Senate Bill No. 1011
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced May 31, 2009; referred to the Committee on Economic
Development.]
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A BILL to amend and reenact §5B-2A-3, §5B-2A-5, §5B-2A-6 and
§5B-2A-9 of the Code of West Virginia, 1931, as amended; and
to amend and reenact §22-3-10 of said code, all relating to
ensuring the post-mine development of reclaimed surface mine
property; defining certain terms; requiring certain counties
to develop master land use plans for post-mine development;
clarifying procedures relating to master land use plans and
community impact statements; enhancing certain powers and
responsibilities of the Office of Coalfield Community
Development and the Department of Environmental Protection
with respect to master land use plans; requiring surface mine
reclamation plans to comport with approved master land use
plans; and authorizing surface mine reclamation plans to
contain alternative, noncomporting post-mining land uses under
certain circumstances.
Be it enacted by the Legislature of West Virginia:
That §5B-2A-3, §5B-2A-5, §5B-2A-6 and §5B-2A-9 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
§22-3-10 of said code be amended and reenacted, all to read as
follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2A. OFFICE OF COAL FIELD COMMUNITY DEVELOPMENT.
§5B-2A-3. Definitions.
(a) For the purpose of this article, the following terms have
the meanings ascribed to them:
(1) "Department" means the Department of Environmental
Protection established in article one, chapter twenty-two of this
code;
(2) "Office" means the Office of Coalfield Community
Development;
(3) "Operator" means the definition in section three, article
three, chapter twenty-two of this code; and
(4) "Renewable and alternative energy" means energy produced
or generated from natural or replenishable resources other than
traditional fossil fuels or nuclear resources and includes, without
limitation, solar energy, wind power, hydropower, geothermal
energy, biomass energy, biologically derived fuels, energy produced
with advanced coal technologies, coalbed methane, fuel produced by
a coal gasification or liquefaction facility, synthetic gas, waste coal, tire-derived fuel, pumped storage hydroelectric power or
similar energy sources.
(b) Unless used in a context that clearly requires a different
meaning or as otherwise defined herein, terms used in this article
shall have the definitions set forth in this section.
§5B-2A-5. Powers and duties.
The office has and may exercise the following duties, powers
and responsibilities:
(1) To establish a procedure for developing a community impact
statement as provided in section six of this article and to
administer the procedure so established;
(2) To establish a procedure for determining the assets that
could be developed in and maintained by the community to foster its
long-term viability as provided in section eight of this article
and to administer the procedure so established;
(3) To establish a procedure for determining the land and
infrastructure needs in the general area of the surface mining
operations as provided in section nine of this article and to
administer the procedure so established;
(4) To establish a procedure to develop action reports and
annual updates as provided in section ten of this article and to
administer the procedure so established;
(5) To determine the need for meetings to be held among the
various interested parties in the communities impacted by surface mining operations and, when appropriate, to facilitate the
meetings;
(6) To establish a procedure to assist property owners in the
sale of their property as provided in section eleven of this
article and to administer the procedure so established;
(7) In conjunction with the department, to maintain and
operate a system to receive and address questions, concerns and
complaints relating to surface mining; and
(8) On its own initiative or at the request of a community in
close proximity to a mining operation, or a mining operation, offer
assistance to facilitate the development of economic or community
assets. Such assistance
may shall include the preparation of a
master land use plan pursuant to the provisions of section nine of
this article.
§5B-2A-6. Community impact statement.
(a)(1) The operator shall develop a community impact
statement, as described in this section, which shall be submitted
to the office within sixty days of the filing of a surface mining
application pursuant to the provisions of article three, chapter
twenty-two of this code. Failure to submit a community impact
statement to the office shall be considered a violation under the
provisions of section seventeen of said article; and
(2) The operator shall provide copies of the community impact
statement to the
division's department's office of mining reclamation and office of explosives and blasting and to the county
commissions, county clerks' offices and local,
county or regional
economic development
or redevelopment authorities of the areas to
be affected by the surface mining operations.
(b) The community impact statement, where practicable, shall
not be a highly technical or legalistic document, but shall be
written in a clear and concise manner understandable to all
citizens. The community impact statement shall include the
following:
(1) The amount and location of land to be mined or used in the
actual mining operations;
(2) The expected duration of the mining operations in each
area of the community;
(3) The extent of anticipated mining-related property
acquisitions, to the extent that such acquisitions are known or
knowable;
(4) The intentions of the surface and mineral owners relative
to the acquired property, to the extent that such intentions are
known or knowable;
(5) A statement of the post-mining land use for all land
within the permit boundary;
(6) The intended blasting plan and the expected time and
duration it will affect each community;
(7) Information concerning the extent and nature of valley fills and the watersheds to be affected;
and
(8) Economic information, such as the number of jobs created
and annual coal production resulting from the surface mining
operation, the anticipated life of the mining operation and such
other information as may be deemed appropriate;
and
(9) An acknowledgment of the recommendations of any approved
master land use plan that pertains to the land proposed to be
mined, including an acknowledgment of the infrastructure components
needed to accomplish the designated post-mine land use required by
the plan.
(c) Where the operator makes any significant revision to the
permit application under section eighteen, article three, chapter
twenty-two of this code, which revision substantially affects any
of the information provided in subsection (b) of this section, the
operator shall revise the affected provisions of its community
impact statement and shall submit such revisions as set forth in
subsection (a) of this section.
(d) Within thirty days of receipt of a community impact
statement pursuant to subdivision (2), subsection (a) of this
section or a revised community impact statement pursuant to
subsection (c) of this section, the local, county or regional
development or redevelopment authorities of the areas to be
affected by the surface mining operations shall provide a written
acknowledgment of the receipt of this community impact statement or revised community impact statement to the department's Division of
Mining Reclamation, to the county commission or county commissions
and to the office.
(d) (e) The provisions of this section shall apply as follows:
(1) To all surface-mining permits granted after
the effective
date of this article June 11, 1999; and
(2) At the first renewal date of all previously issued
permits:
Provided, That the permittee shall be afforded ninety
days from said date to comply with the provisions of this section.
§5B-2A-9. Securing developable land and infrastructure.
(a) The office shall determine the land and infrastructure
needs in the general area of the surface mining operations.
(b) For the purposes of this section, the term "general area"
shall mean the county or counties in which the mining operations
are being conducted or any adjacent county.
(c) To assist the office the operator shall be required to
prepare and submit to the office the information set forth in this
subsection as follows:
(1) A map of the area for which a permit under article three,
chapter twenty-two of this code is being sought or has been
obtained;
(2) The names of the surface and mineral owners of the
property to be mined pursuant to the permit; and
(3) A statement of the post-mining land use for all land which may be affected by the mining operations.
(d) In making a determination of the land and infrastructure
needs in the general area of the mining operations, the office
shall consider at least the following:
(1) The availability of developable land in the general area;
(2) The needs of the general area for developable land;
(3) The availability of infrastructure, including, but not
limited to, access roads, water service, wastewater service and
other utilities;
(4) The amount of land to be mined and the amount of valley to
be filled;
(5) The amount, nature and cost to develop and maintain the
community assets identified in section eight of this article; and
(6) The availability of federal, state and local grants and
low-interest loans to finance all or a portion of the acquisition
and construction of the identified land and infrastructure needs of
the general area.
(e) In making a determination of the land and infrastructure
needs in the general area of the surface mining operations, the
office shall give significant weight to developable land on or near
existing or planned multilane highways.
(f) The office may secure developable land and infrastructure
for a Development Office or county through the preparation of a
master land use plan for inclusion into a reclamation plan prepared pursuant to the provisions of section ten, article three, chapter
twenty-two of this code. No provision of this section may be
construed to modify requirements of article three of said chapter.
Participation in a master land use plan is voluntary
(1)
State, local, county or regional development or
redevelopment authorities may The county commission or other
governing body for each county in which there are surface mining
operations that are subject to this article shall determine land
and infrastructure needs within their jurisdictions through the
development of a master land use plan which incorporates
post-mining land use needs that include
renewable and alternative
energy uses, residential uses, highway uses, industrial uses,
commercial uses, agricultural uses, public facility uses or
recreational facility uses.
A county commission or other governing
body of a county may designate a local, county, or regional
development or redevelopment authority to assist in the preparation
of a master land use plan. A county commission or other governing
body of a county may adopt a master land use plan developed after
July 1, 2009, only after a reasonable public comment period;
(2) A master land use plan must be reviewed by the office of
coalfield community development and approved by the Division of
Environmental Protection pursuant to section ten, article three,
chapter twenty-two of this code before the master land use plan can
be implemented.
(2) Upon the request of a county or designated development or
redevelopment authority, the office shall assist the county or
development or redevelopment authority with the development of a
master land use plan;
(3)(A) The Department of Environmental Protection and the
Office of Coalfield Community Development shall review master land
use plans existing as of July 1, 2009. If the office determines
that a master land use plan complies with the requirements of this
article and the rules promulgated pursuant to this article, the
office shall approve the plan on or before July 1, 2010;
(B) Master land use plans developed after July 1, 2009, shall
be submitted to the department and the office for review. The
office shall determine whether to approve a master land use plan
submitted pursuant to this subdivision within three months of
submission. The office shall approve the plan if it complies with
the requirements of this article and the rules promulgated pursuant
to this article;
(C) The office shall review a master land use plan approved
under this section every three years. No later than six months
before the review of a master land use plan, the county or
designated development or redevelopment authority shall submit an
updated master land use plan to the department and the office for
review. The county may submit its updated master land use plan
only after a reasonable public comment period. The office shall approve the master land use plan if the updated plan complies with
the requirements of this article and the rules promulgated pursuant
to this article;
(D) If the office does not approve a master land use plan, the
county or designated development or redevelopment authority shall
submit a supplemental master land use plan to the office for
approval;
(3) (4) The required infrastructure component standards needed
to accomplish the designated post-mining land uses identified in
subdivision (1) of this subsection a master land use plan shall be
developed by the
relevant state, local, county or
regional its
designated development or redevelopment authority. These standards
must be in place before the respective
state, local, county or
regional development or redevelopment authority can accept
ownership of property donated pursuant to a master land use plan.
Acceptance of ownership of such property by a
state, local, county
or
regional development or redevelopment authority may not occur
unless it is determined that:
(a) (i) The property use is
compatible with adjacent land uses;
(b) (ii) the use satisfies the
relevant
county or development or redevelopment authority's
anticipated need and market use;
(c) (iii) the property has in
place necessary infrastructure components needed to achieve the
anticipated use;
(d) (iv) the use is supported by all other
appropriate public agencies;
(e) (v) the property is eligible for bond release in accordance with section twenty-three, article
three, chapter twenty-two of this code; and
(f) (vi) the use is
feasible. Required infrastructure component standards require
approval of the relevant county commission
or, commissions
or other
county governing body before such standards are accepted. County
commission
or other county governing body approval may be rendered
only after a reasonable public comment period;
(4) (5) The provisions of this subsection shall not take
effect until legislative rules are promulgated pursuant to
paragraph (C), subdivision (1), subsection (c), section
twenty-three, article three, chapter twenty-two of this code
governing bond releases which assure sound future maintenance by
the local or regional economic development, redevelopment or
planning agencies.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-10. Reclamation plan requirements.
(a) Each reclamation plan submitted as part of a surface
mining permit application shall include, in the degree of detail
necessary to demonstrate that reclamation required by this article
can be accomplished, a statement of:
(1) The identification of the lands subject to surface mining
over the estimated life of these operations and the size, sequence
and timing of the operations for which it is anticipated that individual permits for mining will be sought;
(2) The condition of the land to be covered by the permit
prior to any mining, including: (A) The uses existing at the time
of the application and, if the land has a history of previous
mining, the uses which preceded any mining; (B) the capability of
the land prior to any mining to support a variety of uses, giving
consideration to soil and foundation characteristics, topography
and vegetation cover and, if applicable, a soil survey prepared
pursuant to subdivision (15), subsection (a), section nine of this
article; and (C) the best information available on the productivity
of the land prior to mining, including appropriate classification
as prime farmlands and the average yield of food, fiber, forage or
wood products from the lands obtained under high levels of
management;
(3) The use which is proposed to be made of the land following
reclamation, including a discussion of the utility and capacity of
the reclaimed land to support a variety of alternative uses,
including, but not limited to, renewable and alternative energy
uses, residential uses, highway uses, industrial uses, commercial
uses, agricultural uses, public facility uses or recreational
facility uses, and the relationship of the use to existing land use
policies and plans and the comments of any owner of the surface,
other state agencies and local governments which would have to
initiate, implement, approve or authorize the proposed use of the land following reclamation;
The plan may include a master plan as provided in section
nine, article two-a, chapter five-b of this code which included a
post-mining land use consistent with the reclamation and
post-mining land use requirements of this article;
(A) The post-mining land use proposed in any reclamation plan
for lands proposed to be mined by surface mining methods shall
comport with the land use that is specified in the approved master
land use plan for the area as provided in section nine, article
two-a, chapter five-b of this code: Provided, That the secretary
may approve an alternative post-mining land use where the applicant
demonstrates that:
(i) The proposed post-mining land use is a higher and better
use than the land use specified in the approved master land use
plan;
(ii) Site-specific conditions make attainment of a post-mining
land use which comports with the land use that is specified in the
approved master land use plan for the area impractical; or
(iii) The post-mining land use specified in the approved
master land use plan would substantially interfere with the future
extraction of mineable coal, as that term is defined in rules
promulgated by the Tax Commissioner relating to the valuation of
active or reserve coal property for ad valorem property tax
purposes, 110 C.S.R. 1I-3 or a successor rule, from the land to be mined.
(B) Existing permits with approved reclamation plans may be
modified by the operator through an appropriate permit revision to
include a post-mining land use which comports with the land use
that is specified in the approved master land use plan for the area
as provided in section nine, article two-a, chapter five-b of this
code;
(C) By complying with a master land use plan that has been
approved in accordance with article two-a, chapter five-b of this
code, a post-mining land use satisfies the requirements for an
alternative post-mining land use and satisfies the variance
requirements set forth in subsection (c), section thirteen, article
three, chapter twenty-two of this code if applicable to the
proposed use;
(4) A detailed description of how the proposed post-mining
land use is to be achieved and the necessary support activities
which may be needed to achieve the proposed land use;
(5) The engineering techniques proposed to be used in mining
and reclamation and a description of the major equipment; a plan
for the control of surface water drainage and of water
accumulation; a plan, where appropriate, for backfilling, soil
stabilization and compacting, grading, revegetation and a plan for
soil reconstruction, replacement and stabilization pursuant to the
performance standards in subdivision (7), subsection (b), section thirteen of this article for those food, forage and forest lands
identified therein; and a statement as to how the operator plans to
comply with each of the applicable requirements set out in section
thirteen or fourteen of this article;
(6) A detailed estimated timetable for the accomplishment of
each major step in the reclamation plan;
(7) The consideration which has been given to conducting
surface mining operations in a manner consistent with surface owner
plans and applicable state and local land use plans and programs;
(8) The steps to be taken to comply with applicable air and
water quality laws and rules and any applicable health and safety
standards;
(9) The consideration which has been given to developing the
reclamation plan in a manner consistent with local physical
environmental and climatological conditions;
(10) All lands, interests in lands or options on the interests
held by the applicant or pending bids on interests in lands by the
applicant, which lands are contiguous to the area to be covered by
the permit;
(11) A detailed description of the measures to be taken during
the surface mining and reclamation process to assure the protection
of:
(A) The quality of surface and groundwater systems, both on
and off site, from adverse effects of the surface mining operation;
(B) The rights of present users to the water; and
(C) The quantity of surface and groundwater systems, both on
and off site, from adverse effects of the surface mining operation
or to provide alternative sources of water where the protection of
quantity cannot be assured;
(12) The results of tests borings which the applicant has made
at the area to be covered by the permit or other equivalent
information and data in a form satisfactory to the director,
including the location of subsurface water and an analysis of the
chemical properties, including acid-forming properties of the
mineral and overburden:
Provided, That information which pertains
only to the analysis of the chemical and physical properties of the
coal, except information regarding the mineral or elemental
contents which are potentially toxic in the environment, shall be
kept confidential and not made a matter of public record;
(13) The consideration which has been given to maximize the
utilization and conservation of the solid fuel resource being
recovered so that reaffecting the land in the future can be
minimized; and
(14) Any other requirements as the director may prescribe by
rule.
(b)
Any surface mining permit application filed after the
effective date of this subsection may contain, in addition to the
requirements of subsection (a) of this section, a master land use plan, prepared in accordance with article two-a, chapter five-b of
this code, as to the post-mining land use. A reclamation plan
approved but not implemented or pending approval as of the
effective date of this section may be amended
by the operator to
provide for a
revised reclamation plan consistent post-mining land
use that comports with
the provisions of this subsection a master
land use plan that has been approved in accordance with article
two-a, chapter five-b of this code.
(c) The reclamation plan shall be available to the public for
review except for those portions thereof specifically exempted in
subsection (a) of this section.
(d) The amendments to this section by the first extraordinary
session of the Legislature in 2009 are effective upon the approval
of the corresponding amendments to West Virginia's state program,
as that term is defined in the federal Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C. §1291, by the federal Office of
Surface Mining Reclamation and Enforcement.
NOTE: The purpose of this bill is to enhance the utilization
of master land use plans in counties affected by surface mining.
The bill requires the adoption or approval of master land use plans
by counties, and will establish enhanced periodic review
procedures. The bill encourages also the involvement of land
owners and the public in developing master land use plans. To
ensure that master land use plans are utilized to the fullest
extent, the bill requires post-mining land uses specified in
surface mine reclamation plans to comport with master land use
plans. However, the bill authorizes the Secretary of DEP to approve alternative land uses where a proposed use is a higher or
better use or where site-specific conditions render comporting with
a master land use plan impractical.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.