his or her time to the duties of the position of director
and shall not be directly interested financially in any mine in
this or any other state nor shall the director, either directly
or indirectly, be a majority owner of, or have control of or a
controlling interest in, a mine in this or any other state. The
director shall not be a candidate for or hold any other public
office, shall not be a member of any political party committee
and shall immediately forfeit and vacate his or her office as
director in the event he or she becomes a candidate for or
accepts appointment to any other public office or political party
committee.
(e) The director shall receive an annual salary of
sixty-five thousand dollars and shall be allowed and paid
necessary expenses incident to the performance of his or her
official duties. Prior to the assumption of his or her officialduties, the director shall take the oath required of public
officials prescribed by section five, article four of the
constitution of West Virginia and shall execute a bond, with
surety approved by the governor, in the penal sum of ten thousand
dollars, which executed oath and bond shall be filed in the
office of the secretary of state. Premiums on the bond shall be
paid from office funds.
§22A-1-4. 22A-7-4. General Powers and duties of the director of
the office of miners' health, safety and training.
(a) The director of the office of miners' health, safety and
training is hereby empowered and it shall be is his or her duty
to administer and enforce such provisions of articles one-a, two,
five and six of this chapter and chapter twenty-two of this code
relating to health and safety inspections and enforcement and
training in surface and underground coal mines, underground clay
mines, open pit mines, cement manufacturing plants and
underground limestone and sandstone mines. The director of the
office of miners' health, safety and training shall replace the
commissioner of the division of energy and the director of the
division of mines and minerals on those boards as set forth in
articles nine and eleven of chapter twenty-two. The secretary,
or his or her designee, shall replace the commissioner of the
division of energy as chairman of the board of coal mine health
and safety.
§22A-1A-4. Same -- Powers and duties.
(b) The director of the division of office of miners'health, safety and training shall have has full charge of the
division. He shall have The director has the power and duty to:
(1) Supervise and direct the execution and enforcement of
the provisions of this article.
(2) Employ such assistants, clerks, stenographers and other
employees as may be necessary to fully and effectively carry out
his or her responsibilities and fix their compensation, except as
otherwise provided in this article.
(3) Assign mine inspectors hired by the commissioner to
divisions or districts in accordance with the provisions of
section seven eight of this article as may be necessary to fully
and effectively carry out the provisions of this law, including
the training of inspectors for the specialized requirements of
surface mining, shaft and slope sinking and surface installations
and to supervise and direct such mine inspectors in the
performance of their duties.
(4) Suspend, for good cause, any such mine inspector without
compensation for a period not exceeding thirty days in any
calendar year.
(5) Prepare report forms to be used by mine inspectors in
making their findings, orders and notices, upon inspections made
in accordance with this article.
(6) Hear and determine applications made by mine operators
for the annulment or revision of orders made by mine inspectors,
and to make inspections of mines, in accordance with the
provisions of this article.
(7) Cause a properly indexed permanent and public record to
be kept of all inspections made by himself or by mine inspectors.
(8) Make annually a full and complete written report of the
administration of his division to the commissioner the office to
the governor and the Legislature of the state for the year ending
the thirtieth day of June. Such The report shall include the
number of visits and inspections of mines in the state by mine
inspectors, the quantity of coal, coke and other minerals
(excluding oil and gas) produced in the state, the number of men
individuals employed, number of mines in operation, statistics
with regard to health and safety of persons working in the mines
including the causes of injuries and deaths, improvements made,
prosecutions, the total funds of the division office from all
sources identifying each source of such funds, the expenditures
of the division office, the surplus or deficit of the division
office at the beginning and end of the year, the amount of fines
collected, the amount of fines imposed, the value of fines
pending, the number and type of violations found, the amount of
fines imposed, levied and turned over for collection, the total
amount of fines levied but not paid during the prior year, the
titles and salaries of all inspectors and other officials of the
division office, the number of inspections made by each
inspector, the number and type of violations found by each
inspector:
Provided,
That no inspector shall be is identified by
name in this report. Such reports shall be filed with the
commissioner, the governor and the Legislature on or before thethirty-first day of December of the same year for which it was
made, and shall upon proper authority be printed and distributed
to interested persons.
(9) Call or subpoena witnesses, for the purpose of
conducting hearings into mine fires, mine explosions or any mine
accident; to administer oaths and to require production of any
books, papers, records or other documents relevant or material to
any hearing, investigation or examination of any mine permitted
by this chapter. Any witness so called or subpoenaed shall
receive forty dollars per diem and shall receive mileage at the
rate of fifteen cents for each mile actually traveled, which
shall be paid out of the state treasury upon a requisition upon
the state auditor, properly certified by such witness.
(10) Institute civil actions for relief, including permanent
or temporary injunctions, restraining orders, or any other
appropriate action in the appropriate federal or state court
whenever any operator or his the operator's agent violates or
fails or refuses to comply with any lawful order, notice or
decision issued by the director or his or her representative.
(11) Perform all other duties which are expressly imposed
upon him or her by the provisions of this chapter.
(12) Make all records of the division office open for
inspection of interested persons and the public.
(13) In conjunction with the commissioner of the department
of energy, adopt programs, regulations rules and procedures
designed to assist the small coal operator with obtaining permitsand meeting the environmental protection performance standards
for surface and underground coal mining operations within the
state. For the purposes of this subdivision, a small coal
operator is one who is anticipated to mine less than two hundred
thousand tons per year, but the division in determining tonnage
shall consider wholly owned subsidiaries to be the same operation
as the parent corporation.
§22A-1-5. 22A-7-6. Offices transferred to continued in the
office of miners' health, safety and training.
(a) There are hereby transferred to continued in the office
of miners' health, safety and training the following offices:
(1) The board of coal mine health and safety established
pursuant to article six of this chapter; twenty-two of this code
(2) The coal mine safety and technical review committee
established pursuant to article six of this chapter; twenty-two
of this code
(3) The board of miner training, education and certification
established pursuant to article nine seven of this chapter;
twenty-two of this code
(4) The mine inspectors' examining board established
pursuant to article eleven nine of this chapter; twenty-two of
this code and
(5) The board of appeals provided for pursuant to the
provisions of article five of this chapter. twenty-two of this
code
(6) Any and all other offices in the division of health,safety and training of the department of energy.
(b) Nothing in this article may authorize the director or
the secretary of the department of commerce, labor and
environmental resources to alter, discontinue or abolish any
office, board or commission or the functions thereof, which are
established by statute. and transferred pursuant to this article
§22A-1-6. 22A-7-8. Director's authority to promulgate rules.
The director shall have has the power and authority to
propose or promulgate rules and regulations to organize the
office and to carry out and implement the provisions of this
article and articles one-a, two, five and six of this chapter and
chapter twenty-two of this code chapter relating to health and
safety inspections and enforcement. All rules and regulations in
effect on the effective date of this article which pertain to the
provisions of articles one-a, two, five and six of this chapter
and chapter twenty-two of this code as they relate to health and
safety inspection and enforcement shall remain in effect until
changed or superseded by the director, or as appropriate. Except
when specifically exempted by the provisions of this chapter, or
chapter twenty-two of this code all rules or changes thereto
shall be proposed or promulgated by the director in accordance
with the provisions of chapter twenty-nine-a of this code.
§22A-1-7. 22A-7-9. Savings provisions.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses and privileges which have been
issued, made, granted, or allowed to become effective by thegovernor, any state department or agency or official thereof, or
by a court of competent jurisdiction, in the performance of
functions which are were transferred under this article from the
division of energy to the secretary of the department of
commerce, labor and environmental resources, to the director, or
to the office, and which are were in effect on the date such
transfer occurs occurred, shall continue in effect according to
their terms until modified, terminated, superseded, set aside or
revoked in accordance with law by the governor, the secretary,
the director, or other authorized official, a court of competent
jurisdiction or by operation of law.
(b) The provisions of this article shall not affect any
proceedings, including notices of proposed rule making, or any
application for any license, permit, certificate, or financial
assistance pending before any department, division or other
office, functions of which are transferred by this article.
Orders shall be issued in such proceedings, appeals shall be
taken therefrom, and payments shall be made pursuant to such
orders, as if this article had not been enacted; and orders
issued in any such proceedings shall continue in effect until
modified, terminated, superseded, or revoked by the governor, the
secretary, the director, by a court of competent jurisdiction, or
by operation of law. Nothing in this subsection shall be deemed
to prohibit the discontinuance or modification of any such
proceedings under the same terms and conditions and to the same
extent that such proceeding could have been discontinued ormodified if this article had not been enacted. The director is
authorized to propose legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code for the orderly
transfer of proceedings continued under the provisions of this
subsection.
(c) Except as provided in subsection (e) of this section,
the provisions of this article shall not affect suits commenced
prior to the effective date of any transfer of functions or
offices made pursuant to the provisions of this article, and in
all such suits, proceedings shall be had, appeals taken, and
judgments rendered in the same manner with like effect as if this
article had not been enacted.
(d) No suit, action, or other proceeding commenced by or
against any officer in the official capacity of such individual
as an officer of any department, division or other office,
functions of which are transferred pursuant to the provisions of
this article, shall abate by reason of the enactment of this
article. No cause of action by or against any department,
division or other office, functions of which are transferred
pursuant to the provisions of this article, or by or against any
officer thereof in the official capacity of such officer, shall
abate by reason of the enactment of this article.
(e) If, before the transfer of any function or office
pursuant to the provisions of this article, any department,
division or other office, or officer thereof in the official
capacity of such officer, is a party to a suit, and under thisarticle any function of such department, division or other
office, or officer is transferred to the secretary, the director
or other officer of the office, then such suit shall be continued
with the secretary, the director or other appropriate officer
substituted or added as a party.
(f) Orders and actions of the secretary or director in the
exercise of functions transferred under this article shall be
subject to judicial review to the same extent and in the same
manner as if such orders and actions had been by such department,
division or other office, or part thereof, exercising such
functions immediately preceding their transfer. Any statutory
requirement relating to notice, hearings, action upon the record,
or administrative review that apply to any function transferred
pursuant to the provisions of this article shall apply to the
exercise of such function by the secretary, the director or other
officer.
§22A-1-8. 22A-1A-7. Mine inspectors; districts and divisions;
employment; tenure; oath; bond.
Notwithstanding any other provisions of law, mine inspectors
shall be selected, serve and be removed as in this article
provided.
The director shall divide the state into not more than
forty-five mining districts and not more than five mining
divisions, so as to equalize, as far as practical, the work of
each inspector. He The director may assign inspectors to
districts, designate and assign not more than one inspector-at-large to each division and one assistant inspector-at-large. He
The director shall designate the places of abode of inspectors at
points convenient to the mines of their respective districts,
and, in the case of inspectors and assistant inspectors-at-large,
their respective divisions.
Except as in the next preceding paragraph provided, all mine
inspectors appointed after the mine inspectors' examining board
has certified to the commissioner director an adequate register
of qualified eligible candidates in accordance with section
eleven of this article, so long as such register contains the
names of at least three qualified eligible candidates, shall be
appointed from the names on such register. Each original
appointment shall be made by the commissioner director for a
probationary period of not more than one year.
The commissioner director shall make each appointment from
among the three qualified eligible candidates on the register
having the highest grades:
Provided,
That the commissioner
director may, for good cause, at least thirty days prior to
making an appointment, strike any name from the register. Upon
striking any name from the register, the commissioner director
shall immediately notify in writing each member of the mine
inspectors' examining board of his the action, together with a
detailed statement of the reasons therefor. Thereafter, the mine
inspectors' examining board, after hearing, if it finds that the
action of the commissioner director was arbitrary or
unreasonable, may order the name of any candidate so strickenfrom the register to be reinstated thereon. Such reinstatement
shall be is effective from the date of removal from the register.
Any candidate passed over for appointment for three years
shall be automatically stricken from the register.
After having served for a probationary period of one year to
the satisfaction of the commissioner director, a mine inspector
shall have has permanent tenure, subject only to dismissal for
cause in accordance with the provisions of section eleven twelve
of this article. No mine inspector, while in office, shall be
directly or indirectly interested as owner, lessor, operator,
stockholder, superintendent or engineer of any coal mine. Before
entering upon the discharge of his the duties as a mine
inspector, he or she shall take the oath of office prescribed by
the section 5 five, article IV of the constitution of West
Virginia and shall execute a bond in the penalty of two thousand
dollars, with security to be approved by the director,
conditioned upon the faithful discharge of his or her duties, a
certificate of which oath and bond shall be filed in the office
of the secretary of state.
The district inspectors, inspectors-at-large and assistant
inspectors-at-large, together with the director, and the
commissioner shall make all inspections authorized by articles
one-a this article and article two of this chapter and shall
perform such other duties as are imposed upon mine inspectors by
this article and articles one-a, two, and six four and eight of
this chapter. and article ten of chapter twenty-two of this code.
§22A-1-9. 22A-1A-8. Mine safety instructors; qualifications;
employment; compensation; tenure; oath; bond.
The division office shall employ eleven or more mine safety
instructors. To be eligible for employment as a mine safety
instructor, the applicant shall be (1) a citizen of West
Virginia, in good health, not less than twenty-five years of age,
and of good character, reputation and temperate habits, and (2)
a person who has had at least five years' experience in first aid
and mine rescue work and who has had practical experience with
dangerous gases found in coal mines, and who has a practical
knowledge of mines, mining methods, mine ventilation, sound
safety practices and applicable mining laws.
In order to qualify for appointment as a mine safety
instructor, an eligible applicant shall submit to a written and
oral examination, given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by a
safety instructor and may, subject to the approval of the mine
inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that
the applicant (1) is eligible for appointment, and (2) has passed
all oral and written examinations with a grade of at least eighty
percent, the board shall add such applicant's name and grade to
a register of qualified eligible candidates and certify its
action to the commissioner director. The commissioner director
may then appoint one of the candidates from the three having the
highest grades.
The salary for a mine safety instructor shall be not less
than twenty-one thousand six hundred seventy-two dollars per
year, and shall be fixed by the commissioner director, who shall
take into consideration ability, performance of duty and
experience. Such instructor shall devote all of his or her time
to the duties of his the office. No reimbursement for traveling
expenses shall be made except on an itemized accounting for such
expenses submitted by the instructor, who shall verify upon oath
that such expenses were actually incurred in the discharge of his
or her official duties.
Except as expressly provided in this section to the
contrary, all provisions of this article relating to the
eligibility, qualification, appointment, tenure and removal of
mine inspectors shall be are applicable to mine safety
instructors.
§22A-1-10. 22A-1A-9. Mine inspectors may be appointed to fill
vacancy in division.
Notwithstanding any other provisions of law, if a vacancy
occurs in any appointive position within the division office, any
mine inspector having permanent tenure, if qualified, may be
appointed to such appointive position by the commissioner
director.
§22A-1-11. 22A-1A-10. Employment of electrical inspectors;
qualifications; salary and expenses; tenure; oath; bond.
The division office shall employ five or more electrical
inspectors. To be eligible for employment as an electricalinspector, the applicant shall be: (1) A citizen and resident of
West Virginia, in good health, not less than twenty-five years of
age, and of good character, reputation and of temperate habits;
and (2) a person who has had seven years' practical electrical
experience in coal mines, or a degree in electrical engineering
from an accredited electrical engineering school and one year's
practical experience in underground coal mining.
In order to qualify for appointment as a mine electrical
inspector, an eligible applicant shall submit to a written and
oral examination given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by an
electrical inspector. If the board finds after investigation and
examination that the applicant (1) is eligible for appointment
and (2) has passed all oral and written examinations with a grade
of at least ninety percent, the board shall add such applicant's
name and grade to a register of qualified eligible candidates and
certify its action to the commissioner director. The
commissioner director may then appoint one of the candidates from
the three having the highest grade.
The salary of a mine electrical inspector shall be not less
than thirty thousand four hundred eighty dollars per year, and
shall be fixed by the commissioner director, who shall take into
consideration ability, performance of duty and experience. No
reimbursement for traveling expenses shall be made except on an
itemized accounting for such expense submitted by the electrical
inspector, who shall verify upon oath that such expenses wereactually incurred in the discharge of his or her official duties.
Mine electrical inspectors, before entering upon the
discharge of their duties, shall take and subscribe to the oath
and shall execute a bond in the same penal sum, with surety
approved by the director, all as is required by this article in
the case of mine inspectors.
Except as expressly provided in this section to the
contrary, all provisions of this article relating to the
eligibility, qualifications, appointment, tenure and removal of
mine inspectors shall be are applicable to mine electrical
inspectors.
§22A-1-12. 22A-1A-11. Eligibility for appointment as mine
inspector; qualifications; salary and expenses; removal.
(a) No person shall be is eligible for appointment as a mine
inspector unless, at the time of his or her probationary
appointment, he or she (1) is a citizen of West Virginia, in good
health, not less than twenty-four years of age, and of good
character, reputation and temperate habits; (2) has had at least
six years' practical experience in coal mines, at least three
years of which, immediately preceding his or her original
appointment, shall have been in mines of this state:
Provided,
That graduation from any accredited college of mining engineering
shall be considered the equivalent of two years' practical
experience; (3) has had practical experience with dangerous gases
found in coal mines; and (4) has a good theoretical and practical
knowledge of mines, mining methods, mine ventilation, soundsafety practices and applicable mining laws.
(b) In order to qualify for appointment as a mine inspector,
an eligible applicant shall submit to a written and oral
examination by the mine inspectors' examining board and furnish
such evidence of good health, character and other facts
establishing eligibility as the board may require. If the board
finds after investigation and examination that an applicant: (1)
Is eligible for appointment and (2) has passed all written and
oral examinations, with a grade of at least eighty percent, the
board shall add such applicant's name and grade to the register
of qualified eligible candidates and certify its action to the
commissioner director. No candidate's name shall remain in the
register for more than three years without requalifying.
(c) Salaries of district inspectors shall not be less than
twenty-eight thousand fifty-six dollars per year; assistant
inspector-at-large, not less than thirty thousand one hundred
eight dollars per year; inspectors-at-large, not less than
thirty-one thousand five hundred seventy-two dollars per year,
and they shall receive mileage at the rate of not less than
twenty cents for each mile actually traveled in the discharge of
their official duties in a privately owned vehicle. Within the
limits provided by law, the salary of each inspector shall be
fixed by the commissioner director, subject to the approval of
the mine inspectors' examining board. In fixing salaries of mine
inspectors, the commissioner director shall consider ability,
performance of duty and experience. No reimbursement fortraveling expenses shall be made except on an itemized account of
such expenses submitted by the inspector, who shall verify upon
oath, that such expenses were actually incurred in the discharge
of his or her official duties. Every inspector shall be
afforded compensatory time or compensation of at least his or her
regular rate for all time in excess of forty-two hours per week.
(d) Any mine inspector who has fulfilled the requirements of
this section with respect to employment and who has served
satisfactorily as a mine inspector for a minimum period of one
year and who has terminated his or her employment as a mine
inspector, upon successfully passing a physical examination, may
be reinstated as a mine inspector within two years after
terminating his or her employment with the approval of the
examining board and the commissioner director.
(e) A mine inspector, after having received a permanent
appointment, shall be removed from office only for physical or
mental impairment, incompetency, neglect of duty, drunkenness,
malfeasance in office, or other good cause.
Proceedings for the removal of a mine inspector may be
initiated by the director or commissioner whenever there is
reasonable cause to believe that adequate cause exists,
warranting removal. Such a proceeding shall be initiated by a
verified petition, filed with the board by the director, or
commissioner, setting forth with particularity the facts alleged.
Not less than twenty reputable citizens, who are operators or
employees in mines in the state, may petition the director forthe removal of a mine inspector. If such petition is verified
by at least one of the petitioners, based on actual knowledge of
the affiant and alleged facts, which, if true, warrant the
removal of the inspector, the director shall cause an
investigation of the facts to be made. If, after such
investigation, the director finds that there is substantial
evidence, which, if true, warrants removal of the inspector, he
the director shall file a petition with the board requesting
removal of the inspector.
On receipt of a petition by the director or the commissioner
seeking removal of a mine inspector, the board shall promptly
notify the inspector to appear before it at a time and place
designated in said notice, which time shall be not less than
fifteen days thereafter. There shall be attached to the copy of
the notice served upon the inspector a copy of the petition filed
with the board.
At the time and place designated in said notice, the board
shall hear all evidence offered in support of the petition and on
behalf of the inspector. Each witness shall be sworn, and a
transcript shall be made of all evidence taken and proceedings
had at any such hearing. No continuance shall be granted except
for good cause shown. The chairman chair of the board and the
director shall have power to administer oaths and subpoena
witnesses.
Any mine inspector who shall willfully refuse or fail
refuses or fails to appear before the board, or having appeared,shall refuse refuses to answer under oath any relevant question
on the ground that his the testimony or answer might incriminate
him or her or shall refuse refuses to waive immunity from
prosecution on account of any relevant matter about which he the
inspector may be asked to testify at any such hearing before the
board, shall forfeit his or her position.
If, after hearing, the board finds that the inspector should
be removed, it shall enter an order to that effect. The decision
of the board shall be is final and shall is not be subject to
judicial review.
§22A-1-13. 22A-1A-11a. Eligibility for appointment as surface
mine inspector; qualifications; salary and expenses;
removal.
In order to qualify for an appointment as a surface mine
inspector, under the provisions of this article, an eligible
applicant shall have had at least five years' practical
experience in surface mines, at least one year of which,
immediately preceding his or her original appointment, shall have
been in surface mines in this state, and submit to a written and
oral examination given by the mine inspectors' examining board.
The examination shall relate to the duties to be performed by a
surface mine inspector and may, subject to the approval of the
mine inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that
the applicant (1) is eligible for appointment, and (2) has passed
all oral and written examinations with a grade of at least eightypercent, the board shall add such applicant's name and grade to
a register of qualified eligible candidates and certify its
action to the commissioner director. The commissioner director
may then appoint one of the candidates from the three having the
highest grades.
All such appointees shall be citizens of West Virginia, in
good health, not less than twenty-five years of age, of good
character and reputation and temperate in habits. No person
shall be is eligible for permanent appointment as a surface mine
inspector until he or she has served in a probationary status for
a period of one year to the satisfaction of the commissioner
director.
Surface mine inspectors serving as such on the effective
date of this section may continue to serve through their
probationary period, and if eligible as prescribed by this
section, may qualify for appointment during such probationary
period in accordance with the provisions of this section.
However, surface mine inspectors employed on the effective
date of this section and who have served to the satisfaction of
the commissioner for a period of two years or more may continue
to serve on a permanent tenure basis. In the performance of
duties devolving upon surface mine inspectors, they shall be
responsible to the director. of the division of mines and
minerals
The salary of the surface mine inspector supervisor shall be
not less than twenty-four thousand four hundred eighty dollarsper year. Salaries of surface mine inspectors shall be not less
than twenty-one thousand seven hundred eighty dollars per year.
In the discharge of their official duties in privately owned
vehicles, surface mine inspectors and the surface mine inspector
supervisor shall receive mileage at the rate of not less than
twenty cents per mile.
A surface mine inspector, after having received a permanent
appointment, shall be removed from office only for physical or
mental impairment, incompetency, neglect of duty, drunkenness,
malfeasance in office, or other good cause.
§22A-1-14. 22A-1A-12. Commissioner, Director and inspectors
authorized to enter mines; duties of inspectors to examine
mines; no advance notice; reports after fatal accidents.
The commissioner, director, or his or her authorized
representative, shall have has authority to visit, enter, and
examine any mine, whether underground or on the surface, and may
call for the assistance of any district mine inspector or
inspectors whenever such assistance is necessary in the
examination of any mine. The operator of every coal mine shall
furnish the commissioner director or his or her authorized
representative proper facilities for entering such mine and
making examination or obtaining information.
If miners at any time or one of their authorized
representatives, have reason to believe, at any time, that
dangerous conditions are existing or that the law is not being
complied with, they may request the director to have an immediateinvestigation made.
Mine inspectors shall devote their full time and undivided
attention to the performance of their duties, and they shall
examine all of the mines in their respective districts at least
four times annually, and as often, in addition thereto, as the
director may direct, or the necessities of the case or the
condition of the mine or mines may require, with no advance
notice of inspection provided to any person, and they shall make
a personal examination of each working face and all entrances to
abandoned parts of the mine where gas is known to liberate, for
the purpose of determining whether an imminent danger, referred
to in section thirteen fifteen of this article, exists in any
such mine, or whether any provision of article two of this
chapter is being violated or has been violated within the past
forty-eight hours in any such mine.
In addition to the other duties imposed by articles one- a
and this article and article two of this chapter, it shall be is
the duty of each inspector to note each violation he or she finds
and issue a finding, order, or notice, as appropriate for each
violation so noted. During the investigation of any accident,
any violation may be noted whether or not the inspector actually
observes the violation and whether or not the violation exists at
the time the inspector notes the violation, so long as the
inspector has clear and convincing evidence the violation has
occurred or is occurring.
The mine inspector shall visit the scene of each fatalaccident occurring in any mine within his or her district and
shall make an examination into the particular facts of such
accident; make a report to the director, setting forth the
results of such examination, including the condition of the mine
and the cause or causes of such fatal accident, if known, and all
such reports shall be made available to the interested parties,
upon written requests.
At the commencement of any inspection of a coal mine by an
authorized representative of the commissioner director, the
authorized representative of the miners at the mine at the time
of such inspection shall be given an opportunity to accompany the
authorized representative of the commissioner director on such
inspection.
§22A-1-15. 22A-1A-13. Findings, orders and notices.
(a) If, upon any inspection of a coal mine, an authorized
representative of the commissioner director finds that an
imminent danger exists, such representative shall determine the
area throughout which such danger exists, and thereupon shall
issue forthwith an order requiring the operator of the mine or
his the operator's agent to cause immediately all persons, except
those referred to in subdivisions (1), (2), (3) and (4),
subsection (c) of this section, to be withdrawn from and to be
prohibited from entering such area until an authorized
representative of the commissioner director determines that such
imminent danger no longer exists.
All employees on the inside and outside of a mine who areidled as a result of the posting of a withdrawal order by a mine
inspector shall be compensated by the operator at their regular
rates of pay for the period they are idled, but not more than the
balance of such shift. If such order is not terminated prior to
the next working shift, all such employees on that shift who are
idled by such order shall be are entitled to full compensation by
the operator at their regular rates of pay for the period they
are idled, but for not more than four hours of such shift.
(b) If, upon any inspection of a coal mine, an authorized
representative of the commissioner director finds that there has
been a violation of the law, but the violation has not created an
imminent danger, he or she shall issue a notice to the operator
or his the operator's agent, fixing a reasonable time for the
abatement of the violation. If, upon the expiration of the
period of time, as originally fixed or subsequently extended, an
authorized representative of the commissioner director finds that
the violation has not been totally abated, and if he the director
also finds that the period of time should not be further
extended, he the director shall find the extent of the area
affected by the violation and shall promptly issue an order
requiring the operator of such mine or his the operator's agent
to cause immediately all persons, except those referred to in
subdivisions (1), (2), (3) and (4), subsection (c) of this
section, to be withdrawn from, and to be prohibited from entering
such area until an authorized representative of the commissioner
director determines that the violation has been abated.
(c) The following persons shall are not be required to be
withdrawn from or prohibited from entering any area of the coal
mine subject to an order issued under this section:
(1) Any person whose presence in such area is necessary, in
the judgment of the operator or an authorized representative of
the commissioner director, to eliminate the condition described
in the order;
(2) Any public official whose official duties require him or
her to enter such area;
(3) Any representative of the miners in such mine who is, in
the judgment of the operator or an authorized representative of
the commissioner director, qualified to make coal mine
examinations or who is accompanied by such a person and whose
presence in such area is necessary for the investigation of the
conditions described in the order; and
(4) Any consultant to any of the foregoing.
(d) Notices and orders issued pursuant to this section shall
contain a detailed description of the conditions or practices
which cause and constitute an imminent danger or a violation of
any mandatory health or safety standard and, where appropriate,
a description of the area of the coal mine from which persons
must be withdrawn and prohibited from entering.
(e) Each notice or order issued under this section shall be
given promptly to the operator of the coal mine or his the
operator's agent by an authorized representative of the
commissioner director issuing such notice or order, and all suchnotices and orders shall be in writing and shall be signed by
such representative and posted on the bulletin board at the mine.
(f) A notice or order issued pursuant to this section may be
modified or terminated by an authorized representative of the
commissioner director.
(g) Each finding, order, and notice made under this section
shall promptly be given to the operator of the mine to which it
pertains by the person making such finding, order or notice.
§22A-1-16. 22A-1A-14. Powers and duties of electrical
inspectors as to inspections, findings and orders; reports
of electrical inspectors.
In order that the electrical inspector may properly perform
the duties required of him or her, he or she shall devote his or
her whole time and attention to the duties of his the office, and
he shall have the inspector has the right to enter any coal mine
for the purpose of inspecting electrical equipment, and if he or
she finds during his an inspection any defects in the electrical
equipment which are covered by law and may be detrimental to the
lives or health of the workmen, he shall have the inspector has
the authority to order the operator, in writing, to remedy such
defects within a prescribed time, and to prohibit the continued
operation of such electrical equipment after such time, unless
such defects have been corrected.
The electrical inspector shall examine each mine in his or
her division at least once each year or as often as the director
may deem necessary.
It shall be is the duty of the electrical inspector, after
completing his the examination of a mine, to prepare a report
describing his or her findings in said mine in a manner and form
designated by the director. The original report shall be
forwarded to the operator or his the operator's representative
whose duty it shall be is to post it in some conspicuous place
open to examination by any interested person or persons. The
report shall show the date of inspection, a list of equipment,
and any other information that the director may deem necessary.
§22A-1-17. 22A-1A-15. Review of orders and notices by the
commissioner director.
(a) (1) An operator, issued an order pursuant to the
provisions of section thirteen fifteen of this article, or any
representative of miners in any mine affected by such order or by
any modification or termination of such order, may apply to the
commissioner director for review of the order within thirty days
of receipt thereof or within thirty days of its modification or
termination. An operator, issued a notice pursuant to subsection
(b), section thirteen fifteen of this article, or any
representative of miners in any mine affected by such notice,
may, if he the operator believes that the period of the time
fixed in such notice for the abatement of the violation is
unreasonable, apply to the commissioner director for review of
the notice within thirty days of the receipt thereof. The
applicant shall send a copy of such application to the
representative of miners in the affected mine, or the operator,as appropriate. Upon receipt of such application, the
commissioner director shall cause such investigation to be made
as he the director deems appropriate. Such investigation shall
provide an opportunity for a public hearing, at the request of
the operator or the representative of miners in such mine, to
enable the operator and the representative of miners in such mine
to present information relating to the issuance and continuance
of such order or the modification or termination thereof or to
the time fixed in such notice. The filing of an application for
review under this law shall does not operate as a stay of any
order or notice.
(2) The operator and the representative of the miners shall
be given written notice of the time and place of the hearing at
least five days prior to the hearing.
(b) Upon receiving the report of such investigation, the
commissioner director shall make findings of fact, and he shall
issue a written decision, incorporating therein an order
vacating, affirming, modifying or terminating the order, or the
modification or termination of such order, or the notice
complained of and incorporate his findings therein.
(c) In view of the urgent need for prompt decision of
matters submitted to the commissioner director under this law,
all actions which the commissioner director takes under this
section shall be taken as promptly as practicable, consistent
with adequate consideration of the issues involved.
(d) Pending completion of the investigation required by thissection, the applicant may file with the commissioner director a
written request that the commissioner director grant temporary
relief from any modification or termination of any order, or from
any order issued under section thirteen fifteen of this article,
except an order issued under section fourteen sixteen of this
article, together with a detailed statement giving reasons for
granting such relief. The commissioner director may grant such
relief, under such conditions as he or she may prescribe, if:
(1) A hearing has been held in which all parties were given
an opportunity to be heard;
(2) The applicant shows that there is substantial likelihood
that the findings of the commissioner director will be favorable
to the applicant; and
(3) Such relief will not adversely affect the health and
safety of miners in the coal mine.
No temporary relief shall be granted in the case of a notice
issued under section thirteen fifteen of this article.
§22A-1-18. 22A-1A-16. Posting of notices, orders and decisions;
delivery to agent of operator; names and addresses to be
filed by operators.
(a) At each coal mine there shall be maintained an office
with a conspicuous sign designating it as the office of the mine,
and a bulletin board at such office or at some conspicuous place
near an entrance of the mine, in such manner that notices, orders
and decisions required by this law or regulation rule to be
posted on the mine bulletin board may be posted thereon, beeasily visible to all persons desiring to read them, and be
protected against damage by weather and against unauthorized
removal. A copy of any notice, order or decision required by
this law to be given to an operator shall be delivered to the
office of the affected mine, and a copy shall be immediately
posted on the bulletin board of such mine by the operator or his
the operator's agent.
(b) The commissioner director shall cause a copy of any
notice, order or decision required by this law to be given to an
operator to be mailed immediately to a representative of the
miners. Such notice, order or decision shall be available for
public inspection.
(c) In order to ensure prompt compliance with any notice,
order or decision issued under this law, the authorized
representative of the commissioner director may deliver such
notice, order or decision to an agent of the operator and such
agent shall immediately take appropriate measures to ensure
compliance with such notice, order or decision.
(d) Each operator of a coal mine shall file with the
director the name and address of such mine and the name and
address of the person who controls or operates the mine. Any
revisions in such names or addresses shall be promptly filed with
the director. Each operator of a coal mine shall designate a
responsible official at such mine as the principal officer in
charge of health and safety at such mine, and such official shall
receive a copy of any notice, order or decision issued under thislaw affecting such mine. In any case, where the coal mine is
subject to the control of any person not directly involved in the
daily operations of the coal mine, there shall be filed with the
director the name and address of such person and the name and
address of a principal official of such person who shall have has
overall responsibility for the conduct of an effective health and
safety program at any coal mine subject to the control of such
person and such official shall receive a copy of any notice,
order or decision issued affecting any such mine. The mere
designation of a health and safety official under this subsection
shall not be construed as making does not make such official
subject to any penalty under this law.
§22A-1-19. 22A-1A-17. Judicial review.
(a) Any order or decision issued by the commissioner
director under this law, except an order or decision under
section thirteen fifteen of this article shall be is subject to
judicial review by the circuit court of the county in which the
mine affected is located or the circuit court of Kanawha County
upon the filing in such court or with the judge thereof in
vacation of a petition by any person aggrieved by the order or
decision praying that the order or decision be modified or set
aside in whole or in part, except that the court shall not
consider such petition unless such person has exhausted the
administrative remedies available under this law and files within
thirty days from date of such order or decision.
(b) The party making such appeal shall forthwith send a copyof such petition for appeal, by registered mail, to the other
party. Upon receipt of such petition for appeal, the
commissioner director shall promptly certify and file in such
court a complete transcript of the record upon which the order or
decision complained of was issued. The court shall hear such
petition on the record made before the commissioner director.
The findings of the commissioner director, if supported by
substantial evidence on the record considered as a whole, shall
be conclusive. The court may affirm, vacate or modify any order
or decision or may remand the proceedings to the commissioner
director for such further action as it may direct.
(c) In the case of a proceeding to review any order or
decision issued by the commissioner director under this law,
except an order or decision pertaining to an order issued under
subsection (a), section thirteen fifteen of this article or an
order or decision pertaining to a notice issued under subsection
(b), section thirteen fifteen of this article, the court may,
under such conditions as it may prescribe, grant such temporary
relief as it deems appropriate pending final determination of the
proceedings if:
(A) All parties to the proceeding have been notified and
given an opportunity to be heard on a request for temporary
relief;
(B) The person requesting such relief shows that there is a
substantial likelihood that he the person will prevail on the
merits of the final determination of the proceeding; and
(C) Such relief will not adversely affect the health and
safety of miners in the coal mine.
(d) The judgment of the court shall be is subject to review
only by the supreme court of appeals of West Virginia upon a writ
of certiorari filed in such court within sixty days from the
entry of the order and decision of the circuit court upon such
appeal from the commissioner director.
(e) The commencement of a proceeding under this section
shall not, unless specifically ordered by the court, operate as
a stay of the order or decision of the commissioner director.
(f) Subject to the direction and control of the attorney
general, attorneys appointed for the commissioner director may
appear for and represent him the director in any proceeding
instituted under this section.
§22A-1-20. 22A-1A-18. Injunctions.
The commissioner director 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 the county in which the mine is located or the circuit
court of Kanawha County, whenever the operator or his the
operator's agent (a) violates or fails or refuses to comply with
any order or decision issued under this law, or (b) interferes
with, hinders or delays the director or his or her authorized
representative in carrying out the provisions of this law, or (c)
refuses to admit such representatives to the mine, or (d) refuses
to permit the inspection of the mine, or the investigation of anaccident or occupational disease occurring in, or connected with,
such mine, or (e) refuses to furnish any information or report
requested by the director in furtherance of the provisions of
this law, or (f) refuses to permit access to, and copying of,
such records as the director determines necessary in carrying out
the provisions of this law. Each court shall have jurisdiction
to provide such relief as may be appropriate. Except as otherwise
provided herein, any relief granted by the court to enforce an
order under clause (a) of this section shall continue in effect
until the completion or final termination of all proceedings for
review of such order under this law, unless, prior thereto, the
circuit court granting such relief sets it aside or modifies it.
In any action instituted under this section to enforce an order
or decision issued by the commissioner director after a public
hearing, the findings of the commissioner director, if supported
by substantial evidence on the record considered as a whole,
shall be conclusive.
§22A-1-21. 22A-1A-19. Penalties.
(a)(1) Any operator of a coal mine in which a violation
occurs of any health or safety rule or regulation or who violates
any other provisions of this law, shall be assessed a civil
penalty by the commissioner director under subdivision (3) of
this subsection, which penalty shall be not more than three
thousand dollars, for each such violation. Each such violation
shall constitute a separate offense. In determining the amount
of the penalty, the commissioner director shall consider theoperator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
the gravity of the violation and the demonstrated good faith of
the operator charged in attempting to achieve rapid compliance
after notification of a violation.
(2) Any miner who knowingly violates any health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter shall be is subject to a
civil penalty assessed by this the commissioner director under
subdivision (3) of this subsection which penalty shall not be
more than two hundred fifty dollars for each occurrence of such
violation.
(3) A civil penalty shall be assessed by the commissioner
director only after the person charged with a violation under
this chapter or rule or regulation promulgated pursuant to this
chapter has been given an opportunity for a public hearing and
the commissioner director has determined, by a decision
incorporating his findings of fact therein, that a violation did
occur, and the amount of the penalty which is warranted, and
incorporating, when appropriate, an order therein requiring that
the penalty be paid. Any hearing under this section shall be of
record.
(4) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in such
order, the commissioner director shall file a petition for
enforcement of such order in any appropriate circuit court. Thepetition shall designate the person against whom the order is
sought to be enforced as the respondent. A copy of the petition
shall forthwith be sent by certified mail, return receipt
requested, to the respondent and to the representative of the
miners at the affected mine or the operator, as the case may be,
and thereupon the commissioner director shall certify and file in
such court the record upon which such order sought to be enforced
was issued. The court shall have jurisdiction to enter a
judgment enforcing, modifying, and enforcing as so modified, or
setting aside, in whole or in part, the order and decision of the
commissioner director or it may remand the proceedings to the
commissioner director for such further action as it may direct.
The court shall consider and determine de novo all relevant
issues, except issues of fact which were or could have been
litigated in review proceedings before a circuit court under
section eighteen twenty of this article, and upon the request of
the respondent, such issues of fact which are in dispute shall be
submitted to a jury. On the basis of the jury's findings the
court shall determine the amount of the penalty to be imposed.
Subject to the direction and control of the attorney general,
attorneys appointed for the commissioner director may appear for
and represent him the director in any action to enforce an order
assessing civil penalties under this subdivision.
(b) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter, or knowingly violates orfails or refuses to comply with any order issued under section
thirteen fifteen of this article, or any order incorporated in a
final decision issued under this article, except an order
incorporated in a decision under subsection (a) of this section
or subsection (b), section twenty twenty-two of this article,
shall be assessed a civil penalty by the commissioner director
under subdivision (3), subsection (a) of this section, of not
more than five thousand dollars, and for a second or subsequent
violation assessed a civil penalty of not more than ten thousand
dollars.
(c) Whenever a corporate operator knowingly violates a
health or safety provision of this chapter or health or safety
rules or regulations promulgated pursuant to this chapter, or
knowingly violates or fails or refuses to comply with any order
issued under this law or any order incorporated in a final
decision issued under this law, except an order incorporated in
a decision issued under subsection (a) of this section or
subsection (b), section twenty twenty-two of this article, any
director, officer or agent of such corporation who knowingly
authorized, ordered or carried out such violation, failure or
refusal, shall be is subject to the same civil penalties that may
be imposed upon a person under subsections (a) and (b) of this
section.
(d) Whoever knowingly makes any false statement,
representation or certification in any application, record,
report, plan or other document filed or required to be maintainedpursuant to this law or any order or decision issued under this
law, shall be is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in the county jail not more than six months, or both
fined and imprisoned. The conviction of any person under this
subsection shall result in the revocation of any certifications
held by him the person under this chapter which certified him or
authorized him the person to direct other persons in coal mining
by operation of law and shall bar him bars the person from being
issued any such license under this chapter, except a miner's
certification, for a period of not less than one year or for such
longer period as may be determined by the commissioner director.
(e) Whoever willfully distributes, sells, offers for sale,
introduces or delivers in commerce any equipment for use in a
coal mine, including, but not limited to, components and
accessories of such equipment, who willfully misrepresents such
equipment as complying with the provisions of this law, or with
any specification or regulation rule of the commissioner director
applicable to such equipment, and which does not so comply, shall
be is guilty of a misdemeanor, and, upon conviction thereof,
shall be is subject to the same fine and imprisonment that may be
imposed upon a person under subsection (d) of this section.
(f) There is hereby created under the treasury of the state
of West Virginia a special health, safety and training fund. All
civil penalty assessments collected under section nineteen
twenty-one of this article shall be collected by the commissionerdirector and deposited with the treasurer of the state of West
Virginia to the credit of the special health, safety and training
fund. The fund shall be used by the commissioner director and he
or she is authorized to expend the moneys in the fund for the
administration of this chapter. and chapter twenty-two of this
code.
§22A-1-22. 22A-1A-20. Discrimination.
(a) No person shall discharge or in any other way
discriminate against or cause to be discharged or discriminated
against any miner or any authorized representative of miners by
reason of the fact that he the person believes or knows that such
miner or representative (1) has notified the commissioner
director, his or her authorized representative, or an operator,
directly or indirectly, of any alleged violation or danger, (2)
has filed, instituted or caused to be filed or instituted any
proceeding under this law, (3) has testified or is about to
testify in any proceeding resulting from the administration or
enforcement of the provisions of this law. No miner or
representative shall be discharged or in any other way
discriminated against or caused to be discriminated against
because a miner or representative has done (1), (2) or (3) above.
(b) Any miner or a representative of miners who believes
that he or she has been discharged or otherwise discriminated
against, or any miner who has not been compensated by an operator
for lost time due to the posting of a withdrawal order, may,
within thirty days after such violation occurs, apply to theappeals board for a review of such alleged discharge,
discrimination, or failure to compensate. A copy of the
application shall be sent to such person who shall be the
respondent. Upon receipt of such application, the appeals board
shall cause such investigation to be made as it deems
appropriate. Such investigation shall provide an opportunity for
a public hearing at the request of any party to enable the
parties to present information relating to such violation. The
parties shall be given written notice of the time and place of
the hearing at least five days prior to the hearing. Mailing of
the notice of hearing to the charged party at his the party's
last address of record as reflected in the records of the
department of energy shall be deemed office is adequate notice to
the charged party. Such notice shall be by certified mail,
return receipt requested. Any such hearing shall be of record.
Upon receiving the report of such investigation, the board shall
make findings of fact. If it finds that such violation did occur,
it shall issue a decision within forty-five days, incorporating
an order therein, requiring the person committing such violation
to take such affirmative action to abate the violation as the
board deems appropriate, including, but not limited to, the
rehiring or reinstatement of the miner or representative of
miners to his or her former position with back pay, and also pay
compensation for the idle time as a result of a withdrawal order.
If it finds that there was no such violation, it shall issue an
order denying the application. Such order shall incorporate theboard's finding therein. If the proceedings under this section
relative to discharge are not completed within forty-five days of
the date of discharge due to delay caused by the operator, the
miner shall be automatically reinstated until the final
determination. If such proceedings are not completed within
forty-five days of the date of discharge due to delay caused by
the board, then the board may, at its option, reinstate the miner
until the final determination. If such proceedings are not
completed within forty-five days of the date of discharge due to
delay caused by the miner the board shall not reinstate the miner
until the final determination.
(c) Whenever an order is issued under this section, at the
request of the applicant, a sum equal to the aggregate amount of
all costs and expenses including the attorney's fees as
determined by the board to have been reasonably incurred by the
applicant for, or in connection with, the institution and
prosecution of such proceedings, shall be assessed against the
person committing such violation.
§22A-1-23. 22A-1A-21. Records and reports.
In addition to such records as are specifically required by
this law, every operator of a coal mine shall establish and
maintain such records, make such reports, and provide such
information, as the commissioner director may reasonably require
from time to time to enable him the director to perform his or
her functions under this law. The director is authorized to
compile, analyze, and publish, either in summary or detailedform, such reports or information so obtained. Except to the
extent otherwise specifically provided by this law, all records,
information, reports, findings, notices, orders, or decisions
required or issued pursuant to or under this law may be published
from time to time, may be released to any interested person, and
shall be made available for public inspection.
§22A-1-24. 22A-1A-22. Mine foreman examiner for mine foremen-
fire bosses and assistant mine foremen-fire bosses; salary.
The commissioner director shall appoint a mine foreman
examiner to examine and certify mine foremen-fire bosses,
assistant mine foremen-fire bosses and mine examiners or fire
bosses. Such mine foremen examiners shall be paid a minimum
salary of thirty-one thousand thirty-two dollars per year.
§22A-1-25. 22A-1A-23. Duties of mine foreman examiner.
The duties of the mine foreman examiner shall be are to:
(a) Prepare and conduct examinations of mine foremen,
assistant mine foremen and fire bosses;
(b) Prepare and certify to the commissioner director a
register of all persons who successfully completed the
examination with a passing grade of eighty percent.
§22A-1-26. 22A-1A-24. Place and time for examinations.
The director shall determine the location where the mine
foreman examiner shall meet for the purpose of holding
examinations, and at least two weeks' notice of the time and
place where the examinations are to be held shall be given.
The examinations shall be given at any location where there
are at least five men to be tested, and adequate facilities to
conduct such examination. The office of the secretary to the
mine foreman examiner shall be located in the capitol complex in
Charleston. All records pertaining to the examinations shall be
kept at such office.
§22A-1-27. 22A-1A-25. Preparation of examinations; notice of
intention to take examination; investigation of applicants.
The mine foreman examiner shall, with the approval of the
director, prepare, and from time to time, modify examinations to
be administered applicants for certification as mine foremen and
fire bosses.
All persons who desire to appear for examination shall
notify the mine foreman examiner of their intentions to appear,
if possible, not less than ten days prior to the date set for the
examination. The mine foreman examiner shall inquire into the
character and qualifications of the applicants who present
themselves for examination.
§22A-1-28. 22A-1A-26. Certificates of qualification heretofore
granted.
Certificates of qualification of service heretofore granted
shall have equal value with certificates of qualifications
granted under this law.
§22A-1-29. 22A-1A-27. Mine foreman examiner to certify
successful applicants to director.
The mine foreman examiner shall certify to the director, ona form furnished by him the director, every person whose
examination shall disclose his the person's fitness for the
duties of mine foreman, assistant mine foreman, and fire boss, as
above classified, and the director shall prepare certificates of
qualification for the successful applicants and send them to the
mine foreman examiner for distribution.
§22A-1-30. 22A-1A-28. Record of examination.
The mine foreman examiner shall send to the director the
answers and all other papers of the applicants, together with the
tally sheets and a list of the questions and answers as prepared
by the mine foreman examiner which shall be filed in the division
office as public documents.
§22A-1-31. 22A-1A-29. Withdrawal of certification.
(a) Charge of breach of duty. -- A mine inspector or the
director, or the commissioner may charge a mine foreman,
assistant mine foreman, fire boss or any other certified person
with neglect or failure to perform any duty mandated pursuant to
this article one or article two of this chapter. The charge
shall state the name of the person charged, the duty or duties he
or she is alleged to have violated, the approximate date and
place so far as is known of the violation of duty, the capacity
of the person making the charge, and shall be verified on the
basis of information and belief or personal knowledge. The
charge is initiated by filing it with the director or with the
board of appeals. A copy of any charge filed with the board of
appeals or any member thereof, shall be transmitted promptly tothe director. The director shall maintain a file of each charge
and of all related documents which shall be open to the public.
(b) Evaluation of charge by board of appeals. -- Within
twenty days after receipt of the charge the board shall evaluate
the charge and determine whether or not a violation of duty has
been stated. In making such a determination the board shall
evaluate all documents submitted to it by all persons to
determine as nearly as possible the substance of the charge and
if the board of appeals is unable to determine the substance of
the charge it may request the director to investigate the charge.
Upon request, the director shall cause the charge to be
investigated and report the results of the investigation to the
board of appeals within ten days of his the director's receipt of
the charge. If the board determines that probable cause exists
to support the allegation that the person charged has violated
his or her duty, the board by the end of the twenty-day period
shall set a date for hearing which date shall be within eighty
days of the filing of the charge. Notice of the hearing or notice
of denial of the hearing for failure to state a charge and a copy
of the charge shall be mailed by certified mail, return receipt
requested, to the charging party, the charged party, the
commissioner, the director, the representative of the miner or
miners affected, and to any interested person of record.
Thereafter the board shall maintain the file of the charge which
shall contain all documents, testimony and other matters filed
which shall be open for public inspection.
(c) Hearing. -- The board of appeals shall hold a hearing,
may appoint a hearing examiner to take evidence and report to the
board of appeals within the time allotted, may direct or
authorize taking of oral depositions under oath by any
participant, or adopt any other method for the gathering of sworn
evidence which affords the charging party, the charged party, the
director and any interested party of record due process of law
and a fair opportunity to present and make a record of evidence.
Any member of the board shall have the power to administer
oaths. The board may subpoena witnesses and require production
of any books, papers, records, or other documents relevant or
material to the inquiry. The board shall consider all evidence
offered in support of the charge and on behalf of the persons so
charged at the time and place designated in the notice. Each
witness shall be sworn and a transcript shall be made of all
evidence presented in any such hearing. No continuance shall be
granted except for good cause shown.
At the conclusion of the hearing the board shall proceed to
determine the case upon consideration of all the evidence offered
and shall render a decision containing its findings of fact and
conclusions of law. If the board finds by a preponderance of
the evidence that the certificate or certificates of the charged
person should be suspended or revoked, as hereinafter provided,
it shall enter an order to that effect. No renewal of the
certificate shall be granted except as herein provided.
(d) Failure to cooperate. -- Any person charged who shallwithout just cause refuse or fail refuses or fails to appear
before the board or cooperate in the investigation or gathering
of evidence shall forfeit his or her certificate or certificates
for a period to be determined by the board, not to exceed five
years, and such certificate or certificates may not be renewed
except upon a successful completion of the examination prescribed
by the law for mine foremen, assistant mine foremen, fire bosses
or other certified persons.
(e) Penalties. -- The board may suspend or revoke the
certificate or certificates of a charged party for a minimum of
thirty days or more including an indefinite period or may revoke
permanently the certificate or certificates of the charged party,
as it sees fit, subject to the prescribed penalties and monetary
fines imposed elsewhere in this chapter.
(f) Integrity of penalties imposed. -- No person whose
certification is suspended or revoked under this provision can
perform any duties under any other certification issued under
this chapter, twenty-two-a of this code, during the period of the
suspension imposed herein.
(g) Any party adversely affected by a final order or
decision issued by the board hereunder shall be is entitled to
judicial review thereof pursuant to section four, article five,
chapter twenty-nine-a of this code.
§22A-1-32. 22A-1A-30. Certification of mine foreman or
assistant mine foreman whose license to engage in similar
activities suspended in another state.
Any person whose license, certificate or similar authority
to perform any supervisory or fire boss duties in another state
has been suspended or revoked by that state cannot be certified
under any provision of this chapter during the period of such
suspension or revocation in the other state.
§22A-1-33. 22A-1A-31. Mine rescue stations; equipment.
The director is hereby authorized to purchase, equip and
operate for the use of said division office such mine rescue
stations and equipment as he or she may deem necessary.
§22A-1-34. 22A-1A-32. Mine rescue crews.
The director is hereby authorized to have trained and
employed at the rescue stations, operated by the division office
within the state, such rescue crews as he or she may deem
necessary. Each member of a rescue crew shall devote four hours
each month for training purposes and shall be available at all
times to assist in rescue work at explosions and mine fires.
Regular members shall receive for such services the sum of
thirty-two dollars per month, and captains shall receive thirty-
five dollars per month, payable on requisition approved by the
director. The director may remove any member of a rescue crew at
any time.
§22A-1-35. 22A-1A-33. Mine rescue teams.
(a) It shall be is the responsibility of the operator to
provide mine rescue coverage at each active underground mine.
(b) Mine rescue coverage may be provided by:
(1) Establishing at least two mine rescue teams which areavailable at all times when miners are underground; or
(2) Entering into an arrangement for mine rescue services
which assures that at least two mine rescue teams are available
at all times when miners are underground.
(c) As used in this section, mine rescue teams shall be
considered available where teams are capable of presenting
themselves at the mine site(s) within a reasonable time after
notification of an occurrence which might require their services.
Rescue team members will be considered available even though
performing regular work duties or while in an off-duty capacity.
The requirement that mine rescue teams be available shall does
not apply when teams are participating in mine rescue contests or
providing rescue services to another mine.
(d) In the event of a fire, explosion or recovery operations
in or about any mine, the director is hereby authorized to assign
any mine rescue team to said mine to protect and preserve life
and property. The director may also assign mine rescue and
recovery work to inspectors, instructors or other qualified
employees of the division office as he or she deems necessary.
(e) The ground travel time between any mine rescue station
and any mine served by that station shall not exceed two hours.
To ensure adequate rescue coverage for all underground mines, no
mine rescue station may provide coverage for more than seventy
mines within the two-hour ground travel limit as defined in this
subsection.
(f) Each mine rescue team shall consist of five members andone alternate, who are fully qualified, trained and equipped for
providing emergency mine rescue service. Each mine rescue team
shall be trained by a state certified mine rescue instructor.
(g) Each member of a mine rescue team must have been
employed in a underground mine for a minimum of one year. For
the purpose of mine rescue work only, miners who are employed on
the surface but work regularly underground meet the experience
requirement. The underground experience requirement is waived
for those members of a mine rescue team on the effective date of
this statute.
(h) An applicant for initial mine rescue training must not
have reached his or her fiftieth birthday, and shall pass, on at
least an annual basis, a physical examination by a licensed
physician certifying his or her fitness to perform mine rescue
work. A record that such examination was taken, together with
pertinent data relating thereto, shall be kept on file by the
operator and a copy shall be furnished to the director.
(i) Upon completion of the initial training, all mine rescue
team members shall receive at least forty hours of refresher
training annually. This training shall be given at least four
hours each month, or for a period of eight hours every two
months, and shall include:
(1) Sessions underground at least once every six months;
(2) The wearing and use of a breathing apparatus by team
members for a period of at least two hours, while under oxygen,
once every two months;
(3) Where applicable, the use, care, capabilities and
limitations of auxiliary mine rescue equipment, or a different
breathing apparatus;
(4) Mine map training and ventilation procedures.
(j) When engaged in rescue work required by an explosion,
fire or other emergency at a mine, all members of mine rescue
teams assigned to rescue operations shall, during the period of
their rescue work, be employees of the operator of the mine where
the emergency exists, and shall be compensated by the operator at
the rate established in the area for such work. In no case shall
this rate be less than the prevailing wage rate in the industry
for the most skilled class of inside mine labor. During the
period of their emergency employment, members of mine rescue
teams shall be protected by the workers' compensation
subscription of such emergency employer.
(k) During the recovery work and prior to entering any mine
at the start of each shift, all rescue or recovery teams shall be
properly informed of existing conditions and work to be performed
by the designated company official in charge.
(1) For every two teams performing rescue or recovery work
underground, one six-member team shall be stationed at the mine
portal.
(2) Each rescue or recovery team performing work with a
breathing apparatus shall be provided with a backup team of equal
number, stationed at each fresh air base.
(3) Two-way communication and a lifeline or its equivalentshall be provided at each fresh air base for all mine rescue or
recovery teams and no mine rescue team member shall advance more
than one thousand feet inby the fresh air base:
Provided,
That
if a life may possibly be saved and existing conditions do not
create an unreasonable hazard to mine rescue team members, the
rescue team may advance a distance agreed upon by those persons
directing the mine rescue or recovery operations:
Provided,
however,
That a lifeline or its equivalent shall be provided in
each fresh air base for all mine rescue or recovery teams.
(4) A rescue or recovery team shall immediately return to
the fresh air base when the atmospheric pressure of any member's
breathing apparatus depletes to sixty atmospheres, or its
equivalent.
(l) Mine rescue stations shall provide a centralized storage
location for rescue equipment. This storage location may be
either at the mine site, affiliated mines or a separate mine
rescue structure. All mine rescue teams shall be guided by the
mine rescue apparatus and auxiliary equipment manual. Each mine
rescue station shall be provided with at least the following
equipment:
(1) Twelve self-contained oxygen breathing apparatuses, each
with a minimum of two hours capacity, and any necessary equipment
for testing such breathing apparatuses;
(2) A portable supply of liquid air, liquid oxygen,
pressurized oxygen, oxygen generating or carbon dioxide absorbent
chemicals, as applicable to the supplied breathing apparatusesand sufficient to sustain each team for six hours while using the
breathing apparatuses during rescue operations;
(3) One extra, fully charged, oxygen bottle for each self-
contained compressed oxygen breathing apparatus, as required
under subdivision (1) of this subsection;
(4) One oxygen pump or a cascading system, compatible with
the supplied breathing apparatuses;
(5) Twelve permissible cap lamps and a charging rack;
(6) Two gas detectors appropriate for each type of gas which
may be encountered at the mines served;
(7) Two oxygen indicators or two flame safety lamps;
(8) One portable mine rescue communication system or a
sound-powered communication system. The wires or cable to the
communication system shall be of sufficient tensile strength to
be used as a manual communication system. The communication
system shall be at least one thousand feet in length; and
(9) Necessary spare parts and tools for repairing the
breathing apparatuses and communication system, as presently
prescribed by the manufacturer.
(m) Mine rescue apparatuses and equipment shall be
maintained in a manner that will ensure readiness for immediate
use. A person trained in the use and care of breathing
apparatuses shall inspect and test the apparatuses at intervals
not exceeding thirty days and shall certify by signature and date
that the inspections and tests were done. When the inspection
indicates that a corrective action is necessary, the correctiveaction shall be made and recorded by said person. The
certification and corrective action records shall be maintained
at the mine rescue station for a period of one year and made
available on request to an authorized representative of the
director.
(n) Authorized representatives of the director have the
right of entry to inspect any designated mine rescue station.
(o) When an authorized representative finds a violation of
any of the mine rescue requirements, he the representative shall
take appropriate corrective action in accordance with section
thirteen fifteen of this article. one-a of this chapter.
(p) Operators affiliated with a station issued an order by
an authorized representative will be notified of that order and
that their mine rescue program is invalid. The operators shall
have twenty-four hours to submit to the director a revised mine
rescue program.
(q) Every operator of an underground mine shall develop and
adopt a mine rescue program for submission to the director within
thirty days of the effective date of this statute:
Provided,
That a new program need only be submitted when conditions exist
as defined in subsection (p) of this section, or when information
contained within the program has changed.
(r) A copy of the mine rescue program shall be posted at the
mine and kept on file at the operator's mine rescue station or
rescue station affiliate and the state regional office where the
mine is located. A copy of the mine emergency notification planfiled pursuant to 30 CFR §49.9(a) will satisfy the requirements
of subsection (q) of this section if submitted to the director.
(s) The operator shall immediately notify the director of
any changed conditions materially affecting the information
submitted in the mine rescue program.
§22A-1-36. 22A-1A-34. Mandatory safety programs; penalties.
(a) The commissioner director, in consultation with the
state board of coal mine health and safety, shall promulgate
rules and regulations in accordance with chapter twenty-nine-a of
this code, detailing the requirements for mine safety programs to
be established by coal operators, as provided in subsection (b)
of this section. The regulations rules may require different
types of safety programs to be developed, depending upon the
output of the particular mine, the number of employees of the
particular mine, the location of the particular mine, the
physical features of the particular mine or any other factor
deemed relevant by the commissioner director.
(b) Within six months of the date when the regulations rules
required in subsection (a), above, become final, each operator
shall develop and submit to the director a comprehensive mine
safety program for each mine, in accordance with such regulations
rules. Each employee of the mine shall be afforded an
opportunity to review and submit comments to the director
regarding the modification or revision of such program, prior to
submission of such program to the director. Upon submission of
such program the director shall have has ninety days to approve,reject or modify such program. If the program is rejected, the
director shall give the operator a reasonable time to correct and
resubmit such program. Each program which is approved shall be
reviewed, at least annually, by the director. An up-to-date
copy of each program shall be placed on file in the division of
mines and minerals office and further copies shall be made
available to the miners of each mine and their representatives.
Each operator shall undertake all efforts necessary to assure
total compliance with the appropriate safety program at each mine
and shall fully implement all portions of such program.
(c) Any person violating any provision of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than one hundred nor more than one thousand
dollars, or imprisoned in the county jail for not more than six
months, or both fined and imprisoned.
§22A-1-37. 22A-3-33. Certification of surface-mine foremen.
(a) In every surface mine, regulated under the provisions of
article three or four, chapter twenty-two of this code, 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 nine, seven of this
chapter twenty-two of this code as a mine foreman. Each
applicant for certification as a mine foreman shall, at the time
he is issued of issuance of 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 shallinclude 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 West Virginia University or of another 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 his 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 of him under
article nine, seven of this chapter. twenty-two of this code
(b) In 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 foreman
may be designated. Such 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 nine, seven of
this chapter. twenty-two of this code Each applicant for
certification as assistant mine foreman shall, at the time he is
issued of issuance of a certificate of competency, possess all of
the qualifications required of a mine foreman:
Provided,
That he
shall, at the time he is certified, be of certification the
person is required to have at least two years' experience in
surface mining, which shall include eighteen months on or at aworking section of a surface mine or be a graduate of the school
of mines at West Virginia University or of another 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 of the division of mines and minerals shall
promulgate such rules and regulations as may be necessary to
carry out the provisions of this section.
§22A-1-38. 22A-3-35. Applicability and enforcement of laws
safeguarding life and property; regulations rules authority
of division of mines and minerals director regarding
enforcing safety laws.
All provisions of the mining laws of this state this chapter
intended to safeguard life and property shall extend to all
surface-mining operations, regulated under articles three and
four, chapter twenty-two of this code, insofar as such laws are
applicable thereto. The commissioner director shall promulgate
reasonable regulations rules in accordance with the provisions of
chapter twenty-nine-a of this code to protect the safety of those
employed in and around surface mines. The enforcement of all
laws and regulations rules relating to the safety of those
employed in and around surface mines is hereby vested in the
division of mines and minerals director and shall be enforced
according to the provisions of this chapter. twenty-two-a of this
code
ARTICLE 2. UNDERGROUND MINES.
§22A-2-1. Supervision by professional engineer or licensed land
surveyor; seal and certification; contents; extensions;
repository; availability; traversing; copies; archive; final
survey and map; penalties.
The mapping of all coal mines shall be supervised by a
competent engineer or land surveyor. The work of such engineer
or land surveyor shall be supervised by either a civil engineer
or a mining engineer certified by the board of engineers, which
exists by authority of section three, article thirteen, chapter
thirty of this code, or a licensed land surveyor approved by the
board of examiners of land surveyors as provided by section
three, article thirteen-a of said chapter thirty. To each map
supervised by the engineer or land surveyor there shall be
affixed thereto the seal of a certified or professional engineer
or licensed land surveyor, which shall be identical to the design
authorized by the board of engineers, as provided in section
nine, article thirteen of said chapter thirty or board of
examiners of land surveyors as provided by section eleven,
article thirteen-a of said chapter thirty. Every map certified
shall have the professional engineer's or land surveyor's
signature and certificate, in addition to his or her seal, in the
following form:
"I, the undersigned, hereby certify that this map is correct
and shows all the information, to the best of my knowledge and
belief, required by the laws of this State, and covers the period
ending __________________________________________________________
____________________________P. E.
(Either Civil Or Mining Engineer
Or Land Surveyor)."
The operator of every underground coal mine shall make, or
cause to be made, an accurate map of such mine, on a scale of not
less than one hundred, and not more than five hundred feet to the
inch. The map of such mine shall show:
(1) Name and address of the mine;
(2) The scale and orientation of the map;
(3) The property or boundary lines of the mine;
(4) The shafts, slopes, drifts, tunnels, entries, rooms,
crosscuts and all other excavations and auger and strip mined
areas of the coalbed being mined;
(5) All drill holes that penetrate the coalbed being mined;
(6) Dip of the coalbed;
(7) The outcrop of the coalbed within the bounds of the
property assigned to the mine;
(8) The elevations of tops and bottoms of shafts and slopes,
and the floor at the entrance to drift and tunnel openings;
(9) The elevation of the floor at intervals of not more than
two hundred feet in:
(a) At least one entry of each working section, and main and
cross entries;
(b) The last line of open crosscuts of each working section,
and main and cross entries before such sections and main and
cross entries are abandoned; and
(c) Rooms advancing toward or adjacent to property or
boundary lines or adjacent mines;
(10) Contour lines passing through whole number elevations
of the coalbed being mined, the spacing of such lines not to
exceed ten-foot elevation levels, except that a broader spacing
of contour lines may be approved for steeply pitching coalbeds by
the person authorized so to do under the federal act; and contour
lines may be placed on overlays or tracings attached to mine
maps;
(11) As far as practicable the outline of existing and
extracted pillars;
(12) Entries and air courses with the direction of airflow
indicated by arrows;
(13) The location of all surface mine ventilation fans,
which location may be designated on the mine map by symbols;
(14) Escapeways;
(15) The known underground workings in the same coalbed on
the adjoining properties within one thousand feet of such mine
workings and projections;
(16) The location of any body of water dammed in the mine or
held back in any portion of the mine, but such bodies of water
may be shown on overlays or tracings attached to the mine maps
used to show contour lines, as provided under subdivision (10) of
this section;
(17) The elevation of any body of water dammed in the mine
or held back in any portion of the mine;
(18) The abandoned portion or portions of the mine;
(19) The location and description of at least two permanent
base line points coordinated with the underground and surface
mine traverses, and the location and description of at least two
permanent elevation bench marks used in connection with
establishing or referencing mine elevation surveys;
(20) Mines above or below;
(21) Water pools above;
(22) The location of the principal streams and bodies of
water on the surface;
(23) Either producing or abandoned oil and gas wells located
within five hundred feet of such mine and any underground area of
such mine;
(24) The location of all high pressure pipelines, high
voltage power lines and principal roads;
(25) The location of railroad tracks and public highways
leading to the mine, and mine buildings of a permanent nature
with identifying names shown;
(26) Where the overburden is less than one hundred feet,
occupied dwellings; and
(27) Such other information as may be required under the
federal act or by the department of mines office of miners'
health, safety and training.
The operator of every underground coal mine shall extend, or
cause to be extended, on or before the first day of March and on
or before the first day of September of each year, such mine mapthereof to accurately show the progress of the workings as of the
first day of July and the first day of January of each year.
Such map shall be kept up to date by temporary notations, which
shall include:
(1) The location of each working face of each working place;
(2) Pillars mined or other such second mining;
(3) Permanent ventilation controls constructed or removed,
such as seals, overcasts, undercasts, regulators and permanent
stoppings, and the direction of air currents indicated; and
(4) Escapeways designated by means of symbols.
Such map shall be revised and supplemented at intervals
prescribed under the federal act on the basis of a survey made or
certified by such engineer or surveyor, and shall be kept by the
operator in a fireproof repository located in an area on the
surface chosen by the operator to minimize the danger of
destruction by fire or other hazard.
Such map and any revision and supplement thereof shall be
available for inspection by a federal mine inspector, by mine
health and safety instructors, by miners in the mine and their
representatives and by operators of adjacent coal mines and by
persons owning, leasing or residing on surface areas of such
mines or areas adjacent to such mines, and a copy of such map and
any revision and supplement thereof shall be promptly filed with
the division of mines and minerals office of miners' health,
safety and training. The operator shall also furnish to persons
expressly entitled thereto under the federal act, upon request,one or more copies of such maps and any revision and supplement
thereof. Such map or revision and supplement thereof shall be
kept confidential and its contents shall not be divulged to any
other person, except to the extent necessary to carry out the
provisions of the federal act and this chapter and in connection
with the functions and responsibilities of the secretary of
housing and urban development.
Surveying calculations and mapping of underground coal mines
which were or are opened or reopened after the first of July, one
thousand nine hundred sixty-nine, shall be done by the
rectangular coordinate traversing method and meridians carried
through and tied between at least two parallel entries of each
development panel and panels or workings adjacent to mine
boundaries or abandoned workings. These surveys shall originate
from at least three permanent survey monuments on the surface of
the mine property. The monuments shall be clearly referenced and
described in the operator's records. Elevations shall be tied to
either the United States geological survey or the United States
coast and geodetic survey bench mark system, be clearly
referenced and described on such map.
Underground coal mines operating on the first of July, one
thousand nine hundred sixty-nine, and not using the rectangular
coordinate traversing method shall, within two years of such
date, convert to this procedure for surveying calculations and
mapping. Meridians shall be carried through and tied between at
least two parallel entries of each development panel and panelsor workings adjacent to mine boundaries or abandoned workings.
These surveys shall originate from at least three permanent
survey monuments on the surface of the mine property. The
monuments shall be clearly referenced and described in the coal
mine operator's records. Elevations shall be tied to either the
United States geological survey or the United States coast and
geodetic survey bench mark system, be clearly referenced and
described on such map.
The operator of such underground coal mine shall, by
reasonable proof, demonstrate to the director or to any federal
mine inspector concerned, at any time, that a diligent search was
made for all existing and available maps and survey data for the
workings on the adjoining properties. The operator shall further
be able to show proof to the director or to any federal mine
inspector concerned, that a suitable method was used to insure
accuracy in the methods used in transposing other workings to the
map of such mine.
There shall be an archive of underground coal mine maps
maintained at the office of the director. The archive shall:
(1) Be secured in a fireproof and burglarproof vault;
(2) Have an appropriate map identification system; and
(3) Have adequate map microfilming facilities.
Whenever an operator permanently closes or abandons an
underground coal mine, or temporarily closes an underground coal
mine for a period of more than ninety days, he or she shall
promptly notify the division of mines and minerals office ofminers' health, safety and training and the federal mine
inspector of the district in which such mine is located of such
closure. Within sixty days of the permanent closure or
abandonment of an underground coal mine, or, when an underground
coal mine is temporarily closed, upon the expiration of a period
of ninety days from the date of closure, the operator shall file
with the division of mines and minerals office of miners' health,
safety and training and such federal mine inspector a copy of the
mine map revised and supplemented to the date of the closure.
Such copy of the mine map shall be certified by a certified or
professional engineer or licensed surveyor as aforesaid and shall
be available for public inspection.
Any person having a map or surveying data of any worked out
or abandoned underground coal mine shall make such map or data
available to the division office of miners' health, safety and
training to copy or reproduce such material.
Any person who fails or refuses to discharge any duty
imposed upon him or her by this section shall be is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than five hundred dollars nor more than one thousand
dollars.
VENTILATION
§22A-2-2. Plan of ventilation; approval by director of the
division of mines and minerals office of miners' health,
safety and training.
Every operator of a coal mine, before making any new oradditional openings, shall submit to the director, for his or her
information and approval, a general plan showing the proposed
system of ventilation and ventilating equipment of the openings,
with their location and relative positions to adjacent
developments; no such new or additional openings shall be made
until approved by the director. , in consultation with the deputy
directors of permitting and safety, health and training The
operator shall deliver to the miners' representative employed by
the operator at the mine a copy of the operator's proposed annual
ventilation plan at least ten days prior to the date of
submission. The miners' representative shall be afforded the
opportunity to submit written comments to the operator prior to
such submission; in addition the miners' representative may
submit written comments to the director. The director shall
promptly approve any such plans submitted, if the proposed system
of ventilation and ventilating equipment meet the requirements of
this article.
§22A-2-3. Fans.
(a) The ventilation of mines, the systems for which extend
for more than two hundred feet underground and which are opened
after the effective date of this article, shall be produced by a
mechanically operated fan or mechanically operated fans.
Ventilation by means of a furnace is prohibited in any mine. The
fan or fans shall be kept in continuous operation, unless written
permission to do otherwise be granted by the director. In case
of interruption to a ventilating fan or its machinery whereby theventilation of the mine is interrupted, immediate action shall be
taken by the mine operator or his the operator's management
personnel, in all mines, to cut off the power and withdraw the
men from the face regions or other areas of the mine affected.
If ventilation is restored in fifteen minutes, the face regions
and other places in the affected areas where gas (methane) is
likely to accumulate, shall be reexamined by a certified person;
and if found free of explosive gas, power may be restored and
work resumed. If ventilation is not restored in fifteen minutes,
all underground employees shall be removed from the mine, all
power shall be cut off in a timely manner, and the underground
employees shall not return until ventilation is restored and the
mine examined by certified persons, mine examiners, or other
persons holding a certificate to make preshift examination.
(b) All main fans installed after the effective date of this
article shall be located on the surface in fireproof housings
offset not less than fifteen feet from the nearest side of the
mine opening, equipped with fireproof air ducts, provided with
explosion doors or a weak wall, and operated from an independent
power circuit. In lieu of the requirements for the location of
fans and pressure-relief facilities, a fan may be directly in
front of, or over a mine opening:
Provided,
That such opening is
not in direct line with possible forces coming out of the mine if
an explosion occurs:
Provided, however,
That there is another
opening having a weak-wall stopping or explosion doors that would
be in direct line with forces coming out of the mine. All mainfans shall be provided with pressure-recording gauges or water
gauges. A daily inspection shall be made of all main fans and
machinery connected therewith by a certified electrician and a
record kept of the same in a book prescribed for this purpose or
by adequate facilities provided to permanently record the
performance of the main fans and to give warning of an
interruption to a fan.
(c) Auxiliary fans and tubing shall be permitted to be used
in lieu of or in conjunction with line brattice to provide
adequate ventilation to the working faces:
Provided,
That
auxiliary fans be so located and operated to avoid recirculation
of air at any time. Auxiliary fans shall be approved and
maintained as permissible.
(d) If the auxiliary fan is stopped or fails, the electrical
equipment in the place shall be stopped and the power
disconnected at the power source until ventilation in the working
place is restored. During such stoppage, the ventilation shall
be by means of the primary air current conducted into the place
in a manner to prevent accumulation of methane.
(e) In places where auxiliary fans and tubing are used, the
ventilation between shifts, weekends and idle shifts shall be
provided to face areas with line brattice or the equivalent to
prevent accumulation of methane.
(f) The director may require that when continuous mine
equipment is being used, all face ventilating systems using
auxiliary fans and tubing shall be provided with machine-mounteddiffuser fans, and such fans shall be continuously operated
during mining operations.
(g) In the event of a fire or explosion in any coal mine,
the ventilating fan or fans shall not intentionally be started,
stopped, speed increased or decreased or the direction of the air
current changed without the approval of the general mine foreman,
and, if he or she is not immediately available, a representative
of the division office of miners' health, safety and training.
A duly authorized representative of the employees should be
consulted if practical under the circumstances.
MINE FOREMAN
§22A-2-7. When underground mine foreman-fire boss required;
assistants; certification.
(a) In every underground 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 nine, seven of this, chapter twenty-two of
this code as a mine foreman-fire boss. Each applicant for
certification as a mine foreman-fire boss 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 five
years' experience in the underground working, ventilation and
drainage of a coal mine, which shall include at least eighteen
months' experience on or at a working section of an underground
mine or be a graduate of the school of mines at West Virginia
University or of another accredited mining engineering school orbe a graduate of an accredited engineering school with a
bachelor's degree in mining engineering technology, electrical,
mechanical or civil engineering; and have had at least two years'
practical experience in an underground mine, which shall include
at least eighteen months' experience on or at a working section
of an underground mine; or be a graduate of an accredited college
or university with an associate degree in mining, electrical,
mining engineering technology, mechanical engineering or civil
engineering and have had at least four years' practical
experience in an underground mine, which shall include at least
eighteen months' experience on or at a working section of an
underground mine; and (3) have demonstrated his or her knowledge
of dangerous mine gases and their detection, mine safety, first
aid, safety appliances, state and federal mining laws and
regulations and other subjects by completing such training,
education and examinations as may be required of him or her under
article nine, seven of this chapter. twenty-two of this code.
(b) In mines in which the operations are so extensive that
the duties devolving upon the mine foreman-fire boss cannot be
discharged by one man, one or more assistant mine foremen-fire
bosses may be designated. Such persons shall act under the
instruction of the mine foreman-fire boss, 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 nine, seven of this chapter. twenty-two of
this code. Each applicant for certification as assistant mineforeman-fire boss shall, at the time he or she is issued a
certificate of competency, possess all of the qualifications
required of a mine foreman-fire boss:
Provided,
That he or she
shall at the time he or she is certified be required to have at
least three years' experience in the underground working,
ventilation and drainage of coal mines, which shall include
eighteen months on or at a working section of an underground mine
or be a graduate of the school of mines at West Virginia
University or of another accredited mining engineering school or
be a graduate of an accredited engineering school with a
bachelor's degree in mining engineering technology, electrical,
mechanical or civil engineering; and have had twelve months'
practical experience in an underground mine, all of which shall
have been on or at a working section or be a graduate of an
accredited college or university with an associate degree in
mining, electrical, mining engineering technology, mechanical or
civil engineering and have had at least two years' practical
experience in an underground mine, which shall include at least
eighteen months' experience on or at a working section of an
underground mine.
(c) Until the first day of January, one thousand nine
hundred seventy-seven, in mines in which the operations are so
extensive that all the duties devolving upon the mine foreman-
fire boss cannot be discharged by one man person, competent
persons having had at least three years' experience in coal mines
may be designated as assistants, who shall act under the mineforeman-fire boss' instructions and the mine foreman-fire boss
shall be is responsible for their conduct in the discharge of
their duties under such designation.
(d) Any person holding a mine foreman's certificate issued
by any other state may act in the capacity of mine foreman-fire
boss in any mine in this state until the next regular mine
foreman-fire boss' examination held by the division office of
miners' health, safety and training, but not to exceed a maximum
of ninety days.
(e) After the first day of July, one thousand nine hundred
seventy-four, all duties heretofore performed by persons
certified as mine foreman, assistant mine foreman or fire boss
shall be performed by persons certified as underground mine
foreman-fire boss or an assistant underground mine foreman-fire
boss.
After the first day of July, one thousand nine hundred
seventy-four, every certificate heretofore issued to an assistant
mine foreman or fire boss shall be deemed to be of equal value to
a certificate issued hereafter to an assistant mine foreman-fire
boss, and every certificate heretofore issued to a mine foreman
shall be deemed to be of equal value to a certificate issued
hereafter to a mine foreman-fire boss.
§22A-2-12. Instruction of employees and supervision of
apprentices; annual examination of persons using flame
safety lamps; records of examination; maintenance of methane
detectors, etc.
The division office of miners' health, safety and training
shall prescribe and establish a course of instruction in mine
safety and particularly in dangers incident to such employment in
mines and in mining laws and rules, which course of instruction
shall be successfully completed within twelve weeks after any
person shall be is first employed as a miner. It shall is
further be the duty and responsibility of the division office of
miners' health, safety and training to see that such course shall
be is given to all persons as above provided after their first
being employed in any mine in this state.
It shall be is the duty of the mine foreman or the assistant
mine foreman of every coal mine in this state to see that every
person employed to work in such mine shall is, before beginning
work therein, be instructed in the particular danger incident to
his or her work in such mine, and be furnished a copy of the
mining laws and rules of such mine. It shall be is the duty of
every mine operator who employs apprentices, as that term is used
in sections three and four, article ten, eight of this chapter
twenty-two of this code to ensure that the apprentices are
effectively supervised with regard to safety practices and to
instruct apprentices in safe mining practices. Every apprentice
shall work under the direction of the mine foreman or his or her
assistant mine foreman and they shall be are responsible for his
or her safety. The mine foreman or assistant mine foreman may
delegate the supervision of an apprentice to an experienced
miner, but the foreman and his or her assistant mine foremanshall remain responsible for the apprentice. During the first
ninety days of employment in a mine, the apprentice shall work
within sight and sound of the mine foreman, assistant mine
foreman, or an experienced miner, and in such a location that the
mine foreman, assistant mine foreman or experienced miner can
effectively respond to cries for help of the apprentice. Such
location shall be on the same side of any belt, conveyor or
mining equipment.
Persons whose duties require them to use a flame safety lamp
or other approved methane detectors shall be examined at least
annually as to their competence by a qualified official from the
division office of miners' health, safety and training and a
record of such examination shall be kept by the operator and the
division office. Flame safety lamps and other approved methane
detectors shall be given proper maintenance and shall be tested
before each working shift. Each operator shall provide for the
proper maintenance and care of the permissible flame safety lamp
or any other approved device for detecting methane and oxygen
deficiency by a person trained in such maintenance, and, before
each shift, care shall be taken to ensure that such lamp or other
device is in a permissible condition.
§22A-2-23. Authority of fire boss to perform other duties.
Notwithstanding any other provision in this article
contained, any person who holds a certificate issued by the
division office of miners' health, safety and training certifying
his or her competency to act as fire boss may perform the dutiesof a fire boss and any other duties, statutory or otherwise, for
which he or she is qualified, in the same mine or section and on
the same day or shift.
ROOF--FACE--RIBS
§22A-2-25. Roof control programs and plans; refusal to work
under unsupported roof.
(a) Each operator shall undertake to carry out on a
continuing basis a program to improve the roof control system of
each coal mine and the means and measures to accomplish such
system. The roof and ribs of all active underground roadways,
travelways, and working places shall be supported or otherwise
controlled adequately to protect persons from falls of the roof
or ribs. A roof control plan and revisions thereof suitable to
the roof conditions and mining systems of each coal mine and
approved by the director, in consultation with the deputy
directors of permitting and safety, health and training, shall be
adopted and set out in printed form before new operations. The
safety committee of the miners of each mine where such committee
exists shall be afforded the opportunity to review and submit
comments and recommendations to the director and operator
concerning the development, modification or revision of such roof
control plans. The plan shall show the type of support and
spacing approved by the director. Such plan shall be reviewed
periodically, at least every six months by the director, taking
into consideration any falls of roof or rib or inadequacy of
support of roof or ribs. A copy of the plan shall be furnishedto the director or his or her authorized representative and shall
be available to the miners and their representatives.
(b) The operator, in accordance with the approved plan,
shall provide at or near each working face and at such other
locations in the coal mine, as the director may prescribe, an
ample supply of suitable materials of proper size with which to
secure the roof thereof of all working places in a safe manner.
Safety posts, jacks, or other approved devices shall be used to
protect the workmen when roof material is being taken down,
crossbars are being installed, roof bolt holes are being drilled,
roof bolts are being installed, and in such other circumstances
as may be appropriate. Loose roof and overhanging or loose faces
and ribs shall be taken down or supported. When overhangs or
brows occur along rib lines they shall be promptly removed. All
sections shall be maintained as near as possible on center.
Except in the case of recovery work, supports knocked out shall
be replaced promptly. Apprentice miners shall not be permitted
to set temporary supports on a working section without the direct
immediate supervision of a certified miner.
(c) The operator of a mine has primary responsibility to
prevent injuries and deaths resulting from working under
unsupported roof. Every operator shall require that no person
may proceed beyond the last permanent support unless adequate
temporary support is provided or temporary support is not
required under an approved roof control plan and absence of such
support will not pose a hazard to the miners.
(d) The immediate supervisor of any area in which
unsupported roof is located shall not direct or knowingly permit
any person to proceed beyond the last permanent support unless
adequate temporary support is provided or temporary support is
not required under an approved roof control plan and absence of
such support will not pose a hazard to the miners.
(e) No miner shall proceed beyond the last permanent support
in violation of a direct or standing order of an operator, a
foreman or an assistant foreman, unless adequate temporary
support is provided or temporary support is not required under an
approved roof control plan and absence of such support will not
pose a hazard to the miner.
(f) The immediate supervisor of each miner who will be
engaged in any activity involving the securing of roof or rib
during a shift shall, at the onset of any such shift, orally
review those parts of the roof control plan relevant to the type
of mining and roof control to be pursued by such miner. The time
and parts of the plan reviewed shall be recorded in a log book
kept for such purpose. Each log book entry so recorded shall be
signed by such immediate supervisor making such entry.
(g) Any action taken against a miner due, in whole or in
part, to his or her refusal to work under unsupported roof, where
such work would constitute a violation of this section, is
prohibited as an act of discrimination pursuant to section twenty
twenty-two, article one-a one of this chapter. Upon a finding of
discrimination by the appeals board pursuant to subsection (b),section twenty twenty-two, article one-a one of this chapter, the
miner shall be awarded by the appeals board all reliefs available
pursuant to subsections (b) and (c), section twenty twenty-two
article one-a one of this chapter.
§22A-2-33. Preparation of shots; blasting practices.
(a) Only a certified "shot firer" designated by mine
management shall be permitted to handle explosives and do
blasting. Only electric detonators of proper strength fired with
permissible shot firing units shall be used except under special
permits as hereinafter provided, and drillholes shall be stemmed
with at least twenty-four inches of incombustible material, or at
least one half of the length of the hole shall be stemmed if the
hole is less than four feet in depth, unless other permissible
stemming devices or methods are used. Drillholes shall not be
drilled beyond the limits of the cut, and as far as practicable,
cuttings and dust shall be cleaned from the holes before the
charge is inserted. Charges of explosives exceeding one and one-
half pounds, but not exceeding three pounds, shall be used only
if drillholes are six feet or more in depth. Ample warning shall
be given before shots are fired, and care shall be taken to
determine that all persons are in the clear before firing. Miners
shall be removed from adjoining places and other places when
there is danger of shots blowing through. No shots shall be
fired in any place known to liberate explosive gas, until such
place has been properly examined by a competent person who is
designated by mine management for that purpose, and no shotsshall be fired in any place where gas is detected with a
permissible flame safety lamp until such gas has been removed by
means of ventilation. After firing any shot, or shots, the
person firing the same shall not return to the working face until
the smoke has been cleared away and then he shall make a careful
examination of the working face before leaving the place or
before performing any other work in the place.
(b) Multiple shooting in coal or rock or both is authorized
only under permit issued by the director. Permission to shoot
more than ten shots simultaneously may be granted by the director
only after consultation with interested persons, and the deputy
director of safety, health and training, and such shooting will
be performed by special methods and under precautions prescribed
by the director. All multiple shooting in bottom or roof rock
shall be performed in intake air, except by special permit from
the director, after consultation with interested persons and the
deputy director of safety, health and training, as heretofore
provided. Multiple blasting of more than ten shots performed
under any permit granted by the director under this section shall
be done only on noncoal-producing shifts or idle days, except as
may be provided as a condition of the permit granted.
(c) Regular or short-interval delay detonators may be used
for blasting purposes with written permission from the director.
after consultation with the deputy director of safety, health and
training Regular delay detonators shall not be used for blasting
coal, but may be used for grading above or below coal seams andduring shaft, slope, tunnel work and in faults or wants. Where
short-interval delay detonators are permitted by said director to
be used, the shot firing circuit must be tested with a blasting
galvanometer before firing, and the leg wires connected in
series. No instantaneous, regular, or zero-delay detonators are
to be fired in conjunction with short-interval delay detonators.
The delay interval between dependent rows must not be less than
twenty-five milliseconds or more than one hundred milliseconds,
and the entire series of any one round shall not provide a delay
of more than five hundred milliseconds between the first and last
shot. The total number of charged holes to be fired during any
one round must not exceed the limit permitted by the director.
Misfires must be tested with a blasting galvanometer before
removing.
(d) Electrical equipment shall not be operated in the face
areas, and only work in connection with timbering and general
safety shall be performed while boreholes are being charged.
Shots shall be fired promptly after charging. Mudcaps (adobes)
or any other unconfined shots shall not be permitted in any coal
mine. No solid shooting shall be permitted without written
permission of the division office.
(e) Blasting cables shall be well insulated and shall be as
long as may be necessary to permit persons authorized to fire
shots to get in a safe place out of the line of fire. The cable,
when new, shall be at least one hundred twenty-five feet in
length and never less than one hundred feet. Shooting cablesshall be kept away from power wires and all other sources of
electric current, connected to the leg wires by the person who
fires the shot, staggered as to length or well separated at the
detonator leg wires, and shunted at the battery until ready to
connect to the blasting unit.
HOISTING
§22A-2-36. Hoisting machinery; telephones; safety devices;
hoisting engineers and drum runners.
(a) The operator of every coal mine worked by shaft shall
provide and maintain a metal tube, telephone or other approved
means of communication from the top to the bottom and
intermediate landings of such shafts, suitably adapted to the
free passage of sound, through which conversation may be held
between persons at the top and at the bottom of the shaft; a
standard means of signaling; an approved safety catch, bridle
chains, automatic stopping device, or automatic overwind; a
sufficient cover overhead on every cage used for lowering or
hoisting persons; an approved safety gate at the top of the
shaft; and an adequate brake on the drum of every machine used to
lower or hoist persons in such shaft. Such operator shall have
the machinery used for lowering and hoisting persons into or out
of the mine kept in safe condition, equipped with a reliable
indicator, and inspected once in each twenty-four hours by a
qualified electrician. Where a hoisting engineer is required, he
or she shall be readily available at all times when men are in
the mine. He or she shall operate the empty cage up and down theshaft at least one round trip at the beginning of each shift, and
after the hoist has been idle for one hour or more before
hoisting or lowering men; there shall be cut out around the side
of the hoisting shaft or driven through the solid strata at the
bottom thereof, a traveling way, not less than five feet high and
three feet wide to enable a person to pass the shaft in going
from one side of it to the other without passing over or under
the cage or other hoisting apparatus. Positive stop blocks or
derails shall be placed near the top and at all intermediate
landings of slopes and surface inclines and at approaches to all
shaft landings. A waiting station with sufficient room, ample
clearance from moving equipment, and adequate seating facilities
shall be provided where men are required to wait for man trips or
man cages, and the miners shall remain in such station until the
man trip or man cage is available.
(b) No operator of any coal mine worked by shaft, slope or
incline, shall place in charge of any engine or drum used for
lowering or hoisting persons employed in such mine any but
competent and sober engineers or drum runners; and no engineer or
drum runner in charge of such machinery shall allow any person,
except such as may be designated for this purpose by the
operator, to interfere with any part of the machinery; and no
person shall interfere with any part of the machinery; and no
person shall interfere with or intimidate the engineer or drum
runner in the discharge of his or her duties. Where the mine is
operated or worked by shaft or slope, a minimum space of two andone-half square feet per person shall be available for each
person on any cage or car where men are transported. In no
instance shall more than twenty miners be transported on a cage
or car without the approval of the director. , in consultation
with the deputy director of safety, health and training No
person shall ride on a loaded cage or car in any shaft, slope, or
incline:
Provided,
That this shall does not prevent any trip
rider from riding in the performance of his or her authorized
duties. No engineer shall be is required for automatically
operated cages, elevators, or platforms. Cages and elevators
shall have an emergency power source unless provided with other
escapeway facilities.
(c) Each automatic elevator shall be provided with a
telephone or other effective communication system by which aid or
assistance can be obtained promptly.
(d) A "stop" switch shall be provided in the automatic
elevator compartment that will permit the elevator to be stopped
at any location in the shaft.
§22A-2-53c. Ramps; tipples; cleaning plants; other surface
areas.
(1) Surface installations generally -- Surface
installations, all general mine structures, enclosures and other
facilities, including custom coal preparation facilities shall be
maintained in good condition. In unusually dusty locations,
electric motors, switches and controls shall be of dust-tight
construction, or enclosed with reasonable dust-tight housings orenclosures. Openings in surface installations through which men
or material may fall shall be protected by railings, barriers,
covers or other protective devices. Illumination sufficient to
provide safe working conditions shall be provided in and on all
surface structures, paths, walkways, switch panels, loading and
dumping sites, working areas and parking areas. Materials shall
be stored and/or stacked in a manner to prevent stumbling or
falling. Compressed and liquid gas cylinders shall be secured in
a safe manner. Adequate ventilation shall be provided in tipples
and preparation plants. Coal dust in or around tipples or
cleaning plants shall not be permitted to exist or accumulate in
dangerous amounts.
(2) Machinery guards -- Gears, sprockets, chains, drive
head, tail and takeup pulleys, flywheels, couplings, shafts,
sawblades, fan inlets, and similar exposed moving machine parts
with which persons may come in contact shall be guarded
adequately. Except when testing is necessary, machinery guards
shall be secured in place while being operated. Belt rollers
shall not be cleaned while belts are in motion.
(3) Fire protection -- Where cutting or welding is performed
at any location, a means of prompt extinguishment of any fire
accidentally started shall be provided. Adequate fire-fighting
facilities, required by the department of energy office of
miners' health, safety and training, shall be provided on all
floors. At least two exits shall be provided for every floor of
tipples and cleaning plants constructed after the effective dateof this section. Signs warning against smoking and open flames
shall be posted so they can be readily seen in areas or places
where fire or explosion hazards exist. Smoking or an open flame
in or about surface structures shall be restructed to locations
where it will not cause fire or an explosion.
(4) Repairs of machinery -- Machinery shall not be
lubricated or repaired while in motion, except where safe remote
lubricating devices are used. Machinery shall not be started
until the person lubricating or repairing it has given a clear
signal. Means and methods shall be provided to assure that
structures and the immediate area surrounding the same shall be
reasonably free of coal dust accumulations. Where repairs are
made to tipples, or cleaning plants, proper scaffolding and
proper overhead protection shall be provided for workmen when
necessary. Where overhead repair work is being performed at
surface installations, adequate protection shall be provided for
all persons working or passing below.
(5) Stairs, platforms, etc. -- Stairways, elevated platforms
and runways shall be equipped with handrails. Railroad car
trimmer platforms are exempted from such requirements. Where
required, elevated platforms and stairways shall be provided with
toeboards. They shall be kept clear of refuse and ice and
maintained in good condition.
(6) Belts, etc. -- Drive belts shall not be shifted while in
motion unless such machines are provided with mechanical
shifters. Belt dressing shall not be applied while in motion. Belts, chains and ropes shall not be guided into power-driven
moving pulleys, sprockets or drums with the hand except with
equipment especially designed for hand feeding.
(7) Conveyors and crossovers -- When the entire length of a
conveyor is visible from the starting switch, the operator shall
visually check to make certain that all persons are in the clear
before starting the conveyor. When the entire length of the
conveyor is not visible from the starting switch, a positive
audible or visible warning system shall be installed and operated
to warn persons when the conveyor will be started. Crossovers
shall be provided where necessary to cross conveyors. All
crossovers shall be of substantial construction, with rails, and
maintained in good condition. Moving conveyors shall be crossed
only at designated crossover points. A positive audible or
visible warning system shall be installed and operated to warn
persons that a conveyor or other tipple equipment is to be
started. Pulleys of conveyors shall not be cleaned manually
while the conveyor is in operation. Guards, nets or other
suitable protection shall be provided where tramways pass over
roadways, walkways or buildings. Where it is required to cross
under a belt, adequate means shall be taken to prohibit a person
from making contact with a moving part.
(8) Ladders -- All ladders shall be securely fastened.
Permanent ladders more than ten feet in height shall be provided
with backguards. Ladders shall be of substantial construction
and maintained in good condition. Wooden ladders shall not bepainted. Fixed ladders shall not incline backward at any point
unless equipped with backguards. Fixed ladders shall be anchored
securely and installed with at least three inches of toe
clearance. Side rails of fixed ladders shall project at least
three feet above landings, or substantial handholds shall be
provided above the landing. No person shall be permitted to work
off of the top step of any ladder. Metal ladders shall not be
used with electrical work, where there is danger of the ladder
coming into contact with power lines or an electrical conductor.
The maximum length of a step ladder shall be twenty feet and an
extension ladder sixty feet.
(9) Hoisting -- Hitches and slings used to hoist materials
shall be suitable for handling the type of material being
hoisted. Persons shall stay clear of hoisted loads. Tag lines
shall be attached to hoisted materials that require steadying or
guidance. A hoist shall not lift loads greater than the rated
capacity of the hoist being used.
(10) Railroad track construction and maintenance --
(a) All parts of the track haulage road under the ownership
or control of the operator shall be strictly constructed and
maintained. Rails shall be secured at all points by means of
plates or welds. When plates are used, plates conforming with
the weight of the rail shall be installed and broken plates shall
be replaced immediately. Appropriate bolts shall be inserted and
maintained in all bolt holes. The appropriate number of bolts
conforming with the appropriate rail plate for the weight of therail shall be inserted, tightly secured, and maintained.
(b) All points shall be installed and maintained so as to
prevent bad connections. Varying weights of rail shall not be
joined without proper adapters. Tracks shall be blocked and
leveled and so maintained so as to prevent high and low joints.
(c) Tracks shall be gauged so as to conform with the track
mounted equipment. Curves shall not be constructed so sharp as
to put significant pressure on the tracks of the track mounted
equipment.
(d) Severely worn or damaged rails and ties shall be
replaced immediately.
(e) When mining operations are performed within any twenty-
four hour period, operations shall be inspected at least every
twenty-four hours to assure safe operation and compliance with
the law and regulations rules. The results of which inspection
shall be recorded.
(f) Personnel who are required frequently and regularly to
travel on belts or chain conveyors extended to heights of more
than ten feet shall be provided with adequate space and
protection in order that they may work safely. Permanent ladders
extending more than ten feet shall be provided with back guards.
Walkways around thickeners that are less than four feet above the
walkway shall be adequately guarded. Employees required to work
over thickener shall wear a safety harness adequately secured,
unless walkways or other suitable safety devices are provided.
§22A-2-54. Duties of persons subject to article; rules and
regulations of operators.
(a) It shall be the duty of the operator, mine foreman,
supervisors, mine examiners, and other officials to comply with
and to see that others comply with the provisions of this
article.
(b) It shall be the duty of all employees and checkweighmen
to comply with this article and to cooperate with management and
the department of energy and division of mines and minerals
office of miners' health, safety and training in carrying out the
provisions hereof.
(c) Reasonable rules and regulations of an operator for the
protection of employees and preservation of property that are in
harmony with the provisions of this article and other applicable
laws shall be complied with. They shall be printed on cardboard
or in book form in the English language and posted at some
conspicuous place about the mine or mines, and given to each
employee upon request.
§22A-2-63. No mine to be opened or reopened without prior
approval of commissioner of the department of energy
director of the office of miners' health, safety and
training; approval fee; extension of certificate of
approval; certificates not transferable; section to be
printed on certificates.
(a) Permit request. -- After the first day of July, one
thousand nine hundred seventy-one, no mine shall be opened or
reopened unless prior approval has been obtained from thecommissioner of the department of energy director of the office
of miners' health, safety and training, which approval shall not
be unreasonably withheld. The operator shall pay for such
approval a fee of ten dollars, which payment shall be tendered
with the operator's application for such approval:
Provided,
That mines producing coal solely for the operator's use shall be
issued a permit without charge if coal production will be less
than fifty tons a year.
(b) Extension of permit. -- Within thirty days after the
first day of January of each year, the operator of each mine
holding a certificate evidencing approval of the commissioner
director to open a mine shall apply for the extension of such
certificate of approval for an additional year, excepting those
approved by the director to go on inactive status. Such
approval, evidenced by a certificate of the commissioner
director, shall be granted as a matter of right and without
charge if, at the time such application is made, the operator is
in compliance with the provisions of section seventy-seven of
this article and has paid or otherwise appealed all coal mine
assessments imposed under article one-a, one of this chapter.
twenty-two-a of this code. Applications for extension of such
certificates of approval not submitted within the time required
shall be processed as an application to open or reopen a mine and
shall be accompanied by a fee of ten dollars.
(c) Not transferable. -- Certificates of approval issued
pursuant to this section shall are not be transferable.
(d) Status of certificate. -- The provisions of this
section shall be printed on the reverse side of every certificate
issued hereunder.
(e) Preinspection. -- The district mine inspector shall be
contacted for a preinspection of the area proposed for
underground mining prior to the issuance of any new opening
approval.
§22A-2-66. Explosion or accident; notice; investigation by
division of mines and minerals office of miners' health,
safety and training.
Whenever, by reason of any explosion or other accident in or
about any coal mine or the machinery connected therewith, loss of
life, or serious personal injury shall occur occurs, it shall be
is the duty of the superintendent of the mine, and in his or her
absence, the mine foreman in charge of the mine, to give
immediate notice to the director and the inspector of the
district, stating the particulars of such accident. If anyone is
killed, the inspector shall immediately go to the scene of such
accident and make such recommendations and render such assistance
as he or she may deem necessary for the future safety of the men,
and investigate the cause of such explosion or accident and make
a record thereof which he or she shall preserve with the other
records in his or her office, the cost of such records to be paid
by the division office of miners' health, safety and training,
and a copy shall be furnished to the operator and other
interested parties. To enable him or her to make suchinvestigation, he shall have or she has the power to compel the
attendance of witnesses and to administer oaths or affirmations.
The director shall have has the right to appear and testify and
to offer any testimony that may be relevant to the questions and
to cross-examine witnesses.
§22A-2-68. Preservation of evidence following accident or
disaster.
Following a mine accident resulting in the death of one or
more persons and following any mine disaster, the evidence
surrounding such occurrence shall not be disturbed after recovery
of bodies or injured persons until an investigation by the
division office of miners' health, safety and training has been
completed.
§22A-2-70. Shafts and slopes.
(a) When mine examiner to be employed; qualifications. --
During the sinking of a shaft or the driving of a slope to a coal
bed or while engaged in underground construction work, or
relating thereto, the operator shall assign a mine examiner to
such project areas. Such mine examiner shall have a certificate
of competency valid only for the type of work stipulated thereon
and issued to him or her by the division of mines and minerals
office of miners' health, safety and training after he or she has
passed an examination given by the division of mines and minerals
office of miners' health, safety and training. He or she shall,
at the time he or she takes the examination, have a minimum of
five years' experience in shaft sinking, slope driving andunderground construction; moreover, he or she shall be able to
detect methane with a flame safety lamp and have a thorough
knowledge of the ventilation of shafts, slopes, and mines, and
the machinery connected therewith, and finally, he or she shall
be a person of good moral character with temperate habits.
(b) Mine examiner or certified person acting as such; duties
generally; records open for inspection. -- In all shafts and
slopes within three hours immediately preceding the beginning of
a work shift and before any workmen in such shift, other than
those who may be designated to make the examinations, enter the
underground areas of such shafts or slopes, a certified foreman
or mine examiner, designated by the operator of such shaft or
slope to do so, shall make an examination of such areas. Each
person designated to make such examinations shall make tests with
a permissible flame safety lamp for accumulations of methane and
oxygen deficiency, and examine sides of shafts and ribs and roof
of all slopes. Should he or she find a condition which he or she
considers dangerous to persons, he or she shall place a
conspicuous danger sign at all entrances to such places. He or
she shall record the results of his or her examination with ink
or indelible pencil in a book prescribed by the director, kept at
a place on the surface designated by mine management. All
records as prescribed herein shall be open for inspection by
interested persons.
(c) Approvals and permits. -- An approval shall be obtained
from the division office before work is started. A permit shallbe obtained from the division office (1) to stop fan when miners
are in shafts or slopes; (2) to use electrical machinery in
shafts or slopes; (3) to use electric lights in shafts or slopes;
(4) to use welders, torches and like equipment in shafts or
slopes; (5) to hoist more than four miners at one time in buckets
or cars; (6) to shoot more than fifteen shots in one series.
(d) Records. -- The foreman in charge on each shift shall
keep a daily report of conditions and practices. The foreman in
charge on each shift shall read and countersign the reports of
the previous shift. Unsatisfactory conditions and practices
reported shall be repeated on daily reports until corrected.
Hoists, buckets, cars, ropes and appliances thereto shall be
examined by a qualified person before the start of each shift and
a written record kept. Deaths from accidents or previous
injuries shall be reported immediately by wire to the office of
the director and to the district mine inspector or the inspector-
at-large. A written report of all injuries and deaths shall be
mailed to the division office of miners' health, safety and
training and district mine inspector promptly. Immediate notice
shall be given the office of the director, the district mine
inspector and the inspector-at-large in the event of an ignition
of gas, or serious accident to miners or equipment. All permits
and approvals must be available for inspection by all interested
persons.
(e) General. -- The foreman on shift shall have at least
five years' experience in shafts or slopes. New employees shallbe instructed in the dangers and rules incident to their work.
Conspicuous bulletin boards and warning signs shall be
maintained. Unauthorized persons shall not be permitted around
shafts or slopes. First-aid material shall be maintained at the
operation as required by section fifty-nine of this article. The
scene of a fatal accident shall be left unchanged until an
investigation is made by all interested persons. All employees
and others around the operation shall wear hard-toe shoes and
hard-top hats. Goggles or other eye protection shall be worn
when cutting, welding or striking where particles may fly.
Gears, belts and revolving parts of machinery shall be properly
guarded. Hand tools shall be in good condition. Sides of
shafts, ribs and roof of all slopes shall be closely observed for
loose and dangerous conditions. Loose brows, ribs and top in
slopes shall be taken down or supported; loose ribs in shafts
shall be scaled. Miners shall be hoisted and lowered under
power in shafts and slopes. All hoists must have two positive
breaking devices. At least three wraps of rope shall remain on
the hoist drum at all times. Wire ropes shall not be less than
three-fourths inches in diameter, and of a design to prevent
excessive spinning or turning when hoisting.
When heavy materials are hoisted, a large rope shall be used
if necessary. A hoisting engineer shall be in constant
attendance while men are in shaft. Head frames shall be
constructed substantially. Noise from machinery shall not
interfere with signals. The standard signal code, whistle orbell shall be used for hoisting:
One signal ................................................ Hoist
One signal ................................................. Stop
Two signals ............................................... Lower
Three signals .......................................... Man cage
One signal from hoisting engineer ............. Miners board cage
Hoist signals shall be posted in front of the hoisting
engineer. The shaft opening shall be enclosed by a fence five
feet high. Buckets shall not be loaded within six inches of the
top rim. Buckets shall have a positive lock on the handle or
bale to prevent bucket from crumpling while being hoisted.
Positive coupling devices shall be used on buckets or cars (hooks
with safety catches or threaded clevis). Emergency devices for
escape shall be provided while shafts are under construction.
Miners shall not ride on or work from rims of buckets. Buckets
or cars shall not be lowered without a signal from working area.
Only sober and competent engineers shall be permitted to operate
hoists. No intoxicating liquors or intoxicated persons shall be
permitted in or around any shaft, slope or machinery. Lattice
type platforms shall be used.
(f) Explosives. -- Explosives and blasting caps being taken
into or removed from the operation shall be transported and kept
in approved nonconducting receptacles (unopened cartons or cases
are permissible). Explosives shall not be primed until ready to
be inserted into holes. Handling of explosives and loading of
holes shall be under the strict supervision of a qualified personor shotfirer. No more explosives or caps than are required to
shoot one round shall be taken into shafts. Adobe, mudcapped or
unconfined shots shall not be fired. Holes shall be stemmed
tightly and full into the mouth. Blasting caps shall be inserted
in line with the explosive. Leg wires of blasting caps and buss
wires shall be kept shunted until connected. Shooting cables
shall be shunted at firing devices and before connecting to leg
wires. Only approved shooting devices shall be used. Shots
shall be fired promptly after the round of holes are charged.
Warnings shall be given before shots are fired by shouting "Fire"
three times slowly after those notified have withdrawn. The
blasting circuit shall be wired in series or parallel series.
All shooting circuits shall be tested with a galvanometer by a
qualified person before shooting. A careful examination for
misfires shall be made after each shot. Persons shall not return
to the face until smoke and dust have cleared away. The shooting
cable shall be adequately insulated and have a substantial
covering; be connected by the person firing the shot; and be kept
away from power circuits. Misfires shall be removed by firing
separate holes or by washing; shall not be drilled out; and shall
be removed under supervision of a foreman or qualified person.
Separate magazines for the storage of explosives and detonators
shall be located not less than three hundred feet from openings
or other structures. Magazines for the storage of explosives and
detonators shall be separated at least fifty feet. Magazines
shall be located behind barricades. The outside of magazinesshall be constructed of incombustible material. Rubbish and
combustible material shall not be permitted to accumulate around
or in magazine. Warning signs, to be seen in all directions,
shall be posted near magazines.
(g) Electrical. -- Power cables installed in slopes shall be
placed in conduit away from the belt as far as possible. Surface
transformers shall be elevated at least eight feet from the
ground or enclosed by a fence six feet high, grounded if metal;
shall be properly grounded; shall be installed so that they will
not present a fire hazard; and shall be guarded by sufficient
danger signs.
Electric equipment shall be in good condition, clean and
orderly; shall be equipped with guards around moving parts; and
shall be grounded with effective frame grounds on motors and
control boxes.
All electric wires shall be installed and supported on
insulators. All electric equipment shall be protected by dual
element fuse or circuit breakers.
(h) Ventilation. -- Ventilating fans shall be offset from
portal at least fifteen feet; shall be installed so that the
ventilating current is not contaminated by dust, smoke or gases;
shall be effectively frame grounded; and shall be provided with
fire extinguishers.
All shafts and slopes shall be ventilated adequately and
continuously with fresh air. Air tubing shall deliver not less
than nine thousand feet per minute at the working area or as muchmore as the inspector may require.
(i) Gases. -- A foreman shall be in attendance at all times
in shafts and slopes who has passed an examination given by the
division office as to his or her competency in the use of flame
safety lamps.
An examination shall be made before and after shooting by
the foreman on shift. The foreman shall have no superior in the
performance of his or her duties. A lighted flame safety lamp or
other approved detector shall be carried at all times by the
foreman when in the working area and weekly gas analysis made.
In all shafts and slopes within three hours immediately preceding
the beginning of a work shift and before any workmen in such
shift, other than those who may be designated to make the
examinations, enter the underground areas of such shafts or
slopes, a certified mine foreman or mine examiner designated by
the operator of such shaft or slope to do so, shall make an
examination of such area. Evidence of official examination shall
be left at the face by marking date and initials.
Gases should be removed under the supervision of the foreman
in charge. Smoking shall not be permitted inside of shafts or
slopes.
(j) Drilling. -- Dust allaying or dust collecting devices
shall be used while drilling.
(k) Lights to be used in shafts. -- Only approved electric
cap lights shall be used in shafts. Other lights shall be of
explosive-proof type. Lights shall be suspended in shafts bycable or chain other than the power conductor. In slopes lights
must be substantially installed. Power cables shall be of an
approved type. Power cables shall not be taut from shaft collar
to light. Power cables shall be in good condition and free of
improper splices. Lights shall be suspended not less than twenty
feet above where miners are working. Lights shall be removed
from shaft and power cut off when shooting. In slopes lights
must be removed a safe distance when shots are fired. Lights
shall not be replaced in shafts or slopes until examination has
been made for gas by the mine examiner and found clear. Front of
light shall be protected by a substantial metal type guard.
Lights shall be protected from falling objects from above by a
metal hood. The lighting circuit shall be properly fused.
Electric lights shall not be used in gaseous atmospheres. A
lighted flame safety lamp or approved detector shall be kept for
use at the face while miners are at work.
§22A-2-72. Long wall and short wall mining.
(a) The Legislature finds that new methods of extracting
coal known as long wall or short wall mining is being used in
this state. The board of coal mine health and safety shall
investigate or cause to be investigated the technology,
procedures and techniques used in such mining methods and shall
promulgate by the first day of January, one thousand nine hundred
eighty-one, and continuously update the same, rules and
regulations governing long wall and short wall mining, which
rules and regulations shall have as their paramount objective,the health and safety of the persons involved in such operations,
and which said regulations rules shall include, but not be
limited to, the certification of personnel involved in such
operation.
(b) The commissioner director may modify the application of
any provision of this section to a mine if the commissioner
director determines that an alternative method of achieving the
result of such provision exists which will at all times guarantee
no less than the same measure of protection afforded the miners
of such mine by such provision, or that the application of such
provision to such mine will result in a diminution of the health
of, or safety to, the miners in such mine. The commissioner
director shall give notice to the operator and the representative
of miners in the affected mine, as appropriate, and shall cause
such investigation to be made as he or she deems appropriate.
Such investigation shall provide an opportunity for a hearing, at
the request of such operator or representative or other
interested party, to enable the operator and the representative
of miners in such mine or other interested party to present
information relating to the modification of such provision. The
commissioner director shall issue a decision incorporating his or
her findings of fact therein, and send a copy thereof to the
operator and the representative of the miners, as appropriate.
Any such hearing shall be of record.
§22A-2-73. Construction of shafts, slopes, surface facilities
and the safety hazards attendant therewith; duties of board
of coal mine health and safety to promulgate rules and
regulations; time limits therefor.
The board of coal mine health and safety shall investigate
or cause to be investigated the technology, procedures and
techniques used in the construction of shafts, slopes, surface
facilities, and the safety hazards, attendant therewith, and
shall promulgate rules and regulations governing the construction
of shafts and slopes; and shall promulgate by the first day of
January, one thousand nine hundred eighty-one, rules and
regulations governing the construction of surface facilities.
The board of coal mine health and safety shall continuously
update such rules and regulations governing the construction of
shafts, slopes and surface facilities, which rules and
regulations shall have as their paramount concern, the health and
safety of the persons involved in such operations, and such rules
and regulations shall include, but not be limited to, the
certification of all supervisors, the certification and training
of hoist operators and shaft workers, the certification of
blasters, and approval of plans. The provisions of such rules
and regulations may be enforced against operators and
construction companies in accord with the provisions of article
one-a one of this chapter. For purposes of this chapter, a
construction company shall be deemed is an operator.
§22A-2-74. Control of respirable dust.
Each operator shall maintain the concentration of respirable
dust in the mine atmosphere during each shift to which miners inactive workings of such mine are exposed below such level as the
board may establish. The board may promulgate rules and
regulations governing respirable dust, including, but not limited
to, dust standards, sampling procedures, sampling devices,
equipment and sample analysis by using the data gathered by the
federal mine safety and health administration and/or the bureau
of mines.
Any operator found to be in violation of such standards
shall bring itself into compliance with such standards and rules
and regulations of the board or the commissioner director may
thereafter order such operator to discontinue such operation.
§22A-2-75. Coal operators -- Procedure before operating near oil
and gas wells.
(a) Before a coal operator conducts underground mining
operations within five hundred feet of any well, including the
driving of an entry or passageway, or the removal of coal or
other material, the coal operator shall file with the division of
mines and minerals office of miners' health, safety and training
and forward to the well operator by certified mail, return
receipt requested, its mining maps and plans (which it is
required to prepare, file and update to and with the regulatory
authority) for the area within five hundred feet of the well,
together with a notice, on a form furnished by the director,
informing them that the mining maps and plans are being filed or
mailed pursuant to the requirements of this section.
Once these mining maps and plans are filed with the divisionoffice, the coal operator may proceed with its underground mining
operations in the manner and as projected on such plans or maps,
but shall not remove, without the consent of the director, any
coal or other material or cut any passageway nearer than two
hundred feet of any completed well or well that is being drilled.
The coal operator shall, at least every six months while mining
within the five hundred foot area, update its mining maps and
plans and file the same with the director and the well operator.
(b) Application may be made at any time to the director by
a coal operator for leave to conduct underground mining
operations within two hundred feet of any well or to mine through
any well, by petition, duly verified, showing the location of the
well, the workings adjacent to the well and the mining operations
contemplated within two hundred feet of the well or through such
well, and praying the approval of the same by the director and
naming the well operator as a respondent. The coal operator
shall file such petition with the director and mail a true copy
to the well operator by certified mail, return receipt requested.
The petition shall notify the well operator that it may
answer the petition within five days after receipt, and that in
default of an answer the director may approve the proposed
operations as requested if it be shown by the petitioner or
otherwise to the satisfaction of the director that such
operations are in accordance with the law and with the provisions
of this article. If the well operator files an answer which
requests a hearing, one shall be held within ten days of suchanswer and the director shall fix a time and date and give both
the coal operator and well operator five days' written notice of
the same by certified mail, return receipt requested. At the
hearing, the well operator and coal operator, as well as the
director, shall be permitted to offer any competent and relevant
evidence. Upon conclusion of the hearing, the director shall
grant the request of the coal operator or refuse to grant the
same, or make such other decision with respect to such proposed
underground operation as in its judgment is just and reasonable
under all circumstances and in accordance with law and the
provisions of this article:
Provided,
That a grant by the
director of a request to mine through a well shall require an
acceptable test to be conducted by the coal operator establishing
that such mining through can be done safely.
If a hearing is not requested by the well operator or if the
well operator gives, in writing, its consent to the coal operator
to mine within closer than two hundred feet of the specified
well, the director shall grant the request of the coal operator
within five days after the petition's original five day answer
period if the director determines that such operations are just,
reasonable and in accordance with law and the provisions of this
article.
The director shall docket and keep a record of all such
proceedings. From any such final decision or order of the
director, either the well operator or coal operator, or both,
may, within ten days, appeal to the circuit court of the countyin which the well subject to said petition is located. The
procedure in the circuit court shall be substantially as provided
in section four, article five, chapter twenty-nine-a of this
code, with the director being named as a respondent. From any
final order or decree of the circuit court, an appeal may be
taken to the supreme court of appeals as heretofore provided.
A copy of the document or documents evidencing the action of
the director with respect to such petition shall promptly be
filed with the director of the division chief of the office of
oil and gas of the division of environmental protection.
(c) Before a coal operator conducts surface or strip mining
operations as defined in this chapter, within two hundred feet of
any well, including the removal of coal and other material, the
operator shall file with the director and furnish to the well
operator by certified mail, return receipt requested, its mining
maps and plans (which it is required to prepare, file and update
to and with the regulatory authority) for the area within two
hundred feet of the well, together with a notice, on a form
furnished by the director, informing them that the mining maps
and plans are being filed or mailed pursuant to the requirements
of this section, and representing that the planned operations
will not unreasonably interfere with access to or operation of
the well and will not damage the well. In addition, the coal
operator shall furnish the well operator with evidence that it
has in force public liability insurance, with at least the
minimum coverage required by article three, of this chaptertwenty-two of this code, and the rules and regulations
promulgated thereto and thereunder.
Once these mining maps and plans are filed with the
director, the coal operator may proceed with its surface or strip
mining operations in the manner and as projected on such plans or
maps, so long as such surface mining operations do not
unreasonably interfere with access to, or operation of, the well
or do not damage the well.
(d) The filing of petitions and notices with the director as
herein provided may be complied with by mailing such petition or
notice to the director by certified mail, return receipt
requested.
§22A-2-76. Reopening old or abandoned mines.
No person, without first giving to the commissioner director
ten days' written notice thereof, shall reopen for any purposes
any old or abandoned mine wherein water or mine seepage has
collected or become impounded or exists in such manner or
quantity that upon the opening of such mine, such water or
seepage may drain into any stream or watercourse.
Such notice shall state clearly the name or names of the
owner or owners of the mine proposed to be opened, its exact
location, and the time of the proposed opening thereof.
Upon receipt of such notice, the commissioner director shall
have his or her representative present at the mine at the time
designated in the notice for such opening, who shall have has
full supervision of the work of opening such mine with fullauthority to direct the work in such manner as to him or her
seems proper and necessary to prevent the flow of mine water or
seepage from such mine in such manner or quantity as will kill or
be harmful to the fish in any stream or watercourse into which
such mine water seepage may flow directly or indirectly.
§22A-2-77. Monthly report by operator of mine; exception as to
certain inactive mines.
On or before the end of each calendar month, the operator of
each coal mine, regulated under the provisions of this chapter or
article three or four, chapter twenty-two of this code, shall
file with the director a report with respect thereto covering the
next preceding calendar month which shall reflect the number of
accidents which have occurred at each such mine, the number of
persons employed, the days worked and the actual raw tonnage
mined. Such report shall be made upon forms furnished by the
director. Other provisions of this section to the contrary
notwithstanding, no such report shall be required with respect to
any mine on approved inactive status if no employees were present
at such mine at any time during the next preceding calendar
month.
§22A-2-78. Examinations to determine compliance with permits.
Whenever permits are issued by the department of energy
office of miners' health, safety and training, frequent
examinations shall be made by the mine inspector during the
tenure of the permit to determine that the requirements and
limitations of the permit are complied with.
ARTICLE 5. 3. UNDERGROUND CLAY MINE.
§22A-3-1. 22A-5-1. Definition.
In this article the term "mine" includes the shafts, slopes,
drifts or inclines connected with excavations penetrating clay
seams or strata, which excavations are ventilated by one general
air current or division thereof, and the surface structures or
equipment connected therewith which contribute directly or
indirectly to the underground mining of clay.
§22A-3-2. 22A-5-2. Clay mine foreman; when to be employed;
qualifications; assistants.
In every underground clay mine where five or more persons
are employed in a period of twenty-four hours, the operator shall
employ a mine foreman who shall be a competent and practical
person holding a certificate of competence for said position
issued to him or her by the division of mines and minerals office
of miners' health, safety and training after an examination by
such division office. In order to receive a certificate of
competence qualifying a foreman in an underground clay mine, the
applicant shall take an examination prescribed by the director of
the division of mines and minerals office of miners' health,
safety and training, be a citizen of this state, of good moral
character and temperate habits, having had at least three years'
experience in the underground working of clay mines.
§22A-3-3. 22A-5-3. Regulations Rules for protection of health
and safety of employees.
The commissioner director of the office of miners' health,safety and training may from time to time promulgate reasonable
rules and regulations for the protection of the health and safety
of the persons working in or about underground clay mines, to the
extent the same are not more onerous or restrictive than the laws
of this state intended to safeguard the life and health of
persons working in underground coal mines contained in article
two of this chapter.
ARTICLE 6. 4. OPEN-PIT MINES, CEMENT MANUFACTURING PLANTS AND
UNDERGROUND LIMESTONE AND SANDSTONE MINES.
§22A-4-1. 22A-6-1. Definitions.
Unless the context in which used clearly requires a
different meaning as used in this article:
(a) "Open-pit mine" means an excavation worked from the
surface and open to daylight.
(b) "Underground mine" means subterranean workings for the
purpose of obtaining a desired material or materials.
(c) "Sand" means waterworn sandstone fragments transported
and deposited by water.
(d) "Gravel" means an occurrence of waterworn pebbles.
(e) "Sandstone" means a compacted or cemented sediment
composed chiefly of quartz grains.
(f) "Limestone" means a sedimentary rock composed mostly of
calcium carbonate.
(g) "Clay" means a natural material of mostly small
fragments of hydrous aluminum silicates and possessing plastic
properties.
(h) "Shale" means a laminated sedimentary rock composed
chiefly of small particles of a clay grade.
(i) "Iron ore" means a mineral or minerals, and gangue which
when treated will yield iron at a profit.
(j) "Manganese ore" means a metalliferous mineral which
when treated will yield manganese at a profit.
§22A-4-2. 22A-6-2. Applicability of mining laws.
All provisions of the mining laws of this state intended for
the protection of the health and safety of persons employed
within or at any coal mine and for the protection of any coal
mining property shall extend to all open-pit mines and any
property used in connection therewith for the mining of
underground limestone and sandstone mines, insofar as such laws
are applicable thereto.
§22A-4-3. 22A-6-3. Rules. and regulations.
The commissioner of the department of energy director of the
office of miners' health, safety and training shall promulgate
reasonable rules, and regulations in accordance with and confined
to the provisions of chapter twenty-nine-a of this code, for the
effective administration of this article.
§22A-4-4. 22A-6-4. Monthly report by operator.
The operator of such mine shall, on or before the end of
each calendar month, file with the director of the division of
mines and minerals office of miners' health, safety and training
a report covering the preceding calendar month on forms furnished
by the director. Such reports shall state the number ofaccidents which have occurred, the number of persons employed,
the days worked and the actual tonnage mined.
§22A-4-5. 22A-6-5. Inspectors.
The director of the division of mines and minerals office of
miners' health, safety and training shall divide the state into
not more than two mining districts and assign one inspector to
each district. Such inspector shall be a citizen of West
Virginia, in good health, of good character and reputation,
temperate in habits, having a minimum of five years of practical
experience in such mining operations and who at the time of his
appointment is not more than fifty-five years of age. To qualify
for appointment as such an inspector, an eligible applicant shall
submit to a written and oral examination by the mine inspectors'
examining board and furnish such evidence of good health,
character and other facts establishing eligibility as the board
may require. If the board finds after investigation and
examination that an applicant: (1) Is eligible for appointment
and (2) has passed all written and oral examinations, with a
grade of at least ninety percent, the board shall add such
applicant's name and grade to the register of qualified eligible
candidates and certify its action to the director of the division
of mines and minerals office of miners' health, safety and
training. No candidate's name shall remain in the register for
more than three years without requalifying.
Such inspector shall have the same tenure accorded a mine
inspector, as provided in subsection (d), section eight nine,article one-a one of this chapter and shall be paid not less than
fifteen thousand dollars per year. Such inspector shall also
receive reimbursement for traveling expenses at the rate of not
less than fifteen cents for each mile actually traveled in the
discharge of their duties in a privately owned vehicle. Such
inspector shall also be reimbursed for any expense incurred in
maintaining an office in his or her home, which office is used in
the discharge of official duties:
Provided,
That such
reimbursement shall not exceed two hundred forty dollars per
annum.
§22A-4-6. 22A-6-6. Penalties.
Any person who fails or refuses to discharge any provision
of this article, rule and regulation promulgated or order issued
pursuant to the provisions of this article, shall be is guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
a fine of not less than one hundred nor more than one thousand
dollars or by imprisonment not exceeding six months, or by both.
ARTICLE 5. BOARD OF APPEALS.
§22A-5-1. 22-5-1. Board of appeals.
There is hereby continued a board of appeals, consisting of
three members. Two members of the board shall be appointed by
the governor, one person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
miners, and one person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
the operators. The third person, who shall be chairman is chair of the board and who must not have had any connection at any time
with the coal industry or an organization representing miners,
shall be is selected by the two members appointed by the
governor. The term of office of members of the board shall be
is five years.
The function and duties of the board shall be is to hear
appeals, make determinations on questions of miners' entitlements
due to withdrawal orders and appeals from discharge or
discrimination, and suspension of certification certificates.
The chairman chair of the board shall have has the power to
administer oaths and subpoena witnesses and require production of
any books, papers, records or other documents relevant or
material to the appeal inquiry.
The chairman chair shall subpoena any witness requested by
a party to a hearing to testify or produce books, records or
documents. Any witness responding to a subpoena so issued shall
receive a daily witness fee to be paid out of the state treasury
upon a requisition of the state auditor equivalent to the rate of
pay under the wage agreement currently in effect plus all
reasonable expenses for meals, lodging and travel at the rate
applicable to state employees. Any full payments as hereinbefore
specified shall be in full and exclusive payment for meals,
lodging, actual travel and similar expenses and shall be made in
lieu of any lost wages occasioned by such appearance in
connection with any hearing conducted by the board.
Each member of the board shall receive one hundred dollarsper diem while actually engaged in the performance of the work of
the board. Each member shall be reimbursed for all reasonable
and necessary expenses actually incurred during the performance
of their duties. Each member shall receive mileage expense
reimbursement at the rate established by rule and regulation of
the commissioner of the department of finance and administration
for in-state travel of public employees the governor's travel
rules, as administered by the department of administration. No
reimbursement for expenses shall be made except upon an itemized
account, properly certified by such members of the board. All
reimbursement for expenses shall be paid out of the state
treasury upon a requisition upon the state auditor.
Board members, before performing any duty, shall take and
subscribe to the oath required by section five, article IV of the
constitution of West Virginia.
ARTICLE 6. BOARD OF COAL MINE HEALTH AND SAFETY.
§22A-6-1. 22-6-1. Declaration of legislative findings and
purpose.
(a) The Legislature hereby finds and declares that:
(1) The Legislature concurs with the congressional
declaration made in the "Federal Coal Mine Health and Safety Act
of 1969" that "the first priority and concern of all in the coal
mining industry must be the health and safety of its most
precious resource -- the miner";
(2) Coal mining is highly specialized, technical and complex
and it requires frequent review, refinement and improvement ofstandards to protect the health and safety of miners;
(3) During each session of the Legislature, coal mine health
and safety standards are proposed which require knowledge and
comprehension of scientific and technical data related to coal
mining;
(4) The formulation of appropriate regulations rules and
practices to improve health and safety and provide increased
protection of miners can be accomplished more effectively by
persons who have experience and competence in coal mining and
coal mine health and safety.
(b) In view of the foregoing findings, it is the purpose of
this article to:
(1) Continue the board of coal mine health and safety;
(2) Require such board to continue as standard rules and
regulations the coal mine health and safety provisions of this
code;
(3) Compel the board to review such standard rules and
regulations and, when deemed appropriate to improve or enhance
coal mine health and safety, to revise the same or develop and
promulgate new rules and regulations dealing with coal mine
health and safety; and
(4) Authorize such board to conduct such other activities as
it deems necessary to implement the provisions of this chapter.
§22A-6-2. 22-6-2. Definitions.
Unless the context in which a word or phrase appears clearly
requires a different meaning, the words and phrases defined insection one two, article one-a one of this chapter twenty-two-a
of this code shall have, when used in this article, the meaning
therein assigned to them. For the purpose of this article
"board" means the board of coal mine health and safety continued
by section three of this article.
§22A-6-3. 22-6-3. Board continued; membership; method of
nomination and appointment; meetings; vacancies; quorum.
(a) The board of coal mine health and safety, heretofore
established, is continued as provided by this article. The board
shall consist consists of seven members who shall be are
residents of this state, and who shall be are appointed as
hereinafter specified in this section:
(1) The governor shall appoint one member to represent the
viewpoint of those operators in this state whose individual
aggregate production exceeds one million tons annually and one
member to represent the viewpoint of those operators in this
state whose individual aggregate production is less than one
million tons annually, which tonnage shall include includes
tonnage produced by affiliated, parent and subsidiary companies
and tonnage produced by companies which have a common director or
directors, shareholder or shareholders, owner or owners. When
such members are to be appointed, the governor may request from
the major trade association representing operators in this state
a list of three nominees for each such position on the board.
All such nominees shall be persons with special experience and
competence in coal mine health and safety. There shall besubmitted with such list a summary of the qualifications of each
nominee. If the full lists of nominees are submitted in
accordance with the provisions of this subdivision, the governor
shall make his the appointments from the persons so nominated.
For purposes of this subdivision, the major trade association
representing operators in this state shall be deemed to be is
that association which represents operators accounting for over
one half of the coal produced in mines in this state in the year
prior to the year in which the appointment is to be made.
(2) The governor shall appoint two members who can
reasonably be expected to represent the viewpoint of the working
miners of this state. If the major employee organization
representing coal miners in this state is divided into
administrative districts, such members shall not be from the same
administrative district. The highest ranking official within the
major employee organization representing coal miners within this
state shall, upon request by the governor, submit a list of three
nominees for each such position on the board:
Provided,
That if
the major employee organization representing coal miners in this
state is divided into administrative districts, and if there are
two vacancies to be filled in accordance with the provisions of
this subdivision, not more than two persons on each list of three
nominees shall be from the same administrative district and at
least three districts shall be represented on the two lists
submitted, and if there is one vacancy to be filled, no names
shall be submitted of persons from the same administrativedistrict already represented on the board. Said nominees shall
have a background in coal mine health and safety, and shall at
the time of their appointment be employed in a position which
involves the protection of health and safety of miners. There
shall be submitted with such list a summary of the qualifications
of each nominee. If the full lists of nominees are submitted in
accordance with the provisions of this subdivision, the governor
shall make his appointments from the persons so nominated.
(3) The governor shall appoint one public member who is
professionally qualified in the field of occupational health and
safety and who shall be is (A) an employee of the institute of
labor studies at West Virginia University or (B) a person who is
engaged in or who has broad experience in occupational health and
safety from the perspective of the worker. Such nominee shall
have technical experience in occupational health and safety or
education and experience in such field:
Provided,
That the
nominee shall not have been, prior to his appointment to the
board, employed by a mining or industrial business entity in a
managerial or supervisory position, or shall not have been
employed by the major employee organization representing coal
miners in this state, or shall not have been a miner.
(4) The governor shall appoint one public member who is
professionally qualified in the field of occupational health and
safety and who shall have has a degree in engineering or
industrial safety and a minimum of five years' experience in the
field of industrial safety engaged in constructing, designing,developing or administering safety programs:
Provided,
That the
nominee shall has not have been, prior to his appointment to the
board, employed by a mining business entity in a managerial or
supervisory position or shall has not have been employed by the
major employee organization representing coal miners in this
state, or shall has not have been a miner.
(5) All appointments made by the governor under the
provisions of subdivisions (1), (2), (3) and (4) of this
subsection shall be with the advice and consent of the Senate.
(6) The seventh member of the board shall be the
commissioner of the department of energy is the secretary of the
department of commerce, labor and environmental resources, or his
or her designee, who shall serve as chairman serves as chair of
the board. The commissioner director shall furnish to the board
such secretarial, clerical, technical, research and other
services as are deemed necessary to the conduct of the business
of the board, not otherwise furnished by the board.
(b) Any unexpired term of members of the board under prior
enactments of this section shall end upon the appointment of
members in accordance with the provisions of this section. Upon
the initial appointment of members, the governor shall specify
the length of the beginning term which each member shall serve,
pursuant to the following formula:
(1) With regard to the two members appointed in accordance
with the provisions of subdivision (1), subsection (a) of this
section, one member shall serve a beginning term of one year, andone member shall serve a beginning term of two years.
(2) With regard to the two members appointed in accordance
with the provisions of subdivision (2), subsection (a) of this
section, one member shall serve a beginning term of one year and
one member shall serve a beginning term of two years.
(3) The members appointed in accordance with the provisions
of subdivisions (3) and (4), subsection (a) of this section shall
each be appointed to serve a beginning term of three years.
(4) Following the beginning terms provided for in this
subsection, Members serving on the board on the effective date of
this article may continue to serve until the expiration of their
terms. Thereafter, members shall be nominated and appointed in
the manner provided for in this section and shall serve for a
term of three years. Members shall be are eligible for
reappointment.
(c) The governor shall appoint a health and safety
administrator in accordance with the provisions of section four-b
six of this article, who shall certify all official records of
the board. The health and safety administrator shall be a full-
time officer of the board of coal mine health and safety with the
duties provided for in section four-b six of this article. The
health and safety administrator shall have such education and
experience as the governor deems necessary to properly
investigate areas of concern to the board in the development of
rules and regulations governing mine health and safety. The
governor shall appoint as health and safety administrator aperson who has an independent and impartial viewpoint on issues
involving mine safety. The health and safety administrator shall
be a person who has not been, during the two years immediately
preceding his appointment, and is not during his or her term, an
officer, trustee, director, substantial shareholder or employee
of any coal operator, or an employee or officer of an employee
organization, or a spouse of any such person. The health and
safety administrator shall have the expertise to draft proposed
rules and regulations and shall prepare such rules and
regulations as are required by this code and on such other areas
as will improve coal mine health and safety.
(d) The board shall meet at least once during each calendar
month, or more often as may be necessary, and at other times upon
the call of the chairman chair, or upon the request of any three
members of the board. Under the direction of the board, the
health and safety administrator shall prepare an agenda for each
board meeting giving priority to the promulgation of rules and
regulations as may be required from time to time by this code,
and as may be required to improve coal mine health and safety.
The health and safety administrator shall provide each member of
the board with notice of the meeting and the agenda as far in
advance of the meeting as practical, but in any event, at least
five days prior thereto. No meeting of the board shall be
conducted unless said notice and agenda are given to the board
members at least five days in advance, as provided herein, except
in cases of emergency, as declared by the chairman chair, inwhich event members shall be notified of the board meeting and
the agenda in a manner to be determined by the chairman chair:
Provided,
That upon agreement of a majority of the quorum
present, any scheduled meeting may be ordered recessed to another
day certain without further notice of additional agenda.
When proposed rules and regulations are to be finally
adopted by the board, copies of such proposed rules and
regulations shall be delivered to members not less than five days
before the meeting at which such action is to be taken. If not
so delivered, any final adoption or rejection of rules and
regulations shall be considered on the second day of a meeting of
the board held on two consecutive days, except that by the
concurrence of at least four members of the board, the board may
suspend this rule of procedure and proceed immediately to the
consideration of final adoption or rejection of rules. and
regulations When a member shall fail fails to appear at three
consecutive meetings of the board or at one half of the meetings
held during a one-year period, the health and safety
administrator shall notify the member and the governor of such
fact. Such member shall be removed by the governor unless good
cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and
appointments shall be made in the manner prescribed in this
section:
Provided,
That in the case of an appointment to fill a
vacancy, nominations of three persons for each such vacancy shall
be requested by and submitted to the governor within thirty daysafter the vacancy occurs by the major trade association or major
employee organization, if any, which nominated the person whose
seat on the board is vacant. The vacancy shall be filled by the
governor within thirty days of his receipt of the list of
nominations.
(f) A quorum of the board shall be is five members which
shall include the commissioner secretary of the department of
commerce, labor and environmental resources, at least one member
representing the viewpoint of operators and at least one member
representing the viewpoint of the working miners, and the board
may act officially by a majority of those members who are
present.
§22A-6-4. 22-6-4. Board powers and duties.
(a) At the organizational meeting of the board required by
subsection (c), section three of this article, The board shall
adopt as standard rules and regulations the "coal mine health and
safety provisions of this chapter." twenty-two-a of this code
Such standard rules and regulations and any other rules and
regulations shall be adopted by the board without regard to the
provisions of chapter twenty-nine-a of this code. The board of
coal mine health and safety shall devote its time toward
promulgating rules and regulations in those areas specifically
directed by this chapter twenty-two-a of this code and those
necessary to prevent fatal accidents and injuries.
(b) The board shall review such standard rules and
regulations and, when deemed appropriate to improve or enhancecoal mine health and safety, revise the same or develop and
promulgate new rules and regulations dealing with coal mine
health and safety.
(c) The board shall develop, promulgate and revise, as may
be appropriate, rules and regulations as are necessary and proper
to effectuate the purposes of article two, of this chapter
twenty-two-a of this code and to prevent the circumvention and
evasion thereof, all without regard to the provisions of chapter
twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific
data in the field, the technical feasibility of standards, and
experience gained under this and other safety statutes, such
rules and regulations may expand protections afforded by this
chapter twenty-two-a of this code notwithstanding specific
language therein, and such rules and regulations may deal with
subject areas not covered by this chapter twenty-two-a of this
code to the end of affording the maximum possible protection to
the health and safety of miners.
(2) No rules or regulations promulgated by the board of
mines shall reduce or compromise the level of safety or
protection afforded miners below the level of safety or
protection afforded by this chapter. twenty-two-a of this code
(3) Any miner or representative of any miner, or any coal
operator shall have has the power to petition the circuit court
of Kanawha County for a determination as to whether any rule or
regulation promulgated or revised reduces the protection affordedminers below that provided by this chapter, twenty-two-a of this
code or is otherwise contrary to law:
Provided,
That any rule or
regulation properly promulgated by the board pursuant to the
terms and conditions of this chapter twenty-two-a of this code
shall create creates a rebuttable presumption that said rule or
regulation does not reduce the protection afforded miners below
that provided by this chapter. twenty-two-a of this code.
(4) The commissioner director shall cause proposed rules and
regulations and a notice thereof to be posted as provided in
section sixteen eighteen, article one-a one of this chapter.
twenty-two-a of this code The commissioner director shall
deliver a copy of such proposed rules and regulations and
accompanying notice to each operator affected. A copy of such
proposed rules and regulations shall be provided to any
individual by the commissioner director request. The notice of
proposed rules and regulations shall contain a summary in plain
language explaining the effect of the proposed rules. and
regulations
(5) The board shall afford interested persons a period of
not less than thirty days after releasing proposed rules and
regulations to submit written data or comments. The board may,
upon the expiration of such period and after consideration of all
relevant matters presented, promulgate such rules and regulations
with such modifications as it may deem appropriate.
(6) On or before the last day of any period fixed for the
submission of written data or comments under subdivision (5) ofthis section, any interested person may file with the board
written objections to a proposed rule, or regulation stating the
grounds therefor and requesting a public hearing on such
objections. As soon as practicable after the period for filing
such objections has expired, the board shall release a notice
specifying the proposed rules or regulations to which objections
have been filed and a hearing requested.
(7) Promptly after any such notice is released by the board
under subdivision (6) of this section, the board shall issue
notice of, and hold a public hearing for the purpose of receiving
relevant evidence. Within sixty days after completion of the
hearings, the board shall make findings of fact which shall be
public, and may promulgate such rules and regulations with such
modifications as it deems appropriate. In the event the board
determines that a proposed rule or regulation should not be
promulgated or should be modified, it shall within a reasonable
time publish the reasons for its determination.
(8) All rules and regulations promulgated by the board shall
be published in the state register and shall continue in effect
until modified or superseded in accordance with the provisions of
this chapter.
(d) To carry out its duties and responsibilities, the board
is authorized to employ such personnel, including legal counsel,
experts and consultants, as it deems necessary. In addition,
the board, within the appropriations provided for by the
Legislature, may conduct or contract for research and studies andshall be is titled to the use of the services, facilities and
personnel of any agency, institution, school, college or
university of this state.
(e) The commissioner director shall within sixty days of a
coal mining fatality or fatalities provide the board with all
available reports regarding such fatality or fatalities.
The board shall review all such reports, receive any
additional information, and may, on its own initiative, ascertain
the cause or causes of such coal mining fatality or fatalities.
Within one hundred twenty days of such review of each such
fatality, the board shall promulgate such rules and regulations
as are necessary to prevent the recurrence of such fatality,
unless a majority of the quorum present determines that no rules
and regulations shall can assist in the prevention of the
specific type of fatality. Likewise, the board shall annually,
not later than the first day of July, review the major causes of
coal mining injuries during the previous calendar year, reviewing
the causes in detail, and shall promulgate such rules and
regulations as may be necessary to prevent the recurrence of such
injuries.
Further, the board shall, on or before the tenth day of
January of each year, submit a report to the governor, president
of the Senate and speaker of the House, which report shall
include, but is not be limited to:
(1) The number of fatalities during the previous calendar
year, the apparent reason for each fatality as determined by thedepartment of energy office of miners' health, safety and
training and the action, if any, taken by the board to prevent
such fatality;
(2) Any rules and regulations promulgated by the board
during the last year;
(3) What rules and regulations the board intends to
promulgate during the current calendar year;
(4) Any problem the board is having in its effort to
promulgate rules and regulations to enhance health and safety in
the mining industry;
(5) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would cause the enhancement of
health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein
contained, each individual member of said board shall have has
right to submit a separate report, setting forth any views
contrary to the report of the board, and the separate report, if
any, shall be appended to the report of the board and be
considered a part thereof.
§22A-6-5. 22-6-4a. Preliminary procedures for promulgation of
rules. and regulations
(a) Prior to the posting of proposed rules and regulations
as provided for in subsection (c), section four of this article,
the board shall observe the preliminary procedure for the
development of rules and regulations set forth in this section:
(1) During a board meeting or at any time when the board is
not meeting, any board member may suggest to the health and
safety administrator, or such administrator on his or her own
initiative may develop, subjects for investigation and possible
regulation;
(2) Upon receipt of a suggestion for investigation, the
health and safety administrator shall prepare a report, to be
given at the next scheduled board meeting, of the technical
evidence available which relates to such suggestion, the staff
time required to develop the subject matter, the legal authority
of the board to act on the subject matter, including a
description of findings of fact and conclusions of law which will
be necessary to support any proposed rules; and regulations
(3) The board shall by majority vote of those members who
are present determine whether the health and safety administrator
shall prepare a draft regulation rule concerning the suggested
subject matter;
(4) After reviewing the draft regulation rule, the board
shall determine whether the proposed rules and regulations should
be posted and made available for comment as provided for in
section four of this article;
(5) The board shall receive and consider those comments to
the proposed rules and regulations as provided for in section
four of this article;
(6) The board shall direct the health and safety
administrator to prepare for the next scheduled board meetingfindings of fact and conclusions of law for the proposed rules,
and regulations which may incorporate comments received and
technical evidence developed, and which are consistent with
section four of this article;
(7) The board shall adopt or reject or modify the proposed
findings of fact and conclusions of law; and
(8) The board shall make a final adoption or rejection of
the rules. and regulations
(b) By the concurrence of at least four members of the
board, the board may dispense with the procedure set out in (a)
above or any other procedural rule established, except that the
board shall in all instances when adopting rules and regulations
prepare findings of fact and conclusions of law consistent with
this section and section four of this article.
(c) Without undue delay, the board shall adopt an order of
business for the conduct of meetings which will promote the
orderly and efficient consideration of proposed rules and
regulations in accordance with the provisions of this section.
§22A-6-6. 22-6-4b. Health and safety administrator;
qualifications; duties; employees; compensation.
(a) The governor shall appoint the health and safety
administrator of the board for a term of employment of one year.
The health and safety administrator shall be entitled to have his
or her contract of employment renewed on an annual basis except
where such renewal is denied for cause:
Provided,
That the
governor shall have has the power at any time to remove thehealth and safety administrator for misfeasance, malfeasance or
nonfeasance:
Provided, however,
That the board shall have has
the power to remove the health and safety administrator without
cause upon the concurrence of five members of the board.
(b) The health and safety administrator shall work at the
direction of the board, independently of the commissioner of the
department of energy director of the office of miners' health,
safety and training and shall have has such authority and shall
perform such duties as may be required or necessary to effectuate
this article.
(c) In addition to the health and safety administrator,
there shall be such other research employees hired by the health
and safety administrator as the board determines to be necessary.
The health and safety administrator shall provide supervision
and direction to the other research employees of the board in the
performance of their duties.
(d) The employees of the board shall be compensated at rates
determined by the board. The salary of the health and safety
administrator shall be fixed by the governor:
Provided,
That the
salary of the health and safety administrator shall not be
reduced during his or her annual term of employment or upon the
renewal of his or her contract for an additional term. Such
salary shall be fixed for any renewed term at least ninety days
before the commencement thereof.
(e) Appropriations for the salaries of the health and safety
administrator and any other employees of the board and fornecessary office and operating expenses shall be made to a budget
account hereby established for those purposes in the general
revenue fund. Such account shall be separate from any accounts
or appropriations for the department of energy office of miners'
health, safety and training.
(f) The health and safety administrator shall review all
coal mining fatalities and major causes of injuries as mandated
by section four of this article. An analysis of such fatalities
and major causes of injuries shall be prepared for consideration
by the board within ninety days of the occurrence of the
accident.
(g) At the direction of the board, the administrator shall
also conduct an annual study of occupational health issues
relating to employment in and around coal mines of this state and
submit a report to the board with findings and proposals to
address the issues raised in such study. The administrator shall
be is responsible for preparing the annual reports required by
subsection (e), section four of this article and section six nine
of this article.
§22A-6-7. 22-6-4c. Coal mine safety and technical review
committee; membership; method of nomination and appointment;
meetings; quorum; powers and duties of the committee; powers
and duties of the board of coal mine health and safety.
(1) (a) There is hereby established a continued the state
coal mine safety and technical review committee. The purposes of
this committee are to:
(a) (1) Assist the board of coal mine health and safety in
the development of technical data relating to mine safety issues,
including related mining technology;
(b) (2) Provide suggestions and technical data to the board
and propose rules and regulations with general mining industry
application;
(c) (3) Accept and consider petitions submitted by
individual mine operators or miners seeking site-specific rule-
making pertaining to individual mines and make recommendations to
the board concerning such rule-making; and
(d) (4) Provide a forum for the resolution of technical
issues encountered by the board.
(2) (b) The committee shall consist of two members who shall
be residents of this state, and who shall be appointed as
hereinafter specified in this section:
(a) (1) The governor shall appoint one member to represent
the viewpoint of the coal operators in this state from a list
containing one or more nominees submitted by the major trade
association representing coal operators in this state within
thirty days of submission of such nominee or nominees.
(b) (2) The governor shall appoint one member to represent
the viewpoint of the working miners of this state from a list
containing one or more nominees submitted by the highest ranking
official within the major employee organization representing coal
mines within this state within thirty days of submission of the
nominee or the nominees.
(c) (3) The members appointed in accordance with the
provisions of subdivisions (a) (1) and (b) (2) of this subsection
shall be initially appointed to serve a term of three years. The
members serving on the effective date of this article may
continue to serve until their terms expire.
(d) (4) The members appointed in accordance with the
provisions of subdivisions (a) (1) and (b) (2) of this subsection
may be, but are not required to be, members of the board of coal
mine health and safety, and shall be compensated on a per diem
basis in the same amount as provided in section seven ten of this
article, plus all reasonable expenses.
(3) (c) The committee shall meet at least once during each
calendar month, or more often as may be necessary.
(4) (d) A quorum of the committee shall require both
members, and the committee may only act officially by a quorum.
(5) (e) The committee may review any matter relative to mine
safety and mining technology, and may pursue development and
resolution of issues related thereto. The committee may make
recommendations to the board for the promulgation of rules and
regulations with general mining industry application. Upon
receipt of a unanimous recommendation for rule-making from the
committee and only thereon, the board may adopt or reject such
rule, or regulations without modification except as approved by
the committee:
Provided,
That any adopted rule or regulation
shall not reduce or compromise the level of safety or protection
below the level of safety or protection afforded by applicablestatutes and regulations rules. When so promulgated, such rules
or regulations shall be effective, notwithstanding the provisions
of applicable statutes. or regulations
(6)(a) (f)(1) Upon application of a coal mine operator, or
on its own motion, the committee has the authority to accept
requests for site-specific rule-making on a mine-by-mine basis,
and make unanimous recommendations to the board for site-specific
rules and regulations thereon. The committee has authority to
approve a request if it concludes that the request does not
reduce or compromise the level of safety or protection afforded
miners below the level of safety or protection afforded by any
applicable statutes or regulations rules. Upon receipt of a
request for site-specific rule-making, the committee may conduct
an investigation of the conditions in the specific mine in
question, which investigation shall include consultation with the
mine operator and authorized representatives of the miners. Such
authorized representatives of the miners shall include any person
designated by the employees at the mine, persons employed by an
employee organization representing one or more miners at the
mine, or a person designated as a representative by one or more
persons at the mine.
(b) (2) If the committee determines to recommend a request
made pursuant to subdivision (a) (1) of this subsection, the
committee shall provide the results of its investigation to the
board of coal mine health and safety along with recommendations
for the development of the site-specific rules and regulationsapplicable to the individual mine, which recommendations may
include a written proposal containing draft rules. and
regulations
(c) (3) Within thirty days of receipt of the committee's
recommendation, the board shall adopt or reject, without
modification, except as approved by the committee, the
committee's recommendation to promulgate site-specific
regulations rules applicable to an individual mine adopting such
site-specific regulations rules only if it determines that the
application of the requested rule to such mine will not reduce or
compromise the level of safety or protection afforded miners
below that level of safety or protection afforded by any
applicable statutes. or regulations When so promulgated, such
rules or regulations shall be effective notwithstanding the
provisions of applicable statutes. or regulations
(7) (g) The board shall consider all regulations rules
proposed by the coal mine safety and technical review committee
and adopt or reject, without modification, except as approved by
the committee, such rules, and regulations dispensing with the
preliminary procedures set forth in subdivisions (1) through (7),
subsection (a), section four-a five; and, in addition, with
respect to site-specific regulations rules also dispensing with
the procedures set forth in subdivisions (4) through (8),
subsection (c), section four of this article.
(8) (h) In performing its functions, the committee shall
have has access to the services of the coal mine health andsafety administrator appointed under section four-b six of this
article. The commissioner director shall make clerical support
and assistance available in order that the committee can carry
out its duties. Upon the request of both members of the
committee, the health and safety administrator shall draft
proposed regulations rules and reports or make investigations.
(9) (i) The powers and duties provided for in this section
for the committee are not intended to replace or precondition the
authority of the board of coal mine health and safety to act in
accordance with sections one through four-b six and five eight
through seven ten of this article.
(10) (j) Appropriations for the funding of the committee and
to effectuate this section shall be made to a budget account
hereby established for that purpose in the general revenue fund.
Such account shall be separate from any accounts or
appropriations for the department of energy office of miners'
health, safety and training.
§22A-6-8. 22-6-5. Effect of rules. and regulations
The standard rules and regulations and any rules and
regulations promulgated by the board shall have the same force
and effect of law as if enacted by the Legislature as a part of
article two of this chapter twenty-two-a of this code and any
violation of any such rule and regulation shall be deemed to be
is a violation of law or of a health or safety standard within
the meaning of this chapter.
§22A-6-9. 22-6-6. Reports.
Prior to each regular session of the Legislature, the board
shall submit to the Legislature an annual report upon the subject
matter of this article, the progress concerning the achievement
of its purpose and any other relevant information, including any
recommendations it deems appropriate.
§22A-6-10. 22-6-7. Compensation and expenses of board members.
Each member of the board not otherwise employed by the state
shall receive one hundred ten dollars per diem while actually
engaged in the performance of the duties of the board. Each
member shall be reimbursed for all reasonable and necessary
expenses actually incurred during the performance of his or her
duties, except that in the event the expenses are paid by a third
party, the member shall not be reimbursed by the state. Each
member shall receive meals, lodging and mileage expense
reimbursements at the rates established by rule and regulation of
the commissioner of the department of finance and administration
for in-state travel of public employees the governor's travel
rules, as administered by the department of administration. The
reimbursement shall be paid out of the state treasury upon a
requisition upon the state auditor, properly certified by the
commissioner of the department of energy office of miners'
health, safety and training. No employer shall prohibit a member
of the board from exercising leave of absence from his or her
place of employment in order to attend a meeting of the board or
a meeting of a subcommittee of the board, or to prepare for a
meeting of the board, any contract of employment to the contrarynotwithstanding.
ARTICLE 9. 7. BOARD OF MINER TRAINING, EDUCATION AND
CERTIFICATION.
§22A-7-1. 22-9-1. Short title.
This article shall be cited as "The West Virginia Miner
Training, Education and Certification Act."
§22A-7-2. 22-9-2. Declaration of legislative findings and
policy.
The Legislature hereby finds and declares that:
(a) The continued prosperity of the coal industry is of
primary importance to the state of West Virginia;
(b) The highest priority and concern of this Legislature and
all in the coal mining industry must be the health and safety of
the industry's most valuable resource -- the miner;
(c) A high priority must also be given to increasing the
productivity and competitiveness of the mines in this state;
(d) An inordinate number of miners, working on both the
surface in surface mining and in and at underground mines, are
injured during the first few months of their experience in a
mine;
(e) These injuries result in the loss of life and serious
injury to miners and are an impediment to the future growth of
West Virginia's coal industry;
(f) Injuries can be avoided through proper miner training,
education and certification;
(g) Mining is a technical occupation with variousspecialties requiring individualized training and education; and
(h) It is the general purpose of this article to:
(1) Require adequate training, education and meaningful
certification of all persons employed in coal mines;
(2) Establish a board of miner training, education and
certification and empower it to require certain training and
education of all prospective miners and miners certified by the
state;
(3) Authorize a stipend for prospective miners enrolled in
this state's miner training, education and certification program;
(4) Direct the commissioner of the department of energy
director of the office of miners' health, safety and training to
apply and implement the standards set by the board of miner
training, education and certification by establishing programs
for miner and prospective miner education and training; and
(5) Provide for a program of continuing miner education for
all categories of certified miners.
§22A-7-3. 22-9-3. Definitions.
Unless the context in which a word or phrase appears clearly
requires a different meaning, the words defined in section one
two, article one-a one of this chapter twenty-two-a of this code
shall have when used in this article the meaning therein assigned
to them. These words include, but are not limited to, the
following: division, director of the division of mines and
minerals office, director, mine inspector, operator, miner,
shotfirer and certified electrician.
"Board" means the board of miner training, education and
certification established by section four of this article.
"Mine" means any mine, including a "surface mine," as that
term is defined in section three, article three, chapter twenty-
two-a twenty-two of this code, and in section two, article four
of said chapter; and a "mine" as that term is defined in section
one two, article one-a one of this chapter. twenty-two-a of this
code.
§22A-7-4. 22-9-4. Board of miner training, education and
certification created continued; membership; method of
appointment; terms.
(a) There is hereby continued a board of miner training,
education and certification, which shall consist consists of
seven members, who shall be are selected in the following manner:
(1) One member shall be appointed by the governor to
represent the viewpoint of surface mine operators in this state.
When such member is to be appointed, the governor shall request
from the major association representing surface coal operators in
this state a list of three nominees to the board. The governor
shall select from said nominees one person to serve on the board.
For purposes of this subsection, the major association
representing the surface coal operators in this state shall be
deemed to be is that association, if any, which represents
surface mine operators accounting for over one half of the coal
produced in surface mines in this state in the year prior to that
year in which the appointment is made.
(2) Two members shall be appointed by the governor to
represent the interests of the underground operators of this
state. When said members are to be appointed, the governor
shall request from the major association representing the
underground coal operators in this state a list of six nominees
to the board. The governor shall select from said nominees two
persons to serve on the board. For purposes of this subsection,
the major association representing the underground operators in
this state shall be deemed to be is that association, if any,
which represents underground operators accounting for over one
half of the coal produced in underground mines in this state in
the year prior to that year in which the appointments are made.
(3) Three members shall be appointed by the governor who can
reasonably be expected to represent the interests of the working
miners in this state. If the major employee organization
representing coal miners in this state is divided into
administrative districts, the employee organization of each
district shall, upon request by the governor, submit a list of
three nominees for membership on the board. If such major
employee organization is not so divided into administrative
districts, such employee organization shall, upon request by the
governor, submit a list of twelve nominees for membership on the
board. The governor shall make such appointments from the
persons so nominated:
Provided,
That in the event nominations
are made by administrative districts, not more than one member
shall be appointed from the nominees of any one district unlessthere are less than three such districts in this state.
(4) The seventh member of the board, who shall serve serves
as chairman chair, shall be the commissioner of the department of
energy director of the office of miners' health, safety and
training.
(5) All appointments made by the governor under this section
shall be with the advice and consent of the Senate:
Provided,
That persons so appointed while the Senate of this state is not
in session shall be are permitted to serve up to one year in an
acting capacity, or until the next session of the Legislature,
whichever is less.
(b) The board shall be appointed by the governor. Members
serving on the effective date of this article may continue on the
board until their terms expire. Appointed members shall serve
for a term of three years. The board shall meet at the call of
the chairman chair, at the call of the director, or upon the
request of any two members of the board:
Provided,
That no
meeting of the board for any purpose shall be conducted unless
the board members are notified at least five days in advance of
a proposed meeting. In cases of an emergency, members may be
notified of a board meeting by the most appropriate means of
communication available.
(c) Whenever a vacancy on the board occurs, appointments
shall be made in the manner prescribed in this section:
Provided,
That in the case of an appointment to fill a vacancy
nominations shall be submitted to the governor within thirty daysafter the vacancy occurs. The vacancy shall be filled by the
governor within thirty days of his receipt of the list of
nominations.
(d) Each appointed member of the board shall receive one
hundred ten dollars per diem while actually engaged in the
performance of the work of the board. Each member shall be
reimbursed for all reasonable and necessary expenses actually
incurred during the performance of their duties. Each member
shall receive meals, lodging and mileage expense reimbursements
at the rates established by rule and regulation of the
commissioner of the department of finance and administration for
in-state travel of public employees the governor's travel rules,
as administered by the department of administration, which shall
be paid out of the state treasury upon a requisition upon the
state auditor, properly certified by such members of the board.
(e) A quorum of the board shall be is four members. The
board may act officially by a majority of those members who are
present.
(f) The chairman chair of the board shall be a nonvoting
member:
Provided,
That in cases of a tie, the chairman chair
shall cast the deciding vote on the issue or issues under
consideration.
(g) The director of the division of mines and minerals
office of miners' health, safety and training shall select a
member of the office's staff to serve as the secretary to the
board and the secretary shall be present or send an authorizedrepresentative to all meetings of the board.
§22A-7-5. 22-9-5. Board powers and duties.
(a) The board shall establish criteria and standards for a
program of education, training and examination to be required of
all prospective miners and miners prior to their certification in
any of the various miner specialties requiring certification,
under this article or any other provision of this code. Such
specialties include, but are not limited to, underground miner,
surface miner, apprentice, underground mine foreman-fire boss,
assistant underground mine foreman-fire boss, shotfirer, mine
electrician and belt examiner. Notwithstanding the provisions of
this section the commissioner director may by rule or regulation
further subdivide the classification for certification.
(b) The board may require certification in other miner
occupational specialties:
Provided,
That no new specialty may be
created by the board unless certification in a new specialty is
made desirable by action of the federal government requiring
certification in a specialty not enumerated in this code.
(c) The board may establish criteria and standards for a
program of preemployment education and training to be required of
miners working on the surface at underground mines who are not
certified under the provisions of this article or any other
provision of this code.
(d) The board shall set minimum standards for a program of
continuing education and training of certified persons and other
miners on an annual basis. Prior to issuing said standards, theboard shall conduct public hearings at which the parties may be
affected by its actions may be heard. Such education and
training shall be provided in a manner determined by the
commissioner director to be sufficient to meet the standards
established by the board.
(e) The board may, in conjunction with any state, local or
federal agency or any other person or institution, provide for
the payment of a stipend to prospective miners enrolled in one or
more of the programs of miner education, training and
certification provided for in this article or any other provision
of this code.
(f) The board may also, from time to time, conduct such
hearings and other oversight activities as may be required to
ensure full implementation of programs established by it.
(g) Nothing in this article shall be deemed to empower
empowers the board to revoke or suspend any certificate issued by
the commissioner or the director of the division of mines and
minerals director of the office of miners' health, safety and
training.
(h) The board may, upon its own motion or whenever requested
to do so by the commissioner director, deem two certificates
issued by this state to be of equal value or deem training
provided or required by federal agencies to be sufficient to meet
training and education requirements set by it, the commissioner
director, or by the provisions of this code.
§22A-7-6. 22-9-6. Duties of the commissioner and department
director and office.
The commissioner director shall be empowered to promulgate,
pursuant to chapter twenty-nine-a of this code, such reasonable
rules and regulations as are necessary to establish a program to
implement the provisions of this article. Such program shall
include, but not be limited to, implementation of a program of
instruction in each of the miner occupational specialties and the
conduct of examinations to test each applicant's knowledge and
understanding of the training and instruction which he or she is
required to have prior to the receipt of a certificate.
The commissioner director is authorized and directed to
utilize state mine inspectors, mine safety instructors, the state
mine foreman examiner, private and public institutions of
education and such other persons as may be available to him in
implementing the program of instruction and examinations.
The commissioner director may, at any time, make such
recommendations or supply such information to the board as he or
she may deem appropriate.
The commissioner director is authorized and directed to
utilize such state and federal moneys and personnel as may be
available to the department office for educational and training
purposes in the implementation of the provisions of this article.
ARTICLE 10. 8. CERTIFICATION OF UNDERGROUND AND SURFACE COAL
MINERS.
§22A-8-1. 22-10-1. Certificate of competency and qualification
or permit of apprenticeship required of all surface and
underground miners.
Except as hereinafter provided, no person shall work or be
employed for the purpose of performing normal duties as a surface
or underground miner in any mine in this state unless he the
person holds at the time he or she performs such duties a
certificate of competency and qualification or a permit of
apprenticeship issued under the provisions of this article.
§22A-8-2. 22-10-2. Definitions.
For purposes of this article the term "surface miner" means
a person employed at a "surface mine," as that term is defined in
section three, article three, chapter twenty-two-a twenty-two of
this code, and in section two, article four of said chapter.
For purposes of this article, the term "underground miner"
means an underground worker in a bituminous coal mine, except as
hereinafter provided.
For purposes of this article, the term "board of miner
training, education and certification" means that board
established in article nine seven of this chapter.
§22A-8-3. 22-10-3. Permit of apprenticeship-underground miner.
A permit of apprenticeship-underground miner shall be issued
by the director to any person who has demonstrated by examination
a knowledge of the subjects and skills pertaining to employment
in underground mines, including, but not limited to, general
safety, first aid, miner and operator rights and
responsibilities, general principles of electricity, general
mining hazards, roof control, ventilation, mine health andsanitation, mine mapping, state and federal mining laws and
regulations and such other subjects as may be required by the
board of miner training, education and certification:
Provided,
That each applicant for said permit shall complete a program of
education and training of at least eighty hours, which shall be
determined by the board of miner training, education and
certification and provided for and implemented by the director:
of the division of mines and minerals
Provided, however,
That if
a sufficient number of qualified applicants having successfully
completed the state training program provided by the state
division of mines and minerals office of miners' health, safety
and training are not available, the operator may request approval
from the director to conduct his the operator's own preemployment
training program so long as such training adequately covers the
minimum criteria determined by the board and such trainees shall
be eligible for the same certification as provided for trainees
undergoing training provided by the state.
§22A-8-4. 22-10-4. Permit of apprenticeship-surface miner.
A permit of apprenticeship-surface miner shall be issued by
the director to any person who has demonstrated by examination a
knowledge of the subjects and skills pertaining to employment in
the surface mining industry, including, but not limited to,
general safety, first aid, miner and operator rights and
responsibilities, general principles of electricity, health and
sanitation, heavy equipment safety, high walls and spoil banks,
haulage, welding safety, tipple safety, state and federal mininglaws and regulations and such other subjects as may be required
by the board of miner training, education and certification:
Provided,
That each applicant for said permit shall complete a
program of education and training of at least forty hours, which
program shall be determined by the board of miner training,
education and certification and provided for and implemented by
the director: of the division of mines and minerals
Provided,
however,
That if a sufficient number of qualified applicants
having successfully completed the state training provided by the
state division of mines and minerals office of miners' health,
safety and training are not available, the operator may request
approval from the director to conduct his the operator's own
preemployment training program so long as such training
adequately covers the minimum criteria determined by the board
and such trainees shall be eligible for the same certification as
provided for trainees undergoing training provided by the state.
§22A-8-5. 22-10-5. Supervision of apprentices.
Each holder of a permit of apprenticeship shall be known as
an apprentice. Any miner holding a certificate of competency
and qualification may have one person working with him or her,
and under his or her supervision and direction, as an apprentice,
for the purpose of learning and being instructed in the duties
and calling of mining. Any mine foreman or fire boss or
assistant mine foreman or fire boss may have three persons
working with him or her under his or her supervision and
direction, as apprentices, for the purpose of learning and beinginstructed in the duties and calling of mining:
Provided,
That
a mine foreman, assistant mine foreman or fire boss supervising
apprentices in an area where no coal is being produced or which
is outby the working section may have as many as five apprentices
under his or her supervision and direction, as apprentices, for
the purpose of learning and being instructed in the duties and
calling of mining or where the operator is using a production
section under program for training of apprentice miners, approved
by the board of miner training, education and certification.
Every apprentice working at a surface mine shall be at all
times under the supervision and control of at least one person
who holds a certificate of competency and qualification.
In all cases, it shall be is the duty of every mine operator
who employs apprentices to ensure that such persons are
effectively supervised and to instruct such persons in safe
mining practices. Each apprentice shall wear a red hat which
identifies him the apprentice as such while employed at or near
a mine. No person shall be employed as an apprentice for a
period in excess of eight months, except that in the event of
illness or injury, time extensions shall be permitted as
established by the director of the division of mines and minerals
office of miners' health, safety and training.
§22A-8-6. 22-10-6. Certificate of competency and qualification -
- Underground or surface miner.
A certificate of competency and qualification as an
underground miner or as surface miner shall be issued by thedirector to any person who has at least six months' total
experience as an apprentice and demonstrated his or her
competence as a miner by successful completion of an examination
given by the director or his or her representative in a manner
and place to be determined by the board of miner training,
education and certification:
Provided,
That all examinations
shall be conducted in the English language and shall be of a
practical nature, so as to determine the competency and
qualifications of the applicant to engage in the mining of coal
with reasonable safety to himself and his the applicant and
fellow employees:
Provided, however,
That notice of the time and
place of such examination shall be given to management at the
mine, to the local union thereat if there is a local union, and
notice shall also be posted at the place or places in the
vicinity of the mine where notices to employees are ordinarily
posted. Examinations shall also be held at such times and
places, and after such notice, as the board finds necessary to
enable all applicants for certificates to have an opportunity to
qualify for certification.
§22A-8-7. 22-10-7. Refusal to issue certificate; appeal.
If the director or his the director's representative finds
that an applicant is not qualified and competent, he the director
shall so notify the applicant not more than ten days after the
date of examination.
Any applicant aggrieved by an action of the director in
failing or refusing to issue a certificate of qualification andcompetency may, within ten days' notice of the action complained
of, appeal to the director who shall promptly give the applicant
a hearing and either affirm the action or take such action as
should have been taken.
§22A-8-8. 22-10-8. Limitations of article.
All persons possessing certificates of qualification
heretofore issued by the department of mines of this state, or
hereafter by the division of mines and minerals, or hereafter by
the office of miners' health, safety and training entitling them
to act as mine foreman-fire bosses, or assistant mine foreman-
fire bosses, shall be are eligible to engage at any time as
miners in the mines of this state. Supervisory and technically
trained employees of the operator, whose work contributes only
indirectly to mine operations, shall not be are not required to
possess a miners' certificate.
Notwithstanding the provisions of this article, every person
working as a surface miner in this state on or before the first
day of July, one thousand nine hundred seventy-four shall, upon
application to the director, be issued a certificate of
competency and qualification.
§22A-8-9. 22-10-9. Violations; penalties.
Any person who knowingly works in or at a mine without a
certificate issued under the provision of this article, any
person who knowingly employs an uncertified miner to work in or
at a coal mine in this state, or, any operator who fails to
insure the supervision of miners holding a certificate ofapprenticeship as provided for in section five of this article,
shall be is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than fifty dollars nor more than
five hundred dollars.
ARTICLE 11. 9. MINE INSPECTORS' EXAMINING BOARD.
§22A-9-1. 22-11-1. Mine inspectors' examining board.
There shall be a The mine inspectors' examining board
consisting is continued. It consists of five members who, except
for the public representative on such board, shall be appointed
by the governor, by and with the advice and consent of the
Senate. Members so appointed may be removed only for the same
causes and in like manner as elective state officers. One of the
members of the board shall be a representative of the public, who
shall be the director of the school of mines at West Virginia
University. Two members of the board shall be persons who by
reason of previous training and experience may reasonably be said
to represent the viewpoint of coal mine operators and two members
shall be persons who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
coal mine workers.
The director of the division of mines and minerals shall be
office of miners' health, safety and training is an ex officio
member of the board and shall serve as secretary of the board,
without additional compensation; but he shall have the director
has no right to vote with respect to any matter before the board.
The members of the board, except the public representative,shall be appointed for overlapping terms of eight years, except
that the original appointments shall be for terms of two, four,
six and eight years, respectively. Any member whose term expires
may be reappointed by the governor. Members serving on the
effective date of this article may continue to serve until their
terms expire.
Each member of the board shall receive fifty dollars per
diem while actually engaged in the performance of the work of the
board; and shall receive mileage at the rate of ten cents for
each mile actually traveled going from the home of the member to
the place of the meeting of the board and returning therefrom,
which shall be paid out of the state treasury upon a requisition
upon the state auditor, properly certified by such members of the
board.
The public member shall serve as chairman is chair of the
board. Members of the board, before performing any duty, shall
take and subscribe to the oath required by section 5 five,
article IV of the constitution of West Virginia.
The mine inspectors' examining board shall meet at such
times and places as shall be designated by the chairman chair.
It shall be is the duty of the chairman chair to call a meeting
of the board on the written request of three members or the
director of the division of mines and minerals office of miners'
health, safety and training. Notice of each meeting shall be
given in writing to each member by the secretary at least five
days in advance of the meeting. Three members shall constituteis a quorum for the transaction of business.
In addition to other duties expressly set forth elsewhere in
this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as mine inspectors and forms for
written examinations to test the qualifications of candidates for
that position;
(2) Adopt and promulgate reasonable rules and regulations
relating to the examination, qualification and certification of
candidates for appointment as mine inspectors, and hearing for
removal of inspectors, required to be held by section eleven
twelve, article one-a one of this chapter. twenty-two-a of this
code All of such rules and regulations shall be printed and a
copy thereof furnished by the secretary of the board to any
person upon request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment as mine
inspector. By unanimous agreement of all members of the board,
one or more members of the board or an employee of the division
of mines and minerals office of miners' health, safety and
training may be designated to give a candidate the written
portion of the examination;
(4) Prepare and certify to the director of the division of
mines and minerals office of miners' health, safety and training
a register of qualified eligible candidates for appointment as
mine inspectors. The register shall list all qualified eligiblecandidates in the order of their grades, the candidate with the
highest grade appearing at the top of the list. After each
meeting of the board held to examine such candidates, and at
least annually, the board shall prepare and submit to the
director of the division of mines and minerals office of miners'
health, safety and training a revised and corrected register of
qualified eligible candidates for appointment as mine inspector,
deleting from such revised register all persons (a) who are no
longer residents of West Virginia, (b) who have allowed a
calendar year to expire without, in writing, indicating their
continued availability for such appointment, (c) who have been
passed over for appointment for three years, (d) who have become
ineligible for appointment since the board originally certified
that such person was qualified and eligible for appointment as
mine inspector, or (e) who, in the judgment of at least four
members of the board, should be removed from the register for
good cause;
(5) Cause the secretary of the board to keep and preserve
the written examination papers, manuscripts, grading sheets, and
other papers of all applicants for appointment as mine inspector
for such period of time as may be established by the board.
Specimens of the examinations given, together with the correct
solution of each question, shall be preserved permanently by the
secretary of the board;
(6) Issue a letter or written notice of qualification to
each successful eligible candidate;
(7) Hear and determine proceedings for the removal of mine
inspectors in accordance with the provisions of this article;
(8) Hear and determine appeals of mine inspectors from
suspension orders made by the director pursuant to the provisions
of section four, article one-a one of this chapter: twenty-two-a
of this code
Provided,
That an aggrieved inspector, in order to
appeal from any order of suspension, shall file such appeal in
writing with the mine inspectors' examining board not later than
ten days after receipt of notice of suspension. On such appeal
the board shall affirm the act of the director unless it be
satisfied from a clear preponderance of the evidence that the
director has acted arbitrarily;
(9) Make an annual report to the governor and the director
of the division of mines and minerals concerning the
administration of mine inspection personnel in the state service,
making such recommendations as the board considers to be in the
public interest.
ARTICLE 12. 10. EMERGENCY MEDICAL PERSONNEL.
§22A-10-1. 22-12-1. Emergency personnel in coal mines.
(a) Emergency medical services personnel shall be employed
on each shift at every mine that: (1) Employs more than ten
employees and (2) more than eight persons are present on the
shift. Said emergency medical services personnel shall be
employed at their regular duties at a central location, or when
more than one such person is required pursuant to subsection (b)
or (c) at locations, convenient from quick response toemergencies; and further shall have available to them at all
times such equipment as shall be prescribed by the director of
the division of mines and minerals office of miners' health,
safety and training, in consultation with the director of the
department of commissioner of the bureau of public health.
(b) Until the first day of July, one thousand nine hundred
eighty-five, emergency medical services personnel shall be
defined as a medical service attendant as defined in article
four-c, chapter sixteen of this code, paramedic as defined in
article three-b, chapter thirty of this code, or physician
assistant as defined in article three-a, chapter thirty of this
code. At least one emergency medical services personnel shall
be employed at a mine for every seventy employees or any part
thereof who are engaged at one time, in the extraction,
production or preparation of coal.
(c) (b) After the first day of July, one thousand nine
hundred eighty-five, emergency medical services personnel shall
be defined as a person who is certified as an emergency medical
technician-mining, emergency medical technician, emergency
medical technician-ambulance, emergency medical technician-
intermediate, mobile intensive care paramedic, emergency medical
technician-paramedic as defined in section three, article four-c,
chapter sixteen of this code, or physician assistant as defined
in section sixteen, article three-a three, chapter thirty of this
code. At least one emergency medical services personnel shall be
employed at a mine for every fifty employees or any part thereofwho are engaged at any time, in the extraction, production or
preparation of coal.
(d) (c) A training course designed specifically for
certification of emergency medical technician-mining, shall be
developed at the earliest practicable time by the director of
commissioner of the bureau of public health in consultation with
the board of miner training, education and certification. The
training course for initial certification as an emergency medical
technician-mining shall not be less than sixty hours, which shall
include, but is not limited to, mast trouser application, basic
life support skills and emergency room observation or other
equivalent practical exposure to emergencies as prescribed by the
director of the department of commissioner of the bureau of
public health.
(e) (d) The maintenance of a valid emergency medical
technician-mining certificate may be accomplished without taking
a three year recertification examination:
Provided,
That such
emergency medical technician-mining personnel completes an eight
hour annual retraining and testing program prescribed by the
director of commissioner of the bureau of public health in
consultation with the board of miner training, education and
certification.
(f) (e) All emergency medical services personnel currently
certified as emergency medical service attendants or emergency
medical technicians shall receive certification as emergency
medical technicians without further training and examinationfor the remainder of their three year certification period; such
emergency medical service attendant or emergency medical
technician may upon expiration of such certification become
certified as an emergency medical technician-mining upon
completion of the eight hour retraining program referred to in
subsection (e) (d) above.
§22A-10-2. 22-12-2. First-aid training of coal mine employees.
Each coal mine operator shall provide every new employee
within six months of the date of his employment with the
opportunity for first-aid training as prescribed by the director
of the division of mines and minerals office of miners' health,
safety and training unless such employee has previously received
such training. Each coal mine employee shall be required to take
refresher first-aid training of not less than five hours within
each twenty-four months of employment. The employee shall be
paid regular wages, or overtime pay if applicable, for all
periods of first-aid training.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
ARTICLE 1. GENERAL POLICY AND PURPOSE.
§22B-1-1. Declaration of policy and purpose.
It is hereby declared to be the policy of this state and the
purpose of this chapter to provide fair, efficient and equitable
treatment of appeals of environmental enforcement and permit
actions to the boards set forth herein.
It is also the intent of the Legislature to consolidate and
combine the legal, technical and support personnel of the threeboards, to provide for consistent appellate processes and to
maintain continuity of the boards' functions and membership. The
boards shall share physical facilities, hearing rooms, technical
and support staff and general overhead. In addition, it is the
policy of this state to retain and maintain adequate funding and
sufficient support personnel to ensure knowledgeable and informed
decisions.
It is the policy of this state that administrative hearings
and appeals be conducted in a quasi-judicial manner providing for
discovery and case management. The appellate functions of the
several environmental boards should be accomplished with similar
procedural rules designed to assure expeditious and equitable
hearings and decisions. Further, there shall be a central
depository for appellate information and the filing of appeals.
It is also the policy of this state that the rule-making
authority set forth in this chapter be implemented in an
efficient manner consistent with the public policy of this state.
Furthermore, it is the intent of the Legislature that all
actions taken pursuant to this chapter assure implementation of
the policies set forth in this chapter and chapter twenty-two of
this code.
§22B-1-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this chapter the following terms have the meanings
ascribed to them:
(1) "Board" or "boards" means the applicable board continuedpursuant to the provisions of this chapter, including the air
quality board, the environmental quality board and the surface
mine board;
(2) "Chief" means the chief of the office of water resources
or the chief of the office of waste management or the chief of
the office of air quality or the chief of the office of oil and
gas or the chief of the office of mining and reclamation or any
other person who has been delegated authority by the director,
all of the division of environmental protection, as the case may
be;
(3) "Director" means the director of the division of
environmental protection or the director's designated
representative;
(4) "Division" means the division of environmental
protection of the department of commerce, labor and environmental
resources;(5) "Member" means an individual appointed to one of the
boards or the ex officio members of the air quality board; and,
(6) "Person" or "persons" means any public or private
corporation, institution, association, firm or company organized
or existing under the laws of this or any other state or country;
the state of West Virginia; governmental agency; political
subdivision; county court; municipal corporation; industry;
sanitary district; public service district; drainage district;
soil conservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or anyother legal entity whatever.
§22B-1-3. General administration.
(a) The secretary of the department of commerce, labor and
environmental resources, in consultation with the chairs of the
boards, shall exercise the following powers, authorities and
duties:
(1) To provide for the management of facilities and
personnel of the boards;
(2) To employ, terminate and compensate support staff for
the boards and to fix the compensation of that staff, which shall
be paid out of the state treasury, upon the requisition of moneys
appropriated for such purposes, or from joint funds as the chairs
may expend;
(3) To the extent permitted by and consistent with federal
or state law, to consolidate, combine or contribute funds of the
boards to maintain the central physical facilities and technical
and support personnel;
(4) To the extent permitted by and consistent with federal
or state law, to consolidate or combine any functions of the
boards;
(5) To secure funding with the assistance of the chairs from
whatever source permissible by law;
(6) To secure office space, purchase materials and supplies,
and enter into contracts necessary, incident or convenient to the
accomplishment of the purposes of this chapter;
(7) To expend funds in the name of any of the boards;
(8) To hire individuals, as may be necessary, to serve as
hearing examiners for the boards; and
(9) To provide for an individual to serve as the clerk to
the boards.
(b) The clerk to the boards has the following duties, to be
exercised in consultation with the chairs:
(1) To schedule meetings and hearings and enter all orders
properly acted upon;
(2) To receive and send all papers, proceedings, notices,
motions and filings;
(3) To the maximum extent practicable, and with the
cooperation of the staff and hearing examiners, to assist the
boards in the case management of appeals and proceedings;
(4) To maintain records of all proceedings of the boards
which shall be entered in a permanent record, properly indexed,
and the same shall be carefully preserved for each board. Copies
of orders entered by the boards, as well as copies of papers or
documents filed with it, shall be maintained in a central
location;
(5) To direct and fulfill information requests subject to
chapter twenty-nine-b of this code and subject to applicable
confidentiality rules set forth in the statutes and rules; and
(6) To perform such other duty or function as may be
directed by the chairs to carry out the purpose of this chapter.
(c) The boards shall establish procedural rules in
accordance with the provisions of chapter twenty-nine-a of thiscode for the regulation of the conduct of all proceedings before
the boards. To the maximum extent practicable, the procedural
rules will be identical for each board. The procedural rules of
the boards shall be contained in a single set of rules for filing
with the secretary of state.
§22B-1-4. General provisions applicable to all boards and board
members.
(a) Each member of a board, other than an ex officio member,
shall be paid as compensation for work performed as a member,
from funds appropriated for such purposes, one hundred dollars
per day when actually engaged in the performance of work as a
board member. In addition to such compensation, each member of
the board shall be reimbursed for all reasonable and necessary
expenses actually incurred in the performance of the board
member's duties.
(b) At its first meeting in each fiscal year each board
shall elect from its membership a chair and vice chair to act
during such fiscal year. The chair shall preside over the
meetings and hearings of the board. The vice chair shall assume
the chair's duties in the absence of the chair. All of the
meetings shall be general meetings for the consideration of any
and all matters which may properly come before the board.
(c) For the environmental quality board and the air quality
board, a majority of each board is a quorum for the transaction
of business and an affirmative vote of a majority of the board
members present is required for any motion to carry or decisionof the board to be effective. For the surface mine board four
members is a quorum and no action of the board is valid unless it
has the concurrence of at least four members. For all boards, in
the event of a tie vote on the ultimate decision which is the
subject of an appeal before the board, the decision of the chief
or the director, as the case may be, shall be affirmed. Each
board shall meet at such times and places as it may determine and
shall meet on call of its chair. It is the duty of the chair to
call a meeting of the board within thirty days on the written
request of three members thereof.
(d) In all cases where the filing of documents, papers,
motions and notices with the board is required or a condition
precedent to board action, filing with the clerk constitutes
filing with the board.
§22B-1-5. General powers and duties of boards.
In addition to all other powers and duties of the air
quality board, environmental quality board and surface mine board
as prescribed in this chapter or elsewhere by law, the boards
created or continued pursuant to the provisions of this chapter
have and may exercise the following powers and authority and
shall perform the following duties:
(1) To consider appeals, subpoena witnesses, administer
oaths, make investigations and hold hearings relevant to matters
properly pending before a board;
(2) On any matter properly pending before it whenever the
parties achieve agreement that a person will cease and desist inany act resulting in the discharge or emission of pollutants or
do any act to reduce or eliminate such discharge or emission, or
do any act to achieve compliance with this chapter or chapter
twenty-two or twenty-two-c or rules promulgated thereunder or do
any act to resolve an issue pending before a board, such
agreement, upon approval of the board, shall be embodied in an
order and entered as, and has the same effect as, an order
entered after a hearing as provided in section seven of this
article;
(3) To enter and inspect any property, premise or place on
or at which a source or activity is located or is being
constructed, installed or established at any reasonable time for
the purpose of ascertaining the state of compliance with this
chapter or chapters chapter twenty-two or twenty-two-c and the
rules promulgated thereunder:
Provided,
That nothing contained
in this section eliminates any obligation to follow any process
that may be required by law; and,
(4) To perform any and all acts within the appropriate
jurisdiction of each board to secure for the benefit of the state
participation in appropriate federally delegated programs.
§22B-1-6. General procedural provisions applicable to all
boards.
(a) Any appeal hearing brought pursuant to this chapter
shall be conducted by a quorum of the board, but the parties may
by stipulation agree to take evidence before any one or more
members of the board or a hearing examiner employed by the board. For the purpose of conducting such appeal hearing, any member of
a board and the clerk has the power and authority to issue
subpoenas and subpoenas duces tecum in the name of the board, in
accordance with the provisions of section one, article five,
chapter twenty-nine-a of this code. All subpoenas and subpoenas
duces tecum shall be issued and served within the time and for
the fees and shall be enforced, as specified in section one,
article five of said chapter twenty-nine-a, and all of the
provisions of said section one dealing with subpoenas and
subpoenas duces tecum apply to subpoenas and subpoenas duces
tecum issued for the purpose of an appeal hearing hereunder.
(b) 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
the disobedience, neglect or refusal occurs, 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 of a refusal to testify therein.
(c) In accordance with the provisions of section one,
article five of said chapter twenty-nine-a, all of the testimony
at any hearing held by a board shall be recorded by stenographic
notes and characters or by mechanical or electronic means. If
requested by any party to an appeal, the hearing and any
testimony offered shall be transcribed in which event the cost oftranscribing shall be paid by the party requesting the
transcript. 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 the same
may make a proffer thereof, and the proffer shall be made a part
of the record of the hearing.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code, apply to and govern the hearing on
appeal authorized by the provisions of this section and the
administrative procedures in connection with and following such
hearing, with like effect as if the provisions of said article
five were set forth in extenso in this section, except as
specifically provided herein.
§22B-1-7. Appeals to boards.
(a) The provisions of this section are applicable to all
appeals to the boards, with the modifications or exceptions set
forth in this section.
(b) Any person authorized by statute to seek review of an
order, permit or official action of the chief of air quality, the
chief of water resources, the chief of waste management, the
chief of mining and reclamation, the chief of oil and gas, or the
director may appeal to the air quality board, the environmental
quality board or the surface mine board, as appropriate, in
accordance with this section. The person so appealing shall beknown as the appellant and the appropriate chief or the director
shall be known as the appellee.
(c) An appeal filed with a board by a person subject to an
order, permit or official action shall be perfected by filing a
notice of appeal with the board within thirty days after the date
upon which such order, permit or official action was received by
such person as demonstrated by the date of receipt of registered
or certified mail or of personal service. For parties entitled
to appeal other than the person subject to such order, permit or
official action, an appeal shall be perfected by filing a notice
of appeal with the board within thirty days after the date upon
which service was complete. For purposes of this subsection,
service is complete upon tendering a copy to the designated agent
or to the individual who, based upon reasonable inquiry, appears
to be in charge of the facility or activity involved, or to the
permittee; or by tendering a copy by registered or certified
mail, return receipt requested to the last known address of the
person on record with the agency. Service is not incomplete by
refusal to accept. Notice of appeal must be filed in a form
prescribed by the rule of the board for such purpose. Persons
entitled to appeal may also file a notice of appeal related to
the failure or refusal of the appropriate chief or the director
to act within a specified time on an application for a permit;
such notice of appeal shall be filed within a reasonable time.
(d) The filing of the notice of appeal does not stay or
suspend the effectiveness or execution of the order, permit orofficial action appealed from, except that the filing of a notice
of appeal regarding a notice of intent to suspend, modify or
revoke and reissue a permit, issued pursuant to the provisions of
section five, article five, chapter twenty-two of this code, does
stay the notice of intent from the date of issuance pending a
final decision of the board. If it appears to the appropriate
chief, the director or the board that an unjust hardship to the
appellant will result from the execution or implementation of a
chief's or director's order, permit or official action pending
determination of the appeal, the appropriate chief, the director
or the board, as the case may be, may grant a stay or suspension
of such order, permit or official action and fix its terms. A
decision shall be made on any request for a stay within five days
of the date of receipt of the request for stay. The notice of
appeal shall set forth the terms and conditions of the order,
permit or official action complained of and the grounds upon
which the appeal is based. A copy of the notice of appeal shall
be filed by the board with the appropriate chief or director
within seven days after the notice of appeal is filed with the
board.
(e) Within fourteen days after receipt of a copy of the
notice of appeal, the appropriate chief or the director as the
case may be, shall prepare and certify to the board a complete
record of the proceedings out of which the appeal arises
including all documents and correspondence in the applicable
files relating to the matter in question. With the consent ofthe board and upon such terms and conditions as the board may
prescribe, any person affected by the matter pending before the
board may by petition intervene as a party appellant or appellee.
In any appeal brought by a third party, the permittee or
regulated entity shall be granted intervenor status as a matter
of right where issuance of a permit or permit status is the
subject of the appeal. The board shall hear the appeal de novo,
and evidence may be offered on behalf of the appellant, appellee
and by any intervenors. The board may visit the site of the
activity or proposed activity which is the subject of the hearing
and take such additional evidence as it considers necessary:
Provided,
That all parties and intervenors are given notice of
the visit and are given an opportunity to accompany the board.
The appeal hearing shall be held at such location as may be
approved by the board including Kanawha county, the county
wherein the source, activity or facility involved is located or
such other location as may be agreed to among the parties.
(f) Any such hearing shall be held within thirty days after
the date upon which the board received the timely notice of
appeal, unless there is a postponement or continuance. The board
may postpone or continue any hearing upon its own motion, or upon
application of the appellant, the appellee or any intervenors for
good cause shown. The chief or the director, as appropriate, may
be represented by counsel. If so represented they shall be
represented by the attorney general or with the prior written
approval of the attorney general may employ counsel who shall bea special assistant attorney general. At any such hearing the
appellant and any intervenor may represent themselves or be
represented by an attorney-at-law admitted to practice before the
supreme court of appeals.
(g) After such hearing and consideration of all the
testimony, evidence and record in the case:
(1) The environmental quality board or the air quality
board, as the case may be, shall make and enter a written order
affirming, modifying or vacating the order, permit or official
action of the chief or director, or shall make and enter such
order as the chief or director should have entered, or shall make
and enter an order approving or modifying the terms and
conditions of any permit issued; and,
(2) The surface mine board shall make and enter a written
order affirming the decision appealed from if the board finds
that the decision was lawful and reasonable, or if the board
finds that the decision was not supported by substantial evidence
in the record considered as a whole, it shall make and enter a
written order reversing or modifying the decision of the
director.
(h) In appeals of an order, permit or official action taken
pursuant to articles three, six, eleven, twelve, thirteen,
fifteen, chapter twenty-two of this code, the environmental
quality board established in article three of this chapter, shall
take into consideration, in determining its course of action in
accordance with subsection (g) of this section, not only thefactors which the appropriate chief or the director was
authorized to consider in issuing an order, in granting or
denying a permit, in fixing the terms and conditions of any
permit, or in taking other official action, but also the economic
feasibility of treating or controlling, or both, the discharge of
solid waste, sewage, industrial wastes or other wastes involved.
(i) An order of a board shall be accompanied by findings of
fact and conclusions of law as specified in section three,
article five, chapter twenty-nine-a of this code, and a copy of
such order and accompanying findings and conclusions shall be
served upon the appellant, and any intervenors, and their
attorneys of record, if any, and upon the appellee in person or
by registered or certified mail.
(j) The board shall also cause a notice to be served with
the copy of such order, which notice shall advise the appellant,
the appellee and any intervenors of their right to judicial
review, in accordance with the provisions of this chapter. The
order of the board shall be final unless vacated or modified upon
judicial review thereof in accordance with the provisions of this
chapter.
§22B-1-8. General provisions governing discovery.
(a) Parties to a hearing may petition a board to obtain
discovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending hearing, subject to
the procedural rules of the boards and the limitations contained
herein.
(b) The following limited discovery may be commenced and
obtained by any party to the hearing without leave of a board:
(1) Requests for disclosure of the identity of each person
expected to be called as a witness at the hearing and, at a
minimum, a statement setting forth with specificity the facts
alleged, the anticipated testimony and the identity of any
documents relied upon in support of the anticipated testimony of
each witness and whether that witness will be called as an
expert; and
(2) Requests to identify with reasonable particularity the
issues which are the subject of the hearing.
(c) Any party may object to a request or manner of discovery
authorized by this section provided the objection sets forth with
particularity the grounds for the objection. A party may move
the board to rule on the propriety of the discovery or objection
and request the board to enter an order as the board deems
appropriate.
(d) Any party may seek, by motion, a protective order from
the discovery sought by another party and, if required, the board
may protect a party from unwarranted discovery. Upon motion of
a party or upon a board's own motion, the board may enter such
protective order limiting discovery which order shall not be
inconsistent with the standards for protective orders set forth
in the West Virginia rules of civil procedure.
(e) Upon motion of a party or upon a board's own motion, the
board may authorize or order any additional discovery as may beappropriate or necessary to identify or refine the issues which
are the subject of the hearing. Upon agreement of the parties,
or upon order of a board, the board may authorize or order the
taking of the deposition of any witness with information or
knowledge relevant to the subject matter of the hearing which
deposition may be noticed by subpoena or subpoena duces tecum.
(f) Upon motion of a party or upon a board's own motion, a
board may hold a prehearing conference, as soon as practicable
after the commencement of an appeal, which conference shall be
for purposes of promoting a fair, efficient and expeditious
hearing process. Following the conference, the board may enter
an order or take such other action as may be appropriate with
respect to discovery issues.
(g) For purposes of this section, in all cases where the
board is authorized or empowered to issue orders, a member of the
board, with the concurrence of a majority of the board, may act
on behalf of the board, the board may act itself or through its
clerk or hearing examiner, as such person is authorized to do so
by the board.
(h) Every request for discovery or response or objection
thereto made by a party shall be signed in the same manner as is
provided for in Rule 26 of the West Virginia rules of civil
procedure.
§22B-1-9. General provisions for judicial review.
(a) Any person or a chief or the director, as the case may
be, adversely affected by an order made and entered by a boardafter an appeal hearing, held in accordance with the provisions
of this chapter, is entitled to judicial review thereof. All of
the provisions of section four, article five, chapter twenty-
nine-a of this code apply to and govern the review with like
effect as if the provisions of said section four were set forth
in extenso in this section, with the modifications or exceptions
set forth in this chapter.
(b) The judgment of the circuit court is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section one the petition
seeking such review shall be filed with said supreme court of
appeals within ninety days from the date of entry of the judgment
of the circuit court.
(c) Legal counsel and services for a chief or the director
in all appeal proceedings in the circuit court and in the supreme
court of appeals of this state shall be provided by the attorney
general or his or her assistants or by the prosecuting attorney
of the county in which the appeal is taken, all without
additional compensation, or with the prior written approval of
the attorney general, a chief or the director may employ legal
counsel.
§22B-1-10. Confidentiality.
With respect to any information obtained in the course of an
appeal, all members of boards and all personnel employed therebyshall maintain confidentiality to the same extent required of the
chief or director.
§22B-1-11. Conflict of interest.
In addition to the specific conflict of interest provisions
set forth in this chapter, any member who has any financial
interest in the outcome of a decision of the board shall not vote
or act on any matter which shall directly affect the member's
personal interests.
§22B-1-12. Savings provisions.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted, or allowed
to become effective by a board in the performance of functions
which are affected by the enactment of this chapter, and which
are in effect on the date this chapter becomes effective, shall
continue in effect according to their terms until modified,
terminated, superseded, set aside, or revoked in accordance with
the law.
(b) The provisions of this chapter do not affect any
appeals, proceedings, including notices of proposed rule-making,
or any application for any license, permit, certificate, or
financial assistance pending on the effective date of this
chapter, before any of the boards. Orders shall be issued in
such proceedings, appeals shall be taken therefrom, and payments
shall be made pursuant to such orders, as if this chapter had not
been enacted; and orders issued in any such proceedings shallcontinue in effect until modified, terminated, superseded, or
revoked by the board within which jurisdiction to do so is
vested, by a court of competent jurisdiction, or by operation of
law. Nothing in this subsection prohibits the discontinuance or
modification of any such proceeding under the same terms and
conditions and to the same extent that the proceeding could have
been discontinued or modified if this chapter had not been
enacted.
(c) Orders and actions of a board in the exercise of
functions amended by under this chapter are subject to judicial
review to the same extent and in the same manner as if such
orders and actions had been by a board exercising such functions
immediately preceding the enactment of this chapter.
ARTICLE 2. AIR QUALITY BOARD.
§22B-2-1. Air quality board; composition; appointment and terms
of members; vacancies.
(a) On and after the effective date of this article, the
"air pollution control commission," heretofore created, shall
continue in existence and hereafter shall be known as the "air
quality board."
(b) The board shall be composed of seven members, including
the commissioner of the bureau of public health and the
commissioner of agriculture, or their designees, both of whom are
members ex officio, and five other members, who shall be
appointed by the governor with the advice and consent of the
Senate. Each appointed member of the board who is serving insuch capacity on the effective date of this article shall
continue to serve on the board until his or her term ends or her
or she resigns or is otherwise unable to serve. As each such
member's terms ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. Two of the members shall be
representative of industries engaged in business in this state,
and three of the members shall be representative of the public at
large.
(c) The appointed members of the board shall be appointed
for overlapping terms of five years, except that the original
appointments shall be for terms of one, two, three, four and five
years, respectively. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-2-2. Authority to receive money.
In addition to all other powers and duties of the air
quality board, as prescribed in this chapter or elsewhere by law,
the board has and may exercise the power and authority to receive
any money as a result of the resolution of any case on appeal
which shall be deposited in the state treasury to the credit ofthe office of air pollution education and environment fund
provided for in section four, article five, chapter twenty-two of
this code.
§22B-2-3. Judicial review of air quality board orders.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section nine were set forth in extenso in
this section, with the following modifications or exceptions:
(1) As to cases involving an order denying an application
for a permit, or approving or modifying the terms and conditions
of a permit, the petition for review shall be filed in the
circuit court of Kanawha county; and,
(2) As to all other cases, the petition shall be filed, in
the circuit court of the county wherein the alleged statutory air
pollution complained of originated or in Kanawha county upon
agreement between the parties.
ARTICLE 3. ENVIRONMENTAL QUALITY BOARD.
§22B-3-1. Environmental quality board; composition and
organization; appointment, qualifications, terms, vacancies.
(a) On and after the effective date of this article, the
"water resources board," heretofore created, shall continue in
existence and hereafter shall be known as the "environmental
quality board."
(b) The board shall be composed of five members who shall be
appointed by the governor with the advice and consent of the
Senate. Not more than three members of the board shall be of thesame political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends
or he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. Individuals appointed to the
board shall be persons who by reason of previous training and
experience are knowledgeable in the husbandry of the state's
water resources and with at least one member with experience in
industrial pollution control.
(c) No member of the board shall receive or, during the two
years next preceding the member of the board's appointment, shall
have received a significant portion of the member of the board's
income directly or indirectly from a national pollutant discharge
elimination system permit holder or an applicant for a permit
issued under any of the provisions of article eleven, chapter
twenty-two of this code. For the purposes of this subsection:
(1) the term "significant portion of the member of the board's
income" means ten percent of gross personal income for a calendar
year, except that it means fifty percent of gross personal income
for a calendar year if the recipient is over sixty years of age
and is receiving such portion pursuant to retirement, a pension
or similar arrangement; (2) the term "income" includes retirement
benefits, consultant fees and stock dividends; (3) income is not
received "directly or indirectly" from "permit holders" or"applicants for a permit" where it is derived from mutual-fund
payments or from other diversified investments with respect to
which the recipient does not know the identity of the primary
sources of income; and (4) the terms "permit holders" and
"applicants for a permit" do not include any university or
college operated by this state or political subdivision of this
state.
(d) The members of the board shall be appointed for
overlapping terms of five years, except that the original
appointments shall be for terms of one, two, three, four and five
years, respectively. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-3-2. Authority of board; additional definitions.
(a) In addition to all other powers and duties of the
environmental quality board, as prescribed in this chapter or
elsewhere by law, the board has and may exercise the powers and
authorities:
(1) To receive any money as a result of the resolution of
any case on appeal which shall be deposited in the state treasury
to the credit of the water quality management fund createdpursuant to section ten, article eleven, chapter twenty-two of
this code;
(2) To advise, consult and cooperate with other agencies of
the state, political subdivisions of the state, other states,
agencies of the federal government, industries, and with affected
groups and take such other action as may be appropriate in regard
to its rule-making authority; and
(3) To encourage and conduct such studies and research
relating to pollution control and abatement as a board may deem
advisable and necessary in regard to its rule-making authority.
(b) All the terms defined in section two, article eleven,
chapter twenty-two of this code, are applicable to this article
and have the meanings ascribed to them therein.
§22B-3-3. Judicial review.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section nine were set forth in extenso in
this section, with the following modifications or exceptions:
(1) As to cases involving an order denying an application
for a permit, or approving or modifying the terms and conditions
of a permit, the petition shall be filed in the circuit court of
Kanawha county;
(2) As to cases involving an order revoking or suspending a
permit, the petition shall be filed in the circuit court of
Kanawha county; and
(3) As to cases involving an order directing that any andall discharges or deposits of solid waste, sewage, industrial
wastes or other wastes, or the effluent therefrom, determined to
be causing pollution be stopped or prevented or else that
remedial action be taken, the petition shall be filed in the
circuit court of the county in which the establishment is located
or in which the pollution occurs.
§22B-3-4. Environmental quality board rule-making authority.
(a) In order to carry out the purposes of this chapter and
chapter twenty-two of this code, the board shall promulgate
legislative rules setting standards of water quality applicable
to both the surface waters and groundwaters of this state.
Standards of quality with respect to surface waters shall be such
as to protect the public health and welfare, wildlife, fish and
aquatic life, and the present and prospective future uses of such
waters for domestic, agricultural, industrial, recreational,
scenic and other legitimate beneficial uses thereof.
(b) No rule of the board may specify the design of
equipment, type of construction or particular method which a
person shall use to reduce the discharge of a pollutant.
(c) The board shall promulgate such legislative rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code and the declaration of policy set forth in
section two, article eleven, chapter twenty-two of this code.
ARTICLE 4. SURFACE MINE BOARD.
§22B-4-1. Appointment and organization of surface mine board.
(a) On and after the effective date of this article, the"reclamation board of review," heretofore created, shall continue
in existence and hereafter shall be known as the "surface mine
board."
(b) The board shall be composed of seven members who shall
be appointed by the governor with the advice and consent of the
Senate. Not more than four members of the board shall be of the
same political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends
or he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a
qualified successor shall be appointed by the governor with the
advice and consent of the Senate. One of the appointees to such
board shall be a person who, by reason of previous vocation,
employment or affiliations, can be classed as one capable and
experienced in coal mining. One of the appointees to such board
shall be a person who, by reason of training and experience, can
be classed as one capable and experienced in the practice of
agriculture. One of the appointees to such board shall be a
person who by reason of training and experience, can be classed
as one capable and experienced in modern forestry practices. One
of the appointees to such board shall be a person who, by reason
of training and experience, can be classed as one capable and
experienced in engineering. One of the appointees to such board
shall be a person who, by reason of training and experience, can
be classed as one capable and experienced in water pollutioncontrol or water conservation problems. One of the appointees to
such board shall be a person with significant experience in the
advocacy of environmental protection. One of the appointees to
such board shall be a person who represents the general public
interest.
(c) During his or her tenure on the board, no member shall
receive significant direct or indirect financial compensation
from or exercise any control over any person or entity which
holds or has held, within the two years next preceding the
member's appointment, a permit to conduct activity regulated by
the division, under the provisions of article three or four,
chapter twenty-two of this code, or any similar agency of any
other state or of the federal government:
Provided,
That the
member classed as experienced in coal mining, the member classed
as experienced in engineering, and the member classed as
experienced in water pollution control or water conservation
problems may receive significant financial compensation from
regulated entities for professional services or regular
employment so long as the professional or employment relationship
is disclosed to the board. No member shall participate in any
matter before the board related to a regulated entity from which
the member receives or has received, within the preceding two
years direct or indirect financial compensation. For purposes of
this section, "significant direct or indirect financial
compensation" means twenty percent of gross income for a calendar
year received by the member, any member of his or her immediatefamily, or the member's primary employer.
(d) The members of the board shall be appointed for terms of
the same duration as their predecessor under the original
appointment of two members appointed to serve a term of two
years; two members appointed to serve a term of three years; two
members to serve a term of four years; and, one member to serve
a term of five years. Any member whose term expires may be
reappointed by the governor. In the event a board member is
unable to complete the term, the governor shall appoint a person
with similar qualification to complete the term. The successor
of any board member appointed pursuant to this article must
possess the qualification as prescribed herein. Each vacancy
occurring in the office of a member of the board shall be filled
by appointment within sixty days after such vacancy occurs.
§22B-4-2. Authority to receive money.
In addition to all other powers and duties of the surface
mine board, as prescribed in this chapter or elsewhere by law,
the board shall have and may exercise the power and authority to
receive any money as a result of the resolution of any case on
appeal which shall be deposited to the credit of the special
reclamation fund created pursuant to section eleven, article
three, chapter twenty-two of this code.
§22B-4-3. Judicial review.
All of the provisions of section nine, article one of this
chapter apply to and govern such review with like effect as if
the provisions of said section nine were set forth in extenso inthis section, except the petition shall be filed in the circuit
court of Kanawha county or the county in which the surface-mining
operation is located.
CHAPTER 22C.
ARTICLE 5C. 1. WEST VIRGINIA WATER DEVELOPMENT AUTHORITY.
§22C-1-1. 20-5C-1. Short title.
This article shall be known and cited as the "West Virginia
Water Development Authority Act."
§22C-1-2. 20-5C-2. Declaration of policy and responsibility;
purpose and intent of article; findings.
It is hereby declared to be the public policy of the state
of West Virginia and a responsibility of the state of West
Virginia, through the establishment, funding, operation and
maintenance of water development projects, to maintain, preserve,
protect, conserve and in all instances possible to improve the
purity and quality of water within the state in order to (1)
protect and improve public health; (2) assure the fullest use and
enjoyment of such water by the public; (3) provide suitable
environment for the propagation and protection of animal, bird,
fish, aquatic and plant life, all of which are essential to the
health and well-being of the public; and (4) provide water of the
necessary quality and in the amount needed for the development,
maintenance and expansion of, and to attract service industries
and businesses, agriculture, mining, manufacturing and other
types of businesses and industries.
To assist in the preservation, protection, improvement andmanagement of the purity and quality of the waters of this state,
to prevent or abate pollution of water resources and to promote
the health and welfare of citizens of this state, it is the
purpose and intent of the Legislature in enacting this article to
provide for the necessary, dependable, effective and efficient
purification of water; the disposal of liquid and solid wastes
harmful to the public health and safety removed from such water;
to improve water and stream quality; and to assist and cooperate
with governmental agencies in achieving all of the purposes set
forth in this section.
The Legislature finds and hereby declares that the
responsibility of the state as outlined above cannot be
effectively met without the establishment, funding, operation and
maintenance of water development projects as provided for in this
article.
§22C-1-3. 20-5C-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia water development
authority created provided for in section four of this article,
the duties, powers, responsibilities and functions of which are
specified in this article.
(2) "Beneficial use" means a use of water by a person or by
the general public that is consistent with the public interest,
health and welfare in utilizing the water resources of this
state, including, but not limited to, domestic, agricultural,irrigation, industrial, manufacturing, mining, power, public,
sanitary, fish and wildlife, state, county, municipal,
navigational, recreational, aesthetic and scenic use.
(3) "Board" means the West Virginia water development
authority board created provided for in section four of this
article, which shall manage and control the West Virginia water
development authority.
(4) "Bond" or "water development revenue bond" means a
revenue bond or note issued by the West Virginia water
development authority to effect the intents and purposes of this
article.
(5) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment.
(6) "Cost" means, as applied to water development projects,
the cost of their acquisition and construction; the cost of
acquisition of all land, rights-of-way, property rights,
easements, franchise rights and interests required by the
authority for such acquisition and construction; the cost of
demolishing or removing any buildings or structures on land so
acquired, including the cost of acquiring any lands to which such
buildings or structures may be moved; the cost of acquiring or
constructing and equipping a principal office and suboffices of
the authority; the cost of diverting highways, interchange of
highways; access roads to private property, including the cost of
land or easements therefor; the cost of all machinery,
furnishings, and equipment; all financing charges, and interestprior to and during construction and for no more than eighteen
months after completion of construction; the cost of all
engineering services and all expenses of research and development
with respect to public water or waste water facilities; the cost
of all legal services and expenses; the cost of all plans,
specifications, surveys and estimates of cost and revenues; all
working capital and other expenses necessary or incident to
determining the feasibility or practicability of acquiring or
constructing any such project; all administrative expenses and
such other expenses as may be necessary or incident to the
acquisition or construction of the project; the financing of such
acquisition or construction, including the amount authorized in
the resolution of the authority providing for the issuance of
water development revenue bonds to be paid into any special funds
from the proceeds of such bonds; and the financing of the placing
of any such project in operation. Any obligation or expenses
incurred after the effective date of this section by any
governmental agency, with the approval of the authority, for
surveys, borings, preparation of plans and specifications and
other engineering services in connection with the acquisition or
construction of a project shall be regarded as are a part of the
cost of such project and shall be reimbursed out of the proceeds
of loans or water development revenue bonds as authorized by the
provisions of this article.
(7) "Establishment" means an industrial establishment, mill,
factory, tannery, paper or pulp mill, mine, colliery, breaker ormineral processing operation, quarry, refinery, well, and each
and every industry or plant or works or activity in the operation
or process of which industrial wastes, or other wastes are
produced.
(8) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil
conservation districts; sanitary districts; public service
districts; drainage districts; regional governmental authorities
and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire,
construct or operate public water or waste water facilities; the
United States government or any agency, department, division or
unit thereof; and any agency, commission or authority established
pursuant to an interstate compact or agreement.
(9) "Industrial wastes" means any liquid, gaseous, solid or
other waste substance, or any combination thereof, resulting from
or incidental to any process of industry, manufacturing, trade or
business, or from or incidental to the development, processing or
recovery of any natural resources; and the admixture with such
industrial wastes of sewage or other wastes, as defined in this
section, shall are also be considered industrial wastes.
(10) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark and other wood debris and residues, sand,
lime, cinders, ashes, offal, night soil, silt, oil, tar,
dyestuffs, acids, chemicals, and all other materials orsubstances not sewage or industrial wastes which may cause or
might reasonably be expected to cause or to contribute to the
pollution of any of the waters of this state.
(11) "Owner" includes all persons, copartnerships or
governmental agencies having any title or interest in any
property rights, easements and interests authorized to be
acquired by this article.
(12) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; any federal or state
governmental agency; political subdivision; county commission;
municipality; industry; sanitary district; public service
district; drainage district; soil conservation district;
watershed improvement district; partnership; trust; estate;
person or individual; group of persons or individuals acting
individually or as a group or any other legal entity whatever.
(13) "Pollution" means (a) the discharge, release, escape,
deposit or disposition, directly or indirectly, of treated or
untreated sewage, industrial wastes, or other wastes, of whatever
kind or character, in or near any waters of the state, in such
condition, manner or quantity, as does, will, or is likely to (1)
contaminate or substantially contribute to the contamination of
any of such waters, or (2) alter or substantially contribute to
the alteration of the physical, chemical or biological properties
of any of such waters, if such contamination or alteration, orthe resulting contamination or alteration where a person only
contributes thereto, is to such an extent as to make any of such
waters (i) directly or indirectly harmful, detrimental or
injurious to the public health, safety and welfare, or (ii)
directly or indirectly detrimental to existing animal, bird,
fish, aquatic or plant life, or (iii) unsuitable for present or
future domestic, commercial, industrial, agricultural,
recreational, scenic or other legitimate uses; and also means (b)
the discharge, release, escape, deposit, or disposition, directly
or indirectly, of treated or untreated sewage, industrial wastes
or other wastes, of whatever kind or character, in or near any
waters of the state in such condition, manner or quantity, as
does, will, or is likely to reduce the quality of the waters of
the state below the standards established therefor by the United
States or any department, agency, board or commission of this
state authorized to establish such standards.
(14) "Project" or "water development project" means any
public water or waste water facility, the acquisition or
construction of which is authorized, in whole or in part, by the
West Virginia water development authority or the acquisition or
construction of which is financed, in whole or in part, from
funds made available by grant or loan by, or through, the
authority as provided in this article, including facilities, the
acquisition or construction of which is authorized, in whole or
in part, by the West Virginia water development authority or the
acquisition or construction of which is financed, in whole or inpart, from funds made available by grant or loan by, or through,
the authority as provided in this article, including all
buildings and facilities which the authority deems necessary for
the operation of the project, together with all property, rights,
easements and interest which may be required for the operation of
the project, but excluding all buildings and facilities used to
produce electricity other than electricity for consumption by the
authority in the operation and maintenance of the project.
(15) "Public roads" mean all public highways, roads and
streets in this state, whether maintained by the state, county,
municipality or other political subdivision.
(16) "Public utility facilities" means public utility plants
or installations and includes tracks, pipes, mains, conduits,
cables, wires, towers, poles and other equipment and appliances
of any public utility.
(17) "Revenue" means any money or thing of value collected
by, or paid to, the West Virginia water development authority as
rent, use or service fee or charge for use of, or in connection
with, any water development project, or as principal of or
interest, charges or other fees on loans, or any other
collections on loans made by the West Virginia water development
authority to governmental agencies to finance, in whole or in
part, the acquisition or construction of any water development
project or projects, or other money or property which is received
and may be expended for or pledged as revenues pursuant to this
article.
(18) "Sewage" means water-carried human or animal wastes
from residences, buildings, industrial establishments or other
places, together with such ground water infiltration and surface
waters as may be present.
(19) "Water resources," "water" or "waters" means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction, and shall include, includes, without limiting the
generality of the foregoing, natural or artificial lakes, rivers,
streams, creeks, branches, brooks, ponds (except farm ponds,
industrial settling basins and ponds and water treatment
facilities), impounding reservoirs, springs, wells and
watercourses.
(20) "Waste water" means any water containing sewage,
industrial wastes, or other wastes or contaminants derived from
the prior use of such water, and shall include includes, without
limiting the generality of the foregoing, surface water of the
type storm sewers are designed to collect and dispose of.
(21) "Waste water facilities" means facilities for the
purpose of treating, neutralizing, disposing of, stabilizing,
cooling, segregating or holding waste water, including, without
limiting the generality of the foregoing, facilities for the
treatment and disposal of sewage, industrial wastes, or other
wastes, waste water, and the residue thereof; facilities for the
temporary or permanent impoundment of waste water, both surfaceand underground; and sanitary sewers or other collection systems,
whether on the surface or underground, designed to transport
waste water together with the equipment and furnishings thereof
and their appurtenances and systems, whether on the surface or
underground, including force mains and pumping facilities
therefor.
(22) "Water facility" means all facilities, land and
equipment used for the collection of water, both surface and
underground, transportation of water, treatment of water and
distribution of water all for the purpose of providing potable,
sanitary water suitable for human consumption and use.
§22C-1-4. 20-5C-4. West Virginia water development authority;
created West Virginia water development board; created
organization of authority and board; appointment of board
members; their term of office, compensation and expenses;
director of authority.
There is hereby created The West Virginia water development
authority is continued. The authority is a governmental
instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the
carrying out of its purposes and duties shall be deemed and held
to be, and are hereby determined to be, are essential
governmental functions and for a public purpose.
The authority shall be is controlled, managed and operated
by the seven-member board known as the West Virginia water
development board. which is hereby created. The director of thedepartment of natural resources division of environmental
protection, and the director of the department of commissioner of
the bureau of public health and the state officer or employee who
in the judgment of the governor is most responsible for economic
or community development shall be are members ex officio of the
board. The governor shall designate annually the member who is
the state officer or employee most responsible for economic or
community development. The other four members of the board shall
be are appointed by the governor, by and with the advice and
consent of the Senate, for terms of two, three, four and six
years, respectively. The successor of each such appointed member
shall be appointed for a term of six years in the same manner the
original appointments were made, except that any person appointed
to fill a vacancy occurring prior to the expiration of the term
for which his or her predecessor was appointed shall be appointed
only for the remainder of such term. Each board member shall
serve serves until the appointment and qualification of his or
her successor. No more than two of the appointed board members
shall at any one time belong to the same political party.
Appointed board members may be reappointed to serve additional
terms. Provided, That each person serving as a member of the
West Virginia water development board, for a term which has not
expired on the effective date of this article, shall be appointed
by the governor without Senate confirmation to the West Virginia
water development board, as one of the four appointed members,
for the term ending the thirtieth day of June in the year inwhich his term would expire as a member of the West Virginia
water development board.
All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars in the manner provided in article two, chapter
six of this code. The governor may remove any board member for
cause as provided in article six, chapter six of this code.
Annually the board shall elect one of its appointed members
as chairman chair and another as vice-chairman vice-chair, and
shall appoint a secretary-treasurer, who need not be a member of
the board. Four members of the board shall constitute is a
quorum and the affirmative vote of four members shall be is
necessary for any action taken by vote of the board. No vacancy
in the membership of the board shall impair impairs the rights of
a quorum by such vote to exercise all the rights and perform all
the duties of the board and the authority. The person appointed
as secretary-treasurer, including a board member if he or she is
so appointed, shall give bond in the sum of fifty thousand
dollars in the manner provided in article two, chapter six of
this code.
The director of the department of natural resources division
of environmental protection, the director of the department of
commissioner of the bureau of public health and the state officer
or employee most responsible for economic or communitydevelopment shall not receive any compensation for serving as
board members. Each of the four appointed members of the board
shall receive an annual salary of five thousand dollars, payable
in monthly installments. Each of the seven board members shall
be reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
such board. All such expenses incurred by the board shall be are
payable solely from funds of the authority or from funds
appropriated for such purpose by the Legislature and no liability
or obligation shall be incurred by the authority beyond the
extent to which moneys are available from funds of the authority
or from such appropriations.
There shall also be a director of the authority appointed by
the board.
§22C-1-5. 20-5C-5. Authority may construct, finance, maintain,
etc., water development projects; loans to governmental
agencies shall be are subject to terms of loan agreements.
To accomplish the public policies and purposes and to meet
the responsibility of the state as set forth in this article, the
West Virginia water development authority may initiate, acquire,
construct, maintain, repair and operate water development
projects or cause the same to be operated pursuant to a lease,
sublease or agreement with any person or governmental agency;
may make loans and grants to governmental agencies for the
acquisition or construction of water development projects by such
governmental agencies, which loans may include amounts torefinance debt issued for existing water development projects of
the governmental agency when such refinancing is in conjunction
with a loan for a new water development project:
Provided,
That
the amount of the refinancing may not exceed fifty percent of the
loan to the governmental agency; and may issue water development
revenue bonds of this state, payable solely from revenues, to pay
the cost of, or finance, in whole or in part, by loans to
governmental agencies, such projects. A water development
project shall not be undertaken unless it has been determined by
the authority to be consistent with any applicable comprehensive
plan of water management approved by the director of the
department of natural resources division of environmental
protection or in the process of preparation by such director and
to be consistent with the standards set by the state water
resources environmental quality board, for the waters of the
state affected thereby. Any resolution of the authority
providing for acquiring or constructing such projects or for
making a loan or grant for such projects shall include a finding
by the authority that such determinations have been made. A loan
agreement shall be entered into between the authority and each
governmental agency to which a loan is made for the acquisition
or construction of a water development project, which loan
agreement shall include without limitation the following
provisions:
(1) The cost of such project, the amount of the loan, the
terms of repayment of such loan and the security therefor, whichmay include, in addition to the pledge of all revenues from such
project after a reasonable allowance for operation and
maintenance expenses, a deed of trust or other appropriate
security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan
shall be expended including the refinancing of existing water
development project debt as provided above, the procedures as to
the disbursement of loan proceeds and the duties and obligations
imposed upon the governmental agency in regard to the
construction or acquisition of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of such
governmental agency under the loan agreement, increase, service
charges from persons using said project, which service charges
shall be pledged for the repayment of such loan together with all
interest, fees and charges thereon and all other financial
obligations of such governmental agency under the loan agreement;
and
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the
authority or other state, federal and local bodies in regard to
the construction, operation, maintenance and use of the project.
§22C-1-6. 20-5C-6. Powers, duties and responsibilities of
authority generally.
The West Virginia water development authority is hereby
granted, has and may exercise all powers necessary or appropriateto carry out and effectuate its corporate purpose. The authority
shall have has the power and capacity to:
(1) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business and rules and regulations to implement
and make effective its powers and duties, such rules and
regulations to be promulgated in accordance with the provisions
of chapter twenty-nine-a of this code.
(2) Adopt an official seal.
(3) Maintain a principal office and, if necessary, regional
suboffices at locations properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under sections eight, nine and
fourteen nine, ten and sixteen of this article. Any actions
against the authority shall be brought in the circuit court of
Kanawha County in which the principal office of the authority
shall be located.
(5) Make loans and grants to governmental agencies for the
acquisition or construction of water development projects by any
such governmental agency and, in accordance with the provisions
of chapter twenty-nine-a of this code, adopt rules and procedures
for making such loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person, waterdevelopment projects, and, in accordance with the provisions of
chapter twenty-nine-a of this code, adopt rules and regulations
for the use of such projects.
(7) Make available the use or services of any water
development project to one or more persons, one or more
governmental agencies, or any combination thereof.
(8) Issue water development revenue bonds and notes and
water development revenue refunding bonds of the state, payable
solely from revenues as provided in section eight nine of this
article unless the bonds are refunded by refunding bonds, for the
purpose of paying all or any part of the cost of, or financing by
loans to governmental agencies, one or more water development
projects or parts thereof.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such public or
private lands, or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests it deems necessary for
carrying out the provisions of this article, but excluding the
acquisition by the exercise of the right of eminent domain of any
public water or waste water facilities operated under permits
issued pursuant to the provisions of article five-a eleven,chapter twenty twenty-two of this code and owned by any person or
governmental agency, and compensation shall be paid for public or
private lands so taken.
(11) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the
performance of its duties and the execution of its powers. When
the cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of
more than two thousand dollars, the authority shall make a
written contract with the lowest responsible bidder after public
notice published as a Class II legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this
code, the publication area for such publication to be the county
wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the
work and the general character of the materials to be furnished,
the place where plans and specifications therefor may be examined
and the time and place of receiving bids, but a contract or lease
for the operation of a water development project constructed and
owned by the authority or an agreement for cooperation in the
acquisition or construction of a water development project
pursuant to section fourteen sixteen of this article is not
subject to the foregoing requirements and the authority may enter
into such contract or lease or such agreement pursuant to
negotiation and upon such terms and conditions and for such
period as it finds to be reasonable and proper under thecircumstances and in the best interests of proper operation or of
efficient acquisition or construction of such project. The
authority may reject any and all bids. A bond with good and
sufficient surety, approved by the authority, shall be is
required of all contractors in an amount equal to at least fifty
percent of the contract price, conditioned upon the faithful
performance of the contract.
(12) Employ managers, superintendents and other employees,
who shall be are covered by the state civil service system, and
retain or contract with consulting engineers, financial
consultants, accounting experts, architects, attorneys and such
other consultants and independent contractors as are necessary in
its judgment to carry out the provisions of this article, and fix
the compensation or fees thereof. All expenses thereof shall be
are payable solely from the proceeds of water development revenue
bonds or notes issued by the authority, from revenues and from
funds appropriated for such purpose by the Legislature.
(13) Receive and accept from any federal agency, subject to
the approval of the governor, grants for or in aid of the
construction of any water development project or for research and
development with respect to public water or waste water
facilities and receive and accept aid or contributions from any
source of money, property, labor or other things of value, to be
held, used and applied only for the purposes for which such
grants and contributions are made.
(14) Engage in research and development with respect topublic water or waste water facilities.
(15) Purchase property coverage and liability insurance for
any water development project and for the principal office and
suboffices of the authority, insurance protecting the authority
and its officers and employees against liability, if any, for
damage to property or injury to or death of persons arising from
its operations and any other insurance the authority may agree to
provide under any resolution authorizing the issuance of water
development revenue bonds or in any trust agreement securing the
same.
(16) Charge, alter and collect rentals and other charges for
the use or services of any water development project as provided
in this article, and charge and collect reasonable interest, fees
and charges in connection with the making and servicing of loans
to governmental agencies in the furtherance of the purposes of
this article.
(17) Establish or increase reserves from moneys received or
to be received by the authority to secure or to pay the principal
of and interest on the bonds and notes issued by the authority
pursuant to this article.
(18) Do all acts necessary and proper to carry out the
powers expressly granted to the authority in this article.
§22C-1-7. 20-5C-6a. Power of authority to collect service
charges and exercise other powers of governmental agencies
in event of default; power to require governmental agencies
to enforce their rights.
In order to ensure that the public purposes to be served by
the authority may be properly carried out and in order to assure
the timely payment to the authority of all sums due and owing
under loan agreements with governmental agencies, as referred to
in section five of this article, notwithstanding any provision to
the contrary elsewhere contained in this code, in event of any
default by a governmental agency under such a loan agreement, the
authority shall have has, and may, at its option, exercise the
following rights and remedies in addition to the rights and
remedies conferred by law or pursuant to said loan agreement:
(1) The authority may directly impose, in its own name and
for its own benefit service charges determined by it to be
necessary under the circumstances upon all users of the water
development project to be acquired or constructed pursuant to
such loan agreement, and proceed directly to enforce and collect
such service charges, together with all necessary costs of such
enforcement and collection.
(2) The authority may exercise, in its own name or in the
name of and as agent for the governmental agency, all of the
rights, authority, powers and remedies of the governmental agency
with respect to the water development project or which may be
conferred upon the governmental agency by statute, rule,
regulation or judicial decision, including without limitation all
rights and remedies with respect to users of such water
development project.
(3) The authority may, by civil action, mandamus or otherjudicial or administrative proceeding, compel performance by such
governmental agency of all of the terms and conditions of such
loan agreement including without limitation the adjustment and
increase of service charges as required to repay the loan or
otherwise satisfy the terms of such loan agreement, the
enforcement and collection of such service charges and the
enforcement by such governmental agency of all rights and
remedies conferred by statute, rule, regulation or judicial
decision.
§22C-1-8. 20-5C-7. Expenditure of funds for study and
engineering of proposed projects.
With the approval and the consent of the board, either the
director of the department of natural resources division of
environmental protection or the director of the department of
commissioner of the bureau of public health, or both of them,
shall expend, out of any funds available for the purpose, such
moneys as are necessary for the study of any proposed water
development project and may use its engineering and other forces,
including consulting engineers and sanitary engineers, for the
purpose of effecting such study. All such expenses incurred by
such directors or either of them the director or commissioner
prior to the issuance of water development revenue bonds or notes
under this article shall be paid by the director or respective
directors incurring such expenses commissioner and charged to the
appropriate water development project and the director or
respective directors and commissioner shall keep proper recordsand accounts, showing the amounts so charged. Upon the sale of
water development revenue bonds or notes for a water development
project, the funds so expended by the director or respective
directors commissioner, with the approval of the authority, in
connection with such project, shall be repaid to the department
or departments of such director or directors division of
environmental protection or bureau of public health from the
proceeds of such bonds or notes.
§22C-1-9. 20-5C-8. Authority empowered to issue water
development revenue bonds, renewal notes and refunding
bonds; requirements and manner of such issuance.
The authority is hereby empowered to issue from time to time
water development revenue bonds and notes of the state in such
principal amounts as the authority deems necessary to pay the
cost of or finance, in whole or in part, by loans to governmental
agencies, one or more water development projects, but the
aggregate amount of all issues of bonds and notes outstanding at
one time for all projects authorized hereunder shall not exceed
that amount capable of being serviced by revenues received from
such projects.
The authority may, from time to time, issue renewal notes,
issue bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of water development
revenue refunding bonds by the state pursuant to the provisions
of section sixteen-b twenty of this article. Except as may
otherwise be expressly provided in this article or by theauthority, every issue of its bonds or notes shall be are
obligations of the authority payable out of the revenues and
reserves created for such purposes by the authority, which are
pledged for such payment, without preference or priority of the
first bonds issued, subject only to any agreements with the
holders of particular bonds or notes pledging any particular
revenues. Such pledge shall be is valid and binding from the
time the pledge is made and the revenues so pledged and
thereafter received by the authority shall are immediately be
subject to the lien of such pledge without any physical delivery
thereof or further act and the lien of any such pledge shall be
is valid and binding as against all parties having claims of any
kind in tort, contract or otherwise against the authority
irrespective of whether such parties have notice thereof.
All such bonds and notes shall have and are hereby declared
to have all the qualities of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
authority, shall bear such date and shall mature at such time, in
the case of any such note or any renewals thereof not exceeding
five years from the date of issue of such original note, and in
the case of any such bond not exceeding fifty years from the date
of issue, as such resolution may provide. The bonds and notes
shall bear interest at such rate, be in such denominations, be in
such form, either coupon or registered, carry such registration
privileges, be payable in such medium of payment, at such place
and be subject to such terms of redemption as the authority mayauthorize. The bonds and notes of the authority may be sold by
the authority, at public or private sale, at or not less than the
price the authority determines. The bonds and notes shall be
executed by the chairman chair and vice-chairman vice-chair of
the authority, both of whom may use facsimile signatures. The
official seal of the authority or a facsimile thereof shall be
affixed thereto or printed thereon and attested, manually or by
facsimile signature, by the secretary-treasurer of the authority,
and any coupons attached thereto shall bear the signature or
facsimile signature of the chairman chair of the authority. In
case any officer whose signature, or a facsimile of whose
signature, appears on any bonds, notes or coupons ceases to be
such officer before delivery of such bonds or notes, such
signature or facsimile is nevertheless sufficient for all
purposes the same as if he or she had remained in office until
such delivery and in case the seal of the authority has been
changed after a facsimile has been imprinted on such bonds or
notes such facsimile seal will continue to be sufficient for all
purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the authority to
secure the payment of the bonds or notes or of any issue thereof;
the use and disposition of revenues of the authority; a covenantto fix, alter and collect rentals and other charges so that
pledged revenues will be sufficient to pay the costs of
operation, maintenance and repairs, pay principal of and interest
on bonds or notes secured by the pledge of such revenues and
provide such reserves as may be required by the applicable
resolution or trust agreement; the setting aside of reserve
funds, sinking funds or replacement and improvement funds and the
regulation and disposition thereof; the crediting of the proceeds
of the sale of bonds or notes to and among the funds referred to
or provided for in the resolution authorizing the issuance of the
bonds or notes; the use, lease, sale or other disposition of any
water development project or any other assets of the authority;
limitations on the purpose to which the proceeds of sale of bonds
or notes may be applied and pledging such proceeds to secure the
payment of the bonds or notes or of any issue thereof; notes
issued in anticipation of the issuance of bonds, the agreement of
the authority to do all things necessary for the authorization,
issuance and sale of such bonds in such amounts as may be
necessary for the timely retirement of such notes; limitations on
the issuance of additional bonds or notes; the terms upon which
additional bonds or notes may be issued and secured; the
refunding of outstanding bonds or notes; the procedure, if any,
by which the terms of any contract with bondholders or
noteholders may be amended or abrogated, the amount of bonds or
notes the holders of which must consent thereto and the manner in
which such consent may be given; limitations on the amount ofmoneys to be expended by the authority for operating,
administrative or other expenses of the authority; securing any
bonds or notes by a trust agreement; and any other matters, of
like or different character, which in any way affect the security
or protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes shall be are less than the minimum
reserve requirements established in any resolution or resolutions
authorizing the issuance of such bonds or notes, the chairman
chair of the authority shall certify, on or before the first day
of December of each year, the amount of such deficiency to the
governor of the state, for inclusion, if the governor shall so
elect, of the amount of such deficiency in the budget to be
submitted to the next session of the Legislature for
appropriation to the authority to be pledged for payment of such
bonds or notes:
Provided,
That the Legislature shall is not be
required to make any appropriation so requested, and the amount
of such deficiencies shall is not constitute a debt or liability
of the state.
Neither the members of the authority nor any person
executing the bonds or notes shall be are liable personally on
the bonds or notes or be subject to any personal liability or
accountability by reason of the issuance thereof.
§22C-1-10. 20-5C-9. Trustee for bondholders; contents of trust
agreement.
In the discretion of the authority, any water developmentrevenue bonds or notes or water development revenue refunding
bonds issued by the authority under this article may be secured
by a trust agreement between the authority and a corporate
trustee, which trustee may be any trust company or banking
institution having the powers of a trust company within or
without this state.
Any such trust agreement may pledge or assign revenues of
the authority to be received, but shall not convey or mortgage
any water development project or any part thereof. Any such
trust agreement or any resolution providing for the issuance of
such bonds or notes may contain such provisions for protecting
and enforcing the rights and remedies of the bondholders or
noteholders as are reasonable and proper and not in violation of
law, including the provisions contained in section eight nine of
this article and covenants setting forth the duties of the
authority in relation to the acquisition of property, the
construction, improvement, maintenance, repair, operation and
insurance of the water development project the cost of which is
paid, in whole or in part, from the proceeds of such bonds or
notes, the rentals or other charges to be imposed for the use or
services of any water development project, provisions with regard
to the payment of the principal of and interest, charges and fees
on loans made to governmental agencies from the proceeds of such
bonds or notes, the custody, safeguarding, and application of all
moneys and provisions for the employment of consulting engineers
in connection with the construction or operation of such waterdevelopment project. Any banking institution or trust company
incorporated under the laws of this state which may act as
depository of the proceeds of bonds or notes or of revenues shall
furnish such indemnifying bonds or pledge such securities as are
required by the authority. Any such trust agreement may set
forth the rights and remedies of the bondholders and noteholders
and of the trustee and may restrict individual rights of action
by bondholders and noteholders as customarily provided in trust
agreements or trust indentures securing similar bonds. Such
trust agreement may contain such other provisions as the
authority deems reasonable and proper for the security of the
bondholders or noteholders. All expenses incurred in carrying
out the provisions of any such trust agreement may be treated as
a part of the cost of the operation of the water development
project. Any such trust agreement or resolution authorizing the
issuance of water development revenue bonds may provide the
method whereby the general administrative overhead expenses of
the authority shall will be allocated among the several projects
acquired or constructed by it as a factor of the operating
expenses of each such project.
§22C-1-11. 20-5C-9a. Trust agreements for related
responsibilities; reimbursements.
Notwithstanding any other provision of this code to the
contrary, when the authority acts in the capacity of fiscal
agent, authorizing authority or some other capacity for any
agency, department, instrumentality or public corporation of thestate which is issuing or purchasing bonds or notes, the
authority may, in the exercise of its responsibilities, enter
into trust agreements with one or more trust companies or banking
institutions having trust powers, located within or without the
state, with respect to the receipt, investment, handling, payment
and delivery of funds of such agency, department, instrumentality
or public corporation. The authority shall be is entitled to
reimbursement for the expenses of the authority incident to
performing such services, including the fees and expenses of
third parties providing services to the authority with respect
thereto, from the proceeds of bonds or notes or of the revenues
derived by such agency, department, instrumentality or public
corporation.
§22C-1-12. 20-5C-10. Legal remedies of bondholders and trustees.
Any holder of water development revenue bonds issued under
the authority of this article or any of the coupons appertaining
thereto and the trustee under any trust agreement, except to the
extent the rights given by this article may be restricted by the
applicable resolution or such trust agreement, may by civil
action, mandamus or other proceedings, protect and enforce any
rights granted under the laws of this state or granted under this
article, by the trust agreement or by the resolution authorizing
the issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
trust agreement or resolution, to be performed by the authorityor any officer thereof, including the fixing, charging and
collecting of sufficient rentals or other charges.
§22C-1-13. 20-5C-11. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Water development revenue bonds and notes and water
development revenue refunding bonds issued under authority of
this article and any coupons in connection therewith shall are
not constitute a debt or a pledge of the faith and credit or
taxing power of this state or of any county, municipality or any
other political subdivision of this state, and the holders or
owners thereof shall have no right to have taxes levied by the
Legislature or taxing authority of any county, municipality or
any other political subdivision of this state for the payment of
the principal thereof or interest thereon, but such bonds and
notes shall be are payable solely from the revenues and funds
pledged for their payment as authorized by this article unless
the notes are issued in anticipation of the issuance of bonds or
the bonds are refunded by refunding bonds issued under authority
of this article, which bonds or refunding bonds shall be are
payable solely from revenues and funds pledged for their payment
as authorized by this article. All such bonds and notes shall
contain on the face thereof a statement to the effect that the
bonds or notes, as to both principal and interest, are not debts
of the state or any county, municipality or political subdivision
thereof, but are payable solely from revenues and funds pledgedfor their payment.
All expenses incurred in carrying out the provisions of this
article shall be are payable solely from funds provided under
authority of this article. Such This article does not authorize
the authority to incur indebtedness or liability on behalf of or
payable by the state or any county, municipality or political
subdivision thereof.
§22C-1-14. 20-5C-12. Use of funds by authority; restrictions
thereon.
All moneys, properties and assets acquired by the authority,
whether as proceeds from the sale of water development revenue
bonds or as revenues or otherwise, shall be held by it in trust
for the purposes of carrying out its powers and duties, and shall
be used and reused in accordance with the purposes and provisions
of this article. Such moneys shall at no time be commingled with
other public funds. Such moneys, except as otherwise provided in
any resolution authorizing the issuance of water development
revenue bonds or in any trust agreement securing the same, or
except when invested pursuant to section thirteen fifteen of this
article, shall be kept in appropriate depositories and secured as
provided and required by law. The resolution authorizing the
issuance of such bonds of any issue or the trust agreement
securing such bonds shall provide that any officer to whom, or
any banking institution or trust company to which, such moneys
are paid shall act as trustee of such moneys and hold and apply
them for the purposes hereof, subject to the conditions thisarticle and such resolution or trust agreement provide.
§22C-1-15. 20-5C-13. Investment of funds by authority.
The authority is hereby authorized and empowered to invest
any funds not needed for immediate disbursement in any of the
following securities:
(1) Direct obligations of or obligations guaranteed by the
United States of America;
(2) Bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies: Banks for
cooperatives; federal intermediate credit banks; federal home
loan bank system; Export-Import Bank of the United States;
federal land banks; the Federal National Mortgage Association or
the Government National Mortgage Association;
(3) Public housing bonds issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a pledge of annual contributions under
an annual contributions contract or contracts with the United
States of America; or temporary notes issued by public agencies
or municipalities or preliminary loan notes issued by public
agencies or municipalities, in each case, fully secured as to the
payment of both principal and interest by a requisition or
payment agreement with the United States of America;
(4) Certificates of deposit secured by obligations of the
United States of America;
(5) Direct obligations of or obligations guaranteed by the
state of West Virginia;
(6) Direct and general obligations of any other state within
the territorial United States, to the payment of the principal of
and interest on which the full faith and credit of such state is
pledged:
Provided,
That at the time of their purchase, such
obligations are rated in either of the two highest rating
categories by a nationally recognized bond-rating agency; and
(7) Any fixed interest bond, note or debenture of any
corporations organized and operating within the United States:
Provided,
however That such corporation shall have a minimum net
worth of fifteen million dollars and its securities or its parent
corporation's securities are listed on one or more of the
national stock exchanges:
Provided,
further
however,
That (i)
such corporation has earned a profit in eight of the preceding
ten fiscal years as reflected in its statements, and (ii) such
corporation has not defaulted in the payment of principal or
interest on any of its outstanding funded indebtedness during its
preceding ten fiscal years, and (iii) the bonds, notes or
debentures of such corporation to be purchased are rated "AA" or
the equivalent thereof or better than "AA" or the equivalent
thereof at least two or more nationally recognized rating
services such as Standard and Poor's, Dun & Bradstreet or
Moody's.
§22C-1-16. 20-5C-14. Rentals and other revenues from water
development projects owned by the authority; contracts and
leases of the authority; cooperation of other governmental
agencies; bonds of such agencies.
This section shall apply applies to any water development
project or projects which are owned, in whole or in part, by the
authority. The authority may charge, alter and collect rentals
or other charges for the use or services of any water development
project, and contract in the manner provided by this section with
one or more persons, one or more governmental agencies, or any
combination thereof, desiring the use or services thereof, and
fix the terms, conditions, rentals or other charges for such use
or services. Such rentals or other charges shall are not be
subject to supervision or regulation by any other authority,
department, commission, board, bureau or agency of the state, and
such contract may provide for acquisition by such person or
governmental agency of all or any part of such water development
project for such consideration payable over the period of the
contract or otherwise as the authority in its sole discretion
determines to be appropriate, but subject to the provisions of
any resolution authorizing the issuance of water development
revenue bonds or notes or water development revenue refunding
bonds of the authority or any trust agreement securing the same.
Any governmental agency which has power to construct, operate
and maintain public water or waste water facilities may enter
into a contract or lease with the authority whereby the use or
services of any water development project of the authority will
be made available to such governmental agency and pay for such
use or services such rentals or other charges as may be agreed to
by such governmental agency and the authority.
Any governmental agency or agencies or combination thereof
may cooperate with the authority in the acquisition or
construction of a water development project and shall enter into
such agreements with the authority as are necessary, with a view
to effective cooperative action and safeguarding of the
respective interests of the parties thereto, which agreements
shall provide for such contributions by the parties thereto in
such proportion as may be agreed upon and such other terms as may
be mutually satisfactory to the parties, including, without
limitation the authorization of the construction of the project
by one of the parties acting as agent for all of the parties and
the ownership and control of the project by the authority to the
extent necessary or appropriate for purposes of the issuance of
water development revenue bonds by the authority. Any
governmental agency may provide such contribution as is required
under such agreements by the appropriation of money or, if
authorized by a favorable vote of the electors to issue bonds or
notes or levy taxes or assessments and issue notes or bonds in
anticipation of the collection thereof, by the issuance of bonds
or notes or by the levying of taxes or assessments and the
issuance of bonds or notes in anticipation of the collection
thereof, and by the payment of such appropriated money or the
proceeds of such bonds or notes to the authority pursuant to such
agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held for the purpose of issuing bonds toprovide funds to acquire, construct or equip, or provide real
estate and interests in real estate for a public water or waste
water facility, whether or not the governmental agency at the
time of such an election had the authority to pay the proceeds
from such bonds or notes issued in anticipation thereof to the
authority as provided in this section, may issue such bonds or
notes in anticipation of the issuance thereof and pay the
proceeds thereof to the authority in accordance with an agreement
between such governmental agency and the authority:
Provided,
That the legislative authority of the governmental agency finds
and determines that the water development project to be acquired
or constructed by the authority in cooperation with such
governmental agency will serve the same public purpose and meet
substantially the same public need as the facility otherwise
proposed to be acquired or constructed by the governmental agency
with the proceeds of such bonds or notes.
§22C-1-17. 20-5C-15. Maintenance, operation and repair of
projects; reports by authority to governor and Legislature.
Each water development project, when constructed and placed
in operation, shall be maintained and kept in good condition and
repair by the authority or if owned by a governmental agency, by
such governmental agency, or the authority or such governmental
agency shall cause the same to be maintained and kept in good
condition and repair. Each such project owned by the authority
shall be operated by such operating employees as the authority
employs or pursuant to a contract or lease with a governmentalagency or person. All public or private property damaged or
destroyed in carrying out the provisions of this article and in
the exercise of the powers granted hereunder with regard to any
project shall be restored or repaired and placed in its original
condition, as nearly as practicable, or adequate compensation
made therefor out of funds provided in accordance with the
provisions of this article.
As soon as possible after the close of each fiscal year, the
authority shall make an annual report of its activities for the
preceding fiscal year to the governor and the Legislature. Each
such report shall set forth a complete operating and financial
statement covering the authority's operations during the
preceding fiscal year. The authority shall cause an audit of its
books and accounts to be made at least once each fiscal year by
certified public accountants and the cost thereof may be treated
as a part of the cost of construction or of operations of its
projects.
§22C-1-18. 20-5C-16. Water development bonds lawful investments.
The provisions of sections nine and ten, article six,
chapter twelve of this code to the contrary notwithstanding, all
water development revenue bonds issued pursuant to this article
shall be are lawful investments for the West Virginia state board
of investments and shall are also be lawful investments for
banking institutions, societies for savings, building and loan
associations, savings and loan associations, deposit guarantee
associations, trust companies, insurance companies, includingdomestic for life and domestic not for life insurance companies.
§22C-1-19. 20-5C-16a. Purchase and cancellation of notes or
bonds.
The authority, subject to such agreements with noteholders
or bondholders as may then exist, shall have has the power, out
of any funds available therefor, to purchase notes or bonds of
the authority.
If the notes or bonds are then redeemable, the price of such
purchase shall not exceed the redemption price then applicable
plus accrued interest to the next interest payment date thereon.
If the notes or bonds are not then redeemable, the price of such
purchase shall not exceed the redemption price applicable on the
first date after such purchase upon which the notes or bonds
become subject to redemption plus accrued interest to such date.
Upon such purchase such notes or bonds shall be canceled.
§22C-1-20. 20-5C-16b. Refunding bonds.
Any bonds issued hereunder and at any time outstanding may
at any time and from time to time be refunded by the authority by
the issuance of its refunding bonds in such amount as it may deem
necessary to refund the principal of the bonds so to be refunded,
together with any unpaid interest thereon; to provide additional
funds for the purposes of the authority; and any premiums and
commissions necessary to be paid in connection therewith. Any
such refunding may be effected whether the bonds to be refunded
shall have then have matured or shall thereafter mature, either
by sale of the refunding bonds and the application of theproceeds thereof for the redemption of the bonds to be refunded
thereby, or by exchange of the refunding bonds for the bonds to
be refunded thereby:
Provided,
That the holders of any bonds so
to be refunded shall not be compelled without their consent to
surrender their bonds for payment or exchange prior to the date
on which they are payable or, if they are called for redemption,
prior to the date on which they are by their terms subject to
redemption. Any refunding bonds issued under the authority of
this article shall be are payable from the revenues out of which
the bonds to be refunded thereby were payable, or from other
moneys or the principal of and interest on or other investment
yield from, investments or proceeds of bonds or other applicable
funds and moneys, including investments of proceeds of any
refunding bonds, and shall be are subject to the provisions
contained in section eight nine of this article and shall be
secured in accordance with the provisions of sections eight nine
and nine ten of this article.
§22C-1-21. 20-5C-17. Exemption from taxation.
The exercise of the powers granted to the authority by this
article will be in all respects for the benefit of the people of
state, for the improvement of their health, safety, convenience
and welfare and for the enhancement of their residential,
agricultural, recreational, economic, commercial and industrial
opportunities and is a public purpose. As the operation and
maintenance of water development projects will constitute the
performance of are essential governmental functions, theauthority shall is not be required to pay any taxes or
assessments upon any water development project or upon any
property acquired or used by the authority or upon the income
therefrom. Such bonds and notes and all interest and income
thereon shall be are exempt from all taxation by this state, or
any county, municipality, political subdivision or agency
thereof, except inheritance taxes.
§22C-1-22. 20-5C-18. Acquisition of property by authority --
Acquisition by purchase; governmental agencies authorized to
convey, etc., property.
The authority may acquire by purchase, whenever it deems
such purchase expedient, any land, property, rights, rights-of-
way, franchises, easements and other interests in lands it deems
necessary or convenient for the construction and operation of any
water development project upon such terms and at such prices it
considers reasonable and can be agreed upon between the authority
and the owner thereof, and take title thereto in the name of the
state.
All governmental agencies, notwithstanding any contrary
provision of law, may lease, lend, grant or convey to the
authority, at its request, upon such terms as the proper
authorities of such governmental agencies deem reasonable and
fair and without the necessity for an advertisement, auction,
order of court or other action or formality, other than the
regular and formal action of the governmental agency concerned,
any real property or interests therein, including improvementsthereto or personal property which is necessary or convenient to
the effectuation of the authorized purposes of the authority,
including public roads and other real property or interests
therein, including improvements thereto or personal property
already devoted to public use.
§22C-1-23. 20-5C-19. Same -- Acquisition under §20-5C-6,
subdivision (10), section six of this article; property of
public utilities and common carriers; relocation,
restoration, etc., of highways and public utility
facilities.
The authority may acquire, pursuant to subdivision ten,
section six of this article, any land, rights, rights-of-way,
franchises, easements or other property necessary or proper for
the construction or the efficient operation of any water
development project.
This section does not authorize the authority to take or
disturb property or facilities belonging to any public utility or
to a common carrier, which property or facilities are required
for the proper and convenient operation of such public utility or
common carrier, unless provision is made for the restoration,
relocation or duplication of such property or facilities
elsewhere at the sole cost of the authority.
When the authority finds it necessary to change the location
of any portion of any public road, state highway, railroad or
public utility facility in connection with the construction of a
water development project, it shall cause the same to bereconstructed at such location as the unit or division of
government having jurisdiction over such road, highway, railroad
or public utility facility deems most favorable. Such
construction shall be of substantially the same type and in as
good condition as the original road, highway, railroad or public
utility facility. The cost of such reconstruction, relocation or
removal and any damage incurred in changing the location of any
such road, highway, railroad or public utility facility shall be
paid by the authority as a part of the cost of such water
development project.
When the authority finds it necessary that any public
highway or portion thereof be vacated by reason of the
acquisition or construction of a water development project, the
authority shall request the West Virginia commissioner of the
division of highways, in writing, to vacate such highway or
portion thereof if the highway or portion thereof to be vacated
is part of the state road system, or, if the highway or portion
thereof to be vacated is under the jurisdiction of a county or a
municipality, the authority shall request the governing body of
such county or municipality to vacate such public road or portion
thereof. The authority shall pay to the West Virginia
commissioner of the division of highways or to the county or
municipality, as the case may be, as part of the cost of such
water development project, any amounts required to be deposited
with any court in connection with proceedings for the
determination of compensation and damages and all amounts ofcompensation and damages finally determined to be payable as a
result of such vacation.
The authority may make reasonable rules and regulations for
the installation, construction, maintenance, repair, renewal,
relocation and removal of railroad or public utility facilities
in, on, over or under any water development project. Whenever
the authority determines that it is necessary that any such
facilities installed or constructed in, on, over or under
property of the authority pursuant to such rules and regulations
be relocated, the railroad or public utility owning or operating
such facilities shall relocate or remove them in accordance with
the order of the authority. The cost and expenses of such
relocation or removal, including the cost of installing such
facilities in a new location, the cost of any lands or any rights
or interests in lands and the cost of any other rights acquired
to accomplish such relocation or removal, may be paid by the
authority as a part of the cost of such water development
project. In case of any such relocation or removal of
facilities, the railroad or public utility owning or operating
them, and its successors or assigns, may maintain and operate
such facilities, with the necessary appurtenances in the new
location in, on, over or under the property of the authority for
as long a period and upon the same terms as it had the right to
maintain and operate such facilities in their former location.
§22C-1-24. 20-5C-20. Financial interest in contracts prohibited;
penalty.
No officer, member or employee of the authority shall be
financially interested, directly or indirectly, in any contract
of any person with the authority, or in the sale of any property,
real or personal, to or from the authority. This section does
not apply to contracts or purchases of property, real or
personal, between the authority and any governmental agency. If
any officer, member or employee of the authority has such
financial interest in a contract or sale of property prohibited
hereby, he shall be or she is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one thousand
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned.
§22C-1-25. 20-5C-21. Meetings and records of authority to be
kept public.
All meetings of the authority shall be open to the public
and the records of the authority shall be open to public
inspection at all reasonable times, except as otherwise provided
in this section. All final actions of the authority shall be
journalized and such journal shall also be open to the inspection
of the public at all reasonable times. Any records or
information relating to secret processes or secret methods of
manufacture or production which may be obtained by the authority
or other persons acting under authority of this article are
confidential and shall not be disclosed.
§22C-1-26. 20-5C-22. Liberal construction of article.
The provisions of this article are hereby declared to beremedial and shall be liberally construed to effectuate its
purposes and intents.
§22C-1-27. 20-5C-24. Authorized limit on borrowing.
The aggregate principal amount of bonds and notes issued by
the authority shall not exceed two hundred million dollars
outstanding at any one time:
Provided,
That in computing the
total amount of bonds and notes which may at any one time be
outstanding, the principal amount of any outstanding bonds or
notes refunded or to be refunded either by application of the
proceeds of the sale of any refunding bonds or notes of the
authority or by exchange for any such refunding bonds or notes,
shall be excluded.
ARTICLE 5I. 2. WATER POLLUTION CONTROL REVOLVING FUND ACT.
§22C-2-1. 20-5I-1. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Authority" means the West Virginia water development
authority created provided for in section four, article five-c,
one of this chapter. twenty of this code
(b) "Cost" as applied to any project financed under the
provisions of this article means the total of all costs incurred
by a local government that are reasonable and necessary for
carrying out all works and undertakings necessary or incident to
the accomplishment of any project including:
(1) Developmental, planning and feasibility studies,
surveys, plans and specifications;
(2) Architectural, engineering, financial, legal or other
special services;
(3) Acquisition of land and any buildings and improvements
thereon, including the discharge of any obligations of the
sellers of such land, buildings or improvements;
(4) Site preparation and development, including demolition
or removal of existing structures, construction and
reconstruction, labor, materials, machinery and equipment;
(5) The reasonable costs of financing incurred by the local
government in the course of the development of the project,
carrying charges incurred before placing the project in service,
interest on funds borrowed to finance the project to a date
subsequent to the estimated date the project is to be placed in
service, necessary expenses incurred in connection with placing
the project in service, and the funding of accounts and reserves
which the authority may require; and
(6) Other items that the department of natural resources
division of environmental protection determines to be reasonable
and necessary.
(c) "Fund" means the state water pollution control revolving
fund created by provided for in this article as it may be
expanded or modified from time to time pursuant to the clean
water act, as amended, the federal safe drinking water act, as
amended or by the executive order of the governor issued to
comply with federal laws relating thereto.
(d) "Instrumentality" means the agency of state governmentempowered with the primary responsibility associated with water
pollution control activities regulating publicly-owned wastewater
treatment facilities division of environmental protection or the
agency designated by an order of the governor as having the
primary responsibility for administering the fund pursuant to the
federal clean water act, as amended, and the federal safe
drinking water act, as amended, or other federal laws.
(e) "Local government" means any county, city, town,
municipal corporation, authority, district, public service
district, commission or political subdivision in West Virginia.
(f) "Project" means any public water or wastewater treatment
facility located or to be located in or outside this state by a
local government and includes:
(1) Sewage and wastewater collection, treatment and disposal
facilities;
(2) Public water transportation, treatment and distribution
facilities;
(2) (3) Drainage facilities and projects;
(3) (4) Administrative, maintenance, storage and laboratory
facilities related to the facilities delineated in subdivisions
(1), (2) and (2) (3) of this subsection;
(4) (5) Interests in land related to the facilities
delineated in subdivisions (1), (2), (3) and (3) (4) of this
subsection; and
(5) Other projects allowable under federal law.
§22C-2-2. 20-5I-2. Designation of department of natural
resources division of environmental protection as state
instrumentality for purposes of capitalization agreements
with the United States environmental protection agency.
The department of natural resources division of
environmental protection shall act as the instrumentality that is
empowered to enter into capitalization agreements with the United
States environmental protection agency, to accept capitalization
grant awards made under Title 6 of the federal clean water act,
as amended, the safe drinking water act, as amended, and other
federal laws and to otherwise manage the fund created pursuant to
provided for in this article in accordance with the requirements
of said Title 6 federal laws.
§22C-2-3. 20-5I-3. West Virginia water pollution control
revolving fund; created disbursement of fund moneys;
administration of the fund.
(a) Under the direction of the department of natural
resources division of environmental protection, the West Virginia
water development authority shall establish, administer and
manage a permanent and perpetual fund, to be known as the "West
Virginia Water Pollution Control Revolving Fund." The fund shall
be comprised of moneys appropriated to said fund by the
Legislature, moneys allocated to the state by the federal
government expressly for the purposes of establishing and
maintaining a state water pollution control revolving fund, all
receipts from loans made from the fund to local governments, all
income from the investment of moneys held in the fund, and allother sums designated for deposits to the fund from any source,
public or private. Moneys in the fund shall be used solely to
make loans to local governments to finance or refinance the costs
of a project:
Provided,
That moneys in the fund shall be
utilized to defray the costs incurred by the authority and the
department of natural resources division of environmental
protection in administering the provisions of this article:
Provided further,
That moneys in the fund shall be used to make
grants for projects to the extent allowed or authorized by
federal law.
(b) The director of the department of natural resources
division of environmental protection, in consultation with the
authority, shall promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code, to:
(1) Govern the disbursement of moneys from the fund; and
(2) Establish a state water pollution control revolving fund
program to direct the distribution of grants or loans from the
fund to particular local governments and establish the interest
rates and repayment terms of such loans.
(c) In order to carry out the administration and management
of the fund, the authority is authorized to employ officers,
employees, agents, advisers and consultants, including attorneys,
financial advisers, engineers, other technical advisers and
public accountants and, notwithstanding any provisions of this
code to the contrary, to determine their duties and compensation
without the approval of any other agency or instrumentality.
(d) The authority shall promulgate rules in accordance with
the provisions of chapter twenty-nine-a of this code to govern
the pledge of loans to secure bonds of the authority.
(e) All moneys belonging to the fund shall be kept in
appropriate depositories and secured in conformance with this
code. Disbursements from the fund shall be authorized for
payment by the director of the authority or his the director's
designee. Any depository or officer of such depository to which
moneys of the fund are paid shall act as trustee of such moneys
and shall hold and apply them solely for the purposes for which
said moneys are provided under this article. Moneys in the fund
shall not be commingled with other money of the authority. If
not needed for immediate use or disbursement, moneys in the fund
may be invested or reinvested by the authority in obligations or
securities which are considered lawful investments for public
funds under this code.
§22C-2-4. 20-5I-4. Annual audit.
The authority shall cause an audit of its books and accounts
to be made at least once each fiscal year by certified public
accountants, and the cost thereof may be defrayed as a part of
the cost of construction of a project or as an administrative
expense under the provisions of subsection (a), section three of
this article.
§22C-2-5. 20-5I-5. Collection of money due to the fund.
In order to ensure the timely payment of all sums due and
owing to the fund under a revolving fund loan agreement betweenthe state and a local government, and notwithstanding any
provisions of this code to the contrary, the authority shall have
has and may, at its option, exercise the following rights and
remedies in the event of any default by a local government under
such a loan agreement:
(a) The authority may directly impose, in its own name and
for its own benefit, service charges upon all users of a project
funded by a loan distributed to a local government pursuant to
this article, and may proceed directly to enforce and collect
such service charges, together with all necessary costs of such
enforcement and collection.
(b) The authority may exercise, in its own name or in the
name of and as the agent for a particular local government, all
of the rights, powers and remedies of the local government with
respect to the project or which may be conferred upon the local
government by statute, rule, regulation or judicial decision,
including all rights and remedies with respect to users of the
project funded by the loan distributed to that local government
pursuant to this article.
(c) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
local government of all of the terms and conditions of the loan
agreement between the state and that local government including:
(1) The adjustment of service charges as required to repay
the loan or otherwise satisfy the terms of the loan agreement;
(2) The enforcement and collection of service charges; and
(3) The enforcement by the local government of all rights
and remedies conferred by statute, rule, regulation or judicial
decision.
The rights and remedies enumerated in this section shall be
are in addition to rights and remedies conferred upon the
authority by law or pursuant to the loan agreement.
§22C-2-6. 20-5I-6. State construction grants program
established; special fund. created
(a) The director of the department of natural resources
division of environmental protection shall promulgate rules in
accordance with the provisions of chapter twenty-nine-a of this
code to establish a state construction grants program that is
designed to complement and supplement the state water pollution
control revolving fund program established pursuant to subsection
(b), section three of this article.
(b) A The special fund designated "The West Virginia
Construction Grants Fund" shall be established in the state
treasury on the first day of July, one thousand nine hundred
eighty-nine is continued. The special fund shall be comprised of
moneys appropriated to said fund by the Legislature, assessments
on existing wastewater treatment facilities, and all other sums
designated for deposit to the special fund from any source,
public or private:
Provided,
That such assessments shall be made
and collected in accordance with fee schedules to be established
by legislative rules promulgated by the director of the
department of natural resources division of environmentalprotection, in accordance with chapter twenty-nine-a of this
code. and which rules shall provide that no such assessments may
be collected before the first day of July, one thousand nine
hundred ninety. Moneys in the special fund shall be used solely
for the state construction grants program established under
subsection (a) of this section:
Provided, however,
That moneys
in the special fund may be utilized to defray the costs incurred
by the department of natural resources division of environmental
protection in administering the provisions of this section.
§22C-2-7. 20-5I-7. Environmental review of funded projects.
(a) The department of natural resources division of
environmental protection shall conduct an environmental review on
each project funded under this article. The director of the
department of natural resources division of environmental
protection shall promulgate rules in accordance with the
provisions of chapter twenty-nine-a of this code to implement the
environmental review of funded projects:
Provided,
That said
rules shall be consistent with the rules and regulations
promulgated by the United States environmental protection agency
pursuant to the federal clean water act, as amended.
(b) The director of the department of natural resources
division of environmental protection is authorized to direct a
local government, or its agent, to implement all measures that,
in the judgment of the director, are necessary in order to
mitigate or prevent adverse impacts to the public health, safety
or welfare or to the environment that may result from a projectfunded under this article. The director is further authorized to
require all projects to comply with all other appropriate federal
laws and regulations that are required of such projects under the
federal clean water act, as amended.
§22C-2-8. 20-5I-8. Conflicting provisions.
The provisions of this article shall be liberally construed
to the end that its beneficial purposes may be effectuated.
Insofar as the provisions of this article are inconsistent with
the provisions of any other general, special or local law, the
provisions of this article shall be are controlling.
ARTICLE 26. 3. WEST VIRGINIA SOLID WASTE MANAGEMENT BOARD.
§22C-3-1. 16-26-1. Short title.
This article shall be known and cited as the "West Virginia
Solid Waste Management Board Act."
§22C-3-2. 16-26-2. Legislative findings; declaration of policy
and responsibility; purpose and intent of article.
The Legislature finds that uncontrolled, inadequately
controlled and improper collection and disposal of solid waste
(1) is a public nuisance and a clear and present danger to
people; (2) provides harborages and breeding places for disease-
carrying, injurious insects, rodents and other pests harmful to
the public health, safety and welfare; (3) constitutes a danger
to livestock and domestic animals; (4) decreases the value of
private and public property, causes pollution, blight and
deterioration of the natural beauty and resources of the state
and has adverse economic and social effects on the state and itscitizens; and (5) results in the squandering of valuable
nonrenewable and nonreplenishable resources contained in solid
waste.
Further, the Legislature finds that governmental agencies in
the state and the private sector do not have the financial and
other resources needed to provide for the proper collection and
disposal of solid waste; that solid waste disposal sheds and
projects must be established on a relatively large scale to be
economically feasible and stable; and that proper solid waste
collection and disposal at the lowest minimum cost can only be
achieved through comprehensive solid waste management.
It is declared to be the public policy and a responsibility
of this state to assist efforts of governmental agencies and the
private sector to provide for the proper collection, disposal and
recycling of solid waste and to solve and prevent the problems
set forth in this article. It is the purpose and intent of the
Legislature in enacting this article to provide for the
necessary, dependable, effective and efficient collection,
disposal and recycling of solid waste and to assist and cooperate
with governmental agencies and the private sector in achieving
all the purposes set forth in this article, and to encourage the
recycling or extraction of recoverable resources from such solid
waste.
The Legislature finds that the public policy and
responsibility of the state as set forth in this section cannot
be effectively attained without the funding, establishment,operation and maintenance of solid waste disposal projects as
provided in this article.
§22C-3-3. 16-26-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Board" means the solid waste management board created
provided for in section four of this article, heretofore known as
the West Virginia state solid waste authority, the duties,
powers, responsibilities and functions of which are specified in
this article. All references in this code to the West Virginia
resource recovery -- solid waste disposal authority shall be
construed as references to the solid waste management board.
(2) "Bond" or "solid waste disposal revenue bond" means a
revenue bond or note issued by the solid waste management board,
heretofore previously known as the West Virginia resource
recovery -- solid waste disposal authority, to effect the intents
and purposes of this article.
(3) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment for a solid
waste disposal project.
(4) "Cost" means, as applied to solid waste disposal
projects, the cost of their acquisition and construction; the
cost of acquisition of all land, rights-of-way, property, rights,
easements, franchise rights and interests required by the board
for such acquisition and construction; the cost of demolishing or
removing any buildings or structures on land so acquired,including the cost of acquiring any land to which such buildings
or structures may be moved; the cost of diverting highways,
interchange of highways and access roads to private property,
including the cost of land or easements therefor; the cost of all
machinery, furnishings and equipment; all financing charges and
interest prior to and during construction and for no more than
eighteen months after completion of construction; the cost of all
engineering services and all expenses of research and development
with respect to solid waste facilities; the cost of all legal
services and expenses; the cost of all plans, specifications,
surveys and estimates of cost and revenues; all working capital
and other expenses necessary or incident to determining the
feasibility or practicability of acquiring or constructing any
such project; all administrative expenses and such other expenses
as may be necessary or incident to the acquisition or
construction of the project; the financing of such acquisition or
construction, including the amount authorized in the resolution
of the board providing for the issuance of solid waste disposal
revenue bonds to be paid into any special funds from the proceeds
of such bonds; and the financing of the placing of any such
project in operation. Any obligation or expenses incurred after
the effective date of this article by any governmental agency,
with the approval of the board, for surveys, borings, preparation
of plans and specifications and other engineering services in
connection with the acquisition or construction of a project
shall be regarded as are a part of the cost of such project andshall be reimbursed out of the proceeds of loans or solid waste
disposal revenue bonds as authorized by the provisions of this
article.
(5) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil
conservation districts; sanitary districts; public service
districts; drainage districts; regional governmental authorities
and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire,
construct or operate solid waste facilities; the United States
government or any agency, department, division or unit thereof;
and any agency, commission or authority established pursuant to
an interstate compact or agreement.
(6) "Industrial waste" means any solid waste substance
resulting from or incidental to any process of industry,
manufacturing, trade or business, or from or incidental to the
development, processing or recovery of any natural resource.
(7) "Owner" includes all persons, partnerships or
governmental agencies having any title or interest in any
property rights, easements and interests authorized to be
acquired by this article.
(8) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; governmental agency;political subdivision; county commission; municipality; industry;
sanitary district; public service district; drainage district;
soil conservation district; solid waste disposal shed district;
partnership; trust; estate; individual; group of individuals
acting individually or as a group; or any other legal entity.
whatever.
(9) "Pollution" means the discharge, release, escape or
deposit, directly or indirectly, of solid waste of whatever kind
or character, on lands or in waters in the state in an
uncontrolled, unregulated or unapproved manner.
(10) "Revenue" means any money or thing of value collected
by, or paid to, the solid waste management board as rent, use
fee, service charge or other charge for use of, or in connection
with, any solid waste disposal project, or as principal of or
interest, charges or other fees on loans, or any other
collections on loans made by the solid waste management board to
governmental agencies to finance, in whole or in part, the
acquisition or construction of any solid waste development
project or projects, or other money or property which is received
and may be expended for or pledged as revenues pursuant to this
article.
(11) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article five-a eleven, chapter twenty twenty-two of
this code, or source, special nuclear or by-product material as
defined by the Atomic Energy Act of 1954, as amended, including
any nuclear or by-product material considered by federal
standards to be below regulatory concern, or a hazardous waste
either identified or listed under article five-e eighteen,
chapter twenty twenty-two, or refuse, slurry, overburden or other
waste or material resulting from coal-fired electric power or
steam generation, the exploration, development, production,
storage and recovery of coal, oil and gas, and other mineral
resources placed or disposed of at a facility which is regulated
under articles two, three, four, six, seven, eight, nine or ten,
chapter twenty-two or chapter twenty-two-a or twenty-two-b of
this code, so long as such placement or disposal is in
conformance with a permit issued pursuant to said chapters.
"Solid waste" shall also does not include materials which are
recycled by being used or reused in an industrial process to make
a product, as effective substitutes for commercial products, or
are returned to the original process as a substitute for raw
material feedstock.
(12) "Solid waste facility" means any system, facility,land, contiguous land, improvements on land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities and other such facilities not
herein specified. Such facility shall be deemed to be is
situated, for purposes of this article, in the county where the
majority of the spatial area of such facility is located.
(13) "Solid waste disposal project" or "project" means any
solid waste facility, wastewater treatment plants, sewer
treatment plants, water and sewer systems and connecting
pipelines the acquisition or construction of which is authorized
by the solid waste management board or any acquisition or
construction which is financed, in whole or in part, from funds
made available by grant or loan by, or through, the board as
provided in this article, including all buildings and facilities
which the board deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(14) "Solid waste disposal shed" or "shed" means a
geographical area which the solid waste management board
designates as provided in section eight nine of this article for
solid waste management.
§22C-3-4. 16-26-4. West Virginia resource recovery -- solid
waste disposal authority redesignated Solid waste management
board; organization of board; appointment and qualification
of board members; their term of office, compensation and
expenses; director of board.
The West Virginia resource recovery -- solid waste disposal
authority is hereby continued in all respects as heretofore
constituted but is hereafter designated and shall be known as the
solid waste management board. All references in this code to the
West Virginia resource recovery -- solid waste disposal authority
shall be construed as references to the solid waste management
board. The solid waste management board is a governmental
instrumentality of the state and a body corporate. The exercise
by the board of the powers conferred on it by this article and
the carrying out of its purposes and duties are essential
governmental functions and are for a public purpose.
The board shall be is composed of seven members. The
secretary of the department of health and human resources and the
director of the division of natural resources environmental
protection, or their designees, shall be are members ex officio
of the board. The other five members of the board shall be are
appointed by the governor, on the effective date of this section,
by and with the advice and consent of the Senate, for terms of
one, two, three, four and five years, respectively. Two
appointees shall be persons having at least three years of
professional experience in solid waste management, civil
engineering or regional planning and three appointees shall be
representatives of the general public. The successor of each
such appointed member shall be appointed for a term of five years
in the same manner the original appointments were made and sothat the representation on the board as set forth in this section
is preserved, except that any person appointed to fill a vacancy
occurring prior to the expiration of the term for which his or
her predecessor was appointed shall be appointed only for the
remainder of such term. Each board member shall serve serves
until the appointment and qualification of his or her successor.
No more than three of the appointed board members may at any
one time be from the same congressional district or belong to the
same political party. No appointed board member may be an
officer or employee of the United States or this state.
Appointed board members may be reappointed to serve additional
terms. All members of the board shall be citizens of the state.
Each appointed member of the board, before entering upon his or
her duties, shall comply with the requirements of article one,
chapter six of this code and give bond in the sum of twenty-five
thousand dollars. Appointed members may be removed from the
board only for the same causes as elective state officers may be
removed.
Annually the board shall elect one of its appointed members
as chairman chair, another as vice chairman chair and appoint a
secretary-treasurer, who need not be a member of the board. Four
members of the board shall constitute are a quorum and the
affirmative vote of four members shall be is necessary for any
action taken by vote of the board. No vacancy in the membership
of the board shall impair impairs the rights of a quorum by such
vote to exercise all the rights and perform all the duties of theboard. The person appointed as secretary-treasurer shall give
bond in the sum of fifty thousand dollars. If a board member is
appointed as secretary-treasurer, he or she shall give bond in
the sum of twenty-five thousand dollars in addition to the bond
required in the preceding paragraph.
The ex officio members of the board shall not receive any
compensation for serving as a board member. Each of the five
appointed members of the board shall receive compensation of
fifty dollars for each day actually spent in attending meetings
of the board or in the discharge of his or her duties as a member
of the board, but not to exceed two thousand five hundred dollars
in any fiscal year. Each of the seven board members shall be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties as a member of
the board. All such compensation and expenses incurred by board
members shall be are payable solely from funds of the board or
from funds appropriated for such purpose by the Legislature and
no liability or obligation shall be incurred by the board beyond
the extent to which moneys are available from funds of the board
or from such appropriation.
The board shall meet at least four times annually and at any
time upon the call of its chairman chair or upon the request in
writing to the chairman chair of four board members.
The board shall appoint a director as its chief executive
officer. The director shall have successfully completed an
undergraduate education and, in addition, shall have two years ofprofessional experience in solid waste management, civil
engineering, public administration or regional planning.
§22C-3-5. 16-26-5. Board to designate and establish disposal
sheds; construction, maintenance, etc., of disposal
projects; loan agreements; compliance with federal and state
law.
To accomplish the public policy and purpose and to meet the
responsibility of the state as set forth in this article, the
solid waste management board shall designate and establish solid
waste disposal sheds and it may initiate, acquire, construct,
maintain, repair and operate solid waste disposal projects or
cause the same to be operated pursuant to a lease, sublease or
agreement with any person or governmental agency; may make loans
and grants to persons and to governmental agencies for the
acquisition or construction of solid waste disposal projects by
such persons and governmental agencies; and may issue solid waste
disposal revenue bonds of this state, payable solely from
revenues, to pay the cost of, or finance, in whole or in part, by
loans to governmental agencies, such projects. A solid waste
disposal project shall not be undertaken unless the board
determines that the project is consistent with federal law, with
its solid waste disposal shed plan, with the standards set by the
state water resources environmental quality board and the section
of water resources director of the division of natural resources
environmental protection for any waters of the state which may be
affected thereby, with the air quality standards set by the WestVirginia air pollution control commission said director and with
health standards set by the division of bureau of public health.
Any resolution of the board providing for acquiring or
constructing such projects or for making a loan or grant for such
projects shall include a finding by the board that such
determinations have been made. A loan agreement shall be entered
into between the board and each governmental agency to which a
loan is made for the acquisition or construction of a solid waste
disposal project, which loan agreement shall include without
limitation the following provisions:
(1) The cost of such project, the amount of the loan, the
terms of repayment of such loan and the security therefor, which
may include, in addition to the pledge of all revenues from such
project after a reasonable allowance for operation and
maintenance expenses, a deed of trust or other appropriate
security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan
shall be expended, the procedures as to the disbursement of loan
proceeds and the duties and obligations imposed upon the
governmental agency in regard to the construction or acquisition
of the project;
(3) The agreement of the governmental agency to impose,
collect, and, if required to repay the obligations of such
governmental agency under the loan agreement, increase service
charges from persons using said project, which service charges
shall be pledged for the repayment of such loan together with allinterest, fees and charges thereon and all other financial
obligations of such governmental agency under the loan agreement;
(4) The agreement of the governmental agency to comply with
all applicable laws, rules and regulations issued by the board or
other state, federal and local bodies in regard to the
construction, operation, maintenance and use of the project; and
(5) Such other provisions, terms or conditions as the board
may reasonably require.
The board shall comply with all of the provisions of federal
law and of article one fifteen, of this chapter twenty-two of
this code and any rules and regulations promulgated thereunder
which pertain to solid waste collection and disposal.
§22C-3-6. 16-26-6. Powers, duties and responsibilities of board
generally.
(a) The solid waste management board may exercise all powers
necessary or appropriate to carry out and effectuate its
corporate purpose. The board may:
(1) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the regulation of its affairs and the
conduct of its business, and rules and regulations, promulgated
pursuant to the provisions of chapter twenty-nine-a of this code,
to implement and make effective its powers and duties.
(2) Adopt an official seal.
(3) Maintain a principal office which shall be in Kanawha
county, and, if necessary, regional suboffices at locations
properly designated or provided.
(4) Sue and be sued in its own name and plead and be
impleaded in its own name, and particularly to enforce the
obligations and covenants made under sections ten, eleven and
sixteen of this article. Any actions against the board shall be
brought in the circuit court of Kanawha county.
(5) Make loans and grants to persons and to governmental
agencies for the acquisition or construction of solid waste
disposal projects and adopt rules and procedures for making such
loans and grants.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by a governmental agency or person, solid
waste disposal projects, and, in accordance with chapter twenty-
nine-a of this code, adopt rules and regulations for the use of
such projects.
(7) Make available the use or services of any solid waste
disposal project to one or more persons, one or more governmental
agencies, or any combination thereof.
(8) Issue solid waste disposal revenue bonds and notes and
solid waste disposal revenue refunding bonds of the state,
payable solely from revenues as provided in section ten of this
article, unless the bonds are refunded by refunding bond, for the
purpose of paying all or any part of the cost of acquiring,
constructing, reconstructing, enlarging, improving, furnishing,
equipping, or repairing solid waste disposal projects, or making
loans to persons or to governmental agencies for the acquisition,design or construction of solid waste disposal projects or parts
thereof.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) Acquire in the name of the state, by purchase or
otherwise, on such terms and in such manner as it deems proper,
or by the exercise of the right of eminent domain in the manner
provided in chapter fifty-four of this code, such public or
private lands, or parts thereof or rights therein, rights-of-way,
property, rights, easements and interests it deems necessary for
carrying out the provisions of this article, but excluding the
acquisition by the exercise of the right of eminent domain of any
solid waste facility operated under permits issued pursuant to
the provisions of article five-f fifteen, chapter twenty twenty-
two of this code and owned by any person or governmental agency.
This article does not authorize the board to take or disturb
property or facilities belonging to any public utility or to a
common carrier, which property or facilities are required for the
proper and convenient operation of such public utility or common
carrier, unless provision is made for the restoration, relocation
or duplication of such property or facilities elsewhere at the
sole cost of the board.
(11) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the
performance of its duties and the execution of its powers. Whenthe cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of
more than two thousand dollars, the board shall make a written
contract with the lowest responsible bidder after public notice
published as a Class II legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code,
the publication area for such publication to be the county
wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the
work and the general character of the materials to be furnished,
the place where plans and specifications therefor may be examined
and the time and place of receiving bids. A contract or lease
for the operation of a solid waste disposal project constructed
and owned by the board or an agreement for cooperation in the
acquisition or construction of a solid waste disposal project
pursuant to section sixteen of this article is not subject to the
foregoing requirements and the board may enter into such contract
or lease or such agreement pursuant to negotiation and upon such
terms and conditions and for such period as it finds to be
reasonable and proper under the circumstances and in the best
interests of proper operation or of efficient acquisition or
construction of such project. The board may reject any and all
bids. A bond with good and sufficient surety, approved by the
board, shall be is required of all contractors in an amount equal
to at least fifty percent of the contract price, conditioned upon
the faithful performance of the contract.
(12) Employ managers, superintendents, engineers,
accountants, auditors and other employees, and retain or contract
with consulting engineers, financial consultants, accounting
experts, architects, attorneys and such other consultants and
independent contractors as are necessary in its judgment to carry
out the provisions of this article, and fix the compensation or
fees thereof. All expenses thereof shall be are payable solely
from the proceeds of solid waste disposal revenue bonds or notes
issued by the board, from revenues and from funds appropriated
for such purpose by the Legislature.
(13) Receive and accept from any federal agency, subject to
the approval of the governor, grants for or in aid of the
construction of any solid waste disposal project or for research
and development with respect to solid waste disposal projects and
solid waste disposal sheds and receive and accept from any source
aid or contributions of money, property, labor or other things of
value, to be held, used and applied only for the purposes for
which such grants and contributions are made.
(14) Engage in research and development with respect to
solid waste disposal projects and solid waste disposal sheds.
(15) Purchase fire and extended coverage and liability
insurance for any solid waste disposal project and for the
principal office and suboffices of the board, insurance
protecting the board and its officers and employees against
liability, if any, for damage to property or injury to or death
of persons arising from its operations and any other insurancethe board may agree to provide under any resolution authorizing
the issuance of solid waste disposal revenue bonds.
(16) Charge, alter and collect rentals and other charges for
the use or services of any solid waste disposal project as
provided in this article, and charge and collect reasonable
interest, fees and other charges in connection with the making
and servicing of loans to governmental agencies in furtherance of
the purposes of this article.
(17) Establish or increase reserves from moneys received or
to be received by the board to secure or to pay the principal of
and interest on the bonds and notes issued by the board pursuant
to this article.
(18) Do all acts necessary and proper to carry out the
powers expressly granted to the board in this article.
(b) The solid waste management board may not expend an
amount of money greater than one thousand dollars on any one
purchase nor disburse grant moneys without first obtaining the
written approval of the secretary of commerce, labor and
environmental resources.
§22C-3-7. 16-26-6a. Development of state solid waste management
plan.
On or before the first day of January, one thousand nine
hundred ninety-three, the solid waste management board shall
prepare an overall state plan for the proper management of solid
waste:
Provided,
That such plan shall be consistent with the
findings and purposes of articles five-f, nine and article fourof this chapter, article fifteen of chapter twenty-two and
article eleven of chapter twenty of this code:
Provided,
however,
That such plan shall incorporate the county or regional
plans developed pursuant to sections seven eight and twelve-a
twenty-four, article nine, four of this chapter twenty of this
code, as amended:
Provided further,
That such plan shall be
updated every two years following its initial preparation.
§22C-3-8. 16-26-7. Power of board to collect service charges and
exercise other powers of governmental agencies in event of
default; power to require governmental agencies to enforce
their rights.
In order to ensure that the public purposes to be served by
the board may be properly carried out and in order to assure the
timely payment to the board of all sums due and owing under loan
agreements with governmental agencies, as referred to in section
five of this article, notwithstanding any provision to the
contrary elsewhere contained in this code, in event of any
default by a governmental agency under such a loan agreement, the
board shall have has, and may, at its option, exercise the
following rights and remedies in addition to the rights and
remedies conferred by law or pursuant to said loan agreement:
(1) The board may directly impose, in its own name and for
its own benefit, service charges determined by it to be necessary
under the circumstances upon all users of the solid waste
disposal project to be acquired or constructed pursuant to such
loan agreement, and proceed directly to enforce and collect suchservice charges, together with all necessary costs of such
enforcement and collection.
(2) The board may exercise, in its own name or in the name
of and as agent for the governmental agency, all of the rights,
board, powers and remedies of the governmental agency with
respect to the solid waste disposal project or which may be
conferred upon the governmental agency by statute, rule,
regulation or judicial decision, including, without limitation,
all rights and remedies with respect to users of such solid waste
disposal project.
(3) The board may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by such
governmental agency of all of the terms and conditions of such
loan agreement including, without limitation, the adjustment and
increase of service charges as required to repay the loan or
otherwise satisfy the terms of such loan agreement, the
enforcement and collection of such service charges and the
enforcement by such governmental agency of all rights and
remedies conferred by statute, rule, regulation or judicial
decision.
§22C-3-9. 16-26-8. Development and designation of solid waste
disposal sheds by board.
The board shall maintain the division of the state into
geographical areas for solid waste management which shall be
known as solid waste disposal sheds. The board may, from time to
time, modify the boundaries of such sheds in a manner consistentwith the provisions of this section. Before it modifies the
sheds, the board shall consult with the affected municipalities
and county or regional solid waste authorities and obtain and
evaluate their opinions as to how many sheds there should be and
where their boundaries should be located. The board shall then
cause feasibility and cost studies to be made in order for it to
designate the solid waste disposal sheds within each of which the
most dependable, effective, efficient and economical solid waste
disposal projects may be established. The sheds shall not
overlap and shall cover the entire state.
The board shall designate the sheds so that:
(1) The goal of providing solid waste collection and
disposal service to each household, business and industry in the
state can reasonably be achieved.
(2) The total cost of solid waste collection and disposal
and the cost of solid waste collection and disposal within each
shed and per person can be kept as low as possible.
(3) Solid waste collection and disposal service, facilities
and projects can be integrated in the most feasible, dependable,
effective, efficient and economical manner.
(4) No county is located in more than one shed:
Provided,
That the board may divide a county among two or more sheds upon
request of the appropriate county or regional solid waste
authority.
The board, in modifying the boundaries of solid waste
disposal sheds, is exempt from the provisions of chapter twenty-nine-a.
§22C-3-10. 16-26-10. Board empowered to issue solid waste
disposal revenue bonds, renewal notes and refunding bonds;
requirements and manner of such issuance.
The board is hereby empowered to issue, from time to time,
solid waste disposal revenue bonds and notes of the state in such
principal amounts as the board deems necessary to pay the cost of
or finance, in whole or in part, by loans to governmental
agencies, one or more solid waste development projects, but the
aggregate amount of all issues of bonds and notes outstanding at
one time for all projects authorized hereunder shall not exceed
that amount capable of being serviced by revenues received from
such projects, and shall not exceed in the aggregate the sum of
one hundred million dollars:
Provided,
That up to twenty-five
million dollars may be issued for projects located or to be
located in areas which lack adequate sewer or water service and
the area is in need of such services to comply with federal
requirements.
The board may, from time to time, issue renewal notes, issue
bonds to pay such notes and whenever it deems refunding
expedient, refund any bonds by the issuance of solid waste
disposal revenue refunding bonds of the state. Except as may
otherwise be expressly provided in this article or by the board,
every issue of its bonds or notes shall be are obligations of the
board payable out of the revenues and reserves created for such
purposes by the board, which are pledged for such payment,without preference or priority of the first bonds issued, subject
only to any agreements with the holders of particular bonds or
notes pledging any particular revenues. Such pledge shall be is
valid and binding from the time the pledge is made and the
revenue so pledged and thereafter received by the board shall is
immediately be subject to the lien of such pledge without any
physical delivery thereof or further act and the lien of any such
pledge shall be is valid and binding as against all parties
having claims of any kind in tort, contract or otherwise against
the board irrespective of whether such parties have notice
thereof. All such bonds and notes shall have all the qualities
of negotiable instruments.
The bonds and notes shall be authorized by resolution of the
board, shall bear such dates and shall mature at such times, in
the case of any such note or any renewals thereof not exceeding
five years from the date of issue of such original note, and in
the case of any such bond not exceeding fifty years from the date
of issue, as such resolution may provide. The bonds and notes
shall bear interest at such rate, be in such denominations, be in
such form, either coupon or registered, carry such registration
privileges, be payable in such medium of payment, at such place
and be subject to such terms of redemption as the board may
authorize. The board may sell such bonds and notes at public or
private sale, at the price the board determines. The bonds and
notes shall be executed by the chairman chair and vice chairman
chair of the board, both of whom may use facsimile signatures. The official seal of the board or a facsimile thereof shall be
affixed thereto or printed thereon and attested, manually or by
facsimile signature, by the secretary-treasurer of the board, and
any coupons attached thereto shall bear the signature or
facsimile signature of the chairman chair of the board. In case
any officer whose signature, or a facsimile of whose signature,
appears on any bonds, notes or coupons ceases to be such officer
before delivery of such bonds or notes, such signature or
facsimile is nevertheless sufficient for all purposes the same as
if he or she had remained in office until such delivery and, in
case the seal of the board has been changed after a facsimile has
been imprinted on such bonds or notes, such facsimile seal will
continue to be sufficient for all purposes.
Any resolution authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with
bondholders or noteholders as may then exist, which provisions
shall be a part of the contract with the holders thereof) as to
pledging all or any part of the revenues of the board to secure
the payment of the bonds or notes or of any issue thereof; the
use and disposition of revenues of the board; a covenant to fix,
alter and collect rentals, fees, service charges and other
charges so that pledged revenues will be sufficient to pay the
costs of operation, maintenance and repairs, pay principal of and
interest on bonds or notes secured by the pledge of such revenues
and provide such reserves as may be required by the applicable
resolution; the setting aside of reserve funds, sinking funds orreplacement and improvement funds and the regulation and
disposition thereof; the crediting of the proceeds of the sale of
bonds or notes to and among the funds referred to or provided for
in the resolution authorizing the issuance of the bonds or notes;
the use, lease, sale or other disposition of any solid waste
disposal project or any other assets of the board; limitations on
the purpose to which the proceeds of sale of bonds or notes may
be applied and pledging such proceeds to secure the payment of
the bonds or notes or of any issue thereof; agreement of the
board to do all things necessary for the authorization, issuance
and sale of bonds in such amounts as may be necessary for the
timely retirement of notes issued in anticipation of the issuance
of bonds; limitations on the issuance of additional bonds or
notes; the terms upon which additional bonds or notes may be
issued and secured; the refunding of outstanding bonds or notes;
the procedure, if any, by which the terms of any contract with
bondholders or noteholders may be amended or abrogated, the
holders of which must consent thereto, and the manner in which
such consent may be given; limitations on the amount of moneys to
be expended by the board for operating, administrative or other
expenses of the board; and any other matters, of like or
different character, which in any way affect the security or
protection of the bonds or notes.
In the event that the sum of all reserves pledged to the
payment of such bonds or notes shall be is less than the minimum
reserve requirements established in any resolution or resolutionsauthorizing the issuance of such bonds or notes, the chairman
chair of the board shall certify, on or before the first day of
December of each year, the amount of such deficiency to the
governor of the state, for inclusion, if the governor shall so
elect, of the amount of such deficiency in the budget to be
submitted to the next session of the Legislature for
appropriation to the board to be pledged for payment of such
bonds or notes:
Provided,
That the Legislature shall is not be
required to make any appropriation so requested, and the amount
of such deficiencies shall is not constitute a debt or liability
of the state.
Neither the members of the board nor any person executing
the bonds or notes shall be are liable personally on the bonds or
notes or be are subject to any personal liability or
accountability by reason of the issuance thereof.
§22C-3-11. 16-26-11. Establishment of reserve funds, replacement
and improvement funds and sinking funds; fiscal agent;
purposes for use of bond proceeds; application of surplus.
(a) Before issuing any revenue bonds in accordance with the
provisions of this article, the board shall consult with and be
advised by the West Virginia water development authority as to
the feasibility and necessity of the proposed issuance of revenue
bonds. Such consultation shall include, but not be limited to,
the following subjects:
(1) The relationship of the proposed issuance of revenue
bonds to the statutory debt limitation provided for in sectionten of this article;
(2) The degree to which the proceeds will be used for
capital improvements in the form of real or personal property;
(3) The extent to which the proposed use of proceeds
coincides with the purposes of this article;
(4) A weighing of the public benefit to be derived from the
issuance as opposed to any private gain; and
(5) The sufficiency of projected revenues available to the
board to pay the interest on indebtedness as it falls due, to
constitute a sinking fund for the payment thereof at maturity, or
to discharge the principal within a prescribed period of time.
(b) Prior to issuing revenue bonds under the provisions of
this article, the board shall enter into agreements satisfactory
to the water development authority with regard to the selection
of all consultants, advisors and other experts to be employed in
connection with the issuance of such bonds and the fees and
expenses to be charged by such persons, and to establish any
necessary reserve funds and replacement and improvement funds,
all such funds to be administered by the water development
authority, and, so long as any such bonds remain outstanding, to
establish and maintain a sinking fund or funds to retire such
bonds and pay the interest thereon as the same may become due.
The amounts in any such sinking fund, as and when so set apart by
the board, shall be remitted to the West Virginia water
development authority at least thirty days previous to the time
interest or principal payments become due, to be retained andpaid out by the water development authority, as agent for the
board, in a manner consistent with the provisions of this article
and with the resolution pursuant to which the bonds have been
issued. The water development authority shall act as fiscal
agent for the administration of any sinking fund and reserve fund
established under each resolution authorizing the issuance of
revenue bonds pursuant to the provisions of this article, and
shall invest all funds not required for immediate disbursement in
the same manner as funds are invested pursuant to the provisions
of section thirteen fifteen, article five-c one of this chapter.
twenty of this code.
(c) Notwithstanding any other provision of this article to
the contrary, no revenue bonds shall be issued, nor the proceeds
thereof expended or distributed, pursuant to the provisions of
this article, without the prior approval of the water development
authority. Upon such approval, the proceeds of revenue bonds
shall be used solely for the following purposes:
(1) To pay the cost of acquiring, constructing,
reconstructing, enlarging, improving, furnishing, equipping or
repairing solid waste disposal projects;
(2) To make loans to persons or to governmental agencies for
the acquisition, design and construction of solid waste disposal
projects, taking such collateral security for any such loans as
may be approved by the water development authority; and
(3) To pay the costs and expenses incidental to or necessary
for the issuance of such bonds.
(d) If the proceeds of revenue bonds issued for any solid
waste disposal project shall exceed the cost thereof, the surplus
shall be paid into the fund herein provided for the payment of
principal and interest upon such bonds. Such fund may be used by
the fiscal agent for the purchase or redemption of any of the
outstanding bonds payable from such fund at the market price, but
not at a price exceeding the price at which any of such bonds
shall is in the same year be redeemable, as fixed by the board in
its said resolution, and all bonds redeemed or purchased shall
forthwith be canceled, and shall not again be issued.
§22C-3-12. 16-26-12. Legal remedies of bondholders.
Any holder of solid waste disposal revenue bonds issued
under the authority of this article or any of the coupons
appertaining thereto, except to the extent the rights given by
this article may be restricted by the applicable resolution, may
by civil action, mandamus or other proceeding, protect and
enforce any rights granted under the laws of this state or
granted under this article, by the resolution authorizing the
issuance of such bonds, and may enforce and compel the
performance of all duties required by this article, or by the
resolution, to be performed by the board or any officer or
employee thereof, including the fixing, charging and collecting
of sufficient rentals, fees, service charges or other charges.
§22C-3-13. 16-26-13. Bonds and notes not debt of state, county,
municipality or of any political subdivision; expenses
incurred pursuant to article.
Solid waste disposal revenue bonds and notes and solid waste
disposal revenue refunding bonds issued under authority of this
article and any coupons in connection therewith shall are not
constitute a debt or a pledge of the faith and credit or taxing
power of this state or of any county, municipality or any other
political subdivision of this state, and the holders or owners
thereof shall have no right to have taxes levied by the
Legislature or taxing authority of any county, municipality or
any other political subdivision of this state for the payment of
the principal thereof or interest thereon, but such bonds and
notes shall be are payable solely from the revenues and funds
pledged for their payment as authorized by this article unless
the notes are issued in anticipation of the issuance of bonds or
the bonds are refunded by refunding bonds issued under authority
of this article, which bonds or refunding bonds shall be are
payable solely from revenues and funds pledged for their payment
as authorized by this article. All such bonds and notes shall
contain on the face thereof a statement to the effect that the
bonds or notes, as to both principal and interest, are not debts
of the state or any county, municipality or political subdivision
thereof, but are payable solely from revenues and funds pledged
for their payment.
All expenses incurred in carrying out the provisions of this
article shall be are payable solely from funds provided under
authority of this article. This article does not authorize the
board to incur indebtedness or liability on behalf of or payableby the state or any county, municipality or political subdivision
thereof.
§22C-3-14. 16-26-14. Use of funds, properties, etc., by board;
restrictions thereon.
All moneys, properties and assets acquired by the board,
whether as proceeds from the sale of solid waste disposal revenue
bonds or as revenues or otherwise, shall be held by it in trust
for the purposes of carrying out its powers and duties, and shall
be used and reused in accordance with the purposes and provisions
of this article. Such moneys shall at no time be commingled with
other public funds. Such moneys, except as otherwise provided in
any resolution authorizing the issuance of solid waste disposal
revenue bonds or except when invested, pursuant to section
fifteen of this article, shall be kept in appropriate
depositories and secured as provided and required by law. The
resolution authorizing the issuance of such bonds of any issue
shall provide that any officer to whom such moneys are paid shall
act as trustee of such moneys and hold and apply them for the
purposes hereof, subject to the conditions this article and such
resolution provide.
§22C-3-15. 16-26-15. Audit of funds disbursed by the board and
recipients thereof.
Beginning in the fiscal year ending the thirtieth day of
June, one thousand nine hundred ninety-two, and every second
fiscal year thereafter, the Legislature shall cause to be
performed a post audit and a performance audit for theintervening two-year period of the recipients of any grant or
loan provided by the solid waste management board. The audit
shall cover the disbursement of such loans or grants provided
pursuant to section thirteen thirty, article nine, four of this
chapter, twenty of this code, the use of such loans or grants by
the recipient as well as all other appropriate subject matter.
§22C-3-16. 16-26-16. Rentals, fees, service charges and other
revenues from solid waste disposal projects; contracts and
leases of board; cooperation of other governmental agencies;
bonds of such agencies.
This section shall apply applies to any solid waste disposal
project or projects which are owned, in whole or in part, by the
board.
The board may charge, alter and collect rentals, fees,
service charges or other charges for the use or services of any
solid waste disposal project, and contract in the manner provided
by this section with one or more persons, one or more
governmental agencies, or any combination thereof, desiring the
use or services thereof, and fix the terms, conditions, rentals,
fees, service charges or other charges for such use or services.
Such rentals, fees, service charges or other charges shall are
not be subject to supervision or regulation by any other
authority, department, commission, board, bureau or agency of the
state, and such contract may provide for acquisition by such
person or governmental agency of all or any part of such solid
waste disposal project for such consideration payable over theperiod of the contract or otherwise as the board in its sole
discretion determines to be appropriate, but subject to the
provisions of any resolution authorizing the issuance of solid
waste disposal revenue bonds or notes or solid waste disposal
revenue refunding bonds of the board. Any governmental agency
which has power to construct, operate and maintain solid waste
disposal facilities may enter into a contract or lease with the
board whereby the use or services of any solid waste disposal
project of the board will be made available to such governmental
agency and pay for such use or services such rentals, fees,
service charges or other charges as may be agreed to by such
governmental agency and the board.
Any governmental agency or agencies or combination thereof
may cooperate with the board in the acquisition or construction
of a solid waste disposal project and shall enter into such
agreements with the board as are necessary, with a view to
effective cooperative action and safeguarding of the respective
interests of the parties thereto, which agreements shall provide
for such contributions by the parties thereto in such proportion
as may be agreed upon and such other terms as may be mutually
satisfactory to the parties, including, without limitation, the
authorization of the construction of the project by one of the
parties acting as agent for all of the parties and the ownership
and control of the project by the board to the extent necessary
or appropriate for purposes of the issuance of solid waste
disposal revenue bonds by the board. Any governmental agency mayprovide such contribution as is required under such agreements by
the appropriation of money or, if authorized by a favorable vote
of the electors to issue bonds or notes or levy taxes or
assessments and issue notes or bonds in anticipation of the
collection thereof, by the issuance of bonds or notes or by the
levying of taxes or assessments and the issuance of bonds or
notes in anticipation of the collection thereof, and by the
payment of such appropriated money or the proceeds of such bonds
or notes to the board pursuant to such agreements.
Any governmental agency, pursuant to a favorable vote of the
electors in an election held before or after the effective date
of this section for the purpose of issuing bonds to provide funds
to acquire, construct or equip, or provide real estate and
interests in real estate for a solid waste disposal project,
whether or not the governmental agency at the time of such
election had the board to pay the proceeds from such bonds or
notes issued in anticipation thereof to the board as provided in
this section, may issue such bonds or notes in anticipation of
the issuance thereof and pay the proceeds thereof to the board in
accordance with an agreement between such governmental agency and
the board:
Provided,
That the legislative board of the
governmental agency finds and determines that the solid waste
disposal project to be acquired or constructed by the board in
cooperation with such governmental agency will serve the same
public purpose and meet substantially the same public need as the
project otherwise proposed to be acquired or constructed by thegovernmental agency with the proceeds of such bonds or notes.
§22C-3-17. 16-26-17. Maintenance, operation and repair of
projects; repair of damaged property; reports by board to
governor and Legislature.
Each solid waste development project, when constructed and
placed in operation, shall be maintained and kept in good
condition and repair by the board or if owned by a governmental
agency, by such governmental agency, or the board or such
governmental agency shall cause the same to be maintained and
kept in good condition and repair. Each such project owned by
the board shall be operated by such operating employees as the
board employs or pursuant to a contract or lease with a
governmental agency or person. All public or private property
damaged or destroyed in carrying out the provision of this
article and in the exercise of the powers granted hereunder with
regard to any project shall be restored or repaired and placed in
its original condition, as nearly as practicable, or adequate
compensation made therefor out of funds provided in accordance
with the provisions of this article.
As soon as possible after the close of each fiscal year, the
board shall make an annual report of its activities for the
preceding fiscal year to the governor and the Legislature. Each
such report shall set forth a complete operating and financial
statement covering the board's operations during the preceding
fiscal year. The board shall cause an audit of its books and
accounts to be made at least once each fiscal year by certifiedpublic accountants and the cost thereof may be treated as a part
of the cost of construction or of operation of its projects. A
report of the audit shall be submitted to the governor and the
Legislature.
§22C-3-18. 16-26-18. Solid waste disposal revenue bonds lawful
investments.
The provisions of sections nine and ten, and eleven article
six, chapter twelve of this code notwithstanding, all solid waste
disposal revenue bonds issued pursuant to this article shall be
are lawful investments for the West Virginia state board of
investments and shall are also be lawful investments for
financial institutions as defined in section two, article one,
chapter thirty-one-a of this code, and for insurance companies.
§22C-3-19. 16-26-19. Exemption from taxation.
The board shall is not be required to pay any taxes or
assessments upon any solid waste disposal project or upon any
property acquired or used by the board or upon the income
therefrom. Bonds and notes issued by the board and all interest
and income thereon shall be are exempt from all taxation by this
state, or any county, municipality, political subdivision or
agency thereof, except inheritance taxes.
§22C-3-20. 16-26-20. Governmental agencies authorized to convey
property.
All governmental agencies, notwithstanding any provision of
law to the contrary, may lease, lend, grant or convey to the
board, at its request, upon such terms as the proper authoritiesof such governmental agencies deem reasonable and fair and
without the necessity for an advertisement, auction, order of
court or other action or formality, other than the regular and
formal action of the governmental agency concerned, any real
property or interests therein, including improvements thereto or
personal property which is necessary or convenient to the
effectuation of the authorized purposes of the board, including
public roads and other real property or interests therein,
including improvements thereto or personal property already
devoted to public use.
§22C-3-21. 16-26-21. Financial interest in contracts, projects,
etc., prohibited; gratuities prohibited; penalty.
No officer, member or employee of the board may be
financially interested, directly or indirectly, in any contract
of any person with the board, or in the sale of any property,
real or personal, to or by the board. This section does not
apply to contracts or purchases of property, real or personal,
between the board and any governmental agency.
No officer, member or employee of the board may have or
acquire any financial interest, either direct or indirect, in any
project or activity of the board or in any services or material
to be used or furnished in connection with any project or
activity of the board. If an officer, member or employee of the
board has any such interest at the time he or she becomes an
officer, member or employee of the board, he or she shall
disclose and divest himself or herself of it. Failure to do soshall be is cause for dismissal from the position he or she holds
with the authority.
This section does not apply in instances where a member of
the board who is a contract solid waste hauler either seeks or
has a financial interest, direct or indirect, in any project or
activity of the board or in any services or material to be used
or furnished in connection with any project or activity of the
board:
Provided,
That that member shall fully disclose orally
and in writing to the board the nature and extent of any
interest, prior to any vote by the board which involves his or
her interest, withdraw from any deliberation or discussion by the
board of matters involving his or her interest, and refrain from
voting on any matter which directly or indirectly affects him or
her.
No officer, member or employee of the board may accept a
gratuity from any person doing business with the board or from
any person for the purpose of gaining favor with the board.
Any officer, member or employee of the board who has any
financial interest prohibited by this section or who fails to
comply with its provisions is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one thousand
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned.
§22C-3-22. 16-26-22. Conduct of proceedings of board.
The board shall comply with all of the requirements in
article nine-a, chapter six of this code.
§22C-3-23. 16-26-23. Regulation of solid waste collectors and
haulers to continue under public service commission;
bringing about their compliance with solid waste disposal
shed plan and solid waste disposal projects; giving
testimony at commission hearings.
Solid waste collectors and haulers who are "common carriers
by motor vehicle," as defined in section two, article one,
chapter twenty-four-a of this code, shall continue to be
regulated by the public service commission in accordance with the
provisions of chapter twenty-four-a and rules and regulations
promulgated thereunder. Nothing in this article shall give gives
the board any power or right to regulate such solid waste
collectors and haulers in any manner, but the public service
commission, when it issues a new certificate of convenience and
necessity, or when it alters or adjusts the provisions of any
existing certificate of convenience and necessity, or when it
approves the assignment or transfer of any certificate of
convenience and necessity, shall consult with the board regarding
what action it could take which would most likely further the
implementation of the board's solid waste disposal shed plan and
solid waste disposal projects and shall take any reasonable
action that will lead to or bring about compliance of such waste
collectors and haulers with such plan and projects.
At any hearing conducted by the public service commission
pertaining to solid waste collectors and haulers on any of these
matters, any member of the board, the director or an employee ofthe board designated by the director may appear before the
commission and present evidence.
§22C-3-24. 16-26-24. Cooperation of board and enforcement
agencies in collecting and disposing of abandoned household
appliances and motor vehicles, etc.
The provisions of this article are complementary to those
contained in article twenty-four, chapter seventeen of this code,
and do not alter or diminish the authority of any enforcement
agency, as defined in section two thereof, to collect and dispose
of abandoned household appliances and motor vehicles, inoperative
household appliances and junked motor vehicles and parts thereof,
including tires. The board and such enforcement agencies shall
cooperate fully with each other in collecting and disposing of
such solid waste.
§22C-3-25. 16-26-25. Liberal construction of article.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
ARTICLE 9. 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-1. 20-9-1. Legislative findings and purposes.
The Legislature finds that the improper and uncontrolled
collection, transportation, processing and disposal of domestic
and commercial garbage, refuse and other solid wastes in the
state of West Virginia results in: (1) A public nuisance and a
clear and present danger to the citizens of West Virginia; (2)
the degradation of the state's environmental quality includingboth surface and groundwaters which provide essential and
irreplaceable sources of domestic and industrial water supplies;
(3) provides harborages and breeding places for disease-carrying,
injurious insects, rodents and other pests injurious to the
public health, safety and welfare; (4) decreases public and
private property values and results in the blight and
deterioration of the natural beauty of the state; (5) has adverse
social and economic effects on the state and its citizens; and
(6) results in the waste and squandering of valuable nonrenewable
resources contained in such solid wastes which can be recovered
through proper recycling and resource-recovery techniques with
great social and economic benefits for the state.
The Legislature further finds that the proper collection,
transportation, processing, recycling and disposal of solid waste
is for the general welfare of the citizens of the state and that
the lack of proper and effective solid waste collection services
and disposal facilities demands that the state of West Virginia
and its political subdivisions act promptly to secure such
services and facilities in both the public and private sectors.
The Legislature further finds that other states of these
United States of America have imposed stringent standards for the
proper collection and disposal of solid waste and that the
relative lack of such standards and enforcement for such
activities in West Virginia has resulted in the importation and
disposal into the state of increasingly large amounts of
infectious, dangerous and undesirable solid waste and hazardouswaste from other states by persons and firms who wish to avoid
the costs and requirements for proper, effective and safe
disposal of such wastes in the states of origin.
The Legislature further finds that the process of developing
rational and sound solid waste plans at the county or regional
level is impeded by the proliferation of siting proposals for new
solid waste facilities.
Therefore, it is the purpose of the Legislature to protect
the public health and welfare by providing for a comprehensive
program of solid waste collection, processing, recycling and
disposal to be implemented by state and local government in
cooperation with the private sector. The Legislature intends to
accomplish this goal by establishing county and regional solid
waste authorities throughout the state to develop and implement
litter and solid waste control plans. It is the further purpose
of the Legislature to restrict and regulate persons and firms
from exploiting and endangering the public health and welfare of
the state by disposing of solid wastes and other dangerous
materials which would not be accepted for disposal in the
location where such wastes or materials were generated.
It is further the purpose of the Legislature to reduce our
solid waste management problems and to meet the purposes of this
article by requiring county and regional solid waste authorities
to establish programs and plans based on an integrated waste
management hierarchy. In order of preference, the hierarchy is
as follows:
(1) Source reduction. -- This involves minimizing waste
production and generation through product design, reduction of
toxic constituents of solid waste, and similar activities.
(2) Recycling, reuse and materials recovery. -- This
involves separating and recovering valuable materials from the
waste stream, composting food and yard waste, and marketing of
recyclables.
(3) Landfilling. -- To the maximum extent possible, this
option should be reserved for nonrecyclables and other materials
that cannot practically be managed in any other way. This is the
lowest priority in the hierarchy and involves the waste
management option of last resort.
The Legislature further finds that the potential impacts of
proposed commercial solid waste facilities may have a deleterious
and debilitating impact upon the transportation network, property
values, economic growth, environmental quality, other land uses
and the public health and welfare in affected communities. The
Legislature also finds that the siting of such facilities is not
being adequately addressed to protect these compelling interests
of counties and local communities.
The Legislature further finds that affected citizens and
local governments often look to state environmental regulatory
agencies to resolve local land use conflicts engendered by these
proposed facilities. The Legislature also finds that such local
land use conflicts are most effectively resolved in a local
governmental forum where citizens can most easily participate inthe decision-making process and the land use values of local
communities most effectively identified and incorporated into a
comprehensive policy which reflects the values and goals of those
communities.
Therefore, it is the purpose of the Legislature to enable
local citizens to resolve the land-use conflicts which may be
created by proposed commercial solid waste facilities through the
existing forum of county or regional solid waste authorities.
§22C-4-2. 20-9-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article, the terms:
(a) "Approved solid waste facility" means a commercial solid
waste facility or practice which has a valid permit or compliance
order under article five-f of this fifteen, chapter twenty-two of
this code.
(b) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other
than the owner or operator of the facility and shall does not
include an approved solid waste facility owned and operated by a
person for the sole purpose of disposing of solid wastes created
by that person or that person and another person on a cost-
sharing or nonprofit basis and shall does not include the
legitimate reuse and recycling of materials for structural fill,
road base, mine reclamation and similar applications.
(c) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanicalseparation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(d) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten and thirty
thousand tons of solid waste per month. Class A facility shall
include includes two or more Class B solid waste landfills owned
or operated by the same person in the same county, if the
aggregate tons of solid waste handled per month by such landfills
exceeds nine thousand nine hundred ninety-nine tons of solid
waste per month.
(e) "Class B facility" means a commercial solid waste
facility which receives or is expected to receive an average
daily quantity of mixed solid waste equal to or exceeding one
hundred tons each working day, or serves or is expected to serve
a population equal to or exceeding forty thousand persons, but
which does not receive solid waste exceeding an aggregate of ten
thousand tons per month. Class B facilities do not include
construction/demolition facilities:
Provided,
That the
definition of Class B facility may include such reasonable
subdivisions or subclassifications as the director may establish
by legislative rule proposed in accordance with the provisions of
chapter twenty-nine-a of this code.
(f) "Compliance order" means an administrative order issued
pursuant to section five ten, article five-f of this fifteen,
chapter twenty-two of this code authorizing a solid wastefacility to operate without a solid waste permit.
(g) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(h) "Person" means any industrial user, public or private
corporation, institution, association, firm or company organized
or existing under the laws of this or any other state or country;
the state of West Virginia; governmental agency, including
federal facilities; political subdivision; county commission;
municipal corporation; industry; sanitary district; public
service district; drainage district; soil conservation district;
watershed improvement district; partnership; trust; estate;
person or individual; group of persons or individuals acting
individually or as a group; or any legal entity whatever.
(i) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(j) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous materialresulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article five-a of this eleven, chapter twenty-two
of this code, or source, special nuclear or byproduct material as
defined by the Atomic Energy Act of 1954, as amended, including
any nuclear or byproduct material considered by federal standards
to be below regulatory concern, or a hazardous waste either
identified or listed under article five-e of this eighteen,
chapter twenty-two of this code, or refuse, slurry, overburden or
other waste or material resulting from coal-fired electric power
or steam generation, the exploration, development, production,
storage and recovery of coal, oil and gas, and other mineral
resources placed or disposed of at a facility which is regulated
under articles two, three, four, six, seven, eight, nine or ten,
chapter twenty-two or chapter twenty-two-a or twenty-two-b of
this code, so long as such placement or disposal is in
conformance with a permit issued pursuant to said chapters.
"Solid waste" shall also does not include materials which are
recycled by being used or reused in an industrial process to make
a product, as effective substitutes for commercial products, or
are returned to the original process as a substitute for raw
material feedstock.
(k) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwingor causing to be placed, deposited, dumped or thrown any solid
waste.
(l) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in
the state register pursuant to section eight nine, article
twenty-six, chapter sixteen of this code three of this chapter.
(m) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
resource-recovery facilities and other such facilities not herein
specified. Such facility shall be deemed to be is situated, for
purposes of this article, in the county where the majority of the
spatial area of such facility is located.
(n) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(o) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation, or any other method by which solid waste is
incinerated.
(p) "Incinerator" means an enclosed device using controlledflame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(q) "Materials recovery facility" means any solid waste
facility at which solid wastes are manually or mechanically
shredded or separated so that materials are recovered from the
general waste stream for purposes of reuse and recycling.
§22C-4-3. 20-9-3. Creation of county solid waste authority;
appointment to board of directors; vacancies.
(a) Each and every county solid waste authority authorized
and created by the county commission of any county pursuant to
former article sixteen, chapter seven of this code is hereby
abolished on and after the first day of January, one thousand
nine hundred eighty-nine. On and after the first day of January,
one thousand nine hundred eighty-nine, a new county solid waste
authority is hereby created and established as a public agency in
every county of the state and shall be is the successor to each
county solid waste authority which may have been created by the
county commission:
Provided,
That such county solid waste
authorities shall not be established or shall cease to exist, as
the case may be, in those counties which establish a regional
solid waste authority pursuant to section four of this article.
The solid waste management board may require a county solid waste
authority to cooperate and participate in programs with other
authorities if the need arises.
(b) The authority board of directors shall be is comprisedof five members who shall be are appointed as follows: One by
the director of the division of natural resources environmental
protection, two by the county commission, one by the board of
supervisors for the soil conservation district in which the
county is situated and one by the chairman of the public service
commission. The members of the board shall be are appointed for
terms of four years for which the initial terms shall start on
the first day of July, one thousand nine hundred eighty-eight:
Provided,
That the first two members appointed by the county
commission shall be appointed to initial terms of two and four
years, respectively, and for terms of four years for each
appointment thereafter. The members of the board shall receive
no compensation for their service thereon but shall be reimbursed
for their actual expenses incurred in the discharge of their
duties. Vacancies in the office of member of the board of
directors shall be filled for the balance of the remaining term
by the appropriate appointing authority within sixty days after
such vacancy occurs. No member who has any financial interest in
the collection, transportation, processing, recycling or the
disposal of refuse, garbage, solid waste or hazardous waste shall
vote or act on any matter which shall directly affect affects the
member's personal interests.
§22C-4-4. 20-9-4. Establishment of regional solid waste
authorities authorized; successor to county solid waste
authorities; appointments to board of directors; vacancies.
(a) On and after the first day of January, one thousand ninehundred eighty-nine, any two or more counties within the same
solid waste shed and with the approval of the solid waste
management board, may establish a regional solid waste authority.
Such a regional solid waste authority shall be is a public agency
and shall be is the successor to any county solid waste authority
existing on the date of said approval by the solid waste
management board. The solid waste management board may require
a county authority to cooperate and participate in programs with
other county and regional authorities if the need arises.
(b) The board of directors of the regional solid waste
authority shall be comprised and are appointed as follows: One
by the director of the division of natural resources
environmental protection, two by the county commission of each
county participating therein, one appointed by the board of
supervisors for each soil conservation district in which a county
of the region is situated, one by the chairman of the public
service commission and two municipal representatives from each
county having one or more participating municipality to be
selected by the mayors of the participating municipality from
each such county. The members of the board shall be are
appointed for terms of four years for which the initial terms
shall start on the first day of July, one thousand nine hundred
eighty-eight:
Provided,
That the members appointed by the county
commission shall be appointed to initial terms of two and four
years, respectively, and to terms of four years after the
expiration of each such initial term. The members of the boardshall receive no compensation for their service thereon but shall
be reimbursed their actual expenses incurred in the discharge of
their duties. Vacancies in the office of member of the board of
directors shall be filled for the balance of the remaining term
by the appropriate appointing authority within sixty days after
such vacancy occurs. No member who has any financial interest in
the collection, transportation, processing, recycling or the
disposal of refuse, garbage, solid waste or hazardous waste shall
vote or act on any matter which shall directly affect affects the
member's personal interests.
§22C-4-5. 20-9-5. Authorities as successor to county commissions
and former county solid waste authorities.
The county and regional solid waste authorities created
herein, as the case may be, shall be successor are the successors
to the county commissions of each county, or the solid waste
authority previously created by said commission and abolished as
of the first day of January, one thousand nine hundred
eighty-nine, by this article, in the ownership, operation and
maintenance of such dumps, landfills and other solid waste
facilities, solid waste collection services and litter and solid
waste control programs. The county commission of each county, or
the solid waste authority thereof, shall, on the first day of
January, one thousand nine hundred eighty-nine, transfer all
ownership, operation, control and other rights, title and
interests in such solid waste facilities, services and programs,
and the properties, funds, appropriations and contracts relatedthereto to the county or regional solid waste authority
established pursuant to this article.
§22C-4-6. 20-9-5a. Election by county commission to assume
powers and duties of the county solid waste authority.
Notwithstanding any provision of this article, any county
commission which, on the first day of July, one thousand nine
hundred eighty-eight, held a valid permit or compliance order
for a commercial solid waste transfer station issued pursuant to
article five-f of this fifteen, chapter twenty-two of this code,
may elect to assume all the duties, powers, obligations, rights,
title and interests vested in the county solid waste authority by
this chapter. A county commission may, prior to the first day of
October, one thousand nine hundred eighty-nine, exercise this
right of election by entering an order declaring such election
and serving a certified copy thereof upon the solid waste
management board. Thirty days after entry of said order by the
county commission the county solid waste authority shall cease
ceases to exist and the county commission shall assume assumes
all the duties, powers, obligations, rights, title and interest
vested in the former authority pursuant to this chapter or
chapter twenty-two of this code.
§22C-4-7. 20-9-6. Management of authority vested in board of
directors; expenses paid by county commissions, procedure.
(a) The management and control of the authority, its
property, operations and affairs of any nature shall be is vested
in and governed by the board of directors.
(b) The expenses of any county solid waste authority
incurred for necessary secretarial and clerical assistance,
office supplies and general administrative expenses, in the
development of the litter and solid waste control plan under
section seven eight of this article and to provide solid waste
collection and disposal services under section nine of this
article shall be paid by the county commission from the general
funds in the county treasury to the extent that such expenses are
not paid by fees, grants and funds received by the authority from
other sources. The county commission shall have has the
authority to determine the amount to be allocated annually to the
authority.
(c) The expenses of any regional solid waste authority
incurred for necessary secretarial and clerical assistance,
office supplies and general administrative expenses, or for the
development of the litter and solid waste control plan under
section seven eight of this article, or to provide solid waste
collection and disposal services under section eight of this
article shall be paid by the county commissions of each
participating county from general funds in the county treasury to
the extent that such expenses are not paid by fees, grants and
funds from other sources received by the authority. Each county
participating in the regional solid waste authority shall pay a
pro rata share of such expenses based upon the population of said
county in the most recent decennial census conducted by the
United States Census Bureau. Prior to any county becoming liablefor any expenses of the authority under this subsection, the
authority's annual budget must first be approved by the solid
waste management board.
(d) An organizational meeting of each board of directors
shall be held as soon as practicable at which time a chairman
chair and vice chairman chair shall be elected from among the
members of the board to serve a term of one year after which such
officers shall be elected annually. The board of directors shall
also appoint a secretary-treasurer, who need not be a member of
the board of directors, and who shall give bond in a sum
determined adequate to protect the interests of the authority by
the director of the division of natural resources environmental
protection. The board shall meet at such times and places as it
or the chairman chair may determine. It shall be is the duty of
the chairman chair to call a meeting of the board upon the
written request of a majority of the members thereof. The board
shall maintain an accurate record and minutes of all its
proceedings and shall be is subject to the provisions of article
one, chapter twenty-nine-b of this code, the freedom of
information act and the article nine-a, chapter six of this code,
open governmental proceedings. A majority of the board shall
constitute is a quorum for the transaction of business.
§22C-4-8. 20-9-7. Authority to develop litter and solid waste
control plan; approval by solid waste management board;
development of plan by director; advisory rules.
(a) Each county and regional solid waste authority shall beis required to develop a comprehensive litter and solid waste
control plan for its geographic area and to submit said plan to
the solid waste management board on or before the first day of
July, one thousand nine hundred ninety-one. Each authority shall
submit a draft litter and solid waste control plan to the solid
waste management board by the thirty-first day of March, one
thousand nine hundred ninety-one. The comments received by the
county or regional solid waste authority at public hearings, two
of which shall be are required, shall be considered in developing
the final plan.
(b) Each litter and solid waste control plan shall include
provisions for:
(1) An assessment of litter and solid waste problems in the
county;
(2) The establishment of solid waste collection and disposal
services for all county residents at their residences, where
practicable, or the use of refuse collection stations at disposal
access points in areas where residential collection is not
practicable. In developing such collection services, primacy
shall be given to private collection services currently operating
with a certificate of convenience and necessity from the motor
carrier division of the public service commission;
(3) The evaluation of the feasibility of requiring or
encouraging the separation of residential or commercial solid
waste at its source prior to collection for the purpose of
facilitating the efficient and effective recycling of such wastesand the reduction of those wastes which must be disposed of in
landfills or by other nonrecycling means;
(4) The establishment of an appropriate mandatory garbage
disposal program which shall include methods whereby residents
must prove either: (i) Payment of garbage collection fee; or
(ii) proper disposal at an approved solid waste facility or in an
otherwise lawful manner;
(5) A recommendation for the siting of one or more properly
permitted public or private solid waste facilities, whether
existing or proposed, to serve the solid waste needs of the
county or the region, as the case may be, consistent with the
comprehensive county plan prepared by the county planning
commission;
(6) A timetable for the implementation of said plan;
(7) A program for the cleanup, reclamation and stabilization
of any open and unpermitted dumps;
(8) The coordination of the plan with the related solid
waste collection and disposal services of municipalities and, if
applicable, other counties;
(9) A program to enlist the voluntary assistance of private
industry and civic groups in volunteer cleanup efforts to the
maximum practicable extent;
(10) Innovative incentives to promote recycling efforts;
(11) A program to identify the disposal of solid wastes
which are not generated by sources situated within the boundaries
of the county or the region established pursuant to this section;
(12) Coordination with the division of highways and other
local, state and federal agencies in the control and removal of
litter and the cleanup of open and unpermitted dumps;
(13) Establishment of a program to encourage and utilize
those individuals incarcerated in the county jail and those
adults and juveniles sentenced to probation for the purposes of
litter pickup; and
(14) Provision for the safe and sanitary disposal of all
refuse from commercial and industrial sources within the county
or region, as the case may be, including refuse from commercial
and industrial sources, but excluding refuse from sources owned
or operated by the state or federal governments.
(c) The solid waste management board shall establish
advisory rules to guide and assist the counties in the
development of the plans required by this section.
(d) Each plan prepared under this section shall be is
subject to approval by the solid waste management board. Any
plan rejected by the solid waste management board shall be
returned to the regional or county solid waste authority with a
statement of the insufficiencies in such plan. The authority
shall revise the plan to eliminate the insufficiencies and submit
it to the director within ninety days.
(e) The solid waste management board shall develop a litter
and solid waste control plan for any county or regional solid
waste authority which fails to submit such a plan on or before
the first day of July, one thousand nine hundred ninety-two:
Provided,
That in preparing such plans the director may determine
in his discretion whether to prepare a regional or county based
plan for those counties which fail to complete such a plan.
§22C-4-9. 20-9-8. Assistance to county or regional solid waste
authorities by the solid waste management board, division of
natural resources, division of environmental protection,
bureau of public health and the attorney general.
(a) The division of natural resources, the division of
environmental protection, the solid waste management board, and
the bureau of public health shall provide technical assistance to
each county and regional solid waste authority as reasonable and
practicable for the purposes of this article within the existing
resources and appropriations of each agency available for such
purposes. The attorney general shall provide legal counsel and
representation to each county and regional solid waste authority
for the purposes of this article within the existing resources
and appropriations available for such purposes, or with the
written approval of the attorney general, said authority may
employ counsel to represent it.
(b) The solid waste management board shall provide
assistance to the county or regional solid waste authorities,
municipalities and other interested parties in identifying and
securing markets for recyclables.
§22C-4-10. 20-9-9. Mandatory disposal; proof required; penalty
imposed; requiring solid waste management board and the
public service commission to file report.
(a) Each person occupying a residence or operating a
business establishment in this state shall either:
(1) Subscribe to and use a solid waste collection service
and pay the fees established therefor; or
(2) Provide proper proof that said person properly disposes
of solid waste at approved solid waste facilities or in any other
lawful manner. The director of the division of natural resources
environmental protection shall promulgate rules pursuant to
chapter twenty-nine-a of this code regarding an approved method
or methods of supplying such proper proof. A civil penalty of
one hundred fifty dollars shall be assessed to the person not
receiving solid waste collection services in addition to the
unpaid fees for every year that a fee is not paid.
(b) The solid waste management board in consultation and
collaboration with the public service commission shall prepare
and submit, no later than the first day of October, one thousand
nine hundred ninety-two, a report concerning the feasibility of
implementing a mandatory fee for the collection and disposal of
solid waste in West Virginia:
Provided,
That such plan shall
consider such factors as affordability, impact on open dumping
and other relevant matters. The report shall be submitted to the
governor, the president of the Senate and the speaker of the
House of Delegates.
(c) The public service commission in consultation and
collaboration with the division of human services shall prepare
and submit, no later than the first day of October, one thousandnine hundred ninety-two, a report concerning the feasibility of
reducing solid waste collection fees to individuals who directly
pay such fees and who receive public assistance from state or
federal government agencies and are therefore limited in their
ability to afford to pay for solid waste disposal. This report
shall consider the individual's health and income maintenance and
other relevant matters. This report shall also include
recommended procedures for individuals or households to qualify
for and avail themselves of a reduction in fees. This report
shall be submitted to the governor, the president of the Senate
and the speaker of the House of Delegates.
§22C-4-11. 20-9-10. Acquisition of land; operation of public
solid waste landfills and other facilities; restrictions on
solid wastes generated outside authority area; fees.
Upon approval of the litter and solid waste control plan by
the solid waste management board, the county or regional solid
waste authority may acquire, by purchase, lease, gift or
otherwise, land for the establishment of solid waste facilities
and is authorized to construct, operate, maintain and contract
for the operation of such facilities. The authority may pay for
lease or acquisition of such lands and the construction,
operation and maintenance of such solid waste facilities from
such fees, grants, financing by the solid waste program of the
division of natural resources environmental protection or funds
from other sources as may be available to the authority. The
authority may prohibit the deposit of any solid waste in suchsolid waste facilities owned, leased or operated by the authority
which have originated from sources outside the geographic limits
of the county or region. The authority board of directors shall
establish and charge reasonable fees for the use of such
facilities operated by the authority.
§22C-4-12. 20-9-10a. Bonds and notes.
For constructing or acquiring any solid waste facilities for
the authorized purposes of the authority, or necessary or
incidental thereto, and for constructing improvements and
extension thereto, and also for reimbursing or paying the costs
and expenses of creating the authority, if any, the board of any
such authority is hereby authorized to borrow money from time to
time and in evidence thereof issue the bonds or notes of such
authority, payable from the revenues derived from the operation
of the solid waste facilities under control of the authority or
from such other funds as are available to the authority for such
purpose. Such bonds or notes may be issued in one or more
series, may bear such date or dates, may mature at such time or
times not exceed forty years from their respective dates, may
bear interest at such rate or rates, payable at such times, may
be in such form, may carry such registration privileges, may be
executed in such manner, may be payable at such place or places,
may be subject to such terms of redemption with or without
premium, may be declared or become due before maturity date
thereof, may be authenticated in any manner, and upon compliance
with such conditions, and may contain such terms and covenants asmay be provided by resolution or resolutions of the board.
Notwithstanding the form or tenor thereof, and in the absence of
any express recital on the face thereof, that the bond or note is
nonnegotiable, all such bonds or notes shall be are, and shall be
treated as, negotiable instruments for all purposes. The bonds
or notes shall be executed by the chairman chair of the board,
who may use a facsimile signature. The official seal of the
authority or a facsimile thereof shall be affixed to or printed
on each bond or note and attested, manually or by facsimile
signature, by the secretary-treasurer of the board, and any
coupons attached to any bond or note shall bear the signature of
facsimile signature of the chairman chair of the board. Bonds or
notes bearing the signatures of officers in office on the date of
the signing thereof shall be are valid and binding for all
purposes notwithstanding that before the delivery thereof any or
all of the persons whose signatures appear thereon shall have
ceased to be such officers. Notwithstanding the requirements or
provisions of any other law, any such bonds or notes may be
negotiated or sold in such manner and at such time or times as is
found by the board to be most advantageous. Any resolution or
resolutions providing for the issuance of such bonds or notes may
contain such covenants and restrictions upon the issuance of
additional bonds or notes thereafter as may be deemed necessary
or advisable for the assurance of the payment of the bonds or
notes thereby authorized.
§22C-4-13. 20-9-10b. Items included in cost of properties.
The cost of any solid waste facilities acquired under the
provisions of this article shall be deemed to include includes
the cost of the acquisition or construction thereof, costs of
closure of solid waste facilities, the cost of all property
rights, easements and franchises deemed necessary or convenient
therefor and for the improvements and extensions thereto;
interest upon bonds or notes prior to and during construction or
acquisition and for twelve months after completion of
construction or of acquisition of the improvements and
extensions; engineering, fiscal agents and legal expenses;
expenses for estimates of cost and of revenues, expenses for
plans, specifications and surveys; other expenses necessary or
incident to determining the feasibility or practicability of the
enterprise, administrative expense, and such other expenses as
may be necessary or incident to the financing herein authorized,
and the construction or acquisition of the properties and the
placing of same in operation, and the performance of the things
herein required or permitted, in connection with any thereof.
§22C-4-14. 20-9-10c. Bonds or notes may be secured by trust
indenture.
In the discretion and at the option of the board such bonds
or notes may be secured by a trust indenture by and between the
authority and a corporate trustee, which may be a trust company
or bank having powers of a trust company within or without the
state of West Virginia. The resolution authorizing the bonds or
notes and fixing the details thereof may provide that such trustindenture may contain such provisions for protecting and
enforcing the rights and remedies of bondholders as may be
reasonable and proper, not in violation of law, including
covenants setting forth the duties of the authority and the
members of its board and officers in relation to the construction
or acquisition of solid waste facilities and the improvement,
extension, operation, repair, maintenance and insurance thereof,
and the custody, safeguarding and application of all moneys, and
may provide that all or any part of the construction work shall
be contracted for, constructed and paid for, under the
supervision and approval of consulting engineers employed or
designated by the board and satisfactory to the original bond
purchasers, their successors, assignees or nominees, who may be
given the right to require the security given by contractors and
by any depository of the proceeds of bonds or notes or revenues
of the solid waste facilities or other money pertaining thereto
be satisfactory to such purchasers, their successors, assignees
or nominees. Such indenture may set forth the rights and
remedies of the bondholders or noteholders and such trustee.
§22C-4-15. 20-9-10d. Sinking fund for bonds or notes.
At or before the time of the issuance of any bonds or notes
under this article, the board may by resolution or in the trust
indenture provide for the creation of a sinking fund and for
payments into such find from the revenues of the solid waste
facilities operated by the authority or from other funds
available thereto such sums in excess of the cost of maintenanceand operation of such properties as will be sufficient to pay
the accruing interest and retire the bonds or notes at or before
the time each will respectively become due and to establish and
maintain reserves therefor. All sums which are or should be, in
accordance with such provisions, paid into such sinking fund
shall be used solely for payment of interest and principal and
for the retirement of such bonds or notes or at prior to maturity
as may be provided or required by such resolution.
§22C-4-16. 20-9-10e. Collection, etc., of revenues and funds and
enforcement of covenants; default; suit, etc., by bondholder
or noteholder or trustee to compel performance of duties;
appointment and powers of receiver.
The board for any such authority shall have has power to
insert enforceable provisions in any resolution authorizing the
issuance of bonds or notes relating to the collection, custody
and application of revenues or of the authority from the
operation of the solid waste facilities under its control or
other funds available to the authority and to the enforcement of
the covenants and undertakings of the authority. In the event
there shall be is default in the sinking fund provisions
aforesaid or in the payment of the principal or interest on any
of such bonds or notes or, in the event the authority or its
board or any of its officers, agents or employees, shall fail or
refuse fails or refuses to comply with the provisions of this
article, or shall default defaults in any covenant or agreement
made with respect to the issuance of such bonds or notes oroffered as security therefor, then any holder or holders of such
bonds or notes and any such trustee under the trust indenture, if
there be one, shall have the right by suit, action, mandamus or
other proceeding instituted in the circuit court for the county
or any of the counties wherein the authority extends, or in any
other court of competent jurisdiction, to enforce and compel
performance of all duties required by this article or undertaken
by the authority in connection with the issuance of such bonds or
notes, and upon application of any such holder or holders, or
such trustee, such court shall, upon proof of such defaults,
appoint a receiver for the affairs of the authority and its
properties, which receiver so appointed shall forthwith directly,
or by her or his agents and attorneys, enter into and upon and
take possession of the affairs of the authority and each and
every part thereof, and hold, use, operate, manage and control
the same, and in the name of the authority exercise all of the
rights and powers of such authority as shall be deemed found
expedient, and such receiver shall have has power and authority
to collect and receive all revenues and apply same in such manner
as the court shall direct directs. Whenever the default causing
the appointment of such receiver shall have has been cleared and
fully discharged and all other defaults shall have been cured,
the court may in its discretion and after such notice and hearing
as it deems reasonable and proper direct the receiver to
surrender possession of the affairs of the authority to its
board. Such receiver so appointed shall have has no power tosell, assign, mortgage, or otherwise dispose of any assets of the
authority except as hereinbefore provided.
§22C-4-17. 20-9-10f. Operating contracts.
The board may enter into contracts or agreements with any
persons, firms or corporations for the operation and management
of the solid waste facilities for such period of time and under
such terms and conditions as shall be are agreed upon between the
board and such persons, firms or corporations. The board shall
have has power to provide in the resolution authorizing the
issuance of bonds or notes, or in any trust indenture securing
such bonds or notes, that such contracts or agreements shall be
are valid and binding upon the authority as long as any of said
bonds or notes, or interest thereon, are outstanding and unpaid.
§22C-4-18. 20-9-10g. Statutory mortgage lien created unless
otherwise provided; foreclosure thereof.
Unless otherwise provided by resolution of the board, there
shall be and is hereby created is a statutory mortgage lien upon
such solid waste facilities of the authority, which shall exist
exists in favor of the holders of bonds or notes hereby
authorized to be issued, and each of them, and the coupons
attached to said bonds or notes, and such solid waste facilities
shall remain subject to such statutory mortgage lien until
payment in full of all principal of and interest on such bonds or
notes. Any holder of such bonds or notes, of any coupons
attached thereto, may, either at law or in equity, enforce said
statutory mortgage lien conferred hereby and upon default in thepayment of the principal of or interest on said bonds or notes,
and may foreclose such statutory mortgage lien in the manner now
provided by the laws of the state of West Virginia for the
foreclosure of mortgages on real property.
§22C-4-19. 20-9-10h. Refunding bonds or notes.
The board of any authority having issued bonds or notes
under the provisions of this article is hereby empowered
thereafter by resolution to issue refunding bonds or notes of
such authority for the purpose of retiring or refinancing any or
all outstanding bonds or notes, together with any unpaid interest
thereon and redemption premium thereunto appertaining and all of
the provisions of this article relating to the issuance, security
and payment of bonds or notes shall be are applicable to such
refunding bonds or notes, subject, however, to the provisions of
the proceedings which authorized the issuance of the bonds or
notes to be so refunded.
§22C-4-20. 20-9-10i. Indebtedness of authority.
No constitutional or statutory limitation with respect to
the nature or amount of or rate of interest on indebtedness which
may be incurred by municipalities, counties or other public or
governmental bodies shall apply applies to the indebtedness of an
authority. No indebtedness of any nature of authority shall
constitute is an indebtedness of the state of West Virginia or
any municipality or county therein or a charge against any
property of said state of West Virginia or any municipalities or
counties. No indebtedness or obligation incurred by anyauthority shall give gives any right against any member of the
governing body of any municipality or any member of the authority
of any county or any member of the board of any authority. The
rights of creditors of any authority shall be are solely against
the authority as a corporate body and shall be satisfied only out
of property held by it in its corporate capacity.
§22C-4-21. 20-9-10j. Property, bonds or notes and obligations
of authority exempt from taxation.
The authority shall be is exempt from the payment of any
taxes or fees to the state or any subdivisions thereof or any
municipalities or to any officer or employee of the state or of
any subdivision thereof or of any municipalities. The property
of the authority shall be is exempt from all local and municipal
taxes. Bonds, notes, debentures and other evidence of
indebtedness of the authority are declared to be issued for a
public purpose and to be public instrumentalities, and, together
with interest thereon, shall be are exempt from taxes.
§22C-4-22. 20-9-11. Use of prisoners for litter pickup; funds
provided from litter control fund; county commission,
regional jail and correctional facility authority and
sheriff to cooperate with solid waste authority.
Upon the approval of the litter and solid waste control plan
as provided in section seven eight hereof, each county and
regional solid waste authority is hereby authorized and directed
to implement a program to utilize those individuals incarcerated
in the county or regional jails for litter pickup within thelimits of available funds. Such program shall be funded from
those moneys allocated to the authority by the director of the
department division of natural resources from the litter control
fund pursuant to section twenty-seven, article four, chapter
twenty of this code. The authority may expend such additional
funds for this program as may be available from other sources.
The county commission and the sheriff of each county and the
regional jail and correctional facility authority shall cooperate
with the county or regional solid waste authority in implementing
this program pursuant to section one, article eleven-a, and
sections three and thirteen, article twelve, chapter sixty-two of
this code.
§22C-4-23. 20-9-12. Powers, duties and responsibilities of
authority generally.
The authority may exercise all powers necessary or
appropriate to carry out the purposes and duties provided in this
article, including the following:
(1) Sue and be sued, plead and be impleaded and have and use
a common seal.
(2) To conduct its business in the name of the county solid
waste authority or the regional solid waste authority, as the
case may be, in the names of the appropriate counties.
(3) The authority board of directors shall promulgate rules
and regulations to implement the provisions of sections eight and
nine and ten of this article and is authorized to promulgate
rules and regulations for purposes of this article and thegeneral operation and administration of authority affairs.
(4) Adopt, and from time to time, amend and repeal bylaws
necessary and proper for the conduct of its affairs consistent
with this article.
(5) To promulgate such rules and regulations as may be
proper and necessary to implement the purposes and duties of this
article.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for the operation by any person, partnership,
corporation or governmental agency, any solid waste facility or
collection, transportation and processing facilities related
thereto.
(7) Issue negotiable bonds, notes, debentures or other
evidences of indebtedness and provide for the rights of the
holders thereof, incur any proper indebtedness and issue any
obligations and give any security therefor which it may deem
necessary or advisable in connection with exercising powers as
provided herein.
(8) Make available the use or services of any solid waste
facility collection, transportation and processing facilities
related thereto, to any person, partnership, corporation or
governmental agency consistent with this article.
(9) Acquire by gift or purchase, hold and dispose of real
and personal property in the exercise of its powers and duties.
(10) Make and enter all contracts, leases and agreements andto execute all instruments necessary or incidental to the
performance of its duties and powers.
(11) Employ managers, engineers, accountants, attorneys,
planners and such other professional and support personnel as are
necessary in its judgment to carry out the provisions of this
article.
(12) Receive and accept from any source such grants, fees,
real and personal property, contributions and funds of any nature
as may become available to the authority in order to carry out
the purposes of this article.
(13) Cooperate with and make such recommendations to local,
state and federal government and the private sector in the
technical, planning and public policy aspects of litter control
and solid waste management as the authority may find appropriate
and effective to carry out the purposes of this article.
(14) Charge, alter and collect rentals, fees, service
charges and other charges for the use or services of any solid
waste facilities or any solid waste collection, transportation
and processing services provided by the authority.
(15) Prohibit the dumping of solid waste outside the hours
of operation of a solid waste facility.
(16) Enforce the hours of operation of a solid waste
facility and the mandatory disposal provision in section nine ten
of this article by referring violations to the division of
natural resources environmental protection or the appropriate
law-enforcement authorities.
(17) Do all acts necessary and proper to carry out the
powers expressly granted to the authority by this article and
powers conferred upon the authority by this article.
All rules and regulations promulgated by the authority
pursuant to this article are exempt from the provisions of
article three, chapter twenty-nine-a of this code.
§22C-4-24. 20-9-12a. Commercial solid waste facility siting
plan; facilities subject to plan; criteria; approval by
solid waste management board; effect on facility siting;
public hearings; rules. and regulations
(a) On or before the first day of July, one thousand nine
hundred ninety-one, each county or regional solid waste authority
shall prepare and complete a commercial solid waste facilities
siting plan for the county or counties within its jurisdiction:
Provided,
That the solid waste management board may authorize any
reasonable extension of up to one year for the completion of the
said siting plan by any county or regional solid waste authority.
The siting plan shall identify zones within each county where
siting of the following facilities is authorized or prohibited:
(1) Commercial solid waste facilities which may accept an
aggregate of more than ten thousand tons of solid waste per
month.
(2) Commercial solid waste facilities which shall accept
only less than an aggregate of ten thousand tons of solid waste
per month.
(3) Commercial solid waste transfer stations or commercialfacilities for the processing or recycling of solid waste.
The siting plan shall include an explanation of the
rationale for the zones established therein based on the criteria
established in subsection (b) of this section.
(b) The county or regional solid waste authority shall
develop the siting plan authorized by this section based upon the
consideration of one or more of the following criteria: The
efficient disposal of solid waste, including all solid waste
generated within the county or region, economic development,
transportation facilities, property values, groundwater and
surface waters, geological and hydrological conditions, aesthetic
and environmental quality, historic and cultural resources, the
present or potential land uses for residential, commercial,
recreational, environmental conservation or industrial purposes
and the public health, welfare and convenience. The plan shall
be developed based upon information readily available. Due to
the limited funds and time available the plan need not be an
exhaustive and technically detailed analysis of the criteria set
forth above. Unless the information readily available clearly
establishes that an area is suitable for the location of a
commercial solid waste facility or not suitable for such a
facility, the area shall be designated as an area in which the
location of a commercial solid waste facility is tentatively
prohibited. Any person making an application for the
redesignation of a tentatively prohibited area shall make
whatever examination is necessary and submit specific detailedinformation in order to meet the provision established in
subsection (g) of this section.
(c) Prior to completion of the siting plan, the county or
regional solid waste authority shall complete a draft siting plan
and hold at least one public hearing in each county encompassed
in said draft siting plan for the purpose of receiving public
comment thereon. The authority shall provide notice of such
public hearings and encourage and solicit other public
participation in the preparation of the siting plan as required
by the rules and regulations promulgated by the solid waste
management board for this purpose. Upon completion of the siting
plan, the county or regional solid waste authority shall file
said plan with the solid waste management board.
(d) The siting plan shall take takes effect upon approval by
the solid waste management board pursuant to the rules and
regulations promulgated for this purpose. Upon approval of said
plan, the solid waste management board shall transmit a copy
thereof to the director of the division of natural resources
environmental protection and to the clerk of the county
commission of the county encompassed by said plan which county
clerk shall file the plan in an appropriate manner and shall make
the plan available for inspection by the public.
(e) Effective upon approval of the siting plan by the solid
waste management board, it shall be is unlawful for any person to
establish, construct, install or operate a commercial solid waste
facility at a site not authorized by the siting plan:
Provided,
That an existing commercial solid waste facility which, on the
eighth day of April, one thousand nine hundred eighty-nine, held
a valid solid waste permit or compliance order issued by the
division of natural resources pursuant to the former provisions
of article five-f of this chapter twenty of this code may
continue to operate but may not expand the spatial land area of
the said facility beyond that authorized by said solid waste
permit or compliance order, and may not increase the aggregate
monthly solid waste capacity in excess of ten thousand tons
monthly unless such a facility is authorized by the siting plan.
(f) The county or regional solid waste authority may, from
time to time, amend the siting plan in a manner consistent with
the requirements of this section for completing the initial
siting plan and the rules and regulations promulgated by the
solid waste management board for the purpose of such amendments.
(g) Notwithstanding any provision of this code to the
contrary, upon application from a person who has filed a pre-
siting notice pursuant to section five-c thirteen, article five-f
of this fifteen, chapter twenty-two of this code, the county or
regional solid waste authority or county commission, as
appropriate, may amend the siting plan by redesignating a zone
that has been designated as an area where a commercial solid
waste facility is tentatively prohibited to an area where one is
authorized. In such case, the person seeking the change has the
burden to affirmatively and clearly demonstrate, based on the
criteria set forth in subsection (b) of this section, that asolid waste facility could be appropriately operated in the
public interest at such location. The solid waste management
board shall provide, within available resources, technical
support to a county or regional solid waste authority, or county
commission as appropriate, when requested by such authority or
commission to assist it in reviewing an application for any such
amendment.
(h) The solid waste management board shall prepare and adopt
a siting plan for any county or regional solid waste authority
which does not complete and file with the said state authority
such a siting plan in compliance with the provisions of this
section and the rules and regulations promulgated thereunder.
Any siting plan adopted by the solid waste management board
pursuant to this subsection shall comply with the provisions of
this section, and the rules and regulations promulgated
thereunder, and shall have has the same effect as a siting plan
prepared by a county or regional solid waste authority and
approved by the solid waste management board.
(i) The siting plan adopted pursuant to this section shall
incorporate the provisions of the litter and solid waste control
plan, as approved by the solid waste management board pursuant to
section seven eight of this article, regarding collection and
disposal of solid waste and the requirements, if any, for
additional commercial solid waste facility capacity.
(j) The solid waste management board is authorized and
directed to promulgate rules and regulations specifying thepublic participation process, content, format, amendment, review
and approval of siting plans for the purposes of this section.
§22C-4-25. 20-9-12b. Siting approval for solid waste facilities;
effect on facilities with prior approval.
(a) It is the intent of the Legislature that all commercial
solid waste facilities operating in this state must receive site
approval at the local level. Notwithstanding said intent,
facilities which obtained such approval from either a county or
regional solid waste authority, or from a county commission,
under any prior enactment in this code, and facilities which were
otherwise exempted from local site approval under any prior
enactment in this code, shall be deemed to have satisfied such
requirement. All other facilities, including facilities which
received such local approval but which seek to expand spatial
area or to convert from a Class B facility to a Class A facility,
shall obtain such approval only in the manner specified in
sections twelve-c, twelve-d and twelve-e twenty-six, twenty-seven
and twenty-eight of this article.
(b) In considering whether to issue or deny the certificate
of site approval as specified in sections twelve-c, twelve-d and
twelve-e twenty-six, twenty-seven and twenty-eight of this
article, the county or regional solid waste authority or county
commission shall base its determination upon the following
criteria: The efficient disposal of solid waste generated within
the county or region, economic development, transportation
facilities, property values, groundwater and surface waters,geological and hydrological conditions, aesthetic and
environmental quality, historic or cultural resources, the
present or potential land uses for residential, commercial,
recreational, industrial or environmental conservation purposes
and the public health, welfare and convenience.
(c) The county or regional solid waste authority, or county
commission, as appropriate, shall complete findings of fact and
conclusions relating to the criteria authorized in subsection (b)
hereof which support its decision to issue or deny a certificate
of site approval.
§22C-4-26. 20-9-12c. Approval of new Class A facilities by solid
waste authorities and county commissions, and referendum.
(a) Except as provided below with respect to Class B
facilities, from and after the effective date of this section
tenth day of March, one thousand and nine hundred ninety, in
order to obtain approval to operate a new Class A facility, an
applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four of
this code and in section five-c thirteen, article five-f of this
fifteen, chapter twenty-two of this code;
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid
waste authority for the county or counties in which the facility
is proposed. Such application shall be submitted on formsprescribed by the solid waste management board. The county or
regional solid waste authority shall act on such application and
either grant or deny it within thirty days after the application
is determined by the county or regional solid waste authority to
be filed in a completed manner; and
(3) File an application for approval of operation as a Class
A facility with, and obtain approval from, the county commission
for each county in which the facility would be located. Each
county commission shall act on such application and either grant
or deny it within thirty days after the application is determined
by the county commission to be filed in a completed manner. The
county commission shall hold at least one public hearing and
shall solicit public comment prior to acting on the application.
The county commission shall provide notice of such public hearing
with publication of a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is situated.
(b) If applications are approved pursuant to subdivisions
(1), (2) and (3), subsection (a) of this section, each county
commission shall order that a referendum be placed upon the
ballot not less than fifty-six days before the next primary,
general or other countywide election.
(1) Such referendum will be is to determine whether it is
the will of the voters of the county that a Class A facility be
located in the county. Any such election shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,when not in conflict with the provisions of this article, shall
apply to voting and elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall a solid waste facility handling of between ten and
thirty thousand tons of solid waste per month be located within
____________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
be is against the siting of a Class A facility within the county,
then the county commission, the county or regional solid waste
authority and the division of natural resources environmental
protection shall not proceed any further with the application.
If a majority of the legal votes cast upon the question be is for
siting a Class A facility within the county, then the application
process as set forth in this article and article five-f of this
fifteen chapter twenty-two of this code may proceed:
Provided,
That such vote shall is not be binding on or and does not require
the division of natural resources environmental protection to
issue a permit. If the majority of the legal votes cast be is
against the question, the question may be submitted to a vote at
any subsequent election in the manner herein specified:
Provided, however,
That the question may not be resubmitted to a
vote until two years after the date of the previous referendum.
(c) After the effective date of this section tenth day of
March, one thousand nine hundred ninety, the public referendum
established in this section shall be is mandatory for every new
Class A facility applicant which will accept between ten and
thirty thousand tons of solid waste per month. A new Class A
facility applicant means any applicant for a state solid waste
permit for a Class A facility who had has not prior to the
effective date of this subsection tenth day of March, one
thousand nine hundred ninety, obtained a certificate of site
approval for a Class A facility from the county or regional solid
waste authority to establish, construct or operate a Class A
facility, and also means any applicant for a state solid waste
permit for a Class A facility if a legal challenge to the
issuance of a certificate of site approval by the county or
regional solid waste authority or the county commission approval
for the proposed Class A facility was pending in any state or
federal court as of the first day of September, one thousand nine
hundred ninety-one.
§22C-4-27. 20-9-12d. Approval of conversion from Class B
facility to Class A facility.
(a) From and after the effective date of this article
eighteenth day of October, one thousand nine hundred ninety-one,
in order to obtain approval to operate as a Class A facility at
a site previously permitted to operate as a Class B facility, anapplicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four, and
in section five-c thirteen, article five-f of this fifteen,
chapter twenty-two of this code;
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid
waste authority for the county or counties in which the facility
is located or proposed. Such application shall be submitted on
forms prescribed by the solid waste management board. The county
or regional solid waste authority shall act on such application
and either grant or deny it within thirty days after the
application is determined by the county or regional solid waste
authority to be filed in a completed manner; and
(3) File an application for approval of operation as a Class
A facility with, and obtain approval from, the county commission
for each county in which the facility is or would be located.
Each county commission shall act on such application and either
grant or deny it within thirty days after the application is
determined by the county commission to be filed in a completed
manner. The county commission shall hold at least one public
hearing and shall solicit public comment prior to acting on the
application. The county commission shall provide notice of such
public hearing with publication of a Class II legal advertisement
in a qualified newspaper serving the county where the proposedsite is situated.
(b) If applications are approved pursuant to subdivisions
(1), (2) and (3), subsection (a) of this section, the county or
regional solid waste authority shall publish a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in a newspaper of general
circulation in the counties wherein the solid waste facility is
located. Upon the written petition of registered voters residing
in the county equal to not less than fifteen percent of the
number of votes cast within the county for governor at the
preceding gubernatorial election, which petition shall be filed
with the county commission within sixty days after the last date
of publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the
ballot. Any referendum conducted pursuant to this section shall
be held at the next primary, general or other countywide
election.
(1) Such referendum will be is to determine whether it is
the will of the voters of the county that the Class B facility be
converted to a Class A facility. Any election at which such
question of locating a solid waste facility is voted upon shall
be held at the voting precincts established for holding primary
or general elections. All of the provisions of the general
election laws, when not in conflict with the provisions of thisarticle, shall apply to voting and elections hereunder, insofar
as practicable. The secretary of state shall prescribe the form
of the petition which shall include the printed name, address and
date of birth of each person whose signature appears on the
petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall the ____________________________ solid waste
facility, located within ________________________ County, West
Virginia, be permitted to handle between ten and thirty thousand
tons of solid waste per month?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
be is against the facility, then the county commission, the
county or regional solid waste authority and the division of
natural resources environmental protection shall not proceed any
further with the application. If a majority of the legal votes
cast upon the question be for the facility, then the application
process as set forth in this article and article five-f of this
fifteen, chapter twenty-two of this code may proceed:
Provided,
That such vote shall is not be binding on or nor does it require
the division of natural resources environmental protection to
modify the permit. If the majority of the legal votes cast be isagainst the question, the question may be submitted to a vote at
any subsequent election in the manner herein specified:
Provided, however,
That the question may not be resubmitted to a
vote until two years after the date of the previous referendum.
§22C-4-28. 20-9-12e. Approval of increase in maximum allowable
monthly tonnage of Class A facilities.
(a) From and after the effective date of this article
eighteenth day of October, one thousand nine hundred ninety-one,
in order to increase the maximum allowable monthly tonnage
handled at a Class A facility by an aggregate amount of more than
ten percent of the facility's permit tonnage limitation within a
two-year period, the permittee shall:
(1) File an application for approval with, and obtain
approval from, the county or regional solid waste authority for
the county or counties in which the facility is located. Such
application shall be a modification of the Class A facility's
certificate of site approval. The county or regional solid waste
authority shall act upon such application and either grant or
deny it within thirty days after the application is determined by
the county or regional solid waste authority to be filed in a
completed manner;
(2) File an application for approval with, and obtain
approval from, the public service commission to modify the
certificate of need in the manner set forth in section one-c,
article two, chapter twenty-four of this code; and
(3) File an application for a major permit modification withthe division of natural resources environmental protection.
(b) If applications are approved pursuant to subdivisions
(1) and (2), subsection (a) of this section and an application
has been filed pursuant to subdivision (3), subsection (a) of
this section, the county or regional solid waste authority shall
publish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in
a newspaper of general circulation in the counties wherein the
solid waste facility is located. Upon the written petition of
registered voters residing in the county equal to not less than
fifteen percent of the number of votes cast within the county for
governor at the preceding gubernatorial election, which petition
shall be filed with the county commission within sixty days after
the last date of publication of the notice provided in this
section, the county commission shall, upon verification of the
required number of signatures on the petition, and not less than
fifty-six days before the election, order a referendum be placed
upon the ballot. Any referendum conducted pursuant to this
section shall be held at the next primary, general or other
countywide election.
(1) Such referendum will be is to determine whether it is
the will of the voters of the county that the Class A facility
applicant be permitted to increase the maximum tonnage allowed to
be handled at the facility not to exceed thirty thousand tons per
month. Any election at which such question is voted upon shall
be held at the voting precincts established for holding primaryor general elections. All of the provisions of the general
election laws, when not in conflict with the provisions of this
article, shall apply to voting and elections hereunder, insofar
as practicable. The secretary of state shall prescribe the form
of the petition which shall include the printed name, address and
date of birth of each person whose signature appears on the
petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following:
"Shall the ______________ solid waste facility located
within ___________ County, West Virginia, be allowed to handle a
maximum of ___________ solid waste per month?
/ / For the increase in maximum allowable tonnage
/ / Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
be is against allowing the Class A facility to increase the
maximum tonnage of solid waste allowed to be handled per month at
the facility, then the division of natural resources
environmental protection shall not proceed to modify the Class A
facility permit to increase the maximum allowable tonnage. If a
majority of the legal votes cast upon the question be is for
allowing the Class A facility to increase the maximum tonnage of
solid waste allowed to be handled per month at such facility,
then the application process as set forth in this article andarticle five-f of this fifteen, chapter twenty-two of this code
may proceed:
Provided,
That such vote shall is not be binding on
or nor does it require the county or regional solid waste
authority or the division of natural resources environmental
protection to approve an application to modify the permit. If
the majority of the legal votes cast be is against the question,
that does not prevent the question from again being submitted to
a vote at any subsequent election in the manner provided for in
this section:
Provided, however,
That an applicant may not
resubmit the question for a vote prior to a period of two years
from the date of the previous referendum herein described.
§22C-4-29. 20-9-12f. Judicial review of certificate of site
approval.
(a) Any party aggrieved by a decision of the county or
regional solid waste authority or county commission granting or
denying a certificate of site approval may obtain judicial review
thereof in the same manner provided in section four, article
five, chapter twenty-nine-a of this code, which provisions shall
govern such review with like effect as if the provisions of said
section were set forth in extenso in this section, except that
the petition shall be filed, within the time specified in said
section, in the circuit court of Kanawha County.
(b) The judgment of the circuit court shall be is final
unless reversed, vacated or modified on appeal to the supreme
court of appeals, in accordance with the provisions of section
one, article six, chapter twenty-nine-a of this code, except thatnotwithstanding the provisions of said section, the petition
seeking such review must be filed with the supreme court of
appeals within ninety days from the date of entry of the judgment
of the circuit court.
§22C-4-30. 20-9-13. Solid waste assessment interim fee;
regulated motor carriers; dedication of proceeds; criminal
penalties.
(a) Imposition. -- Effective the first day of July, one
thousand nine hundred eighty-nine, a solid waste assessment fee
is hereby levied and imposed upon the disposal of solid waste at
any solid waste disposal facility in this state to be collected
at the rate of one dollar per ton or part thereof of solid waste.
The fee imposed by this section shall be is in addition to all
other fees levied by law.
(b) Collection, return, payment and record. -- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be is required to filereturns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be is personally liable for such amount
as he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain remains in effect until
a notice of cancellation is served on the operator or owner by
the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator
shall be is primarily liable for collection and remittance of the
fee imposed by this section and the owner shall be is secondarily
liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge
his or her obligations under this section, the owner and the
operator of the solid waste facility shall be are jointly and
severally responsible and liable for compliance with the
provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof shall be are liable, jointly and severally, for
any default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules and regulations of the tax commissioner.
(c) Regulated motor carriers. -- The fee imposed by this
section and section twenty-two, article five, chapter seven of
this code shall be considered is a necessary and reasonable cost
for motor carriers of solid waste subject to the jurisdiction of
the public service commission under chapter twenty-four-a of this
code. Notwithstanding any provision of law to the contrary, upon
the filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the costof said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definition of solid waste disposal facility. -- For
purposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump in
this state and includes a transfer station when the solid waste
collected at the transfer station is not finally disposed of at
a solid waste facility within this state that collects the fee
imposed by this section. Nothing herein shall be construed to
authorize authorizes in any way the creation or operation of or
contribution to an open dump.
(e) Exemptions. -- The following transactions shall be are
exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if it is used exclusively to dispose of
waste originally produced by such person in such person's regular
business or personal activities or by persons utilizing the
facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division ofnatural resources environmental protection as exempt from the fee
imposed pursuant to section five-a eleven, article five-f of this
fifteen, chapter twenty-two of this code; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of natural resources environmental
protection of solid waste authority, upon request.
(f) Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code shall
apply applies to the fee imposed by this section with like effect
as if said act were applicable only to the fee imposed by this
section and were set forth in extenso herein.
(g) Criminal penalties. -- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were the only fee imposed by this section and were set
forth in extenso herein.
(h) Dedication of proceeds. -- The net proceeds of the fee
collected by the tax commissioner pursuant to this section shallbe deposited, at least monthly, in a special revenue account
known as the "Solid Waste Planning Fund" which is hereby created
continued. The solid waste management board shall allocate the
proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be divided
equally among, and paid over to, each county solid waste
authority to be expended for the purposes of this article:
Provided,
That where a regional solid waste authority exists,
such funds shall be paid over to the regional solid waste
authority to be expended for the purposes of this article in an
amount equal to the total share of all counties within the
jurisdiction of said regional solid waste authority; and
(2) Fifty percent of the total proceeds shall be expended by
the solid waste management board for:
(A) Grants to the county or regional solid waste authorities
for the purposes of this article; and
(B) Administration, technical assistance or other costs of
the solid waste management board necessary to implement the
purposes of this article and article twenty-six, chapter sixteen
of this code three of this chapter.
(i) Severability. -- If any provision of this section or the
application thereof shall for any reason be adjudged by any court
of competent jurisdiction to be invalid, such judgment shall not
affect, impair or invalidate the remainder of this section, but
shall be confined in its operation to the provision thereof
directly involved in the controversy in which such judgment shallhave been rendered, and the applicability of such provision to
other persons or circumstances shall not be affected thereby.
(j) (i) Effective date. -- This section is effective on the
first day of July, one thousand nine hundred ninety.
ARTICLE 10. 5. COMMERCIAL HAZARDOUS WASTE MANAGEMENT FACILITY
SITING BOARD.
§22C-5-1. 20-10-8. Short title.
This article may be known and cited as the "Commercial
Hazardous Waste Management Facility Siting Act."
§22C-5-2. 20-10-1. Purpose and legislative findings.
(a) The purpose of this article is to establish a state
commercial hazardous waste management facility siting board and
to establish the procedure for which approval certificates shall
be are granted or denied for commercial hazardous waste
management facilities.
(b) The Legislature finds that hazardous waste is generated
throughout the state as a by-product of the materials used and
consumed by individuals, businesses, enterprise and governmental
units in the state, and that the proper management of hazardous
waste is necessary to prevent adverse effects on the environment
and to protect public health and safety. The Legislature further
finds that:
(1) The availability of suitable facilities for the
treatment, storage and disposal of hazardous waste is necessary
to protect the environment resources and preserve the economic
strength of this state and to fulfill the diverse needs of itscitizens;
(2) Whenever a site is proposed for the treatment, storage
or disposal of hazardous waste, the nearby residents and the
affected county and municipalities may have a variety of
reasonable concerns regarding the location, design, construction,
operation, closing and long-term care of facilities to be located
at the site, the effect of the facility upon their community's
economic development and environmental quality and the
incorporation of such concerns into the siting process;
(3) Local authorities have the responsibility for promoting
public health, safety, convenience and general welfare,
encouraging planned and orderly land use development, recognizing
the needs of industry and business, including solid waste
disposal and the treatment, storage and disposal of hazardous
waste and that reasonable concerns of local authorities should be
considered in the siting of commercial hazardous waste management
facilities; and
(4) New procedures are needed to resolve many of the
conflicts which arise during the process of siting commercial
hazardous waste management facilities.
§22C-5-3. 20-10-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Board" means the commercial hazardous waste management
facility siting board established pursuant to section three four
of this article;
(b) "Commercial hazardous waste management facility" means
any hazardous waste treatment, storage or disposal facility which
accepts hazardous waste, as identified or listed by the director
of the department of natural resources division of environmental
protection under article five-e of this eighteen chapter twenty-
two of this code, generated by sources other than the owner or
operator of the facility and shall does not include an approved
hazardous waste facility owned and operated by a person for the
sole purpose of disposing of hazardous wastes created by that
person or such person and other persons on a cost-sharing or
nonprofit basis;
(c) "Hazardous waste management facility" means any facility
including land and structures, appurtenances, improvements and
equipment used for the treatment, storage or disposal of
hazardous wastes, which accepts hazardous waste for storage,
treatment or disposal. For the purposes of this article, it does
not include: (i) Facilities for the treatment, storage or
disposal of hazardous wastes used principally as fuels in an on-
site production process; or (ii) facilities used exclusively for
the pretreatment of wastes discharged directly to a publicly
owned sewage treatment works. A facility may consist of one or
more treatment, storage or disposal operational units.
§22C-5-4. 20-10-3. Establishment of commercial hazardous waste
management facility siting board; composition; appointment;
compensation; powers; rules; and procedures.
(a) There is hereby established a The commercial hazardouswaste management facility siting board consisting is continued.
It consists of nine members including the director of the
department of natural resources division of environmental
protection and the director of the air pollution control
commission who shall be chief of the office of air quality of the
division of environmental protection who are non-voting members
ex officio, two ad hoc members appointed by the county commission
of the county in which the facility is or is proposed to be
located and who shall be are residents of said county, and five
other permanent members to be appointed by the governor with the
advice and consent of the Senate, two of whom shall be are
representative of industries engaged in business in this state
and three of whom shall be are representative of the public at
large. No two or more of the five permanent voting members of
the board appointed by the governor shall be from the same
county. Upon initial appointment , which shall be made by the
governor within thirty days of the effective date of this
article, one of said other five members shall be appointed for
five years, one for four years, one for three years, one for two
years and one for one year. which terms shall commence on the
effective date of this article Thereafter, said permanent
members shall be appointed for terms of five years each.
Vacancies occurring other than by expiration of a term shall be
filled by the governor in the same manner as the original
appointment for the unexpired portion of the term. The term of
the ad hoc members shall continue until a final determination hasbeen made in the particular proceeding for which they are
appointed. Four of the voting members on the board shall
constitute a quorum for the transaction of any business, and the
decision of four voting members of the board shall constitute is
action of the board. No person shall be is eligible to be an
appointee of the governor to the board who has any direct
personal financial interest in any commercial hazardous waste
management enterprise. The five permanent voting members of the
board shall annually elect from among themselves a chairman chair
no later than the thirty-first day of July of each calendar year.
The board shall meet upon the call of the chairman chair or upon
the written request of at least three of the voting members of
the board.
(b) Each member of the board, other than the two members ex
officio, shall be paid, out of funds appropriated for such
purpose as compensation for his or her services on the board, the
sum of seventy-five dollars for each day or substantial portion
thereof that he or she is actually engaged in their duties
pursuant to this article. In addition, each member, including
members ex officio, shall be reimbursed, out of moneys
appropriated for such purpose, all reasonable sums which he or
she necessarily shall expend expends in the discharge of duties
as a member of the board. The department of natural resources
division of environmental protection shall make available to the
board such professional and support staff and services as may be
necessary in order to support the board in carrying out itsresponsibilities within the limit of funds available for this
purpose. The office of the attorney general shall provide legal
advice and representation to the board as requested, within the
limit of funds available for this purpose, or the board, with the
written approval of the attorney general, may employ counsel to
represent it.
(c) After the effective date of this article eighth day of
April, one thousand nine hundred eighty-nine, no person shall
construct or commence construction of a commercial hazardous
waste management facility without first obtaining a certificate
of site approval issued by the board in the manner prescribed
herein. For the purpose of this section, "construct" and
"construction" shall mean means (i) with respect to new
facilities, the significant alteration of a site to install
permanent equipment or structures or the installation of
permanent equipment or structures; (ii) with respect to existing
facilities, the alteration or expansion of existing structures or
facilities to include accommodation of hazardous waste, or
expansion of more than fifty percent the area or capacity of an
existing hazardous waste facility, or any change in design or
process of a hazardous waste facility that will result in a
substantially different type of facility. Construction does not
include preliminary engineering or site surveys, environmental
studies, site acquisition, acquisition of an option to purchase
or activities normally incident thereto.
(d) Upon receiving a written request from the owner oroperator of the facility, the board may allow, without going
through the procedures of this article, any changes in the
facilities which are designed (1) to prevent a threat to human
health or the environment because of an emergency situation; (2)
to comply with federal or state laws and regulations; or (3) to
result in demonstrably safer or environmentally more acceptable
processes.
(e) An application for certificate of site approval shall
consist consists of a copy of all hazardous waste permits, if
any, and permit applications, if any, issued by or filed with any
state permit-issuing authority pursuant to article five-e of this
eighteen, chapter twenty-two of this code and a detailed written
analysis with supporting documentation of the following factors:
(1) The nature of the probable environmental and economic
impacts, including, but not limited to, specification of the
predictable adverse effects on quality of natural environment,
public health and safety, scenic, historic, cultural and
recreational values, water and air quality, wildlife, property
values, transportation networks, and an evaluation of measures to
mitigate such adverse effects;
(2) The nature of the environmental benefits likely to be
derived from such facility, including the resultant decrease in
reliance upon existing waste disposal facilities which do not
comply with applicable laws and regulations rules, and a
reduction in fuel consumption and vehicle emissions related to
long-distance transportation of hazardous waste; and
(3) The economic benefits likely to be derived from such
facility, including, but not limited to, a reduction in existing
costs for the disposal of hazardous waste, improvement to the
state's ability to retain and attract business and industry due
to predictable and stable waste disposal costs, and any economic
benefits which may accrue to the municipality or county in which
the facility is to be located.
(f) On or before sixty calendar days after the receipt of
such application, the board shall mail written notice to the
applicant as to whether or not such application is complete. If,
or when, the application is complete, the board shall notify the
applicant and the county commission of the county in which the
facility is or is proposed to be located. Said county commission
shall thereupon, within thirty days of receipt of such notice,
appoint the two ad hoc members of the board to act upon the
application.
(g) Immediately upon determining that an application is
complete, the board shall, at the applicant's expense, cause a
notice to be published in the state register, which shall be no
later than thirty calendar days after the date of such written
notice of completeness, and shall provide notice to the chief
executive office of each municipality in which the proposed
facility is to be located and to the county commission of the
county in which the facility is proposed to be located, and shall
direct the applicant to provide reasonable notice to the public
which shall, at a minimum, include publication as a Class I-Olegal advertisement in at least two newspapers having general
circulation in the vicinity in which the proposed facility is to
be located identifying the proposed location, type of facility
and activities involved, the name of the permittee, and the date,
time and place at which the board will convene a public hearing
with regard to the application. The date of the hearing shall be
set by the board and shall commence within sixty days of the date
of notice of completeness of an application.
(h) The board shall conduct a public hearing upon the
application in the county in which the facility is to be located
and shall keep an accurate record of such proceedings by
stenographic notes and characters or by mechanical or electronic
means. Such proceedings shall be transcribed at the applicant's
expense. The board may accept both written and oral comments on
the application.
(i) The commercial hazardous waste management facility
siting board request further information of the applicant and
shall render a decision based upon the application and the
record, either, requesting further information, granting a
certificate of site approval, denying it, or granting it upon
such terms, conditions and limitations as the board deems
appropriate. The board shall base its decision upon the factors
set forth in subsection (e). The written decision of the board
containing its findings and conclusions shall be mailed by
certified mail to the applicant and to any requesting person on
or before sixty calendar days after receipt by the board of acomplete record of the hearing.
(j) The board may exercise all powers necessary or
appropriate to carry out the purposes and duties provided in this
article, including the power to promulgate rules in compliance
with chapter twenty-nine-a of this code.
§22C-5-5. 20-10-4. Effect of certification.
A grant of an approval certificate shall supersede any local
ordinance or regulation that is inconsistent with the terms of
the approval certificate. Nothing in this chapter shall affect
affects the authority of the host community to enforce its
regulations and ordinances to the extent that they are not
inconsistent with the terms and conditions of the approval
certificate. Grant of an approval certificate shall does not
preclude or excuse the applicant from the requirement to obtain
approval or permits under this chapter or other state or federal
laws.
§22C-5-6. 20-10-5. Commercial hazardous waste management
facility siting fund; created fees.
(a) There is hereby created and established continued in the
state treasury a special revenue fund entitled the "commercial
hazardous waste management facility siting fund" which may be
expended by the director of the department of natural resources
division of environmental protection for the following:
(1) The necessary expenses of the board which may include
expenses and compensation for each member of the board as
authorized by this article.
(2) Administration, professional and support services
provided by the department division to the board.
(3) Legal counsel and representation provided by the
attorney general to the board for the purposes of this article.
(b) The director of the department of natural resources
division of environmental protection shall promulgate rules and
regulations, pursuant to section one, article one, chapter
twenty-nine-a of this code, establishing reasonable fees to be
charged each applicant for a certificate of site approval. Such
fees shall be calculated to recover the reasonable and necessary
expenses of the board, department of natural resources division
of environmental protection and attorney general which such
agencies incur as pursuant to this article.
§22C-5-7. 20-10-6. Judicial review.
(a) Any person having an interest adversely affected by a
final decision made and entered by the board is entitled to
judicial review thereof in the Circuit Court of Kanawha County,
or the circuit court of the county in which the facility is, or
is proposed to be, situated, such appeal to be perfected by the
filing of a petition with the court within sixty days of the date
of receipt by the applicant of the board's written decision.
(b) The review shall be conducted by the court without a
jury and shall be upon the record made before the board except
that in cases of alleged irregularities in procedure before the
board not shown in the record, testimony thereon may be taken
before the court. The court may hear oral arguments and requirewritten briefs.
The court may affirm the order or decision of the board or
remand the case for further proceedings. It may reverse, vacate
or modify the order or decision of the board if the substantial
rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions,
decision or order are:
(1) In violation of constitutional or statutory provisions;
or
(2) In excess of the statutory authority or jurisdiction of
the board; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(c) The judgment of the circuit court shall be is final
unless reversed, vacated or modified on appeal to the supreme
court of appeals. The petition seeking such review must be filed
with said supreme court of appeals within ninety days from the
date of entry of the judgment of the circuit court.
(d) Legal counsel and services for the board in all appeal
proceedings shall be provided by the attorney general.
§22C-5-8. 20-10-7. Remedies.
(a) Any person who violates this section shall be compelledby injunction, in a proceeding instituted in the circuit court or
the locality where the facility or proposed facility is to be
located, to cease the violation.
(b) Such an action may be instituted by the board, director
of the department of natural resources, air pollution control
commission division of environmental protection, political
subdivision in which the violation occurs, or any other person
aggrieved by such violation. In any such action, it shall is not
be necessary for the plaintiff to plead or prove irreparable harm
or lack of an adequate remedy at law. No person shall be
required to post any injunction bond or other security under this
section.
(c) No action may be brought under this section after an
approval certificate has been issued by the board,
notwithstanding the pendency of any appeals or other challenges
to the board's action.
(d) In any action under this section, the court may award
reasonable costs of litigation, including attorney and expert
witness fees, to any party if the party substantially prevails on
the merits of the case and if in the determination of the court
the party against whom the costs are requested has acted in bad
faith.
ARTICLE 10A. 6. HAZARDOUS WASTE FACILITY SITING APPROVAL
§22C-6-1. 20-10A-1. Legislative purpose.
The purpose of this article is to provide the opportunity
for public participation in the decision to locate commercialhazardous waste management facilities and to locate any hazardous
waste management facility which disposes of greater than ten
thousand tons of hazardous waste per annum in West Virginia.
§22C-6-2. 20-10A-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Board" means the commercial hazardous waste management
facility siting board established pursuant to section three,
article ten five of this chapter;
(b) "Commercial hazardous waste management facility" means
any hazardous waste treatment, storage or disposal facility which
accepts hazardous waste, as identified or listed by the director
of the division of natural resources environmental protection
under article five-e of this eighteen, chapter twenty-two of this
code, generated by sources other than the owner or operator of
the facility and shall does not include an approved hazardous
waste facility owned and operated by a person for the sole
purpose of disposing of hazardous wastes created by that person
or such person and other persons on a cost-sharing or nonprofit
basis;
(c) "Hazardous waste management facility" means any facility
including land and structures, appurtenances, improvements and
equipment used for the treatment, storage or disposal of
hazardous wastes, which accepts hazardous waste for storage,
treatment or disposal. For the purposes of this article, it does
not include: (i) Facilities for the treatment, storage ordisposal of hazardous wastes used principally as fuels in an on-
site production process; or (ii) facilities used exclusively for
the pretreatment of wastes discharged directly to a publicly
owned sewage treatment works. A facility may consist of one or
more treatment, storage or disposal operational units.
(d) "On site" means the location for disposal of hazardous
waste including the hazardous waste generated at the location of
disposal or generated at some location other than the location of
disposal.
§22C-6-3. 20-10A-3. Procedure for public participation.
(a) From and after the effective date of this article fifth
day of June, one thousand nine hundred ninety-two, in order to
obtain approval to locate either a commercial hazardous waste
management facility or a hazardous waste management facility
which disposes of greater than ten thousand tons per annum on
site in this state, an applicant shall:
(1) File a pre-siting notice with the county or counties in
which the facility is to be located or proposed. Such notice
shall be submitted on forms prescribed by the commercial
hazardous waste management facility siting board;
(2) File a pre-siting notice with the commercial hazardous
waste management facility siting board; and
(3) File a pre-siting notice with the division of natural
resources environmental protection.
(b) If a pre-siting notice is filed in accordance with
subsection (a) of this section, the county commission shallpublish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in
a newspaper of general circulation in the counties wherein the
hazardous waste management facility is to be located. Upon an
affirmative vote of the majority of the county commissioners or
upon the written petition of registered voters residing in the
county equal to not less than fifteen percent of the number of
votes cast within the county for governor at the preceding
gubernatorial election, which petition shall be filed with the
county commission within sixty days after the last date of
publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the
ballot:
Provided,
That such a referendum shall is not be
required for a hazardous waste management facility for which at
least ninety percent of the capacity is designated for hazardous
waste generated at the site of disposal. Any referendum
conducted pursuant to this section shall be held at the next
primary, general or other countywide election.
(1) Such referendum will be is to determine whether it is
the will of the voters of the county that a commercial hazardous
waste management facility be located in the county or that a
hazardous waste management facility disposing of greater than ten
thousand tons of hazardous waste per annum on site be located in
the county. Any election at which such question of locating ahazardous waste management facility is voted upon shall be held
at the voting precincts established for holding primary or
general elections. All of the provisions of the general election
laws, when not in conflict with the provisions of this article,
shall apply to voting and elections hereunder, insofar as
practicable. The secretary of state shall prescribe the form of
the petition which shall include the printed name, address and
date of birth of each person whose signature appears on the
petition.
(2) The ballot, or the ballot labels where voting machines
are used, shall have printed thereon substantially the following
depending upon the type of facility to be located with the
county:
"Shall a commercial hazardous waste management facility be
located within _________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
or,
"Shall a hazardous waste management facility disposing of greater
than ten thousand tons per annum on site be located within
________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question
be is against the facility, then the county commission shall
notify the division of natural resources environmental protection
and the commercial hazardous waste management facility siting
board, in the case of a commercial facility, of the result and
the commercial hazardous waste management facility siting board
or division of natural resources environmental protection, as the
case may be, shall not proceed any further with the application.
If a majority of the legal votes cast upon the question be is for
the facility, then the application process as set forth in
article five-e of this eighteen, chapter twenty-two of this code
and article ten five of this chapter, in the case of a commercial
hazardous waste management facility, may proceed:
Provided,
That
such vote shall is not be binding on nor does it require the
commercial hazardous waste management facility siting board to
grant a certificate of site approval or the division of natural
resources environmental protection to issue the permit, as the
case may be. If the majority of the legal votes cast be is
against the question, the question may be submitted to a vote at
any subsequent election in the manner herein specified:
Provided, however,
That the question may not be resubmitted to a
vote until two years after the date of the previous referendum.
ARTICLE 13. 7. OIL AND GAS INSPECTORS' EXAMINING BOARD.
§22C-7-1. 22-13-1. Oil and gas inspector; supervising
inspectors; tenure; oath and bond.
Notwithstanding any other provisions of law, oil and gas
inspectors shall be selected, serve and be removed as in this
article provided.
The director for the division of oil and gas of the division
of environmental protection shall divide the state so as to
equalize, as far as practical, the work of each oil and gas
inspector. He The director may designate a supervising inspector
and other inspectors as may be necessary, and may designate their
places of abode, at points convenient to the accomplishment of
their work.
The director for the division of oil and gas of the division
of environmental protection shall make each appointment from
among the three qualified eligible candidates on the register
having the highest grades. The commissioner of the department of
energy or the director for the division of oil and gas director
of the division of environmental protection or the director's
designee may, for good cause, at least thirty days prior to
making an appointment, strike any name from the register. Upon
striking any name from the register, the commissioner or director
director or the director's designee, as the case may be, shall
immediately notify in writing each member of the oil and gas
inspectors' examining board of his such action, together with a
detailed statement of the reasons therefor. Thereafter, the oil
and gas inspectors' examining board, after hearing, if it finds
that the action of striking such name was arbitrary or
unreasonable, may order the name of any candidate so strickenfrom the register to be reinstated thereon. Such reinstatement
shall be effective from the date of removal from the register.
Any candidate passed over for appointment for three years
shall be automatically stricken from the register.
After having served for a probationary period of one year to
the satisfaction of the director for the division of oil and gas
and the commissioner for the division of environmental
protection, an oil and gas inspector or supervising inspector
shall have permanent tenure until he such inspector becomes
seventy years of age, subject only to dismissal for cause in
accordance with the provisions of section two of this article.
No oil and gas inspector or supervising inspector while in office
shall be directly or indirectly interested as owner, lessor,
operator, stockholder, superintendent or engineer of any oil or
gas drilling or producing venture or of any coal mine in this
state. Before entering upon the discharge of his such duties as
an oil and gas inspector or supervising inspector, he each
inspector shall take the oath of office prescribed by section 5
five, article IV of the constitution of West Virginia, and shall
execute a bond in the penalty of two thousand dollars, with
security to be approved by the director of the division of oil
and gas division of environmental protection, conditioned upon
the faithful discharge of his the inspector's duties, a
certificate of which oath and bond shall be filed in the office
of the secretary of state.
The supervising inspector and oil and gas inspectors shallperform such duties as are imposed upon them by this chapter or
chapter twenty-two-b twenty-two of this code, and related duties
assigned by the director for the division of oil and gas upon
approval of the commissioner of the division of environmental
protection.
§22C-7-2. 22-13-2. Oil and gas inspectors; eligibility for
appointment; qualifications; salary; expenses; removal.
(a) No person is eligible for appointment as an oil and gas
inspector or supervising inspector unless, at the time of his
probationary appointment, he such person (1) is a citizen of West
Virginia, in good health, and of good character, reputation and
temperate habits; (2) has had at least ten six years' practical
actual relevant experience in the oil and gas industry: at least
five years of which, immediately preceding his original
appointment shall have been in the oil and gas industry in this
state:
Provided,
That not exceeding three years of such
experience shall be satisfied by any combination of a diploma in
geology or in mining or petroleum (i) a bachelor of science
degree in science or engineering which shall be considered the
equivalent of five three years' practical actual relevant
experience in the oil and gas industry, (ii) an associate degree
in petroleum technology which shall be considered the equivalent
of two years actual relevant experience in the oil and gas
industry, and (iii) actual relevant environmental experience
including, without limitation, experience in wastewater, solid
waste or reclamation each full year of which shall be consideredas a year of actual relevant experience in the oil and gas
industry; and (3) has good theoretical and practical knowledge of
oil and gas drilling and production methods, practices and
techniques, sound safety practices and applicable mining laws.
(b) In order to qualify for appointment as an oil and gas
inspector or supervising inspector, an eligible applicant shall
submit to a written and oral examination by the oil and gas
inspectors' examining board and shall furnish such evidence of
good health, character and other facts establishing eligibility
as such board may require. If such board finds after
investigation and examination that an applicant (1) is eligible
for appointment and (2) has passed all written and oral
examinations, the board shall add such applicant's name and grade
to the register of qualified eligible candidates and certify its
action to the director of the division of oil and gas division of
environmental protection. No candidate's name may remain on the
register for more than three years without requalifying.
(c) The salary of the supervising inspector shall be not
less than twenty-seven thousand five hundred dollars per annum.
Salaries of inspectors shall be not less than twenty-two
thousand dollars per annum. The supervising inspector and
inspectors shall receive are entitled to mileage expense
reimbursement at the rate established by rule of the commissioner
of the department of finance and administration for in-state
travel of public employees, in the governor's travel rules, as
administered by the department of administration. Within thelimits provided by law, the salary of each inspector and of the
supervising inspector shall be fixed by said director subject to
the approval of the commissioner and the oil and gas inspectors'
examining board. In fixing salaries of the oil and gas
inspectors and of the supervising inspector, said director shall
consider ability, performance of duty and experience. No
reimbursement for traveling expenses may be made except upon an
itemized account of such expenses submitted by the inspector or
supervising inspector, as the case may be, who shall verify, upon
oath, that such expenses were actually incurred in the discharge
of his official duties.
(d) An inspector or the supervising inspector, after having
received a permanent appointment, shall be removed from office
only for physical or mental impairment, incompetency, neglect of
duty, drunkenness, malfeasance in office, or other good cause.
Proceedings for the removal of an oil and gas inspector or
the supervising inspector may be initiated by said director or
the commissioner whenever either has there are reasonable grounds
to believe and does believe that adequate cause exists warranting
removal. Such a proceeding shall be initiated by a verified
petition, filed with the oil and gas inspectors' examining board
by said director, or the commissioner setting forth with
particularity the facts alleged. Not less than twenty reputable
citizens engaged in oil and gas drilling and production
operations in the state may petition said director or the
commissioner for the removal of an inspector or the supervisinginspector. If such petition is verified by at least one of the
petitioners, based on actual knowledge of the affiant, and
alleges facts which, if true, warrant the removal of the
inspector or supervising inspector, said director or the
commissioner shall cause an investigation of the facts to be
made. If, after such investigation, said director or the
commissioner finds that there is substantial evidence which, if
true, warrants removal of the inspector or supervising inspector,
he the director shall file a petition with the oil and gas
inspectors' examining board requesting removal of the inspector
or supervising inspector.
On receipt of a petition by said director or by the
commissioner seeking removal of an inspector or the supervising
inspector, the oil and gas inspectors' examining board shall
promptly notify the inspector or supervising inspector, as the
case may be, to appear before it at a time and place designated
in said notice, which time shall be not less than fifteen days
nor more than thirty days thereafter. There shall be attached to
the copy of the notice served upon the inspector or supervising
inspector a copy of the petition filed with such board.
At the time and place designated in said notice, the oil and
gas inspectors' examining board shall hear all evidence offered
in support of the petition and on behalf of the inspector or
supervising inspector. Each witness shall be sworn and a
transcript shall be made of all evidence taken and proceedings
had at any such hearing. No continuance may be granted exceptfor good cause shown.
The chairman chair of the board, said and the director and
the commissioner may administer oaths and subpoena witnesses.
An inspector or supervising inspector who willfully refuses
or fails to appear before such board, or having appeared, refuses
to answer under oath any relevant question on the ground that his
the inspector's testimony or answer might incriminate him such
inspector, or refuses to accept a grant of immunity from
prosecution on account of any relevant matter about which he the
inspector may be asked to testify at such hearing before such
board, forfeits his the inspector's position.
If, after hearing, the oil and gas inspectors' examining
board finds that the inspector or supervising inspector should be
removed, it shall enter an order to that effect. The decision of
the board shall be final and shall not be subject to judicial
review.
§22C-7-3. 22-13-3. Oil and gas inspectors' examining board;
created composition; appointment, term and compensation of
members; meetings; powers and duties generally; continuation
following audit.
(a) There is hereby continued an oil and gas inspectors'
examining board consisting of five members who, except for the
public representative on such board, two of whom shall be ex
officio members and three of whom shall be appointed by the
governor, by and with the advice and consent of the Senate.
Appointed members may be removed only for the same causes andlike manner as elective state officers. One member of the board
who shall be the representative of the public shall be a
professor in the petroleum engineering department of the school
of mines at West Virginia University appointed by the dean of
said school; at large and shall be a person who is knowledgeable
about the subject matter of this article and has no direct or
indirect financial interest in oil and gas production other than
the receipt of royalty payments which do not exceed a five year
average of six hundred dollars per year; two members one member
shall be persons a person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
independent oil and gas operators; and two members one member
shall be persons a person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
major oil and gas producers. The chief of the office of oil and
gas of the division and the chief of the office of water
resources of the division or his or her designee shall be ex
officio members.
The director for the division of oil and gas shall be an ex
officio member of the board and shall serve as secretary of the
board without additional compensation. but he shall have no right
to vote with respect to any matter before the board
The appointed members of the board except the public
representative shall be appointed for overlapping terms of eight
six years, except that the original appointments shall be for
terms of two, four and six and eight years, respectively. Anymember whose term expires may be reappointed by the governor.
Each member of the board, other than ex officio members,
shall receive seventy-five dollars per diem while actually
engaged in the performance of the work of the board, and shall
receive mileage at the rate of not more than fifteen cents for
each mile actually traveled going from the home of the member to
the place of the meeting of the board and returning therefrom,
which shall be paid out of the state treasury upon a requisition
upon the state auditor, properly certified by such members of the
board.
The public member chief of the office of oil and gas of the
division shall serve as chairman chair of the board.
Members of the board, before performing any duty, shall take
and subscribe to the oath required by section five, article four
of the constitution of West Virginia.
The board shall meet at such times and places as shall be
designated by the chairman chair. It shall be the duty of the
chairman chair to call a meeting of the board on the written
request of two members. or on the written request of said
director or the commissioner. Notice of each meeting shall be
given in writing to each member by the secretary at least five
days in advance of the meeting. Three voting A majority of
members shall constitute a quorum for the transaction of
business.
(b) In addition to other powers and duties expressly set
forth elsewhere in this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as an oil and gas inspector and
supervising inspector and forms for written examinations to test
the qualifications of candidates, with such distinctions, if any,
in the forms for oil and gas inspector and supervising inspector
as the board may from time to time deem necessary or advisable;
(2) Adopt and promulgate reasonable rules and regulations
relating to the examination, qualification and certification of
candidates for appointment, and relating to hearings for removal
of inspectors or the supervising inspector, required to be held
by this article. All of such rules and regulations shall be
printed and a copy thereof furnished by the secretary of the
board to any person upon request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment. By
unanimous agreement of all members of the board, one or more
members of the board or an employee of the department of energy
division of environmental protection may be designated to give to
a candidate the written portion of the examination;
(4) Prepare and certify to said the director and the
commissioner of the division of environmental protection a
register of qualified eligible candidates for appointment as oil
and gas inspectors or as supervising inspectors, with such
differentiation, if any, between the certification of candidates
for oil and gas inspectors and for supervising inspectors as the
board may from time to time deem necessary or advisable. Theregister shall list all qualified eligible candidates in the
order of their grades, the candidate with the highest grade
appearing at the top of the list. After each meeting of the
board held to examine such candidates and at least annually, the
board shall prepare and submit to the said director and the
commissioner a revised and corrected register of qualified
eligible candidates for appointment, deleting from such revised
register all persons (a) who are no longer residents of West
Virginia, (b) who have allowed a calendar year to expire
without, in writing, indicating their continued availability for
such appointment, (c) who have been passed over for appointment
for three years, (d) who have become ineligible for appointment
since the board originally certified that such persons were
qualified and eligible for appointment, or (e) who, in the
judgment of at least three members of the board, should be
removed from the register for good cause;
(5) Cause the secretary of the board to keep and preserve
the written examination papers, manuscripts, grading sheets and
other papers of all applicants for appointment for such period of
time as may be established by the board. Specimens of the
examinations given, together with the correct solution of each
question, shall be preserved permanently by the secretary of the
board;
(6) Issue a letter or written notice of qualification to
each successful eligible candidate;
(7) Hear and determine proceedings for the removal ofinspectors or the supervising inspector in accordance with the
provisions of this article;
(8) Hear and determine appeals of inspectors or the
supervising inspector from suspension orders made by said
director pursuant to the provisions of section two, article one
six, chapter twenty-two-b twenty-two of this code:
Provided,
That in order to appeal from any order of suspension, an
aggrieved inspector or supervising inspector shall file such
appeal in writing with the oil and gas inspectors' examining
board not later than ten days after receipt of the notice of
suspension. On such appeal the board shall affirm the action of
said director unless it be satisfied from a clear preponderance
of the evidence that said director has acted arbitrarily;
(9) Make an annual report to the governor concerning the
administration of oil and gas inspection personnel in the state
service; making such recommendations as the board considers to be
in the public interest; and
(10) Render such advice and assistance to the director of
the division of oil and gas environmental protection as he the
director shall from time to time determine necessary or
desirable in the performance of his such duties.
(c) After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that the oil and gas
inspectors' examining board within the department of energy division of environmental protection should be continued and
reestablished. Accordingly, notwithstanding the provisions of
section four, article ten, chapter four of this code, the oil and
gas inspectors' examining board within the department of energy
division of environmental protection shall continue to exist
until the first day of July, one thousand nine hundred ninety-
three.
ARTICLE 8. SHALLOW GAS WELL REVIEW BOARD.
§22C-8-1. 22-7-1. Declaration of public policy; legislative
findings.
(a) It is hereby declared to be the public policy of this
state and in the public interest to:
(1) Ensure the safe recovery of coal and gas;
(2) Foster, encourage and promote the fullest practical
exploration, development, production, recovery and utilization of
this state's coal and gas, where both are produced from beneath
the same surface lands, by establishing procedures, including
procedures for the establishment of drilling units, for the
location of shallow gas wells without substantially affecting the
right of the gas operator proposing to drill a shallow gas well
to explore for and produce gas; and
(3) Safeguard, protect and enforce the correlative rights of
gas operators and royalty owners in a pool of gas to the end that
each such gas operator and royalty owner may obtain his a just
and equitable share of production from such pool of gas.
(b) The Legislature hereby determines and finds that gasfound in West Virginia in shallow sands or strata has been
produced continuously for more than one hundred years; that the
placing of shallow wells has heretofore been regulated by the
state for the purpose of ensuring the safe recovery of coal and
gas, but that regulation should also be directed toward
encouraging the fullest practical recovery of both coal and gas
because modern extraction technologies indicate the desirability
of such change in existing regulation and because the energy
needs of this state and the United States require encouragement
of the fullest practical recovery of both coal and gas; that in
order to encourage and ensure the fullest practical recovery of
coal and gas in this state and to further ensure the safe
recovery of such natural resources, it is in the public interest
to enact new statutory provisions establishing a shallow gas well
review board which shall have the authority to regulate and
determine the appropriate placing of shallow wells when gas well
operators and owners of coal seams fail to agree on the placing
of such wells, and establishing specific considerations,
including minimum distances to be allowed between certain shallow
gas wells, to be utilized by the shallow gas well review board in
regulating the placing of shallow wells; that in order to
encourage and ensure the fullest practical recovery of coal and
gas in this state and to protect and enforce the correlative
rights of gas operators and royalty owners of gas resources, it
is in the public interest to enact new statutory provisions
establishing a shallow gas well review board which shall alsohave authority to establish drilling units and order the pooling
of interests therein to provide all gas operators and royalty
owners with an opportunity to recover their just and equitable
share of production.
§22C-8-2. 22-7-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Board" means the West Virginia shallow gas well review
board provided for in section four of this article;
(2) "chairman chair" means the chairman chair of the West
Virginia shallow gas well review board provided for in section
four of this article;
(3) "Coal operator" means any person who proposes to or does
operate a coal mine;
(4) "Coal seam" and "workable coal bed" are interchangeable
terms and mean any seam of coal twenty inches or more in
thickness, unless a seam of less thickness is being commercially
worked, or can in the judgment of the department division
foreseeably be commercially worked and will require protection if
wells are drilled through it;
(5) "Commission" means the oil and gas conservation
commission provided for in section four, article eight nine of
this chapter;
(6) "Commissioner" means the oil and gas conservation
commissioner provided for in section four, article eight nine of
this chapter;
(7) "Correlative rights" means the reasonable opportunity of
each person entitled thereto to recover and receive without waste
the gas in and under a tract or tracts, or the equivalent
thereof;
(8) "Deep well" means any well other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(9) "Department" "Division" means the state department
division of energy environmental protection provided for in
chapter twenty-two of this code;
(10) "Director" means the director for the division of oil
and gas provided for in section eleven, article one, chapter
twenty-two of this code the director of the division of
environmental protection as established in article one, chapter
twenty-two of this code or such other person as the director
delegates authority or duties to pursuant to sections six or
eight, article one, chapter twenty-two of this code;
(11) "Drilling unit" means the acreage on which the board
decides one well may be drilled under section ten of this
article;
(12) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (15) of this
section;
(13) "Gas operator" means any person who owns or has the
right to develop, operate and produce gas from a pool and to
appropriate the gas produced therefrom either for himself suchperson or for himself such person and others. In the event that
there is no gas lease in existence with respect to the tract in
question, the person who owns or has the gas rights therein shall
be considered a "gas operator" to the extent of seven eighths of
the gas in that portion of the pool underlying the tract owned by
such person, and a "royalty owner" to the extent of one eighth of
such gas;
(14) "Just and equitable share of production" means, as to
each person, an amount of gas in the same proportion to the total
gas production from a well as that person's acreage bears to the
total acreage in the drilling unit;
(15) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoir;
(16) "Owner" when used with reference to any coal seam,
shall include any person or persons who own, lease or operate
such coal seam;
(17) "Person" means any natural person, corporation, firm,
partnership, partnership association, venture, receiver, trustee,
executor, administrator, guardian, fiduciary or other
representative of any kind, and includes any government or any
political subdivision or any agency thereof;
(18) "Plat" means a map, drawing or print showing the
location of one or more wells or a drilling unit;
(19) "Pool" means an underground accumulation of gas in a
single and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a single
natural-pressure system so that production of gas from one part
of the pool tends to or does affect the reservoir pressure
throughout its extent. A pool is bounded by geologic barriers
in all directions, such as geologic structural conditions,
impermeable strata, and water in the formation, so that it is
effectively separated from any other pools which may be present
in the same district or in the same geologic structure;
(20) "Royalty owner" means any owner of gas in place, or gas
rights, to the extent that such owner is not a gas operator as
defined in subdivision (13) of this section;
(21) "Shallow well" means any gas well drilled and completed
in a formation above the top of the uppermost member of the
"Onondaga Group":
Provided,
That in drilling a shallow well the
well operator may penetrate into the "Onondaga Group" to a
reasonable depth, not in excess of twenty feet, in order to allow
for logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(22) "Tracts comprising a drilling unit" means that all
separately owned tracts or portions thereof which are included
within the boundary of a drilling unit;
(23) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or into underground strata for the extraction,injection or placement of any liquid or gas, or any shaft or hole
sunk or used in conjunction with such extraction, injection or
placement. The term "well" does not include any shaft or hole
sunk, drilled, bored or dug into the earth for the sole purpose
of core drilling or pumping or extracting therefrom potable,
fresh or usable water for household, domestic, industrial,
agricultural or public use; and
(24) "Well operator" means any person who proposes to or
does locate, drill, operate or abandon any well.
§22C-8-3. 22-7-3. Application of article; exclusions.
(a) Except as provided in subsection (b) of this section,
the provisions of this article shall apply to all lands located
in this state, under which a coal seam as defined in section two
of this article and section one, article one six, chapter twenty-
two-b twenty-two of this code, is located, however owned,
including any lands owned or administered by any government or
any agency or subdivision thereof, over which the state has
jurisdiction under its police power. The provisions of this
article are in addition to and not in derogation of or
substitution for the provisions of this chapter or chapter
twenty-two-b twenty-two of this code.
(b) This article shall not apply to or affect:
(1) Deep wells;
(2) Oil wells and enhanced oil recovery wells associated
with oil wells;
(3) Any shallow well permitted under article four of thischapter prior to 12:01 a.m., the first day of August, one
thousand nine hundred seventy-eight, unless such well is, after
completion (whether such completion is prior or subsequent to the
ninth day of June, one thousand nine hundred seventy-eight),
deepened subsequent to the ninth day of June, one thousand nine
hundred seventy-eight, through another coal seam to another
formation above the top of the uppermost member of the "Onondaga
Group";
(4) (3) Any shallow well as to which no objection is made
under section seventeen, article one six, chapter twenty-two-b
twenty-two of this code;
(5) (4) Wells as defined in subdivision (4), section one,
article four nine, chapter twenty-two-b twenty-two of this code;
or
(6) (5) Free gas rights.
(c) The provisions of this article affecting applications
for permits to drill shallow gas wells shall only apply to such
applications filed after 12:01 a.m., the first day of August, one
thousand nine hundred seventy-eight, and the provisions of
article four of former chapter twenty-two affecting such
applications which were in effect immediately prior to the ninth
day of June, one thousand nine hundred seventy-eight, shall apply
to all such applications filed prior to 12:01 a.m., the first day
of August, one thousand nine hundred seventy-eight, with like
effect as if this article had not been enacted.
§22C-8-4. 22-7-4. West Virginia Shallow gas well review board; membership; method of appointment; vacancies; compensation
and expenses; staff.
(a) There is hereby continued the "West Virginia Shallow Gas
Well Review Board" which shall be composed of three members, two
of whom shall be the commissioner and the director chief of the
office of oil and gas. The remaining member of the board shall
be a registered professional mining engineer who has been
successfully tested in mining engineering, with at least ten
years practical experience in the coal mining industry and shall
be appointed by the governor, by and with the advice and consent
of the Senate:
Provided,
That any person so appointed while the
Senate of this state is not in session shall be permitted to
serve in an acting capacity for one year from his appointment or
until the next session of the Legislature, whichever is less. As
soon as practical after appointment and qualification of the
member appointed by the governor, the governor shall convene a
meeting of the board for the purpose of organizing and electing
a chairman chair, who shall serve serves as such until his a
successor is elected by the board.
(b) A vacancy in the membership appointed by the governor
shall be filled by appointment by the governor within sixty days
after the occurrence of such vacancy. Before performing any duty
hereunder, each member of the board shall take and subscribe to
the oath required by section 5 five, article IV of the
Constitution of West Virginia, and shall serve serves thereafter
until his a successor has been appointed and qualified.
(c) The member of the board appointed by the governor shall
receive not less than seventy-five dollars per diem while
actually engaged in the performance of his such duties as a
member of the board. Each member of the board shall also be
reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his the duties as a member of the
board.
(d) The division of oil and gas shall furnish office and
clerical staff and supplies and services, including reporters for
hearings, as required by the board.
§22C-8-5. 22-7-5. Same -- Meetings; notice; general powers and
duties.
(a) The board shall meet and hold conferences and hearings
at such times and places as shall be designated by the chairman
chair. The chairman chair may call a meeting of the board at any
time. The chairman chair shall call a meeting of the board (1)
upon receipt of a notice from the director that an objection to
the proposed drilling or deepening of a shallow well has been
filed by a coal seam owner pursuant to section seventeen, article
one six of chapter twenty-two-b twenty-two of this code or that
an objection has been made by the director, (2) upon receipt of
an application to establish a drilling unit filed with the board
pursuant to section nine of this article, or (3) within twenty
days upon the written request by another member of the board.
Meetings called pursuant to subdivisions (1) and (2) of this
subsection shall be scheduled not less than ten days nor morethan twenty days from receipt by the chairman chair of the notice
of objection or the application to establish a drilling unit.
Notice of all meetings shall be given to each member of the board
by the chairman chair at least ten days in advance thereof,
unless otherwise agreed by the members.
(b) At least ten days prior to every meeting of the board
called pursuant to the provisions of subdivisions (1) and (2),
subsection (a) of this section, the chairman chair shall also
notify (1) in the case of a notice of objection, the well
operator and all objecting coal seam owners, and (2) in the case
of an application to establish a drilling unit, the applicant,
all persons to whom copies of the application were required to be
mailed pursuant to the provisions of subsection (d), section nine
of this article and all persons who filed written protests or
objections with the board in accordance with the provisions of
subsection (c), section nine of this article.
(c) A majority of the members of the board shall constitute
a quorum for the transaction of any business. A majority of the
members of the board shall be required to determine any issue
brought before it.
(d) The board is hereby empowered and it shall be its duty
to execute and carry out, administer and enforce the provisions
of this article in the manner provided herein. Subject to the
provisions of section three of this article, the board shall have
jurisdiction and authority over all persons and property
necessary therefor:
Provided,
That the provisions of thisarticle shall not be construed to grant to the board authority or
power to (1) limit production or output from or prorate
production of any gas well, or (2) fix prices of gas.
(e) The board shall have specific authority to:
(1) Take evidence and issue orders concerning applications
for drilling permits and drilling units in accordance with the
provisions of this article;
(2) Promulgate, pursuant to the provisions of chapter
twenty-nine-a of this code, and enforce reasonable rules and
regulations necessary to govern the practice and procedure before
the board;
(3) Make such relevant investigations of records and
facilities as it deems proper; and
(4) Issue subpoenas for the attendance of and sworn
testimony by witnesses and subpoenas duces tecum for the
production of any books, records, maps, charts, diagrams and
other pertinent documents, and administer oaths and affirmations
to such witnesses, whenever, in the judgment of the board, it is
necessary to do so for the effective discharge of its duties
under the provisions of this article.
§22C-8-6. 22-7-6. Rules; and regulations notice requirements.
(a) The board may promulgate, pursuant to the provisions of
chapter twenty-nine-a of this code, such reasonable rules and
regulations as are deemed necessary or desirable to implement and
make effective the provisions of this article.
(b) Notwithstanding the provisions of section two, articleseven, chapter twenty-nine-a of this code, any notice required
under the provisions of this article shall be given at the
direction of the chairman chair by (1) personal or substituted
service and if such cannot be had then by (2) certified United
States mail, addressed, postage and certification fee prepaid, to
the last known mailing address, if any, of the person being
served, with the direction that the same be delivered to
addressee only, return receipt requested, and if there be no
known mailing address or if the notice is not so delivered then
by (3) publication of such notice as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county or counties wherein any land
which may be affected by the order of the board is situate. The
chairman chair shall also mail a copy of such notice to all other
persons who have specified to the chairman chair an address to
which all such notices may be mailed. All notices shall issue in
the name of the state, shall be signed by the chairman chair,
shall specify the style and number of the proceeding, the date,
time and place of any meeting, conference or hearing, and shall
briefly state the purpose of the proceeding. Proof of service or
publication of such notice shall be made to the board promptly
and in any event within the time during which the person served
must respond to the notice. If service is made by a person other
than the sheriff or the chairman chair, he such person shall make
proof thereof by affidavit. Failure to make proof of service orpublication within the time required shall not affect the
validity of the service of the notice.
§22C-8-7. 22-7-7. Objections to proposed drilling; conferences;
agreed locations and changes on plats; hearings; orders.
(a) At the time and place fixed by the chairman chair for
the meeting of the board and for consideration of the objections
to proposed drilling filed by coal seam owners pursuant to
section seventeen, article one six, chapter twenty-two-b
twenty-two of this code, the well operator and the objecting coal
seam owners present or represented shall hold a conference with
the board to consider the objections. Such persons present or
represented at the conference may agree upon either the drilling
location as proposed by the well operator or an alternate
location. Any change in the drilling location from the drilling
location proposed by the well operator shall be indicated on the
plat enclosed with the notice of objection filed with the
chairman chair by the director in accordance with the provisions
of section seventeen, article one six, chapter twenty-two-b
twenty-two of this code, and the distance and direction to the
new drilling location from the proposed drilling location shall
also be shown on such plat. If agreement is reached at the
conference by the well operator and such objecting coal seam
owners present or represented at the conference, the board shall
issue a written order stating that an agreement has been reached,
stating the nature of such agreement, and directing the director
to grant the well operator a drilling permit for the locationagreed upon. The original of such order shall be filed with the
division within five days after the conference of the board at
which the drilling location was agreed upon and copies thereof
shall be mailed by registered or certified mail to the well
operator and the objecting coal seam owners present or
represented at such conference.
(b) If the well operator and the objecting coal seam owners
present or represented at the conference with the board are
unable to agree upon a drilling location, then, unless they
otherwise agree, the board shall, without recess for more than
one business day, hold a hearing to consider the application for
a drilling permit. All of the pertinent provisions of article
five, chapter twenty-nine-a of this code shall apply to and
govern such hearing. Within twenty days after the close of a
hearing, the board shall issue and file with the director a
written order directing him or her, subject to other matters
requiring approval of the director, to:
(1) Refuse a drilling permit; or
(2) Issue a drilling permit for the proposed drilling
location; or
(3) Issue a drilling permit for an alternate drilling
location different from that requested by the well operator; or
(4) Issue a drilling permit either for the proposed drilling
location or for an alternate drilling location different from
that requested by the well operator, but not allow the drilling
of the well for a period of not more than one year from the dateof issuance of such permit.
(c) The written order of the board shall contain findings of
fact and conclusions based thereon concerning the following
safety aspects, and no drilling permit shall be issued for any
drilling location where the board finds from the evidence that
such drilling location will be unsafe:
(1) Whether the drilling location is above or in close
proximity to any mine opening or shaft, entry, travelway, airway,
haulageway, drainageway or passageway, or to any proposed
extension thereof, in any operated or abandoned or operating coal
mine, or any coal mine already surveyed and platted but not yet
being operated;
(2) Whether the proposed drilling can reasonably be done
through an existing or planned pillar of coal, or in close
proximity to an existing well or such pillar of coal, taking into
consideration the surface topography;
(3) Whether the proposed well can be drilled safely, taking
into consideration the dangers from creeps, squeezes or other
disturbances due to the extraction of coal; and
(4) The extent to which the proposed drilling location
unreasonably interferes with the safe recovery of coal and gas.
The written order of the board shall also contain findings
of fact and conclusions based thereon concerning the following:
(5) The extent to which the proposed drilling location will
unreasonably interfere with present or future coal mining
operations on the surface including, but not limited to,operations subject to the provisions of article three, chapter
twenty-two-a twenty-two of this code;
(6) The feasibility of moving the proposed drilling location
to a mined-out area, below the coal outcrop, or to some other
location;
(7) The feasibility of a drilling moratorium for not more
than one year in order to permit the completion of imminent coal
mining operations;
(8) The methods proposed for the recovery of coal and gas;
(9) The distance limitations established in section eight of
this article;
(10) The practicality of locating the well on a uniform
pattern with other wells;
(11) The surface topography and use; and
(12) Whether the order of the board will substantially
affect the right of the gas operator to explore for and produce
gas.
(d) Any member of the board may file a separate opinion.
Copies of all orders and opinions shall be mailed by the board,
by registered or certified mail, to the parties present or
represented at the hearing.
§22C-8-8. 22-7-8. Distance limitations.
(a) If the well operator and the objecting coal seam owners
present or represented at the time and place fixed by the
chairman chair for consideration of the objections to the
proposed drilling location are unable to agree upon a drillinglocation, then the written order of the board shall direct the
director to refuse to issue a drilling permit unless the
following distance limitations are observed:
(1) For all shallow wells with a depth less than three
thousand feet, there shall be a minimum distance of one thousand
feet from the drilling location to the nearest existing well as
defined in subsection (b) of this section; and
(2) For all shallow wells with a depth of three thousand
feet or more, there shall be a minimum distance of one thousand
five hundred feet from the drilling location to the nearest
existing well as defined in subsection (b) of this section,
except that where the distance from the drilling location to such
nearest existing well is less than two thousand feet but more
than one thousand five hundred feet and a coal seam owner has
objected, the gas operator shall have the burden of establishing
the need for the drilling location less than two thousand feet
from such nearest existing well. Where the distance from the
drilling location proposed by the operator or designated by the
board to the nearest existing well as defined in subsection (b)
of this section is greater than two thousand feet, distance
criterion will not be a ground for objection by a coal seam
owner.
(b) The words "existing well" as used in this section shall
mean means (i) any well not plugged within nine months after
being drilled to its total depth and either completed in the same
target formation or drilled for the purpose of producing from thesame target formation, and (ii) any unexpired, permitted drilling
location for a well to the same target formation.
(c) The minimum distance limitations established by this
section shall not apply if the proposed well be drilled through
an existing or planned pillar of coal required for protection of
a preexisting oil or gas well and the proposed well will neither
require enlargement of such pillar nor otherwise have an adverse
effect on existing or planned coal mining operations.
(d) Nothing in this article shall be construed to empower
the board to order the director to issue a drilling permit to any
person other than the well operator filing the application which
is the subject of the proceedings.
§22C-8-9. 22-7-9. Application to establish a drilling unit;
contents; notice.
(a) Whenever the board has issued an order directing the
director to refuse a drilling permit, the gas operator may apply
to the board for the establishment of a drilling unit
encompassing a contiguous tract or tracts if such gas operator
believes that such a drilling unit will afford one well location
for the production of gas from under the tract on which the
drilling permit was sought, and will be agreeable to the coal
seam owners.
(b) An application to establish a drilling unit shall be
filed with the board and shall contain:
(1) The name and address of the applicant;
(2) A plat prepared by a licensed land surveyor orregistered professional engineer showing the boundary of the
proposed drilling unit, the district and county in which such
unit is located, the acreage of the proposed drilling unit, the
boundary of the tracts which comprise the proposed drilling unit,
the names of the owners of record of each such tract, the
proposed well location on the proposed drilling unit, and the
proposed well location for which the department division refused
to issue a drilling permit;
(3) The names and addresses of the royalty owners of the gas
underlying the tracts which comprise the proposed drilling unit;
(4) The names and addresses of the gas operators of the
tracts which comprise the proposed drilling unit;
(5) The approximate depth and target formation to which the
well for the proposed drilling unit is to be drilled;
(6) A statement indicating whether a voluntary pooling
agreement has been reached among any or all of the royalty owners
of the gas underlying the tracts which comprise the proposed
drilling unit and the gas operators of such tracts;
(7) An affidavit of publication of the notice of intent to
file an application to establish a drilling unit as required in
subsection (c) of this section; and
(8) Such other pertinent and relevant information as the
board may prescribe by reasonable rules and regulations
promulgated in accordance with the provisions of section six of
this article.
(c) Prior to the filing of an application to establish adrilling unit, the applicant shall cause to be published, as a
Class II legal advertisement in accordance with the provisions of
article three, chapter fifty-nine of this code, a notice of
intent to file an application to establish a drilling unit. Such
notice shall contain the information required by subdivisions
(1), (4) and (5), subsection (b) of this section, the name of the
royalty owner of the gas underlying the proposed well location on
the proposed drilling unit, plus an abbreviated description, or,
at the applicant's option, a plat of the drilling unit,
disclosing the county and district wherein the proposed drilling
unit is to be located, the post office closest to the proposed
drilling unit, a statement that the applicant will deliver a copy
of the plat required by subdivision (2) of subsection (b) to any
person desiring the same, the date upon which the applicant
intends to file the application to establish a drilling unit, and
a statement that written protests and objections to such
application may be filed with the board until a specified date,
which date shall be at least ten days after the date upon which
the applicant intends to file the application to establish a
drilling unit. The publication area of the notice required by
this subsection shall be the county or counties in which the
proposed drilling unit is to be located.
(d) At the time an application to establish a drilling unit
is filed, the applicant shall forward a copy thereof by
registered or certified mail to each and every person whose name
and address were included on the application in accordance withthe provisions of subdivisions (3) and (4), subsection (b) of
this section. With each such application there shall be enclosed
a notice (the form for which shall be furnished by the board on
request) addressed to each such person to whom a copy of the
application is required to be sent, informing him the person that
such the application is being mailed to him respectively by
registered or certified mail, pursuant to the requirements of
this article:
Provided,
That the application and notice need not
be forwarded to those royalty owners or gas operators within the
boundary of the proposed drilling unit who have previously agreed
to voluntary pooling by separately stated document or documents
empowering the gas operator, by assignment or otherwise,
unilaterally to declare a unit.
§22C-8-10. 22-7-10. Establishment of drilling units; hearings;
orders.
(a) At the time and place fixed by the chairman chair for
the meeting of the board and for consideration of an application
to establish a drilling unit, the applicant shall present proof
that the drilling location on the proposed drilling unit has been
agreed to by all of the owners of the coal seams underlying such
drilling location; and thereafter the applicant, the royalty
owners of the gas underlying the tracts comprising the unit, and
the gas operators of the tracts comprising the unit, or such of
them as are present or represented, shall hold a conference with
the board to consider the application. Such persons present or
represented at the conference may agree upon the boundary of thedrilling unit as proposed by the applicant or as changed to
satisfy all valid objections of those persons present or
represented. Any change in the boundary of the drilling unit
from the boundary proposed by the applicant shall be shown on the
plat filed with the board as part of the application. If
agreement is reached at the conference upon the boundary of the
drilling unit among the applicants, the royalty owners of the gas
underlying the tracts comprising the drilling unit and the gas
operators of the tracts comprising such unit, or such of them as
are present or represented, and if such agreement is approved by
the board, the board shall issue a written order establishing and
specifying the boundary of the drilling unit.
(b) If the applicant, the royalty owners of the gas
underlying the tracts comprising the drilling unit and the gas
operators of the tracts comprising such unit, or such of them as
are present or represented at the time and place fixed by the
chairman chair for consideration of the application, are unable
to agree upon the boundary of the drilling unit, then the board
shall hold a hearing without recess of more than one business day
to consider the application to establish a drilling unit. All of
the pertinent provisions of article five, chapter twenty-nine-a
of this code shall apply to and govern such hearing. Within
twenty days after the close of the hearing, the board shall issue
a written order either establishing a drilling unit or dismissing
the application. If the board determines to establish a
drilling unit, the order shall specify the boundary of suchdrilling unit. In determining whether to grant or deny an
application to establish a drilling unit, the board shall
consider:
(1) The surface topography and property lines of the lands
comprising the drilling unit;
(2) The correlative rights of all gas operators and royalty
owners therein;
(3) The just and equitable share of production of each gas
operator and royalty owner therein;
(4) Whether a gas operator or royalty owner objecting to the
drilling unit has proved by clear and convincing evidence that
the drilling unit is substantially smaller than the area that
will be produced by the proposed well; and
(5) Other evidence relevant to the establishment of the
boundary of a drilling unit.
(c) The board shall not grant an application to establish a
drilling unit, nor shall it approve any drilling unit, unless the
board finds that:
(1) The applicant has proved that the drilling location on
the drilling unit has been agreed to by all of the owners of the
coal seams underlying such drilling location;
(2) The director has previously refused to issue a drilling
permit on one of the tracts comprising the drilling unit because
of an order of the board;
(3) The drilling unit includes all acreage within the
minimum distance limitations provided by section eight of thisarticle, unless the gas operators and royalty owners of any
excluded acreage have agreed to such exclusion; and
(4) The drilling unit includes a portion of the acreage from
under which the well operator intended to produce gas under the
drilling permit which was refused.
(d) All orders issued by the board under this section shall
contain findings of fact and conclusions based thereon as
required by section three, article five, chapter twenty-nine-a of
this code and shall be filed with the director within twenty days
after the hearing. Any member of the board may file a separate
opinion. Copies of all orders and opinions shall be mailed by
the board, by registered or certified mail, to the parties
present or represented at the hearing.
§22C-8-11. 22-7-11. Pooling of interests in a drilling unit;
limitations.
(a) Whenever the board establishes a drilling unit pursuant
to the provisions of sections nine and ten of this article, the
order establishing such drilling unit shall include an order
pooling the separately owned interests in the gas to be produced
from such drilling unit.
(b) If a voluntary pooling agreement has been reached
between all persons owning separate operating interests in the
tracts comprising the drilling unit, the order of the board shall
approve such agreement.
(c) If no voluntary pooling agreement is reached prior to or
during the hearing held pursuant to subsection (b), section tenof this article, then at such hearing the board shall also
determine the pooling of interests in the drilling unit.
(d) Any order of the board pooling the separately owned
interests in the gas to be produced from the drilling unit shall
be upon terms and conditions which are just and equitable and
shall authorize the production of gas from the drilling unit;
shall designate the applicant as the operator to drill and
operate such gas well; shall prescribe the procedure by which all
owners of operating interests in the pooled tracts or portions of
tracts may elect to participate therein; shall provide that all
reasonable costs and expenses of drilling, completing, equipping,
operating, plugging, abandoning and reclaiming such well shall be
borne, and all production therefrom shared, by all owners of
operating interests in proportion to the net gas acreage in the
pooled tracts owned or under lease to each owner; and shall make
provisions for payment of all reasonable costs thereof, including
all reasonable charges for supervision and for interest on past-
due accounts, by all those who elect to participate therein.
(e) Upon request, any such pooling order shall provide an
owner of an operating interest an election to be made within ten
days from the date of the pooling order, (i) to participate in
the risks and costs of the drilling of the well, or (ii) to
participate in the drilling of the well on a limited or carried
basis on terms and conditions which, if not agreed upon, shall be
determined by the board to be just and equitable. If the
election is not made within the ten-day period, such owner shallbe conclusively presumed to have elected the limited or carried
basis. Thereafter, if an owner of any operating interest in any
portion of the pooled tract shall drill and operate, or pay the
costs of drilling and operating, a well for the benefit of such
nonparticipating owner as provided in the order of the board,
then such operating owner shall be entitled to the share of
production from the tracts or portions thereof pooled accruing to
the interest of such nonparticipating owner, exclusive of any
royalty or overriding royalty reserved with respect to such
tracts or portions thereof, or exclusive of one eighth of the
production attributable to all unleased tracts or portions
thereof, until the market value of such nonparticipating owner's
share of the production, exclusive of such royalty, overriding
royalty or one eighth of production, equals double the share of
such costs payable by or charged to the interest of such
nonparticipating owner.
(f) In no event shall drilling be initiated or completed on
any tract, where the gas underlying such tract has not been
severed from the surface thereof by deed, lease or other title
document, without the written consent of the person who owns such
tract.
(g) All disputes which may arise as to the costs of drilling
and operating a well under a pooling order issued pursuant to
this section shall be resolved by the board within ninety days
from the date of written notification to the board of the
existence of such dispute.
§22C-8-12. 22-7-12. Effect of order establishing drilling unit
or pooling of interests; recordation.
(a) An order issued by the board establishing a drilling
unit and ordering the pooling of interests therein shall not
entitle the gas operator designated in such order to drill a well
on such drilling unit until such gas operator shall have received
a drilling permit in accordance with the provisions applicable to
alternative drilling locations set out in section seventeen,
article one six, chapter twenty-two-b twenty-two of this code.
All orders issued by the board establishing a drilling unit shall
be filed with the director and shall also direct the director to
issue a drilling permit for the drilling location agreed to by
all of the owners of the coal seams underlying such drilling
location.
(b) A certified copy of any order of the board establishing
a drilling unit or a pooling of interests shall be mailed by the
board to the clerk of the county commission of each county
wherein all or any portion of the drilling unit is located, for
recordation in the record book of such county in which oil and
gas leases are normally recorded. Such recordation from the time
noted thereon by such clerk shall be notice of the order to all
persons.
§22C-8-13. 22-7-13. Judicial review; appeal to supreme court of
appeals; legal representation for board.
(a) Any person adversely affected by an order of the board
shall be entitled to judicial review thereof. All of thepertinent provisions of section four, article five, chapter
twenty-nine-a of this code shall apply to and govern such
judicial review with like effect as if the provisions of said
section four were set forth in extenso in this section.
(b) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
(c) Legal counsel and services for the board in all appeal
proceedings in any circuit court and the supreme court of appeals
shall be provided by the attorney general or his assistants and
in any circuit court by the prosecuting attorney of the county as
well, all without additional compensation. The board, with the
written approval of the attorney general, may employ special
counsel to represent the board at any such appeal proceedings.
§22C-8-14. 22-7-14. Operation on drilling units.
All operations including, but not limited to, the
commencement, drilling or operation of a well upon a drilling
unit for which a pooling order has been entered, shall be deemed
for all purposes the conduct of such operations upon each
separately owned tract in the drilling unit by the several owners
thereof. That portion of the production allocated to a
separately owned tract included in a drilling unit shall, when
produced, be deemed for all purposes to have been actually
produced from such tract by a well drilled thereon.
§22C-8-15. 22-7-15. Validity of unit agreements.
No agreement between or among gas operators, lessees or
other owners of gas rights in gas properties, entered into
pursuant to the provisions of this article or with a view to or
for the purpose of bringing about the unitized development or
operation of such properties, shall be held to violate the
statutory or common law of this state prohibiting monopolies or
acts, arrangements, contracts, combinations or conspiracies in
restraint of trade or commerce.
§22C-8-16. 22-7-16. Injunctive relief.
(a) Whenever it appears to the board that any person has
been or is violating or is about to violate any provision of this
article, any rule and regulation promulgated by the board
hereunder or any order or final decision of the board, the board
may apply in the name of the state to the circuit court of the
county in which the violations or any part thereof has occurred,
is occurring or is about to occur, or to the judge thereof in
vacation, for an injunction against such person and any other
persons who have been, are or are about to be, involved in any
practices, acts or omissions, so in violation, enjoining such
person or persons from any such violation or violations. Such
application may be made and prosecuted to conclusion whether or
not any such violation or violations have resulted or shall
result in prosecution or conviction under the provisions of
section seventeen of this article.
(b) Upon application by the board, the circuit courts of
this state may by mandatory or prohibitory injunction compelcompliance with the provisions of this article, the rules and
regulations promulgated by the board hereunder and all orders of
the board. The court may issue a temporary injunction in any
case pending a decision on the merits of any application filed.
Any other section of this code to the contrary notwithstanding,
the state shall not be required to furnish bond or other
undertaking as a prerequisite to obtaining mandatory, prohibitory
or temporary injunctive relief under the provisions of this
article.
(c) The judgment of the circuit court upon any application
permitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil actions.
(d) The board shall be represented in all such proceedings
by the attorney general or his the attorney general's assistants
and in such proceedings in the circuit courts by the prosecuting
attorneys of the several counties as well, all without additional
compensation. The board, with the written approval of the
attorney general, may employ special counsel to represent the
board in any such proceedings.
(e) If the board shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of any
provision of this article, any rule and regulation promulgated by
the board hereunder or any order or final decision of the board,within ten days after receipt of a written request to do so by
any person who is or will be adversely affected by such violation
or threatened violation, the person making such request may apply
in his such person's own behalf for an injunction to enjoin such
violation or threatened violation in any court in which the board
might have brought suit. The board shall be made a party
defendant in such application in addition to the person or
persons violating or threatening to violate any provision of this
article, any rule and regulation promulgated by the board
hereunder or any order of the board. The application shall
proceed and injunctive relief may be granted without bond or
other undertaking in the same manner as if the application had
been made by the chairman chair.
§22C-8-17. 22-7-17. Penalties.
(a) Any person who violates any provision of this article,
any of the rules and regulations promulgated by the board
hereunder or any order of the board other than a violation
governed by the provisions of subsection (b) of this section,
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than one thousand dollars.
(b) Any person who, with the intention of evading any
provision of this article, any of the rules and regulations
promulgated by the board hereunder or any order of the board
shall make or cause to be made any false entry or statement in
any application or other document permitted or required to be
filed under the provisions of this article, any of the rules andregulations promulgated by the board hereunder or any order of
the board, shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than five thousand dollars, or
imprisoned in the county jail not more than six months, or both
fined and imprisoned.
(c) Any person who knowingly aids or abets any other person
in the violation of any provision of this article, any of the
rules and regulations promulgated by the board hereunder or any
order or final decision of the board, shall be subject to the
same penalty as that prescribed in this article for the violation
by such other person.
§22C-8-18. 22-7-18. Construction.
This article shall be liberally construed so as to
effectuate the declaration of public policy set forth in section
one of this article.
§22C-8-19. 22-7-19. Rules, regulations orders and permits remain
in effect.
The rules and regulations promulgated and all orders and
permits in effect upon the effective date of this article
pursuant to the provisions of article four-b seven, of former
chapter twenty-two of this code shall remain in full force and
effect as if such rules, regulations orders and permits were
adopted by the board continued in this article but all such
rules, regulations, orders and permits shall be subject to review
by the board to ensure they are consistent with the purposes and
policies set forth in this chapter and chapter twenty-two-btwenty-two of this code.
ARTICLE 9. OIL AND GAS CONSERVATION.
§22C-9-1. 22-8-1. Declaration of public policy; legislative
findings.
(a) It is hereby declared to be the public policy of this
state and in the public interest to:
(1) Foster, encourage and promote exploration for and
development, production, utilization and conservation of oil and
gas resources; (2) Prohibit waste of oil and gas resources and
unnecessary surface loss of oil and gas and their constituents;
(3) Encourage the maximum recovery of oil and gas; and
(4) Safeguard, protect and enforce the correlative rights of
operators and royalty owners in a pool of oil or gas to the end
that each such operator and royalty owner may obtain his just and
equitable share of production from such pool of oil or gas.
(b) The Legislature hereby determines and finds that oil and
natural gas found in West Virginia in shallow sands or strata
have been produced continuously for more than one hundred years;
that oil and gas deposits in such shallow sands or strata have
geological and other characteristics different than those found
in deeper formations; and that in order to encourage the maximum
recovery of oil and gas from all productive formations in this
state, it is not in the public interest, with the exception of
shallow wells utilized in a secondary recovery program, to enact
statutory provisions relating to the exploration for or
production from oil and gas from shallow wells, as defined insection two of this article, but that it is in the public
interest to enact statutory provisions establishing regulatory
procedures and principles to be applied to the exploration for or
production of oil and gas from deep wells, as defined in said
section two.
§22C-9-2. 22-8-2. Definitions.
(a) Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Commission" means the oil and gas conservation
commission and "commissioner" means the oil and gas conservation
commissioner as provided for in section four of this article;
(2) "Director" means the director for of the division of oil
and gas of environmental protection or provided for in section
eleven, such other person the director has delegated authority or
duties to pursuant to sections six or eight, article one, chapter
twenty-two of this code;
(3) "Person" means any natural person, corporation,
partnership, receiver, trustee, executor, administrator,
guardian, fiduciary or other representative of any kind, and
includes any government or any political subdivision or any
agency thereof;
(4) "Operator" means any owner of the right to develop,
operate and produce oil and gas from a pool and to appropriate
the oil and gas produced therefrom, either for himself such
person or for himself such person and others; in the event that
there is no oil and gas lease in existence with respect to thetract in question, the owner of the oil and gas rights therein
shall be considered as "operator" to the extent of seven eighths
of the oil and gas in that portion of the pool underlying the
tract owned by such owner, and as "royalty owner" as to
one-eighth interest in such oil and gas; and in the event the oil
is owned separately from the gas, the owner of the substance
being produced or sought to be produced from the pool shall be
considered as "operator" as to such pool;
(5) "Royalty owner" means any owner of oil and gas in place,
or oil and gas rights, to the extent that such owner is not an
operator as defined in subdivision (4) of this section;
(6) "Independent producer" means a person who is actively
engaged in the production of oil and gas in West Virginia, but
whose gross revenue from such production in West Virginia does
not exceed five hundred thousand dollars per year;
(7) "Oil" means natural crude oil or petroleum and other
hydrocarbons, regardless of gravity, which are produced at the
well in liquid form by ordinary production methods and which are
not the result of condensation of gas after it leaves the
underground reservoir;
(8) "Gas" means all natural gas and all other fluid
hydrocarbons not defined as oil in subdivision (7) of this
section;
(9) "Pool" means an underground accumulation of petroleum in
a single and separate natural reservoir (ordinarily a porous
sandstone or limestone). It is characterized by a singlenatural-pressure system so that production of petroleum from one
part of the pool affects the reservoir pressure throughout its
extent. A pool is bounded by geologic barriers in all
directions, such as geologic structural conditions, impermeable
strata, and water in the formations, so that it is effectively
separated from any other pools that may be presented in the same
district or on the same geologic structure;
(10) "Well" means any shaft or hole sunk, drilled, bored or
dug into the earth or underground strata for the extraction of
oil or gas;
(11) "Shallow well" means any well drilled and completed in
a formation above the top of the uppermost member of the
"Onondaga Group":
Provided,
That in drilling a shallow well the
operator may penetrate into the "Onondaga Group" to a reasonable
depth, not in excess of twenty feet, in order to allow for
logging and completion operations, but in no event may the
"Onondaga Group" formation be otherwise produced, perforated or
stimulated in any manner;
(12) "Deep well" means any well, other than a shallow well,
drilled and completed in a formation at or below the top of the
uppermost member of the "Onondaga Group";
(13) "Drilling unit" means the acreage on which one well may
be drilled;
(14) "Waste" means and includes: (A) Physical waste, as
that term is generally understood in the oil and gas industry;
(B) the locating, drilling, equipping, operating or producing ofany oil or gas well in a manner that causes, or tends to cause,
a reduction in the quantity of oil or gas ultimately recoverable
from a pool under prudent and proper operations, or that causes
or tends to cause unnecessary or excessive surface loss of oil or
gas; or (C) the drilling of more deep wells than are reasonably
required to recover efficiently and economically the maximum
amount of oil and gas from a pool. Waste does not include gas
vented or released from any mine areas as defined in section one
two, article one-a one, chapter twenty-two-a of this code or from
adjacent coal seams which are the subject of a current permit
issued under article two of chapter twenty-two-a of this code:
Provided,
That nothing in this exclusion is intended to address
ownership of the gas;
(15) "Correlative rights" means the reasonable opportunity
of each person entitled thereto to recover and receive without
waste the oil and gas in and under his tract or tracts, or the
equivalent thereof; and
(16) "Just and equitable share of production" means, as to
each person, an amount of oil or gas or both substantially equal
to the amount of recoverable oil and gas in that part of a pool
underlying his such person's tract or tracts.
(b) Unless the context clearly indicates otherwise, the use
of the word "and" and the word "or" shall be interchangeable, as,
for example, "oil and gas" shall mean oil or gas or both.
§22C-9-3. 22-8-3. Application of article; exclusions.
(a) Except as provided in subsection (b) of this section,the provisions of this article shall apply to all lands located
in this state, however owned, including any lands owned or
administered by any government or any agency or subdivision
thereof, over which the state has jurisdiction under its police
power. The provisions of this article are in addition to and not
in derogation of or substitution for the provisions of article
one six, chapter twenty-two-b twenty-two of this code.
(b) This article shall not apply to or affect:
(1) Shallow wells other than those utilized in secondary
recovery programs as set forth in section eight of this article;
(2) Any well commenced or completed prior to the ninth day
of March, one thousand nine hundred seventy-two, unless such well
is, after completion (whether such completion is prior or
subsequent to that date), (i) deepened subsequent to that date to
a formation at or below the top of the uppermost member of the
"Onondaga Group" or (ii) involved in secondary recovery
operations for oil under an order of the commissioner entered
pursuant to section eight of this article;
(3) Gas storage operations or any well employed to inject
gas into or withdraw gas from a gas storage reservoir or any well
employed for storage observation; or
(4) Free gas rights.
(c) The provisions of this article shall not be construed to
grant to the commissioner authority or power to:
(1) Limit production or output, or prorate production of any
oil or gas well, except as provided in subdivision (6),subsection (a), section seven of this article; or
(2) Fix prices of oil or gas.
§22C-9-4. 22-8-4. Oil and gas conservation commissioner and
commission; commission membership; qualifications of
members; terms of members; vacancies on commission;
meetings; compensation and expenses; appointment and
qualifications of commissioner; general powers and duties.
(a) There is hereby continued as provided for in subsection
(h) of this section, the "West Virginia Oil and Gas Conservation
Commission" which shall be composed of five members. The
commissioner of the department of energy director of the division
of environmental protection and the director chief for of the
division office of oil and gas shall be members of the commission
ex officio. The remaining three members of the commission shall
be appointed by the governor, by and with the advice and consent
of the Senate. Of the three members appointed by the governor,
one shall be an independent producer and at least one shall be a
public member not engaged in full-time employment in an activity
under the jurisdiction of the public service commission or the
federal energy regulatory commission. As soon as practical after
appointment of the members of the commission, the governor shall
call a meeting of the commission to be convened at the state
capitol for the purpose of organizing and electing a chairman
chair.
(b) The members of the commission appointed by the governor
shall be appointed for overlapping terms of six years each,except that the original appointments shall be for terms of two,
four and six years, respectively. Each member appointed by the
governor shall serve until his such person's successor has been
appointed and qualified. Members may be appointed by the
governor to serve any number of terms. The members of the
commission appointed by the governor, before performing any duty
hereunder, shall take and subscribe to the oath required by
section 5, article IV of the constitution of West Virginia.
Vacancies in the membership appointed by the governor shall be
filled by appointment by him the governor for the unexpired term
of the member whose office shall be vacant and such appointment
shall be made by the governor within sixty days of the occurrence
of such vacancy. Any member appointed by the governor may be
removed by the governor in case of incompetency, neglect of duty,
gross immorality or malfeasance in office.
(c) The commission shall meet at such times and places as
shall be designated by the chairman chair. The chairman chair
may call a meeting of the commission at any time, and he the
chairman chair shall call a meeting of the commission upon the
written request of two members or upon the written request of the
oil and gas conservation commissioner. Notification of each
meeting shall be given in writing to each member by the chairman
chair at least five days in advance of the meeting. Any three
members, one of which may be the chairman chair, shall constitute
a quorum for the transaction of any business as herein provided
for. A majority of the commission shall be required to determineany issue brought before it.
(d) Each member of the commission appointed by the governor
shall receive thirty-five dollars per diem not to exceed one
hundred days per calendar year while actually engaged in the
performance of his the duties as a member of the commission.
Each member of the commission shall also be reimbursed for all
reasonable and necessary expenses actually incurred in the
performance of his the duties as a member of the commission.
(e) The commission shall appoint the oil and gas
conservation commissioner, fix his the commissioner's salary
within available funds, and advise him the commissioner regarding
his the duties and authority under this article and consult with
him the commissioner's prior to his reaching any final decisions
and entering orders hereunder. However, the commissioner has
full and final authority under this article with the commission
serving in an advisory capacity to him the commissioner. The
commissioner shall possess a degree from an accredited college or
university in petroleum engineering or geology and must be a
registered professional engineer with particular knowledge and
experience in the oil and gas industry.
(f) The oil and gas commissioner is hereby empowered and it
shall be his the commissioner's duty to execute and carry out,
administer and enforce the provisions of this article in the
manner provided herein. Subject to the provisions of section
three of this article, the commissioner shall have jurisdiction
and authority over all persons and property necessary therefor. The commissioner is authorized to make such investigation of
records and facilities as he the commissioner deems proper. In
the event of a conflict between the duty to prevent waste and the
duty to protect correlative rights, the commissioner's duty to
prevent waste shall be paramount. He The commissioner shall
serve as secretary of the oil and gas conservation commission.
(g) Without limiting his the commissioner's general
authority, the commissioner shall have specific authority to:
(1) Regulate the spacing of deep wells;
(2) Make and enforce reasonable rules and regulations and
orders reasonably necessary to prevent waste, protect correlative
rights, govern the practice and procedure before the commissioner
and otherwise administer the provisions of this article;
(3) Issue subpoenas for the attendance of witnesses and
subpoenas duces tecum for the production of any books, records,
maps, charts, diagrams and other pertinent documents, and
administer oaths and affirmations to such witnesses, whenever,
in the judgment of the commissioner, it is necessary to do so for
the effective discharge of his the commissioner's duties under
the provisions of this article; and
(4) Serve as technical advisor regarding oil and gas to the
Legislature, its members and committees, to the director chief
for of the division office of oil and gas, to the department of
energy division of environmental protection and to any other
agency of state government having responsibility related to the
oil and gas industry.
(h) Pursuant to the provisions of section four, article ten,
chapter four of this code, the oil and gas conservation
commission shall continue to exist until the first day of July,
one thousand nine hundred ninety-three, to allow for the
completion of an audit by the joint committee on government
operations.
§22C-9-5. 22-8-5. Rules; and regulations notice requirements.
(a) The commissioner may promulgate such reasonable rules
and regulations as he the commissioner may deem necessary or
desirable to implement and make effective the provisions of this
article and the powers and authority conferred and the duties
imposed upon him the commissioner under the provisions of this
article and for securing uniformity of procedure in the
administration of the provisions of article three, chapter
twenty-nine-a of this code.
(b) Notwithstanding the provisions of section two, article
seven, chapter twenty-nine-a of this code, any notice required
under the provisions of this article shall be given at the
direction of the commissioner by (1) personal or substituted
service and if such cannot be had then by (2) certified United
States mail, addressed, postage prepaid, to the last-known
mailing address, if any, of the person being served, with the
direction that the same be delivered to addressee only, return
receipt requested, and if there be no known mailing address or if
the notice is not so delivered then by (3) publication of such
notice as a Class II legal advertisement in compliance with theprovisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be the county or
counties wherein any land which may be affected by such order is
situate. In addition, the commissioner shall mail a copy of
such notice to all other persons who have specified to the
commissioner an address to which all such notices may be mailed.
The notice shall issue in the name of the state, shall be signed
by the commissioner, shall specify the style and number of the
proceeding, the time and place of any hearing, and shall briefly
state the purpose of the proceeding. Personal or substituted
service and proof thereof may be made by an officer authorized to
serve process or by an agent of the commissioner in the same
manner as is now provided by the "West Virginia Rules of Civil
Procedure for Trial Courts of Record" for service of process in
civil actions in the various courts of this state. A certified
copy of any pooling order entered under the provisions of this
article shall be presented by the commissioner to the clerk of
the county commission of each county wherein all or any portion
of the pooled tract is located, for recordation in the record
book of such county in which oil and gas leases are normally
recorded. Such recording of such order from the time noted
thereon by such clerk shall be notice of the order to all
persons.
§22C-9-6. 22-8-6. Waste of oil or gas prohibited.
Waste of oil or gas is hereby prohibited.
§22C-9-7. 22-8-7. Drilling units and the pooling of interests
in drilling units in connection with deep oil or gas wells.
(a) Drilling units.
(1) After one discovery deep well has been drilled
establishing a pool, an application to establish drilling units
may be filed with the commissioner by the operator of such
discovery deep well or by the operator of any lands directly and
immediately affected by the drilling of such discovery deep well,
or subsequent deep wells in said pool, and the commissioner shall
promptly schedule a hearing on said application. Each
application shall contain such information as the commissioner
may prescribe by reasonable rules and regulations promulgated by
him the commissioner in accordance with the provisions of section
five of this article.
(2) Upon the filing of an application to establish drilling
units, notice of the hearing shall be given by the commissioner.
Each notice shall specify the date, time and place of hearing,
describe the area for which a spacing order is to be entered, and
contain such other information as is essential to the giving of
proper notice.
(3) On the date specified in such notice, the commissioner
shall hold a public hearing to determine the area to be included
in such spacing order and the acreage to be contained by each
drilling unit, the shape thereof, and the minimum distance from
the outside boundary of the unit at which a deep well may be
drilled thereon. At such hearing the commissioner shall
consider:
(i) The surface topography and property lines of the lands
underlaid by the pool to be included in such order;
(ii) The plan of deep well spacing then being employed or
proposed in such pool for such lands;
(iii) The depth at which production from said pool has been
found;
(iv) The nature and character of the producing formation or
formations, and whether the substance produced or sought to be
produced is gas or oil or both;
(v) The maximum area which may be drained efficiently and
economically by one deep well; and
(vi) Any other available geological or scientific data
pertaining to said pool which may be of probative value to the
commissioner in determining the proper deep well drilling units
therefor.
To carry out the purposes of this article, the commissioner
shall, upon proper application, notice and hearing as herein
provided, and if satisfied after such hearing that drilling units
should be established, enter an order establishing drilling units
of a specified and approximately uniform size and shape for each
pool subject to the provisions of this section.
(4) When it is determined that an oil or gas pool underlies
an area for which a spacing order is to be entered, the
commissioner shall include in his such order all lands determined
or believed to be underlaid by such pool and exclude all other
lands.
(5) No drilling unit established by the commissioner shall
be smaller than the maximum area which can be drained efficiently
and economically by one deep well:
Provided,
That if at the time
of a hearing to establish drilling units, there is not sufficient
evidence from which to determine the area which can be drained
efficiently and economically by one deep well, the commissioner
may enter an order establishing temporary drilling units for the
orderly development of the pool pending the obtaining of
information necessary to determine the ultimate spacing for such
pool.
(6) An order establishing drilling units shall specify the
minimum distance from the nearest outside boundary of the
drilling unit at which a deep well may be drilled. The minimum
distance provided shall be the same in all drilling units
established under said order with necessary exceptions for deep
wells drilled or being drilled at the time of the filing of the
application. If the commissioner finds that a deep well to be
drilled at or more than the specified minimum distance from the
boundary of a drilling unit would not be likely to produce in
paying quantities or will encounter surface conditions which
would substantially add to the burden or hazard of drilling such
deep well, or that a location within the area permitted by the
order is prohibited by the lawful order of any state agency or
court, the commissioner is authorized after notice and hearing to
make an order permitting the deep well to be drilled at a
location within the minimum distance prescribed by the spacingorder. In granting exceptions to the spacing order, the
commissioner may restrict the production from any such deep well
so that each person entitled thereto in such drilling unit shall
not produce or receive more than his just and equitable share of
the production from such pool.
(7) An order establishing drilling units for a pool shall
cover all lands determined or believed to be underlaid by such
pool, and may be modified by the commissioner from time to time,
to include additional lands determined to be underlaid by such
pool or to exclude lands determined not to be underlaid by such
pool. An order establishing drilling units may be modified by
the commissioner to permit the drilling of additional deep wells
on a reasonably uniform pattern at a uniform minimum distance
from the nearest unit boundary as provided above. Any order
modifying a prior order shall be made only after application by
an interested operator and notice and hearing as prescribed
herein for the original order:
Provided,
That drilling units
established by order shall not exceed one hundred sixty acres for
an oil well or six hundred forty acres for a gas well.
(8) After the date of the notice of hearing called to
establish drilling units, no additional deep well shall be
commenced for production from the pool until the order
establishing drilling units has been made, unless the
commencement of the deep well is authorized by order of the
commissioner.
(9) The commissioner shall, within forty-five days after thefiling of an application to establish drilling units for a pool
subject to the provisions of this section, either enter an order
establishing such drilling units or dismiss the application.
(10) As part of the order establishing a drilling unit, the
commissioner shall prescribe just and reasonable terms and
conditions upon which the royalty interests in the unit shall, in
the absence of voluntary agreement, be deemed to be integrated
without the necessity of a subsequent order integrating the
royalty interests.
(b)Pooling of interests in drilling units.
(1) When two or more separately owned tracts are embraced
within a drilling unit, or when there are separately owned
interests in all or a part of a drilling unit, the interested
persons may pool their tracts or interests for the development
and operation of the drilling unit. In the absence of voluntary
pooling and upon application of any operator having an interest
in the drilling unit, and after notice and hearing, the
commissioner shall enter an order pooling all tracts or interests
in the drilling unit for the development and operation thereof
and for sharing production therefrom. Each such pooling order
shall be upon terms and conditions which are just and reasonable,
and in no event shall drilling be initiated on the tract of an
unleased royalty owner without his such owner's written consent.
(2) All operations, including, but not limited to, the
commencement, drilling or operation of a deep well, upon any
portion of a drilling unit for which a pooling order has beenentered, shall be deemed for all purposes the conduct of such
operations upon each separately owned tract in the drilling unit
by the several owners thereof. That portion of the production
allocated to a separately owned tract included in a drilling unit
shall, when produced, be deemed for all purposes to have been
actually produced from such tract by a deep well drilled thereon.
(3) Any pooling order under the provisions of this
subsection (b) shall authorize the drilling and operation of a
deep well for the production of oil or gas from the pooled
acreage; shall designate the operator to drill and operate such
deep well; shall prescribe the time and manner in which all
owners of operating interests in the pooled tracts or portions of
tracts may elect to participate therein; shall provide that all
reasonable costs and expenses of drilling, completing, equipping,
operating, plugging and abandoning such deep well shall be borne,
and all production therefrom shared, by all owners of operating
interests in proportion to the net oil or gas acreage in the
pooled tracts owned or under lease to each owner; and shall make
provisions for payment of all reasonable costs thereof, including
a reasonable charge for supervision and for interest on past-due
accounts, by all those who elect to participate therein.
(4) No drilling or operation of a deep well for the
production of oil or gas shall be permitted upon or within any
tract of land unless the operator shall have first obtained the
written consent and easement therefor, duly acknowledged and
placed of record in the office of the county clerk, for valuableconsideration of all owners of the surface of such tract of land,
which consent shall describe with reasonable certainty, the
location upon such tract, of the location of such proposed deep
well, a certified copy of which consent and easement shall be
submitted by the operator to the commissioner.
(5) Upon request, any such pooling order shall provide just
and equitable alternatives whereby an owner of an operating
interest who does not elect to participate in the risk and cost
of the drilling of a deep well may elect:
(i) Option 1. To surrender his such interest or a portion
thereof to the participating owners on a reasonable basis and for
a reasonable consideration, which, if not agreed upon, shall be
determined by the commissioner; or
(ii) Option 2. To participate in the drilling of the deep
well on a limited or carried basis on terms and conditions which,
if not agreed upon, shall be determined by the commissioner to be
just and reasonable.
(6) In the event a nonparticipating owner elects Option 2,
and an owner of any operating interest in any portion of the
pooled tract shall drill and operate, or pay the costs of
drilling and operating, a deep well for the benefit of such
nonparticipating owner as provided in the pooling order, then
such operating owner shall be entitled to the share of production
from the tracts or portions thereof pooled accruing to the
interest of such nonparticipating owner, exclusive of any royalty
or overriding royalty reserved in any leases, assignments thereofor agreements relating thereto, of such tracts or portions
thereof, or exclusive of one eighth of the production
attributable to all unleased tracts or portions thereof, until
the market value of such nonparticipating owner's share of the
production, exclusive of such royalty, overriding royalty or one
eighth of production, equals double the share of such costs
payable by or charged to the interest of such nonparticipating
owner.
(7) If a dispute shall arise as to the costs of drilling and
operating a deep well, the commissioner shall determine and
apportion the costs, within ninety days from the date of written
notification to the commissioner of the existence of such
dispute.
§22C-9-8. 22-8-8. Secondary recovery of oil; unit operations.
Upon the application of any operator in a pool productive of
oil and after notice and hearing, the commissioner may enter an
order requiring the unit operation of such pool in connection
with a program of secondary recovery of oil, and providing for
the unilization of separately owned tracts and interests within
such pool, but only after finding that: (1) The order is
reasonably necessary for the prevention of waste and the drilling
of unnecessary deep wells; (2) the proposed plan of secondary
recovery will increase the ultimate recovery of oil from the pool
to such an extent that the proposed secondary recovery operation
will be economically feasible; (3) the production of oil from the
unitized pool can be allocated in such a manner as to ensure therecovery by all operators of their just and equitable share of
such production; and (4) the operators of at least three fourths
of the acreage (calculating partial interests on a pro rata basis
for operator interests on any parcel owned in common) and the
royalty owners of at least three fourths of the acreage
(calculating partial interests on a pro rata basis for royalty
interests on any parcel owned in common) in such pool have
approved the plan and terms of unit operation to be specified by
the commissioner in its order, such approval to be evidenced by
a written contract setting forth the terms of the unit operation
and executed by said operators and said royalty owners, and filed
with the commissioner on or before the day set for hearing. The
order requiring such unit operation shall designate one operator
in the pool as unit operator and shall also make provision for
the proportionate allocation to all operators of the costs and
expenses of the unit operation, including reasonable charges for
supervision and interest on past-due accounts, which allocation
shall be in the same proportion that the separately owned tracts
share in the production of oil from the unit. In the absence of
an agreement entered into by the operators and filed with the
commissioner providing for sharing the costs of capital
investment in wells and physical equipment, and intangible
drilling costs, the commissioner shall provide by order for the
sharing of such costs in the same proportion as the costs and
expenses of the unit operation:
Provided,
That any operator who
has not consented to the utilization shall not be required tocontribute to the costs or expenses of the unit operation, or to
the cost of capital investment in wells and physical equipment,
and intangible drilling costs, except out of the proceeds from
the sale of the production accruing to the interest of such
operator:
Provided, however,
That no credit to the well costs
shall be adjusted on the basis of less than the average well
costs within the unitized area:
Provided further,
That no order
entered under the provisions of this section requiring unit
operation shall vary or alter any of the terms of any contract
entered into by operators and royalty owners under the provisions
of this section.
§22C-9-9. 22-8-9. Validity of unit agreements.
No agreement between or among operators, lessees or other
owners of oil or gas rights in oil and gas properties, entered
into pursuant to the provisions of this article or with a view to
or for the purpose of bringing about the unitized development or
operation of such properties, shall be held to violate the
statutory or common law of this state prohibiting monopolies or
acts, arrangements, contracts, combinations or conspiracies in
restraint of trade or commerce.
§22C-9-10. 22-8-10. Hearing procedures.
(a) Upon receipt of an application for an order of the
commissioner for which a hearing is required by the provisions of
this article, the commissioner shall set a time and place for
such hearing not less than ten and not more than thirty days
thereafter. Any scheduled hearing may be continued by thecommissioner upon his the commissioner's own motion or for good
cause shown by any party to the hearing. All interested parties
shall be entitled to be heard at any hearing conducted under the
provisions of this article.
(b) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and
following such hearing, with like effect as if the provisions of
said article five were set forth in extenso in this subsection.
(c) Any such hearing shall be conducted by the commissioner.
For the purpose of conducting any such hearing, the commissioner
shall have the power and authority to issue subpoenas and
subpoenas duces tecum which shall be issued and served within the
time, for the fees and shall be enforced, as specified in section
one, article five of said chapter twenty-nine-a, and all of the
said section one provisions dealing with subpoenas and subpoenas
duces tecum shall apply to subpoenas and subpoenas duces tecum
issued for the purpose of a hearing hereunder.
(d) At any such hearing any interested person may represent
himself themselves or be represented by an attorney-at-law
admitted to practice before any circuit court of this state.
Upon request by the commissioner, he the commissioner shall be
represented at such hearing by the attorney general or his the
attorney general's assistants without additional compensation.
The commissioner, with the written approval of the attorney
general, may employ special counsel to represent the commissionerat any such hearing.
(e) After any such hearing and consideration of all of the
testimony, evidence and record in the case, the commissioner
shall render his a decision in writing. The written decision of
the commissioner shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such decision
and accompanying findings and conclusions shall be served by
certified mail, return receipt requested, upon all interested
persons and their attorney of record, if any.
The decision of the commissioner shall be final unless
reversed, vacated or modified upon judicial review thereof in
accordance with the provisions of section eleven of this article.
§22C-9-11. 22-8-11. Judicial review; appeal to supreme court of
appeals; legal representation for commissioner.
(a) Any person adversely affected by a decision of the
commissioner rendered after a hearing held in accordance with the
provisions of section ten of this article shall be entitled to
judicial review thereof. All of the pertinent provisions of
section four, article five, chapter twenty-nine-a of this code,
shall apply to and govern such judicial review with like effect
as if the provisions of said section four were set forth in
extenso in this section.
(b) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals in accordance with the provisions of section one, articlesix, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section one the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(c) Legal counsel and services for the commissioner in all
appeal proceedings in any circuit court and the supreme court of
appeals shall be provided by the attorney general or his the
attorney general's assistants and in any circuit court by the
prosecuting attorney of the county as well, all without
additional compensation. The commissioner, with the written
approval of the attorney general, may employ special counsel to
represent the commissioner at any such appeal proceedings.
§22C-9-12. 22-8-12. Injunctive relief.
(a) Whenever it appears to the commissioner that any person
has been or is violating or is about to violate any provision of
this article, any reasonable rule and regulation promulgated by
the commissioner hereunder or any order or final decision of the
commissioner, the commissioner may apply in the name of the state
to the circuit court of the county in which the violations or any
part thereof has occurred, is occurring or is about to occur, or
the judge thereof in vacation, for an injunction against such
person and any other persons who have been, are or are about to
be, involved in any practices, acts or omissions, so in
violation, enjoining such person or persons from any such
violation or violations. Such application may be made andprosecuted to conclusion whether or not any such violation or
violations have resulted or shall result in prosecution or
conviction under the provisions of section fourteen of this
article.
(b) Upon application by the commissioner, the circuit courts
of this state may by mandatory or prohibitory injunction compel
compliance with the provisions of this article, the reasonable
rules and regulations promulgated by the commissioner hereunder
and all orders and final decisions of the commissioner. The
court may issue a temporary injunction in any case pending a
decision on the merits of any application filed. Any other
section of this code to the contrary notwithstanding, the state
shall not be required to furnish bond or other undertaking as a
prerequisite to obtaining mandatory, prohibitory or temporary
injunctive relief under the provisions of this article.
(c) The judgment of the circuit court upon any application
permitted by the provisions of this section shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any such appeal shall be sought in the manner and
within the time provided by law for appeals from circuit courts
in other civil actions.
(d) The commissioner shall be represented in all such
proceedings by the attorney general or his the attorney general's
assistants and in such proceedings in the circuit courts by the
prosecuting attorneys of the several counties as well, all
without additional compensation. The commissioner, with thewritten approval of the attorney general, may employ special
counsel to represent the commissioner in any such proceedings.
(e) If the commissioner shall refuse or fail to apply for an
injunction to enjoin a violation or threatened violation of any
provision of this article, any reasonable rule and regulation
promulgated by the commissioner hereunder or any order or final
decision of the commissioner, within ten days after receipt of a
written request to do so by any person who is or will be
adversely affected by such violation or threatened violation, the
person making such request may apply in his own behalf for an
injunction to enjoin such violation or threatened violation in
any court in which the commissioner might have brought suit.
The commissioner shall be made a party defendant in such
application in addition to the person or persons violating or
threatening to violate any provision of this article, any
reasonable rule and regulation promulgated by the commissioner
hereunder or any order or final decision of the commissioner. The
application shall proceed and injunctive relief may be granted
without bond or other undertaking in the same manner as if the
application had been made by the commissioner.
§22C-9-13. 22-8-13. Special oil and gas conservation tax.
Owners of leases on oil and gas for the exploration,
development or production of oil or natural gas shall pay to the
commission a special oil and gas conservation tax of three cents
for each acre under lease, excluding from the tax the first
twenty-five thousand acres. The commission shall deposit withthe treasurer of the state of West Virginia, to the credit of the
special oil and gas conservation fund, all taxes collected
hereunder. The special oil and gas conservation fund shall be a
special fund and shall be administered by the commission for the
sole purpose of carrying out all costs necessary to carry out the
provisions of this article. This tax shall be paid as provided
herein annually on or before the first day of July, one thousand
nine hundred seventy-two, and on or before the first day of July
in each succeeding year.
§22C-9-14. 22-8-14. Penalties.
(a) Any person who violates any provision of this article,
any of the reasonable rules and regulations promulgated by the
commissioner hereunder or any order or any final decision of the
commissioner, other than a violation covered by the provisions of
subsection (b) of this section, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than one
thousand dollars, and each day that a violation continues shall
constitute a new and separate violation.
(b) Any person who, for the purpose of evading any provision
of this article, any of the reasonable rules and regulations
promulgated by the commissioner hereunder or any order or final
decision of the commissioner, shall make or cause to be made any
false entry or statement in a report required under the
provisions of this article, any of the reasonable rules and
regulations promulgated by the commissioner hereunder or any
order or final decision of the commissioner, or shall make orcause to be made any false entry in any record, account or
memorandum required under the provisions of this article, any of
the reasonable rules and regulations promulgated by the
commissioner hereunder or any order or any final decision of the
commissioner, or who shall omit, or cause to be omitted, from any
such record, account or memorandum, full, true and correct
entries, or shall remove from this state or destroy, mutilate,
alter or falsify any such record, account or memorandum, shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than five thousand dollars, or imprisoned in the
county jail not more than six months, or both fined and
imprisoned.
(c) Any person who knowingly aids or abets any other person
in the violation of any provision of this article, any of the
reasonable rules and regulations promulgated by the commissioner
hereunder or any order of final decision of the commissioner,
shall be subject to the same penalty as that prescribed in this
article for the violation by such other person.
§22C-9-15. 22-8-15. Construction. and severability.
Except as provided in subsection (c), section three of this
article, this article shall be liberally construed so as to
effectuate the declaration of public policy set forth in section
one of this article.
If any section, subsection, subdivision, subparagraph,
sentence or clause of this article is adjudged to be
unconstitutional or invalid, such invalidation shall not affectthe validity of the remaining portions of this article, and, to
this end, the provisions of this article are hereby declared to
be severable.
§22C-9-16. 22-8-16. Rules, regulations, orders and permits
remain in effect.
The rules and regulations promulgated and all orders and
permits in effect upon the effective date of this article
pursuant to the provisions of article four-a eight, of former
chapter twenty-two of this code shall remain in full force and
effect as if such rules, regulations, orders and permits were
adopted by the director established in this chapter but all such
rules, regulations, orders and permits shall be are subject to
review by the commissioner to ensure they are consistent with the
purposes and policies set forth in this chapter and chapter
twenty-two-b twenty-two of this code.
ARTICLE 2. 10. INTERSTATE MINING COMPACT.
§22C-10-1. 22-2-1. Enactment of compact.
The "Interstate Mining Compact" is hereby continued in law
and continued in effect with all other jurisdictions legally
joining therein in the form substantially as follows:
INTERSTATE MINING COMPACT
Article I. Findings and Purposes.
(a) The party states find that:
(1) Mining and the contributions thereof to the economy and
well-being of every state are of basic significance.
(2) The effects of mining on the availability of land, waterand other resources for other uses present special problems which
properly can be approached only with due consideration for the
rights and interests of those engaged in mining, those using or
proposing to use these resources for other purposes and the
public.
(3) Measures for the reduction of the adverse effects of
mining on land, water and other resources may be costly and the
devising of means to deal with them are of both public and
private concern.
(4) Such variables as soil structure and composition,
physiography, climatic conditions and the needs of the public
make impracticable to all mining areas of a single standard for
the conservation, adaption or restoration of mined land, or the
development of mineral and other natural resources, but
justifiable requirements of law and practice relating to the
effects of mining on land, water and other resources may be
reduced in equity or effectiveness unless they pertain similarly
from state to state for all mining operations similarly situated.
(5) The states are in a position and have the responsibility
to assure that mining shall be conducted in accordance with sound
conservation principles, and with due regard for local
conditions.
(b) The continuing purposes of this compact are to:
(1) Advance the protection and restoration of land, water
and other resources affected by mining.
(2) Assist in the reduction or elimination or counteractingof pollution or deterioration of land, water and air attributable
to mining.
(3) Encourage, with due recognition of relevant regional,
physical and other differences, programs in each of the party
states which will achieve comparable results in protecting,
conserving and improving the usefulness of natural resources, to
the end that the most desirable conduct of mining and related
operations may be universally facilitated.
(4) Assist the party states in their efforts to facilitate
the use of land and other resources affected by mining, so that
such use may be consistent with sound land use, public health and
public safety, and to this end to study and recommend, wherever
desirable, techniques for the improvement, restoration or
protection of such land and other resources.
(5) Assist in achieving and maintaining an efficient and
productive mining industry and in increasing economic and other
benefits attributable to mining.
Article II. Definitions.
As used in this compact, the term:
(a) "Mining" means the breaking of the surface soil in order
to facilitate or accomplish the extraction or removal of
minerals, ores or other solid matter, any activity or process
constituting all or part of a process for the extraction or
removal of minerals, ores and other solid matter from its
original location, and the preparation, washing, cleaning or
other treatment of minerals, ores or other solid matter so as tomake them suitable for commercial, industrial or construction
use; but shall not include those aspects of deep mining not
having significant effect on the surface, and shall not include
excavation or grading when conducted solely in aid of on-site
farming or construction.
(b) "State" means a state of the United States, the District
of Columbia, the commonwealth of Puerto Rico or a territory or
possession of the United States.
Article III. State Programs.
Each party state agrees that within a reasonable time it
will formulate and establish an effective program for the
conservation and use of mined land, by the establishment of
standards, enactment of laws or the continuing of the same in
force, to accomplish:
(a) The protection of the public and the protection of
adjoining and other landowners from damage to their lands and the
structures and other property thereon resulting from the conduct
of mining operations or the abandonment or neglect of land and
property formerly used in the conduct of such operations.
(b) The conduct of mining and the handling of refuse and
other mining wastes in ways that will reduce adverse effects on
the economic, residential, recreational or aesthetic value and
utility of land and water.
(c) The institution and maintenance of suitable programs for
adaption, restoration and rehabilitation of mined lands.
(d) The prevention, abatement and control of water, air andsoil pollution resulting from mining, present, past and future.
Article IV. Powers.
In addition to any other powers conferred upon the
interstate mining commission, established by Article V of this
compact, such commission shall have power to:
(a) Study mining operations, processes and techniques for
the purpose of gaining knowledge concerning the effects of such
operations, processes and techniques on land, soil, water, air,
plant and animal life, recreation and patterns of community or
regional development or change.
(b) Study the conservation, adaptation, improvement and
restoration of land and related resources affected by mining.
(c) Make recommendations concerning any aspect or aspects of
law or practice and governmental administration dealing with
matters within the purview of this compact.
(d) Gather and disseminate information relating to any of
the matters within the purview of this compact.
(e) Cooperate with the federal government and any public or
private entities having interests in any subject coming within
the purview of this compact.
(f) Consult, upon the request of a party state and within
resources available therefor, with the officials of such state in
respect to any problem within the purview of this compact.
(g) Study and make recommendations with respect to any
practice, process, technique or course of action that may improve
the efficiency of mining or the economic yield from miningoperations.
(h) Study and make recommendations relating to the
safeguarding of access to resources which are or may become the
subject of mining operations to the end that the needs of the
economy for the products of mining may not be adversely affected
by unplanned or inappropriate use of land and other resources
containing minerals or otherwise connected with actual or
potential mining sites.
Article V. The Commission.
(a) There is hereby created an agency of the party states to
be known as the "Interstate Mining Commission," hereinafter
called "the commission." The commission shall be composed of one
commissioner from each party state who shall be the governor
thereof. Pursuant to the laws of his party state, each governor
shall have the assistance of an advisory body (including
membership from mining industries, conservation interests and
such other public and private interests as may be appropriate) in
considering problems relating to mining and in discharging his
responsibilities as the commissioner of his state on the
commission. In any instance where a governor is unable to attend
a meeting of the commission or perform any other function in
connection with the business of the commission, he shall
designate an alternate from among the members of the advisory
body required by this paragraph, who shall represent him and act
in his place and stead. The designation of an alternate shall be
communicated by the governor to the commission in such manner asits bylaws may provide.
(b) The commissioners shall be entitled to one vote each on
the commission. No action of the commission making a
recommendation pursuant to Articles IV (c), IV (g) and IV (h) or
requesting, accepting or disposing of funds, services or other
property pursuant to this paragraph, Article V (g), V (h) or VII
shall be valid unless taken at a meeting at which a majority of
the total number of votes on the commission is cast in favor
thereof. All other action shall be by a majority of those
present and voting:
Provided,
That action of the commission
shall be only at a meeting at which a majority of the
commissioners, or their alternates, is present. The commission
may establish and maintain such facilities as may be necessary
for the transacting of its business. The commission may acquire,
hold and convey real and personal property and any interest
therein.
(c) The commission shall have a seal.
(d) The commission shall elect annually, from among its
members, a chairman, a vice chairman, and a treasurer. The
commission shall appoint an executive director and fix his duties
and compensation. Such executive director shall serve at the
pleasure of the commission. The executive director, the
treasurer and such other personnel as the commission shall
designate shall be bonded. The amount or amounts of such bond or
bonds shall be determined by the commission.
(e) Irrespective of the civil service, personnel or othermerit system laws of any of the party states, the executive
director with the approval of the commission, shall appoint,
remove or discharge such personnel as may be necessary for the
performance of the commission's functions, and shall fix the
duties and compensation of such personnel.
(f) The commission may establish and maintain, independently
or in conjunction with a party state, a suitable retirement
system for its employees. Employees of the commission shall be
eligible for social security coverage in respect of old age and
survivor's insurance:
Provided,
That the commission take such
steps as may be necessary pursuant to the laws of the United
States to participate in such program of insurance as a
governmental agency or unit. The commission may establish and
maintain or participate in such additional programs of employee
benefits as it may deem appropriate.
(g) The commission may borrow, accept or contract for the
services of personnel from any state, the United States or any
other governmental agency, or from any person, firm, association
or corporation.
(h) The commission may accept for any of its purposes and
functions under this compact any and all donations and grants of
money, equipment, supplies, materials and services, conditional
or otherwise, from any state, the United States or any other
governmental agency, or from any person, firm, association or
corporation, and may receive, utilize and dispose of the same.
Any donation or grant accepted by the commission pursuant to thisparagraph or services borrowed pursuant to paragraph (g) of this
article shall be reported in the annual report of the commission.
Such report shall include the nature, amount and conditions, if
any, of the donation, grant or services borrowed and the identity
of the donor or lender.
(i) The commission shall adopt bylaws for the conduct of its
business and shall have the power to amend and rescind these
bylaws. The commission shall publish its bylaws in convenient
form and shall file a copy thereof and a copy of any amendment
thereto with the appropriate agency or officer in each of the
party states.
(j) The commission annually shall make to the governor,
Legislature and advisory body required by Article V (a) of each
party state a report covering the activities of the commission
for the preceding year, and embodying such recommendations as may
have been made by the commission. The commission may make such
additional reports as it may deem desirable.
Article VI. Advisory, Technical and Regional Committees.
The commission shall establish such advisory, technical and
regional committees as it may deem necessary, membership on which
shall include private persons and public officials, and shall
cooperate with and use the services of any such committees and
the organizations which the members represent in furthering any
of its activities. Such committees may be formed to consider
problems of special interest to any party states, problems
dealing with particular commodities or types of miningoperations, problems relating to reclamation, development or use
of mined land or any other matters of concern to the commission.
Article VII. Finance.
(a) The commission shall submit to the governor or
designated officer or officers of each party state a budget of
its estimated expenditures for such periods as may be required by
the laws of that party state for presentation to the Legislature
thereof.
(b) Each of the commission's budgets of estimated
expenditures shall contain specific recommendations of the amount
or amounts to be appropriated by each of the party states. The
total amount of appropriations requested under any such budget
shall be apportioned among the party states as follows: One half
in equal shares, and the remainder in proportion to the value of
minerals, ores and other solid matter mined. In determining such
values, the commission shall employ such available public source
or sources of information as, in its judgment, present the most
equitable and accurate comparisons among the party states. Each
of the commission's budgets of estimated expenditures and
requests for appropriations shall indicate the source or sources
used in obtaining information concerning value of minerals, ores
and other solid matter mined.
(c) The commission shall not pledge the credit of any party
state. The commission may meet any of its obligations, in whole
or in part, with funds available to it under Article V (h) of
this compact:
Provided,
That the commission takes specificaction setting aside such funds prior to incurring any obligation
to be met, in whole or in part, in such manner. Except where the
commission makes use of funds available to it under Article V (h)
hereof, the commission shall not incur any obligation prior to
the allotment of funds by the party states adequate to meet the
same.
(d) The commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of
the commission shall be subject to the audit and accounting
procedures established under its bylaws. All receipts and
disbursements of funds handled by the commission shall be audited
yearly by a qualified public accountant and the report of the
audit shall be included in and become part of the annual report
of the commission.
(e) The accounts of the commission shall be open at any
reasonable time for inspection by duly constituted officers of
the party states and by any persons authorized by the commission.
(f) Nothing contained herein shall be construed to prevent
commission compliance with laws relating to audit or inspection
of accounts by or on behalf of any government contributing to the
support of the commission.
Article VIII. Entry Into Force and Withdrawal.
(a) This compact shall enter into force when enacted into
law by any four or more states. Thereafter, this compact shall
become effective as to any other state upon its enactment
thereof.
(b) Any party state may withdraw from this compact by
enacting a statute repealing the same, but no such withdrawal
shall take effect until one year after the governor of the
withdrawing state has given notice in writing of the withdrawal
to the governors of all other party states. No withdrawal shall
affect any liability already incurred by or chargeable to a party
state prior to the time of such withdrawal.
Article IX. Effect on Other Laws.
Nothing in this compact shall be construed to limit, repeal
or supersede any other law of any party state.
Article X. Construction and Severability.
This compact shall be liberally construed so as to
effectuate the purposes thereof. The provisions of this compact
shall be severable and if any phrase, clause, sentence or
provision of this compact is declared to be contrary to the
constitution of any state or of the United States or the
applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of
this compact and the applicability thereof to any government,
agency, person or circumstance shall not be affected thereby. If
this compact shall be held contrary to the constitution of any
state participating herein, the compact shall remain in full
force and effect as to the remaining party states and in full
force and effect as to the state affected as to all severable
matters.
§22C-10-2. 22-2-2. Bylaws of interstate mining commission.
In accordance with Article V (i) of the interstate mining
compact, the commission shall file copies of its bylaws and any
amendments thereto in the office of the secretary of state of
West Virginia.
§22C-10-3. 22-2-3. Effective date.
This article is effective as of the first day of July, one
thousand nine hundred seventy-two.
ARTICLE 1C. 11. INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN.
§22C-11-1. 29-1C-1. Creation of commission; members; terms;
compact with other political units.
There is hereby created a commission consisting of three
members, to act jointly with commissioners appointed for like
purposes by the commonwealths of Pennsylvania and Virginia, the
state of Maryland, and the District of Columbia, and an
additional three members to be appointed by the president of the
United States, and which, together with the other commissioners
appointed as hereinbefore mentioned, shall constitute and be
known as the "interstate commission on the Potomac River basin."
The said commission of the state of West Virginia shall consist
of three members. The governor, by and with the advice and
consent of the Senate, shall appoint two persons as two of such
commissioners, each of whom shall be a resident and citizen of
this state. The terms of one of the said two commissioners first
appointed shall be three years and of the other shall be six
years; and their successors shall be appointed by the governor,
by and with the advice and consent of the Senate, for terms ofsix years each. Each commissioner shall hold office until his
successor shall be appointed and qualified. Vacancies occurring
in the office of any such commissioner for any reason or cause
shall be filled by appointment by the governor, by and with the
advice and consent of the Senate, for the unexpired term. The
third commissioner from this state
shall be is the
state director
of commissioner of the bureau of public health ex officio, and
the term of
any such the ex officio commissioner
shall terminate
terminates at the time he ceases to hold said office.
of state
director of health, and his successor as a commissioner shall be
his successor as said state director of health. Said ex officio
commissioner may delegate, from time to time, to any deputy or
other subordinate in his
department division or office, the power
to be present and participate, including voting, as his
representative or substitute at any meeting of or hearing by or
other proceeding of the commission. The term of each of the
initial three members shall begin at the date of the appointment
of the two appointive commissioners:
Provided,
That the compact
hereinafter referred to shall then have gone into effect, in
accordance with article six thereof, otherwise to begin upon the
date said compact shall become effective, in accordance with said
article six.
Any commissioner may be removed from office by the governor.
The governor of the state of West Virginia is hereby
authorized and directed to execute a compact on behalf of the
state of West Virginia, with the other states and the districthereinabove referred to, who may by their legislative bodies so
authorize a compact in form substantially as follows:
A COMPACT
Whereas, It is recognized that abatement of existing
pollution and the control of future pollution of interstate
streams can best be promoted through a joint agency representing
the several states located wholly or in part within the area
drained by any such interstate streams; and
Whereas, The Congress of the United States has given its
consent to the states of Maryland and West Virginia, the
commonwealths of Pennsylvania and Virginia, and the District of
Columbia to enter into a compact providing for the creation of a
conservancy district to consist of the drainage basin of the
Potomac River and the main and tributary streams therein, for
"the purpose of regulating, controlling, preventing, or otherwise
rendering unobjectionable and harmless the pollution of the
waters of said Potomac drainage area by sewage and industrial and
other wastes"; and
Whereas, The regulation, control and prevention of pollution
is directly affected by the quantities of water in said streams
and the uses to which such water may be put, thereby requiring
integration and coordination of the planning for the development
and use of the water and associated land resources through
cooperation with, and support and coordination of, the activities
of federal, state, local and private agencies, groups, and
interests concerned with the development, utilization andconservation of the water and associated land resources of the
said conservancy district; now, therefor,
The states of Maryland and West Virginia, the commonwealths
of Pennsylvania and Virginia, and the District of Columbia,
hereinafter designated signatory bodies, do hereby create the
Potomac valley conservancy district, hereinafter designated the
conservancy district, comprising all of the area drained by the
Potomac river and its tributaries; and also, do hereby create, as
an agency of each signatory body, the interstate commission on
the Potomac River basin, hereinafter designated the commission,
under the articles of organization as set forth below.
Article I
The interstate commission on the Potomac River basin shall
consist of three members from each signatory body and three
members appointed by the president of the United States. Said
commissioners, other than those appointed by the president, shall
be chosen in a manner and for the terms provided by law of the
signatory body from which they are appointed, and shall serve
without compensation from the commission but shall be paid by the
commission their actual expenses incurred and incident to the
performance of their duties.
(A) The commission shall meet and organize within thirty
days after the effective date of this compact, shall elect from
its number a chairman and vice chairman, shall adopt suitable
bylaws, shall make, adopt and promulgate such rules and
regulations as are necessary for its management and control, andshall adopt a seal.
(B) The commission shall appoint, and at its pleasure,
remove or discharge such officers and legal, engineering,
clerical, expert and other assistants as may be required to carry
the provisions of this compact into effect, and shall determine
their qualifications and fix their duties and compensation. Such
personnel as may be employed shall be employed without regard to
any civil service or other similar requirements for employees of
any of the signatory bodies. The commission may maintain one or
more offices for the transaction of its business and may meet at
any time within the area of the signatory bodies.
(C) The commission shall keep accurate accounts of all
receipts and disbursements and shall make an annual report
thereof and shall in such report set forth in detail the
operations and transactions conducted by it pursuant to this
compact. The commission, however, shall not incur any
obligations for administrative or other expenses prior to the
making of appropriations adequate to meet the same nor shall it
in any way pledge the credit of any of the signatory bodies.
Each of the signatory bodies reserves the right to make at any
time an examination and audit of the accounts of the commission.
(D) A quorum of the commission shall, for the transaction of
business, the exercise of any powers, or the performance of any
duties, consist of at least six members of the commission who
shall represent at least a majority of the signatory bodies:
Provided, however,
That no action of the commission relating topolicy or stream classification or standards shall be binding on
any one of the signatory bodies unless at least two of the
commissioners from such signatory body shall vote in favor
thereof.
Article II
The commission shall have the power:
(A) To collect, analyze, interpret, coordinate, tabulate,
summarize and distribute technical and other data relative to,
and to conduct studies, sponsor research and prepare reports on,
pollution and other water problems of the conservancy district.
(B) To cooperate with the legislative and administrative
agencies of the signatory bodies, or the equivalent thereof, and
with other commissions and federal, local governmental and
nongovernmental agencies, organizations, groups and persons for
the purpose of promoting uniform laws, rules or regulations for
the abatement and control of pollution of streams and the
utilization, conservation and development of the water and
associated land resources in the said conservancy district.
(C) To disseminate to the public information in relation to
stream pollution problems and the utilization, conservation and
development of the water and associated land resources of the
conservancy district and on the aims, views, purposes and
recommendations of the commission in relation thereto.
(D) To cooperate with, assist, and provide liaison for and
among, public and nonpublic agencies and organizations concerned
with pollution and other water problems in the formulation andcoordination of plans, programs and other activities relating to
stream pollution or to the utilization, conservation or
development of water or associated land resources, and to sponsor
cooperative action in connection with the foregoing.
(E) In its discretion and at any time during or after the
formulation thereof, to review and to comment upon any plan or
program of any public or private agency or organization relating
to stream pollution or the utilization, conservation or
development of water or associated land resources.
(F) (1) To make, and, if needful from time to time, revise
and to recommend to the signatory bodies, reasonable minimum
standards for the treatment of sewage and industrial or other
wastes now discharged or to be discharged in the future to the
streams of the conservancy district, and also, for cleanliness of
the various streams in the conservancy district.
(2) To establish reasonable physical, chemical and
bacteriological standards of water quality satisfactory for
various classifications of use. It is agreed that each of the
signatory bodies through appropriate agencies will prepare a
classification of its interstate waters in the district in
entirety or by portions according to present and proposed highest
use, and for this purpose technical experts employed by
appropriate state water pollution control agencies are authorized
to confer on questions relating to classification of interstate
waters affecting two or more states. Each signatory body agrees
to submit its classification of its interstate waters to thecommission with its recommendations thereon.
The commission shall review such classification and
recommendations and accept or return the same with its comments.
In the event of return, the signatory body will consider the
comments of the commission and resubmit the classification
proposal, with or without amendment, with any additional comments
for further action by the commission.
It is agreed that after acceptance of such classification,
the signatory body through its appropriate state water pollution
control agencies will work to establish programs of treatment of
sewage and industrial wastes which will meet or exceed standards
established by the commission for classified waters. The
commission may from time to time make such changes in definitions
of classifications and in standards as may be required by changed
conditions or as may be necessary for uniformity and in a manner
similar to that in which these standards and classifications were
originally established.
It is recognized, owing to such variable factors as
location, size, character and flow and the many varied uses of
the waters subject to the terms of this compact, that no single
standard of sewage and waste treatment and no single standard of
quality of receiving waters is practical and that the degree of
treatment of sewage and industrial wastes should take into
account the classification of the receiving waters according to
present and proposed highest use, such as for drinking water
supply, bathing and other recreational purposes, maintenance andpropagation of fish life, industrial and agricultural uses,
navigation and disposal of wastes.
Article III
For the purpose of dealing with the problems of pollution
and of water and associated land resources in specific areas
which directly affect two or more, but not all, signatory bodies,
the commission may establish sections of the commissions
consisting of the commissioners from such affected signatory
bodies:
Provided, however,
That no signatory body may be
excluded from any section in which it wishes to participate. The
commissioners appointed by the president of the United States may
participate in any section. The commission shall designate, and
from time to time may change, the geographical area with respect
to which each section shall function. Each section shall, to
such extent as the commission may from time to time authorize,
have authority to exercise and perform with respect to its
designated geographical area any power or function vested in the
commission, and in addition may exercise such other powers and
perform such functions as may be vested in such section by the
laws of any signatory body or by the laws of the United States.
The exercise or performance by a section of any power or function
vested in the commission may be financed by the commission, but
the exercise or performance of powers or functions vested solely
in a section shall be financed through funds provided in advance
by the bodies, including the United States, participating in such
section.
Article IV
The moneys necessary to finance the commission in the
administration of its business in the conservancy district shall
be provided through appropriations from the signatory bodies and
the United States, in the manner prescribed by the laws of the
several signatory bodies and of the United States, and in amounts
as follows:
The pro rata contribution shall be based on such factors as
population; the amount of industrial and domestic pollution; and
a flat service charge; as shall be determined from time to time
by the commission, subject, however, to the approval,
ratification and appropriation of such contribution by the
several signatory bodies.
Article V
Pursuant to the aims and purposes of this compact, the
signatory bodies mutually agree:
1. Faithful cooperation in the abatement of existing
pollution and the prevention of future pollution in the streams
of the conservancy district and in planning for the utilization,
conservation and development of the water and associated land
resources thereof.
2. The enactment of adequate and, insofar as is
practicable, uniform legislation for the abatement and control of
pollution and control and use of such streams.
3. The appropriation of biennial sums on the proportionate
basis as set forth in article four.
Article VI
This compact shall become effective immediately after it
shall have been ratified by the majority of the legislatures of
the states of Maryland and West Virginia, the commonwealths of
Pennsylvania and Virginia, and by the commissioners of the
District of Columbia, and approval by the Congress of the United
States:
Provided, however,
That this compact shall not be
effective as to any signatory body until ratified thereby.
Article VII
Any signatory body may, by legislative action, after one
year's notice to the commission, withdraw from this compact.
§22C-11-2. 29-1C-2. Appointment of alternates.
The governor, by and with the consent of the Senate, shall
appoint an alternate member for the two members of the commission
who are not ex officio, and each alternate shall have power to
act in the absence of the person for whom he is alternate. The
governor shall appoint the first alternates hereunder on or
before July first, one thousand nine hundred forty-nine, the term
of each alternate to run concurrently with the term of the member
for whom he is alternate.
§22C-11-3. 29-1C-3. Expenses of commission; appropriation;
officers and employees; meetings.
The commissioners shall be reimbursed, out of moneys
appropriated for such purposes, all sums which they necessarily
shall expend in the discharge of their duties as members of such
commission.
There shall be appropriated to the commission out of any
moneys in the state treasury unexpended and available therefor,
and not otherwise appropriated, such sums as may be necessary for
the uses and purposes of the commission in carrying out the
provisions of this article and the payment of the proper
proportion of the state of West Virginia of the expenses of the
"interstate commission on the Potomac River basin," in accordance
with article four of said compact.
The commission shall elect from its membership a chairman
and may also select a secretary who need not be a member. The
commission may employ such assistants as it may deem necessarily
required, and the duties of such assistants shall be prescribed
and their compensation fixed by the commission and paid out of
the state treasury out of funds appropriated for such purposes
upon the requisition of said commission.
The commission shall meet at such times and places as agreed
upon by the commissioners or upon call of its chairman.
§22C-11-4. 29-1C-4. Effective date; findings; termination date.
This article shall become effective upon the adoption of
substantially similar amendments to the interstate compact by
each of the signatory states to the compact, and upon the
approval of the amendments to the compact by the Congress of the
United States.
After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, theLegislature hereby finds and declares that West Virginia should
remain a member of the interstate compact. Accordingly,
notwithstanding the provisions of sections four and six, article
ten, chapter four of this code, West Virginia shall continue to
be a member of this compact until the first day of July, one
thousand nine hundred
ninety-two ninety-eight.
§22C-11-5. 29-1C-5. Restrictions.
Neither the governor of the state of West Virginia nor any
member of the commission aforesaid, representing the state of
West Virginia, shall consent to the construction of any dam,
whether in the state of West Virginia, or without this state,
which shall flood lands in this state, without the express
consent of the Legislature.
ARTICLE 1D. 12. OHIO RIVER VALLEY WATER SANITATION COMMISSION.
§22C-12-1. 29-1D-1. Ohio River valley water sanitation compact
approved.
The following Ohio River valley water sanitation compact,
which has been negotiated by representatives of the states of
Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania,
Tennessee and West Virginia, is hereby approved, ratified,
adopted, enacted into law, and entered into by the state of West
Virginia as a party thereto and signatory state, namely:
OHIO RIVER VALLEY WATER SANITATION COMPACT
Whereas, A substantial part of the territory of each of the
signatory states is situated within the drainage basin of the
Ohio River; and
Whereas, The rapid increase in the population of the various
metropolitan areas situate within the Ohio drainage basin, and
the growth in industrial activity within that area, have resulted
in recent years in an increasingly serious pollution of the
waters and streams within the said drainage basin, constituting
a grave menace to the health, welfare, and recreational
facilities of the people living in such basin, and occasioning
great economic loss; and
Whereas, The control of future pollution and the abatement
of existing pollution in the waters of said basin are of prime
importance to the people thereof, and can best be accomplished
through the cooperation of the states situated therein, by and
through a joint or common agency;
Now, Therefore, the states of Illinois, Indiana, Kentucky,
New York, Ohio, Pennsylvania, Tennessee and West Virginia do
hereby covenant and agree as follows:
Article I
Each of the signatory states pledges to each of the other
signatory states faithful cooperation in the control of future
pollution in and abatement of existing pollution from the rivers,
streams and waters in the Ohio River basin which flow through,
into or border upon any of such signatory states, and in order to
effect such object, agrees to enact any necessary legislation to
enable each such state to place and maintain the waters of said
basin in a satisfactory sanitary condition, available for safe
and satisfactory use as public and industrial water suppliesafter reasonable treatment, suitable for recreational usage,
capable of maintaining fish and other aquatic life, free from
unsightly or malodorous nuisances due to floating solids or
sludge deposits, and adaptable to such other uses as may be
legitimate.
Article II
The signatory states hereby create a district to be known as
the "Ohio River valley water sanitation district," hereinafter
called the district, which shall embrace all territory within the
signatory states, the water in which flows ultimately into the
Ohio River, or its tributaries.
Article III
The signatory states hereby create the "Ohio River valley
water sanitation commission," hereinafter called the commission,
which shall be a body corporate, with the powers and duties set
forth herein, and such additional powers as may be conferred upon
it by subsequent action of the respective legislatures of the
signatory states or by act or acts of the Congress of the United
States.
Article IV
The commission shall consist of three commissioners from
each state, each of whom shall be a citizen of the state from
which he is appointed, and three commissioners representing the
United States government. The commissioners from each state
shall be chosen in the manner and for the terms provided by the
laws of the state from which they shall be appointed, and anycommissioner may be removed or suspended from office as provided
by the law of the state from which he shall be appointed. The
commissioners representing the United States shall be appointed
by the president of the United States, or in such other manner as
may be provided by Congress. The commissioners shall serve
without compensation, but shall be paid their actual expenses
incurred in and incident to the performance of their duties; but
nothing herein shall prevent the appointment of an officer or
employee of any state or of the United States government.
Article V
The commission shall elect from its number a chairman and
vice chairman, and shall appoint, and at its pleasure remove or
discharge, such officers and legal, clerical, expert and other
assistants as may be required to carry the provisions of this
compact into effect, and shall fix and determine their duties,
qualifications and compensation. It shall adopt a seal and
suitable bylaws, and shall adopt and promulgate rules and
regulations for its management and control. It may establish and
maintain one or more offices within the district for the
transaction of its business, and may meet at any time or place.
One or more commissioners from a majority of the member states
shall constitute a quorum for the transaction of business.
The commission shall submit to the governor of each state,
at such time as he may request, a budget of its estimated
expenditures for such period as may be required by the laws of
such state for presentation to the legislature thereof.
The commission shall keep accurate books of account, showing
in full its receipts and disbursements, and said books of account
shall be open at any reasonable time to the inspection of such
representatives of the respective signatory states as may be duly
constituted for that purpose.
On or before the first day of December of each year, the
commission shall submit to the respective governors of the
signatory states a full and complete report of its activities for
the preceding year.
The commission shall not incur any obligations of any kind
prior to the making of appropriations adequate to meet the same;
nor shall the commission pledge the credit of any of the
signatory states, except by and with the authority of the
legislature thereof.
Article VI
It is recognized by the signatory states that no single
standard for the treatment of sewage or industrial wastes is
applicable in all parts of the district due to such variable
factors as size, flow, location, character, self-purification,
and usage of waters within the district. The guiding principle
of this compact shall be that pollution by sewage or industrial
wastes originating within a signatory state shall not injuriously
affect the various uses of the interstate waters as hereinbefore
defined.
All sewage from municipalities or other political
subdivisions, public or private institutions, or corporations,discharged or permitted to flow into these portions of the Ohio
River and its tributary waters which form boundaries between, or
are contiguous to, two or more signatory states, or which flow
from one signatory state into another signatory state, shall be
so treated, within a time reasonable for the construction of the
necessary works, as to provide for substantially complete removal
of settleable solids, and the removal of not less than forty-five
percent of the total suspended solids; provided that, in order to
protect the public health or to preserve the waters for other
legitimate purposes, including those specified in article I, in
specific instances such higher degree of treatment shall be used
as may be determined to be necessary by the commission after
investigation, due notice and hearing.
All industrial wastes discharged or permitted to flow into
the aforesaid waters shall be modified or treated, within a time
reasonable for the construction of the necessary works, in order
to protect the public health or to preserve the waters for other
legitimate purposes, including those specified in article I, to
such degree as may be determined to be necessary by the
commission after investigation, due notice and hearing.
All sewage or industrial wastes discharged or permitted to
flow into tributaries of the aforesaid waters situated wholly
within one state shall be treated to that extent, if any, which
may be necessary to maintain such waters in a sanitary and
satisfactory condition at least equal to the condition of the
waters of the interstate stream immediately above the confluence.
The commission is hereby authorized to adopt, prescribe and
promulgate rules, regulations and standards for administering and
enforcing the provisions of this article.
Article VII
Nothing in this compact shall be construed to limit the
powers of any signatory state, or to repeal or prevent the
enactment of any legislation or the enforcement of any
requirement by any signatory state, imposing additional
conditions and restrictions to further lessen or prevent the
pollution of waters within its jurisdiction.
Article VIII
The commission shall conduct a survey of the territory
included within the district, shall study the pollution problems
of the district, and shall make a comprehensive report for the
prevention or reduction of stream pollution therein. In
preparing such report, the commission shall confer with any
national or regional planning body which may be established, and
any department of the federal government authorized to deal with
matters relating to the pollution problems of the district. The
commission shall draft and recommend to the governors of the
various signatory states uniform legislation dealing with the
pollution of rivers, streams, and waters and other pollution
problems within the district. The commission shall consult with
and advise the various states, communities, municipalities,
corporations, persons, or other entities with regard to
particular problems connected with the pollution of waters,particularly with regard to the construction of plants for the
disposal of sewage, industrial and other waste. The commission
shall, more than one month prior to any regular meeting of the
legislature of any state which is a party thereto, present to the
governor of the state its recommendations relating to enactments
to be made by any legislature in furthering the intents and
purposes of this compact.
Article IX
The commission may from time to time, after investigation
and after a hearing, issue an order or orders upon any
municipality, corporation, person, or other entity discharging
sewage or industrial waste into the Ohio River or any other
river, stream or water, any part of which constitutes any part of
the boundary line between any two or more of the signatory
states, or into any stream any part of which flows from any
portion of one signatory state through any portion of another
signatory state. Any such order or orders may prescribe the date
on or before which such discharge shall be wholly or partially
discontinued, modified or treated or otherwise disposed of. The
commission shall give reasonable notice of the time and place of
the hearing to the municipality, corporation or other entity
against which such order is proposed. No such order shall go
into effect unless and until it receives the assent of at least
a majority of the commissioners from each of not less than a
majority of the signatory states; and no such order upon a
municipality, corporation, person or entity in any state shall gointo effect unless and until it receives the assent of not less
than a majority of the commissioners from such state.
It shall be the duty of the municipality, corporation,
person or other entity to comply with any such order issued
against it or him by the commission, and any court of general
jurisdiction or any United States district court in any of the
signatory states shall have the jurisdiction, by mandamus,
injunction, specific performance or other form of remedy, to
enforce any such order against any municipality, corporation or
other entity domiciled or located within such state or whose
discharge of the waste takes place within or adjoining such
state, or against any employee, department or subdivision of such
municipality, corporation, person or other entity; provided,
however, such court may review the order and affirm, reverse or
modify the same upon any of the grounds customarily applicable in
proceedings for court review of administrative decisions. The
commission or, at its request, the attorney general or other law-
enforcing official, shall have power to institute in such court
any action for the enforcement of such order.
Article X
The signatory states agree to appropriate for the salaries,
office and other administrative expenses, their proper proportion
of the annual budget as determined by the commission and approved
by the governors of the signatory states, one half of such amount
to be prorated among the several states in proportion to their
population within the district at the last preceding federalcensus, the other half to be prorated in proportion to their land
area within the district.
Article XI
This compact shall become effective upon ratification by the
legislatures of a majority of the states located within the
district and upon approval by the Congress of the United States;
and shall become effective as to any additional states signing
thereafter at the time of such signing.
In Witness Whereof, the various signatory states have
executed this compact through their respective compact
commissioners.
§22C-12-2. 29-1D-2. Appointment of members of commission; state
director of health member ex officio.
In pursuance of article four of said compact, there shall be
three members of the "Ohio River valley water sanitation
commission" from the state of West Virginia. The governor, by
and with the advice and consent of the Senate, shall appoint two
persons as two of such commissioners, each of whom shall be a
resident and citizen of this state. The terms of one of the said
two commissioners first appointed shall be three years and of the
other shall be six years; and their successors shall be appointed
by the governor, by and with the advice and consent of the Senate
for terms of six years each. Each commissioner shall hold office
until his successor shall be appointed and qualified. Vacancies
occurring in the office of any such commissioner from any reason
or cause shall be filled by appointment by the governor, by andwith the advice and consent of the Senate, for the unexpired
term. The third commissioner from this state
shall be is the
state director of commissioner of the bureau of public health, ex
officio, and the term of
any such the ex officio commissioner
shall terminate terminates at the time he ceases to hold said
office.
of state director of health, and his successor as a
commissioner shall be his successor as said state director of
health. With the exception of the issuance of any order under
the provisions of article nine of the compact, said ex officio
commissioner may delegate, from time to time, to any deputy or
other subordinate in his
department division or office, the power
to be present and participate, including voting, as his
representative or substitute at any meeting of or hearing by or
other proceeding of the commission. The terms of each of the
initial three members shall begin at the date of the appointment
of the two appointive commissioners, provided the said compact
shall then have gone into effect in accordance with article
eleven of the compact; otherwise shall begin upon the date which
said compact shall become effective in accordance with said
article eleven.
Any commissioner may be removed from office by the governor.
§22C-12-3. 29-1D-3. Powers of commission; duties of state
officers, departments, etc.; jurisdiction of circuit courts;
enforcement of article.
There is hereby granted to the commission and commissioners
thereof all the powers provided for in the said compact and allthe powers necessary or incidental to the carrying out of said
compact in every particular. All officers of this state are
hereby authorized and directed to do all things falling within
their respective provinces and jurisdiction necessary to or
incidental to the carrying out of said compact in every
particular; it being hereby declared to be the policy of this
state to perform and carry out the said compact and to accomplish
the purposes thereof. All officers, bureaus, departments and
persons of and in the state government or administration of this
state of West Virginia are hereby authorized and directed at
convenient times and upon request of the said commission to
furnish the said commission with information and data possessed
by them or any of them and to aid said commission by loan of
personnel or other means lying within their legal powers
respectively.
The circuit courts of this state are hereby granted the
jurisdiction specified in article nine of said compact, and the
attorney general or any other law-enforcing officer of this state
is hereby granted the power to institute any action for the
enforcement of the orders of the commission as specified in said
article nine of the compact.
§22C-12-4. 29-1D-4. Powers granted herein supplemental to other
powers vested in commission.
Any powers herein granted to the commission shall be
regarded as in aid of and supplemental to and in no case a
limitation upon any of the powers vested in said commission byother laws of this state or by the laws of the states of
Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania,
Tennessee, or by Congress or the terms of said compact.
§22C-12-5. 29-1D-5. Expenses of commission; appropriations;
officers and employees; meetings.
The commissioners shall be reimbursed out of moneys
appropriated for such purposes, all sums which they necessarily
shall expend in the discharge of their duties as members of such
commission.
There shall be appropriated to the commission out of any
moneys in the state treasury unexpended and available therefor,
and not otherwise appropriated, such sums as may be necessary for
the uses and purposes of the commission in carrying out the
provisions of this article and the payment of the proper
proportion of the state of West Virginia of the annual budget of
the "Ohio River valley water sanitation commission" in accordance
with article ten of said compact.
The commission shall elect from its membership a chairman
and may also select a secretary who need not be a member. The
commission may employ such assistance as it may deem necessarily
required, and the duties of such assistants shall be prescribed
and their compensation fixed by the commission and paid out of
the state treasury out of funds appropriated for such purposes
upon the requisition of said commission.
The commission shall meet at such times and places as agreed
upon by the commissioners or upon call of its chairman.
§22C-12-6. 29-1D-6. When article effective; findings;
continuation.
This article shall take effect and become operative and the
compact be executed for and on behalf of this state only from and
after the approval, ratification, and adoption, and entering into
thereof by the states of New York, Pennsylvania, Ohio, and
Virginia.
After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that West Virginia should
remain a member of the compact. Accordingly, notwithstanding the
provisions of section four, article ten, chapter four of this
code, West Virginia shall continue to be a member of this compact
until the first day of July, one thousand nine hundred ninety-
four.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-2. Disbursement where injury is self-inflicted or
intentionally caused by employer; legislative declarations
and findings; "deliberate intention" defined.
(a) Notwithstanding anything hereinbefore or hereinafter
contained, no employee or dependent of any employee
shall be is
entitled to receive any sum from the workers' compensation fund,
or to direct compensation from any employer making the election
and receiving the permission mentioned in section nine, articletwo of this chapter, or otherwise under the provisions of this
chapter, on account of any personal injury to or death to any
employee caused by a self-inflicted injury or the intoxication of
such employee. For the purpose of this chapter, the commissioner
may cooperate with the
division of energy office of miners'
health, safety and training and the state
department division of
labor in promoting general safety programs and in formulating
rules
and regulations to govern hazardous employments.
(b) If injury or death result to any employee from the
deliberate intention of his
or her employer to produce such
injury or death, the employee, the widow, widower, child or
dependent of the employee
shall have has the privilege to take
under this chapter, and
shall also have has a cause of action
against the employer, as if this chapter had not been enacted,
for any excess of damages over the amount received or receivable
under this chapter.
(c) (1) It is declared that enactment of this chapter and
the establishment of the workers' compensation system in this
chapter was and is intended to remove from the common law tort
system all disputes between or among employers and employees
regarding the compensation to be received for injury or death to
an employee except as herein expressly provided, and to establish
a system which compensates even though the injury or death of an
employee may be caused by his
or her own fault or the fault of a
co-employee; that the immunity established in sections six and
six-a, article two of this chapter, is an essential aspect ofthis workers' compensation system; that the intent of the
Legislature in providing immunity from common law suit was and is
to protect those so immunized from litigation outside the
workers' compensation system except as herein expressly provided;
that, in enacting the immunity provisions of this chapter, the
Legislature intended to create a legislative standard for loss of
that immunity of more narrow application and containing more
specific mandatory elements than the common law tort system
concept and standard of willful, wanton and reckless misconduct;
and that it was and is the legislative intent to promote prompt
judicial resolution of the question of whether a suit prosecuted
under the asserted authority of this section is or is not
prohibited by the immunity granted under this chapter.
(2) The immunity from suit provided under this section and
under section six-a, article two of this chapter, may be lost
only if the employer or person against whom liability is asserted
acted with "deliberate intention". This requirement may be
satisfied only if:
(i) It is proved that such employer or person against whom
liability is asserted acted with a consciously, subjectively and
deliberately formed intention to produce the specific result of
injury or death to an employee. This standard requires a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of (A) conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
negligence, no matter how gross or aggravated; or (C) willful,wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury, or
through special interrogatories to the jury in a jury trial, that
all of the following facts are proven:
(A) That a specific unsafe working condition existed in the
workplace which presented a high degree of risk and a strong
probability of serious injury or death;
(B) That the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by such specific
unsafe working condition;
(C) That such specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly accepted and
well-known safety standard within the industry or business of
such employer, which statute, rule, regulation or standard was
specifically applicable to the particular work and working
condition involved, as contrasted with a statute, rule,
regulation or standard generally requiring safe workplaces,
equipment or working conditions;
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or
death as a direct and proximate result of such specific unsafe
working condition.
(iii) In cases alleging liability under the provisions of
the preceding paragraph (ii):
(A) No punitive or exemplary damages shall be awarded to the
employee or other plaintiff;
(B) Notwithstanding any other provision of law or rule to
the contrary, and consistent with the legislative findings of
intent to promote prompt judicial resolution of issues of
immunity from litigation under this chapter, the court shall
dismiss the action upon motion for summary judgment if it
shall
find finds, pursuant to Rule 56 of the Rules of Civil Procedure
that one or more of the facts required to be proved by the
provisions of subparagraphs (A) through (E) of the preceding
paragraph (ii) do not exist, and the court shall dismiss the
action upon a timely motion for a directed verdict against the
plaintiff if after considering all the evidence and every
inference legitimately and reasonably raised thereby most
favorably to the plaintiff, the court
shall determine determines
that there is not sufficient evidence to find each and every one
of the facts required to be proven by the provisions of
subparagraphs (A) through (E) of the preceding paragraph (ii);
and
(C) The provisions of this paragraph and of each
subparagraph thereof
shall be are severable from the provisionsof each other subparagraph, subsection, section, article or
chapter of this code so that if any provision of a subparagraph
of this paragraph
be is held void, the remaining provisions of
this act and this code
shall remain valid.
(d) The reenactment of this section in the regular session
of the Legislature during the year one thousand nine hundred
eighty-three
shall does not in any way affect the right of any
person to bring an action with respect to or upon any cause of
action which arose or accrued prior to the effective date of such
reenactment.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1b. Additional jurisdiction of commission.
Effective the first day of July, one thousand nine hundred
eighty-eight, in addition to all other powers and duties of the
commission as defined in this article, the commission shall
establish, prescribe and enforce rates and fees charged by
commercial solid waste facilities, as defined in section two,
article
five-f fifteen, chapter
twenty twenty-two of this code,
that are owned or under the direct control of persons or entities
who are regulated under section five, article two, chapter
twenty-four-a of this code. The commission shall establish,
prescribe and enforce rules
and regulations providing for the
safe transportation of solid waste in the state.
(b) The public service commission shall study the
feasibility of incorporating and adopting guidelines for solidwaste collection fees that are based upon the volume of solid
waste generated by any person. This report shall be submitted to
the governor and the members of the Legislature on or before the
first day of January, one thousand nine hundred ninety-three.
§24-2-1c. Certificate of need required for solid waste
facilities; priority of disposal.
(a) Any person who holds a valid permit, compliance order or
administrative order allowing continued operation of a commercial
solid waste facility in this state on the first day of September,
one thousand nine hundred ninety-one, shall submit an application
for a certificate of need with the public service commission, on
forms prescribed by the commission, prior to the first day of
March, one thousand nine hundred ninety-two. The commission
shall grant such application within sixty days after submission
of a complete application.
(b) Any person applying for a permit to construct, operate
or expand a commercial solid waste facility as defined in section
two, article
five-f fifteen, chapter
twenty twenty-two of this
code, or any person seeking a major permit modification from the
division of
natural resources environmental protection first
shall obtain a certificate of need from the public service
commission. Application for such certificate shall be submitted
on forms prescribed by the commission. The commission shall
grant or deny a certificate of need, in accordance with
provisions set forth in this chapter. If the commission grants
a certificate of need, the commission may include conditions notinconsistent with the criteria set forth in this section.
(c) For purposes of subsections (a) and (b) of this section,
a complete application
shall consist consists of the following
and notwithstanding any other provision of this chapter to the
contrary, such information contained in the application provided
by the applicant
shall is not
be confidential and
shall be is
disclosable pursuant to the provisions of chapter twenty-nine-b
of this code:
(1) The names of the owners or operators of the facility
including any officer, director, manager, person owning five
percent or more interest or other person conducting or managing
the affairs of the applicant or of the proposed facility;
(2) The proposed or existing location of the facility;
(3) A description of the geographic area to be served by the
facility;
(4) The anticipated total number of citizens to be served by
the facility;
(5) The average monthly tonnage of solid waste to be
disposed of by the facility;
(6) The total monthly tonnage of solid waste for which the
facility is seeking a permit from the division of
natural
resources environmental protection;
(7) The anticipated lifespan and closure date of the
facility; and
(8) Any other information requested on the forms prescribed
by the public service commission.
(d) In considering whether to grant a certificate of need
the commission shall consider, but
shall is not
be limited to
considering, the following factors:
(1) The total tonnage of solid waste generated within the
county;
(2) The total tonnage of solid waste generated within the
wasteshed;
(3) The current capacity and lifespan of other solid waste
facilities located within the county, if any;
(4) The current capacity and lifespan of other solid waste
facilities located within the wasteshed, if any;
(5) The current capacity and lifespan of other solid waste
facilities located within this state;
(6) The lifespan of the proposed or existing facility;
(7) The cost of transporting solid waste from the points of
generation within the county or wasteshed and the disposal
facility;
(8) The impact of the proposed or existing facility on needs
and criteria contained in the statewide solid waste management
plan; and
(9) Any other criteria which the commission regularly
utilizes in making such determinations.
(e) The public service commission shall deny a certificate
of need upon one or more of the following findings:
(1) The proposed capacity is unreasonable in light of
demonstrated needs;
(2) The location of the facility is inconsistent with the
statewide solid waste management plan;
(3) The location of the facility is inconsistent with any
applicable county or regional solid waste management plan;
(4) The proposed capacity is not reasonably cost effective
in light of alternative disposal sites;
(5) The proposal, taken as a whole, is inconsistent with the
needs and criteria contained in the statewide solid waste
management plan; or
(6) The proposal, taken as a whole, is inconsistent with the
public convenience and necessity.
(f) Any certificates of need granted pursuant to this
section shall be conditioned on acceptance of:
(1) Solid waste generated within the county in which the
facility is or is to be located; and
(2) Solid waste generated within the wasteshed in which the
facility is or is to be located.
(g) An application for a certificate of need shall be
submitted prior to submitting an application for certificate of
site approval in accordance with section
twelve-a twenty-four,
article
nine four, chapter
twenty twenty-two-c of this code.
Upon the decision of the commission to grant or deny a
certificate of need, the commission shall immediately notify the
solid waste management board and the division of
natural
resources environmental protection.
(h) Any party aggrieved by a decision of the commissiongranting or denying a certificate of need may obtain judicial
review thereof in the same manner provided in section one,
article five of this chapter.
(i) No person may sell, lease or transfer a certificate of
need without first obtaining the consent and approval of the
commission pursuant to the provisions of section twelve, article
two of this chapter.
§24-2-1f. Jurisdiction of commission over solid waste
facilities.
Effective the first day of July, one thousand nine hundred
eighty-nine, in addition to all other powers and duties of the
commission as defined in this article, the commission shall
establish, prescribe and enforce rates and fees charged by
commercial solid waste facilities, as defined in subsection (b),
section two, article
nine four, chapter
twenty twenty-two-c of
this code:
Provided,
That an owner of a commercial solid waste
facility that is not in existence on the effective date of this
article eighth day of April, one thousand nine hundred eighty-
nine that has executed or executes an agreement with a county
commission or county or regional solid waste authority,
establishing disposal rates or fees for said county or region,
shall not be subject to the requirements of this chapter upon the
approval of said disposal rates or fees by the commission for the
term of such agreement:
Provided, however,
That any revisions to
rates or fees or any renewals or extensions of said agreement
would be similarly subject to such approval. The purpose of thisprovision is to encourage the development of solid waste disposal
facilities which meet the environmental standards and
requirements of article five-f fifteen of chapter twenty twenty-
two of this code and which provide for quality waste disposal for
the county or region at reasonable rates. If any provisions of
this section shall be held unconstitutional, all commercial solid
waste facilities shall be subject to the jurisdiction of the
commission as provided herein.
§24-2-1h. Additional powers and duties of commission to control
flow of solid waste.
(a) Upon the petition of any county or regional solid waste
authority, motor carrier or solid waste facility, or upon the
commission's own motion, the commission may issue an order that
solid waste generated in the surrounding geographical area of a
solid waste facility and transported for processing or disposal
by solid waste collectors and haulers who are "motor carriers",
as defined in chapter twenty-four-a of this code, be processed or
disposed of at a designated solid waste facility or facilities:
Provided,
That such order shall not include:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by such person in such person's regular business or
personal activities or by persons utilizing the facility on a
cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; or
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director of the division of
natural resources pursuant to the provisions of section four-b
seven, article five-f fifteen, chapter twenty twenty-two of this
code.
(b) In determining whether to issue an order establishing
flow control to a solid waste facility, the commission shall
consider, but shall is not be limited to considering, the nature
and composition of the solid waste, the environmental impact of
controlling the flow of solid waste, the efficient disposal of
solid waste, financial feasibility of proposed or existing solid
waste facilities, the county or region solid waste control plan,
the statewide solid waste control plan and the public convenience
and necessity.
(c) The public service commission shall promulgate rules
providing standards and criteria to effectuate the purposes of
this section.
(d) Notwithstanding any provision of this code to the
contrary, excepting rules of the public service commission from
legislative rule-making review, the public service commission
shall propose a legislative rule in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
which shall mandate that motor carriers transport source-
separated recyclable materials to a recycling facility. Such
legislative rule shall provide, at a minimum, for a separate ratefor the transportation of such materials or that such motor
carriers may contract with a customer to waive the charge for
transporting such materials in exchange for the value of such
materials.
(e) Notwithstanding any provision of this code to the
contrary, the public service commission is hereby authorized to
employ ten persons, who shall be in the classified exempt
service, in addition to any personnel positions otherwise
authorized or allocated to the commission as of the effective
date of this section to facilitate enforcement of duties imposed
upon the commission in the regulation of solid waste disposal
during the second extraordinary session of the Legislature, one
thousand nine hundred ninety-one.
§24-2-4b. Procedures for changing rates of electric and natural
gas cooperatives, local exchange services of telephone
cooperatives and municipally operated public utilities.
(a) The rates and charges of electric cooperatives, natural
gas cooperatives and municipally operated public utilities,
except for municipally operated commercial solid waste facilities
as defined in section two-h two, article five-f fifteen, chapter
twenty twenty-two of this code, and the rates and charges for
local exchange services provided by telephone cooperatives are
not subject to the rate approval provisions of section four or
four-a of this article, but are subject to the limited rate
provisions of this section.
(b) All rates and charges set by electric cooperatives,natural gas cooperatives and municipally operated public
utilities and all rates and charges for local exchange services
set by telephone cooperatives shall be just, reasonable, applied
without unjust discrimination or preference and based primarily
on the costs of providing these services. Such rates and charges
shall be adopted by the electric, natural gas or telephone
cooperative's governing board and in the case of the municipally
operated public utility by municipal ordinance to be effective
not sooner than forty-five days after adoption:
Provided,
That
notice of intent to effect a rate change shall be specified on
the monthly billing statement of the customers of such utility
for the month next preceding the month in which the rate change
is to become effective or the utility shall give its customers,
and in the case of a cooperative, its customers, members and
stockholders, such other reasonable notices as will allow filing
of timely objections to such rate change. Such rates and charges
shall be filed with the commission together with such information
showing the basis of such rates and charges and such other
information as the commission considers necessary. Any change in
such rates and charges with updated information shall be filed
with the commission. If a petition, as set out in subdivision
(1), (2) or (3), subsection (c) of this section, is received and
the electric cooperative, natural gas cooperative, telephone
cooperative or municipality has failed to file with the
commission such rates and charges with such information showing
the basis of rates and charges and such other information as thecommission considers necessary, the suspension period limitation
of one hundred twenty days and the one hundred day period
limitation for issuance of an order by a hearing examiner, as
contained in subsections (d) and (e) of this section, is tolled
until the necessary information is filed. The electric
cooperative, natural gas cooperative, telephone cooperative or
municipality shall set the date when any new rate or charge is to
go into effect.
(c) The commission shall review and approve or modify such
rates upon the filing of a petition within thirty days of the
adoption of the ordinance or resolution changing said rates or
charges by:
(1) Any customer aggrieved by the changed rates or charges
who presents to the commission a petition signed by not less than
twenty-five percent of the customers served by such municipally
operated public utility, or twenty-five percent of the membership
of the electric, natural gas or telephone cooperative residing
within the state; or
(2) Any customer who is served by a municipally operated
public utility and who resides outside the corporate limits and
who is affected by the change in said rates or charges and who
presents to the commission a petition alleging discrimination
between customers within and without the municipal boundaries.
Said petition shall be accompanied by evidence of discrimination;
or
(3) Any customer or group of customers who are affected bysaid change in rates who reside within the municipal boundaries
and who present a petition to the commission alleging
discrimination between said customer or group of customers and
other customers of the municipal utility. Said petition shall be
accompanied by evidence of discrimination.
(d) (1) The filing of a petition with the commission signed
by not less than twenty-five percent of the customers served by
the municipally operated public utility, or twenty-five percent
of the membership of the electric, natural gas or telephone
cooperative residing within the state, under subdivision (1),
subsection (c) of this section, shall suspend the adoption of the
rate change contained in the ordinance or resolution for a period
of one hundred twenty days from the date said rates or charges
would otherwise go into effect, or until an order is issued as
provided herein.
(2) Upon sufficient showing of discrimination by customers
outside the municipal boundaries, or a customer or a group of
customers within the municipal boundaries, under a petition filed
under subdivision (2) or (3), subsection (c) of this section, the
commission shall suspend the adoption of the rate change
contained in the ordinance for a period of one hundred twenty
days from the date said rates or charges would otherwise go into
effect or until an order is issued as provided herein.
(e) The commission shall forthwith appoint a hearing
examiner from its staff to review the grievances raised by the
petitioners. Said hearing examiner shall conduct a publichearing, and shall within one hundred days from the date the said
rates or charges would otherwise go into effect, unless otherwise
tolled as provided in subsection (b) of this section, issue an
order approving, disapproving or modifying, in whole or in part,
the rates or charges imposed by the electric, natural gas or
telephone cooperative or by the municipally operated public
utility pursuant to this section.
(f) Upon receipt of a petition for review of the rates under
the provisions of subsection (c) of this section, the commission
may exercise the power granted to it under the provisions of
section three of this article. The commission may determine the
method by which such rates are reviewed and may grant and conduct
a de novo hearing on the matter if the customer, electric,
natural gas or telephone cooperative or municipality requests
such a hearing.
(g) The commission may, upon petition by a municipality or
electric, natural gas or telephone cooperative, allow an interim
or emergency rate to take effect, subject to future modification,
if it is determined that such interim or emergency rate is
necessary to protect the municipality from financial hardship and
if that financial hardship is attributable solely to the purchase
of the utility commodity sold. In such cases, the commission may
waive the forty-five-day waiting period provided for in
subsection (b) of this section and the one hundred twenty-day
suspension period provided for in subsection (d) of this section.
(h) Notwithstanding any other provision, the commissionshall have has no authority or responsibility with regard to the
regulation of rates, income, services or contracts by municipally
operated public utilities for services which are transmitted and
sold outside of the state of West Virginia.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 2B. WEATHER MODIFICATION.
§29-2B-11. Enforcement of article.
In order to enforce the provisions of this article, the West
Virginia state police shall, on request of the commission, assign
at least one trooper and one investigator to an area where
unlawful cloud seeding is suspected. If such police request the
same, the commission shall assign an airplane and pilot. Air
samples shall be taken by the
West Virginia air pollution control
commission the division of environmental protection if requested
by the state police or the commission. For such enforcement
purposes, the
state department of bureau of public health shall
furnish such technical services as the commission or director may
request.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-5a. Hazardous substance emergency response training
programs.
(a) Within one hundred twenty days of the effective date of
this section, the state fire commission shall promulgate rules
and regulations pursuant to chapter twenty-nine-a of this code
establishing criteria for qualified training programs in
hazardous substance emergency response activities and proceduresfor such qualified training programs to be certified by the state
fire marshal.
(b) For the purposes of this section, "hazardous substance"
means any "hazardous substance" as defined in subsection (g),
section three, article thirty-one, chapter sixteen of this code,
any "chemical substances and materials" listed in the rules or
regulations promulgated by the commissioner of labor pursuant to
section eighteen, article three, chapter twenty-one of this code,
and any "hazardous waste" as defined in
subdivision (7), section
three, article
five-e eighteen, chapter
twenty twenty-two of this
code.
CHAPTER 31. CORPORATIONS.
§31-18-20a. Land development fund.
(a) The board of directors of the housing development fund
may create and establish a special revolving fund of moneys made
available by appropriation, grant, contribution or loan, to be
known as the land development fund and to be governed,
administered and accounted for by the directors, officers and
managerial staff of the housing development fund as a special
purpose account separate and distinct from any other moneys, fund
or funds owned and managed by the housing development fund.
(b) The purpose of the land development fund
shall be is to
provide a source from which the housing development fund may
finance development costs and land development in this state by
making loans or grants therefrom, such loans to be with or
without interest and with such security for repayment as thehousing development fund deems reasonably necessary and
practicable, or by expending moneys therefrom, for development
costs and land development in this state.
(c) The housing development fund may invest and reinvest all
moneys in the land development fund in any investments authorized
under section six of this article, pending the disbursement
thereof in connection with the financing of development costs and
land development in this state.
(d) No loans shall be made by the housing development fund
from the land development fund except in accordance with a
written loan agreement which shall include, but not be limited
to, the following terms and conditions:
(1) The proceeds of all such loans shall be used only for
development costs and land development;
(2) All such loans shall be repaid in full, with or without
interest, as provided in the agreement;
(3) All repayments shall be made concurrent with receipt by
the borrower of the proceeds of a construction loan or mortgage,
as the case may be, or at such other times as the housing
development fund deems reasonably necessary or practicable; and
(4) Specification of such security for repayments upon such
terms and conditions as the housing development fund deems
reasonably necessary or practicable.
(e) No grants shall be made by the housing development fund
from the land development fund except in accordance with a
written grant agreement which shall require that the proceeds ofall such grants shall be used only for development costs or land
development and containing such other terms and provisions as the
housing development fund may require to ensure that the public
purposes of this article are furthered by such grant.
(f) The housing development fund may expend any income from
the financing of development costs and land development with
moneys in the land development fund, and from investment of such
moneys, in payment, or reimbursement, of all expenses of the
housing development fund which, as determined in accordance with
procedures approved by the board of directors of the housing
development fund, are fairly allocable to such financing or its
land-development activities:
Provided,
That no funds from the
land development fund shall be used to carry on propaganda, or
otherwise attempt to influence legislation.
(g) The housing development fund shall create and establish
a special account within the land development fund to be
designated as the "special project account" into which the
housing development fund shall, effective the first day of July,
one thousand nine hundred ninety-two, deposit the sum of ten
million dollars. Such funds shall be governed, administered and
accounted for by the housing development fund as a special
purpose account separate and distinct from any other moneys, fund
or funds owned or managed by the housing development fund. The
sole and exclusive purpose of such account shall be is to provide
a source of funds for the financing of infrastructure projects
including distribution from time to time to the West Virginiawater pollution control revolving fund created pursuant to
section three, article five-i two, chapter twenty twenty-two-c of
this code:
Provided,
That such distribution shall not exceed
five million four hundred fifty thousand dollars; and
distribution from time to time to fund soil conservation
projects:
Provided, however,
That such distribution shall not
exceed four million five hundred fifty thousand dollars. Until
so disbursed, the moneys initially deposited or thereafter from
time to time deposited in such special project account, may be
invested and reinvested by the housing development fund as
permitted under subdivision (8), section six of this article.
Any funds remaining in the special project account on the first
day of July, one thousand nine hundred ninety-five, shall
automatically revert to the general fund of the housing
development fund free of any limitations provided in this
section. The provisions of subsections (c), (d), (e) and (f) of
this section shall do not apply to the special project account
created in this section.
ARTICLE 19. WEST VIRGINIA COMMUNITY INFRASTRUCTURE AUTHORITY.
§31-19-4. West Virginia community infrastructure authority
created; West Virginia community infrastructure board
created; organization of authority and board; appointment
of board members; their term of office, compensation and
expenses; duties and responsibilities of director and staff
of authority.
(a) There is hereby created the West Virginia communityinfrastructure authority. The authority is a governmental
instrumentality of the state and a body corporate. The exercise
by the authority of the powers conferred by this article and the
carrying out of its purposes and duties shall be deemed and held
to be, and are hereby determined to be, are essential
governmental functions and for a public purpose.
The authority shall be controlled, managed and operated by
the five member board known as the West Virginia community
infrastructure board, which is hereby created. The director of
the governor's office of community and industrial West Virginia
development office, or her or his designee, the director of the
department of natural resources division of environmental
protection, or her or his designee, and the commissioner of the
department division highways, or her or his designee, shall be
are members ex-officio of the board. The executive director of
the governor's office of community and industrial West Virginia
development office, or her or his designee, shall be is the ex-
officio chairman chair. Two members of the board shall be
representative of the general public, one of which shall have had
experience or a demonstrated interest in local government. The
two members who are not ex-officio members of the board shall be
appointed by the governor, by and with the advice and consent of
the Senate, for initial terms of three and six years,
respectively. The successor of each such appointed member shall
be appointed for a term of six years in the same manner as the
original appointments were made, except that any person appointedto fill a vacancy occurring prior to the expiration of the term
for which her or his predecessor was appointed shall be appointed
only for the remainder of such term. Each board member shall
serve until the appointment and qualification of her or his
successor. The two appointed board members shall not at any one
time belong to the same political party. Appointed board members
may be reappointed to serve additional terms, not to exceed two
consecutive full terms. All members of the board shall be
citizens of the state. Each appointed member of the board,
before entering upon her or his duties, shall comply with the
requirements of article one, chapter six of this code and give
bond in the sum of twenty thousand dollars in the manner provided
in article two, chapter six of this code. The governor may
remove any board member for cause as provided in article six,
chapter six of this code.
Annually the board shall elect one of its appointed members
as vice-chairman chair, and shall appoint a secretary-treasurer,
who need not be a member of the board. Three members of the
board shall constitute is a quorum and the affirmative vote of
three members shall be is necessary for any action taken by vote
of the board. No vacancy in the membership of the board shall
impair impairs the rights of a quorum by such vote to exercise
all the rights and perform all the duties of the board and the
authority. The person appointed as secretary-treasurer,
including a board member if she or he is so appointed, shall give
bond in the sum of fifty thousand dollars in the manner providedin article two, chapter six of this code.
The executive director of the governor's office of community
and industrial West Virginia development office or her or his
designee, the director of the department of natural resources
division of environmental protection or her or his designee, and
the commissioner of the department division of highways or her or
his designee, shall not receive any compensation for serving as
board members. Each of the two appointed board members of the
board shall receive an annual salary of five thousand dollars,
payable in monthly installments. Each of the five board members
shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of her or his duties as a
member of such board. All such expenses incurred by the board
shall be are payable solely from funds of the authority or from
funds appropriated for such purpose by the Legislature and no
liability or obligation shall be incurred by the authority beyond
the extent for which moneys are available from funds of the
authority or from such appropriations.
(b) There shall be a director of the authority appointed by
the board who shall supervise and manage the community
infrastructure authority, and the governor's office of community
and industrial West Virginia development office shall serve as
the staff for the authority. Except as otherwise provided in
this section, the duties and responsibilities of the director and
of the staff shall be established by the authority. At the
board's discretion, it may provide for the position of generalcounsel, who shall be an employee of the authority, or for the
appointment of special counsel. As the board deems necessary and
desirable, it may at any time elect to change its decision on the
employment or appointment of a counsel.
(c) The director, or her or his designee, may employ or
appoint any staff members in addition to those provided by the
governor's office of community and industrial West Virginia
development office, including general or special counsel if the
position is established by the board. The number of employees
needed, the positions to be filled and their salaries or wages
shall be determined by the director with the approval of the
board, unless the board elects to not require its approval. At
any time the board may elect to change its decision concerning
approval of additional staff hiring and salaries.
(d) The board shall meet at least quarterly, and more often
as it deems necessary. The director and any other staff member
or members as the director deems expedient shall attend board
meetings.
CHAPTER 36. ESTATES IN PROPERTY.
ARTICLE 4. COVENANTS.
§36-4-9a. Cancellation of oil or gas leases for nonpayment of
delay rental; prohibition against maintaining actions or
proceedings in state courts for enforcement of certain oil
or gas leases; rebuttable presumption of intention to
abandon well and well equipment.
Except in the case where operations for the drilling of awell are being conducted thereunder, any undeveloped lease for
oil and/or gas in this state hereafter executed in which the
consideration therein provided to be paid for the privilege of
postponing actual drilling or development or for the holding of
said lease without commencing operations for the drilling of a
well, commonly called delay rental, has not been paid when due
according to the terms of such lease, or the terms of any other
agreement between lessor and lessee, shall be null and void as to
such oil and/or gas unless payment thereof shall be made within
sixty days from the date upon which demand for payment in full of
such delay rental has been made by the lessor upon the lessee
therein, as hereinafter provided, except in such cases where a
bona fide dispute shall exist between lessor and lessee as to any
amount due or entitlement thereto or any part thereof under such
lease.
No person, firm, corporation, partnership or association
shall maintain any action or proceeding in the courts of this
state for the purpose of enforcing or perpetuating during the
term thereof any lease heretofore executed covering oil and/or
gas, as against the owner of such oil and/or gas, or
his the
owner's subsequent lessee, if such person, firm, corporation,
partnership or association has failed to pay to the lessor such
delay rental in full when due according to the terms thereof, for
a period of sixty days after demand for such payment has been
made by the lessor upon such lessee, as hereinafter provided.
The demand for payment referred to in the two precedingparagraphs shall be made by notice in writing and shall be
sufficient if served upon such person, firm, partnership,
association, or corporation whether domestic or foreign, whether
engaged in business or dissolved, by United States registered
mail, return receipt requested, to the lessee's last-known
address.
A copy of such notice, together with the return receipt
attached thereto, shall be filed with the clerk of the county
commission in which such lease is recorded, or in which such oil
and/or gas property is located in whole or in part, and upon
payment of a fee of fifty cents for each such lease, said clerk
shall permanently file such notice alphabetically under the name
of the first lessor appearing in such lease and shall stamp or
write upon the margin of the record in
his the clerk's office of
such lease hereafter executed the words " canceled by notice";
and as to any such lease executed before the enactment of this
statute said clerk shall file such notice as hereinbefore
provided and shall stamp or write upon the margin of the record
of such lease in
his the clerk's office the words "enforcement
barred by notice."
The word "lessor"
shall include includes the original
lessor, as well as
his or its the original lessor's successors in
title to the oil and/or gas involved. The word "lessee"
shall
include includes the original lessee,
his or its the original
lessee's assignee properly of record at the time such demand is
made, and
his or its the original lessee's successors, heirs, orpersonal representatives. No assignee of such lease whose
assignment is not recorded in the proper county shall be heard in
any court of this state to attack the validity or sufficiency of
the notice hereinbefore mentioned.
There
shall be is a rebuttable legal presumption that the
failure of a person, firm, corporation, partnership or
association to produce and sell or produce and use for its own
purpose for a period of greater than twenty-four months,
subsequent to the first day of July, one thousand nine hundred
seventy-nine, oil and/or gas produced from such leased premises
constitutes an intention to abandon any oil and/or gas well and
oil and/or gas well equipment situate on said leased premises,
including casing, rods, tubing, pumps, motors, lines, tanks,
separators, and any other equipment,
or both, used in the
production of any oil and/or gas from any well or wells on said
leasehold estate.
This rebuttable presumption shall not be created in
instances (i) of leases for gas storage purposes, or (ii) where
any shut-in royalty, flat rate well rental, delay rental, or
other similar payment designed to keep an oil or gas lease in
effect or to extend its term has been paid or tendered, or (iii)
where the failure to produce and sell is the direct result of the
interference or action of the owner of such oil and/or gas or his
subsequent lessee or assignee. Additionally, no such presumption
shall be is created when a delay in excess of twenty-four months
occurs because of any inability to sell any oil and/or gasproduced or because of any inability to deliver or otherwise
tender such oil and/or gas produced to any person, firm,
corporation, partnership or association.
In all instances when the owner of such oil and/or gas or
his the owner's subsequent lessee or assignee desires to
terminate the right, interest, or title of any person, firm,
corporation, partnership or association in such oil and/or gas by
utilization of the presumption created in this section, this
presumption may not be utilized except in an action or proceeding
by the owner of the oil and/or gas or
his the owner's lessee or
assignee in an action brought in the circuit court for the
judicial district in which the oil and/or gas property is
partially or wholly located. A certified copy of a final order
of the circuit court shall be mailed by the clerk of such court
to the
deputy director for chief of the office of oil and gas of
the
department of mines as defined in section one, article four,
chapter twenty-two of this code of the division of environmental
protection.
The continuation in force of any such lease after demand for
and failure to pay such delay rental or failure to produce and
sell, or to produce and use oil and gas for a period of twenty-
four months as hereinbefore set forth is deemed by the
Legislature to be opposed to public policy against the general
welfare. If any part of this section shall be declared
unconstitutional such declaration shall not affect any other part
thereof.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-17. Aid by trained hazardous substance response
personnel; immunity from civil liability; definitions.
No person trained in a qualified program of hazardous
substance emergency response certified by the state fire marshal
pursuant to rules and regulations promulgated by authority of
subsection (a), section five-a, article three, chapter twenty-
nine of this code, who in good faith renders advice or assistance
at the scene of an actual or threatened discharge of any
hazardous substance and receives no remuneration for rendering
such advice or assistance, is liable for any civil damages as the
result of any act or omission in rendering such advice or
assistance:
Provided,
That the exemption from liability for
civil damages of this section shall be extended to any such
person who receives reimbursement for out-of-pocket expenses
incurred in rendering such advice or assistance or compensation
from his or her regular employer for the time period during which
he or she was actually engaged in rendering such advice or
assistance but shall is not be extended to any such person who by
his or her act or omission caused or contributed to the cause of
such actual or threatened discharge of any hazardous substance.
For the purposes of this section, "hazardous substance"
means any "hazardous substance" as defined in subsection (g),
section three, article thirty-one, chapter sixteen of this code;any "chemical substances and materials" listed in the rules or
regulations promulgated by the commissioner of labor pursuant to
section eighteen, article three, chapter twenty-one, of this
code; and any "hazardous waste" as defined in subdivision (7),
section three, article five-e eighteen, chapter twenty twenty-two
of this code.
ARTICLE 12A. LEASE AND CONVEYANCE OF MINERAL INTERESTS OWNED BY
MISSING OR UNKNOWN OWNERS OR ABANDONING OWNERS.
§55-12A-2. Definitions.
As used in this article, the following definitions shall
apply:
(1) "Abandoning owner" means any person, vested with title
to any interest in minerals, who is proved to have abandoned the
interest, that is, to have relinquished any right to possess or
enjoy the interest with the expressed intention of terminating
ownership of the interest, but without vesting the ownership in
any other person.
(2) "Development of the minerals" or "mineral development"
means (a) mining coal by any method, or (b) drilling for and
producing oil or gas by conventional techniques, or by enhanced
recovery by injection of fluids of any kind into the producing
formation, or (c) utilization of a gas-bearing formation as an
underground gas storage reservoir within the meaning of article
seven nine, chapter twenty-two of this code, or (d) production of
other minerals by any method.
(3) "Interest in minerals" means any interest, real orpersonal, in coal, oil, gas or any other mineral, for which
interest the property taxes are not delinquent as of the date of
the filing of a petition under this article.
(4) "Surface owner" means any person vested with any
interest in fee in the surface estate overlying the particular
minerals sought to be developed under this article. A surface
owner's rights under this article shall be subject to any deed of
trust or other security instrument, lien, surface lease, easement
or other nonpossessory interest in the surface owned by any other
person; but such persons other than the surface owner shall have
no right to notice and no standing to appear and be heard
hereunder.
(5) "Unknown or missing owner" means any person, vested with
title to any interest in minerals, whose present identity or
location cannot be determined from the records of the clerk of
the county commission, the sheriff, the assessor, and the clerk
of the circuit court in the county in which the interest is
located or by diligent inquiry in the vicinity of the owner's
last known place of residence, and shall include such owner's
heirs, successors and assigns not known to be alive.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-47. Dams or obstructions in watercourses; penalty.
No person
shall may fell any timber and permit the same to
remain in any navigable or floatable stream of this state when to
do so
shall obstruct obstructs the passage of boats, rafts,staves, ties or timber of any kind.
Except as may be provided in chapter twenty
or twenty-two of
this code, no person
shall may construct or maintain any dam or
other structure in any stream or watercourse, which
shall in any
way
prevent or obstruct prevents or obstructs the free and easy
passage of fish up or down such stream or watercourse, without
first providing as a part of such dam or other structure a
suitable fish ladder, way or flume, so constructed as to allow
fish easily to ascend or descend the same; which ladder, way or
flume shall be constructed only upon plans, in a manner, and at
a place, satisfactory to the
department division of natural
resources:
Provided,
That if the director of the department
division of natural resources determines that there is no
substantial fish life in such stream or watercourse, or that the
installation of a fish ladder, way or flume would not facilitate
the free and easy passage of fish up or down a stream or
watercourse, or that an industrial development project requires
the construction of such dam or other structure and the
installation of an operational fish ladder, way or flume is
impracticable, he the director may, in writing, permit the
construction or maintenance of a dam or other structure in a
stream or watercourse without providing a suitable fish ladder,
way or flume; and in all navigable and floatable streams
provisions shall be made in such dam or structure for the passage
of boats and other crafts, logs and other materials:
Provided,
however,
That this section shall does not relieve such personfrom liability for damage to any riparian owner on account of the
construction or maintenance of such dam.
Any person who shall violate violates any of the provisions
of this section shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not exceeding one thousand
dollars, or imprisoned in the county jail not exceeding one year,
or both fined and imprisoned, and, whether a conviction be is had
under this section or not, such violation shall be deemed is a
nuisance, which may be abated at the suit of any citizen or
taxpayer, the county court commission of the county, or, as to
fish ladders, at the suit of the director of the department
division of natural resources, and, if the same endangers county
roads, the county court commission may abate such nuisance
peaceably without such suit.
NOTE: The purpose of this bill is to provide for the
organization, administration and codification of the Division of
Environmental Protection. The bill consolidates the regulatory
programs of the Division into a single chapter in the Code
(Chapter 22) containing the following new articles:
PROPOSEDCURRENT
§22-2-Abandoned Mine Lands and Regulatory§22-3
Reclamation Act.
§22-3-Surface Coal Mining and Reclamation.§22A-3
§22-4-Surface Mining and Reclamation of
Minerals Other Than Coal.§22A-4
§22-5-Air Pollution Control.§16-20
§22-6-Division of Oil and Gas; Oil and Gas
Wells; Administration; Enforcement.§22B-1
§22-7-Oil and Gas Production Damage
Compensation.§22B-2
§22-8-Transportation of Oils§22B-3
§22-9-Underground Gas Storage Reservoirs.§22B-4
§22-10-Abandoned Well Act.§22B-5
§22-11-Water Pollution Control Act.§20-5;
§20-5A
§22-12-Groundwater Protection Act.§20-5M
§22-13-Natural Streams Preservation Act.§20-5B
§22-14-Dam Control Act.§20-5D
§22-15-Solid Waste Management Act.§20-5F
§22-16-Solid Waste Landfill Closure
Assistance Program.§20-5N
§22-17-Underground Storage Tank Act.§20-5H
§22-18-Hazardous Waste Management Act.§20-5E
§22-19-Hazardous Waste Emergency Response
Fund.§20-5G
CHAPTER 22A
The several articles relating to the Office of Miners'
Health, Safety and Training are moved to Chapter 22A. This
chapter contains all of the programs of the Office of Miners'
Health, Safety and Training contained in existing chapters 22 and
22A.
CHAPTER 22B
The bill renames: (1) the Air Pollution Control Commission
- the Air Quality Board; (2) the Water Resources Board - the
Environmental Quality Board; and (3) the Reclamation Board of
Review - the Surface Mine Board. It consolidates provisions that
are common to all three boards.
CHAPTER 22C
A new chapter - 22C is created for the following
miscellaneous boards, authorities, commissions and compacts that
are related to the division:
PROPOSEDCURRENT
§22C-1-Water Development Authority.§20-5C
§22C-2-Water Pollution Control Revolving
Fund Act.§20-5I
§22C-3-Solid Waste Management Board§16-26
§22C-4-County and Regional Solid Waste
Authorities§20-9
§22C-5-Commercial Hazardous Waste Management
Facility Siting Board.§20-10
§22C-6-Hazardous Waste Facility Siting
Approval.§20-10A
§22C-7-Oil and Gas Inspectors' Examining
Board.§22-13
§22C-8-Shallow Gas Well Review Board.§22-7
§22C-9-Oil and Gas Conservation Commission.§22-8
§22C-10-Interstate Mining Compact.§22-2
§22C-11-Interstate Commission on the Potomac
River Basin.§29-1C
§22C-12-Ohio River Valley Water Sanitation
Commission.§29-1D
Other sections of the Code are amended to correct references
to positions, divisions, programs or code cites due to their
reorganization pursuant to the bill.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Chapter 22B has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
Following is cross reference list showing current code
sections and their corresponding citations in the bill. When
current code sections have been omitted from the bill but the
substance of the sections is included in the bill the list refers
to the new section by using the word "See".
CODE SECTION CROSS REFERENCE LIST
CURRENTPROPOSED CURRENT PROPOSED
16-20-122-5-1
16-20-222-5-2
16-20-322-5-3
16-20-4See 22B-2-1
16-20-522-5-4
16-20-622-5-5
16-20-7See 22B-1-9 &
22B-2-3
16-20-822-5-6
16-20-922-5-7
16-20-1022-5-8
16-20-1122-5-9
16-20-1222-5-10
16-20-1322-5-11
16-20-1422-5-12
16-20-1522-5-13
16-20-122-5-14
16-20-17See 22B-2-3
16-20-1822-5-15
16-20-192-5-16
16-20-20See Current
2-2-10(cc)
16-26-122C-3-1
16-26-222C-3-2
16-26-322C-3-3
|
16-26-422C-3-4
16-26-522C-3-5
16-26-622C-3-6
16-26-6a22C-3-7
16-26-722C-3-8
16-26-822C-3-9
16-26-9Repealed
16-26-1022C-3-10
16-26-1122C-3-11
16-26-1222C-3-12
16-26-1322C-3-13
16-26-1422C-3-14
16-26-1522C-3-15
16-26-1622C-3-16
16-26-1722C-3-17
16-26-1822C-3-18
16-26-1922C-3-19
16-26-2022C-3-20
16-26-2122C-3-21
16-26-2222C-3-22
16-26-2322C-3-23
16-26-2422C-3-24
16-26-2522C-3-25
|
CURRENT
PROPOSED CURRENT PROPOSED
|
20-5-1Repealed
20-5-1aSee 22-11-1
20-5-2See 22-11-3
20-5-3See 22B-1-4
& 22B-3-1
20-5-422-11-28
20-5-5See 22-11-4
20-5-6Repealed
20-5-7Repealed
20-5-8Repealed
20-5-9Repealed
20-5-10Repealed
20-5-11Repealed
20-5-12Repealed
20-5-13Repealed
20-5-1422-11-5
20-5-1520-7-28
20-5-16See Current
2-2-10(cc)
20-5A-122-11-2
20-5A-222-11-3
20-5A-322-11-4
20-5A-3a22-11-6
20-5A-422-11-7
20-5A-522-11-8
20-5A-622-11-9
20-5A-6a22-11-10
20-5A-722-11-11
20-5A-822-11-12
20-5A-8a22-11-13
20-5A-8bRepealed but
see
22-11-11 (b)
20-5A-922-11-14
20-5A-1022-11-15
20-5A-1122-11-16
20-5A-11a22-11-17
20-5A-1222-11-18
20-5A-12a22-11-19
20-5A-1422-11-20
20-5A-1522-11-21
20-5A-16See 22B-1-7 &
9
& 22B-3-3
20-5A-1722-11-22
20-5A-1822-11-23
20-5A-1922-11-24
20-5A-19a22-11-25
20-5A-2022-11-26
20-5A-2122-11-1
20-5A-2222-11-27
20-5A-23Repealed
|
20-5A-24See current
2-2-10(cc)
20-5B-122-13-2
20-5B-222-13-3
20-5B-322-13-4
20-5B-422-13-5
20-5B-522-13-6
20-5B-622-13-7
20-5B-722-13-8
20-5B-822-13-9
20-5B-922-13-10 &
See 22B-1-7
20-5B-1022-13-11
20-5B-11See 22B-1-9 &
22B-3-3
20-5B-1222-13-12
20-5B-1322-13-13
20-5B-1422-13-14
20-5B-1522-13-15
20-5B-1622-13-1
20-5B-17See current
2-2-10(cc)
20-5C-122C-1-1
20-5C-222C-1-2
20-5C-322C-1-3
20-5C-422C-1-4
20-5C-522C-1-5
20-5C-622C-1-6
20-5C-6a22C-1-7
20-5C-722C-1-8
20-5C-822C-1-9
20-5C-922C-1-10
20-5C-9a22C-1-11
20-5C-1022C-1-12
20-5C-1122C-1-13
20-5C-1222C-1-14
20-5C-1322C-1-15
20-5C-1422C-1-16
20-5C-1522C-1-17
20-5C-1622C-1-18
20-5C-16a22C-1-19
20-5C-16b22C-1-20
20-5C-1722C-1-21
20-5C-1822C-1-22
20-5C-1922C-1-23
20-5C-2022C-1-24
20-5C-2122C-1-25
20-5C-2222C-1-26
20-5C-23See current
2-2-10(cc)
20-5C-2422C-1-27
20-5D-122-14-1
|
20-5D-222-14-2
20-5D-322-14-3
20-5D-422-14-4
20-5D-522-14-5
20-5D-622-14-6
20-5D-722-14-7
20-5D-822-14-8
20-5D-922-14-9
20-5D-1022-14-10
20-5D-1122-14-11
20-5D-1222-14-12
20-5D-1322-14-13
20-5D-1422-14-14
20-5D-1522-14-15
20-5D-1622-14-16
20-5D-1722-14-17
20-5D-1822-14-18
20-5D-19Repealed
20-5E-122-18-1
20-5E-222-18-2
20-5E-322-18-3
20-5E-422-18-4
20-5E-522-18-5
20-5E-622-18-6
20-5E-722-18-7
20-5E-822-18-8
20-5E-8a22-18-9
20-5E-922-18-10
20-5E-1022-18-11
20-5E-1122-18-12
20-5E-1222-18-13
20-5E-1322-18-14
20-5E-1422-18-15
20-5E-1522-18-16
20-5E-1622-18-17
20-5E-1722-18-18
20-5E-1822-18-19
20-5E-1922-18-20 &
See 22B-1-7
20-5E-2022-18-21
20-5E-2122-18-22
20-5E-2222-18-23
20-5E-2322-18-24
20-5E-2422-18-25
20-5E-25Repealed
20-5F-122-15-1
20-5F-222-15-2
20-5F-2a22-15-3
20-5F-322-15-4
20-5F-422-15-5
20-5F-4a22-15-6
20-5F-4b22-15-7
|
20-5F-4c22-15-8
20-5F-4d22-15-9
20-5F-522-15-10
20-5F-5a22-15-11
20-5F-5b22-15-12
20-5F-5c22-15-13
20-5F-5d22-15-14
20-5F-622-15-15
20-5F-722-15-16
20-5F-822-15-17
20-5F-922-15-18
20-5F-1022-15-19
20-5F-11Repealed
20-5F-1222-15-20
20-5G-122-19-1
20-5G-222-19-2
20-5G-322-19-3
20-5G-422-19-4
20-5G-522-19-5
20-5G-622-19-6
20-5H-122-17-1
20-5H-222-17-2
20-5H-322-17-3
20-5H-422-17-4
20-5H-522-17-5
20-5H-622-17-6
20-5H-722-17-7
20-5H-822-17-8
20-5H-922-17-9
20-5H-1022-17-10
20-5H-1122-17-11
20-5H-1222-17-12
20-5H-1322-17-13
20-5H-1422-17-14
20-5H-1522-17-15
20-5H-1622-17-16
20-5H-1722-17-17
20-5H-1822-17-18 &
See 22B-1-7
20-5H-1922-17-19
20-5H-2022-17-20
20-5H-2122-17-21
20-5H-2222-17-22
20-5H-2322-17-23
20-5I-122C-2-1
20-5I-222C-2-2
20-5I-322C-2-3
20-5I-422C-2-4
20-5I-522C-2-5
20-5I-622C-2-6
20-5I-722C-2-7
20-5I-822C-2-8
|
20-5M-122-12-1
20-5M-222-12-2
20-5M-322-12-3
20-5M-422-12-4
20-5M-522-12-5
20-5M-622-12-6
20-5M-722-12-7
20-5M-822-12-8
20-5M-922-12-9
20-5M-1022-12-10
20-5M-1122-12-11
20-5M-1222-12-12
20-5M-1322-12-13
20-5M-14Repealed
20-5M-1522-12-14
20-5M-16See current
2-2-10(cc)
20-5N-122-16-1
20-5N-222-16-2
20-5N-322-16-3
20-5N-422-16-4
20-5N-4a22-16-5
20-5N-4b22-16-6
20-5N-4c22-16-7
20-5N-4d22-16-8
20-5N-4e22-16-9
20-5N-522-16-10
20-5N-622-16-11
20-5N-722-16-12
20-5N-822-16-13
20-5N-922-16-14
20-5N-1022-16-15
20-5N-1122-16-16
20-5N-1222-16-17
20-5N-1322-16-18
20-9-122C-4-1
20-9-222C-4-2
20-9-322C-4-3
20-9-422C-4-4
20-9-522C-4-5
20-9-5a22C-4-6
20-9-622C-4-7
20-9-722C-4-8
20-9-822C-4-9
20-9-922C-4-10
20-9-1022C-4-11
20-9-10a22C-4-12
20-9-10b22C-4-13
20-9-10c22C-4-14
20-9-10d22C-4-15
20-9-10e22C-4-16
20-9-10f22C-4-17
|
20-9-10g22C-4-18
20-9-10h22C-4-19
20-9-10i22C-4-20
20-9-10j22C-4-21
20-9-1122C-4-22
20-9-1222C-4-23
20-9-12a22C-4-24
20-9-12b22C-4-25
20-9-12c22C-4-26
20-9-12d22C-4-27
20-9-12e22C-4-28
20-9-12f22C-4-29
20-9-1322C-4-30
20-10-122C-5-2
20-10-222C-5-3
20-10-322C-5-4
20-10-422C-5-5
20-10-522C-5-6
20-10-622C-5-7
20-10-722C-5-8
20-10-822C-5-1
20-10A-122C-6-1
20-10A-222C-6-2
20-10A-322C-6-3
22-1-122-1-1
22-1-222-1-2
22-1-322-1-4
22-1-422-1-5
22-1-522-1-6
22-1-622-1-8
22-1-7Repealed
22-1-8Repealed
22-1-9Repealed
22-1-10Repealed
22-1-11Repealed
22-1-12Repealed
22-1-1322-1-3
22-1-1422-1-10
22-1-1522-1-10
22-1-1622-1-11
22-1-17Repealed but
see 22-1-9
22-1-1822-3-32
22-1-19Repealed
22-2-122C-10-1
22-2-222C-10-2
22-2-322C-10-3
22-3-122-2-1
22-3-222-2-2
22-3-322-2-3
22-3-422-2-4
22-3-522-2-5
|
22-3-622-2-6
22-3-722-2-7
22-3-822-2-8
22-3-922-2-9
22-4-1See 22B-4-1
22-4-2and
22-4-322B-1
22-5-122A-5-1
22-6-122A-6-1
22-6-222A-6-2
22-6-322A-6-3
22-6-422A-6-4
22-6-4a22A-6-5
22-6-4b22A-6-6
22-6-4c22A-6-7
22-6-522A-6-8
22-6-622A-6-9
22-6-722A-6-10
22-7-122C-8-1
22-7-222C-8-2
22-7-322C-8-3
22-7-422C-8-4
22-7-522C-8-5
22-7-622C-8-6
22-7-722C-8-7
22-7-822C-8-8
22-7-922C-8-9
22-7-1022C-8-10
22-7-1122C-8-11
22-7-1222C-8-12
22-7-1322C-8-13
22-7-1422C-8-14
22-7-1522C-8-15
22-7-1622C-8-16
22-7-1722C-8-17
22-7-1822C-8-18
22-7-1922C-8-19
22-8-122C-9-1
22-8-222C-9-2
22-8-322C-9-3
22-8-422C-9-4
22-8-522C-9-5
22-8-622C-9-6
22-8-722C-9-7
22-8-822C-9-8
22-8-922C-9-9
22-8-1022C-9-10
22-8-1122C-9-11
22-8-1222C-9-12
22-8-1322C-9-13
22-8-1422C-9-14
22-8-1522C-9-15
|
22-8-1622C-9-16
22-9-122A-7-1
22-9-222A-7-2
22-9-322A-7-3
22-9-422A-7-4
22-9-522A-7-5
22-9-622A-7-6
22-10-122A-8-1
22-10-222A-8-2
22-10-322A-8-3
22-10-422A-8-4
22-10-522A-8-5
22-10-622A-8-6
22-10-722A-8-7
22-10-822A-8-8
22-10-922A-8-9
22-11-122A-9-1
22-12-122A-10-1
22-12-222A-10-2
22-13-122C-7-1
22-13-222C-7-2
22-13-322C-7-3
22A-1A-122A-1-2
22A-1A-2See 22A-1-2
& 22A-1-6
22A-1A-3Repealed
22A-1A-422A-1-4
22A-1A-5See 22A-1-3
22A-1A-6See 22A-1-3
22A-1A-722A-1-8
22A-1A-822A-1-9
22A-1A-922A-1-10
22A-1A-1022A-1-11
22A-1A-1122A-1-12
22A-1A-11a22A-1-13
22A-1A-1222A-1-14
22A-1A-1322A-1-15
22A-1A-1422A-1-16
22A-1A-1522A-1-17
22A-1A-1622A-1-18
22A-1A-1722A-1-19
22A-1A-1822A-1-20
22A-1A-1922A-1-21
22A-1A-2022A-1-22
22A-1A-2122A-1-23
22A-1A-2222A-1-24
22A-1A-2322A-1-25
22A-1A-2422A-1-26
22A-1A-2522A-1-27
22A-1A-2622A-1-28
22A-1A-2722A-1-29
22A-1A-2822A-1-30
|
22A-1A-2922A-1-31
22A-1A-3022A-1-32
22A-1A-3122A-1-33
22A-1A-3222A-1-34
22A-1A-3322A-1-35
22A-1A-3422A-1-36
22A-1A-35See current
2-2-10(cc)
22A-3-122-3-1
22A-3-222-3-2
22A-3-322-3-3
22A-3-422-3-4
22A-3-522-3-5
22A-3-622-3-6
22A-3-722-3-7
22A-3-822-3-8
22A-3-922-3-9
22A-3-1022-3-10
22A-3-1122-3-11
22A-3-11a22-3-12
22A-3-1222-3-13
22A-3-1422-3-14
22A-3-1522-3-15
22A-3-1622-3-16
22A-3-1722-3-17
22A-3-1822-3-18
22A-3-1922-3-19
22A-3-2022-3-20
22A-3-2122-3-21
22A-3-2222-3-22
22A-3-2322-3-23
22A-3-2422-3-24
22A-3-2522-3-25
22A-3-2622-3-26
22A-3-2722-3-27
22A-3-2822-3-28
22A-3-29Repealed
22A-3-3022-3-29
22A-3-3122-3-30
22A-3-32See 22A-8-1
22A-3-3322A-1-37
22A-3-34See 22A-2-77
22A-3-3522A-1-38
22A-3-36Repealed
22A-3-3722-3-31
22A-3-38See current
2-1-10(cc)
22A-3-40Repealed
22A-4-122-4-1
22A-4-222-4-2
22A-4-322-4-3
22A-4-422-4-4
|
22A-4-522-4-5
22A-4-622-4-6
22A-4-722-4-7
22A-4-822-4-8
22A-4-922-4-9
22A-4-1022-4-10
22A-4-1122-4-11
22A-4-1222-4-12
22A-4-1322-4-13
22A-4-1422-4-14
22A-4-1522-4-15
22A-4-1622-4-16
22A-4-1722-4-17
22A-4-18See 22A-1-38
22A-4-19See 22A-2-77
22A-4-2022-4-18
22A-4-2122-4-19
22A-4-2222-4-20
22A-4-2322-4-21
22A-4-24See 22B-1-9
22A-4-2522-4-22
22A-4-2622-4-23
22A-4-27See 22A-8-1
22A-4-28See 22A-1-38
22A-5-122A-3-1
22A-5-222A-3-2
22A-5-322A-3-3
22A-6-122A-4-1
22A-6-222A-4-2
22A-6-322A-4-3
22A-6-422A-4-4
22A-6-522A-4-5
22A-6-622A-4-6
22A-7-122A-1-1
22A-7-2See 22A-1-2
22A-7-322A-1-3
22A-7-422A-1-4
22A-7-5Repealed
22A-7-622A-1-5
22A-7-7Repealed
22A-7-822A-1-6
22A-7-922A-1-7
22B-1-122-6-1
22B-1-222-6-2
22B-1-322-6-3
22B-1-422-6-4
22B-1-522-6-5
22B-1-622-6-6
22B-1-722-6-7
22B-1-822-6-8
22B-1-922-6-9
22B-1-1022-6-10
|
22B-1-1122-6-11
22B-1-1222-6-12
22B-1-1322-6-13
22B-1-1422-6-14
22B-1-1522-6-15
22B-1-1622-6-16
22B-1-1722-6-17
22B-1-1822-6-18
22B-1-1922-6-19
22B-1-2022-6-20
22B-1-2122-6-21
22B-1-2222-6-22
22B-1-2322-6-23
22B-1-2422-6-24
22B-1-2522-6-25
22B-1-2622-6-26
22B-1-2722-6-27
22B-1-2822-6-28
22B-1-2922-6-29
22B-1-3022-6-30
22B-1-3122-6-31
22B-1-3222-6-32
22B-1-3322-6-33
22B-1-3422-6-34
22B-1-3522-6-35
22B-1-3622-6-36
22B-1-3722-6-37
22B-1-3822-6-38
22B-1-3922-6-39
22B-1-4022-6-40
22B-1-4122-6-41
22B-2-122-7-1
22B-2-222-7-2
22B-2-322-7-3
22B-2-422-7-4
22B-2-522-7-5
22B-2-622-7-6
22B-2-722-7-7
22B-2-822-7-8
22B-2-9See current
2-2-10(cc)
22B-3-122-8-1
22B-3-222-8-2
22B-3-322-8-3
22B-3-422-8-4
22B-3-522-8-5
22B-3-622-8-6
22B-3-722-8-7
22B-3-822-8-8
22B-3-922-8-9
22B-3-1022-8-10
22B-3-1122-8-11
|
22B-3-1222-8-12
22B-3-1322-8-13
22B-4-122-9-1
22B-4-222-9-2
22B-4-322-9-3
22B-4-422-9-4
22B-4-522-9-5
22B-4-622-9-6
22B-4-722-9-7
22B-4-822-9-8
22B-4-922-9-9
22B-4-1022-9-10
22B-4-1122-9-11
22B-4-1222-9-12
22B-4-1322-9-13
22B-5-122-10-1
22B-5-222-10-2
22B-5-322-10-3
22B-5-422-10-4
22B-5-522-10-5
22B-5-622-10-6
22B-5-722-10-7
22B-5-822-10-8
22B-5-922-10-9
22B-5-1022-10-10
22B-5-1122-10-11
22B-5-1222-10-12
29-1C-122C-11-1
29-1C-222C-11-2
29-1C-322C-11-3
29-1C-422C-11-4
29-1C-522C-11-5
29-1D-122C-12-1
29-1D-222C-12-2
29-1D-322C-12-3
29-1D-422C-12-4
29-1D-522C-12-5
29-1D-622C-12-6
|
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