H. B. 2855
(By Delegates Douglas, Mezzatesta and Michael)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact article four, chapter twenty-two of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to quarry mining and
reclamation of minerals other than coal; jurisdiction and
enforcement vested with division of environmental
protection; legislative findings; legislative purpose;
definitions; duties and functions of director of division of
environmental protection; inspectors and inspections; permit
required; mining and reclamation plan required; mining and
reclamation plan map and attachments; required fees; review
of application; public notice of application; approval or
denial of permit; modification of permit; transfer of
permit; blasting restrictions, filing preplan and penalties;
performance bonds; release of bond; reclamation security
fund; annual progress report and map; performance standards; time frame for completion of reclamation; authority to
propose rules; notice of noncompliance; bond forfeiture;
adjudication and findings; offenses and penalties for
violation; injunctive relief; quarry review board; appeals
to quarry review board; appeal from quarry review board
decision; final completion inspection and report;
exemptions; premining land use and postreclamation useful
purposes of land; ground water protection; grandfather
clause for prior permitted quarries; quarry reclamation
fund; severability clause; and enforcement date.
Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 4. QUARRY MINING AND RECLAMATION OF MINERALS OTHER THAN
COAL.
§22-4-1. Jurisdiction vested in division of environmental
protection.
Except as otherwise provided in section thirty-eight,
article one, chapter twenty-two-a of this code the division of
environmental protection is hereby vested with jurisdiction over
all aspects of quarry mining and with jurisdiction and control
over land, water and soil aspects pertaining to quarry mining operations, and the restoration and reclamation of lands quarry
mined and areas affected thereby. This article does not address
coal mining activities unless covered by paragraph (2),
subdivision (u), section three, article three of this chapter.
§22-4-2. Legislative findings.
The Legislature finds that the extraction of noncoal
minerals by quarrying is a basic, essential and vital industry
making an important contribution to the economic well being of
West Virginia. From the small family-owned chert pit to the
multinational limestone quarry, aggregate production plans a
vital role in West Virginia's economy and the quality of life for
its residents. It is in the public interest to insure the
availability and orderly development of mineral resources.
Aggregate minerals are necessary components in portland
cement, concrete and asphalt products. Without fine and course
aggregates it would be impossible to build or maintain the state
roadways, airports, shopping centers, business buildings or the
footers, driveways and foundations for homes.
Quarry minerals are needed to provide railroad ballast,
stone jetties in rivers, riprap and erosion control, fluidized
beds at coal power plants, agricultural lime, glass sand,
landscape materials, stream reclamation and flagstone.
It is not practical to extract minerals required by our
society without disturbing the surface of the earth and producing waste materials, and the very character of quarry operations
precludes complete restoration of the land to its original
condition. Unregulated quarrying may cause soil erosion, stream
pollution, landslides, accumulation of stagnant water or may
impair the health, safety and welfare and property rights of the
citizens of West Virginia. However, it is possible to conduct
quarrying and proper reclamation of quarried land in order to
prevent undesirable land and water conditions that would be
detrimental to the general welfare, health, safety and the
property rights of the citizens of the state. The Legislature
finds that the quarrying of minerals and reclamation of quarried
lands as provided by this article will allow the mining of
valuable minerals and will provide for the protection of the
state's environment and for the subsequent beneficial use of the
quarried and reclaimed land.
§22-4-3. Legislative purpose.
This subtitle is an exercise of the powers of the state for
the general welfare of the people of the state, by providing for
the protection and conservation of the natural resources of the
state and the reclamation of areas of land affected in the
quarrying of minerals other than coal, to aid in the protection
of birds and wildlife, to minimize soil erosion, to prevent
pollution of rivers, streams and lakes, to prevent loss or waste
of valuable mineral resources, to prevent and eliminate hazards to health and safety, to provide for reclamation of quarried
areas so as to assure the useful purposes of these lands and
generally to provide for the continued use and enjoyment of these
lands.
Through this act, the Legislature intends to regulate
quarrying of noncoal minerals in a reasonable and appropriate
way, giving due recognition to the unique nature and
distinguishing characteristics of quarrying as compared to coal
mining. Accordingly, nothing in this act shall be taken as
indicating an attempt to apply to quarries a standard currently
applied to coal mining operations in the state; and the
Legislature hereby specifically states that nothing in this act
shall be construed or taken to mean that reclamation to
approximate original contour, contemporaneous reclamation or any
similar standards applied to coal mines may be applied to
quarrying.
§22-4-4. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(a) "Abandoned quarry lands" means: (1) A quarry which was
operated and abandoned without proper reclamation prior to the
effective date of this article; or (2) a permitted quarry where
no mineral has been produced or overburden removed for a period
of one year and the permittee has vacated the site covered by the permit without having complied with all the requirements of the
permit.
(b) "Backfill" means overburden, dirt, rock or other
materials that are used as fill material to reduce steepness of
slopes or to fill holes, depressions or excavations.
(c) "Berm" means an embankment of overburden or earthen
material constructed intentionally to control drainage, visually
screen the quarry, suppress noise or prevent access to the
permitted area.
(d) "Borrow pit" means an area from which soil or other
unconsolidated materials are removed to be used, without further
processing, as fill for activities such as landscaping, building
construction or highway maintenance and construction.
(e) "Critical gradient" means the maximum stable inclination
of an unsupported slope as measured from a horizontal plane.
(f) "Director" means the director of the division or his or
her authorized agents.
(g) "Disturbed land" means the land area from which the
mineral is removed by quarrying and all other land area in which
the natural land surface has been disturbed as a result of or
incidental to the quarrying activities of the operator, including
private ways and private roads appurtenant to the area, land
excavations, workings, refuse piles, product stockpiles,
overburden piles and tailings. The term does not include manufacturing sites or reclaimed quarry areas.
(h) "Division" means the division of environmental
protection.
(i) "Fill" means a side of hill fill or valley fill. It
does not include berms or screening berms.
(j) "Inactive Operation" means either of the following:
(1) A permitted site where active work has ceased
temporarily due to weather conditions, market conditions or other
reasonable cause; or
(2) A permitted site where active quarrying has not yet
begun.
(k) "Manufacturing" means the process of converting raw
materials to salable products but does not include crushing or
screening of noncoal minerals undertaken in close proximity to
active quarrying operations.
(l) "Manufacturing site" means an area of land on which
manufacturing occurs and associated areas.
(m) "Minerals" means natural deposits of commercial value
found on or in the earth, whether consolidated or loose,
including clay, flagstone, gravel, sand, limestone, sandstone,
shale, chert, flint, dolomite, manganese, borrow material, iron
ore and any other metal or metallurgical ore. The term does not
include coal or topsoil.
(n) "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.
(o) "Neighboring" means in close proximity or in the
immediate vicinity, but not in actual contact.
(p) "Operator" means a person who conducts quarry activities
either with or without a permit.
(q) "Permit area" means the area of land indicated on the
approved map submitted by the permittee with the mining and
reclamation plan as specified in section seven of this article
showing the exact location of end strip markers, permit markers
and monument.
(r) "Permittee" means any person who holds a valid permit to
conduct quarrying.
(s) "Person" means any individual, partnership, firm,
association, trust or corporation.
(t) "Quarry" means all areas quarried or being quarried, as
well as adjacent areas ancillary to the operation, together with
preparation and processing plants, storage areas and haulageways,
roads or trails.
(u) "Quarrying" means any of the following:
(1) The breaking of the surface soil in order to facilitate
or accomplish the extraction or removal of minerals;
(2) Any activity constituting all or part of a process for
the extraction or removal of minerals from their original location; or
(3) The extraction of sand, gravel, rock, stone, earth or
fill from borrow pits for highway construction or other public
facilities;
(4) Quarrying does not include manufacturing.
(v) "Reclamation" means the rehabilitation of the disturbed
land for useful purposes and that it will become stable and
productive.
(w) "Side of hill fill" means overburden, dirt or rock that
is placed on a natural slope of more than twenty degrees.
(x) "Spoil pile" means piles of overburden material
displaced by excavating equipment, blasting or other methods and
placed on natural ground with an original slope of zero degrees
to twenty degrees.
(y) "Surface of a regraded bench" means the top portion or
part of any regraded area.
(z) "Unreclaimed" means land which has not been
rehabilitated for useful purposes or the protection of natural
resources.
(aa) "Valley fill" means a fill structure consisting of
material placed in a valley where the natural side slopes
measured at the steepest point are greater than twenty degrees or
the average slopes measured at the steepest point are greater
than twenty degrees or the average slopes or the profile of the hollow is greater than twenty degrees.
§22-4-5. Director of the division of environmental protection;
duties and functions.
(a) The Legislature finds that authority should be vested in
the director of the division to administer and enforce the
provisions of this article.
(b) The director and the director of the office of miners
health, safety and training shall cooperate with respect to each
agency's programs and records so as to effect an orderly and
harmonious administration of the provisions of this article. The
director of the division may avail himself or herself of any
services which may be provided by other state agencies in this
state and other states or by agencies of the federal government
and may reasonably compensate them for such services. He or she
may also receive any federal funds, state funds or any other
funds for the reclamation of land affected by quarrying.
(c) No public officer or employee in the division, the
office of miners' health, safety and training, or in the office
of attorney general, having any responsibility or duty either
directly or of a supervisory nature with respect to the
administration or enforcement of this article shall:
(1) Engage in quarrying as a sole proprietor or as a
partner; or
(2) Be an officer, director, stockholder, owner or part
owner of any corporation or other business entity engaged in
quarrying; or
(3) Be employed as an attorney, agent or in any other
capacity by any person, partnership, firm, association, trust or
corporation engaged in quarrying.
Any violation of this paragraph by any such public officer
or employee shall constitute grounds for his or her removal from
office or dismissal from his or her employment, as the case may
be.
§22-4-6. Inspectors and inspections.
(a) The director shall employ qualified inspectors and other
personnel determined necessary by the director to carry out the
purposes of this article. All such employees shall be civil
service employees and shall have at least two years experience
with environmental issues.
(b) Each permit area shall be inspected at least once every
six months. The inspection shall determine if the permittee has
complied with the permit, the requirements of this article and
any rules adopted under it.
§22-4-7. Quarry permit required.
(a) It is unlawful for any person to engage in quarrying
without having first obtained from the division a permit as provided in this section.
(b) An application for quarry permit is required for each
quarry.
(c) The application shall fully state the information
reasonably required by the director.
(1) The application may be in writing and on a form prepared
and furnished by the division; or
(2) The application may be submitted electronically by
E-mail or floppy disc in a word processing format determined by
the division.
(3) An electronic submittal shall be verified by an
affidavit signed by the applicant.
(4) The application shall include the following information:
(A) The names and addresses of the owners of the surface of
the land to be quarried;
(B) The names and addresses of the owners of the mineral to
be quarried;
(C) The source of the applicant's legal right to conduct
quarrying on the land to be covered by the permit;
(D) An estimate of the number of acres to be covered by the
permit area;
(E) A list of other quarrying permits held by the permittee;
(F) (a) The names and mailing addresses of every officer,
partner, director of the applicant or a person fulfilling a similar function of a director;
(d) The names and mailing addresses of any person owning of
record or beneficially ten percent or more of any class of stock
of the applicant;
(1) The name of any person listed in item (VI) above who had
a quarry permit revoked or had a quarry bond forfeited within the
last five years; and
(2) A certificate of insurance issued by an insurance
company authorized to do business in this state. The insurance
policy may cover all quarry operations of the applicant,
including blasting, in this state and shall provide personal
injury protection in an amount not less than five hundred
thousand dollars and property damage protection not less than one
hundred thousand dollars.
(e) (1) A permit may cover more than one tract of land, if
the tracts are described in the application.
(2) If a permittee has more than one permit at any quarrying
site those permits may be consolidated into one permit at the
request of the permittee.
§22-4-8. Mining and reclamation plan.
(a) The application for a permit shall include a proposed
mining and reclamation plan.
(b) The mining and reclamation plan shall include the
following information and is not required to be completed by a professional engineer or licensed land surveyor.
(1) The common name and geologic name, if known, of the
mineral or minerals to be quarried;
(2) The purpose for which the land to be permitted was
previously used;
(3) The proposed useful purposes of the land following
completion of quarrying;
(4) A general description of the manner in which the land is
to be opened for quarrying and how the quarrying activity is to
progress across the tract and an approximate time frame for
reclamation of each area or phase of the mining;
(5) The manner in which topsoil is to be conserved and used
in reclamation and, if conditions do not permit conservation and
restoration of all or part of the topsoil an explanation of the
conditions and proposed alternative procedures;
(6) The manner in which the compaction of the fill will be
accomplished where backfilling is proposed or the applicant's
proposed useful purposes of the land if the reclamation requires
fill;
(7) The description of the proposed final topography for the
applicant's proposed land use after reclamation is completed and
the proposed method of accomplishment;
(8) The practices to provide public safety for adjacent
properties;
(9) The manner and type of revegetation or other surface
treatment of the disturbed land; and
(10) A blasting plan that meets the requirements of section
fifteen of this article, and describes whether the scale distance
formula and a seismograph will be used to monitor blasting.
(c) (1) An application for a permit shall indicate the
existence of known threatened or endangered species located
within the proposed permit boundary. Threatened and endangered
species are those listed in the federal endangered species act of
one thousand nine hundred seventy-three, 16 U.S.C. §§ 1531-1545.
(2) The director shall not impose any enforcement of this
subsection which is more strict than that of the federal act
cited above.
(d) (1) Final slope gradients of fill areas shall be
designed using recognized standards and certified by a
professional engineer or other approved professional specialist
except, this requirement may not apply to backfill within the
mineral excavation pit area where no standard shall apply.
(2) The designed steepness and proposed treatment of the
final slopes shall take into consideration the physical
properties of the slope material, its probable maximum water
content, landscaping requirements and other factors and may range
from ninety degrees in a sound limestone or similar hard rock to
less than twenty degrees in a highly expansive clay.
(3) The mining and reclamation plan shall specify slope
angles flatter than the critical gradient for the type of
material involved.
(4) Constructed slope fills steeper than two horizontal to
one vertical must exhibit a static safety factor of one and
one-half.
(5) Fills may be constructed with slopes no steeper than one
and one-half horizontal to one vertical if an eight foot wide
bench is installed at a maximum of every twenty feet in vertical
height of the fill. The bench shall have a slope of three to
five feet in vertical height of the fill. The bench shall have
a slope of three to five percent toward the fill area.
(6) Surface water runoff from the area above fills shall be
diverted away from the fill into stabilized diversion channels.
Runoff from the fill surface shall be diverted to stabilized
channels off the fill.
(7) During and after construction of a fill area, slope
protection shall be provided to minimize surface erosion. All
disturbed areas of the fill, including diversion channels that
are not riprapped or otherwise protected, shall be revegetated
upon completion of construction.
(e) Highwalls exceeding fifty degrees which are to be left
after completion of mining will be backfilled or shot down to
provide a final slope in compliance with subsection (d) of this section unless:
(1) It is demonstrated that the highwall is stable; or
(2) Adequate material removed in the process of mining and
not located in a permanent disposal area, is not available.
(3) Such actions are precluded by close proximity to permit
boundaries or other physical limitations.
(f) (1) Fills, cut slopes and highwalls that are part of a
permit area prior to the effective date of this article are not
required to comply with subdivisions (1) through (7), subsection
(d) of this section.
(2) Permits issued prior to the effective date which contain
the requirements of subdivisions (1) and (2), subsection (d) or
(e) of this section are not exempt unless modified by the
division.
(g) The final land form shall be graded to provide positive
drainage throughout the permit area except areas that are to be
ponded in accordance with the mining and reclamation plan map.
§22-4-9. Mining and reclamation plan map and attachments.
(a) The application for a permit shall be accompanied by
four copies of an enlarged United States geological survey
topographic map or a topographic map prepared from a
photogrammetric survey. Aerial photographs of the area are
acceptable if the plan for mining and reclamation can be shown to
the satisfaction of the director. The map shall:
(1) Be prepared and certified by a registered professional
engineer, licensed land surveyor or by any other professional
person determined qualified by the director;
(2) Show the boundaries of the proposed permit area and the
property lines of the subject property;
(3) Show deep mine operations within five hundred feet and
designate whether active or inactive;
(4) State the names of land owners of record within five
hundred feet of the proposed permit area and the names of the
landowner of the permit property;
(5) Be of a scale not smaller than one inch equals five
hundred feet;
(6) Show the names and locations of all streams and other
bodies of water, roads, railroads, buildings, cemeteries, active,
abandoned or plugged oil and gas wells, and distribution utility
lines on or within five hundred feet of the proposed permit area;
(7) Show the outcrop line and the strike and dip of the
mined deposit to be quarried;
(8) State the date and dates of revision on which the map
was prepared;
(9) Contain a vicinity map and north arrow and state the
name of the county and district of the permit and the nearest
post office;
(10) Show representative cross-sections which include the depth of various strata, including acid producing strata, the
contours prior to quarrying and the proposed contours following
quarrying;
(11) Show the drainage control plans on and away from the
area of land to be disturbed depicting the directional flow of
water, constructed drain ways and natural waterways receiving
discharge from the permit area; and
(12) Contain this map certification "I, the undersigned,
hereby certify that this map is correct and shows all the
information required by the quarrying laws of this state, to the
best of my knowledge and belief". The certification shall be
notarized.
§22-4-10. Required fees.
(a) The fee for an original permit is five hundred dollars.
(b) An annual permit fee of one hundred dollars shall be
submitted with the annual progress report map.
§22-4-11. Review of application; public notice of application.
(a) The director shall, upon receipt of an application for
a permit, determine if the application is complete and contains
the information required on the application form. If the
application is determined incomplete, the applicant shall be
notified, within fifteen working 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 calendar days after receipt
of this notice. When a hearing is to be held, the director shall
notify the applicant of the decision by certified mail within
twenty days after the hearing. An applicant aggrieved by a final
order of the director made after the hearing or without a hearing
may appeal the order to the quarry review board. Any appeal to
the quarry review board shall be taken without prejudice by the
director in the final review of a permit application.
(b) If the application for a new permit is determined
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 a request for a public hearing,
written protests or comments to such application will be accepted
until a specified date, which date shall be 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 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.
(c) (1) The director shall receive and consider evidence or
comments submitted by anyone whether adversely affected or not.
(2) If there is no valid request for a public hearing from
a resident or landowner within one thousand feet of the proposed
permit property at the time of the application submittal the
review of the application shall proceed.
§22-4-12. Approval or denial of permit.
(a) The director shall approve or deny the permit or permit
modification requested as expeditiously as possible, but not
later than thirty days after the close of the public notice or if
a public hearing is held, thirty days after the close of the
hearing.
(b) If the public hearing requires supplemental information
to be filed with the director, the decision to approve or deny
the permit requested shall be made not later than thirty days
after that information is submitted.
(C) The director may deny the permit or permit modification
only on demonstrating that:
(1) Any requirement of this article or any rule adopted under it will be violated by the proposed operation;
(2) The operation will constitute an environmental or
substantial physical hazard to a neighboring dwelling house,
school, church, hospital, commercial or industrial building,
public road, or other public or private property in existence at
the time of application for the permit;
(3) The operation will have a significantly adverse effect
on the uses of a neighboring publicly owned park, forest, or
recreation area in existence at the time of application for the
permit; or
(4) The applicant has not corrected all violations which he
or she committed under any prior permit and which resulted in:
(i) Revocation of his or her permit;
(ii) Termination of the operation by order of the director;
(iii) Forfeiture of part or all of his or her bond or other
security; or
(iv) A court order issued against the applicant as a result
of division action.
(d) A permit shall remain valid until mining is completed
and the final inspection and report is approved pursuant to
section thirty of this article or until the permit is revoked
pursuant to section twenty-three of this article.
§22-4-13. Modification.
(a) Any permittee may apply at any time for modification of the permit. The application shall be in writing upon forms
furnished by the director and shall fully state the information
requested. The application must provide the director with any
additional information necessary to satisfy application
requirements. The applicant is not required to resubmit
information that remains unchanged since the time of the prior
application. In addition, the applicant may be required to
furnish any other information as may be determined necessary by
the director in order adequately to enforce the article.
(b) A modification under this section may affect the land
area covered by the permit, the approved reclamation plan coupled
with the permit, or other terms and conditions of the permit. A
permit may be modified to include land adjacent or neighboring
the affected land, but not other lands. The mining and
reclamation plan may be modified in any manner, so long as the
director determines that the modified plan fully meets the
standards set forth in this article and that the modifications
would be generally consistent with the issuance of the original
permit.
(c) No modification of a permit shall become effective until
any required changes have been made in the performance bond or
other security posted under the provisions of section sixteen of
this article so as to assure the performance of obligations
assumed by the permittee under the permit and the mining and reclamation plan.
(d) Notice of opportunity for a public hearing is required
for applications for permit modification requesting additional
land which exceeds ten percent of the permit area.
(e) In lieu of a permit modification a permittee may apply
for a new permit in the manner described by section seven of this
article.
§22-4-14. Transfer of a permit.
(a) (1) When the interest of a permittee in any uncompleted
quarry operation is sold, leased, assigned, or otherwise disposed
of, the director shall transfer the permit and release the
transferor from his or her liabilities imposed by this article or
regulations issued hereunder if both the transferor and
transferee have complied with the requirements of this article
and the transferee in interest assumes the duties and
responsibilities under the permit.
(2) Both the transferor and transferee must agree to the
transfer in writing.
(3) Transferee shall provide such information required by
the director.
(b) Fee -- The proposed transferee shall pay a five hundred
dollar fee with the filing of an application for transfer of
permit.
(c) Approval -- The director shall approve and grant the
permit transfer as expeditiously as possible but not later than
thirty days after the application forms or any supplemental
information required are filed with the director.
(d) Denial -- The director may deny the permit transfer on
finding:
(1) That the transferor or transferee has an unabated
violation of the type listed in section twenty-three of this
article; or
(2) That the proposed transferee has failed to pay the
transfer fee stated above or post the bond required by section
sixteen of this article.
(e) Notice -- If the director denies an application to
transfer a permit, the director shall give the permittee and the
proposed transferee written notice of:
(1) The director's determination;
(2) Any changes in the application which would make it
acceptable; and
(3) The right of the permittee and the proposed transferee
to a hearing before the director or the quarry review board.
(f) (1) If a hearing before the director is not requested
within fifteen days after receipt of the director's notice of the
denial, the denial shall be considered the director's final order on the matter appealable to the quarry review board.
(2) If a hearing before the director is requested within
fifteen days after receipt of the director's notice, the date for
the hearing may not be less than fifteen days nor more than
thirty days after the date of the request unless the parties
mutually agree on another date.
(3) The director shall enter a final order granting or
denying the transfer application within thirty days after the
hearing.
§22-4-15. Blasting restrictions; formula; filing preplan;
penalties; notice.
(a) 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
accordance with provisions of this article if subsections
(b) through (i) are adhered to.
(b) 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 quarry.
(c) (1) The scaled distance formula need not be used if a
seismograph measurement at or between the blast site and the
nearest residence or building is recorded and maintained for
every blast.
(2) 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 MeasurementDistance to the Nearest
Protected Structure
1.250 - 300 feet
1.00301 - 5,000 feet
0.755,001 feet or greater
(3) 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. The maximum ground vibration
standards also do not apply on property not owned by the
permittee if that landowner submits a written waiver to the
director.
(4) Airblast measured by the seismograph at or between the blast site and the nearest residence or building shall not exceed
the maximum limits listed below:
Lower frequency limit of measuring
system in Hz(+3dB)Maximum level in db
1Hz or lower-flat response134 peak
2Hz or lower-flat response133 peak
6Hz or lower-flat response129 peak
c-weight-slow response105 peak dBC
(5) The 1Hz. or lower-flat response and the c-weight slow
response may be used when approved by the director.
(d) Access to the blast area shall be controlled against the
entrance of unauthorized personnel during blasting and for a
period thereafter until an authorized person has reasonably
determined that:
(1) No unusual circumstances such as imminent slides or
underdetonated charges, etc. exist; and
(2) Access to and travel in or through the area can be
safely resumed.
(e) 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.
(f) 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:
(1) Date and time of blast;
(2) Number of holes;
(3) Typical explosive weight per delay period;
(4) Total explosives in blast at any one time;
(5) Number of delays used;
(6) Weather conditions;
(7) Signature of permittee employee in charge of the blast;
(8) Seismograph data; and
(9) Date of seismograph calibration.
(g) Where inspection by the division establishes that the
scaled distance formula or the seismograph results or the
approved preplan are not being adhered to, the following
penalties may be imposed:
(1) For the first offense in any one permit year under this
section, the permit holder may be assessed not less than one
hundred dollars nor more than one thousand dollars;
(2) For the second offense in any one permit year under this
section, the permit holder may be assessed not less than one
thousand dollars nor more than five thousand dollars;
(3) 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 director, the
permit may be revoked.
(4) 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.
(h) 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.
(i) (1) All blasting is to be conducted by blasters certified
in accordance with laws and regulations administered by the West
Virginia regulatory authority responsible for certification.
(2) Blasters who are currently conducting blasting at quarry
operations, and have been doing so for two years or more prior to
the effective date of this article are considered to be
certified.
(j) (1) After receipt and approval of an application for a
new permit, or for expansion of an existing permit area that was
permitted before the effective date of this article, the director
may require a preblast survey, to be submitted before blasting,
for residences or buildings within one thousand feet of the
blasting or requested by anyone within one half mile of the
blasting area.
(2) The preblast survey shall document any preblasting damage and other physical factors that could reasonably be affected by
the blasting.
(k) A permittee required to conduct a preblast survey may not
conduct blasting within one thousand feet of any residence or
building except that the director shall grant written permission
if:
(1) The permittee or applicant obtains permission to enter
appropriate nearby properties and conducts a preblasting survey,
or documents and offer and unsuccessful attempts to conduct a
preblast survey; or
(2) The permittee or applicant obtains written consent of the
owners of all buildings, dwellings or structures situated within
those areas.
§22-4-16. Performance bonds.
(a) Each applicant who makes application for a permit under
section seven of this article shall, at the time such permit is
requested, furnish a performance bond after permit approval but
before its issuance, on a form to be prescribed and furnished by
the director, payable to the state of West Virginia and
conditioned that the permittee shall faithfully perform all of
the requirements of this article.
(1) The bond or bonds shall cover the entire area disturbed
by quarrying plus the estimated number of acres to be disturbed
in the upcoming year.
(2) As additional areas outside the bonded acreage are needed
to facilitate the quarry operation, the permittee shall file an
additional bond or bonds to cover the additional acreage with the
director.
(3) The bond shall be posted and accepted by the director
prior to disturbing an area for quarrying-related activity.
(b) The amount of the bond shall be not less than one
thousand dollars for each acre or fraction thereof of the land
to be disturbed. the director shall determine the amount per
acre of the bond that is required before a permit is issued. The
minimum amount of bond furnished shall be ten thousand dollars.
(c) The performance bond shall be executed by the permittee
and a corporate surety licensed to do business in the state of
West Virginia. In lieu of corporate surety, the permittee may
elect to deposit with the director cash, or collateral
securities, irrevocable letters of credit, or certificates as
follows:
(1) Bonds of the United States or its possessions, of the
federal land banks, or of the homeowners' loan corporation;
(2) 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;
(3) Certificates of deposit in a blank in this state, which certificates shall be in favor of the division; or
(4) Irrevocable letters of credit issued by a bank within the
state, expressly stating that the total sum is available, and
payable directly to the director on demand.
(d) The cash deposit or market value of such securities or
certificates deposited in accordance with subsection (c) of this
section, 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 is to
receive and hold the same in the name of the state in trust for
the purpose for which such deposit is made. The permittee 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.
(e) It is unlawful for the owner or owners of surface rights
or the owner or owners of mineral rights to interfere with the
permittee in the discharge of the permittee's obligation to the
state for the reclamation of lands disturbed by the permittee.
(f) The liability under the bond shall be for the duration of the permit and for a period of two years after reclamation unless
previously released in whole or part as provided in section
seventeen of this article.
§22-4-17. Release of bonds.
(a) On completion of the reclamation, and after the
requirements of the permit have been fully complied with, the
director shall release the bond.
(b) An amount of the bond or cash deposit, proportioned to
the reclaimed portion of the disturbed land in ratio to all of
the disturbed land covered by the permit, may be released on
application by the permittee and inspection and approval by the
division.
(c) Performance bonds will be released upon acceptance into
the reclamation security fund and payment of the required fees.
(d) Performance bonds for the transferor of a permit shall be
released after the transferee posts a bond acceptable to the
director.
§22-4-18. Reclamation security fund.
(a) In lieu of the requirements of section sixteen of this
article, a permittee accruing five years of satisfactory
operation under this article or previous mining law will be
required to enter the reclamation security fund (RSF).
(1) For each quarry, the permittee shall make an initial payment to the fund of fifty dollars for each acre currently
disturbed plus each acre estimated to be newly disturbed during
the next ensuing year.
(2) Thereafter, the permittee shall make an annual payment of
twelve dollars and fifty cents for each disturbed acre plus each
acre estimated to be newly disturbed during the next ensuing year
determined by the annual progress report and map.
(3) Such payments shall continue until the permittee has paid
into the RSF a total of one thousand dollars for each disturbed
acre.
(b) Entry in the RSF shall be mandatory for all eligible
permittees.
(c) No annual RSF deposits will be collected from permits
where the permit RSF deposits divided by the number of disturbed
acres is equal to or greater than one thousand per acre.
(d) Permittee deposits into the RSF will be released under any
of the following conditions:
(1) On completion of the quarrying and reclamation, and after
the requirements of the permit have been fully complied with, the
director shall return all RSF deposits to the permittee.
(2) When the director grants the approval of the transfer of
the quarry permit to another permittee all RSF deposits shall be
returned to the transferring permittee. If the successor
permittee has five years of previously satisfactory operations, he or she shall enter into the RSF for the new print.
(3) When the quarry permit area is completely relinquished to
another permittee, other than in a permit transfer, all of the
RSF deposits for the permit shall be returned to the
relinquishing permittee upon the directors approval of the
relinquishment.
(4) When the RSF balance for a permit exceeds one thousand
dollars for each disturbed acre and each acre estimated to be
disturbed during the next ensuing year the director shall return
the excess funds to the permittee.
(e) All interest accrued to the RSF shall be used to reclaim
abandoned quarry lands as provided for in section thirty-five of
this article.
(f) Deposits in the RSF are not to be spent except that a
permittee's deposit shall be forfeited for a specific permit as
provided for in section twenty-four of this article.
§22-4-19. Annual progress report and map.
(a) The permittee shall file a progress report and map with
the division by the first day of May each year, on a form
prescribed and furnished by the division, which shall cover the
preceding calendar year and shall:
(1) Identify the quarry, the permittee, and the permit number;
(2) Identify the location of the operation as to county,
district, nearest municipality, and nearest public road;
(3) Report the type of mineral produced;
(4) State the acreage disturbed by quarrying during the
previous year;
(5) State and describe the amount and type of reclamation
carried out during the previous year;
(6) Estimate the acreage to be newly disturbed by quarrying in
the next year; and
(b)(1) In addition, the permittee shall furnish to the
division a map showing the status of the operation and indicating
the area affected and reclaimed during the preceding year,
particularly with relation to the property lines and boundaries
shown on the map and survey furnished with the original
application. A registered professional engineer or professional
surveyor is not required to prepare this progress report map.
However, if prepared by the permittee, the map shall be of
reasonable quality, accuracy and legibility, and acceptable to
the division.
(2) An aerial photograph may be submitted in lieu of the map.
(c) The progress report and map shall be the basis used to
determine the amount of the performance bond required by section
sixteen of this article and the annual payment to the reclamation
fund required by section eighteen of this article.
(d) The progress report shall include a certificate of
insurance if requested by the director.
§22-4-20. Performance standards.
(a) If the permittee or other person desires to conduct deep
mining upon the premises or use a deep-mine opening haulage ways
or other lawful purposes, the permittee may designate locations
to be used for such purposes at which places it will not be
necessary to backfill if required by the permit, until such deep
mining or other uses is completed, during which time the bond on
file for that portion of that operation shall not be released.
Such locations shall be described on the map required by the
provisions of section seven of this article.
(b) (1) The permittee shall impound, drain or treat all runoff
water so as to reduce soil erosion, damage to agricultural lands
and pollution of streams and other waters.
(2) In the case of storm water accumulations or any
breakthrough of water, adequate treatment shall be undertaken by
the permittee so as to prevent pollution occurring from the
release of such water into the natural drain way or stream.
Treatment may include check-dams, settling ponds and chemical or
physical treatment. In the case of a breakthrough of water, when
it is possible, the water released shall be impounded
immediately. All water so impounded shall receive adequate
treatment by the permittee before it is released into the natural
drain way 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, is subject to the requirements of article eleven
of this chapter and must comply with the NPDES permit.
(c) The permittee shall remove or properly dispose of all
metal, equipment and other refuse resulting from the operation.
No permittee 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, unless it is placed on a site which
has a permit allowing that activity, nor shall any permittee
place any of the foregoing listed materials in such a way that
normal eroding 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.
(d) (1) There shall be no mineral extraction within twenty- five feet of any public road, stream, lake or other public
property, unless it is determined by the director that such
activity shall be safe to the public welfare and the environment.
(2) If mineral extraction is prohibited within the twenty-five
foot buffer it may be utilized by the permittee for screening,
drainage control, and roadways provided that adequate safety controls are in place. In no event may there be disturbance past
the property line or right of way line without written permission
of the owner.
(3) The twenty-five foot restriction aforesaid does not apply
to the dredging and removal of minerals from the streams or
watercourses of this state.
(e) Lateral drainage ditches connecting to natural or man-made
waterways shall be constructed to control water runoff and
prevent erosion. The depth and width of natural drainage ditches
and any other diversion ditches may vary depending on the length
and degree of slope.
(f) When the planting of an area has been completed and full
or partial bond release is requested, the permittee shall file 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
permittee, or by the party with whom the permittee contracted for
such planting.
(g) All fill and cut slopes of the operation and haulage ways
shall be seeded and planted in a manner as prescribed by the
mining and reclamation plan in the first planing or seeding
season after the construction.
(h) (1) After quarrying is completed, the site will be
stabilized to prevent erosion.
(2) Stabilization may be accomplished by vegetative cover or
other means as approved in the mining and reclamation plan.
(3) Rules proposed under section twenty-two of this article
shall contain guidelines for establishing the various types of
stabilization.
(4) Planting shall be carried out so that it is completed
before the end of the first available planting season.
(5) Vegetative planting may be completed by the permittee or
the permittee may contract with the local soil conservation
district or a private contractor.
(6) A revegetation schedule shall be incorporated into the
mining and reclamation plan.
(i) The permittee may use visual screening methods such as
berms, plantings, or fences which may be placed along the
twenty-five foot buffer where conditions allow and where the site
is readily visible to the general public.
§22-4-21. Time in which reclamation shall be completed.
(a) The permittee shall commence the reclamation of the area of land disturbed by the permittee after the completion of all
quarrying of that area in accordance with the approved mining and
reclamation plan and shall complete such reclamation within two
years.
(b) At the option of the permittee and with the director's
concurrence, a quarry permit may be inactive for an indefinite
period during which no mineral or overburden is removed if the
following conditions are met:
(1) All disturbed areas are reclaimed or stabilized to
prevent erosion and sedimentation;
(2) All drainage and sediment control structures, such as
culverts, ditches, sediment basins and traps, etc. are
maintained; and
(3) All vegetation is maintained (reseeded as necessary).
§22-4-22. Rules.
The director shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, for the effective administration of
this article. The rules shall be approved by the quarry review
board prior to submittal to the Legislature.
§22-4-23. Noncompliance.
(a) If any of the requirements of this article or rules
proposed pursuant thereto, the permit and its conditions or the orders of the director have 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
permittee. A copy of such notice or order shall be handed to the
permittee in person or served by certified mail addressed to the
permittee at the permanent address shown on the application for
a permit.
(b) The notice of noncompliance shall specify in what respects
the permittee has failed to comply with this article, the rules,
the permit and its conditions or orders of the director.
(c) If the permittee has not reached an agreement with the
director or has not complied with the requirements set forth in
the notice of noncompliance within the time limits set therein,
the permit may be suspended by order of the director. If a
consent agreement 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.
(d) (i) Any permittee who forfeits a bond shall not be issued
any new permits, permit modifications, or transfers. Other
permits issued to this permittee existing at the time of
forfeiture shall continue in full force and effect.
(ii) After a permittee corrects the violations which resulted
in a bond forfeiture subsequent permits may be issued if all requirements of sections seven, eight, nine and sixteen of this
article are met.
§22-4-24. Bond forfeiture.
(a) The performance bond or reclamation security fund deposits
shall be forfeited on failure of the permittee to perform in the
manner set forth in the authorized mining and reclamation land
and to reclaim the land as provided for in the permit or upon
revocation of the permit. The director shall notify the
permittee by certified mail, return receipt requested, bearing a
postmark from the United States postal service, of its intention
to initiate forfeiture proceedings. The permittee has thirty
days to request a hearing before the quarry review board.
(b) On the permittee's showing of cause, the director shall
provide for a reasonable time, for the permittee to restore the
land to comply with the permit.
(c) On failure of the permittee to show cause, the bond or
reclamation security fund deposits shall be forfeited nisi, and
notice by the director shall be given to the permittee and legal
owner of the land if different from the permittee and surety of
the forfeiture. If a showing of intention to restore in
compliance with the permit is not submitted to the director
within thirty days from the forfeiture nisi, the bond or
reclamation security fund deposits shall be forfeited absolute.
(d) On the absolute forfeiture, the director shall use the funds made available by the forfeiture to reclaim the affected
land as promptly and completely as possible.
§22-4-25. Adjudication, findings, etc.
Every adjudication, determination or finding by the director
affecting the rights, duties or privileges or 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 affected thereby by mailing a true copy
thereof to such person by certified mail or by hand delivery.
The director shall not adjudicate property rights.
§22-4-26. Offenses; penalties; prosecutions; injunctive relief.
(a) Any operator who deliberately violates any provision of
this article, permit or its conditions or conducts quarry
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 if the violation is continual and
there are no extenuating circumstances. It is the duty of the
director to institute prosecution for violations of the
provisions hereof. The director shall institute any suit or other legal action necessary for the effective administration of
the provisions of this article.
(1) 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 the 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.
(2) 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.
(3) 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 except that the petitioner
seeking such review must file with said supreme court of appeals within thirty days from the date of entry of the judgment of the
circuit court.
§22-4-27. Appeals to the quarry review board.
Any person aggrieved or adversely affected by any rule or
order of the director or his or her failure to enter an order may
appeal to the quarry review board pursuant to the provisions of
article one, chapter twenty-two-b of this code, for an order
vacating or modifying such rule or order, or for such order as
the director should have entered.
§22-4-28. Quarry review board.
(a) A quarry review board is hereby created to be comprised
of five members to be appointed by the governor.
(b) (1) Two members shall be citizens of the state having no
financial interest in any quarrying activity.
(2) Two members of the board shall be quarry permittees or
their representatives who have been engaged in such operations in
this state for five years.
(3) One member shall be a property owner who owns land or is
an executive of a corporation that owns land upon which quarry
operations have been or are being conducted. The land owner
shall have no other financial interest in any quarrying activity.
(4) A board member representing (2) or (3) of this
subsection shall not participate in a decision regarding a permit in which they maintain a financial interest.
(5) No more than three members may be from the same
political party.
(c)(1) Terms of the members first appointed shall be one
member for one year, two members for two years and two members
for three years.
(2) Thereafter, terms shall be for three years.
(3) A member who has served all or part of two consecutive
terms shall not be subject to reappointment unless three years
have elapsed since the member last served.
(4) Vacancies shall be fulfilled by appointment by the
governor for the unexpired term of any member whose office is
vacated and shall be made within sixty days of the occurrence of
the vacancy.
(5) A vacancy on the board shall not impair the right of the
remaining members to exercise all the powers of the board.
(d) The board shall elect its own chairman.
(e) The director or his or her designated representative
shall serve as secretary to the board but shall not be a member
thereof and shall not participate in the deliberations or voting
of the board.
(f) The members may not receive compensation for their
service but shall be reimbursed for their actual expenses
incurred in the performance of their duties as such.
(g) The duties of the board shall be:
(1) The review and approval of proposed rules.
(2) The hearing of appeals from orders or decisions issued
by the director under this article and the procedure for
determining appeals as provided for in section twenty-three of
this article.
(3) The authority to uphold, vacate or modify any order or
decision of the director; and
(4) The approval of all expenditures from the quarry
reclamation fund.
(h) A quorum shall be three members of the board at any
meeting.
(i) All appeals shall be in writing and shall set forth the
rule, order or omission complained of the grounds upon which the
appeal is based:
(1) 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.
(2) Where the appellant claims to be aggrieved or adversely
affected by any rule 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 director within three days after the appeal is filed with the board.
(3) Within ten days after receipt of such notice of appeal,
the director shall prepare and certify to the board a complete
record of the proceedings before him or her, including all
documents and correspondence relating to the matter.
(4) Upon the filing of such appeal, the board shall fix the
time and place at which the hearing on the appeal will be held.
The 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 the director if both so
agree.
(5) The filing of an appeal provided for in this section
shall stay execution of the order appealed.
(6) The board shall hear the appeal de novo, and any party
to the appeal may submit evidence.
(7) 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 or she 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 hearings shall
testify under oath, and any member of the board may administer
oaths or affirmations to persons who so testify.
(8) A stenographic record of the testimony or any other
evidence submitted shall be taken by an official court shorthand
report. 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.
(9) Copies of the record shall be made available at the
expense of the party making the request for the record.
(10) If upon completion of the hearing the board finds that
the rule or order appealed for was lawful and reasonable, it
shall make a written order affirming the rule or order appealed.
If the board finds that such rule or order was unreasonable or
unlawful, it shall make a written order vacating or modifying the
rule or order appealed; and if the board finds that the director
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 board shall render its decision within
thirty days after the closing of the hearing.
(11) The order of the board shall be final unless vacated
upon judicial review thereof.
§22-4-29. Appeal from the quarry review board.
(a) Any person aggrieved by any opinion of the board shall
have the right of appeal to the circuit court of Kanawha County
or the circuit court of the county in which the quarry operation
is located.
(b) The judgment of the court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals of West Virginia. Jurisdiction is hereby conferred upon
such court to hear and entertain such appeals upon application
made in the manner and within the time provided for civil appeals
generally.
§22-4-30. Final completion inspection and report.
(a) On completion of reclamation of an area of disturbed
land, the permittee shall notify the director. The director
shall make an inspection of the area, and if it finds that the
permittee has not completed the reclamation to the director's
reasonable satisfaction all the reclamation required by the
permit, the director shall order the permittee to do so and shall
reinspect the area following completion of the work. If the
director finds that reclamation has been completed properly and
if the director has received the final reclamation report
required under subsection (b) of this section, it shall notify
the permittee in writing and release the permittee from further obligations regarding the affected land. At the same time it
shall release all or the appropriate portion of any performance
bond or reclamation security fund which the permittee has posted
under section sixteen or section eighteen of this article.
(b) The permittee shall furnish a final reclamation report
which includes the following:
(1) The terms of the original permit and all subsequent
modifications;
(2) A summary of the original mining and reclamation plan
and all subsequent modifications;
(3) A statement summarizing any departures from the mining
and reclamation plan and the reasons for them;
(4) A statement summarizing any problems encountered during
the progress of quarrying or reclamation, and the measures taken
to correct these problems;
(5) The total acreage of land disturbed and reclaimed;
(6) The status or condition of areas progressively reclaimed
since the initiation of quarrying in the area; and
(7) A final map or aerial photograph that adequately
delineates the permit area. A registered professional engineer
or professional surveyor is not required to prepare this map.
§22-4-31. Exemptions.
(a)(1) The provisions of this article do not apply to
activities of the West Virginia department of transportation and any legally constituted public governing entities such as
municipal corporations or other political subdivisions, including
the federal government or to activities of any person acting
under contract with any of these public agencies or entities, on
highway rights-of-way or borrow pits owned, operated, or
maintained solely in connection with the construction, repaid and
maintenance of the public roads systems of the state or other
public facilities.
(2) This exemption does not become effective until the
public agencies or entities have adopted reclamation standards
applying to the activities.
(b) The provisions of this article do not apply to quarrying
on federal lands when performed under a valid permit from the
appropriate federal agency having jurisdiction over the land.
(c) The provisions of this article do not apply to the
following activities:
(1) Those aspects of deep mining that do not have a
significant effect on the surface, if the affected land does not
exceed five acres in area;
(2) Operations engaged only in processing minerals;
(3) Excavation or grading conducted solely in aid of on-site
farming or on-site construction for purposes other than
quarrying;
(4) Removal of overburden and of limited amounts of any mineral when done only for the purpose of prospecting and to the
extent necessary to determine the location, quantity or quality
of any natural deposit, if no minerals are sold, processed for
sale or consumed in the regular operation of business;
(5) The handling, processing or storage of minerals on the
premises of a manufacturer as a part of any manufacturing process
that requires sand or stone as a raw material;
(6) The extraction of minerals by a landowner for the
landowner's own noncommercial use from land owned or leased by
the landowner; or
(7) Quarry operations if the affected land does not exceed
one acre in area.
§22-4-32. Premining land use and post reclamation useful
purposes of land.
(a) The following is a partial list of primary land uses and
useful purposes of land to be applied in accordance with
subdivisions (2) and (3), subsection (b), section eight of this
article.
(1) Cropland;
(2) Fish and wildlife;
(3) Forest land;
(4) Industrial/commercial;
(5) Pasture land;
(6) Recreation;
(7) Residential;
(8) Permanent water impoundment;
(9) Vegetated open space; and
(10) Wetlands.
§22-4-33. Groundwater protection.
(a) Disturbances to the prevailing hydrologic balance of the
permit area and of the adjacent properties during the quarry
operation shall be minimized by:
(1) Compliance with applicable state and federal water laws
and regulations governing injury to existing water rights; and
(2) Compliance with applicable state and federal water quality
laws and regulations.
(b) Quarry activities shall be conducted so as to facilitate
restoration of the approximate prequarry recharge capacity
through the capability of the quarried area to transmit water to
the ground water system.
(c) The recharge capacity shall be restored to a condition
which:
(1) Supports the post reclamation land use;
(2) Minimizes disturbance to the prevailing hydrologic balance
of the quarried area; and
(3) Provides a rate of recharge that approximates the
prequarry recharge rate.
(d) Quarry excavations, fuel and oil storage areas and other
disturbances shall be constructed and utilized so as to prevent
or control discharge of acid, toxic or otherwise harmful mine
drainage waters into surface and groundwater systems and to
prevent adverse impacts on the surface and groundwater systems.
(e) Groundwater levels and quality shall be monitored to
determine the effects of quarry activities in the permit area and
adjacent lands.
(f) The monitoring data shall be submitted to the division on
a quarterly basis and shall continue through the life of the
permit or until the permittee demonstrates through the collected
data that:
(1) The operation has minimized disturbances of the hydrologic
balance on site and off site; water availability and quality are
suitable to support the proposed post reclamation land use, and
the water rights of other users have been protected or replaced.
(2) Monitoring is no longer necessary to achieve the purpose
of the monitoring plan.
(g) The director shall reduce the monitoring requirement to
once per year if the permittee submits twenty-four consecutive
monthly monitoring reports that show the discharges are lower
than the allowable permit standards.
(h) The director shall waive the monitoring requirements when
it is not feasible to determine prequarry ground water conditions because:
(1) Previous quarries within the permit area or adjacent area
have affected water quantity or quality;
(2) Deep mine underdrainage has resulted in an absence of
groundwater within the stratigraphic sequence of the quarrying
operation;
(3) A preexisting mining operation has affected groundwater
quantity or quality; or
(4) The location of the operation with respect to topographic
or stratigraphic constraints precludes the installation of an
effective monitoring system.
(i) The director shall waive the monitoring requirements if
there is a NPDES permit for the site that requires monitoring and
report keeping.
(j) Subsections (e), (f) and (g), section five, article twelve
of this chapter, of the West Virginia groundwater protection act,
relating to existing quality, deviations, water quality and
variances, do not apply to quarrying and earth disturbing
activities involved in quarrying that are subject to either or
both this article or article eleven of this chapter.
§22-4-34. Grandfather clause.
(a) Quarries that were permitted on or before the effective
date this article are not required to do the following:
(1) Backfilling or slope reduction unless the current permit requires such work;
(2) File a performance bond except that any areas, exceeding
five acres, that are added to the permit after the effective date
or a bond has already been filed with the division; and
(3) Groundwater protection monitoring required by section
thirty-three of this article if there has been no demonstratable
groundwater problems in the last five years.
(b) The exclusions in subdivisions (1), (2), and (3),
subsection (a) of this section are also applicable to quarries
that were permitted on or before the effective date of this
article and which are consolidated into one permit in accordance
with subdivision (2), subsection (c), section seven of this
article.
§22-4-35. Quarry reclamation fund.
(a) All funds received by the division from forfeiture of
bonds or reclamation security fund and fines collected upon a
conviction under sections fifteen and twenty-six of this article
shall be deposited to the credit of the state treasurer, in a
bank he or she designates.
(b) The deposits shall be maintained in a special account
known as the quarry reclamation fund.
(c) This fund shall be used by the division for reclamation of
abandoned quarries.
(1) The moneys in the fund derived from the performance bond and reclamation security fund forfeitures shall be used for the
reclamation of abandoned quarries that were permitted in
accordance with section seven of this article.
(2) The moneys in the fund derived from all sources other than
subdivision (1) above shall be used for the reclamation of
abandoned quarries that were not permitted.
(d) If the forfeiture of a performance bond or reclamation
security fund exceeds the cost of reclamation for which the
liability was charged the excess amount shall be deposited into
the quarry reclamation fund to be used for the reclamation of
abandoned quarries that were not permitted.
(e) Any interest accrued to the quarry reclamation fund shall
be deposited into that fund.
(f) Reclamation projects that are to be financed by the quarry
reclamation fund will be designed by the division.
(g) The quarry review board shall administer and approve all
expenditures from the quarry reclamation fund.
§22-4-36. Severability and savings clause.
(a) The provisions of this article are severable. If any of
the provisions of this article shall be held invalid, the
remaining provisions shall remain in full force and effect.
(b) This article shall not impair the existing rights of
citizens under common law or other statutes.
§22-4-37. Effective date.
This provisions of this article may not be enforced until the
rules in Title 38 CSR 2B are amended to comply with this article.
NOTE: The purpose of this bill is to provide for the
regulation of quarry mining and reclamation of minerals other
than coal. The division of environmental protection is charged
with the enforcement of this act.
Article four has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.