Senate Bill No. 588
(By Senator Hunter)
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[Introduced February 6, 2008; referred to the Committee on
Energy, Industry and Mining; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §22-3-22 of the Code of West Virginia,
1931, as amended, relating to excess spoil or overburden in
intermittent or perennial streams.
Be it enacted by the Legislature of West Virginia:
That §22-3-22 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.
§22-3-22. 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 data base 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 the third
day of August, one thousand nine hundred seventy-seven, or under a
permit issued pursuant to this article, or where substantial legal
and financial commitments in the operations were in existence prior
to the fourth day of January, one thousand nine hundred
seventy-seven.
(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 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 the third day of August, one thousand nine hundred seventy-seven, 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 three hundred feet of any public building, school, church, community or institutional
building, public park, or within one 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.
(f) Notwithstanding any other provision of this code, no
excess spoil or overburden may be permanently placed in an
intermittent or perennial stream or on land within one hundred feet
of an intermittent or perennial stream. This prohibition does not limit the placement of coal processing waste in intermittent or
perennial streams or within one hundred feet of such streams.
NOTE: The purpose of this bill is to prevent placement of
excess spoil or overburden in or within one hundred feet of an
intermittent or perennial stream.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.