COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 481
(By Senator Chafin)
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[Originating in the Committee on Energy, Industry and Mining;
reported February 23, 1995.]
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A BILL to amend and reenact sections eighteen and twenty-one,
article three, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as
amended, relating to surface coal mining and reclamation;
approval, denial, revision and prohibition of permit;
hearing on decisions by director on permit application;
and setting specific deadlines for review of permit
applications by the division of environmental protection.
Be it enacted by the Legislature of West Virginia:
That sections eighteen and twenty-one, article three,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted
to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-18. Approval, denial, revision and prohibition of
permit.
(a) (1) Upon the receipt of an administratively complete surface-mining application or significant revision or renewal
thereof, including public notification and an opportunity for
a public hearing, the director shall grant, require revision of
or deny the application for a permit within sixty days and
notify the applicant in writing of 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.
(2) Within ten working days of initial receipt of the
application, the director shall provide written notification to
the applicant as to the administrative completeness of the
application. If the application is determined to be
incomplete, the director shall notify the applicant, by
certified mail, return receipt requested, or by registered
mail, within ten working days after initial receipt of the
application of the deficiencies which render the application
incomplete. The applicant may submit supplemental information
to correct the identified deficiencies for a period of twenty
working days after the applicant's receipt of the initial
notice of incompleteness. If, after twenty working days, the
director determines that the application is still incomplete,
the director shall return the incomplete application to the
applicant with written notification of the reasons for the
determination.
(3) A determination by the director that the application is administratively complete means that the application
contains the major elements required by this article which are
necessary to allow meaningful review of the application by the
director. A determination that an application is
administratively complete shall not mean that the application
is complete in every detail, nor shall it mean that any aspect
of the application is technically sufficient or approvable.
(4) In processing the administratively complete
application within the time periods set forth in subdivision
(5) of this subsection, the director shall either:
(A) Notify the applicant of the director's decision to
issue or deny the application; or
(B) Notify the applicant in writing, by certified mail,
return receipt requested, or by registered mail, promptly upon
discovery of deficiencies in the application and allow the
application to be temporarily withdrawn by the applicant for
the purpose of correcting the deficiencies. Temporary
withdrawal periods shall not be included in the time available
to the director for consideration of the application.
(5) The director shall take action on applications within
the following time periods as applicable:
(A) Except as provided for in paragraph (B), subdivision
(4) of this subsection, for an application for a new permit a
decision shall be made by the director to approve, require
modification of, or deny the application within sixty days
after issuance of the notice of administrative completeness pursuant to subdivision (2) of this subsection, except that
periods of temporary withdrawal under subdivision (4) of this
subsection shall not be included in the sixty-day period
available to the director. In the event that the director does
not meet this deadline and the applicant has not temporarily
withdrawn the application in accordance with subdivision (4) of
this subsection, the application shall be deemed to have been
approved by the director.
(B) Except as provided in paragraph (B), subdivision (4)
of this subsection, and notwithstanding any provisions to the
contrary in either subdivision (1) of this subsection or in
section nineteen of this article, for an application for a
significant permit revision submitted under said section a
decision shall be made by the director to approve, require
modification of or deny the application with forty-five days
after issuance of the notice of administrative completeness
pursuant to subdivision (2) of this subsection, except that
periods of temporary withdrawal under subdivision (4) of this
subsection shall not be included in the forty-five day period
available to the director. In the event that the director does
not meet this deadline and the applicant has not temporarily
withdrawn the application in accordance with said subdivision,
the application shall be deemed to have been approved by the
director.
(C) Except as provided in paragraph (B), subdivision (4)
of this subsection, for an application submitted for a minor or insignificant revision, including incidental boundary
revisions, as provided in section nineteen of this article, a
decision shall be made by the director to approve, require
modification of or deny the application within fifteen days
after issuance of the notice of administrative completeness
pursuant to subdivision (2) of this subsection, except that
periods of temporary withdrawal under subdivision (4) of this
subsection shall not be included in the fifteen-day period
available to the director. In the event that the director does
not meet this deadline and the applicant has not temporarily
withdrawn the application in accordance with said subdivision,
the application shall be deemed to have been approved by the
director.
(D) Except as provided in paragraph (B), subdivision (4)
of this subsection, for an application to transfer, assign or
sell the rights granted under any permit a decision shall be
made by the director to approve, require modification, or deny
the application within thirty days after issuance of the notice
of administrative completeness pursuant to subdivision (2) of
this subsection, except that periods of temporary withdrawal
under subdivision (4) of this subsection shall not be included
in this thirty-day period.
(b) No permit or significant revision of a permit may be
approved unless the applicant affirmatively demonstrates and
the 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 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 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
under administrative study by the 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 director to
adjudicate property rights disputes.
(c) Where information available to the 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 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 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 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 state or 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 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 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 has
paid into the special reclamation fund any additional sum of
money determined by the 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 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 director may,
pursuant to rules promulgated hereunder, grant a permit to mine
on prime farmland if the operator affirmatively demonstrates
that 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 thirteen of this article. Except for
compliance with subsection (b) of this section, the
requirements of subdivision (1) of this subsection apply to all permits issued after the third day of August, one thousand nine
hundred seventy-seven.
(2) Nothing in this subsection 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 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 director may
delete such part of the land described in the application upon
which such overburden exists.
§22-3-21. Decision of director on permit application; hearing
thereon.
(a) If an informal conference has been held, the director
shall issue and furnish the applicant for a permit and persons
who were parties to the informal conference with the written
finding granting, requiring revision of 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, unless the applicant temporarily withdraws the application in accordance with said section.
(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 director's
decision, the applicant or any person with an interest which is
or may be adversely affected may request a hearing before the
surface mine board as provided in article one, chapter
twenty-two-b of this code to review the director's decision.