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Introduced Version - Originating in Committee Senate Bill 681 History

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Key: Green = existing Code. Red = new code to be enacted


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.
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