H. B. 2658

(By Mr. Speaker, Mr. Chambers, and Delegates Douglas

and Manuel

Introduced March 22, 1993; referred to the

Committee on the Judiciary)





A BILL to amend and reenact article four, chapter twenty-two-a the code of West Virginia one thousand nine hundred thirty-one as amended, all relating to the surface mining of minerals other than coal, generally; including legislative findings; definition of terms; appointment, qualifications and duties of noncoal surface-mining inspectors and supervisors; authorizing the promulgation of legislative rules and regulations; creating the noncoal mineral surface-mining advisory council; requiring a permit to engage in noncoal mineral surface-mining operations; conditions for permitting; application fee and bond required; transfer, sale and modification of permits; permit conversion and exemptions for certain existing operations; areas deemed unsuitable for noncoal mineral surface-mining activity; blasting restrictions; obligations of the operator; procedures for suspension of operations; revocation of permit and forfeiture of bond; appeals to the reclamation board of review; injunctive
relief; criminal and civil penalties; monthly report to be submitted by the operator; noncoal mineral special reclamation fund; requiring that orders by the director be in writing; and requiring the director to provide notice and opportunity for appeals.
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER THAN COAL AND THE RECLAMATION OF PAST AND FUTURE AFFECTED LANDS.

§22A-4-1. Short title.

This article shall be known and cited as the "West Virginia Noncoal Mineral Surface-Mining Act."
§22A-4-2. Legislative findings, intent and purpose.

The Legislature hereby finds that some of the activities associated with noncoal mineral surface mining in West Virginia, although a vital industry that is an important part of the state's economy, may result in highwalls that may be hazardous, and adverse environmental impacts, including but not limited to, acid soil conditions, surface water pollution, potential ground water pollution, lowered property values of adjacent lands, decreased aesthetics and altered drainage patterns.
The Legislature further finds that past noncoal mineral surface-mining practices have occasionally resulted in unreclaimed, orphaned mine sites which demonstrate some of the adverse effects of noncoal mineral surface mining, which are eyesores to the general public and a hazard to public health and safety.
Therefore, it is the intent of the Legislature tostrengthen and extend its present noncoal mineral surface- mining controls by vesting jurisdiction and authority for regulating noncoal mineral surface-mining activity in the division of environmental protection of the department of commerce, labor and environmental resources; by providing for procedures to minimize adverse effects of such activity on the environment; prohibit noncoal mineral surface mining in certain unsuitable areas, as specified in section nineteen of this article; and to repair hazardous orphaned noncoal mineral surface-mining sites so that they may once again become a productive part of the West Virginia landscape. This article is intended to protect the environment of the state and the health and safety of the public, and shall be liberally construed in a manner to accomplish the Legislature's intent.
§22-4-3. Definitions.

(a) "Adequate treatment" means treatment of water by physical, chemical or other approved methods so that the treated water will not violate applicable effluent limitations, established for the state generally, or any applicable water quality standards established specifically for any river, stream, groundwater or drainway into which such water is released.
(b) "Breakthrough" means the release of water which has been trapped or impounded underground.
(c) "Director" means the director of the division of environmental protection of the department of commerce, labor and environmental resources, or his or her authorized agents.
(d) "Disturbed land" or "land disturbed" means land areawhere vegetation, topsoil, mineral or overburden has been removed, placed or stored by noncoal mineral surface-mining operations, including all permitted lands under this article and ancillary lands disturbed by the construction or improvement of haulageways, roads or trails.
(e) "Minerals" means natural deposits found on or in the earth, whether consolidated or loose, and including clay, flagstone, gravel, limestone, manganese, sand, sandstone, shale, chert, flint, dolomite, iron ore and any other metal or metallurgical ore:
Provided, That the term "minerals", as used in this article, does not include coal.
(f) "Operator" means any person who should obtain a permit or who has a valid permit to engage in any activity covered by this article.
(g) "Orphaned lands" means those areas disturbed by the noncoal mineral surface mining, and subsequently abandoned, which were not required by law to be reclaimed or which have not been reclaimed due to the operation being terminated without reclamation being accomplished.
(h) "Overburden" means any natural deposit of consolidated or unconsolidated material which overlies a mineral deposit or occurs between mineral deposits.
(i) "Permit area" means the area indicated on the map submitted by the operator with the application for permit showing the exact location of end of strip markers, perimeter markers and monuments.
(j) "Permittee" means a person holding a permit issued under this article.
(k) "Person" means any individual, organization, partnership, foundation, firm, group, society, association, trust, corporation or other business entity, or any combination thereof.
(l) "Reclamation" means the rehabilitation for useful purposes of land disturbed by noncoal mineral surface mining, including any practices necessary for the protection of the natural resources, including both on lands or waters, of the surrounding area.
(m) "Significant revision" means any revision to a permit which could result in an adverse impact on the environment or on the welfare and safety of the public in a degree or manner different from that reflected in the approved permit.
(n) "Spoil" means overburden and waste material removed and placed elsewhere during noncoal mineral surface mining operations.
"Surface mine" means all areas surface mined or being surface mined, as well as adjacent areas ancillary to the noncoal mineral surface-mining operation, together with preparation and processing plants, storage areas and haulageways, roads or trails, spoil areas, stockpile areas, waste reprocessing areas, impoundments, dams, the surface impacts incident to underground mining, or other property or other materials on the surface, at or near the mine site, resulting from or incident to the surface-mining activity.
(p) "Surface mining", "surface mined" or "surface-mining operation" means all activity for the recovery, processing or storage of minerals, as defined in this article, and all plantsand equipment used in the preparation and processing of said minerals, and the surface effects of underground mining:
Provided, That the storage or processing of minerals when comprising an integral part of a manufacturing process shall not be considered surface-mining activity and shall not require permitting.
(q) "Underground mining" means surface disturbance or the surface effects associated with excavations penetrating or exposing for penetrating noncoal mineral deposits or strata and the equipment connected therewith which contributes directly or indirectly to the mining, preparation or handling of materials.
§22A-4-4. Cooperative efforts by the division of environmental protection.

The director may cooperate with local, county or state government agencies, of this state or other states, or with agencies of the federal government, and may reasonably compensate them for such services. The director may also accept any federal funds, state funds or any other funds for the reclamation of land affected by noncoal mineral surface mining.
§22A-4-5. Conflict of interest prohibited.

No public officer or employee in the division of environmental protection or office of attorney general, having responsibility or duty either directly or of a supervisory nature with respect to the administration or enforcement of this article shall (1) engage in noncoal mineral surface mining as a sole proprietor or as a partner or (2) be an officer, director, stockholder, owner or part owner of any corporationor other business entity engaged in noncoal mineral surface mining or (3) be employed as an attorney, agent or in any other capacity by any person, partnership, firm, association, trust or corporation engaged in noncoal mineral surface mining. Any violation of this section by any such public officer or employee, unless deemed acceptable by a ruling of the West Virginia ethics commission, may constitute grounds for removal from office or dismissal from employment, as the case may be.
§22A-4-6. Noncoal mineral surface-mining inspectors, supervisors and other employees; appointment and qualifications.

The division may employ such noncoal mineral surface- mining inspectors, supervisors and other personnel as deemed necessary by the division to carry out the purposes of this article. All such employees shall be eligible under the classified service, administered by the division of personnel of the department of administration.
§22A-4-7. Duties of noncoal mineral surface-mining inspectors.

Noncoal mineral surface-mining inspectors or supervisors shall inspect each active noncoal mineral surface-mining operation on thirty day intervals or as often as necessary to ensure compliance with this article and rules and regulations promulgated thereunder.
§22A-4-8. Right of entry.

The director shall have the right, without advance notice and without delay, upon presentation of appropriate credentials, to enter any noncoal mineral surface-miningoperation at reasonable times during normal working hours and at any time during emergencies to have access to the property and any records and the right to copy any record or records and to inspect any monitoring equipment or method of operation.
§22A-4-9. Promulgation of legislative rules and regulations.

The director is hereby authorized, subject to prior review by the noncoal mineral surface-mining advisory council, to promulgate legislative rules and regulations as deemed necessary and appropriate for the effective administration of this article. Such rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of the code:
Provided, That rules and regulations promulgated by the director as authorized by this article may be promulgated as emergency legislative rules in accordance with section fifteen, article three, chapter twenty- nine-a of this code.
§22A-4-10. Noncoal mineral surface-mining advisory council created.

There is hereby created an advisory council to be known and designated as the "West Virginia Noncoal Mineral Surface- Mining Advisory Council" which shall consist of five members to be appointed by the governor with the advice and consent of the senate. Members of the council shall be residents of the state for at least three years prior to their appointment. Two of the members shall be noncoal mineral surface-mine operators who hold or have held a valid noncoal mineral surface-mining permit for a minimum of five years. Two members shall be a representative of an active statewide environmentalorganization. One member shall be a citizen-at-large.
The governor shall select the members representing environmental organizations from a list of ten nominees submitted collectively by statewide environmental organizations.
The governor shall select the members representing noncoal mineral surface-mining operators from a list of ten nominees, who meet the qualifications set forth in this article, submitted collectively by trade associations which represent the noncoal mineral surface-mining industry.
No more than three members of the council shall be from the same political party.
The governor shall appoint members of the advisory council within sixty days from the effective date of this article.
One representative of a statewide environmental organization and one of the noncoal mineral surface-mining operators appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-five. The other representative of a statewide environmental organization and the citizen-at-large appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-seven. The other noncoal mineral surface-mining operator appointed to the council shall serve for a term expiring on the thirtieth day of June, one thousand nine hundred ninety-eight. All subsequent appointments shall be for a term of three years. In the event of a vacancy on the council before the expiration of a term, the governor shall, within sixty days, appoint a qualifiedperson to fill the vacancy for the unexpired term. If the governor fails to fill the vacancy within the specified time, the council may appoint a qualified person to fill the vacancy. No member shall serve more than two terms, consecutively. The governor may remove any member of the advisory council for official misconduct.
The director of the division of environmental protection, or his duly appointed agent shall serve as a nonvoting ex officio member of the council and serve as the chairperson of the council. The council shall meet to conduct appropriate business during the first month of each fiscal year. Other meetings may be conducted as needed upon the call of the chairperson:
Provided, That the council may conduct an organizational meeting at any time within sixty days after the initial appointment. A majority of the members of the council, including the chairperson shall constitute a quorum.
Members of the advisory council shall receive a per diem of one hundred dollars for each day engaged in the performance of his or her official duties as members of the council. Such members shall also receive reimbursement for reasonable and necessary expenses incurred in the performance of such duties. Compensation and expenses for members of the council shall be paid from the noncoal mineral special reclamation fund created in section thirty of this article.
The advisory council shall review all rules and regulations proposed for promulgation by the director and shall advise the director generally on matters relating to noncoal mineral surface mining. Additionally the council shall approvethe priority listing of orphaned lands for reclamation. All meetings of the advisory council shall be open to the public and shall be advertised in the West Virginia Register and as a Class III legal advertisement in a newspaper of general circulation in the location where such meeting is to be held. The council shall allow opportunity for public comment, if requested, for items taken under consideration by the council, with respect to noncoal mineral surface-mining policies.
The advisory council shall not be liable for civil action as a result of any act performed in good faith in the exercising of its duties as prescribed by law.
§22A-4-11. Permit required; applications; fees and issuance.

(a) Except as otherwise provided in this article, it shall be unlawful for any person to engage in noncoal mineral surface-mining in this state without first obtaining a noncoal mineral surface-mining permit. An application for a permit shall be in writing on forms designed and furnished by the division. A fee of one thousand dollars shall be submitted with each application. The application shall, at a minimum, contain the following information and attachments, as well as other information deemed necessary to effectuate the purpose of this article as specified in the rules and regulations:
(1) Name and address of the applicant and the operator, if different from the applicant; (2) name of the watershed and the specific name of all surface streams or tributaries into which surface and pit drainage may be discharged; (3) the common and geologic name, where applicable, of the mineral or minerals to be extracted; (4) mining and reclamation preplans and maps asrequired in section fifteen of this article; (5) the names and addresses of the owner or owners of the land surface to be permitted; (6) the names and addresses of the owner or owners of the mineral to be surface mined; (7) the source of the operator's legal right to enter and conduct operations on the land to be permitted:
Provided, That nothing in this article may be construed as vesting in the division the jurisdiction to adjudicate property rights disputes; (8) a reasonable estimate of the number of acres of land that will be disturbed by noncoal mineral surface-mining on the area to be permitted; (9) a blasting plan, if applicable, in compliance with section twenty of this article; (10) if the area to be permitted includes an aquifer which provides water for commercial, industrial, agricultural, recreational or residential use, a determination of the probable hydrologic consequences of mining and operations, both on and off the area to be permitted, with respect to the hydrologic regime, quantity and quality of water in surface and ground water systems, including the dissolved and suspended solids under seasonal flow conditions, and the collection of sufficient data for the site to be permitted and surrounding areas so that an assessment can be made of the probable cumulative impacts of all anticipated noncoal mineral surface mining in the area upon the hydrology of the area, particularly upon water availability; (11) the number of surface-mining permits currently held by the applicant or operator; (12) the names and post-office addresses of every officer, partner and director of the applicant, or person acting on the applicant's behalf, together with all persons, ifany, owning of record or beneficially (alone or with associates), if known, ten percent or more of any class of stock of the applicant or operator: Provided, That if such list consists of more than ten persons, this provision shall be construed to require that the names and addresses of the ten largest stockholders be listed. Provided, however, That the names and current addresses of every officer, partner, director and applicant or any other person acting on behalf of every officer, partner, director or applicant shall accompany such application; (13) whether the applicant, any subsidiary or affiliate or any person controlled by or under common control with the applicant, or any person required to be identified by item twelve above, has ever had a surface-mining permit for coal or noncoal extraction issued under the laws of this state revoked or has ever had a coal or noncoal surface-mining bond, or security deposited in lieu of bond, forfeited; (14) names and addresses of the reputed owner or owners of all surface area within five hundred feet of any part of proposed disturbed land, which such owners shall be notified by the applicant by registered or certified mail of such application and such owners shall be given ten days after receipt of notice within which to file written objections or comments with the division; (15) a certificate issued by an insurance company authorized to do business in this state certifying that a liability insurance policy is in effect covering all noncoal surface-mining operations of the applicant or operator in this state and affording personal injury protection in an amount not less than three hundred thousand dollars and property damage includingblasting damage, protection in an amount of not less than five hundred thousand dollars shall be included. Proof of continuing insurance shall be required on an annual basis: Provided, That blasting insurance shall not be required for operations that do not conduct blasting operations.
The director shall, upon receipt of an application for a new permit, determine if the application is complete. If the application is deemed incomplete, the applicant shall be notified, within ten days, and provided with written comments stating the deficiencies. Should the applicant disagree with the decision of the director, he or she may, by written notice, request a hearing before the director.
The director shall hold such hearing within thirty days after receipt of this notice. When a hearing is held, the director shall notify the applicant of the decision by certified mail within twenty days after the hearing. Any person aggrieved by a final order of the director made after the hearing or without a hearing may appeal the order to the reclamation board of review. Any appeal to the reclamation board of review shall be taken without prejudice by the director in the final review of a permit application.
If the application is deemed complete, the director shall cause to be published, as a Class III legal advertisement in accordance with the provisions of article three, chapter fifty- nine of this code, a notice of the application for the permit. Such notice shall contain in abbreviated form the information required by this section, together with a statement that written protests or comments to such application will beaccepted until a specified date, which date shall be thirty days after the last publication of the notice. The advertisement shall indicate that a copy of the complete application is available for public inspection at the county clerk's office, courthouse or courthouses of the county or counties in which the proposed permit area is located.
The publication area for the notices required by this section shall be the county or counties in which any portion of the proposed permit area is located. The cost of all publications required by this section shall be borne by the applicant. A permit shall not be issued if any such costs are in arrears.
(b) If an informal conference is requested in writing by any resident in the county or counties in which the proposed permitted area is located, the director shall hold such conference at or near the location of the proposed noncoal mineral surface-mining site within thirty days after the close of the public comment period. Those requesting the conference shall be notified by certified mail of the date, time and location of the informal conference which shall also be advertised by the director as a Class I legal advertisement in a newspaper of general circulation published at or near the location of the proposed noncoal mineral surface-mining site at least two weeks prior to the scheduled conference date. The director may arrange with the applicant, upon request by any person to the informal conference proceeding, access to the proposed permit area for the purpose of gathering information relevant to the proceeding. The applicant and or operatorshall have the right to accompany any person to the proposed permit area. An electronic or stenographic record shall be made of the conference proceeding unless waived in writing by all parties. Such record shall be maintained and shall be accessible to the participating persons at cost until final release of the applicant's performance bond or other security posted in lieu thereof. The director shall preside over the conference. If the persons requesting the informal conference stipulate, in writing, prior to the conference that an agreement has been reached and that they wish to withdraw their request, the conference will not be held.
(c) Upon receipt of a completed permit application to conduct noncoal surface-mining operations, and after providing opportunity for public comment in accordance with this article, the director, within sixty days and in writing, shall grant the permit, deny the permit or require the applicant to revise the application. In denying the permit or requiring that the applicant revise the permit, the director shall provide a written statement explaining why such a decision was reached and, if appropriate provide suggestions as to how to make the application acceptable. The statement shall also specify that the applicant shall have the right to request a hearing on the decision within not less than ten nor more than thirty days after such decision.
A permit shall not be issued to an applicant owing delinquent civil penalties or noncoal reclamation fees, or fees or penalties assessed under article three of this chapter, or is or has been affiliated with or managed or controlled by, orwho is or has been under the common control of, other than as an employee, a person who or which has had a coal or noncoal surface-mining permit revoked or bond or other security forfeited for failure to reclaim lands as required by the laws of this state:
Provided, That permits may be issued to any applicant if, after the revocation or forfeiture, either the applicant or the operator whose permit has been revoked or bond forfeited has petitioned for reinstatement and has paid into the noncoal mineral special reclamation fund the sum of money determined by the division, to be adequate to reclaim the disturbed area, and the division is satisfied that the petitioner will hereafter comply with this article. Provided, further, That any person who has a permit revoked or forfeited, or have forfeited bond or other property for activities associated with any type of mining operation, shall not be granted a permit to engage in noncoal mineral surface-mining operations unless he or she has resolved whatever problem, causing such revocation or forfeiture, according to applicable provisions of the code and applicable rules and regulations governing such other mining.
Permits shall be valid for five years from its date of issuance:
Provided, That if the applicant demonstrates that a specific longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment or the opening of the operation, the director may extend a permit for such longer term: Provided however, That if such specified longer term is granted, the permittee shall submit the required renewal fee on each five year anniversary date of permitissuance.
§22A-4-12. Permit renewal.

Any person holding a valid noncoal mineral surface-mining permit may apply for a renewal of said permit by submitting, to the division, an application for renewal as designed and furnished by the division. The applicant shall not be required to resubmit information previously submitted if the applicant states in writing that such information has not changed since the time the original application was submitted and any subsequent applications for modification thereof:
Provided, That a permittee, in lieu of a permit renewal, may apply for a new permit in the manner prescribed in section eleven of this article.
Upon reviewing the application which shall be accompanied by a renewal fee of five hundred dollars and any other fees including bond as are required by this article, and certificate of insurance, the director shall renew the permit, if the operation is in compliance with the provisions of this article. Application for permit renewal shall be made at least 120 days prior to the expiration of the permit. The applicant applying for a renewal, following the submission of the completed application for renewal and fees, may continue noncoal mineral surface-mining and reclamation operations in accordance with the last approved mining and reclamation plan of the current permit until the application for permit renewal is granted or denied.
§22A-4-13. Permit modification.

Any person holding a valid noncoal mineral surface-miningpermit may at any time during the term of the permit, apply for a modification of the permit by submitting, to the division, an application for permit modification:
Provided, That the applicant shall not be required to resubmit information previously submitted if the applicant states in writing that such information has not changed since the original application was submitted. Provided however, That no modification may extend the expiration date of the permit that is being modified. Provided further, That in lieu of a modification, a permittee may apply for a new permit in the manner prescribed in section eleven of this article.
An application for a significant revision of a permit shall be subject to all requirements of this article and rules and regulations promulgated pursuant thereto.
Any addition to an area covered by the permit, except boundary revisions which will not cause adverse environmental impacts or adversely effect the health and safety of the public, shall be made by application for a new permit for the additional area.
§22A-4-14. Permit transfer; sale.

It shall be unlawful for any permittee to transfer or sell rights granted under any permit issued pursuant to this article without the prior written approval by the director. Applications for transfer or sale of a permit shall be made on forms designed and furnished by the division. The application shall contain, at a minimum, the following information or attachments as well as any other information deemed necessary to effectuate the purposes of this section as specified inrules and regulations:
(1) affirmatively demonstrate that a bond in the full amount of that required for the permit will be kept in full force and effect before, during, and after the transfer, assignment, or sale; (2) provide proof that the successor has the legal right to enter and conduct mining activities on the permitted areas; (3) provide a sworn statement that the successor is eligible to receive a permit and will conduct mining and reclamation activities in accordance with the purposes and intent of this article, rules and regulations promulgated, as authorized by this article, and the terms and conditions of the permit; (4) has made the transferree, or buyer aware of any outstanding fines or fees, including reclamation costs, if any, that have been assessed to that land area that is transferred or sold; and (5) provide proof of publication of a Class III legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code, giving notice of the transfer or sale of the permit and providing an opportunity for public comment.
§22A-4-15. Modification of permit by the division.

If upon inspection of noncoal mineral surface-mining operations, as required under this article or if by other means, the director determines that land affected by noncoal mineral surface-mining activity conducted under the mining and reclamation plan submitted for the permit fails to meet the purposes as set forth in section two of this article, the director may require modification of the permit by (1) notifying the permittee in writing of the division's decisionwhich shall explain modifications deemed necessary to accomplish the original goals of the permit; and (2) the permittee's right to have a hearing on the proposed modification within no less than ten nor more than thirty days after the date of the notice was issued, unless the permittee and the division mutually agree on another date.
§22A-4-16. Preplans.

Under the provisions of this article, and rules and regulations adopted thereunder, the operator shall prepare a complete mining and reclamation plan for the land to be disturbed. Said mining and reclamation plan shall include a proposed method of operation, prepared by a registered professional civil or mining engineer or a person who is qualified based on standards developed in rules and regulations promulgated by the director and who requests and receives approval by the director, for grading, backfilling, soil preparation, mining and planting and such other proposals as may be necessary to develop the complete mining and reclamation plan contemplated by this article. In developing this complete mining and reclamation plan all reasonable measures shall be taken to eliminate damages to any person, their real and personal property, public roads, streams and all other public property from soil erosion, rolling stones and overburden, water pollution, breakthoughs and other hazards dangerous to life and property.
The preplan shall include copies of an enlarged topographic map meeting the requirements of the subdivisions below.
The maps shall:
(a) Be prepared and certified by or under the supervision of a registered professional civil engineer, or a registered professional mining engineer, or a registered land surveyor, who shall submit to the director a certificate of registration as a qualified engineer or land surveyor;
(b) Identify the area to correspond with application;
(c) Show probable limits of adjacent underground mining operations, probable limits of adjacent inactive or mined-out underground-mined areas and the boundaries of surface properties and names of surface and mineral owners of the land area within five hundred feet of any part of the proposed disturbed area;
(d) Be of such scale as may be prescribed by the director;
(e) Show the names and locations of all streams, creeks or impoundments, roads, buildings, cemeteries, active, abandoned or plugged oil and gas wells, any known significant historical, archaeological, geologic or geographic features, and utility lines on the area of land to be disturbed and within five hundred feet of such area;
(f) Show by appropriate markings the boundaries of the area to be disturbed, the crop line and strike and dip of the mineral to be mined, and the total number of acres involved in the area of land to be disturbed;
(g) Show the date on which the map was prepared, the north point and the quadrangle sketch and exact location of the operation;
(h) Show the drainage plan on and away from the area to bedisturbed. Such plan shall indicate the directional flow of water, constructed drainways, natural waterways used for drainage, and the streams or tributaries receiving or to receive this discharge;
(i) Show the presence of any materials which when present in the overburden, may cause spoil with a pH factor which will prevent effective revegetation. The director shall promulgate rules and regulations establishing the appropriate pH level. The presence of such materials, wherever occurring in significant quantity, shall be indicated on the map filed with the application for permit.
The operator shall also indicate the manner in which acid- bearing spoil will be suitably prepared for revegetation and stabilization, whether by application of mulch or suitable soil material to the surface or by some other type of treatment, subject to approval by the division.
The operator shall also indicate the manner in which all permanent overburden disposal sites will be stabilized.
The certification of the maps shall read as follows: "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the noncoal mineral surface-mining laws of this state and rules and regulations promulgated thereunder." The certification shall be signed and notarized. The director may reject any map as incomplete if its accuracy is not so attested.
Those noncoal mineral surface-mining operations which remove or disturb strata that serve as aquifers whichsignificantly ensure the hydrologic balance of water use either on or off the mining site shall establish monitoring sites to: (A) Record the quantity and quality of surface drainage above and below the mine site as well as in the potential disturbed area; (B) record level, amount and samples of ground water and aquifers potentially affected by the noncoal mineral surface- mining operation and also below the lowermost elevation permitted to be disturbed; (C) record precipitation; and (D) maintain records of well logs and borehole data. The monitoring data collection and analysis required by this section shall be conducted according to standards and procedures set forth by the director in order to assure their reliability and validity.
A monument as prescribed by the division of environmental protection shall be placed in an approved location near the operation. If the operations under a single permit are not geographically continuous, the operator shall locate additional monuments and submit additional maps before mining other areas.
Upon an order of the director, the operator shall, within thirty days service of said order upon said operator by certified United States mail, furnish to the division of environmental protection four copies of a progress map prepared by or under the supervision of a registered professional civil engineer, registered professional mining engineer, registered land surveyor or a person who is qualified as determined by standards developed in rules and regulations promulgated by the director and who requests and receives approval by the director , showing the area disturbed by operations to the date of suchmap. Such progress map shall contain information identical to that required for both the proposed and final maps, required by this article, and shall show in detail completed reclamation work. Such progress map shall include a geologic survey sketch showing the location of the operation, shall be properly referenced to a permanent landmark, and shall be within such reasonable degree of accuracy as may be prescribed by rules and regulations promulgated by the director. If no land has been disturbed by operations during the preceding year, the operator shall notify the director of this fact. A final map shall be submitted within sixty days after completion of mining operations.
§22A-4-17. Installation of drainage system.

Prior to the beginning of noncoal mineral surface-mining operations, the operator shall construct and thereafter maintain a drainage system and haulageway. The drainage system and haulageway shall be certified by a registered professional civil or mining engineer, registered land surveyor or a person who is qualified based on standards developed in rules and regulations promulgated by the director and who requests and receives approval by the director, and constructed in accordance with approved design criteria. All sediment control structures shall be maintained and shall be cleaned when the sediment accumulation reaches sixty percent of the design capacity.
§22A-4-18. Alternative plans; bond releases; planting plan required.

An operator may propose alternative plans not calling forbackfilling where a water impoundment is desired, if such restoration will be consistent with the purpose of this article.
Such plans shall be submitted to the director, and if such plans are approved by the director and complied with within such time limits as may be determined by him as being reasonable for carrying out such plans, the backfilling requirements of this article may be modified.
The director shall promulgate rules and regulations requiring the establishment of schedules for backfilling, grading and planting, which shall be kept current. All backfilling and grading shall be completed before equipment necessary for such backfilling and grading is removed from the operation.
If the operator or other person desires to conduct underground mining upon the premises or use an underground-mine opening for a haulageway or other lawful purposes, the operator may designate locations to be used for such purposes at which places it will not be necessary to reclaim as herein provided until such underground mining or other use is completed, during which time the bond on file for that portion of that operation shall not be released.
Such locations shall be described and designated on the map required by the provisions of section eleven of this article.
Where applicable, suitable soil material shall be used to cover the surface of the regraded and backfilled area of operation in an amount sufficient to support vegetation.
When the backfilling and grading have been completed and approved by the director, the director shall release that portion of the bond which was filed and designated to cover the backfilling and grading requirements of this article, the remaining portion of the bond in an amount equal to five hundred dollars per acre, but not less than a total amount of ten thousand dollars being retained by the treasurer until such time as the planting and revegetation is done according to law and rules and regulations promulgated thereof, and is approved by the director, at which time the director shall release the remainder of the bond.
The seed or plant mixtures, quantities, method of planting, type and amount of lime, fertilizer and any other measures necessary to provide a suitable vegetative cover shall be defined by the rules and regulations by the director.
The director shall not release the operator's bond until all haulageways, roads and trails within the permit area have been abandoned according to the provisions of this article and the rules and regulations promulgated thereunder.
The purpose of this section is to require restoration of land disturbed by noncoal mineral surface mining to a desirable purpose and use. The director may, in the exercise of his sound discretion when not in conflict with such purpose, modify such requirements to bring about a more desirable land use:
Provided, That the person or agency making such modifications will execute contracts, post bond or otherwise ensure full compliance with the provisions of this section in the event such modified program is not carried to completion within areasonable length of time.
§22A-4-19. Areas unsuitable for noncoal mineral surface- mining operations; writ of mandamus.

(a) The Legislature finds specifically that there are certain areas in the state of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if noncoal mineral surface mining is conducted in these certain areas such operations may adversely impact surface water quality, ground water quality or quantity or aquatic life, wildlife and related environmental values, or cause landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural, residential, industrial or commercial purposes, the destruction of aesthetic values, the destruction of recreational areas and future use of the area and surrounding areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life and property so as to constitute an imminent and inordinate peril to the welfare of the state, and that such areas shall not be mined by noncoal mineral surface-mining. Therefore, authority is hereby granted for the director to exclude any such areas from permits for proposed noncoal mineral surface-mining operations.
(b) No application for a permit shall be approved by the director if there is found on the basis of the information set forth in the application or from information available to the director and made available to the applicant that there is probable cause to believe that the proposed method ofoperation, backfilling, grading or reclamation of the affected area can not be carried out consistent with the purpose of this article.
(c) If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state of West Virginia with a similar type of operation upon land with similar overburden shows that one or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds, (2) landslides or (3) surface water or groundwater pollution, the director may delete such part of the land described in the application upon which such overburden exists.
(d) If the director finds that the operation will constitute a hazard to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake or other public property, then he shall delete such areas from the permit application before it can be approved.
Whenever the director finds that ongoing noncoal mineral surface-mining operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this section, he may order immediate suspension of such operations and he shall take such other action or make such changes in the permit as he may deem necessary to avoid said described conditions.
The failure of the director to discharge the mandatory duty imposed on him by this section shall be subject to a writof mandamus, in any court of competent jurisdiction by any private citizen affected thereby.
§22A-4-20. Prohibition of noncoal mineral surface-mining operations within a certain distance of public or private property.

The director shall not give approval for any operator to engage in noncoal mineral surface-mining operations within one hundred feet of: (1) The outside right-of-way line on any public road, except where mine access roads or haulage roads join such right-of-way line; (2) any cemetery; (3) the bank of any stream; or (4) any property line of any adjoining lands upon which the operator does not have a right of entry.
The director shall not give approval for any operator to engage in noncoal mineral surface-mining operations within three hundred feet of: (1) Any occupied dwelling house or commercial or industrial building unless released by the owner thereof; (2) any public building, school or community building; or (3) public park:
Provided, That the distance restrictions aforesaid, unless it would cause a real and imminent threat to the health and safety of the public, cause significant environmental harm or significantly degrade the existing use of the adjoining property, shall not apply to; (1) ways used for ingress and egress to and from the minerals as herein defined and the transportation of the removed minerals, (2) appropriate screening berms, (3) drainage control structures, and (4) the dredging and removal of minerals from the streams or watercourses of this state, when permitted.
§22A-4-21. Blasting restrictions.

Where blasting of overburden or mineral is necessary, such blasting shall be done in accordance with established principles, as promulgated by rules and regulations by the director.
The director shall promulgate rules and regulations which shall set forth requirements for blasting procedures, pre-blast surveys, adherence to scaled distance formulas or compliance with maximum vibration limits measured by a seismograph, airblast limits, waivers, safety precautions, contents of the blast log book, and the certification of blasting personnel. Such rules and regulations shall be no more stringent than federal regulations adopted by the office of surface mining of the United States department of the interior, regarding blasting procedures.
§22A-4-22. Time in which reclamation shall be done.

An operator shall commence the reclamation of the area of land disturbed by his operation in accordance with plans previously approved by the director and to complete such reclamation within no longer than twelve months after the expiration of the permit, except that such grading, backfilling and water-management practices as are approved in the plans shall be kept current with the operations as defined by rules and regulations promulgated by the director and no permit or supplement to a permit shall be issued or renewed, if in the discretion of the director, these practices are not current.
§22A-4-23. Obligations of the operator.

In addition to the method of operation, grading, backfilling and reclamation requirements of this article andrules and regulations adopted pursuant thereto, the operator shall be required to:
(1) Dispose of according to current rules and regulations, all materials determined by the director to be acid-producing materials, or materials constituting a fire hazard.
(2) Upon the completion of underground-mining operations, seal off all underground-mining openings. The appropriate type and design of seals for underground mining operations shall be approved by the director prior to installation. Seals shall be designed and certified by a registered professional civil or mining engineer, land surveyor or a person who is qualified based on standards developed in rules and regulations promulgated by the director and who requests and receives approval by the director .
(3) Impound, drain or treat all runoff water so as to minimize soil erosion, damage to agricultural lands and pollution of streams and other waters. All water discharged from the permit area shall be subject to the requirements of article five-a, chapter twenty of this code.
(4) Remove or properly dispose of all metal, lumber, equipment and other refuse resulting from the operation. No operator shall throw, dump or pile; or permit the throwing, dumping, piling or otherwise placing of any overburden, stones, rocks, coal, mineral, earth, soil, dirt, debris, trees, wood, logs or other materials or substances of any kind or nature beyond or outside the area of land which is under permit; nor shall any operator place any of the foregoing listed materials in such a way that normal erosion or slides brought about bynatural physical causes will permit the same to go beyond or outside the area of land which is under permit.
The operator shall show on the map, filed with the application for a permit, the percent of slope of original surface within each two-hundred-foot interval along the contour of the operation, the first measurement to be taken at the starting point of the operation. The flagged field measurement shall be made from the estimated crop line of the proposed mineral seam down slope to the estimated toe of the outer spoil. All reasonable measures shall be taken so as not to overload the fill bench. No overburden material in excess of the first cut shall be placed over the fill bench. Trees and brush shall be removed from all fill sections prior to excavation, and no trees or brush removed from the cut section shall be placed therein or thereon.
No excess spoil disposal areas shall be produced on slopes of more than thirty-six percent, except in specified fill areas designated in the permit application and except for the construction of haulageways.
Lateral drainage ditches connecting to natural or constructed waterways shall be constructed to control water runoff and prevent erosion. There shall be no depressions that will accumulate water except those the director may specify and approve.
Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where suchsupply has been affected by contamination, diminution or interruption proximately caused by noncoal mineral surface- mining operations unless waived by said owner.
Nothing in this article shall be construed as affecting in any way the right of any person to enforce or protect, under applicable law, his interest in water resources affected by a noncoal mineral surface-mining operation.
Backfilling shall be required to be completed as contemporaneously as possible in accordance with the approved mining and reclamation plan. Whenever directed by the director, the operator shall construct, in the final grading, such diversion ditches or terraces as will control the water runoff. Additional restoration work may be required by the director, according to rules and regulations promulgated by the director.
In accordance with the approved mining and reclamation plan, the operator shall backfill, grade and compact, using all available overburden, spoil and waste rock in such a manner to eliminate to the extent possible all spoil peaks, depressions and highwalls. All final highwalls created after the first day of January, one thousand nine hundred ninety-four, and not inundated by an approved permanent water impoundment, shall be reduced to a slope no steeper than one horizontal to one vertical.
§22A-4-24. Suspension of operation; informal conference; imposition of affirmative obligations; appeals; notice of violation; procedure and actions; enforcement; permit revocation and bond forfeiture; civil and criminal
penalties; appeals to the reclamation board of review; prosecution; injunctive relief.
(a) Notwithstanding any other provisions of this article, the director shall have the authority to issue a suspension order for any noncoal mineral surface-mining operation or portion thereof when the director determines that any condition or practice exists, or that any permittee is in violation of any requirement of this article or any permit condition required by this article, which condition, practice or violation also creates an imminent danger to the health or safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources. The suspension order shall take effect immediately. Unless waived in writing, an informal conference shall be held at or near the site relevant to the violation set forth in the suspension order within twenty-four hours after the order becomes effective or such order shall expire. The conference shall be held before an inspector supervisor who shall, immediately upon conclusion of said hearing, determine when and if the operation or portion thereof may resume. Any operator who believes he is aggrieved by the decision of the inspector supervisor may immediately appeal to the director, setting forth reasons why the operation should not be halted. The director shall, within three days, determine if and under what conditions the operation or portion thereof may be resumed.
(b) The suspension order shall remain in effect until the director determines that the condition, practice or violationhas been abated, or until modified, vacated or released by the director. If the director finds that the ordered suspension of any portion of a noncoal mineral surface-mining operation will not completely abate the imminent danger to health or safety of the public or significant imminent environmental harm to land, air or water resources, the director shall, in addition to the suspension order, impose affirmative obligations on the operator requiring him to take whatever steps the director deems necessary to abate the imminent danger of the significant environmental harm.
(c) Any suspension order issued pursuant to this section or any other provision of this article may be released by the director who shall be readily available to terminate a suspension order upon abatement of the violation.
(d) If any of the requirements of this article, rules and regulations promulgated pursuant thereto, permit conditions or orders of the director have not been complied with, the director shall cause notice of violation to be served upon the operator or his duly authorized agent. A copy of the notice shall be handed to the operator or his duly authorized agent in person or served by certified mail addressed to the operator at the permanent address shown on the application for a permit. The notice shall specify in what respects the operator has failed to comply with this article, rules and regulations or permit conditions and shall specify a reasonable time for abatement of the violation not to exceed thirty days. If the operator has not abated the violation within the time specified in the notice, or any reasonable extension thereof, not toexceed sixty days, the director shall order the cessation of the operation or the portion thereof causing the violation, unless the operator affirmatively demonstrates that compliance is unattainable due to conditions totally beyond the control of the operator. If a violation is not abated within the time specified or any extension thereof, or any cessation order is issued, a mandatory civil penalty of not less than two hundred and not more than one thousand dollars per day per violation shall be assessed. A cessation order shall remain in effect until the director determines that the violation has been abated or until modified, vacated or terminated by the director or by a court. In any cessation order issued under this subsection the director shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measure in the order.
(e) If the director determines that a pattern of three or more violations of a same or similar nature within a twelve month period exists or has existed, as a result of the operator's lack of reasonable care and diligence, or that the violations are willfully caused by the operator, the director may enter into a consent agreement with the operator mandating the remedial measures that the operator must accomplish within a reasonable time period to come into and remain in compliance with this act, the rules and regulations and all permit conditions:
Provided, That the operator must demonstrate that sufficient resources are available to him to comply with the requirements of the consent agreement. If no consent agreement is reached or if the operator violates any condition of theconsent agreement, the director shall immediately issue an order directing the operator to show cause why the permit should not be suspended or revoked and giving the operator thirty days in which to request a public hearing. If a hearing is requested, the director shall inform all interested parties of the time and place of the hearing. Any hearing under this section shall be recorded and subject to chapter twenty-nine-a of this code, as applicable. Within no more than sixty days following the public hearing, the director shall issue and furnish to the permittee and all other parties to the hearing a written decision, and the reasons therefore, concerning suspension or revocation of the permit. Upon the operator's failure to show cause why the permit should not be suspended or revoked, the director shall immediately suspend or revoke the operator's permit. If the permit is revoked, the director shall initiate procedures in accordance with rules promulgated by the director to forfeit the operator's bond, or other security posted pursuant to section sixteen of this article, and give notice to the attorney general, who shall collect the forfeiture without delay: Provided, That the entire proceeds of such forfeiture shall be deposited with the treasurer of the state of West Virginia to the credit of the noncoal mineral special reclamation fund.
(f) Any person engaged in noncoal mineral surface-mining operations who violates any permit condition or who violates any other provision of this article or rules and regulations promulgated pursuant thereto may also be assessed a civil penalty. The penalty shall not exceed one thousand dollars perday. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessment. In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular noncoal mineral surface-mining operation, the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public, whether the operator was negligent, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the violation.
(g) Upon the issuance of notice or order pursuant to this section, the assessment officer shall, within thirty days, set a proposed penalty assessment and notify the operator in writing of such proposed penalty assessment. The proposed penalty assessment must be paid in full within thirty days of receipt or, if the operator wishes to contest either the amount of the penalty or the fact of violation, an informal conference with the assessment officer may be requested within fifteen days or a formal hearing before the reclamation board of review may be requested within thirty days. The notice of proposed penalty assessment shall advise the operator of the right to an informal conference and a formal hearing pursuant to this section. When an informal conference is requested, the operator shall have fifteen days from receipt of the assessment officers' decision to request a formal hearing before the reclamation board of review.
(h) When an informal conference is held, the assessmentofficer shall have authority to affirm, modify or vacate the notice, order or proposed penalty assessment.
(i) When a formal hearing is requested, the amount of the proposed penalty assessment shall be forwarded to the director for placement in an escrow account. Formal hearings shall be of record and subject to the provisions of article five, chapter twenty-nine-a of this code. Following the hearing the board shall affirm, modify or vacate the notice, order or proposed penalty assessment and, when appropriate, incorporate an assessment order requiring that the assessment be paid.
(j) Civil penalties owed under this section may be recovered by the director in the circuit court of Kanawha County. Civil penalties collected under this article shall be deposited with the State treasury to the credit of the noncoal mineral special reclamation fund established in section twenty- nine of this article. If, through the administrative or judicial review of the proposed penalty, it is determined that no violation occurred or that the amount of the penalty should be reduced, the director shall within thirty days remit the appropriate amount to the person, with interest at the rate of six percent or at the prevailing United States department of the treasury rate for long term securities, whichever is greater.
(k) Any person having an interest which is or may be adversely affected by an order of the director or the board may file an appeal only in accordance with the provisions of section twenty-three of this article, within thirty days after receipt of the order.
(l) The filing of an appeal or a request for an informal conference or formal hearing provided for in this section shall not stay execution of the order appealed from. Pending completion of the investigation and conference or hearing required by this section, the applicant may file with the director a written request that the director grant temporary relief from any notice or order issued under this article, together with a detailed statement giving reasons for granting such relief. The director shall issue an order or decision granting or denying such relief from an order for cessation of noncoal mineral surface-mining and reclamation operations. The decision on the request shall be issued within five days of its receipt. The director may grant such relief, under such conditions as he may prescribe if:
(1) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
(2) The person requesting the relief shows that there is a substantial likelihood that he will prevail on the merits in the final determination of the proceedings;
(3) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources; and
(4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the director.
(m) Any person who willfully and knowingly conducts surface-mining operations without a permit, violates acondition of a permit issued pursuant to this article or regulations promulgated pursuant thereto, or fails or refuses to comply with any order issued under said article and regulations or any order incorporated in a final decision issued by the director, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less that one hundred dollars nor more than ten thousand dollars, or imprisoned not more than one year, or both fined and imprisoned.
(n) Whenever a corporate operator violates a condition of a permit issued pursuant to this article, any rule and regulation promulgated pursuant thereto, or any order incorporated in a final decision issued by the director, any director, officer or agent of the corporation who willfully and knowingly authorized, ordered or carried out the failure or refusal, shall be subject to the same civil penalties, fines and imprisonment that may be imposed upon a person under the provisions of this section.
(o) Any person who knowingly makes any false statement, representation or certification, or knowingly fails to make any statement, representation or certification in any application, petition, record, report, plan or other document filed or required to be maintained pursuant to this article or regulations promulgated pursuant thereto, is guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than one hundred dollars nor more than ten thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned.
(p) Whenever any person: (A) Violated or failed orrefused to comply with any order or decision issued by the director under this article; or (B) interferes with, hinders or delays the director under this article; or (C) refuses to admit the director to the mine; or (D) refuses to permit inspection of the mine by the director; or (E) refuses to furnish any reasonable information or report requested by the director in furtherance of the provisions of this article; or (F) violates any other provision of this article, rule and regulation promulgated pursuant thereto, or the terms and conditions or any permit, the director, the attorney general or the prosecuting attorney of the county in which the major portion of the permit area is located may institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other appropriate order, in the circuit court of Kanawha County or any court of competent jurisdiction to compel compliance with any enjoin such violations, failures or refusals. The court or the judge thereof may issue a preliminary injunction in any case pending a decision on the merits of any application filed without requiring the filing of a bond or other equivalent security.
(q) Any person who shall, except as permitted by law, willfully resist, prevent, impede or interfere with the director or any of his agents in the performance of duties pursuant to this article is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than ten thousand dollars or by imprisonment for not more than one year, or both.
§22A-4-25. Completion of planting; inspection and evaluation.

Within sixty days after the planting of an area has been completed, the operator shall file or cause to be filed a planting report with the director on a form to be prescribed and furnished by the director, providing the following information: (1) Identification of the operation; (2) the type of planting or seeding, including mixtures and amounts; (3) the date of planting or seeding; (4) the area of land planted; and (5) such other relevant information as the director may require. All planting reports shall be certified by the operator, or by the party with whom the operator contracted for such planting, as provided in section eighteen of this article.
§22A-4-26. Performance bonds.

Each operator who shall make application for a permit under section eleven of this article shall, at the time such permit is requested, furnish bond, on a form to be designed and furnished by the director, payable to the state of West Virginia and conditioned that the operator shall faithfully perform all of the requirements of this article. The amount of the bond shall be not less than two thousand dollars for each acre or fraction thereof of the land to be disturbed:
Provided, That the director shall determine the amount per acre of the bond that shall be required before a permit is issued, such amount to be based upon the estimated reclamation costs per acre, not to exceed a maximum of five thousand dollars per acre or fraction thereof. The bond shall cover (1) the entire permit area, or (2) that increment of land within the permit area upon which the operator will initiate and conduct surface mining and reclamation operations within the initial term ofthe permit. If the operator chooses to use incremental bonding, as succeeding increments of the noncoal mineral surface-mining and reclamation operations are to be initiated and conducted within the permit area, the operator shall file with the director additional bond or bonds to cover such increments in accordance with this section: Provided, that once the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, he shall continue bonding in that manner for the term of the permit: Provided however, That the minimum amount of bond furnished shall be ten thousand dollars. Such bond shall be executed by the operator and a corporate surety licensed to do business in the state of West Virginia: Provided further, That in lieu of corporate surety, the operator may elect to deposit with the director cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land banks, or of the home owners' loan corporation; full faith and credit general obligation bonds of the state of West Virginia, or other states, and of any county, district or municipality of the state of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the director. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. The director shall, upon receipt of any such deposit of cash, securities or certificates, immediately place the same with the treasurer of the state of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trustfor the purpose for which such deposit is made. The operator making the deposit shall be entitled from time to time to receive from the state treasurer, upon the written order of the director, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.
It shall be unlawful for the owner or owners of surface rights or the owner or owners of mineral rights to interfere with the operator in the discharge of his obligation to the state for the reclamation of lands disturbed by him.
The director shall not release that portion of any bond filed by any operator which is designated to assure faithful performance of, and compliance with, the backfilling and regrading requirements of the reclamation plan until such backfilling and regrading is done so that revegetation standards as required by this article and rules and regulations promulgated hereunder are met.
The director shall not release that portion of any bond filed by any operator which is designated to assure faithful performance of, and compliance with, the water discharge limits and highwall reclamation standards required by this article and rules and regulations promulgated hereunder, whenever applicable, are met.
§22A-4-27. Exceptions for highway construction projects from reclamation requirements; noncoal surface-mining extraction by a landowner.

Any provision of this article to the contrary notwithstanding, a person or operator shall not be subject to any duty or requirement with respect to reclamation requirements when engaged in the removal of borrow and fill material for use in state or local government highway construction projects:
Provided, That the provisions of the construction contract require the furnishing of a suitable bond which provides for reclamation wherever practicable of the area affected by such recovery activity.
A landowner who extracts minerals from his own land for his own noncommercial use is not subject to this article.
§22A-4-28. Applicability of laws safeguarding life and property; supervision of operations.

All provisions of the mining laws of this state intended to safeguard life and property shall extend to all noncoal mineral surface-mining operations insofar as such laws are applicable thereto. The director of the office of miners health safety and training shall promulgate reasonable rules and regulations, in accordance with the provisions of section nine of this article, to protect the safety of those employed in and around noncoal mineral surface mines. The enforcement of all laws, and rules and regulations relating to the safety of those employed in and around surface mines is hereby vested in the office of miners health, safety and training and shall be enforced according to the provisions of chapter twenty-two-a of this code and applicable rules and regulations promulgated thereunder.
§22A-4-29. Monthly report by operator.

The operator of every surface mine shall, on or before the end of each calendar month, file with the director of the office of miners health, safety and training, a report covering the preceding calendar month on forms furnished by the director. Such reports shall state the number of accidents which have occurred, the number of persons employed, the days worked and the actual tonnage mined.
§22A-4-30. Noncoal mineral special-reclamation fund.

There is hereby created in the state treasury the noncoal mineral special reclamation fund. The fund shall be a dedicated, special revolving fund to be administered by the director with the advice and approval of the noncoal mineral surface-mining advisory council, for the reclamation and rehabilitation of lands which have been disturbed by noncoal mineral surface-mining operations and abandoned where no bond has been posted, or where the amount of the bond posted and forfeited is less than the actual cost of reclamation. The director shall prepare a prioritized listing of all known orphaned lands that have resulted from noncoal mineral surface- mining and after approval or modification of such list by the noncoal mineral surface-mining advisory council, shall proceed with reclamation activities in order of priority. Standards for prioritization, if deemed necessary, shall be included in the rules and regulations promulgated as authorized under this article. The director may also expend such amounts as are reasonably necessary to implement and administer the provisions of this article.
Whenever the noncoal mineral special reclamation fundsinks below one million dollars at the end of any given quarterly period, every person then conducting noncoal mineral surface-mining operations shall contribute into said fund a sum equal to five cents per ton of noncoal mineral mined thereafter. This fee shall be collected by the state tax commissioner and shall be deposited by him with the treasurer of the state of West Virginia to the credit of the noncoal special reclamation fund. At the beginning of each quarter, the director shall advise the state tax commissioner and the governor of the assets, excluding payments, expenditures and liabilities, in the fund. If such assets are below one million dollars, a notice of assessment shall be given to all operators by the state tax commissioner and the five cents per ton assessment shall be collected until the end of the quarter in which the fund's assets, excluding payments, expenditures, and liabilities are in excess of two million dollars.
This fund shall be be appropriated to the division of environmental protection to be used for the purposes of this article and for no other purpose.
§22A-4-31. Adjudications, determinations and findings to be by written order; contents; notice.

Every adjudication, determination or finding by the director affecting the rights, duties or privileges of any person subject to this article shall be made by written order and shall contain a written finding by the director of the facts upon which the adjudication, determination or finding is based. Notice of the making of such order shall be given to the person whose rights, duties or privileges are affectedthereby by mailing a true copy thereof to such person by certified mail.
§22A-4-32. Appeals to reclamation board of review hearing; record; findings and orders of board.

Any person claiming to be aggrieved or adversely affected by any rule and regulation or order of the director or his failure to enter an order may appeal to the reclamation board of review for an order vacating or modifying such rule and regulation or order, or for such order as the director should have entered.
Such appeal shall be in writing and shall set forth the rule and regulation, order or omission complained of and the grounds upon which the appeal is based. Where the appellant claims to be aggrieved or adversely affected by an order, such appeal shall be filed with the board within thirty days after the date upon which the appellant received notice by certified mail of the making of the order complained of. Where the appellant claims to be aggrieved or adversely affected by any rule and regulation or omission, such appeal may be filed with the board at any time. A notice of the filing of such appeal shall be filed with the commissioner within three days after the appeal is filed with the board.
Within seven days after receipt of such notice of appeal, the commissioner shall prepare and certify to the board a complete record of the proceedings before him, including all documents and correspondence relating to the matter. The expense of preparing the record shall be taxed as a part of the costs of the appeal.
Upon the filing of such appeal, the board shall fix the time and place at which the hearing on the appeal will be held, which hearing shall be held within twenty days after the notice of appeal is filed, and shall give the appellant and the director at least ten days' written notice thereof by certified mail. The board may postpone or continue any hearing upon its own motion or upon application of the appellant or of the commissioner.
The filing of an appeal provided for in this section shall not stay execution of the order appealed from.
The board shall hear the appeal de novo, and any party to the appeal may submit evidence.
For the purpose of conducting a hearing on an appeal, the board may require the attendance of witnesses and the production of books, records and papers, and it may, and at the request of any party it shall, issue subpoenas for witnesses or subpoenas duces tecum to compel the production of any books, records or papers, directed to the sheriff of the county where such witnesses, books, records or papers are found, which subpoenas and subpoenas duces tecum shall be served and returned in the same manner as subpoenas and subpoenas duces tecum in civil litigation are served and returned. The fees and allowances for mileage of sheriffs and witnesses shall be the same as those permitted in civil litigation in trial courts. Such fees and mileage expenses incurred at the request of the appellant shall be paid in advance by the appellant, and the remainder of such fees and expenses shall be paid out of funds appropriated for the expenses of the division.
In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, the circuit court of the county in which such disobedience, neglect or refusal occurs, or any judge thereof in vacation, on application of the board or any member thereof, shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from such court or a refusal to testify therein. Witnesses at such hearing shall testify under oath, and any member of the board may administer oaths or affirmations to persons who so testify.
At the request of any party to the appeal, a stenographic record of the testimony and other evidence submitted shall be taken by an official court shorthand reporter at the expense of the party making the request therefor. Such record shall include all of the testimony and other evidence and the rulings on the admissibility of evidence, but any party may at the time object to the admission of any evidence and except to the rulings of the board thereon, and if the board refuses to admit evidence the party offering same may make a proffer thereof, and such proffer shall be made a part of the record of such hearing.
If upon completion of the hearing the board finds that the rule and regulation or order appealed from was lawful and reasonable, it shall make a written order affirming the rule and regulation or order appealed from; if the board finds that such rule and regulation or order was unreasonable or unlawful,it shall make a written order vacating or modifying the rule and regulation or order appealed from; and if the board finds that the commissioner has unreasonably or unlawfully failed to enter an order, it shall enter such order as it finds the director would have made. Every order made by the board shall contain a written finding by the board of facts upon which the order is based. Notice of the making of such order shall be given forthwith to each party to the appeal by mailing a certified copy thereof to each such party by certified mail.
The order of the board shall be final unless vacated upon judicial review thereof.
§22A-4-33. Appeal from order of board.

Any party adversely affected by an order of the reclamation board of review, other than an order affirming, modifying or vacating a rule and regulation of the director, may obtain judicial review thereof by appealing therefrom either to the circuit court of Kanawha County or the circuit court of the county in which the surface-mining operation to which the order relates is or was conducted or is or was proposed to be conducted. Any party adversely affected by an order of the reclamation board of review, which order affirms, modifies or vacates a rule and regulation of the director may obtain judicial review thereof by appealing therefrom either to the circuit court of Kanawha County or the circuit court of the county in which the surface-mining operation to which the rule and regulation in question relates is or was conducted or is or was proposed to be conducted. Any party desiring to so appeal shall file with the board a notice of appeal designating theorder appealed from and stating whether the appeal is taken on questions of law, questions of fact or questions of law and fact. A copy of such notice shall also be filed by the appellant with the court and shall be mailed or otherwise delivered to the appellee. Such notice and copies thereof shall be filed and mailed or otherwise delivered within thirty days after the date upon which the appellant received notice from the board by certified mail of the making of the order appealed from. No appeal bond shall be required to make an appeal on questions of law, questions of fact or questions of law and fact effective.
The filing of a notice of appeal shall not automatically operate as a suspension of the order of the board. If it appears to the court that an unjust hardship to the appellant will result from the execution of the board's order pending determination of the appeal, the court may grant a suspension of such order and fix its terms.
Within fifteen days after receipt of the notice of appeal, the board shall prepare and file in the court the complete record of the proceedings out of which the appeal arises, including a transcript of the testimony and other evidence which was submitted before the board. The expense of preparing and transcribing such record shall be taxed as a part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Upon demand by a party, the board shall furnish, at the cost of the party requesting the same, a copy of such record. In the event such complete record is not filed in the court within the time provided for in thissection, either party may apply to the court to have the case docketed, and the court shall order such record filed.
Appeals taken on questions of law, fact or both, shall be heard upon assignment of error filed in the case or set out in the briefs of the appellant. Errors not argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or argued.
The hearing before the court shall be upon the record made before the reclamation board of review. The court may set aside any order of the reclamation board of review which is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or which is determined by the court to involve a clearly unwarranted exercise of discretion. The judgment of the court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of West Virginia, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided for civil appeals generally.
§22A-4-34. Permit conversion; exemptions.

(a) On or before the first day of July, one thousand nine hundred ninety-three, all noncoal mineral surface-mining operators shall file an application for a permit or conversion of a valid existing permit relating to those lands to be mined after the first day of January, one thousand nine hundred ninety-four. Such permit application or conversion shall contain all of the information required by this article including a mining and reclamation plan, blasting plan, ifapplicable, and bond.
(b) On and after the first day of January, one thousand nine hundred ninety-four, no person may engage in or carry out, on lands within this State, any noncoal mineral surface-mining operations unless such person has first obtained a permit or a conversion of an existing permit from the director, except as exempted in section twenty-seven of this article. All noncoal mineral surface-mining and reclamation operations shall be conducted in such a manner so as to comply with the provisions of this article and the rules and regulations promulgated pursuant thereto and all permit conditions.
(c) Noncoal mineral surface-mining operations permitted as of the effective date of this article shall be exempt from conducting hydrologic studies required under sections eleven and sixteen of this article and from conducting preblast surveys required under section twenty of this article:
Provided, That the operation has had no previous history of causing adverse impacts on water quality or causing significant damage to any adjacent structure or property as a result of blasting operations. The above mentioned operations shall also be exempt from the requirements for reclamation of highwalls required under section twenty-three and distance limitations established under section twenty-one of this article.
Any lands permitted after the effective date of this article shall not be exempt from any provision of this article. Renewed permits granted under section eleven of this article shall continue to operate according to the approved mining and reclamation plan of the original approved permit.
§22A-4-35. Certification of noncoal mineral surface miners.

Every noncoal mineral surface miner shall be certified, in accordance with the provisions of articles nine and ten, chapter twenty-two of this code.
§22A-4-36. Certification of noncoal mineral surface-mine foremen.

(a) In every noncoal mineral surface mine where five or more persons are employed in a period of twenty-four hours, the operator shall employ at least one person certified in accordance with the provisions of article ten, chapter twenty- two of this code as a mine foreman. Each applicant for certification as a mine foreman shall, at the time he or she is issued a certificate of competency: (1) Be a resident or employed in a mine in this state; (2) have had at least three years' experience in surface mining, which shall include at least eighteen months' experience on or at a working section of a surface mine or be a graduate of the school of mines at an accredited mining engineering school and have had at least two years' practical experience in a surface mine, which shall include at least eighteen months' experience on or at a working section of a surface mine; and (3) have demonstrated knowledge of mine safety, first aid, safety appliances, emergency procedures relative to all equipment, state and federal mining laws and regulations and other subjects by completing such training, education and examinations as may be required under said article ten of this chapter.
(b) For noncoal mineral surface mines in which the operations are so extensive that the duties devolving upon themine foreman cannot be discharged by one person, one or more assistant mine foremen shall be designated. Such persons shall act under the instruction of the mine foreman who shall be responsible for their conduct in the discharge of their duties. Each assistant so designated shall be certified under the provisions of article ten, chapter twenty-two of this code. Each applicant for certification as assistant mine foreman shall, at the time he or she is issued a certificate of competency, possess all of the qualifications required of a mine foreman:
Provided, That he or she shall, at the time he or she is certified, be required to have at least two years' experience in surface mining, which shall include eighteen months on or at a working section of a surface mine or be a graduate of an accredited mining engineering school and have had twelve months' practical experience in a surface mine, all of which shall have been on or at a working section.
(c) The director shall promulgate such rules and regulations as may be necessary to carry out the provisions of this section.



NOTE: The purpose of this bill is to revise the provisions of the Code relating to regulation of noncoal mineral extraction operations.

This article is new; therefore, strike-throughs and underscoring have been omitted.