H. B. 2784
(By Delegates Manuel and Doyle)
[Introduced March 27, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, four, five, six, seven,
eight, nine, ten, eleven, thirteen, fourteen, fifteen,
sixteen, seventeen, nineteen, twenty-two and twenty-three,
article four, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto five new
sections, designated sections twenty-four, twenty-five,
twenty-six, twenty-seven and twenty-eight, all relating to
noncoal mineral extraction generally and imposing additional
controls and requirements on noncoal mineral extraction
operations.
Be it enacted by the Legislature of West Virginia:
That sections two, four, five, six, seven, eight, nine, ten, eleven, thirteen, fourteen, fifteen, sixteen, seventeen,
nineteen, twenty-two and twenty-three, article four, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that said article be further amended by adding thereto five new
sections, designated sections twenty-four, twenty-five,
twenty-six, twenty-seven and twenty-eight, all to read as
follows:
ARTICLE 4. SURFACE MINING AND RECLAMATION OF MINERALS OTHER THAN
COAL.
§22-4-2. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner that
will cause the analyzed Ph level of the treated water to be 6.0 -
9.0 and analyzed content of iron of the treated water to be seven
milligrams per liter or less, or approved treatment which will
not lower the water quality standards established for the river,
stream or drainway into which such water is released so that the
treated water will not violate applicable effluent limitations,
or applicable water quality standards established for the river, stream or drainway into which such water is released.
(b) "Breakthrough" means the release of water which has been
trapped or impounded underground, or the release of air into any
underground cavity, pocket or area.
(c) "Director" means the director of the division of
environmental protection or such any other person to whom the
director has delegated authority or duties pursuant to section
six or eight, article one of this chapter.
(d) "Disturbed land" or "land disturbed" means (1) the area
from which overburden has been removed in surface-mining
operations, (2) the area covered by the spoil, and (3) any areas
used in surface-mining operations which by virtue of their use
are susceptible to excessive erosion including all lands
disturbed by the construction or improvement of haulageways,
roads or trails land area where vegetation, topsoil, mineral or
overburden has been removed or placed by surface-mining
operations, including all lands disturbed by the construction or
improvement of haulageways, roads or trails.
(e) "Minerals" means clay, flagstone, gravel, limestone,
manganese, sand, sandstone, shale, iron ore and any other metal
or metallurgical ore: Provided, That the term "minerals" does
not include coal.
(f) "Mulch" means any natural or plant residue, organic or
inorganic material, applied to the surface of the earth to retain
moisture and curtail or limit soil erosion.
(g) "Operation" means those activities conducted by an
operator which are subject to the jurisdiction of this article.
(g) (h) "Operator" means any individual, partnership, firm,
association, trust or corporation person who or which is granted
or should obtain a permit to engage in any activity covered by
this article.
(i) "Overburden" means consolidated or unconsolidated
material of any nature which overlies a mineral deposit,
excluding top soil.
(h) (j) "Permit area" means the area of land indicated on
the approved map submitted by the operator with the reclamation
plan as specified in section seven of this article showing the
exact location of end strip markers, permit markers and monument.
(k) "Permittee" means a person holding a permit issued under
this article.
(i) (l) "Person" means any individual, partnership, firm,
society association, trust, or corporation or other business
entity.
(m) "Reclamation" means the responsible rehabilitation for
useful purposes of land affected by surface mining and the protection of the natural resources of the surrounding area.
(n) "Significant revision" means a revision to a permit
which will impact the environment or the welfare and safety of
the public in a manner substantively and significantly different
from that reflected in the approved permit.
(o) "Spoil" means overburden and waste material removed
during surface-mining operations.
(j) (p) "Surface mine" means all areas surface mined or
being surface mined, as well as adjacent areas ancillary to the
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 and the surface impacts incident to
underground mining, or other property or other materials on the
surface, resulting from or incident to such activities.
(k) (q) "Surface mining," "surface mined" or
"surface-mining operation" means all activity for the recovery,
processing or storage of minerals, and all plants and equipment
used in processing said minerals and underground mining.
Provided, That the bonding and reclamation provisions of this
article do not apply to surface mining of limestone, sandstone
and sand: Provided, however, That the surface mining of limestone, sandstone and sand is subject to separate rules to be
promulgated by the director
(l) (r) "Surface of a regraded bench" means the top portion
or part of any regraded area.
(s) "Underground mining" means surface disturbance or the
surface effects associated with excavations penetrating mineral
deposits or strata and the equipment connected therewith which
contributes directly or indirectly to the mining, preparation or
handling of materials.
§22-4-4. Surface-mining reclamation supervisors and inspectors;
appointment and qualifications; salary.
The director shall determine the number of surface-mining
reclamation supervisors and inspectors needed to carry out the
purposes of this article and appoint them as such. All such
appointees shall be eligible civil service employees, but no
person is qualified for such the appointment until he or she has
served in a probationary status for a period of one year to the
satisfaction of the director.
Every surface-mining reclamation supervisor or inspector
shall be paid not less than sixteen twenty-five thousand dollars
per year.
§22-4-5. Duties of surface-mining reclamation inspectors.
The surface-mining reclamation inspectors shall make all
necessary surveys and inspections of surface-mining operations,
shall administer and enforce all surface-mining laws and rules,
and shall perform such other duties and services as may be
prescribed by the director. Such inspectors shall give
particular attention to all conditions of each permit to ensure
complete compliance therewith. The director shall cause
inspections to be made of each active surface-mining operation
in this state by a surface-mining reclamation inspector at least
once every fifteen thirty days or as often as necessary to ensure
compliance with this article. Said The inspector shall note and
describe violations of this article and immediately report such
the violations to the director in writing, furnishing at the same
time a copy of such the report to the operator concerned.
The director shall without advance notice and upon
presentation of appropriate credentials: (a) Have the right of
entry to, upon or through surface-mining operations or any
premises in which records required to be maintained under this
article are located; and (b) at reasonable times and without
delay, have access to and copy any records and inspect any
monitoring equipment or method of operation required under this
article. The commissioner may require the operator to provide
such other information relative to surface-mining operations as the director determined reasonable and necessary.
§22-4-6. Permit required; applications; issuance and renewals;
fees and use of proceeds.
(a) It is unlawful for any person to engage in surface mining
without having first obtained from the division of environmental
protection a permit therefor as provided in this section.
Application for a surface-mining permit shall be made in writing
on forms prescribed by the director, and shall be signed and
verified by the applicant. The application, in addition to such
any other information as may be reasonably required by the
director, shall contain the following information: (1) Name and
address of the permit applicant or the operator, if a person
different from the applicant; (2) name of the watershed and
location of all surface streams or tributaries into which surface
and pit drainage will be discharged; (1) (3) the common name and
geologic title, where applicable, of the mineral or minerals to
be extracted; (2) (4) maps and plans as provided in section seven
hereof; (3) (5) the names and addresses of owner or owners of the
surface of the land to be mined; (4) (6) the names and addresses
of owner or owners of the mineral to be mined; (5) (7) the source
of the operator's legal right to enter and conduct operations on
the land to be covered by the permit; (6) (8) a reasonable estimate of the number of acres of land that will be disturbed by
mining on the area to be covered by the permit; (7) the permanent
and temporary post-office addresses of the applicant and of the
owners of the surface and the mineral (9) a blasting plan; (10)
the quantity and quality of water in surface and groundwater
systems under seasonal flow conditions; (11) a determination of
the probable hydrologic consequences of the mining and
reclamation operations, both on and off the mine site, with
respect to the hydrologic regime, quantity and quality of water
in surface and groundwater systems, including the dissolved and
suspended solids under seasonal flow conditions and the
collection of sufficient data for the mine site and surrounding
areas so that an assessment can be made by the director of the
probable cumulative impacts of all anticipated mining in the area
upon the hydrology of the area, and particularly upon water
availability; (8) (12) whether any surface-mining permits are now
held and the numbers thereof; (9) (13) the names and post-office
addresses of every officer, partner, director (or person
performing a similar function), of the applicant, together with
all persons, if any, owning of record or beneficially (alone or
with associates), if known, ten percent or more of any class of
stock of the applicant: Provided, That if such list be so large as to cause undue inconvenience, the director may waive the
requirements that such the list be made a part of such
application, except the names and current addresses of every
officer, partner, director and applicant must accompany such the
application; (10) (14) if known, whether applicant, any
subsidiary or affiliate or any person controlled by or under
common control with applicant, or any person required to be
identified by item (9) (13) above, has ever had a surface-mining
permit issued under the laws of this state revoked or has ever
had a surface-mining bond, or security deposited in lieu of bond,
forfeited; and (11) (15) 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 registered or certified mail of such the application
and such the owners shall be given ten thirty days within which
to file written objections thereto, if any, with the director.
There shall be attached to the application a true copy of an
original policy of insurance certificate issued by an insurance
company authorized to do business in this state certifying that
a liability insurance policy is in effect covering all surface-
mining operations of the applicant in this state and affording
personal injury protection in an amount not less than one three
hundred thousand dollars and property damage including blasting damage, protection in an amount of not less than three five
hundred thousand dollars. Proof of continuing insurance shall be
required on an annual basis; and (16) other information that may
be required by rules or by the commissioner that are reasonably
necessary to effectuate the purposes of this article.
The director shall upon receipt of the application for a
permit 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 the
director's statement that written protests to such the
application will be received by him or her until a specified
date, which date is at least thirty days after the first
publication of the notice. The advertisement shall indicate that
a copy of the complete application is available for public
inspection at the courthouse of the county or counties in which
the proposed permit area is located.
The publication area of the notices required by this section
is the county or counties in which the proposed permit area is
located. The cost of all publications required by this section
shall be borne by the applicant.
(b) If written objections are filed and an informal conference requested, the commissioner shall then hold a
conference in the locality of the proposed surface-mining
operation within four weeks after the close of the public comment
period. Those requesting the conference shall be notified and
the date, time and location of the informal conference shall also
be advertised by the commissioner in a newspaper of general
circulation in the locality at least two weeks prior to the
scheduled conference date. The director may arrange with the
applicant, upon request by any party to the conference
proceeding, access to the proposed mining area for the purpose of
gathering information relevant to the proceeding. An electronic
or stenographic record shall be made of the conference proceeding
unless waived by all parties. The record shall be maintained and
shall be accessible to the parties at their respective expense
until final release of the applicant's performance bond or other
security posted in lieu thereof. The director's authorized agent
will preside over the conference. In the event all parties
requesting the informal conference stipulate agreement prior to
the conference and withdraw their request, a conference need not
be held.
(c) Upon the filing of an application in proper form,
accompanied by the fees and bond required by this article and
said true copy of the policy of insurance a certificate of insurance, and after consideration of the merits of the
application and written protests, if any, the director may issue
the permit applied for if the applicant has complied with all of
the provisions of this article. If the director finds that the
applicant is or has been affiliated with or managed or controlled
by, or is or has been under the common control of, other than as
an employee, a person who or which has had a surface-mining
permit revoked or bond or other security forfeited for failure to
reclaim lands as required by the laws of this state, he or she
shall not issue a permit to the applicant: Provided, That no
surface-mining permit shall be refused because of any past
revocation of a permit and forfeiture of a bond or other security
if such revocation and forfeiture occurred before the first day
of July, one thousand nine hundred seventy-one, and if, after
such revocation and forfeiture, the operator whose permit has
been revoked and bond forfeited has paid into the surface-mining
reclamation fund the full amount of the bond so forfeited, and
any additional sum of money determined by the director to be
adequate to reclaim the land covered by such forfeited bond:
Provided, however, That in no event shall such additional sum be
less than sixty dollars per acre subject to the discretion of the
director and based upon a petition for reinstatement, permits may be issued to any applicant if, after the revocation or
forfeiture, the operator whose permit has been revoked or bond
forfeited shall have paid into the special reclamation fund an
additional sum of money determined by the director to be adequate
to reclaim the disturbed area, and the director is satisfied that
the petitioner will comply with this article.
The permit is valid for one year from its date of issue.
Upon verified application, containing such information as the
director may reasonably require, accompanied by such fees and
bond as are required by this article, and a true copy of the
policy of insurance as aforesaid, the director shall from year to
year renew the permit, if the operation is in compliance with the
provisions of this article.
The registration fee for all permits for surface mining is
five hundred dollars. The annual renewal fee for permits for
surface mining is one hundred dollars payable on the anniversary
date of said the permit upon renewal.
The permit of any operator who fails to pay any fees provided
for in this article shall be revoked.
(d)(1) During the term of the permit, the permittee may
submit to the director an application for a revision of the
permit, together with a revised reclamation plan.
(2) An application for a significant revision of a permit shall be subject to all requirements of this article and rules
promulgated pursuant thereto.
(3) Any extension to an area already covered by the permit,
except incidental boundary revisions, shall be made by
application for another permit.
(e) The director may require reasonable revision of
modification of a permit following review: Provided, That the
revision or modification shall be based upon written findings and
shall be preceded by notice to the permittee and an opportunity
for a hearing.
(f) All registration and renewal fees and interest accrued
from the fees for surface mining shall be collected by the
director and shall be deposited with the treasurer of the state
of West Virginia to the credit of the operating permit fees fund
and shall be used, upon requisition of the director, for the
administration of this article.
§22-4-7. Preplans.
Under the provisions of this article, and rules adopted by
the director, the operator shall prepare a complete reclamation
and mining plan for the area of land to be disturbed. Said
reclamation and mining plan shall include a proposed method of
operation, prepared by a registered professional engineer or a person approved by the director, for grading, backfilling, soil
preparation, mining and planting and such any other proposals as
may be necessary to develop the complete reclamation and mining
plan contemplated by this article. In developing this complete
reclamation and mining plan all reasonable measures shall be
taken to eliminate damages to members of the public, their real
and personal property, public roads, streams and all other public
property from soil erosion, rolling stones and overburden, water
pollution and hazards dangerous to life and property. The plan
shall be submitted to the director and the director shall notify
the applicant by certified mail within thirty days after receipt
of the plan and complete application if it is or is not
acceptable. If the plan is not acceptable, the director shall
set forth the reasons why the plan is not acceptable, and he or
she may propose modifications, delete areas or reject the entire
plan. Should the applicant disagree with the decision of the
director, the applicant may, by written notice, request a hearing
before the director. The director shall hold such the hearing
within thirty days after receipt of this notice. When a hearing
is held by the director, he or she shall notify the applicant of
his or her 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 to the surface mine board.
The application for a permit shall be accompanied by copies
of an enlarged United States geological survey topographic map
meeting the requirements of the subdivisions below. Aerial
photographs of the area are acceptable if the plan for
reclamation can be shown to the satisfaction of the director.
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 deep-mining operations,
probable limits of adjacent inactive or mined-out deep-mined
areas and the boundaries of surface properties and names of
surface and mineral owners of the surface 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
other bodies of public water, roads, buildings, cemeteries,
active, abandoned or plugged oil and gas wells, any known
significant geologic, geographic or karst 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
of land to be disturbed, the crop line of the seam and strike and
dip of the mineral to be mined, if any, 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 of land
to be disturbed. 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; Upon receipt of such drainage plan, the director
may furnish the office of water resources of the division a copy
of all information required by this subdivision, as well as the
names and locations of all streams, creeks or other bodies of
public water within five hundred feet of the area to be disturbed
(i) Show the presence of any acid-producing materials which
when present in the overburden, may cause spoil with a pH factor
below 3.5, preventing effective revegetation. The presence of
such these 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 of the director.
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 surface-mining laws of this state." The
certification shall be signed and notarized. The director may
reject any map as incomplete if its accuracy is not so attested.
For those surface-mining operations which remove or disturb
strata that serve as aquifers which significantly ensure the
hydrologic balance of water use either on or off the mining site,
the commissioner shall require that: (1) Monitoring sites be
established to record the quantity and quality of surface
drainage above and below the mine site as well as in the
potential zone of influence; (2) monitoring sites be established
to record level, amount and samples of groundwater and aquifers
potentially affected by the surface mining and also below the
lowermost mineral seam to be mined; (3) records or well logs and borehole data be maintained; and (4) monitoring sites be
established to record precipitation. 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.
In addition to the information and maps required above, each
application for a permit shall be accompanied by a detailed
reclamation plan as required by this article.
A monument as prescribed by the director 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 after service of a copy of said order upon said the
operator by certified United States mail, furnish to the director
four copies of a progress map prepared by or under the
supervision of a registered professional civil engineer or
registered professional mining engineer, or by a registered land
surveyor, showing the area disturbed by operations to the date of
such the map. Such The 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, as required by the director. Such The 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 a reasonable degree of
accuracy as may be prescribed 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. Failure to submit maps or aerial photographs or
notices at specified times shall cause the permit in question to
be suspended.
§22-4-8. Installation of drainage system.
Prior to the beginning of surface-mining operations, the
drainage system and haulageway shall be certified by a person
approved by the commissioner to be constructed in accordance with
approved design criteria. All sediment control structures shall
be maintained and shall be cleaned out when the sediment
accumulation reaches sixty percent of the design capacity.
§22-4-9. Alternative plans; time.
An operator may propose alternative plans not calling for
backfilling where a water impoundment is desired, if such the
restoration will be consistent with the purpose of this article. Such The plans shall be submitted to the director, and if such
the plans are approved by the director and complied with within
such the time limits as may be determined by him or her as being
reasonable for carrying out such the plans, the backfilling
requirements of this article may be modified.
By rule of the director, time limits shall be established
requiring backfilling, grading and planting to be kept current.
All backfilling and grading shall be completed before equipment
necessary for such the backfilling and grading is moved from the
operation.
If the operator or other person desires to conduct deep
underground mining upon the premises or use a deep
underground-mine opening for haulageways or other lawful
purposes, the operator may designate locations to be used for
such purposes at which places it will not be necessary to
backfill as herein provided for until such the deep 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 The locations shall be described and designated on the map
required by the provisions of section seven 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 two hundred
fifty five hundred dollars per acre, but not less than a total
amount of five ten thousand dollars being retained by the
treasurer until such the time as the planting and revegetation is
done according to law and is approved by the director, at which
time the director shall release the remainder of the bond.
All fill and cut slopes shall be seeded during the first
planting or seeding season after the construction of a haulageway
to the area. Upon abandonment of any haulageway, the haulageway
shall be seeded and every effort made to prevent its erosion by
means of culverts, waterbars or other devices required by the
director. In proper season, all fill and cut slopes of the
operation and haulageways shall be seeded and planted in a manner
as prescribed by the director, as soil tests indicate soil
suitability and in accordance with accepted agricultural and
reforestation practices.
In any such area where surface mining is being conducted,
mulch is required on all disturbed areas. where the remaining
slope exceeds twenty degrees from horizontal as shown on the preplan map filed with the director as required by the provisions
of section seven of this article
After the operation has been backfilled, graded and approved
by the director, the operator shall prepare or cause to be
prepared a final planting plan for the planting of trees, shrubs,
vines, grasses or legumes upon the area of the land affected in
order to provide a suitable vegetative cover. The seed or plant
mixtures, quantities, method of planting, type and amount of
lime, fertilizer, mulch and any other measures necessary to
provide a suitable vegetative cover shall be defined by the rules
of the director.
The planting called for by the final planting plan shall be
carried out in a manner so as to establish a satisfactory cover
of trees, shrubs, grasses, legumes or vines upon the disturbed
area covered by the planting plan within a reasonable period of
time. Such The planting shall be done by the operator or such
the operator may contract in writing with the soil conservation
district for the district in which the operation covered by such
a permit is located or with a private contractor approved by the
director to have such the planting done by such a district or
private contractor. 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 promulgated thereunder or such the
operator or any other person has secured a permit to deep mine
such the area as required by article three of this chapter.
The purpose of this section is to require restoration of land
disturbed by surface mining to a desirable purpose and use. The
director may, in the exercise of his or her sound discretion when
not in conflict with such purpose, modify such the requirements
to bring about a more desirable land use, including, but not
limited to, industrial sites, sanitary landfills, recreational
areas, building sites: Provided, That the person or agency
making such the modifications will execute contracts, post bond
or otherwise ensure full compliance with the provisions of this
section in the event such the modified program is not carried to
completion within a reasonable length of time.
§22-4-10. Limitations; mandamus.
The Legislature finds 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 surface
mining is conducted in these certain areas such operations may
naturally cause stream pollution adversely impact surface-water
quality, groundwater 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 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 the areas shall not be mined by the surface-mining
process.
Therefore, authority is hereby vested in the director to
delete certain areas from all surface-mining operations.
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 the requirements of this
article or rules hereafter adopted will not be observed or that
there is not probable cause to believe that the proposed method
of operation, backfilling, grading or reclamation of the affected
area can be carried out consistent with the purpose of this
article.
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) acid-water pollution, the director may delete
such part of the land described in the application upon which
such overburden exists.
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 or she shall
delete such the areas from the permit application before it can
be approved.
The director shall may not give approval to surface mine any
area which is within one hundred feet of any public road, stream,
lake or other public property, and shall may not approve the
application for a permit where the surface-mining operation will
adversely affect a state, national or interstate park unless
adequate screening and other measures approved by the commission
are to be utilized and the permit application so provides:
Provided, That the one-hundred-foot restriction aforesaid does
not include ways used for ingress and egress to and from the
minerals as herein defined and the transportation of the removed minerals, nor does it apply to the dredging and removal of
minerals from the streams or watercourses of this state.
Whenever the director finds that ongoing surface-mining
operations are causing or are likely to cause any of the
conditions set forth in the first paragraph of this section, he
or she may order immediate cessation of such the operations and
he or she shall take such any other action or make such any
changes in the permit as he or she may deem determine necessary
to avoid said described conditions.
The failure of the director to discharge the mandatory duty
imposed by this section is subject to a writ of mandamus, in any
court of competent jurisdiction by any private citizen affected
thereby.
§22-4-11. Blasting restriction; formula; filing preplan;
penalties; notice.
Where blasting of overburden or mineral is necessary, the
blasting shall be done in accordance with established principles
for preventing injury to persons and damage to residences,
buildings and communities. The blasting is in compliance with
provisions of this article if the following measures are adhered
to:
(1) The weight in pounds of explosives to be detonated in any period less than an eight millisecond period without seismic
monitoring shall conform to the following scaled distance
formula: W = (D/50)(to the second power). Where W equals weight
in pounds of explosives detonated at any one instant time, then
D equals distance in feet from nearest point of blast to nearest
residence, building or structure, other than operation facilities
of the mine: Provided, That the scaled distance formulas need
not be used if a seismograph measurement at or between the blast
site and the nearest protected structure (residence, building or
structure) is recorded and maintained for every blast. The peak
particle velocity in inches per second in any one of the three
mutually perpendicular directions shall not exceed the following
values at any protected structure:
Seismograph Measurement Distance to the Nearest
Protected Structure
1.25 0 - 300 feet
1.00 301 - 5,000 feet
0.75 5,001 feet or greater
The maximum ground vibration standards do not apply to the
structures owned by the permittee and not leased to another
person and structures owned by the permittee and leased to
another person, if a written waiver by the lessee is submitted to the director before blasting.
(2) Airblast shall not exceed the maximum limits listed
below at the location of any dwelling, public buildings, school
or community or institutional building outside the permit area:
Lower frequency limit of measuring
system in Hz(+3dB)Maximum level in db
1Hz or lower-flat response*134 peak
2Hz or lower-flat response133 peak
6Hz or lower-flat response129 peak
c-weighted-slow response*105 peak dBC
* only when approved by the director.
In addition:
(1) A blasting logbook formatted in a manner prescribed by
the commissioner shall be kept current daily and made available
for inspection at the site.
(2) A plan of each operation's methods for compliance with
this section (blast delay design) for typical blasts which shall
be adhered to in all blasting at each operation, shall be
submitted to the director with the application for a permit.
(3) Access to the blast area shall be controlled against the
entrance of unauthorized personnel during blasting for a period
thereafter until an authorized person has reasonably determined that:
(A) No unusual circumstances exist such as imminent slides
or undetonated charges, etc.; and
(B) Access to and travel in or through the area can be
safely resumed.
(4) A plan of each operation's methods for compliance with
this section (blast delay design) for typical blasts which shall
be adhered to in all blasting at each operation, shall be
submitted to the division of environmental protection with the
application for a permit. It shall be accepted if it meets the
scaled distance formula established in subdivision (1) of this
section.
(5) Records of each blast shall be kept in a log to be
maintained for at least three years, which will show for each
blast the following information:
(A) Date and time of blast;
(B) Number of holes;
(C) Typical explosive weight per delay period;
(D) Total explosives in blast at any one time;
(E) Number of delays used;
(F) Weather conditions;
(G) Signature of operator employee in charge of the blast;
(H) Seismograph data;
(I) Date of seismograph calibration; and
(J) Any other information required by the director.
(6) The director shall propose rules for legislative
promulgation pursuant to article three, chapter twenty-nine-a of
this code which shall set forth requirements for blasting
procedures; preblast surveys; adherence to scaled distance
formulas or compliance with maximum vibration limits measured by
a seismograph; airblast limits; waivers; safety precautions;
warnings of impending blasting to the owners, residents or other
persons who may be present on property adjacent to the blasting
area; contents of the blast logbook; and the certification of
blasting personnel.
(6) (7) Where inspection by the division of environmental
protection establishes that the scaled distance formula or the
seismograph results or the approved preplan are not being adhered
to, the following penalties shall be imposed:
(A) For the first offense in any one permit year under this
section, the permit holder shall be assessed not less than five
hundred dollars nor more than one thousand dollars;
(B) For the second offense in any one permit year under this
section, the permit holder shall be assessed not less than one
thousand dollars nor more than five thousand dollars;
(C) For the third offense in any one permit year under this section or for the failure to pay any assessment hereinabove set
forth within a reasonable time established by the commissioner,
the permit shall be revoked.
All assessments as set forth in this section shall be
assessed by the director, collected by the director and deposited
with the treasurer of the state of West Virginia, to the credit
of the operating permit fees fund.
The director shall propose legislative rules pursuant to
article three, chapter twenty-nine-a of this code which shall
provide for a warning of impending blasting to the owners,
residents or other persons who may be present on property
adjacent to the blasting area.
§22-4-13. Obligations of the operator.
In addition to the method of operation, grading, backfilling
and reclamation requirements of this article and rules adopted
pursuant thereto, the operator is required to perform the
following:
(1) Cover the face of the coal and the disturbed area with
material suitable to support vegetative cover and of such
thickness as may be prescribed by the director, or with a
permanent water impoundment.
(2) (1) Bury under adequate fill, all materials determined by the director to be acid-producing materials, toxic material or
materials constituting a fire hazard.
(3) (2) Seal off any breakthrough of acid water caused by the
operator: Provided, That any breakthrough caused by the operator
during the course of the operator's operations shall be sealed
immediately and reported immediately to the director. The type
and design of seals shall be approved by the director prior to
installation. Seals shall be designed and certified by an
approved person. If the breakthrough is one that allows air to
enter a mine, the seal shall either prevent any air from entering
the mine by way of the breakthrough, or prevent any air from
entering the breakthrough while allowing the water to flow from
the breakthrough. If the breakthrough is one that allows acid
water to escape, the seal shall prevent the acid water from
flowing. Seals shall be constructed of stone, brick, block,
earth or similar impervious materials which are acid resistant.
Any cement or concrete employed in the construction of these
seals shall also be of an acid resistant, impervious type.
(4) (3) Impound, drain or treat all runoff water so as to
reduce soil erosion, damage to agricultural lands and pollution
of streams and other waters.
In the case of storm water accumulations or any breakthrough of water, adequate treatment shall be undertaken by the operator
so as to prevent pollution occurring from the release of such the
water into the natural drainway or stream. Treatment may include
check-dams, settling ponds and chemical or physical treatment.
In the case of a breakthrough of water, where it is possible, the
water released shall be impounded immediately. All water so
impounded shall receive adequate treatment by the operator before
it is released into the natural drainway or stream.
Storm water or water which escapes, including that which
escapes after construction of the seals, and is polluted as
defined in this code, or as defined in the rules promulgated
under this code All water discharged from the permit area is
subject to the requirements of article eleven of this chapter.
(5) (4) Remove or bury 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; and for which bond has
been posted nor shall any operator place any of the foregoing
listed materials in such a way that normal erosion or slides
brought about by natural physical causes will permit the same to go beyond or outside the area of land which is under permit. and
for which bond has been posted
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 or 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 during the first cut. No overburden material in excess of
the first cut shall be placed over the fill bench. With the
exception of haulageways and auger-mining operations, trees and
brush shall be removed from the upper one half of all fill
sections prior to excavation, and no trees or brush removed from
the cut section shall be placed therein or thereon.
No fill bench shall be produced on slopes of more than
sixty-five thirty-six percent, except in specified fill areas
designated in the permit application and except for the
construction of haulageways, and such the haulageways shall may
not exceed thirty-five feet in width, with very scattered
forty-five-foot passing areas permitted.
Lateral drainage ditches connecting to natural or constructed waterways shall be constructed to control water runoff and
prevent erosion whenever required by the director. There shall
be no depressions that will accumulate water except those the
director may specify and approve. The depth and width of natural
drainage ditches and any other diversion ditches may vary
depending on the length and degree of slope.
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 the
supply has been affected by contamination, diminution or
interruption proximately caused by the 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
surface-mining operation.
With the exception of limestone, sandstone and sand, complete
Backfilling is required not to exceed the approximate original
contour of the land to be completed as contemporaneously as
possible in accordance with the approved reclamation plan. Such
The backfilling shall eliminate highwalls and spoil peaks.
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 adopted by the
director.
The operator at a minimum shall backfill, grade and compact
where advisable, using all available overburden, spoil and waste
material in any manner so as 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-two, and not inundated by an approved permanent water
impoundment, shall be reduced to a slope not steeper than one- half horizontal to one vertical.
§22-4-14. Cessation of operation by inspector.
Notwithstanding any other provisions of this article, a
surface-mining reclamation inspector has authority to order the
immediate cessation of any operation where: (1) Any of the permit
condition, any requirements of this article or the rules
promulgated pursuant thereto or the orders of the director have
not been complied with; or (2) the public welfare or safety calls
for the immediate cessation of the operation. Such The cessation
of operation shall continue until corrective steps have been
started by the operator to the satisfaction of the surface-mining reclamation inspector or surface-mining reclamation supervisor.
Operators who believe they are aggrieved by the actions of the
surface-mining reclamation inspector may immediately appeal to
the director surface-mining reclamation supervisor, setting forth
reasons why their operations should not be halted. The director
surface-mining reclamation supervisor shall determine immediately
when and if an operation may continue.
§22-4-15. Completion of planting; inspection and evaluation.
When 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 any 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 the planting, as aforesaid.
§22-4-16. Performance bonds.
Each operator who makes application for a permit under
section six of this article shall, at the time such the permit is
requested, furnish bond, on a form to be prescribed 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 six hundred two thousand dollars for each acre or
fraction thereof of the land to be disturbed: Provided, That the
director has the discretion to determine the amount per acre of
the bond that is required before a permit is issued, such the
amount to be based upon the estimated reclamation costs per acre.
not to exceed a maximum of one thousand dollars per acre or
fraction thereof The minimum amount of bond furnished shall be
ten thousand dollars. Such The bond shall be executed by the
operator and a corporate surety licensed to do business in the
state of West Virginia: Provided, however, 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 homeowners' 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 the securities or certificates shall be
equal to or greater than the sum of the bond. The director
shall, upon receipt of any such the deposit of cash, securities
or certificates, immediately place the same with the treasurer of
the state of West Virginia whose duty it is to receive and hold
the same in the name of the state in trust for the purpose for
which such the deposit is made. The operator making the deposit
is 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 the treasurer 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 is 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 the operator's obligation to the
state for the reclamation of lands disturbed by the operator. If
the owner or owners of the surface rights or the owner or owners
of the mineral rights desire another operator or other operators
to conduct mining operations on lands disturbed by the operator
furnishing bond hereunder, it is the duty of said owner or owners
to require the other operator or operators to secure the
necessary mining permit and furnish suitable bond as herein provided. The director may then release an equivalent amount of
the bond of the operator originally furnishing bond on the
disturbed area.
No transfer, assignment or sale of the rights granted under
any permit issued pursuant to this article, shall be made without
the prior written approval of the commissioner. Applications for
transfer, assignment or sale of a permit shall be made on the
forms prescribed by the director and shall contain such
information as required by the rules.
The applicant shall at a minimum: (a) Affirmatively
demonstrate that a bond in the full amount of that required for
the permit be kept in full force and effect before, during and
after the transfer, assignment or sale; (b) provide proof that
the successor has the legal right to enter and conduct mining
activities on the permitted areas; (c) 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 the act, the rules and the terms and
conditions of the permit; and (d) provide proof of publication of
a legal advertisement giving notice of the transfer, assignment
or sale of the permit and providing an opportunity for public
comment.
The director shall may 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 all
acid-bearing or acid-producing spoil within the permit area has
received adequate treatment as specified in section nine of this
article.
§22-4-17. Exception as to highway construction projects for
reclamation requirements.
Any provision of this article to the contrary
notwithstanding, a person or operator is not subject to any duty
or requirement whatever with respect to reclamation requirements
when engaged in the removal of borrow and fill material for
grading in federal, and state highway or local government
construction projects: Provided, That the provisions of the
highway construction contract require the furnishing of a
suitable bond which provides for reclamation wherever practicable
of the area affected by such the recovery activity.
The provisions of this article do not apply to the extraction
of mineral by a landowner for his own noncommercial use from land
owned by him.
§22-4-19. Noncompliance.
If any of the requirements permit condition, or any requirement of this article or rules rule promulgated pursuant
thereto or the orders order of the director have has not been
complied with, within the time limits set by the director or by
this article the director shall cause a notice of noncompliance
to be served upon the operator, which notice shall may order the
operation or portion of the operation to cease, or where found
necessary, the director shall order the suspension of a permit.
A copy of such the notice or order shall be handed to the
operator in person or served by certified mail addressed to the
operator at the permanent address shown on the application for a
permit. The notice of noncompliance or order of suspension shall
specify in what respects the operator has failed to comply with
this article or the rules or orders of the director. If the
operator has not reached an agreement with the director or has
not complied with the requirements set forth in the notice of
noncompliance or order of suspension within the time limits set
therein, the permit may be revoked by order of the director and
the performance bond shall then be forfeited. If an agreement
satisfactory to the director has not been reached within thirty
days after suspension of any permit, any and all suspended
permits shall then be declared revoked and the performance bonds
with respect thereto forfeited.
When any bond is forfeited pursuant to the provisions of this article, the director shall give notice to the attorney general
who shall collect the forfeiture without delay.
§22-4-22. Offenses; penalties; prosecutions; treble damages;
injunctive relief.
(a) Any person who conducts any surface-mining operation, or
any part thereof, without a permit or without having furnished
the required bond, or who carries on such the operation or be a
party thereto on land not covered by a permit, or who falsely
represents any material fact in an application for a permit or
in an application for the renewal of a permit, or who willfully
violates any provision of this article or fails to comply with an
order of the director or resists, prevents, impedes or interferes
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 nor more than one thousand dollars or by
imprisonment not exceeding six months, or by both. Any person
who deliberately willfully violates any provision of this article
or conducts surface-mining operations without a permit is guilty
of a misdemeanor and, upon conviction thereof, shall be punished
by a fine of not less than one thousand nor more than ten
thousand dollars or by imprisonment not exceeding six months, or by both. Each day of violation is a separate offense. It is the
duty of the director to institute prosecutions for violations of
the provisions hereof. Any person convicted under the provisions
of this section shall, in addition to any fine imposed, pay to
the director for deposit in the surface-mining reclamation fund
an amount sufficient to reclaim the area with respect to which
such the conviction relates. The director shall institute any
suit or other legal action necessary for the effective
administration of the provisions of this article.
(b) Any person engaged in surface-mining operations who
violates any permit condition or who violates any other provision
of this article or rules 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
determined 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.
(c)(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 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 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 director 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
noncoal special reclamation fund established in subsection (a),
section sixteen 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, whichever is greater. Failure to forward the
money to the director within thirty days shall result in a waiver
of all legal rights to contest the violation or the amount of the
penalty.
(3) 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 sections twenty- three and twenty-four of this article, within thirty days after
receipt of the order.
(4) The filing of an appeal provided for in this section shall
not stay execution of the order appealed from. Pending
completing the investigation and 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 section twenty-one of 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 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 forty-eight hours of its receipt.
The director may grant the relief, under such conditions as he
may prescribe if:
(A) All parties to the proceedings have been notified and
given an opportunity to be heard on a request for temporary
relief;
(B) 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;
(C) The relief will not adversely affect the public health or
safety or cause significant imminent environmental harm to land, air or water resources; and
(D) The relief sought is not the issuance of a permit where a
permit has been denied, in whole or in part, by the director.
(b) (d) In addition to and notwithstanding any other penalties
provided by law, any operator who directly causes damage to the
property of others as a result of surface mining is liable to
them, in an amount not in excess of three times the provable
amount of such the damage, if and only if such the damage occurs
before or within one year after such operator has completed all
reclamation work with respect to the land on which such surface
mining was carried out and all bonds of such the operator with
respect to such the reclamation work are released. Such damages
are recoverable in an action at law in any court of competent
jurisdiction. The director shall require, in addition to any
other bonds and insurance required by other provisions of this
article, that any person engaged in the business of surface
mining shall file with the director a certificate of insurance,
or other security in an amount of not less than ten thousand
dollars, to cover possible damage to property for which a
recovery may be sought under the provisions of this subsection.
(c) (e) Upon application by the director, the attorney
general, or the prosecuting attorney of the county in which the
major portion of the permit area is located, any court of competent jurisdiction may by injunction compel compliance with
and enjoin violations of the provisions of this article. The
court or the judge thereof in vacation may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed.
An application for an injunction under the provisions of this
section may be filed and injunctive relief granted
notwithstanding that all of the administrative remedies provided
for in this article have not been pursued or invoked against the
person or persons against whom such relief is sought and
notwithstanding that the person or persons against whom such
relief is sought have not been prosecuted or convicted under the
provisions of this article.
The judgment of the circuit court upon any application filed
under the provisions of this article is final unless reversed,
vacated or modified on appeal to the supreme court of appeals.
Any such appeal shall be sought in the manner provided by law for
appeals from circuit courts in other civil cases, except that the
petition seeking such review must be filed with said supreme
court of appeals within thirty days from the date of entry of the
judgment of the circuit court.
§22-4-23. Permit modification.
(a) On or before the first day of December, one thousand nine
hundred ninety-seven, all surface-mining operators shall file an
application for a permit or modification of a valid existing
permit relating to those lands to be mined after the first day of
January, one thousand nine hundred ninety-eight. The permit
application or modification shall contain all of the information
required by this article including a mining and reclamation plan,
blasting plan and bond.
(b) After the first day of January, one thousand nine hundred
ninety-eight, no person may engage in or carry out, on lands
within this state, any surface-mining operations unless the
person has first obtained a permit or a modification of an
existing permit from the director. Mining and reclamation
operations shall be conducted in a manner so as to comply with
the provisions of this article and the rules promulgated pursuant
thereto and all permit conditions.
§22-4-24. Certification and training of blasters.
The director of the division of mines and minerals shall be
responsible for the training, examination and certification of
persons engaging in or directly responsible for blasting or use
of explosives in surface-mining operations.
§22-4-25. Severability.
If any provision of this article or the application thereof to
any person or circumstance is held invalid, the invalidity shall
not affect other provisions or applications of this article, and
to this end the provisions of this article are declared to be
severable: Provided, That in promulgating rules pursuant to the
provisions of this article, the director shall note relevant
administrative and judicial decisions from both state and federal
systems and action by the United States Congress.
§22-4-26. Consolidation of permitting, enforcement and
rule-making authority for surface-mining
operations; national pollutant discharge
elimination system; effective date of this
section.
(a) Notwithstanding any provisions of this chapter to the
contrary, all powers, duties and responsibilities of the chief of
the division of water resources under article five-a, chapter
twenty of this code with respect to all noncoal surface-mining
operations subject to said article five-a, chapter twenty of this
code are hereby transferred to the director. The director shall
have authority to issue, amend, transfer, renew or revoke all
permits required under article five-a, chapter twenty of this
code with respect to all noncoal surface-mining operations subject to said article five-a. Each permit application shall be
accompanied by a filing fee of five hundred dollars and each
renewal application shall be accompanied by a filing fee of one
hundred dollars. The procedures for issuance, amendment,
transferal, renewal and revocation of such permits shall be
governed by rules promulgated pursuant to subsection (b) of this
section. The director shall consolidate the various permit
programs under article five-a, chapter twenty of this code and
article four of this chapter applicable to all noncoal
surface-mining operations. All provisions of article five-a,
chapter twenty of this code heretofore applicable to noncoal
surface-mining operations shall be continued under this section.
(b) Notwithstanding any provisions of this chapter to the
contrary, the director has the authority to propose rules for
legislative promulgation pursuant to article three, chapter
twenty-nine-a of this code necessary or proper to implement the
provisions of article five-a, chapter twenty of this code with
respect to all noncoal surface-mining operations, except that the
water resources board shall have the sole authority pursuant to
section three-a, article five-a, chapter twenty of this code to
propose rules for legislative promulgation pursuant to article
three, chapter twenty-nine-a of this code setting standards of
water quality applicable to the waters of the state. To the extent feasible, the director shall propose rules consolidating
the various regulatory programs under this chapter applicable to
all noncoal surface-mining operations. The proposal of such
rules shall be governed by the provisions of this article.
(c) Notwithstanding any provisions of this chapter to the
contrary, the director shall have the authority to enforce and
shall enforce the rules promulgated under this article by the
director and the rules of the water resources board setting water
quality standards for the waters of the state as they apply to
all noncoal surface-mining operations. Rules adopted by the
director, pursuant to the requirements of article five-a, chapter
twenty of this code shall be enforceable by the director under
the provisions of sections seventeen and nineteen, article
five-a, chapter twenty of this code, as though the rules were
promulgated by the water resources board: Provided, That the
director's authority to enforce such rules under article five-a,
chapter twenty of this code shall not preclude the director or
any person from invoking the remedies otherwise provided by
article four of this chapter and may not preclude the
commissioner from enforcing the provisions of this article.
(d) Notwithstanding any provisions of this chapter to the
contrary, any permit of the commissioner issued pursuant to subsection (a) of this section, or any order issued under article
five-a, chapter twenty of this code, or for the purpose of
implementing the "National Pollutant Discharge Elimination
System" established under the federal Clean Water Act, shall be
appealable only to the state water resources board and this
appeal shall be governed by the provisions of section fifteen,
article five-a, chapter twenty of this code.
(e) This section shall become effective upon a proclamation by
the governor stating that final approval of the partial transfer
of the national pollutant discharge elimination system
established under the federal Clean Water Act contemplated by
this section has been given by the administrator of the United
States environmental protection agency.
§22-4-27. Noncoal special reclamation tax.
A noncoal special reclamation fund is hereby established.
This fund shall be administered by the commissioner and he is
authorized to expend the moneys in the fund for the reclamation
and rehabilitation of lands which have been disturbed by noncoal
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 commissioner may
also expend amounts as are reasonably necessary to implement and administer the provisions of this chapter.
Whenever the noncoal special reclamation fund sinks below one
million dollars at the end of any given quarterly period, every
person then conducting noncoal surface-mining operations shall
contribute into the fund a sum equal to five cents per ton of
mineral mined thereafter. This fee shall be collected by the
state tax commissioner and shall be deposited by him or her 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 commissioner 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 cent 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.
§22-4-28. Citizen suits; order of court; damages.
(a) Any person having an interest which is or may be adversely
affected may commence a civil action in the circuit court of the
county to which the noncoal surface-mining operation is located
on his or her own behalf to compel compliance with this article:
(1) Against the state of West Virginia or any other
governmental instrumentality or agency thereof, to the extent
permitted by the West Virginia constitution and by law, which is
alleged to be in violation of the provisions of this article or
any rule, order or permit issued pursuant thereto, or against
any other person who is alleged to be in violation of any rule,
order or permit issued pursuant to this article; or
(2) Against the commissioner, department, division,
reclamation board of review or appropriate department employees,
to the extent permitted by the West Virginia constitution and by
law, where there is alleged a failure of the above to perform any
act or duty under this article which is not discretionary.
(b) No action may be commenced:
(1) Under subdivision (1), subsection (a) of this section: (A)
Prior to sixty days after the plaintiff has given notice in
writing of the violation to the commissioner or to any alleged
violator; or (B) if the commissioner has commenced and is
diligently prosecuting a civil action in a circuit court to
require compliance with the provisions of this article or any
rule, order or permit issued pursuant to this article; or
(2) Under subdivision (2), subsection (a) of this section
prior to sixty days after the plaintiff has given notice in
writing of the action to the commissioner, except that the action may be brought immediately after the notification in the case
where the violation or order complained of constitutes an
imminent threat to the health or safety of the plaintiff or would
immediately affect a legal interest of the plaintiff.
(c) Any action respecting a violation of this article or the
rules thereunder may be brought in any appropriate circuit court.
In such action under this section, the commissioner, if not a
party, may intervene as a matter of right.
(d) The court in issuing any final order in any action brought
pursuant to subsection (a) of this section may award costs of
litigation, including reasonable attorney and expert witness
fees, to any party whenever the court determines the award is
appropriate. The court may, if a temporary restraining order or
preliminary injunction is sought, require the filing of a bond or
equivalent security.
(e) Nothing in this section shall restrict any right which any
person or class of persons may have under any statute or common
law to seek enforcement of any of the provisions of this article
and the rules thereunder or to seek any other relief.
(f) Any person or property who is injured through the
violation by any operator of any rule, order or permit issued
pursuant to this article may bring an action for damages,
including reasonable attorney and expert witness fees, in any court of competent jurisdiction. Nothing in this subsection
shall affect the rights established by or limits imposed under
state workers' compensation laws.
(g) This section shall apply to violations of this article and
the rules promulgated thereto or orders or permits issued
pursuant to said article insofar as said violations, rules,
orders and permits relate to surface-mining operations.
NOTE: The purpose of this bill is to expand provisions
regarding noncoal mineral extraction and to impose additional
controls and requirements on noncoal mineral extraction
operations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§§22-4-8 and §22-4-23 have been completely rewritten; and
§22-4-24 through §22-4-28 are new; therefore, strike-through and
underscoring have been omitted.