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.