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 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 and the office of community impact
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;
the
office of community impact's powers and duties; promulgation
of rules; requiring a community impact statement;
establishing a claims process; assisting property owners
desiring to sell their land; determining and developing
needed community assets; addressing land and infrastructure
needs; establishing the mountaintop removal fund;
continuation of offices; requirements for a pre-blast survey;
recordation of notice of pre-blast survey and waiver;
prohibiting production blasting within five hundred feet of
a protected structure; requiring site -specific blast designs
between five hundred feet and one thousand feet of a
protected structure; requiring surface 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 for mitigation of watersheds by surface mining operators; and authorizing
studies of the impact of surface mining.
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 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 section seven-a, article eleven of said
chapter be amended and reenacted; and that said chapter be
further amended by adding thereto two new articles designated
articles three-a and three-b, all to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-7. Offices within division; continuation of the office of
water resources.
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 community impact, 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.
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 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 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
rules 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 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
horizons or other strata that are shown to be both texturally and
chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in
sufficient quantities to create in the regraded final soil a root
zone of comparable depth and quality to that which existed in the
natural soil, and if not utilized immediately, stockpile this
material separately from other spoil and provide needed
protection from wind and water erosion or contamination by other
acid or toxic material; (C) replace and regrade the root zone
material described in subparagraph (B) above with proper
compaction and uniform depth over the regraded spoil material;
and (D) redistribute and grade in a uniform manner the surface soil horizon described in subparagraph (A) above;
(8) Create, if authorized in the approved surface-mining and
reclamation plan and permit, permanent impoundments of water on
mining sites as part of reclamation activities in accordance with
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 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 (B) of this
subdivision prior to commencement of surface-mining operations,
such 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 other actions as
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 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 variances in accordance with the provisions
of this subparagraph and has imposed such additional requirements
as the director deems 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 haulroads into and across the site of
operations will control or prevent erosion and siltation,
pollution of water, damage to fish or wildlife or their habitat,
or public or private property:
Provided, That access roads constructed for and used to provide infrequent service to surface
facilities, such as ventilators or monitoring devices, 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 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;
(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 underdrains in a manner that filtration of the water into
the spoil pile will be prevented; (E) if placed on a slope, the
spoil is placed upon the most moderate slope among those upon
which, in the judgment of the 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) 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 approval may not be
unreasonably withheld if the site is suitable;
(23) Meet such other criteria as are necessary to achieve
reclamation in accordance with the purposes of this article,
taking into consideration the physical, climatological and other
characteristics of the site;
(24) To the extent possible, using the best technology currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife and related environmental values,
and achieve enhancement of these resources where practicable; and
(25) Retain a natural barrier to inhibit slides and erosion
on permit areas where outcrop barriers are required:
Provided,
That constructed barriers may be allowed where: (A) Natural
barriers do not provide adequate stability; (B) natural barriers
would result in potential future water quality deterioration; and
(C) natural barriers would conflict with the goal of maximum
utilization of the mineral resource:
Provided,
however, That at
a minimum, the constructed barrier must be of sufficient width
and height to provide adequate stability and the stability factor
must equal or exceed that of the natural outcrop barrier:
Provided further, That where water quality is paramount, the
constructed barrier must be composed of impervious material with
controlled discharge points.
(c) (1) The 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 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 be sufficient width and height to provide adequate
stability and the stability factor must equal or exceed that of
the natural outcrop barrier:
Provided further, That where water
quality is paramount, the constructed barrier must be composed of
impervious material with controlled discharge points; (B) the
reclaimed area is stable; (C) the resulting plateau or rolling
contour drains inward from the outslopes except at specific
points; (D) no damage will be done to natural watercourses; (E)
spoil will be placed on the mountaintop bench as is necessary to
achieve the planned postmining land use:
And provided further,
That all excess spoil material not retained on the mountaintop
shall be placed in accordance with the provisions of subdivision
(22), subsection (b) of this section; and (F) ensure stability of
the spoil retained on the mountaintop and meet the other
requirements of this article.
(5) All permits granted under the provisions of this subsection shall be reviewed not more than three years from the
date of issuance of the permit; unless the applicant
affirmatively demonstrates that the proposed development 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 rules that permit variances
from the approximate original contour requirements of this
section:
Provided, That the watershed control of the area is improved:
Provided,
however, That complete backfilling with
spoil material is required to completely cover the highwall,
which material will maintain stability following mining and
reclamation.
(f) The director shall promulgate rules 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 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 remedial action as may be necessary or expedient to secure
the coal processing waste pile and to abate the conditions which
cause the danger to human life:
Provided,
however, That the cost
reasonably incurred in any remedial action taken by the 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, for the purpose of
disposing, depositing, dumping coal processing wastes thereon or
removing coal processing waste therefrom, or to employ a coal
processing waste pile for retarding the flow of or for the
impoundment of water.
§22-3-13a. Pre-blast survey requirements.
(a) At least thirty days prior to commencing production
blasting, as defined in section twenty-two-a of this article, the
surface mining operator or an operator's designee shall notify in writing all owners and occupants of man-made dwellings or
structures within
five tenths of a mile of a surface mining
operation or within seven tenths of a mile in the case of a
large-scale mountaintop removal mining operation as defined in
section three, article three-b of this chapter,
that the operator
or the operator's designee will perform pre-blast surveys in
accordance with subsection (f) of this section.
(b) In the case of a large-scale mountaintop removal mining
operation, as defined in section three, article three-b of this
chapter, if an operator already has completed pre-blast surveys
within five tenths of a mile and has commenced operations by the
effective date of this section, then additional pre-blast surveys
will only have to be performed on the man-made dwellings or
structures within the additional two tenths of a mile. Within
thirty days of the effective date of this section, the large- scale mountaintop removal mining operator shall notify in writing
all owners and occupants of man-made dwellings or structures
within the additional
two tenths of a mile
that the operator or
the operator's designee will perform pre-blast surveys in
accordance with subsection (f) of this section and shall perform
the additional pre-blast surveys within ninety days of the effective date.
(c) An owner or occupant may waive the right to a pre-blast
survey in writing and shall send copies of the written waiver to
the office of explosives and blasting and the surface mining
operator. If a dwelling is occupied by a person other than the
owner, for the waiver to be effective then the owner and the
occupant both must waive the right to a pre-blast survey in
writing and shall send copies of the written waiver to the office
of explosives and blasting and the surface mining operator.
(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(s) number(s);
(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 appurtenances
including, but not limited to: (A) the 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) Document in writing and by drawings the pre-blast defects and other physical conditions of all structures,
appurtenances and water sources which could be affected by
blasting;
(11) Document in writing and by drawings the exterior and
interior of the structure to indicate pre-blast defects and
condition;
(12) Document in writing and by drawings the exterior and
interior of any appurtenance of the structure to indicate pre- blast defects and condition;
(13) Sufficient exterior and interior photographs, using a
variety of angles, of the structure and appurtenances to indicate
pre-blast defects and the condition of the structure and
appurtenances;
(14) Document in writing and by drawings any unusual or
substandard construction technique and materials used on the
structure and/or appurtenances;
(15) Identify and detail the type of water supply, describe
the type of system and treatment being used, perform a water
analysis on water supplies other than public utilities, and
record all pertinent data including the quantity and quality of
water;
(16) When the water supply is a well the following
documentation is needed: the type of well, the well log, the
depth, age, type of casing or lining, the static water level,
flow data, pump capacity, drilling contractor, the source for the
given data and any other pertinent data;
(17) Describe any portion of the structure and appurtenances
not documented or photographed and the reasons;
(18) Signature of the person performing the survey; and
(19) Any other information required by the office of
explosives and blasting.
(g) The pre-blast survey must be received, reviewed and
approved by the office of explosives and blasting prior to the
commencement of any production blasting. After the pre-blast
survey is approved by the office of explosives and blasting, a
copy must be sent to the owner and occupant.
(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 dealing with pre-blast
survey requirements and setting the qualifications for
individuals and firms performing pre-blast surveys.
§22-3-22a. Designation of areas unsuitable for blasting; site
specific blasting design requirement.
(a) For purposes of this section, the term "production
blasting" shall mean 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" shall mean blasting to develop haul roads, mine access
roads, coal preparation plants, or underground coal mine sites
and shall not include production blasting.
(c) For purposes of this section, the term
"protected
structure" shall mean any occupied dwelling, temporarily
unoccupied dwelling which has been occupied within the past
ninety days, public building, structure for commercial purposes,
school, church, community or institutional building, public park
or water wells.
(d) Production blasting is prohibited within five hundred feet of a protected structure or within three 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 so as to prevent: (1) Injury to persons; (2) Damage to
public and private property outside the permit area; (3) Adverse
impacts on any underground mine; and (4) Change in the course,
channel or availability of ground or surface water 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 and the current use of the protected structure.
(f) An owner or occupant of a protected structure may waive
the blasting prohibition within five hundred feet or the site
specific restriction within one thousand feet in writing and
shall send copies of the written waiver to the office of
explosives and blasting and the surface mining operator. If a
protected structure is occupied by a person other than the owner, for the waiver to be effective then the owner and the occupant of
the protected structure both must waive the blasting prohibition
within five hundred feet or the site specific restriction within
one thousand feet in writing and shall send copies of the written
waiver to the office of explosives and blasting and the surface
mining operator.
§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 supply has been affected by contamination, diminution or
interruption proximately caused by such surface-mining operation,
unless waived by said owner.
(c) There shall be a non-rebuttable presumption that a
mining operation caused damage to an owner's underground water
supply if the inspector determines the following: (1) contamination, diminution or damage to an owner's underground
water supply exists; (2) the owner's underground water supply is
within five tenths of a mile of a surface mining operation or
seven tenths of a mile in the case of a large-scale mountaintop
removal mining operation as defined in section three, article
three-b of this chapter; and (3) a pre-blast survey was performed
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) 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 terms of
this section.
§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 provisions of the rules and laws established
to regulate blasting.
(b) Where inspection by the division of environmental
protection establishes that the blasting was not in compliance
with subsection (a) of this section 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 surface mining operator shall
be assessed a penalty of not less than five thousand dollars nor
more than ten thousand dollars.
(2) For the second offense within one year of the first
offense, the surface mining operator shall be assessed a penalty
of not less than ten thousand dollars nor more than twenty-five
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 hereinabove 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),
subsection (b) of this section.
(4) In addition to the penalties described above, for the
second and subsequent offenses on any one permitted area
regardless of the time period, the owner of the protected structure shall be entitled to a rebuttable presumption that the
property damage is a result of the blast if a pre-blast survey
was performed.
(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) The aforementioned remedies are not exclusive and shall
not bar an owner or occupant from any other remedy accorded by
law.
(d) 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 five
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 three hundred
feet of a cemetery the monetary penalties and revocation, as set
out in subsection (b) of this section apply.
(e) 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, to the credit of the "Mountaintop Removal Fund"
established in section ten, article three-b of this chapter.
(f) 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.
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 all practicable 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
the blasting laws and rules of this state pursuant to surface
mining and 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 state laws and rules relating to blasting on
surface mining operations conducted within this state.
§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) Overseeing the pre-blast survey process, as set out in
section thirteen-a, article three of this chapter;
(c) The education, training, examination and certification of blasters; and
(d) 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 which 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,
and which set 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 permittee against whom an enforcement action is taken by
the division of environmental protection;
(2) Specific minimum requirements for pre-blast surveys, as set out in section thirteen-a, article three of this code;
(3) A requirement that all pre-blast surveys be received,
reviewed and approved as complete by the office of explosives and
blasting before the commencement of any production blasting;
(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
prevent: (A) Injury to persons; (B) damage to public and private
property outside the permit area; (C) adverse impacts on any
underground mine; and (D) change in the course, channel or
availability of ground or surface water outside the permit area;
(7) Requiring surface mining operators to publish the
planned blasting schedule in a newspaper of general circulation
in the locality of the surface mining operation; and
(8) Requiring surface mining operators to provide adequate
advance written notice of the proposed blasting schedule to local
governments, owners and occupants living within one-half of a mile of a proposed surface mining operation and seven tenths of
a mile of a proposed large-scale mountaintop removal mining
operation, as defined in section three, article three-b 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, which rules
shall include, but not be limited to, the following:
(1) Establishing a process for the education, training,
examination and certification of blasters working on surface
mining operations; and
(2) 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.
§22-3A-5. 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-6. Funding.
For the purposes of administrating the provisions of this
article, the office shall receive appropriations from the
"Mountaintop Removal Fund", as established in section ten,
article three-b of this chapter.
§22-3A-7. 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 Community Impact
§22-3B-1. Legislative findings and declaration.
The Legislature hereby finds and declares the following:
(a) That the Legislature recognizes the significant
contribution coal mining, including mining by the large-scale
mountaintop method of coal mining, provides the economy of West Virginia, including, but not limited to, profits for mining
interests, jobs, high wages and good benefits, financial support
for suppliers and the jobs they provide, significant tax and
other revenues and the resultant benefit to state and local
governments as well as the citizens of West Virginia, the general
economic benefit provided to the entire state, contributions to
local civic, education and service groups, and, in the case of
mountaintop removal mining, creation of flat land for
development;
(b) That, although mining always has impacted the lives of
the people of West Virginia, the method called "large-scale
mountaintop removal" has created an impact of significant
proportions;
(c) That large-scale mountaintop removal mining is a process
of mining coal that is not just larger in scope or size than
traditional mining methods. Large-scale mountaintop removal
mining is different in kind - it is a different type of mining;
(d) That the Legislature, recognizing the realities of the
world marketplace, does not recommend the abolition of large- scale mountaintop removal mining and, on balance, and subject to
ongoing study and the effectiveness of regulatory efforts, finds that the positive impacts of large-scale mountaintop removal
mining outweigh the negative impacts;
(e) That, if large-scale mountaintop removal mining is to
continue in its current form, then the state owes a duty to its
citizens to begin regulating the impact of the activity on the
people of West Virginia who are or may be adversely impacted;
(f) That, where implemented, large-scale mountaintop removal
mining tends 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 coal
fields 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;
(g) That, if the coal industry, and those benefitting from
the extraction of mineral resources, are allowed the short-term
privilege of mining our state's coal through mining practices
which impact a large group of people - some in a very negative
way - and through practices which will extract significant
portions of the remaining reserves in an accelerated fashion, then with that privilege must come the responsibility of helping
address the long-term needs of the people impacted by the
activity;
(h) That, once it becomes public knowledge that a permit is
being sought, the marketability of property changes and the
relative bargaining power of the parties changes with it. The
potential for negative impact on those living in communities near
large-scale mountaintop removal mining operations limits the
options for the landowner and unfairly shifts bargaining power in
favor of the mining interests;
(i) That the situation may sometimes exist when a person is
so negatively affected by the impacts of large-scale mountaintop
removal mining that the person should at least be given the
opportunity to sell and to leave a community. A more formal
process to accommodate the same should be established; and
(j) That there is no agency, other than the courts, which
offers a claims process or compensation to landowners for
legitimate damages caused by large-scale mountaintop removal
mining. There is a need to develop a prompt, fair and
inexpensive process for filing and resolving claims.
§22-3B-2. Office of community impact.
(a) The office of community impact is hereby established
within the division of environmental protection.
(b) The director shall appoint a chief to administer the
office. The chief shall serve at the will and pleasure of the
director.
§22-3B-2a. Application of article.
Except for the provisions of section six of this article, the
provisions of this article only shall apply to permits obtained
for mining operations classified as large-scale mountaintop
removal mining operations as the term is defined in section three
of this article.
§22-3B-3. Definitions.
For the purpose of this article, the following terms have the
meanings ascribed to them, unless the context clearly indicates
otherwise:
(a) "Chief" means the chief of the office of community
impact;
(b) "Director" means the director of the division of
environmental protection;
(c) "Division" means the division of environmental
protection;
(d) "Intended mining operations" means the total scope of
mining activities which the permit applicant intends to conduct
and which includes at the minimum all intended permit areas of a
contiguous or nearly contiguous mining site;
(e) "Large-scale mountaintop removal mining operations"
includes:
(1) The intended or actual use on any mining operation, or
intended mining operation, of multiple spreads of equipment
containing at least one primary excavator or dragline with a
capacity in excess of forty-five cubic yards;
(2) The intended mining on slopes which average twenty
degrees or greater and, either the intended or actual utilization
of fill disposal within any single drainage area that exceeds two
hundred fifty acres on any mining operation or intended mining
operations;
(3) Any surface extraction mining operation or intended
operations, that will cause active mining and associated blasting
activities to be conducted in the same general vicinity for five
years or longer; or
(4) Any mining operation or intended mining operation which
will result in the creation or existence of three hundred acres or more of unreclaimed land;
(f) "Office" means the office of community impact; and
(g) "West Virginia development office" means the office set
forth in article two, chapter five-b of this code.
§22-3B-4. Powers and duties.
(a) The office shall have and exercise the following duties,
powers and responsibilities:
(1) To administer a process for developing and implementing
community impact statements as provided in section five of this
article;
(2) To manage and administer the claims process provided in
section six of this article;
(3) To administer the land acquisition process provided in
section seven of this article;
(4) To manage the process for determining the assets that
could be developed in and maintained by the community to assure
its viability and the permit applicant's plan to develop those
assets as provided in section eight of this article;
(5) To manage the process for determining the developable
land and infrastructure needs in the general area of the mining
operations and the permit applicant's plan to help address those needs as provided in section nine of this article;
(6) To catalog and review reports from the use of equipment
used to monitor the effects of blasting;
(7) To review research, especially research relating to the
impact of large-scale mountaintop removal mining on people and
their communities, and make recommendations to the appropriate
governmental authorities;
(8) To determine the need for meetings to be held among the
various interested parties in the communities impacted by large- scale mountaintop removal mining and, when determined
appropriate, to facilitate such meetings;
(9) To act as a liaison between the citizens and the division
of environmental protection, including prompt answering of
questions, giving direction and distributing information;
(10) To establish and implement a process to inform citizens
of pre-blast surveys, including, but not limited to the
following:
(A) The importance of pre-blast surveys;
(B) How the pre-blast survey relates to a future claim for
damages;
(C) The requirements and procedure for a pre-blast survey as defined in section thirteen-a, article three of this chapter; and
(D) Any other information to help a citizen make an informed
decision concerning pre-blast surveys;
(11) To establish and implement a process to inform citizens
how to make and pursue a complaint and where to direct the
complaint, including furnishing any relevant addresses and
telephone numbers; and
(12) To maintain and operate a toll-free telephone number to
receive and address questions, concerns and complaints about
large-scale mountaintop removal mining.
(b) The office may exercise such other powers and duties as
might from time to time be prescribed by the director.
§22-3B-5. Community impact statement.
(a) Prior to the granting of any permit pursuant to section
eight, article three of this chapter, the permit applicant shall
develop a community impact statement as described in this
section.
(b) The office shall establish a process for the development
of the community impact statement which process shall include at
least the following:
(1) A determination of those persons and entities who comprise the community which will be impacted by the mining
operations, which shall include, but not be limited to:
(A) The individuals living in the communities near or in
close proximity to the property to be mined;
(B) Business owners and operators doing business in the
communities near or in close proximity to the property to be
mined;
(C) The permit applicant;
(D) Any company owning land or resources which will be
impacted by the mining operations; and
(E) Local government agencies such as county commissions,
city or town governments and local or regional economic
development authorities;
(2) A method for giving adequate notice to those persons and
entities about the community impact statement process and how
they can participate; and
(3) A procedure to follow which provides for fair and
reasonable input into the development of the community impact
statement by the persons and entities to be impacted by the
mining operations; and
(4) The approval of the community impact statement by the office.
(c) The office shall determine what information, findings
and recommendations shall be contained within the community
impact statements, which shall include, but not be limited to 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 each community;
(3) Any future plans to extend the proposed mining
operations;
(4) The intended blasting plan and the expected time and
duration it will affect each community;
(5) Information concerning the extent and nature of valley
fills and the watersheds to be affected;
(6) The extent of property acquisitions anticipated;
(7) The intentions of the mining interests relative to the
acquired property;
(8) The direct impact on the community from property
acquisitions, i.e. businesses, churches, schools or other
properties or entities to be affected;
(9) The consequential impact on the community of the loss of
community assets;
(10) A realistic evaluation of the future of the community
once mining operations are completed;
(11) A statement of the post-mining land use for all land to
be impacted by the mining operations;
(12) Subject to the provisions of section eight of this
article, a determination of the assets that could be developed in
and maintained by the community to assure its viability, if any,
when mining operations are completed and the permit applicant's
plan to develop those assets; and
(13) Subject to the provisions of section nine of this
article, a determination of the land and infrastructure needs in
the general area of the mining operations and the permit
applicant's plan to help address those needs.
(d) The office shall conduct such public meetings as it
shall determine necessary to comply with the provisions of this
section.
(e) The Legislature hereby finds that, while the preparation
of a community impact statement is important to addressing the
legitimate needs and concerns of the communities, individuals and entities impacted by large-scale mountaintop removal mining, such
a statement as required by this section is in part subjective in
nature. The Legislature also finds that litigation surrounding
such statements can often delay or even prevent mining
operations. By the requirement of the community impact
statement, it is not the intent of the Legislature to establish
a process which might unduly delay and prevent mining permits.
Therefore, the following shall apply to the community impact
statement and the development process:
(1) The office alone shall have authority over the
development of the community impact statement;
(2) Once the community impact statement is approved, it
shall become a part of any permit that is granted; and
(3) Injunctive relief to enjoin the development or the
granting of a permit based upon the alleged or perceived
inadequacy of the community impact statement, its contents or the
procedure used to develop the community impact statement, shall
not be granted by any court or administrative authority.
(f) The provisions of this section shall apply as follows:
(1) To all permits granted after the effective date of this
section; and
(2) To all permits where the director determines, either
independently or upon application of any interested party, that
the intended mining operations will be conducted in the same
general vicinity for five or more years, provided that the
permittee shall be afforded six months from the date of said
determination to comply with the provisions of this section.
§22-3B-6. Claims process.
(a) The office shall establish and manage a process for the
filing, administration and resolution of claims.
(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 property arising from the activities
conducted pursuant to a permit to mine coal granted pursuant to
the provisions of this chapter; and
(2) Damage incurred by a claimant who is the owner or tenant
of the physical property.
(c) The claims process established by the office shall
include at least 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.
(d) If either party 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) If the claimant chooses, 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
permittee shall pay the costs of the proceeding, as well as
reasonable representation fees and costs of the claimant.
(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, the finding of the office, if not
taken to arbitration, shall be final and the finding of an
arbitrator if taken to arbitration shall be final and there shall
be no recourse in any court of law from either such final determination. 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 permittee shall pay any claim for which the
permittee is adjudged liable within ten (10) days of a final
determination. If the claim is not paid within ten (10) days,
the director shall issue a cessation order pursuant to section
sixteen, article three of this chapter for all sites permitted by
the permittee.
(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.
§22-3B-7. Land acquisitions.
(a) The office shall establish a process to assist property
owners who desire voluntarily to sell their property to the
permittee or any person, firm or corporation directly or
indirectly affiliated with the permittee. The process developed shall be subject to the following:
(1) The process only shall apply if all the following
conditions are met:
(A) The permittee or any person, firm or corporation
directly or indirectly affiliated with the permittee, 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) There are structures actually being used for commercial
purposes or occupied residences situate on the property to be
purchased;
(2) Once a permit application has been filed, the permittee
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 process 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 permittee 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 permittee 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 develop a process which identifies those
persons who are so adversely impacted by the large-scale
mountaintop removal mining process that they should be offered
the opportunity to sell their property and vacate their premises.
For the purposes of this subsection, the provisions of paragraphs
(B) and (C), subdivsion (1), subsection (a) of this section shall
apply.
(1) The office shall establish a standard that identifies
those persons who, because of the significant negative impact of
mountaintop removal mining, should be given the opportunity to
sell their property and vacate their premises. Such a standard
should be as objective as possible, considering at least the
following:
(A) The scope of the negative impact;
(B) The duration, both retrospective and prospective, of the
negative impact;
(C) The results of objective measures of impact which might
include, but not be limited to, seismography, air blast measures,
particulate measurement and sound measurement;
(D) The inspection of property damages, if any;
(E) The establishment of adverse health conditions; and
(F) The effectiveness of monetary damages.
(2) Any person desiring to sell property or leasehold and
vacate their premises may make application to the office for a
determination of whether or not the negative impacts of large
scale mountaintop removal mining have exceeded the standard
established in subdivision (1), subsection (c) of this section as
relates to that person.
(3) If the office determines that the standard so
established has been exceeded, then the following shall occur:
(A) The office shall establish the following:
(i) The residence to be sold and the amount of real property
which would reasonably be sold with the residence;
(ii) The fair market value of the property prior to any
diminution of value which the mining operations may have caused;
and
(iii) As an alternative valuation, an estimate of all costs
which would be incurred for the person to relocate in a
comparable dwelling, including, but not limited to, the cost of
a comparable dwelling and all moving and other costs;
(B) The office shall certify the information so established
to all interested parties;
(C) If either the permittee or the owner disagree with the
values established in either subparagraph (ii), paragraph (A),
subdivision (3) of this subsection or subparagraph (iii),
paragraph (A), subdivision (3) of this subsection, then the party
shall notify the office in writing within ten days of the
certification of such values and shall at the same time name an
appraiser to assist in establishing the values. The other party shall appoint an appraiser and the two appraisers so appointed
shall appoint a third appraiser. A majority of the three
appraisers shall establish the values. The disagreeing party
shall pay the cost of their appraisor and the office shall pay
the reasonable costs of the other two appraisors; and
(D) The permittee shall offer to pay unto the person affected
the greater of the two values so determined by the office or by
the appraisers in either subdivision (3), paragraph (A),
subparagraph (ii) of this subsection or subdivision (3),
paragraph (A), subparagraph (iii) of this subsection for the
purchase of the property determined in subdivision (3),
paragraph (A), subparagraph (i) of this subsection.
(4) If the person affected accepts the offer within thirty
days, then the property shall be conveyed to the permittee, or an
assignee, and the person affected shall vacate the premises.
After the expiration of thirty days from the offer, the permittee
may cancel the offer and the person affected shall forfeit all
rights under this subsection.
(5) The provisions of this subsection shall not apply unless
the following conditions are met:
(A) The person seeking relief is the owner and an occupant of the property and the property is the principal domicile of the
person seeking relief;
(B) The property conveyed includes all outstanding
interests; and
(C) The permittee is able to secure assurances that no person
occupying any part of any contiguous property owned and retained
by the seller will or may avail themselves of the benefits of
this section.
§22-3B-8. Determining and developing needed community assets.
(a) As a part of the community impact statement required by
section five of this article, the office shall make a
determination of the assets that could be developed in and
maintained by the community to assure its viability, if any, when
mining operations are completed and the permit applicant's plan
to develop those assets.
(b) Assets which a community might need could include, but
not be limited to:
(1) Water and waste water services;
(2) Developable land for housing, commercial development or
other community purposes;
(3) Commercial enterprises such as stores, service stations and other facilities that may be lost during the mining process;
(4) Recreation facilities and opportunities; and
(5) Education facilities and opportunities.
(c) The office shall propose for inclusion in the community
impact statement a requirement for the permittee to develop or
help develop certain assets the community needs to assure its
viability. After providing a notice of its proposal and a
reasonable period of time for comment about the proposal, which
time shall not be less than thirty days, the permit applicant
shall include within the community impact statement a plan to
develop or help develop certain assets the community needs to
assure its viability.
(d) In determining the nature and extent of the requirement
for the permittee to develop or help develop certain assets the
community needs to assure its viability, the office shall
consider at least the following:
(1) The realistic evaluation of the future of the community
once mining operations are completed as required to be determined
in the community impact statement required by section five of
this article;
(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 the article;
(4) The determinations made during the community impact
statement process of the impacts, both positive and negative, of
the mining operations on the community;
(5) The cost to the permittee to develop or help develop
certain assets the community needs to assure its viability;
(6) 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; and
(7) Contributions to the community which might have been made
by the permittee prior to the effective date of this section.
(e) The nature and extent of the plan for the permittee to
develop or help develop certain assets the community needs to
assure its viability should be commensurate with the
determination made of the potential impacts on the community,
both positive and negative, of the mining operations.
(f) The office shall consider payments made or efforts
undertaken pursuant to the provisions of section seven-a, article eleven of this chapter as compliance, in whole or in part, with
the requirements of this section, if such payments or efforts
were made to satisfy the provisions of this section.
§22-3B-9. Securing developable land and infrastructure.
(a) As a part of the community impact statement required by
section five of this article, the office shall make a
determination of the land and infrastructure needs in the general
area of the mining operations and shall require the permittee to
develop a plan to help address those needs.
(b) For the purposes of this section, the term "general area"
shall mean the county or counties in which the mining operations
were conducted, or any adjacent county.
(c) In making a determination of the land and infrastructure
needs in the general area of the mining operations and requiring
a plan to help address those needs, the office may consult with
the following entities and persons:
(1) Local and regional economic development agencies;
(2) The West Virginia development office;
(3) The county commissions of the county in which the coal is
to be mined and the county commissions in adjacent counties;
(4) City and town governments in the vicinity of the property to be mined;
(5) The mine permittee;
(6) Any company owning land or resources which will be
impacted by the mining operations; and
(7) Such other persons or entities as the office shall
determine appropriate.
(d) The office shall propose for inclusion in the community
impact statement a requirement that the permittee provide or help
provide land and infrastructure in the general area of the mining
operations. After providing a notice of its proposal and a
reasonable period of time for comment about the proposal, which
time shall not be less than thirty days, the permit applicant
shall include within the community impact statement a plan to
provide or help provide land and infrastructure in the general
area of the mining operations.
(e) In making a determination of the land and infrastructure
needs in the general area of the mining operations and the permit
applicant's plan to help address those needs, 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 of the requirements of
section eight of this article;
(6) The cost to the permittee or other parties associated
with the mining operation of providing or helping to provide such
land and infrastructure development;
(f) In making a determination of the land and infrastructure
needs in the general area of the mining operations and requiring
the permittee to develop plan to help address those needs, the
office shall give significant weight to developable land on or
near existing or planned multi-lane highways.
(g) If the plan to help provide developable land or
infrastructure required by this section results in the transfer
of assets of any type or kind, such asset shall be transferred to
the West Virginia development office under the following terms
and conditions:
(1) The assets shall be held in trust for use by the various
governmental agencies in the general area of the mining
operations which permits generated the assets; and
(2) Upon a written determination of the West Virginia
development office and the Governor that a plan to use any or all
of the assets held in trust is a prudent use of those assets, the
West Virginia development office shall transfer the assets to the
appropriate governmental agency or agencies in the general area
of the mining operations which permits generated the assets.
(h) The office shall consider payments made or efforts
undertaken pursuant to the provisions of section seven-a, article
eleven of this chapter as compliance, in whole or in part, with
the requirements of this section, if such payments or efforts
were made to satisfy the provisions of this section.
§22-3B-10. Funding.
(a) Each mining permittee permitted under the provisions of
this chapter shall be assessed a fee on each quantity of
explosive material used for any purpose on the permitted area of
a large-scale mountaintop removal mine site.
(b) The fee shall be established by the office but in no
event shall the fee be calculated to generate more money than the amount appropriated by the Legislature as provided in subsection
(c) of this section.
(c) The fee shall be placed in a special fund known as the
"Mountaintop Removal Fund" and the balances in such fund shall be
expended by the office in the performance of its duties, and
shall be appropriated by the Legislature for the expenses of this
office and the office of explosives and blasting, as provided for
in article three-a of this chapter.
§22-3B-11. 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-12. Termination of office.
The office of community impact 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 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) All permitted activities will meet state water quality
standards as established in this article and all legislative
rules promulgated thereunder, and all federal standards as
required by "Clean Water Act" Public Law 92-500, as amended by
Public Law 100-4, U.S.C. 1251, et seq.
(1) (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 of the state in a manner consistent with federal law, 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 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 area impacted is equal to or greater than two
hundred fifty acres, the director shall also direct that
mitigation be undertaken as provided in subdivision (3) 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) 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 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 all federal
requirements 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) (B) 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 consistent with
federal requirements;
(D) (C) Upon completion of the work required by an agreement
to conduct operations authorized by this subsection, and in
addition to any other requirements established by the director,
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. Unless otherwise preempted under
subdivision (4) of this subsection, the mitigation amount may not
exceed two hundred twenty-five four hundred thousand dollars per
acre of stream disturbed. 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) 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) All requirements of this section are conditioned on them
being consistent with all federal laws, regulations and permit
requirements. The division may require a lower or higher
acreage amount requiring mitigation activities as provided in
subdivision (2) of this subsection, or place any additional
condition upon the applicant as required by federal law, regulation or other federal permit authorization requirement.
Appropriation of funds from the stream restoration fund as
provided in subdivision (3) of this subsection, shall only be
done in a manner that is consistent with federal requirements for
compensation of impacts consistent with stream and watershed
restoration program requirements. The director shall propose for
promulgation, legislative rules consistent with section four of
this article and section four of article three of this chapter as
practicable, which establish all necessary operational and
performance requirements of permittee who are undertaking
activities covered by this section. The director is further
authorized to propose for promulgation, legislative rules that
modify or are inconsistent with the provisions of this section,
when necessary and appropriate to bring the provisions of this
section into compliance with federal law, regulation, or permit
review requirements. The director may also propose legislative
rules 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 is authorized to undertake a study of the impact of mountaintop
mining and valley fills upon the state of West Virginia.
(1) The study shall include, but is not limited to, the
following:
(A) Impact to streams including flow discharge, flooding
impacts, water chemistry, and water biology;
(B) Impacts to groundwater quality;
(C) Impacts to local residents including noise, dust,
drinking water, property damages and real estate values;
(D) Impacts on wildlife and vegetation, impacts to avian and
mannalian species' diversity and abundance, and the impact to
changes in indigenous plant communities;
(E) Impacts to soil quality and productivity for plants
associated with reclaimed mine soils, stability of valley fills;
and
(F) A determination of how much total land is susceptible to
mountaintop removal mining and where it is located.
(2) 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.
(3) 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.