H. B. 2955

         (By Delegates Caputo and Barker)

         (By Request of the Department Environment Protection)

         [Introduced February 1, 2011; referred to the

Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance.]

A BILL to amend and reenact §22-3-7, §22-3-8 and §22-3-19 of the Code of West Virginia, 1931, as amended, all relating to environmental resources; surface coal mining and reclamation act; and fees assessed to coal mining operators by the Division of Mining and Reclamation.

Be it enacted by the Legislature of West Virginia:

    That §22-3-7, §22-3-8 and §22-3-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-7. Notice of intention to prospect, requirements therefor; bonding; secretary’s authority to deny or limit; postponement of reclamation; prohibited acts; exceptions.

    (a) Any person intending to prospect for coal in an area not covered by a surface-mining permit, in order to determine the location, quantity or quality of a natural coal deposit, making feasibility studies or for any other purpose, shall file with the director secretary, at least fifteen days prior to commencement of any disturbance associated with prospecting, a notice of intention to prospect, which notice shall include a description of the prospecting area, the period of supposed prospecting and such any other information as required by rules promulgated pursuant to this section: Provided, That prior to the commencement of such prospecting, the director secretary may issue an order denying or limiting permission to prospect where the director secretary finds that prospecting operations will damage or destroy a unique natural area, or will cause serious harm to water quality, or that the operator has failed to satisfactorily reclaim other prospecting sites, or that there has been an abuse of prospecting by previous prospecting operations in the area.

    (b) Notice of intention to prospect shall be made in writing on forms prescribed by the director secretary and shall be signed and verified by the applicant. The notice shall be accompanied by: (1) A United States Geological Survey topographic map showing by proper marking the crop line and the name, where known, of the seam or seams to be prospected; and (2) a bond, or cash, or collateral securities or certificates of the same type and form and in the same manner as provided in section eleven of this article, in the amount of five hundred dollars per acre or fraction thereof for the total estimated disturbed area. If such the bond is used, it shall be payable to the State of West Virginia and conditioned that the operator faithfully perform the requirements of this article as they relate to backfilling and revegetation of the disturbed area.

    (c) Any person prospecting under the provisions of this section shall ensure that such the prospecting operation is conducted in accordance with the performance standards in section thirteen of this article for all lands disturbed in explorations, including excavations, roads, drill holes, and the removal of necessary facilities and equipment.

    (d) Information submitted to the director secretary pursuant to this section as confidential, concerning trade secrets or privileged commercial or financial information, which relates to the competitive rights of the person or entity intended to prospect the described area, is not available for public examination.

    (e) Any person who conducts any prospecting activities which substantially disturb the natural land surface in violation of this section or rules issued pursuant thereto is subject to the provisions of sections sixteen and seventeen of this article.

    (f) No An operator shall may not remove more than two hundred fifty tons of coal without the specific written approval of the director secretary. Such approval shall be requested by the operator on forms prescribed by the director secretary. The director secretary shall promulgate rules governing such operations and setting forth information required in the application for approval. Each such application shall be accompanied by a $2000 filing fee.

    (g) The bond accompanying said notice of intention to prospect shall be released by the director secretary when the operator demonstrates that a permanent species of vegetative cover is established.

    (h) In the event If an operator desires to mine the area currently being prospected, and has requested and received an appropriate surface mine application (S.M.A.) number, the director secretary may permit the postponement of the reclamation of the area prospected. Any part of a prospecting operation, where reclamation has not been postponed as provided above, shall be reclaimed within a period of three months from disturbance.

    (i) For the purpose of this section, the word "prospect" or "prospecting" does not include core drilling related solely to taxation or highway construction.

§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in interest; duration of permits; proof of insurance; termination of permits; permit fees.

    (a) No person may engage in surface mining operations unless he or she has first obtained a permit from the director secretary in accordance with the following:

    (1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation, and if the application is full and complete for the specified longer term, the director secretary may extend a permit for a longer term: Provided, however, That subject to the prior approval of the director secretary, with the approval being subject to the provisions of subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for a new permit, or transfer of a permit, within thirty days of succeeding to the interest and who is able to obtain the bond coverage of the original permittee, may continue surface mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until the successor’s permit application or application for transfer is granted or denied.

    (2) Proof of insurance is required on an annual basis.

    (3) A permit terminates if the permittee has not commenced the surface mining operations covered by the permit within three years of the date the permit was issued: Provided, That the director secretary may grant reasonable extensions of time upon a timely showing that the extensions are necessary by reason of litigation precluding commencement, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee: Provided, however, That with respect to coal to be mined for use in a synthetic fuel facility or specific major electric-generating facility, the permittee shall be considered to have commenced surface mining operations at the time the construction of the synthetic fuel or generating facility is initiated.

    (4) Each application for a new surface mining permit filed pursuant to this article shall be accompanied by a fee of $1,000 $3,000. All permit fees and renewal fees provided in this section or elsewhere in this article shall be collected by the director secretary and deposited with the Treasurer of the State of West Virginia to the credit of the Operating Permit Fees Fund and shall be used, upon requisition of the director secretary, for the administration of this article.

    (5) Prior to the issuance of any permit, the director secretary shall ascertain from the Commissioner of the Division of Labor whether the applicant is in compliance with section fourteen, article five, chapter twenty-one of this code. Upon issuance of the permit, the director secretary shall forward a copy to the Commissioner of the Division of Labor, who shall assure continued compliance under the permit.

    (6) (A) Prior to the issuance of any permit the director secretary shall ascertain from the Executive Director of Workforce West Virginia and the Insurance Commissioner whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with regard to any required subscription to the Unemployment Compensation Fund or to the Workers’ Compensation Fund, the payment of premiums and other charges to the fund, the timely filing of payroll reports and the maintenance of adequate deposits. If the applicant is delinquent or defaulted, or has been terminated by the executive director or the Insurance Commissioner, the permit may not be issued until the applicant returns to compliance or is restored by the executive director or the Insurance Commissioner under a reinstatement agreement: Provided, That in all inquiries the Executive Director of Workforce West Virginia and the Insurance Commissioner shall make response to the Department of Environmental Protection within fifteen calendar days; otherwise, failure to respond timely is considered to indicate the applicant is in compliance and the failure will not be used to preclude issuance of the permit.

    (B) It is a requirement of this article that each operator maintain continued compliance with the provisions of section five, article two, chapter twenty-three of this code and section six-c, article two, chapter twenty-one-a of this code and provide proof of compliance to the director secretary on a quarterly basis.

§22-3-19. Permit revision and renewal requirements; incidental boundary revisions; requirements for transfer; assignment and sale of permit rights; and operator reassignment; and procedures to obtain inactive status.

    (a) (1) Any valid permit issued pursuant to this article carries with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. The holders of the permit may apply for renewal and the renewal shall be issued: Provided, That on application for renewal, the burden is on the opponents of renewal, unless it is established that and written findings by the director secretary are made that: (A) The terms and conditions of the existing permit are not being satisfactorily met: Provided, however, That if the permittee is required to modify operations pursuant to mining or reclamation requirements which become applicable after the original date of permit issuance, the permittee shall be provided an opportunity to submit a schedule allowing a reasonable period to comply with such revised requirements; (B) the present surface-mining operation is not in compliance with the applicable environmental protection standards of this article; (C) the renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas; (D) the operator has not provided evidence that the bond in effect for said operation will continue in effect for any renewal requested as required pursuant to sections eleven or twelve of this article; or (E) any additional revised or updated information as required pursuant to rules promulgated by the director secretary has not been provided.

    (2) If an application for renewal of a valid permit includes a proposal to extend the surface-mining operation beyond the boundaries authorized in the existing permit, that portion of the application for renewal which addresses any new land area is subject to the full standards of this article, which includes, but is not limited to: (A) Adequate bond; (B) a map showing the disturbed area and facilities; and (C) a reclamation plan.

    (3) Any permit renewal shall be for a term not to exceed the period of time for which the original permit was issued. Application for permit renewal shall be made at least one hundred twenty days prior to the expiration of the valid permit.

    (4) Any renewal application for an active permit shall be on forms prescribed by the director secretary and shall be accompanied by a filing fee of two thousand dollars $2,500. The application shall contain such information as the director secretary requires pursuant to rule.

    (b)(1) During the term of the permit, the permittee may submit to the director secretary an application for a revision of the permit, together with a revised reclamation plan.

    (2) An application for a significant revision of a permit is subject to all requirements of this article and rules promulgated pursuant thereto and shall be accompanied by a filing fee of $500.

    (3) Any extension to an area already covered by the permit, except incidental boundary revisions, shall be made by application for another permit. If the permittee desires to add the new area to his or her existing permit in order to have existing areas and new areas under one permit, the director secretary may so amend the original permit: Provided, That the application for the new area is subject to all procedures and requirements applicable to applications for original permits under this article and a filing fee of $500.

    (c) The director secretary shall review outstanding permits of a five-year term before the end of the third year of the permit. Other permits shall be reviewed within the time established by rules. The director secretary may require reasonable revision or modification of the permit following review: Provided, That such revision or modification shall be based upon written findings and shall be preceded by notice to the permittee of an opportunity for hearing.

    (d) No transfer, assignment or sale of the rights granted under any permit issued pursuant to this article shall may be made without the prior written approval of the director secretary, application for which shall be accompanied by a filing fee of $1,500 for transfer or $1,000 for assignment.

    (e) Each request for inactive status shall be submitted on forms prescribed by the secretary, shall be accompanied by a filing fee of $500, and shall be granted in accordance with the procedure established in the Surface Mining and Reclamation Rule.

    NOTE: The purpose of this bill is to authorize the Division of Mining and Reclamation to assess certain fees to coal mine operators.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.