H. B. 3116
(By Delegate Guthrie)
[Introduced March 13, 2009; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then Government Organization.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §22-3-10a; and to
amend and reenact §22-3-23 of said code, all relating to the
Division of Environmental Protection prioritizing permits
based on those that include land use master plans; adjustment
of bond release amounts and time frames for completion of land
use master plans.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §22-3-10a; and to amend
and reenact §22-3-23 of said code, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-10a. Land use master plans to receive priority.
The division shall prioritize applications for surface-mining permits based on those applications that include a land use master
plan, as provided in section nine, article two-a, chapter five-b of
this code that include provisions for:
(1) Year round agriculture;
(2) Solar and wind farms;
(3) Algae or bio-oil crop land, or both;
(4) Forest fiber farms; or
(5) Aquaculture.
§22-3-23. Release of bond or deposits; application; notice; duties
of secretary; public hearings; final maps on grade
release.
(a) The permittee may file a request with the secretary for
the release of a bond or deposit. The permittee shall publish an
advertisement regarding the request for release in the same manner
as is required of advertisements for permit applications. A copy
of the advertisement shall be submitted to the secretary as part of
any bond release application and shall contain a notification of
the precise location of the land affected, the number of acres, the
permit and the date approved, the amount of the bond filed and the
portion sought to be released, the type and appropriate dates of
reclamation work performed and a description of the results
achieved as they relate to the permittee's approved reclamation
plan. In addition, as part of any bond release application, the
permittee shall submit copies of letters which the permittee has sent to adjoining property owners, local government bodies,
planning agencies, sewage and water treatment authorities or water
companies in the locality in which the surface mining operation is
located, notifying them of the permittee's intention to seek
release from the bond. Any request for grade release shall also be
accompanied by final maps.
(b) Upon receipt of the application for bond release, the
secretary, within thirty days, taking into consideration existing
weather conditions, shall conduct an inspection and evaluation of
the reclamation work involved. The evaluation shall consider,
among other things, the degree of difficulty to complete any
remaining reclamation, whether pollution of surface and subsurface
water is occurring, the probability of continuance or future
occurrence of the pollution and the estimated cost of abating the
pollution. The secretary shall notify the permittee in writing of
his or her decision to release or not to release all or part of the
bond or deposit within sixty days from the date of the initial
publication of the advertisement if no public hearing is requested.
If a public hearing is held, the secretary's decision shall be
issued within thirty days thereafter.
(c) If the secretary is satisfied that reclamation covered by
the bond or deposit or portion thereof has been accomplished as
required by this article, he or she may release the bond or
deposit, in whole or in part, according to the following schedule:
(1) For all operations except those with an approved variance
from approximate original contour:
(A) When the operator completes the backfilling, regrading and
drainage control of a bonded area in accordance with the operator's
approved reclamation plan, the release of sixty percent of the bond
or collateral for the applicable bonded area:
Provided, That a
minimum bond of $10,000 shall be retained after grade release;
(B) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the release
of an additional twenty-five percent of the bond or collateral for
the applicable bonded area:
Provided, That a minimum bond of
$10,000 shall be retained after the release provided
for in this
subdivision; and
(C) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen of
this article:
Provided, That the revegetation has been established
on the regraded mined lands in accordance with the approved
reclamation plan:
Provided, however, That the release may be made
where the quality of the untreated post-mining water discharged is
better than or equal to the premining water quality discharged from
the mining site where expressly authorized by legislative rule promulgated pursuant to section three, article one of this chapter.
(2) For operations with an approved variance from approximate
original contour:
(A) When the operator completes the backfilling, regrading and
drainage control of a bonded area in accordance with the operator's
approved reclamation plan, the release of fifty percent of the bond
or collateral for the applicable bonded area:
Provided, That a
minimum bond of $10,000 shall be retained after grade release;
(B) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the release
of an additional ten percent of the bond or collateral for the
applicable bonded area:
Provided, That a minimum bond of $10,000
shall be retained after the release provided
for in this
subdivision; and
(C) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen of
this article:
Provided, That the revegetation has been established
on the regraded mined lands in accordance with the approved
reclamation plan and if applicable the necessary post-mining
infrastructure is established and any necessary financing is
completed:
Provided, however, That the release may be made where the quality of the untreated post-mining water discharged is better
than or equal to the premining water quality discharged from the
mining site where expressly authorized by legislative rule
promulgated pursuant to section three, article one of this chapter.
No part of the bond or deposit may be released under this
subsection so long as the lands to which the release would be
applicable are contributing additional suspended solids to
streamflow or runoff outside the permit area in excess of the
requirements set by section thirteen of this article, or until soil
productivity for prime farmlands has returned to equivalent levels
of yield as nonmined land of the same soil type in the surrounding
area under equivalent management practices as determined from the
soil survey performed pursuant to section nine of this article.
Where a sediment dam is to be retained as a permanent impoundment
pursuant to section thirteen of this article, or where a road or
minor deviation is to be retained for sound future maintenance of
the operation, the portion of the bond may be released under this
subsection so long as provisions for sound future maintenance by
the operator or the landowner have been made with the secretary.
Notwithstanding the bond release scheduling provisions of
subdivisions (1) and (2) of this subsection, if the operator
completes the backfilling and reclamation in accordance with an
approved post-mining land use plan that has been approved by the
Department of Environmental Protection and accepted by a local or regional economic development or planning agency for the county or
region in which the operation is located,
or if the operator
completes a master land use plan as provided in section nine,
article two-a, chapter five-b of this code and section ten-a of
this article, provisions for sound future maintenance are assured
by the local or regional economic development or planning agency,
and the quality of any untreated post-mining water discharge
complies with applicable water quality criteria for bond release,
the secretary may release the entire amount of the bond or deposit.
The secretary shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to govern a bond release pursuant to the
terms of this paragraph.
(d) If the secretary disapproves the application for release
of the bond or portion thereof, the secretary shall notify the
permittee, in writing, stating the reasons for disapproval and
recommending corrective actions necessary to secure the release and
notifying the operator of the right to a hearing.
(e) When any application for total or partial bond release is
filed with the secretary, he or she shall notify the municipality
in which a surface-mining operation is located by registered or
certified mail at least thirty days prior to the release of all or
a portion of the bond.
(f) Any person with a valid legal interest which is or may be adversely affected by release of the bond or the responsible
officer or head of any federal, state or local governmental agency
which has jurisdiction by law or special expertise with respect to
any environmental, social or economic impact involved in the
operation, or is authorized to develop and enforce environmental
standards with respect to the operations, has the right to file
written objections to the proposed bond release and request a
hearing with the secretary within thirty days after the last
publication of the permittee's advertisement. If written
objections are filed and a hearing requested, the secretary shall
inform all of the interested parties of the time and place of the
hearing and shall hold a public hearing in the locality of the
surface-mining operation proposed for bond release within three
weeks after the close of the public comment period. The date, time
and location of the public hearing shall also be advertised by the
secretary in a newspaper of general circulation in the same
locality.
(g) Without prejudice to the rights of the objectors, the
applicant, or the responsibilities of the secretary pursuant to
this section, the secretary may hold an informal conference to
resolve any written objections and satisfy the hearing requirements
of this section thereby.
(h) For the purpose of the hearing, the secretary has the
authority and is hereby empowered to administer oaths, subpoena witnesses and written or printed materials, compel the attendance
of witnesses, or production of materials, and take evidence,
including, but not limited to, inspections of the land affected and
other surface-mining operations carried on by the applicant in the
general vicinity. A verbatim record of each public hearing
required by this section shall be made and a transcript made
available on the motion of any party or by order of the secretary
at the cost of the person requesting the transcript.
NOTE: The purpose of this bill is to provide that the
Department of Environmental Protection shall give priority to those
mining permits that utilize land use master plans, provide for year
round agriculture, solar and wind farms, algae or bio-oil cropland,
forest fiber farms or aquaculture. The bill further provides that
upon completion of these land use master plans, the Department of
Environmental Protection may release the entire amount of an
operator's bond or deposits.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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