H. B. 2824
(By Delegates Perdue, Wells, Marshall,
Hatfield and Fragale)
[Introduced January 24, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]
A BILL to amend and reenact §22-3-22, §22-3-22a and §22-3-30a of the Code of West Virginia,1931, as amended, all relating to increasing the distance required for surface mining activity in relation to cemeteries.
Be it enacted by the Legislature of West Virginia:
That §22-3-22, §22-3-22a, and §22-3-30a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SURFACE MINING CONTROL AND RECLAMATION ACT.
§22-3-22. Designation of areas unsuitable for surface mining; petition for removal of designation; prohibition of surface mining on certain areas; exceptions; taxation of minerals underlying land designated unsuitable.
(a) The director shall establish a planning process to enable objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas of this state are unsuitable for all or certain types of surface-mining operations pursuant to the standards set forth in subdivisions (1) and (2) of this subsection: Provided, That such designation shall not prevent prospecting pursuant to section seven of this article on any area so designated.
(1) Upon petition pursuant to subsection (b) of this section, the director shall designate an area as unsuitable for all or certain types of surface-mining operations, if it determines that reclamation pursuant to the requirements of this article is not technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this section, a surface area may be designated unsuitable for certain types of surface-mining operations, if the operations: (A) Conflict with existing state or local land use plans or programs; (B) affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific and aesthetic values and natural systems; (C) affect renewable resource lands, including significant aquifers and aquifer recharge areas, in which the operations could result in a substantial loss or reduction of long-range productivity of water supply, food or fiber products; or (D) affect natural hazard lands in which the operations could substantially endanger life and property. Such lands shall include lands subject to frequent flooding and areas of unstable geology.
(3) The director shall develop a process which includes: (A) The review of surface-mining lands; (B) a database and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface-mining operations; (C) a method for implementing land use planning decisions concerning surface-mining operations; and (D) proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation pursuant to this section.
(4) Determinations of the unsuitability of land for surface mining, as provided for in this section, shall be integrated as closely as possible with present and future land use planning and regulation processes at federal, state and local levels.
(5) The requirements of this section do not apply to lands on which surface-mining operations were being conducted on August 3, 1977, or under a permit issued pursuant to this article, or where substantial legal and financial commitments in the operations were in existence prior to January 4, 1977.
(b) Any person having an interest which is or may be adversely affected has the right to petition the director to have an area designated as unsuitable for surface-mining operations or to have such a designation terminated. The petition shall contain allegations of fact with supporting evidence which would tend to establish the allegations. After receipt of the petition, the director shall immediately begin an administrative study of the area specified in the petition. Within ten months after receipt of the petition, the director shall hold a public hearing in the locality of the affected area after appropriate notice and publication of the date, time and location of the hearing. After the director or any person having an interest which is or may be adversely affected has filed a petition and before the hearing required by this subsection, any person may intervene by filing allegations of fact with supporting evidence which would tend to establish the allegations. Within sixty days after the hearing, the director shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition and the reasons therefor. In the event that If all the petitioners stipulate agreement prior to the requested hearing and withdraw their request, the hearing need not be held.
(c) Prior to designating any land areas as unsuitable for surface-mining operations, the director shall prepare a detailed statement on: (1) The potential coal resources of the area; (2) the demand for the coal resources; and (3) the impact of the designation on the environment, the economy and the supply of coal.
(d) After August 3, 1977, and subject to valid existing rights, no surface-mining operations, except those which existed on that date, shall be permitted:
(1) On any lands in this state within the boundaries of units of the national park system, the national wildlife refuge systems, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including study rivers designated under section five-a of the Wild and Scenic Rivers Act, and national recreation areas designated by Act of Congress;
(2) Which will adversely affect any publicly owned park or places included in the national register of historic sites, or national register of natural landmarks unless approved jointly by the director and the federal, state or local agency with jurisdiction over the park, the historic site or natural landmark;
(3) Within one hundred feet of the outside right-of-way line on any public road, except where mine access roads or haulage roads join such right-of-way line, and except that the director may permit the roads to be relocated or the area affected to lie within one hundred feet of the road if, after public notice and an opportunity for a public hearing in the locality, the director makes a written finding that the interests of the public and the landowners affected thereby will be protected;
(4) Within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within one three hundred feet of any public building, school, church, community or institutional building, public park or within one three hundred feet of a cemetery; or
(5) On any federal lands within the boundaries of any national forest: Provided, That surface coal mining operations may be permitted on the lands if the secretary of the interior finds that there are no significant recreational, timber, economic or other values which may be incompatible with the surface-mining operations: Provided, however, That the surface operations and impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the coal underlying any lands designated unsuitable for surface-mining operations under any provisions of this article or underlying any land upon which mining is prohibited by any provisions of this article shall be assessed for taxation purposes according to their value and the Legislature hereby finds that the coal has no value for the duration of the designation or prohibition unless suitable for underground mining not in violation of this article: Provided, That the owner of the coal shall forthwith notify the proper assessing authorities if the designation or prohibition is removed so that the coal may be reassessed.
§22-3-22a. Blasting restrictions; site specific blasting design requirement.
(a) For purposes of this section, the term "production blasting" means blasting that removes the overburden to expose underlying coal seams and does not include construction blasting.
(b) For purposes of this section, the term "construction blasting" means blasting to develop haul roads, mine access roads, coal preparation plants, drainage structures or underground coal mine sites and does not include production blasting.
(c) For purposes of this section, the term "protected structure" means any of the following structures that are situated outside the permit area: An occupied dwelling; a temporarily unoccupied dwelling which has been occupied within the past ninety days; a public building; a structure for commercial purposes; a school; a church; a community or institutional building; and a public park or a water well.
(d) Production blasting is prohibited within three hundred feet of a protected structure or within one three hundred feet of a cemetery.
(e) Blasting within one thousand feet of a protected structure shall have a site-specific blast design approved by the office of explosives and blasting. The site-specific blast design shall limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts to do the following:
(1) Prevent injury to persons; (2) prevent damage to public and private property outside the permit area; (3) prevent adverse impacts on any underground mine; (4) prevent change in the course, channel or availability of ground or surface water outside the permit area; and (5) reduce dust outside the permit area.
In the development of a site-specific blasting plan, consideration shall be given, but is not limited to, the physical condition, type and quality of construction of the protected structure, the current use of the protected structure and the concerns of the owner or occupant living in the protected structures identified in the blasting schedule notification area.
(f) An owner or occupant of a protected structure may waive the blasting prohibition within three hundred feet. If a protected structure is occupied by a person other than the owner, both the owner and the occupant of the protected structure shall waive the blasting prohibition within three hundred feet in writing. The operator shall send copies of all written waivers executed pursuant to this subsection to the office of explosives and blasting. Written waivers executed and filed with the office of explosives and blasting are valid during the life of the permit or any renewals of the permit and are enforceable against any subsequent owners or occupants of the protected structure.
(g) The provisions of this section do not apply to the following: (1) Underground coal mining operations; (2) the surface operations and surface impacts incident to an underground coal mine; and (3) the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods: Provided, That nothing contained in this section may be construed to exempt any coal mining operation from the general performance standards as contained in section thirteen of this article and any rules promulgated pursuant to said section.
§22-3-30a. Blasting requirements; liability and civil penalties in the event of property damage.
(a) Blasting shall be conducted in accordance with the rules and laws established to regulate blasting.
(b) If the Division Department of Environmental Protection establishes after an inspection that a blast at a surface coal mine operation as defined by the provisions of subdivision (2), subsection (a), section thirteen-a of this article was not in compliance with the regulations governing blasting parameters and resulted in property damage to a protected structure, as defined in section twenty-two-a of this article, other than water wells, the following penalties shall be imposed for each permit area or contiguous permit areas where the blasting was out of compliance:
(1) For the first offense, the operator shall be assessed a penalty of not less than $1,000 nor more than $5,000.
(2) For the second offense and each subsequent offense within one year of the first offense, the surface mining operator shall be assessed a penalty of not less than $5,000 nor more than $10,000.
(3) For the third offense and any subsequent offense within one year of the first offense, or for the failure to pay any assessment set forth within a reasonable time established by the director, the surface mining operator's permit is 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 Department 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 considers appropriate to compensate for future property damages. The monetary assurances required shall be in an amount at least equal to the amount of compensation required in paragraph (B), subdivision (3) of this subsection.
(4) In addition to the penalties described in subdivisions (1), (2) and (3) of this subsection for the second and subsequent offenses on any one permitted area regardless of the time period, the owner of the protected structure is entitled to a rebuttable presumption that the property damage is a result of the blast if: (A) A preblast survey was performed; and (B) the blasting site to which the second or subsequent offense relates is within seven tenths of a mile of the protected structure.
(5) No more than one offense may arise out of any one shot. For purposes of this section, "shot" means a single blasting event composed of one or multiple detonations of explosive material or the assembly of explosive materials for this purpose. One "shot" may be composed of numerous explosive charges detonated at intervals measured in milliseconds.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the Division Department Environmental Protection may not impose penalties, as provided for in subsection (b) of this section, on an operator for the violation of any rule identified in subsection (b) of this section that is merely administrative in nature.
(d) The remedies provided in this section are not exclusive and may not bar an owner or occupant from any other remedy accorded by law.
(e) Where inspection by the Division Department of Environmental Protection establishes that production blasting, in violation of section twenty-two-a of this article, was done within three hundred feet of a protected structure, without an approved site-specific blast design or not in accordance with an approved site-specific blast design for production blasting within one thousand feet of any protected structure as defined in section twenty-two-a of this article or within one three hundred feet of a cemetery, the monetary penalties and revocation, as set out in subsection (b) of this section, apply.
(f) All penalties and liabilities as set forth in subsection (b) of this section shall be assessed by the director, collected by the director and deposited with the Treasurer of the State of West Virginia in the "General School Fund".
(g) The director shall propose rules for legislative approval pursuant to article three, chapter twenty-nine-a of this code for the implementation of this section.
(h) The provisions of this section do not apply to the extraction of minerals by underground mining methods: Provided, That nothing contained in this section may be construed to exempt any coal mining operation from the general performance standards as contained in section thirteen of this article and any rules promulgated pursuant thereto.
NOTE: The purpose of this bill is to extend the buffer zone for surface mining blasting to a distance of three hundred feet consistent with the buffer zone for dwellings.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.