Senate Bill No. 16
(By Senator Blatnik)
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[Introduced February 10, 1993; referred to
the Committee on Energy, Industry and Mining.]
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A BILL to amend and reenact section seventeen, article three,
chapter twenty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
surface coal mining and reclamation; appeal procedures
before the reclamation board of review; and eliminating
stays of certain orders of the commissioner pending a
decision of the board.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article three, chapter twenty-two-a
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted to read as follows:
ARTICLE 3. WEST VIRGINIA SURFACE COAL MINING AND RECLAMATION
ACT.
§22A-3-17. Notice of violation; procedure and actions;
enforcement; permit revocation and bond forfeiture; civil
and criminal penalties; appeals to the board; prosecution;
injunctive relief.
(a) If any of the requirements of this article, rules and
regulations promulgated pursuant thereto or permit conditions
have not been complied with, the commissioner shall cause a
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 to exceed sixty days, the commissioner
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 seven hundred fifty dollars per day per violation shall
be assessed. A cessation order shall remain in effect until the
commissioner determines that the violation has been abated or
until modified, vacated or terminated by the commissioner or by
a court. In any cessation order issued under this subsection,
the commissioner shall determine the steps necessary to abate theviolation in the most expeditious manner possible and shall
include the necessary measures in the order.
(b) If the commissioner determines that a pattern of
violations of any requirement of this article or any permit
condition 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 commissioner 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 commissioner shall inform all
interested parties of the time and place of the hearing. Any
hearing under this section shall be recorded and subject to the
provisions of chapter twenty-nine-a of this code. Within sixty
days following the public hearing, the commissioner shall issue
and furnish to the permittee and all other parties to the hearing
a written decision, and the reasons therefor, 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 commissioner shall immediately suspend or revoke the
operator's permit. If the permit is revoked, the commissioner
shall initiate procedures in accordance with rules promulgated by
the commissioner to forfeit the operator's bond, or other
security posted pursuant to section eleven of this article, and
give notice to the attorney general, who shall collect the
forfeiture without delay: Provided, That the entire proceeds ofsuch forfeiture shall be deposited with the treasurer of the
state of West Virginia to the credit of the special reclamation
fund. All forfeitures collected prior to the effective date of
this article shall be deposited in the special reclamation fund
and shall be expended back upon the areas for which the bond was
posted: Provided, however, That any excess therefrom shall
remain in the special reclamation fund.
(c) Any person engaged in 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 five thousand dollars. Each day of continuing
violation may be deemed a separate violation for purposes of
penalty assessments. In determining the amount of the penalty,
consideration shall be given to the operator's history of
previous violations at the particular 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.
(d) (1) Upon the issuance of a 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 ofreceipt 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 officer's decision to
request a formal hearing before the board.
(A) When an informal conference is held, the assessment
officer shall have authority to affirm, modify or vacate the
notice, order or proposed penalty assessment.
(B) When a formal hearing is requested, the amount of the
proposed penalty assessment shall be forwarded to the
commissioner 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.
(2) Civil penalties owed under this section may be recovered
by the commissioner in the circuit court of Kanawha County.
Civil penalties collected under this article shall be deposited
with the treasurer of the state of West Virginia to the credit of
the special reclamation fund established in section eleven ofthis 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
commissioner 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,
whichever is greater. Failure to forward the money to the
commissioner within thirty days shall result in a waiver of all
legal rights to contest the violation or the amount of the
penalty.
(e) Any person having an interest which is or may be
adversely affected by any order of the commissioner or the board
may file an appeal only in accordance with the provisions of
article four, chapter twenty-two of this code, within thirty days
after receipt of the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section
involving a decision of the commissioner which grants, renews,
revises, or transfers a permit or releases a permit bond or
involves the sale or assignment of permit rights shall not stay
execution of the order appealed from giving rise to the appeal or
request. The filing of an appeal or a request for an informal
conference or a request for a formal hearing involving any other
matter under the provisions of this article shall not stay the
execution of the order of the commissioner. Pending completion
of the investigation and conference or hearing required by thissection, the applicant may file with the commissioner a written
request that the commissioner grant temporary relief from any
notice or order issued under section sixteen or seventeen of this
article, together with a detailed statement giving reasons for
granting such relief. The commissioner shall issue an order or
decision granting or denying such relief expeditiously:
Provided, That where the applicant requests relief from an order
for cessation of surface-mining and reclamation operations, the
decision on the request shall be issued within five days of its
receipt. The commissioner 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
commissioner.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or
regulations promulgated pursuant thereto, or fails or refuses tocomply with any order issued under said article and regulations
or any order incorporated in a final decision issued by the
commissioner, 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.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, regulations promulgated
pursuant thereto, or any order incorporated in a final decision
issued by the commissioner, 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 subsections (c) and (g) of this section.
(i) 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.
(j) Whenever any person: (A) Violates or fails or refuses
to comply with any order or decision issued by the commissioner
under this article; or (B) interferes with, hinders or delays thecommissioner in carrying out the provisions of this article; or
(C) refuses to admit the commissioner to the mine; or (D) refuses
to permit inspection of the mine by the commissioner; or (E)
refuses to furnish any reasonable information or report requested
by the commissioner in furtherance of the provisions of this
article; or (F) refuses to permit access to, and copying of, such
records as the commissioner determines necessary in carrying out
the provisions of this article; or (G) violates any other
provisions of this article, the regulations promulgated pursuant
thereto, or the terms and conditions of any permit, the
commissioner, 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 and
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.
(k) Any person who shall, except as permitted by law,
willfully resist, prevent, impede or interfere with the
commissioner 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 more than
five thousand dollars or by imprisonment for not more than oneyear, or both.
NOTE: This bill provides that orders of the commissioner of
the department of energy shall be stayed, pending a hearing
before the board of appeals, if the order of the commissioner
involves the grant, renewal, revision or transfer of a permit or
if the order involves the release of a permit bond or the
assignment of permit rights.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.