Senate Bill No. 375
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced February 25, 2009; referred to the Committee on
Economic Development.]
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A BILL to amend and reenact §5B-2A-3 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 the Office of Coalfield
Community Development and master land use plans; defining
terms; requiring state, local, county or regional development
or redevelopment authorities to develop master land use plans;
requiring the Office of Coalfield Community Development to
assist with the development of master land use plans;
providing for review and approval of master land use plans;
and requiring the post-mining land use proposed in reclamation
plans to comport with associated master land use plans.
Be it enacted by the Legislature of West Virginia:
That §5B-2A-3 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) "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 (e.g. carbon dioxide sequestration
and storage and ultrasupercritical technologies), coal bed 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-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 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, industrial uses, commercial uses, agricultural uses, public facility uses or recreational facility uses;
(2) Upon the request of a state, local, county or regional
development or redevelopment authority, the office shall assist
such authority with the development of a master land use plan.
(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.
(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 state, local,
county or regional development or redevelopment authority shall
submit an updated master land use plan to the department and the
office for review. 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
state, local, county or regional development or redevelopment
authority may 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 shall be developed by the
relevant state, local, county or regional 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) The property use is compatible with adjacent land uses; (b) the
use satisfies the relevant development or redevelopment authority's
anticipated need and market use; (c) the property has in place
necessary infrastructure components needed to achieve the anticipated use; (d) the use is supported by all other appropriate
public agencies; (e) the property is eligible for bond release in
accordance with section twenty-three, article three, chapter
twenty-two of this code; and (f) the use is feasible. Required
infrastructure component standards require approval of the relevant
county commission or commissions before such standards are
accepted. County commission 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 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 post-mining land use proposed in any The reclamation plan
may
submitted after January 1, 2011, shall include a 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.
which includes a post-mining land use consistent
with the reclamation and post-mining land use requirements of this
article; 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 three, 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-land 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 to
provide for a
revised reclamation plan consistent provide for a 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.
NOTE: The purpose of this bill is to require state, local,
county or regional development or redevelopment authorities to
develop a master land use plans, to require the Office of Coalfield
Community Development to, upon request, assist with the development
of a master land use plan, to require the Office of Coalfield
Community Development to review master land use plans, and to
require the post-mining land use proposed in a reclamation plan to
comport with the land use set forth in the associated master land
use plan.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.