ENGROSSED
Senate Bill No. 681
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[Originating in the Committee on Energy, Industry and Mining;
reported February 22, 1999.]
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A BILL to amend and reenact section seven, article one, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
thirteen, twenty-three and twenty-four, article three of said
chapter; to further amend said article by adding thereto three
new sections, designated sections thirteen-a, twenty-two-a and
thirty-a; to further amend said chapter by adding thereto two
new articles, designated articles three-a and three-b; and to
amend and reenact section seven-a, article eleven of said
chapter, all relating to surface mining; creating the office
of explosives and blasting within the division of
environmental protection; office of explosives and blasting's
duties, powers and responsibilities; promulgation of rules;
enforcement of blasting laws and pre-blast surveys by the
office of explosives and blasting; education, training,
examination, certification and disciplinary procedures for
blasters; establishing a claims process for blasting damage; creating the office of coalfield community development within
the West Virginia development office; office of coalfield
community development's powers and duties; promulgation of
rules; requiring a community impact statement; requiring a
coalfield community development statement; determining and
developing needed community assets; addressing land and
infrastructure needs; annual reports; land acquisition
process; continuation of offices; requirements for a pre-blast
survey; recordation of notice of pre-blast survey and waiver;
prohibiting production blasting within three hundred feet of
a protected structure; requiring site-specific blast designs
within one thousand feet of a protected structure; requiring
mining operators to replace an owner's damaged underground
water supply within a specific area and within a certain
amount of time; provision for an emergency water supply;
promulgation of rules; requiring compliance with blasting
laws; civil liability and penalties; reducing the acreage and
monetary amount for mitigation of watersheds by mining
operators; and authorizing a study of the impact of
mountaintop mining and valley fills upon the state of West Virginia.
Be it enacted by the Legislature of West Virginia:
That section seven, article one, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections thirteen, twenty- three and twenty-four, article three of said chapter be amended and
reenacted; that said article be further amended by adding thereto
three new sections designated sections thirteen-a, twenty-two-a and
thirty-a; that said chapter be further amended by adding thereto
two new articles, designated articles three-a and three-b; and that
section seven-a, article eleven of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-7. Offices within division; continuation of the office of
water resources.
(a) 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 article two 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;
(7) The office of explosives and blasting, which is charged,
at a minimum, with administering and enforcing, under the
supervision of the director, the provisions of article three-a of
this chapter; and
(8) The office of coalfield community development, which is
charged, at a minimum, with administering and enforcing, under the
supervision of the director, the provisions of article three-b of
this chapter.
(b) Pursuant to the provisions of article ten, chapter four of
this code, the office of water resources within the division of
environmental protection shall continue to exist until the first
day of July,
one thousand nine hundred ninety-nine two thousand
one.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-13. General environmental protection performance standards
for surface-mining; variances.
(a) Any permit issued by the director pursuant to this article
to conduct surface-mining operations shall require that the
surface-mining operations will meet all applicable performance
standards of this article and other requirements
as set forth in
rules promulgated by the director
promulgates.
(b) The following general performance standards are applicable
to all surface mines and require the operation, at a minimum to:
(1) Maximize the utilization and conservation of the solid
fuel resource being recovered to minimize reaffecting the land in
the future through surface-mining;
(2) Restore the land affected to a condition capable of
supporting the uses which it was capable of supporting prior to any
mining, or higher or better uses of which there is reasonable
likelihood so long as the use or uses do not present any actual or
probable hazard to public health or safety or pose any actual or
probable threat of water diminution or pollution, and the permit
applicants' declared proposed land use following reclamation is not
deemed considered to be impractical or unreasonable, inconsistent
with applicable land use policies and plans, involves unreasonable delay in implementation, or is violative of federal, state or local
law;
(3) Except as provided in subsection (c) of this section, with
respect to all surface mines, backfill, compact where advisable to
ensure stability or to prevent leaching of toxic materials, and
grade in order to restore the approximate original contour:
Provided, That in surface-mining which is carried out at the same
location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits
relative to the volume of the overburden is large and where the
operator demonstrates that the overburden and other spoil and waste
materials at a particular point in the permit area or otherwise
available from the entire permit area is insufficient, giving due
consideration to volumetric expansion, to restore the approximate
original contour, the operator, at a minimum, shall backfill, grade
and compact, where advisable, using all available overburden and
other spoil and waste materials to attain the lowest practicable
grade, but not more than the angle of repose, to provide adequate
drainage and to cover all acid-forming and other toxic materials, in order to achieve an ecologically sound land use compatible with
the surrounding region:
Provided,
however, That in surface-mining
where the volume of overburden is large relative to the thickness
of the coal deposit and where the operator demonstrates that due to
volumetric expansion the amount of overburden and other spoil and
waste materials removed in the course of the mining operation is
more than sufficient to restore the approximate original contour,
the operator shall, after restoring the approximate contour,
backfill, grade and compact, where advisable, the excess overburden
and other spoil and waste materials to attain the lowest grade, but
not more than the angle of repose, and to cover all acid-forming
and other toxic materials, in order to achieve an ecologically
sound land use compatible with the surrounding region and, the
overburden or spoil shall be shaped and graded in 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 director shall
promulgate propose legislative
rules
for promulgation in accordance with article three, chapter
twenty-nine-a of this code, governing variances to the requirements for return to approximate original contour or highwall elimination
and where adequate material is not available from surface-mining
operations permitted after the effective date of this article for:
(A) Underground mining operations existing prior to the third day
of August, one thousand nine hundred seventy-seven; or (B) for
areas upon which surface-mining prior to the first day of July,
one thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil
piles, affected by the surface-mining operation to effectively
control erosion and attendant air and water pollution;
(5) Remove the topsoil from the land in a separate layer,
replace it on the backfill area, or if not utilized immediately,
segregate it in a separate pile from other spoil and, when the
topsoil is not replaced on a backfill area within a time short
enough to avoid deterioration of the topsoil, maintain a successful
vegetative cover by quick growing plants or by other similar means
in order to protect topsoil from wind and water erosion and keep it
free of any contamination by other acid or toxic material:
Provided, That if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown
to be more suitable for vegetation requirements, then the operator
shall remove, segregate and preserve in a like manner
such any
other strata which is best able to support vegetation;
(6) Restore the topsoil or the best available subsoil which is
best able to support vegetation;
(7) Ensure that all prime farmlands are mined and reclaimed in
accordance with the specifications for soil removal, storage,
replacement and reconstruction established by the United States
secretary of agriculture and the soil conservation service
pertaining thereto. The operator, at a minimum, shall:
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 the horizons or other strata that are shown to be both texturally and chemically suitable for plant
growth and that can be shown to be equally or more favorable for
plant growth than the B horizon, in sufficient quantities to create
in the regraded final soil a root zone of comparable depth and
quality to that which existed in the natural soil, and if not
utilized immediately, stockpile this material separately from other
spoil and provide needed protection from wind and water erosion or
contamination by other acid or toxic material; (C) replace and
regrade the root zone material described in
subparagraph paragraph
(B)
above of this subdivision, with proper compaction and uniform
depth over the regraded spoil material; and (D) redistribute and
grade in a uniform manner the surface soil horizon described in
subparagraph paragraph (A)
above of this subdivision;
(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
rules promulgated by the 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 director determines that the
resulting impoundment of water in
such the auger holes may create
a hazard to the environment or the public welfare and safety:
Provided, That the director may prohibit augering if necessary to
maximize the utilization, recoverability or conservation of the
mineral resources or to protect against adverse water quality
impacts;
(10) Minimize the disturbances to the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quality and quantity of water in surface and groundwater
systems both during and after surface-mining operations and during
reclamation by: (A) Avoiding acid or other toxic mine drainage by
such measures as, but not limited to: (i) Preventing or removing
water from contact with toxic producing deposits; (ii) treating
drainage to reduce toxic content which adversely affects downstream
water upon being released to water courses; and (iii) casing,
sealing or otherwise managing boreholes, shafts and wells and keep
acid or other toxic drainage from entering ground and surface
waters; (B) conducting surface-mining operations so as to prevent to the extent possible, using the best technology currently
available, additional contributions of suspended solids to
streamflow or runoff outside the permit area, but in no event shall
contributions be in excess of requirements set by applicable state
or federal law; (C) constructing an approved drainage system
pursuant to
subparagraph paragraph (B) of this subdivision, prior
to commencement of surface-mining operations,
such the system to be
certified by a person approved by the director to be constructed as
designed and as approved in the reclamation plan; (D) avoiding
channel deepening or enlargement in operations requiring the
discharge of water from mines; (E) unless otherwise authorized by
the director, cleaning out and removing temporary or large settling
ponds or other siltation structures after disturbed areas are
revegetated and stabilized, and depositing the silt and debris at
a site and in a manner approved by the director; (F) restoring
recharge capacity of the mined area to approximate premining
conditions; and (G)
such any other actions
as prescribed by the
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 this
article;
(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 director shall permit an operator to mine near, through or
partially through an abandoned underground mine or closer to an active underground mine if: (A) The nature, timing and sequencing
of the approximate coincidence of specific surface mine activities
with specific underground mine activities are coordinated jointly
by the operators involved and approved by the director; and (B)
such the operations will result in improved resource recovery,
abatement of water pollution or elimination of hazards to the
health and safety of the public:
Provided,
however, That any
breakthrough which does occur shall be sealed;
(14) 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 rules promulgated by the
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 (A) Maintain for a period of at least three years
and make available for public inspection, upon written request, a
log detailing the location of the blasts, the pattern and depth of
the drill holes, the amount of explosives used per hole and the
order and length of delay in the blasts;
and
(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 (B) Require that all blasting operations be
conducted by persons certified by the
director and office of
explosives and blasting.
(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 director and a copy to
the resident or owner making the request. The area of the survey
shall be determined by the director in accordance with 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 director requiring backfilling, grading and
planting to be kept current:
Provided, That where surface-mining
operations and underground mining operations are proposed on the
same area, which operations must be conducted under separate permits, the director may grant a variance from the requirement
that reclamation efforts proceed as contemporaneously as
practicable to permit underground mining operations prior to
reclamation:
(A) If the director finds in writing that:
(i) The applicant has presented, as part of the permit
application, specific, feasible plans for the proposed underground
mining operations;
(ii) The proposed underground mining operations are necessary
or desirable to assure maximum practical recovery of the mineral
resource and will avoid multiple disturbance of the surface;
(iii) The applicant has satisfactorily demonstrated that the
plan for the underground mining operations conforms to requirements
for underground mining in the jurisdiction and that permits
necessary for the underground mining operations have been issued by
the appropriate authority;
(iv) The areas proposed for the variance have been shown by
the applicant to be necessary for the implementing of the proposed
underground mining operations;
(v) No substantial adverse environmental damage, either on- site or off-site, will result from the delay in completion of
reclamation as required by this article; and
(vi) Provisions for the off-site storage of spoil will comply
with subdivision (22), subsection (b) of this section;
(B) If the director has promulgated specific rules to govern
the granting of
such the variances in accordance with the
provisions of this subparagraph and has imposed
such any additional
requirements as the director
deems considers necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the director not more than three years
from the date of issuance of the permit:
Provided, That the
underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the
permit was issued, unless extended as set forth in subdivision (3),
section eight of this article; and
(D) If liability under the bond filed by the applicant with
the director pursuant to subsection (b), section eleven of this
article is for the duration of the underground mining operations and until the requirements of subsection (g), section eleven and
section twenty-three of this article have been fully complied with;
(17) Ensure that the construction, maintenance and postmining
conditions of access and haul roads into and across the site of
operations will control or prevent erosion and siltation, pollution
of water, damage to fish or wildlife or their habitat, or public or
private property:
Provided, That access roads constructed for and
used to provide infrequent service to surface facilities, such as
ventilators or monitoring devices, are exempt from specific
construction criteria provided adequate stabilization to control
erosion is achieved through alternative measures;
(18) 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 suitable for human
consumption and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the
area, except that introduced species may be used in the
revegetation process where desirable or when necessary to achieve
the approved 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 director,
after the last year of augmented seeding, fertilizing, irrigation
or other work in order to assure compliance with subdivision (19)
of this subsection:
Provided, That when the director issues a
written finding approving a long-term agricultural postmining land
use as a part of the mining and reclamation plan, the director may
grant exception to the provisions of subdivision (19) of this
subsection:
Provided,
however, That when the director approves an
agricultural postmining land use, the applicable five growing
seasons of responsibility for revegetation begins on the date of
initial planting for
such the agricultural postmining land use;
On lands eligible for remining assume the responsibility for
successful revegetation, as required by subdivision (19) of this subsection, for a period of not less than two growing seasons, as
defined by the director after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance
with subdivision (19) of this subsection;
(21) Protect off-site areas from slides or damage occurring
during surface-mining operations and not deposit spoil material or
locate any part of the operations or waste accumulations outside
the permit area:
Provided, That spoil material may be placed
outside the permit area, if approved by the director after a
finding that environmental benefits will result from
such the
placing of spoil material outside the permit area;
(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 is removed immediately prior to
spoil placements; (C) appropriate surface and internal drainage
system or diversion ditches are used to prevent spoil erosion and movement; (D) the disposal area does not contain springs, natural
water courses or wet weather seeps, unless lateral drains are
constructed from the wet areas to the main under drains in a manner
that filtration of the water into the spoil pile will be prevented;
(E) if placed on a slope, the spoil is placed upon the most
moderate slope among those upon which, in the judgment of the
director, the spoil could be placed in compliance with all the
requirements of this article, and is placed, where possible, upon,
or above, a natural terrace, bench or berm, if placement provides
additional stability and prevents mass movement; (F) where the toe
of the spoil rests on a downslope, a rock toe buttress, of
sufficient size to prevent mass movement, is constructed; (G) the
final configuration is compatible with the natural drainage pattern
and surroundings and suitable for intended uses; (H)
the design of
the spoil disposal area is certified by a qualified registered
professional engineer in conformance with professional standards;
and (I) all other provisions of this article are met:
Provided,
That where the excess spoil material consists of at least eighty
percent, by volume, sandstone, limestone or other rocks that do not slake in water and will not degrade to soil material, the director
may approve alternate methods for disposal of excess spoil
material, including fill placement by dumping in a single lift, on
a site specific basis:
Provided,
however, That the services of a
qualified registered professional engineer experienced in the
design and construction of earth and rockfill embankment are
utilized:
Provided further, That
such the approval may not be
unreasonably withheld if the site is suitable;
(23) Meet
such any 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 nNatural barriers do not provide adequate stability; (B) natural barriers
would result in potential future water quality deterioration; and
(C) natural barriers would conflict with the goal of maximum
utilization of the mineral resource:
Provided,
however, That at a
minimum, the constructed barrier
must shall be of sufficient width
and height to provide adequate stability and the stability factor
must shall equal or exceed that of the natural outcrop barrier:
Provided further, That where water quality is paramount, the
constructed barrier
must shall be composed of impervious material
with controlled discharge points.
(c) (1) The director may prescribe procedures pursuant to
which he or she may permit surface-mining operations for the
purposes set forth in subdivision (3) of this subsection.
(2) Where an applicant meets the requirements of subdivisions
(3) and (4) of this subsection, a permit without regard to the
requirement to restore to approximate original contour set forth in
subsection (b) or (d) of this section may be granted for the
surface-mining of coal where the mining operation will remove an
entire coal seam or seams running through the upper fraction of a mountain, ridge or hill, except as provided in subparagraph (A),
subdivision (4) of this subsection, by removing all of the
overburden and creating a level plateau or a gently rolling contour
with no highwalls remaining, and capable of supporting postmining
uses in accordance with the requirements of this subsection.
(3) In cases where an industrial, commercial, woodland,
agricultural, residential, public or fish and wildlife habitat and
recreation lands use is proposed for the postmining use of the
affected land, the director may grant a permit for a surface-mining
operation of the nature described in subdivision (2) of this
subsection where: (A) The proposed postmining land use is
deemed
determined to constitute an equal or better use of the affected
land, as compared with premining use; (B) the applicant presents
specific plans for the proposed 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 director in
conformance with standards established to assure the stability,
drainage and configuration necessary for the intended use of the
site; (C) the proposed use would be compatible with adjacent land
uses, and existing state and local land use plans and programs; (D)
the director provides the county commission of the county in which
the land is located and any state or federal agency which the
director, in his or her discretion, determines to have an interest
in the proposed use, an opportunity of not more than sixty days to
review and comment on the proposed use; and (E) all other
requirements of this article will be met.
(4) In granting any permit pursuant to this subsection, the
director shall require that: (A) A natural barrier be retained to
inhibit slides and erosion on permit areas where outcrop barriers
are required:
Provided, That constructed barriers may be allowed
where: (i) Natural barriers do not provide adequate stability;
(ii) natural barriers would result in potential future water quality deterioration; and (iii) natural barriers would conflict
with the goal of maximum utilization of the mineral resource:
Provided,
however, That, at a minimum, the constructed barrier
must
shall be sufficient
in width and height to provide adequate
stability and the stability factor
must shall equal or exceed that
of the natural outcrop barrier:
Provided further, That where water
quality is paramount, the constructed barrier
must shall be
composed of impervious material with controlled discharge points;
(B) the reclaimed area is stable; (C) the resulting plateau or
rolling contour drains inward from the outslopes except at specific
points; (D) no damage will be done to natural watercourses; (E)
spoil will be placed on the mountaintop bench as is necessary to
achieve the planned 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 is proceeding in
accordance with the terms of the approved schedule and reclamation
plan.
(d) In addition to those general performance standards
required by this section, when surface-mining occurs on slopes of
twenty degrees or greater, or on
such lesser slopes as may be
defined by rule after consideration of soil and climate, no debris,
abandoned or disabled equipment, spoil material or waste mineral
matter will be placed on the natural downslope below the initial
bench or mining cut:
Provided, That soil or spoil material from
the initial cut of earth in a new surface-mining operation may be
placed on a limited specified area of the downslope below the
initial cut if the permittee can establish to the satisfaction of
the director that the soil or spoil will not slide and that the
other requirements of this section can still be met.
(e) The director may
promulgate propose rules
for promulgation
in accordance with article three, chapter twenty-nine-a of this code, that permit variances from the approximate original contour
requirements of this section:
Provided, That the watershed control
of the area is improved:
Provided,
however, That complete
backfilling with spoil material is required to completely cover the
highwall, which material will maintain stability following mining
and reclamation.
(f) The director shall
promulgate propose rules
for
promulgation in accordance with article three, chapter twenty-nine- a of this code, for the design, location, construction,
maintenance, operation, enlargement, modification, removal and
abandonment of new and existing coal mine waste piles. In addition
to engineering and other technical specifications, the standards
and criteria developed pursuant to this subsection
must shall
include provisions for review and approval of plans and
specifications prior to construction, enlargement, modification,
removal or abandonment; performance of periodic inspections during
construction; issuance of certificates of approval upon completion
of construction; performance of periodic safety inspections; and
issuance of notices and orders for required remedial or maintenance work or affirmative action:
Provided, That whenever the director
finds that any coal processing waste pile constitutes an imminent
danger to human life, he or she may, in addition to all other
remedies and without the necessity of obtaining the permission of
any person prior or present who operated or operates a pile or the
landowners involved, enter upon the premises where any
such coal
processing waste pile exists and may take or order to be taken
such
any remedial action
as that may be necessary or expedient to secure
the coal processing waste pile and to abate the conditions which
cause the danger to human life:
Provided,
however, That the cost
reasonably incurred in any remedial action taken by the director
under this subsection may be paid for initially by funds
appropriated to the division for these purposes, and the sums
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 director. For purposes of
this subsection "operates" or "operated" means to enter upon a coal
processing waste pile, or part
thereof of a coal processing waste
pile, for the purpose of disposing, depositing, dumping coal processing wastes
thereon on the pile or removing coal processing
waste
therefrom from the pile, or to employ a coal processing waste
pile for retarding the flow of or for the impoundment of water.
§22-3-13a. Pre-blast survey requirements.
(a) At least thirty days prior to commencing production
blasting, as defined in section twenty-two-a of this article,
an operator or an operator's designee shall make the following
notifications in writing to all owners and occupants of man-made
dwellings or structures that the operator or operator's designee
will perform pre-blast surveys in accordance with subsection (f) of
this section:
(1) For surface mining operations that are less than two
hundred acres in a single permitted area or less than three hundred
acres of contiguous or nearly contiguous area of two or more
permitted areas, the required notifications shall be to all owners
and occupants of man-made dwellings or structures within five
tenths of a mile of the permitted area or areas;
(2) For all other surface mining operations, the required
notifications shall be to all owners and occupants of man-made dwellings or structures within five tenths of a mile of the
permitted area or areas or seven tenths of a mile of the proposed
blasting site, whichever is greater.
(b) Within thirty days of the effective date of this section,
any operator identified in subdivision (2), subsection (a) of this
section, that has already completed pre-blast surveys for man-made
dwellings or structures within five tenths of a mile of the permit
area and has commenced operations by the effective date of this
section, shall be required to notify in writing all additional
owners and occupants or man-made dwellings or structures within
seven tenths of a mile of the proposed blasting site. Except for
those dwellings or structures for which the operator secures a
written waiver or executes an affidavit in accordance with the
requirements of subsection (c) of this section, the operator or the
operator's designee must perform the additional pre-blast surveys
in accordance with subsection (f) of this section within ninety
days of the effective date of this section.
(c) An occupant or owner of a man-made dwelling or structure
within the areas described in subdivisions (1) or (2) of subsection (a) of this section, may waive the right to a pre-blast survey in
writing. If a dwelling is occupied by a person other than the
owner, both the owner and the occupant must waive the right to a
pre-blast survey in writing. If an occupant or owner of a man-made
dwelling or structure refuses to allow the operator or the
operator's designee access to the dwelling or structure and refuses
to waive in writing the right to a pre-blast survey or to the
extent that access to any portion of the structure, underground
water supply or well is impossible or impractical under the
circumstances, the pre-blast survey shall indicate that access was
refused, impossible or impractical. The operator or the operator's
designee shall execute a sworn affidavit explaining the reasons and
circumstances surrounding the refusals. The office of explosives
and blasting shall not determine the pre-blast survey to be
incomplete because it indicates that access to a particular
structure, underground water supply or well was refused, impossible
or impractical. The operator shall send copies of all written
waivers and affidavits executed pursuant to this subsection to the
office of explosives and blasting.
(d) If a pre-blast survey was waived by the owner and was
within the requisite area and the property was sold, the new owner
may request a pre-blast survey from the operator.
(e) An owner within the requisite area may request, from the
operator, a pre-blast survey on structures constructed after the
original pre-blast survey.
(f) The pre-blast survey shall include:
(1) The names, addresses or description of structure location
and telephone numbers of the owner and the residents of the
structure being surveyed and the structure number from the permit
blasting map;
(2) The current home insurer of the owner and the residents of
the structure;
(3) The names, addresses and telephone numbers of the surface
mining operator and the permit number;
(4) The current general liability insurer of the surface
mining operator;
(5) The name, address and telephone number of the person or
firm performing the pre-blast survey;
(6) The current general liability insurer of the person or
firm performing the pre-blast survey;
(7) The date of the pre-blast survey and the date it was
mailed or delivered to the office of explosives and blasting;
(8) A general description of the structure and its
appurtenances including, but not limited to: (A) tThe number of
stories,; (B) the construction materials for the frame and the
exterior and interior finish,; (C) the type of construction
including any unusual or substandard construction,; and (D) the
approximate age of the structure;
(9) A general description of the survey methods and the
direction of progression of the survey, including a key to
abbreviations used;
(10) Written documentation and drawings, videos or photographs
of the pre-blast defects and other physical conditions of all
structures, appurtenances and water sources which could be affected
by blasting;
(11) Written documentation and drawings, videos or photographs
of the exterior and interior of the structure to indicate pre-blast defects and condition;
(12) Written documentation and drawings, videos or photographs
of the exterior and interior of any appurtenance of the structure
to indicate pre-blast defects and condition;
(13) Sufficient exterior and interior photographs or videos,
using a variety of angles, of the structure and its appurtenances
to indicate pre-blast defects and the condition of the structure
and appurtenances;
(14) Written documentation and drawings, videos or photographs
of any unusual or substandard construction technique and materials
used on the structure and/or its appurtenances;
(15) Written documentation relating to the type of water
supply, including a description of the type of system and treatment
being used, an analysis of untreated water supplies, a water
analysis of water supplies other than public utilities, and
information relating to the quantity and quality of water;
(16) When the water supply is a well, written documentation,
where available, relating to the type of well; the well log; the
depth, age and type of casing or lining; the static water level; flow data; the pump capacity; the drilling contractor; and the
source or sources of the documentation;
(17) A description of any portion of the structure and
appurtenances not documented or photographed and the reasons;
(18) The signature of the person performing the survey; and
(19) Any other information required by the chief which
additional information shall be established by rule in accordance
with article three, chapter twenty-nine-a of this code.
(g) Except for additional pre-blast surveys prepared within
one hundred twenty days of the effective date of this section,
pursuant to subsection (b) of this section, the pre-blast survey
shall be submitted to the office of explosives and blasting at
least fifteen days prior to the commencement of any production
blasting. The office of explosives and blasting shall review each
pre-blast survey as to form and completeness only and notify the
operator of any deficiencies. The office of explosives and
blasting shall notify the owner and occupant of the location and
availability of the pre-blast survey and a copy of the pre-blast
survey shall be provided to the owner and/or occupant upon request.
(h) The surface mining operator shall file notice of the pre- blast survey or the waiver in the office of the county clerk of the
county commission of the county where the man-made dwelling or
structure is located to notify the public that a pre-blast survey
has been conducted or waived. The notice shall be on a form
prescribed by the office of explosives and blasting.
(i) The chief of the office of explosives and blasting shall
propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code, dealing with pre-blast
survey requirements and setting the qualifications for individuals
and firms performing pre-blast surveys.
(j) The provisions of this section shall not apply to the
following: (1) uUnderground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods.
§22-3-22a. Production blasting restrictions; site specific blasting
design requirement.
(a) For purposes of this section, the term "production blasting" means blasting that removes the overburden to expose
underlying coal seams and shall not include construction blasting.
(b) For purposes of this section, the term "construction
blasting" means blasting to develop haul roads, mine access roads,
coal preparation plants, drainage structures, or underground coal
mine sites and shall not include production blasting.
(c) For purposes of this section, the term "protected
structure" means any of the following structures that is situated
outside the permit area: aAn occupied dwelling, a temporarily
unoccupied dwelling which has been occupied within the past ninety
days, a public building, a structure for commercial purposes, a
school, a church, a community or institutional building, a public
park or a water well.
(d) Production blasting is prohibited within three hundred
feet of a protected structure or within one hundred feet of a
cemetery.
(e) Production blasting within one thousand feet of a
protected structure shall have a site specific blast design
approved by the office of explosives and blasting. The site specific blast design shall limit the type of explosives and
detonating equipment, the size, the timing and frequency of blasts
to do the following:
(1) Prevent injury to persons; (2) Pprevent damage to public
and private property outside the permit area; (3) Pprevent adverse
impacts on any underground mine; (4) Pprevent change in the course,
channel or availability of ground or surface water outside the
permit area; and (5) Rreduce dust outside the permit area.
In the development of a site specific blasting plan
consideration shall be given, but is not limited to, the physical
condition, type and quality of construction of the protected
structure, the current use of the protected structure and the
concerns of the owner or occupant living in the protected structure
in the blasting schedule.
(f) An owner or occupant of a protected structure may waive
the blasting prohibition within three hundred feet or the site
specific restriction within one thousand feet in writing. If a
protected structure is occupied by a person other than the owner,
both the owner and the occupant of the protected structure shall waive the blasting prohibition within three hundred feet or the
site specific restriction within one thousand feet in writing. The
operator shall send copies of all written waivers executed pursuant
to this subsection to the office of explosives and blasting.
Written waivers executed and filed with the office of explosives
and blasting shall be valid during the life of the permit or any
renewals of the permit and shall be enforceable against any
subsequent owners or occupants of the protected structure.
(g) The provisions of this section shall not apply to the
following: (1) uUnderground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods.
§22-3-23. Release of bond or deposits; application; notice; duties
of director; public hearings; final maps on rade release.
(a) The permittee may file a request with the director for the
release of a bond or deposit. The permittee 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 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 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
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 pollution and the estimated cost of abating such
pollution. The director shall notify the permittee in writing of
his or her decision to release or not to release all or part of the
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 director's decision shall be
issued within thirty days thereafter.
(c) If the director is satisfied that reclamation covered by
the bond or deposit or portion thereof has been accomplished 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 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 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 the release 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 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 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 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 the landowner have been made with the director.
Notwithstanding the bond release scheduling provisions of
subdivisions (1), (2) and (3) of this subsection, if the operator
completes the backfilling and reclamation in accordance with an
approved post-mining land use plan that has been approved by the
division of environmental protection and accepted by a local or regional economic development or planning agency for the county or
region in which the operation is located, provisions for sound
future maintenance are assured by the local or regional economic
development or planning agency, and the quality of any untreated
post-mining water discharged is better than or equal to the
premining water quality discharged from the mining site, the
director may release the entire amount of said bond or deposit. The
director shall propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to govern a bond release pursuant to the terms of this
paragraph.
(d) If the director disapproves the application for release of
the bond or portion thereof, the 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 the right to a hearing.
(e) When any application for total or partial bond release is
filed with the 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 director within thirty days after the last
publication of the permittee's advertisement. If written objections
are filed and a hearing requested, the 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 proposed for 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 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 director pursuant to this
section, the 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 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 director at the cost of
the person requesting the transcript.
§22-3-24. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects in any way the rights of
any person to enforce or protect, under applicable law, 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 the owner's
supply of water for domestic, agricultural, industrial or other
legitimate use from an underground or surface source where such the
supply has been affected by contamination, diminution or
interruption proximately caused by such the surface-mining
operation, unless waived by said the owner.
(c) There is a rebuttable presumption that a mining operation
caused damage to an owner's underground water supply if the
inspector determines the following: (1) cContamination, diminution
or damage to an owner's underground water supply exists; and (2) a
pre-blast survey was performed, consistent with the provisions of
section thirteen-a of this article, on the owner's property
including the underground water supply that indicated that
contamination, diminution or damage to the underground water supply
did not exist prior to the mining conducted at the mining
operation. The operator conducting the mining operation shall: (1)
provide an emergency water supply within seventy-two hours; (2) provide a permanent water supply within thirty days; and (3) pay
all reasonable costs incurred by the owner in securing a water
supply.
(d) An owner aggrieved under the provisions of subsections (b)
or (c) of this section, may seek relief in court or pursuant to the
provisions of section six, article three-b of this chapter.
(e) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty- nine-a of this code, to implement the requirements of this section.
(f) The provisions of this section shall not apply to the
following: (1) uUnderground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods.
§22-3-30a. Blasting requirements; liability and civil penalties
in the event of property damage.
(a) Blasting of overburden and coal shall be conducted in
accordance with the rules and
laws established to regulate
blasting.
(b) If the division of environmental protection establishes
after an inspection that a blast was not in compliance with the
regulations governing blasting parameters and resulted in property
damage to a protected structure, as defined in section twenty-two-a
of this article, other than water wells, the following penalties
shall be imposed for each permit area or contiguous permit areas
where the blasting was out of compliance:
(1) For the first offense, the operator shall be assessed a
penalty of not less than one thousand dollars nor more than five
thousand dollars.
(2) For the second offense and each subsequent offense within
one year of the first offense, the surface mining operator shall be
assessed a penalty of not less than five thousand dollars nor more
than ten thousand dollars.
(3) For the third offense and any subsequent offense within
one year of the first offense, or for the failure to pay any
assessment set forth within a reasonable time established by the
director, the surface mining operator's permit shall be subject to
an immediate issuance of a cessation order, as set out in section sixteen of this article. The cessation order shall only be
released upon written order of the director of the division of
environmental protection when the following conditions have been
met:
(A) A written plan has been established and filed with the
director assuring that additional violations will not occur;
(B) The permittee has provided compensation for the property
damages or the assurance of adequate compensation for the property
damages that have occurred; and
(C) A permittee shall provide such monetary and other
assurances as the director shall determine appropriate to
compensate for future property damages. The monetary assurances
required shall be in an amount at least equal to the amount of
compensation required in paragraph (B), subdivision (3), of this
subsection.
(4) In addition to the penalties described in subdivisions
(1), (2) and (3) of this subsection, for the second and subsequent
offenses on any one permitted area regardless of the time period,
the owner of the protected structure is entitled to a rebuttable presumption that the property damage is a result of the blast if;:
(A) aA pre-blast survey was performed; and (B) the blasting site to
which the second or subsequent offense relates is within seven
tenths of a mile of the protected structure.
(5) No more than one offense shall arise out of any one
shot. For purposes of this section, "shot" means a single blasting
event composed of one or multiple detonations of explosive
material, or the assembly of explosive materials for this purpose.
One "shot" may be composed of numerous explosive charges detonated
at intervals measured in milliseconds.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the division of environmental protection may not
impose penalties on an operator for the violation of any rule
identified in subsection (a) of this section that is merely
administrative in nature.
(d) The remedies provided in this section are not exclusive
and shall not bar an owner or occupant from any other remedy
accorded by law.
(e) Where inspection by the division of environmental protection establishes that production blasting, in violation of
section twenty-two-a of this article, was done within three hundred
feet or was not site specific production blasting within one
thousand feet of any protected structure as defined in section
twenty-two-a of this article, or within one hundred feet of a
cemetery, the monetary penalties and revocation, as set out in
subsection (b) of this section, apply.
(f) All penalties and liabilities as set forth in this section
shall be assessed by the director, collected by the director and
deposited with the treasurer of the state of West Virginia, in the
"general school fund".
(g) The director shall propose rules for legislative approval
pursuant to article three, chapter twenty-nine-a of this code for
the implementation of this section.
(h) The provisions of this section shall not apply to the
following: (1) uUnderground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods.
ARTICLE 3A. OFFICE OF EXPLOSIVES AND BLASTING.
§22-3A-1. Legislative findings; policy and purposes.
(a) The Legislature declares that the establishment of an
office within the division of environmental protection to enforce
blasting laws pursuant to surface mining within the state of West
Virginia is in the public interest and will promote the protection
of the property and citizens of the state of West Virginia without
sacrificing 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 reasonable means and measures to prevent harm from the
effects of blasting to its property and citizens.
(b) It is the purpose of this article to create the office of
explosives and blasting within the division of environmental
protection, and to vest in the office the authority to enforce all
the rules and laws established to regulate blasting consistent with
the authority granted in this article.
2§22-3A-2. Office of explosives and blasting created; transfer of
functions; responsibilities.
(a) There is hereby created the office of explosives and
blasting within the division of environmental protection. The
director shall appoint a chief to administer the office. The chief
shall serve at the will and pleasure of the director.
(b) As of the effective date of this article, the office of
explosives and blasting shall assume responsibility for the
enforcement of all the rules and laws established to regulate
blasting consistent with the authority granted in this article.
(c) Terms used in this article shall have the definitions set
forth in article three of this chapter, unless used in a context
that clearly requires a different meaning or as otherwise defined
herein.
§22-3A-3. Powers and duties.
The duties of the office shall include, but are not limited
to:
(a) Regulating blasting on all surface mining operations;
(b) Implementing
and overseeing the pre-blast survey process,
as set forth in section thirteen-a, article three of this chapter;
(c) Maintaining and operating a system to receive and address questions, concerns and complaints relating to mining operations.
(d) Setting the qualifications for individuals and firms
performing pre-blast surveys;
(e) The education, training, examination and certification of
blasters; and
(f) Proposing rules for legislative approval pursuant to
article three, chapter twenty-nine-a of this code for the
implementation of this article.
§22-3A-4. Legislative rules on surface mining blasting;
disciplinary procedures for certified blasters
.
(a) The office of explosives and blasting shall propose rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code, for the purposes
of implementing this article. The rules shall include, but not be
limited to, the following:
(1) A procedure for the review, modification and approval,
prior to the issuance of any permit, of any blasting plan required
to be submitted with any application for a permit to be issued by
the director pursuant to article three of this chapter, which sets forth procedures for the inspection and monitoring of blasting
operations for compliance with blasting laws and rules, and for the
review and modification of the blasting plan of any operator
against whom an enforcement action is taken by the division of
environmental protection;
(2) Specific minimum requirements for pre-blast surveys, as
set forth in section thirteen-a, article three of this chapter;
(3) A procedure for review of pre-blast surveys required to be
submitted under section thirteen-a, article three of this chapter;
(4) A procedure for the use of seismographs for production
blasting which shall be made part of the blasting log;
(5) A procedure to warn of impending blasting to the owners
or occupants adjoining the blasting area;
(6) A procedure to 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: (A) Prevent injury to
persons; (B) Pprevent damage to public and private property outside
the permit area; (C) Pprevent adverse impacts on any underground
mine; (D) Pprevent change in the course, channel or availability of ground or surface water outside the permit area; and (E) Rreduce
dust outside the permit area.
(7) Provisions for requiring mining operators to publish the
planned blasting schedule in a newspaper of general circulation in
the locality of the mining operation; and
(8) Provisions for requiring mining operators to provide
adequate advance written notice of the proposed blasting schedule
to local governments, owners and occupants living within the
distances prescribed in subsection (a), section thirteen-a, article
three of this chapter.
(b) The office of explosives and blasting shall propose rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code. The rules shall
include, but not be limited to, the following:
(1) Provisions for establishing a process for the education,
training, examination and certification of blasters working on
surface mining operations; and
(2) Provisions for establishing disciplinary procedures for
all certified blasters responsible for blasting on surface mining operations conducted within this state in violation of any law or
rule promulgated by the division of environmental protection to
regulate blasting.
§22-3A-5. Claims process.
(a) The office of explosives and blasting shall establish and
manage a process for the filing, administration and resolution of
claims related to blasting.
(b) Claims which may be filed and determined under the
provisions of this section shall be those arising from both of the
following:
(1) Damage to physical arising from blasting activities
conducted pursuant to a permit granted under article three of this
chapter; and
(2) The damage is incurred by a claimant who is the owner or
occupant of the property.
(c) The claims process established by the office of explosives
and blasting shall include the following:
(1) An initial determination by the office of the merit of the
claim; and
(2) An arbitration process whereby the claim can be determined
and resolved by an arbitrator in a manner which is inexpensive,
prompt and fair to all parties.
The office shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
for the development of standards for establishing rules relating to
the initial claim determination and the arbitration process
provided in this subsection.
(d) If the operator disagrees with the initial determination
made by the office and requests arbitration, then the following
shall apply:
(1) Any party may be represented by a representative of their
choice;
(2) At the request of the claimant, the office shall provide
the claimant with representation in the arbitration process, which
representation shall not necessarily be an attorney-at-law; and
(3) If the claim is upheld, in whole or in part, then the
operator shall pay the costs of the proceeding, as well as
reasonable representation fees and costs of the claimant, in an amount not to exceed one thousand dollars.
(e) Participation in the claims process created by this
section shall be voluntary for the claimant. However, once the
claimant has submitted a claim for determination under the
provisions of this section, it is intended that the finding of the
office, if not taken to arbitration, shall be final. If
arbitration is requested, it is intended that the results of such
arbitration shall be final. The office shall provide written
notification to the claimant of the provisions of this subsection
and shall secure a written acknowledgment from the claimant prior
to processing a claim pursuant to the provisions of this section.
(f) The operator shall pay any claim for which the operator is
adjudged liable within thirty days of a final determination. If
the claim is not paid within thirty days, the director shall issue
a cessation order pursuant to section sixteen, article three of
this chapter for all sites operated by the operator.
(g) No permit to mine coal shall be granted unless the permit
applicant agrees to be subject to the terms of this section.
(h) To fulfill its responsibilities pursuant to this section, the office may retain the services of inspectors, experts and other
persons or firms as may be necessary.
§22-3A-6. Rules, orders and permits to remain in effect;
proceedings not affected.
(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 prior to the enactment of this article shall
remain in effect according to their terms until modified,
terminated, superseded, set aside or revoked pursuant to this
article, by a court of competent jurisdiction, or by operation of
law.
(b) Any proceedings, including notices of proposed rule-making,
or any application for any license, permit or certificate pending
before the division are not affected by this enactment.
§ 22-3A-7. Funding.
(a) The office shall assess each operator permitted under the
provisions of this chapter a fee on each quantity of explosive
material used for any purpose on the surface mining operations.
(b) The office shall propose a legislative rule for
promulgation in accordance with article three, chapter twenty-nine- a of this code, establishing the fees required by this section.
The fees shall be calculated to generate sufficient money to
provide for the operation of this office and the office of
coalfield community development as provided for in article three-b
of this chapter.
(c) The office shall deposit all moneys received from these
fees into a special revenue fund to be known as the "mountaintop
removal fund" in the state treasury to be expended by the offices
in the performance of their duties. The expenditure of moneys in
the fund is not authorized from collections, but shall be
appropriated by the Legislature.
§22-3A-8. Transfer of personnel and assets.
The director shall transfer to the office any personnel and
assets presently used to perform or used in the performance of the
duties and functions required by this article.
§22-3A-9. Limitation of article.
The provisions of this article shall not apply to the following: (1) uUnderground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods.
§22-3A-10. Termination of office.
The office of explosives and blasting is continued until the
first day of July, two thousand two, pursuant to the provisions of
article ten, chapter four of this code.
ARTICLE 3B. Office of Coalfield Community Development
§22-3B-1. Legislative findings and declaration.
The Legislature hereby finds and declares the following:
(a) Coal mining has made and continues to make significant
contributions to the economy of West Virginia. These contributions
include the creation of quality jobs that pay high wages and
provide good benefits; the consequent stimulation and support of
mining contractors, suppliers of mining equipment and services,
other mining-related industries and numerous providers of goods and
services that are indirectly related to coal mining and dependent
upon its existence and prosperity; the generation of significant severance and other tax revenues that support important economic
development, infrastructure and education initiatives, in mining
communities and throughout the state; the support of civic,
education and service groups in mining communities; and, in the
case of surface mining operations, including mountaintop mining,
the creation of much-needed flat land for economic development and
recreational uses.
(b) The development and increasing prominence of surface mining
operations, including mountaintop mining, has brought increasingly
high levels of productivity, safety and efficiency to the state's
mining industry, enabling the recovery of coal that could not
otherwise be mined and marketed profitably, increasing the
severance tax revenues and other economic benefits described in
subsection (a) above and ensuring the competitiveness of the
state's coal industry from a national and international
perspective.
(c) Where implemented, surface mining operations, particularly
mountaintop mining, tend to extract most, if not all, of the
recoverable coal reserves in an accelerated fashion. For a state long dependent on the employment and revenue coal mining provides,
this reality should be sobering, and there is no place in which the
comprehension of this reality is more crucial than the coalfields
of West Virginia. Long dependent primarily on mining, this area
must plan for a future without coal. The state and its
subdivisions have a legitimate interest in securing that future.
(d) The coal industry and those related to the extraction of
mineral resources benefit from the mining of our state's coal
through mining practices which impact its citizens -- some in a
negative way -- and through practices which will extract
significant portions of coal reserves in an accelerated fashion.
Those industries must therefore accept a greater responsibility to
help address the long-term needs of the communities and citizens
impacted by their activities.
(e) Once it becomes public knowledge that a permit is being
sought, the marketability of property may change and the relative
bargaining power of the parties may change with it. The potential
for negative impact on those living in communities near surface
mining operations may limit the options and bargaining power of the property owners.
(f) Surface mining operations, including mountaintop mining,
present unique challenges to the coal mining industry and the state
and its citizens, especially those living and working in
communities that rely heavily upon these methods of mining. This
requires that these communities, in conjunction with county
commissions, state, local, county and regional development
authorities, landowners, and civic, community and business groups,
and interested citizens, develop plans related to the communities'
long-term economic viability.
(g) The West Virginia development office, as the state agency
charged with economic development activities, shall take a more
active role in the long-term economic development of communities in
which these mining methods are prevalent and shall establish a
formal process to assist property owners in the determination of
the fair market value where the property owner and coal company
voluntarily enter into an agreement relating to the purchase and
sale of such property.
§22-3B-2. Application of article.
(a) The provisions of this article shall apply to all surface
mining operations, except:
(1) The surface operations and surface impacts incident to an
underground coal mine; and
(2) Surface mining operations of operators that;: (A) eEstablish
that their probable total annual coal production from all locations
during any consecutive twelve-month period, either during the term
of the permit or during the first five years after issuance of the
permit, whichever period is shorter, will not exceed three hundred
thousand tons, as determined pursuant to rules promulgated by the
division,; and (B) otherwise qualify for the small operator
assistance program authorized under the federal Surface-Mining
Control and Reclamation Act of 1977, as amended, and the federal
regulations promulgated thereunder, as amended.
(b) The provisions of this article shall not apply: (1) tTo
underground coal mining operations; or (2) to the extraction of
minerals by underground mining methods or the surface impacts
thereof.
§22-3B-3. Definitions.
(a) For the purpose of this article, the following terms have
the meanings ascribed to them:
(1) "Division" means the division of environmental protection;
(2) "Office" means the office of coalfield community
development; and
(3) "West Virginia development office" means the office
established in article two, chapter five-b of this code.
(b) Unless used in a context that clearly requires a different
meaning or as otherwise defined herein, terms used in this article
shall have the definitions set forth in article three of this
chapter.
§22-3B-4. Office of coalfield community development.
(a) The office of coalfield community development is hereby
established within the West Virginia development office.
(b) The director shall appoint a chief to administer the
office shall be appointed and shall serve at the will and pleasure
of the director of the West Virginia development office.
§22-3B-5. Powers and duties.
(a) The office shall have and exercise the following duties, powers and responsibilities:
(1) To establish a procedure for developing a community impact
statement as provided in section six of this article and to
administer the procedure so established;
(2) To establish a procedure for developing and implementing
coalfield community development statements as provided in section
seven of this article and to administer the procedure so
established;
(3) To establish a procedure for determining the assets that
could be developed in and maintained by the community to foster its
long-term viability as provided in section eight of this article
and to administer the procedure so established;
(4) To establish a procedure for determining the land and
infrastructure needs in the general area of the surface mining
operations as provided in section nine of this article and to
administer the procedure so established;
(5) To establish a procedure to develop action reports and
annual updates as provided in section ten of this article and to
administer the procedure so established;
(6) To determine the need for meetings to be held among the
various interested parties in the communities impacted by surface
mining operations and, when appropriate, to facilitate such
meetings;
(7) To establish a procedure to assist property owners in the
sale of their property as provided in section eleven of this
article and to administer the procedure so established; and
(8) In conjunction with the division, to maintain and operate
a system to receive and address questions, concerns and complaints
relating to surface mining.
§22-3B-6. Community impact statement.
(a) (1) The operator shall develop a community impact statement
as described in this section, which shall be submitted to the
office within sixty days of the filing of a surface mining
application pursuant to the provisions of article three of this
chapter. Failure to submit a community impact statement to the
office shall be considered a violation under the provisions of
section seventeen, article three of this chapter; and
(2) The operator shall provide copies of the community impact statement to the division's office of mining reclamation and office
of explosives and blasting and to the county commissions, county
clerk's office and local or regional economic development
authorities of the areas to be affected by the surface mining
operations.
(b) The community impact statement, where practicable, shall
not be a highly technical or legalistic document, but shall be
written in a clear and concise manner understandable to all
citizens. The community impact statement shall include the
following:
(1) The amount and location of land to be mined or used in the
actual mining operations;
(2) The expected duration of the mining operations in each area
of the community;
(3) The extent of anticipated mining-related property
acquisitions, to the extent that such acquisitions are known or
knowable;
(4) The intentions of the surface and mineral owners relative
to the acquired property, to the extent that such intentions are known or knowable;
(5) A statement of the post-mining land use for all land within
the permit boundary;
(6) The intended blasting plan and the expected time and
duration it will affect each community;
(7) Information concerning the extent and nature of valley
fills and the watersheds to be affected; and
(8) Economic information, such as the number of jobs created
and annual coal production resulting from the surface mining
operation, the anticipated life of the mining operation and such
other information as may be deemed appropriate.
(c) Where the operator makes any significant revision to the
permit application under section eighteen, article three of this
chapter, which revision substantially affects any of the
information provided in subsection (b) of this section, the
operator shall revise the affected provisions of its community
impact statement and shall submit such revisions as set forth in
subsection (a) of this section.
(d) The provisions of this section shall apply as follows:
(1) To all surface mining permits granted after the effective
date of this article; and
(2) At the first renewal date of all previously issued permits;:
Provided, That the permittee shall be afforded ninety days from
said date to comply with the provisions of this article.
§22-3B-7. Coalfield community development statement.
(a) At the time that the operator applies for any permit
pursuant to article three of this chapter, the office shall
coordinate the development of a coalfield community development
statement as described in this section.
(b) The office shall establish a procedure for the development
of the coalfield community development statement, which procedure
shall include the following:
(1) A method for giving adequate notice to affected persons and
entities about the coalfield community development statement
process and how they can participate. Notice shall be given to at
least the following:
(A) The permit applicant;
(B) The individuals living in the affected communities;
(C) Business owners and operators doing business in the
affected communities;
(D) Any company owning land or resources on the property to be
mined, including the surface and mineral owners of such property;
and
(E) State and local government agencies such as county
commissions, city or town governments and local or regional
economic development authorities; and
(2) A procedure to follow which provides for fair and
reasonable input into the development of the coalfield community
development statement by those persons and entities listed in
subdivision (1) of this subsection.
(c) The office shall determine what information, findings and
recommendations shall be contained in the coalfield community
development statement, which shall include, but not be limited to,
the following:
(1) An evaluation of the future of the community once mining
operations are completed;
(2) A method to measure compliance with the provisions of section eight of this article; and
(3) A method to measure compliance with the provisions of
section nine of this article.
(d) The Legislature hereby finds that, while the preparation
of a coalfield community development statement is important to
addressing the legitimate needs and concerns of the communities,
individuals and entities which may be affected by surface mining
operations, such a statement as required by this section is in part
subjective in nature. The Legislature further finds that, because
of such subjectivity, the development of a coalfield community
development statement shall not be an element of or in any way
related to the application for and approval of any surface mining
permit under article three of this chapter. Therefore, the
following shall apply to this section:
(1) The office alone shall have authority over the
coordination and development of the coalfield community development
statement; and
(2) The development of the coalfield community development
statement shall be a collaborative effort among those persons and entities identified in subdivision (1) of subsection (b) of this
section.
§22-3B-8. Determining and developing needed community assets.
(a) As a part of the coalfield community development statement
required by section seven of this article, the office, in a
collaborative effort with those persons and entities identified in
subdivision (1) of subsection (b) of section seven of this article,
shall determine the community assets that may be developed by the
community, county or region to foster its viability when surface
mining operations are completed.
(b) Community assets to be identified pursuant to subsection
(a) of this section may include the following:
(1) Water and waste water services;
(2) Developable land for housing, commercial development or
other community purposes;
(3) Recreation facilities and opportunities; and
(4) Education facilities and opportunities.
(c) To assist the office in the development of the coalfield
community development statement, the operator shall be required to prepare and submit to the office the information set forth in this
subsection, as follows:
(1) A map of the area for which a permit under article three of
this chapter is being sought or has been obtained;
(2) The names of the surface and mineral owners of the property
to be mined pursuant to the permit; and
(3) A statement of the post-mining land use for all land which
may be affected by the mining operations.
(d) In determining the nature and extent of the needed
community assets, the office shall consider at least the following:
(1) An evaluation of the future of the community once mining
operations are completed as required to be determined in the
coalfield community development statement;
(2) The prospects for the long-term viability of any asset
developed under this section;
(3) The desirability of forgoing some or all of the asset
development required by this section in lieu of the requirements of
section nine of this article;
(4) The determinations made during the development of the coalfield community development statement of the impacts of the
mining operations on the community; and
(5) The extent to which the community, local, state or the
federal government may participate in the development of assets the
community needs to assure its viability.
§22-3B-9. Securing developable land and infrastructure.
(a) As a part of the coalfield community development statement
required by section seven of this article, the office, in a
collaborative effort with those persons and entities identified in
subdivision (1) of subsection (b) of section seven of this article,
shall determine the land and infrastructure needs in the general
area of the surface mining operations.
(b) For the purposes of this section, the term "general area"
shall mean the county or counties in which the mining operations
are being conducted, or any adjacent county.
(c) To assist the office in the development of the coalfield
community development statement, the operator shall be required to
prepare and submit to the office the information set forth in this
subsection, as follows:
(1) A map of the area for which a permit under article three of
this chapter is being sought or has been obtained;
(2) The names of the surface and mineral owners of the property
to be mined pursuant to the permit; and
(3) A statement of the post-mining land use for all land which
may be affected by the mining operations.
(d) In making a determination of the land and infrastructure
needs in the general area of the mining operations, the office
shall consider at least the following:
(1) The availability of developable land in the general area;
(2) The needs of the general area for developable land;
(3) The availability of infrastructure including, but not
limited to, access roads, water service, wastewater service, and
other utilities;
(4) The amount of land to be mined and the amount of valley to
be filled;
(5) The amount, nature and cost to develop and maintain the
community assets identified in section eight of this article; and
(6) The availability of federal, state and local grants and low-interest loans to finance all or a portion of the acquisition
and construction of the identified land and infrastructure needs of
the general area.
(fe) In making a determination of the land and infrastructure
needs in the general area of the surface mining operations, the
office shall give significant weight to developable land on or near
existing or planned multi-lane highways.
§22-3B-10. Action report; annual update.
(a) Based upon the information developed under sections eight
and nine of this article, the office shall prepare an action report
which shall make recommendations for achieving economic development
initiatives, including identifying sources of potential funding.
(b) The office shall prepare an annual status update of the
action report which shall describe accomplishments and prospects
for continued economic development.
§22-3B-11. Land acquisitions.
(a) The office shall establish a procedure to assist property
owners who desire voluntarily to sell their property to the
operator or any person, firm or corporation directly or indirectly affiliated with the operator. The procedure developed shall be
subject to the following:
(1) The procedure only shall apply if all the following
conditions are met:
(A) The operator or any person, firm or corporation directly or
indirectly affiliated with the operator, makes an offer in writing
to purchase the property stating all the terms and conditions of
the proposed purchase;
(B) The property to be purchased is located within one thousand
feet of property which actually is or will be mined; and
(C) Structures actually being used for commercial purposes or
occupied residences are situate on the property to be purchased;
(2) Once a permit application has been filed, the operator
shall notify the office of any intended property acquisitions to
which this section applies;
(3) The office shall cause notice to be given to potential
sellers of the procedure established by this section, but shall
provide no other assistance unless requested by the potential
seller;
(4) If requested by the potential seller, the office shall make
a determination as to whether the value of the property intended to
be acquired is diminished by ongoing or intended mining operations
and that the purchase price offered by the purchaser is less than
the value the property would have had prior to any diminution of
value. The office only shall provide assistance if it determines
that the value of such property is diminished and that the offer
made by the operator is less than the value the property would have
had prior to any diminution of value; and
(5) If the office determines that the value of such property
is diminished and that the offer made by the operator is less than
the value the property would have had prior to any diminution of
value, then the office shall establish the value of such property
prior to any diminution and shall certify the same to the parties.
(b) The office shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
for the development of standards for establishing the value of
property by the office under subsection (a) of this section.
§22-3B-12. Rule Making.
The office shall propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
to establish, implement and enforce the provisions of this article.
§22-3B-13. Termination of office.
The office of coalfield community development is continued
until the first day of July, two thousand two, pursuant to the
provisions of article ten, chapter four of this code.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7a. Certification agreements; required provisions;
effective date.
(a) If the Any applicant for the water quality certification
that seeks certification of activities covered by the United States
army corps of engineers nationwide permit number twenty-one or
twenty-six permits issued in accordance with 33 U.S.C. §1344 and 33
C.F.R. Part Parts 323 and 330 for use at or in conjunction with a
surface coal mining operation as defined in section three, article
three of this chapter, then certification may be issued subject to
the following conditions:
(1) If the applicant's surface coal mining operation will not impact waters of the state designated as national resource waters
and streams where trout naturally reproduce and will not impact
waters of the state which are wetlands of one acre or more in size
of the state in a manner inconsistent with all federal standards as
required by the federal Clean Water Act, and if the watershed above
the toe of the farthest downstream permanent structure authorized
pursuant to an United States army corps of engineers nationwide
permit number twenty-one or twenty-six permits issued in accordance
with 33 U.S.C. §1344 and 33 C.F.R. Parts 323 and 330 is less than
four hundred eighty two hundred fifty acres, then the director may
issue a water quality certification containing certain conditions
including, but not limited to, the following pursuant to the
requirements of this section. If the watershed above the toe of
the farthest downstream permanent structure impacted is equal to or
greater than two hundred fifty acres, the director shall require
that mitigation be undertaken. Additionally, the director may
require mitigation for temporary impacts to waters of the state as
specified in subdivision (2) of this subsection.
(A) All earthwork operations shall be carried out so that sediment runoff and soil erosion to waters of the state are
controlled and minimized. Best management practices for water
pollution control shall be used by the surface coal mining
operations;
(B) Heavy equipment, such as bulldozers, backhoes and
draglines, may not be used or operated within waters of the state
outside of the boundaries of a permanent structure, unless that use
cannot be avoided. If use of heavy equipment within waters of the
state outside the boundaries of a permanent structure is
unavoidable, then the work shall be performed so as to minimize
resuspension of sediments and disturbance to substrates, banks or
riparian vegetation;
(C) Any riprap shall be of a composition that does not cause a
diminution of existing water quality by adversely affecting the
biological, chemical or physical properties of waters of the state.
If riprap is used, it shall be of a weight and size using current
and prudent engineering design; and
(D) Removal of riparian vegetation outside the boundaries of a
permanent structure shall be minimized.
(2) If the applicant's surface coal mining operation will not
impact waters of the state designated as national resource waters
and streams where trout naturally reproduce and will not impact
waters of the state which are wetlands of one acre or more in size,
and if the watershed above the toe of the farthest downstream
permanent structure authorized pursuant to an United States army
corps of engineers nationwide permit number twenty-one or
twenty-six is less than four hundred eighty acres, then the
director may issue a water quality certification. The director
shall require that all earthwork operations shall be carried out so
that sediment runoff and soil erosion to waters of the state are
controlled and minimized, and that best management practices for
water pollution control shall be used by the surface coal mining
operations.
(3) (2) If the watershed above the toe of the farthest
downstream permanent structure authorized pursuant to the United
States army corps of engineers nationwide permit number twenty-one
or twenty-six permits issued in accordance with 33 U.S.C. §1344 and
33 C.F.R. Parts 323 and 330 is greater than or equal to four hundred eighty two hundred fifty acres and all other necessary
requirements are met consistent with this section, then the
director may shall further condition a water quality certification
on a requirement that the applicant mitigate the expected water
quality impacts under the following conditions:
(A) The water quality certification may require mitigation at
a ratio two acres for every one acre of permanent loss of waters of
the state on the permitted area, except for waters of the state
isolated as a result of the permanent structure appropriate to the
type of waters impacted, consistent with state or federal standards
as required by the federal Clean Water Act, for the types and
locations of waters impacted;
(B) For waters of the state isolated as a result of a permanent
structure, the maximum mitigation ratio shall be five-tenths acre
of mitigation area for every one acre of those isolated waters;
(C) The director may accept mitigation on the permitted area,
mitigation off the permitted area, mitigation banking of waters of
the state, or any combination thereof, or any other mitigation
measure acceptable to the director; and
(D) Upon completion of the work required by an agreement to
conduct operations authorized by this subsection the surface coal
mining operation shall obtain a certification from a registered
professional engineer that all mitigation work specified in the
agreement has been completed in accordance with the conditions of
the water quality certification. The director shall promptly
review the certification and provide to the surface coal mining
operation with notice that all mitigation work has been
successfully completed, or that further mitigation work is
necessary to meet the conditions imposed by the water quality
certification. The mitigation amount may not exceed two hundred
twenty-five thousand dollars per acre of stream disturbed above the
toe of the farthest downstream permanent structure. Those moneys
shall be deposited in the stream restoration fund under the
jurisdiction of the division of environmental protection and any
expenditures from this fund after the thirtieth day of June, one
thousand nine hundred ninety-eight, shall not be authorized from
collections but shall only be authorized by appropriation by the
Legislature. Additionally, the expenditures are only authorized in those counties where the activity leading to the mitigation
occurred or in those counties adjacent to the counties where the
activity leading to the mitigation occurred. The director shall by
the thirty-first day of December of each year provide a report to
the joint committee on government and finance on receipts and
expenditures from the stream restoration fund, the number of
acreage reclaimed by the division through the use of these funds
and the effectiveness of achieving stream restoration through the
payment of the mitigation amounts into the fund in lieu of
reclamation by the certificate holder.
(4) The director may issue a general certification if the
certification consistent with state and federal laws, rules and
regulations, for use of United States army corps of engineers
nationwide permit number twenty-one or twenty-six for a road
crossing on the permitted area directly impacting less than two
hundred linear feet of waters of the state.
(5) (3) The director shall confer with representatives of the
surface coal mining industry and representatives of environmental
organizations with an interest in water quality in developing a manual of approval options for mitigation on permitted areas,
mitigation off permitted areas and mitigation involving banking of
waters of the state.
(6) The director has twenty working days to make a
determination that an application for a water quality certification
is administratively complete or to give written notification to the
applicant of specific deficiencies. The director has sixty working
days to review an administratively complete application for a water
quality certification, to issue or waive that certification, or to
deny that certification with specific deficiencies identified, and
to notify the applicant of the final determination: Provided, That
public comment and public participation shall be in accordance with
the certification requirements set forth in article three, chapter
twenty-two of this code.
(7) The performance evaluation and research division of the
legislative auditor's office shall conduct a preliminary
performance review of the mitigation program of the division of
environmental protection during the interim of the Legislature in
the year one thousand nine hundred ninety-eight. The joint committee on government and finance shall authorize a study of the
methods to determine values for stream mitigation. The joint
committee in authorizing the study shall set the guidelines and
issues to be studied. A biannual status report as to the progress
of study shall be provided to the joint committee on government and
finance on or before the tenth day of July of each year and the
tenth day of January of each year until the study has been
completed. Within thirty days of completion, a copy of the study
shall be provided to the joint committee on government and finance.
(8) The proposed surface coal mining operation shall comply
with all state and federal laws, rules and regulations. The
director shall review each mitigation agreement signed on or after
the ninth day of March, one thousand nine hundred ninety-six, to
ensure compliance with all the provisions of this section.
(4) The director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, for the purpose of implementing the provisions of this
section which rules shall include, but not be limited to, the
following:
(A) Establishing all necessary operational and performance
requirements for an operator undertaking activities covered by this
section;
(B) Modifying inconsistencies in the provisions of this
section, when necessary and appropriate to bring the provisions of
this section into compliance with state or federal law or
regulation; and
(C) Establishing the specific operational requirements for
mining operations consistent with this section appropriate to
protect the waters of this state during and following mining
operations.
(b) The joint committee on government and finance may undertake
or facilitate a study of the impact of mountaintop mining and
valley fills upon the state of West Virginia.
(1) To facilitate the study, the joint committee on government
and finance is further authorized to coordinate with and seek
funding from appropriate federal agencies to facilitate the study
including, but not limited to:, the environmental protection agency,
army corps of engineers, office of surface mining and the fish and wildlife service.
(2) In order to facilitate the research, the joint committee on
government and finance shall appoint a council to coordinate and
direct the research. The composition of the council shall be
determined by the joint committee, but shall include
representatives from the various interested parties as determined
solely by the joint committee.
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