ENGROSSED
Senate Bill No. 520
(By Senators Love, Kimble and Bailey)
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[Introduced March 24, 1997; referred to the Committee
on Energy, Industry and Mining; and then to the Committee on
Finance.]
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A BILL to amend and reenact sections three, thirteen, fifteen,
seventeen, eighteen and twenty-eight, article three, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to surface coal
mining reclamation; definitions; compliance conference;
reinstatement of revoked permit; coal removal of existing
abandoned coal process waste piles under reclamation
contract; no cost reclamation contracts; coal extraction
under a government financed reclamation contract; and coal
extraction incidental to land development.
Be it enacted by the Legislature of West Virginia:
That sections three, thirteen, fifteen, seventeen, eighteen and twenty-eight, article three, chapter twenty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-3. Definitions.
As used in this article, unless used in a context that
clearly requires a different meaning, the term:
(a) "Adequate treatment" means treatment of water by
physical, chemical or other approved methods in a manner so that
the treated water does not violate the effluent limitations or
cause a violation of the water quality standards established for
the river, stream or drainway into which such water is released.
(b) "Affected area" means, when used in the context of
surface-mining activities, all land and water resources within
the permit area which are disturbed or utilized during the term
of the permit in the course of surface-mining and reclamation
activities. "Affected area" means, when used in the context of
underground mining activities, all surface land and water
resources affected during the term of the permit: (1) By surface
operations or facilities incident to underground mining
activities; or (2) by underground operations.
(c) "Adjacent areas" means, for the purpose of permit
application, renewal, revision, review and approval, those land and water resources, contiguous to or near a permit area, upon
which surface-mining and reclamation operations conducted within
a permit area during the life of such operations may have an
impact. "Adjacent areas" means, for the purpose of conducting
surface-mining and reclamation operations, those land and water
resources contiguous to or near the affected area upon which
surface-mining and reclamation operations conducted within a
permit area during the life of such operations may have an
impact.
(d) "Applicant" means any person who has or should have
applied for any permit pursuant to this article.
(e) "Approximate original contour" means that surface
configuration achieved by the backfilling and grading of the
disturbed areas so that the reclaimed area, including any
terracing or access roads, closely resembles the general surface
configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with
all highwalls and spoil piles eliminated: Provided, That water
impoundments may be permitted pursuant to subdivision (8),
subsection (b), section thirteen of this article: Provided,
however, That minor deviations may be permitted in order to
minimize erosion and sedimentation, retain moisture to assist
revegetation, or to direct surface runoff.
(f) "Assessment officer" means an employee of the division,
other than a surface-mining reclamation supervisor, inspector or
inspector-in-training, appointed by the director to issue
proposed penalty assessments and to conduct informal conferences
to review notices, orders and proposed penalty assessments.
(g) "Breakthrough" means the release of water which has been
trapped or impounded, or the release of air into any underground
cavity, pocket or area as a result of surface-mining operations.
(h) "Coal processing wastes" means earth materials which are
or have been combustible, physically unstable or acid-forming or
toxic-forming, which are wasted or otherwise separated from
product coal, and slurried or otherwise transported from coal
processing plants after physical or chemical processing, cleaning
or concentrating of coal.
(i) "Director" means the director of the division of
environmental protection or such other person to whom the
director has delegated authority or duties pursuant to section
sections six or eight, article one of this chapter.
(j) "Disturbed area" means an area where vegetation,
topsoil or overburden has been removed or placed by
surface-mining operations, and reclamation is incomplete.
(k) "Division" means the division of environmental
protection.
(l) "Imminent danger to the health or safety of the public" means the existence of such condition or practice, or any
violation of a permit or other requirement of this article, which
condition, practice or violation could reasonably be expected to
cause substantial physical harm or death to any person outside
the permit area before such condition, practice or violation can
be abated. A reasonable expectation of death or serious injury
before abatement exists if a rational person, subjected to the
same conditions or practices giving rise to the peril, would not
expose the person to the danger during the time necessary for
the abatement.
(m) "Minerals" means clay, coal, flagstone, gravel,
limestone, manganese, sand, sandstone, shale, iron ore and any
other metal or metallurgical ore.
(n) "Operation" means those activities conducted by an
operator who is subject to the jurisdiction of this article.
(o) "Operator" means any person who is granted or who
should obtain a permit to engage in any activity covered by this
article and any rule promulgated hereunder and includes any
person who engages in surface-mining or surface-mining and
reclamation operations, or both. The term shall also be
construed in a manner consistent with the federal program
pursuant to the federal Surface-Mining Control and Reclamation
Act of 1977, as amended.
(p) "Permit" means a permit to conduct surface-mining operations pursuant to this article.
(q) "Permit area" means the area of land indicated on the
approved proposal map submitted by the operator as part of the
operator's application showing the location of perimeter markers
and monuments and shall be readily identifiable by appropriate
markers on the site.
(r) "Permittee" means a person holding a permit issued under
this article.
(s) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity
or any agency, unit or instrumentality of federal, state or local
government.
(t) "Prime farmland" has the same meaning as that prescribed
by the United States secretary of agriculture on the basis of
such factors as moisture availability, temperature regime,
chemical balance, permeability, surface layer composition,
susceptibility to flooding and erosion characteristics, and which
historically have been used for intensive agricultural purposes
and as published in the federal register.
(u) "Surface mine", "surface-mining" or "surface-mining
operations" means:
(1) Activities conducted on the surface of lands for the
removal of coal, or, subject to the requirements of section
fourteen of this article, surface operations and surface impacts incident to an underground coal mine, including the drainage and
discharge therefrom. Such activities include: Excavation for
the purpose of obtaining coal, including, but not limited to,
such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit and area mining; the uses of
explosives and blasting; reclamation; in situ distillation or
retorting, leaching or other chemical or physical processing; the
cleaning, concentrating or other processing or preparation and
loading of coal for commercial purposes at or near the mine site;
and
(2) The areas upon which the above activities occur or
where such activities disturb the natural land surface. Such
areas shall also include any adjacent land, the use of which is
incidental to any such activities; all lands affected by the
construction of new roads or the improvement or use of existing
roads to gain access to the site of such activities and for
haulage; and excavations, workings, impoundments, dams,
ventilation shafts, entryways, refuse banks, dumps, stockpiles,
overburden piles, spoil banks, culm banks, tailings, holes or
depressions, repair areas, storage areas, processing areas,
shipping areas and other areas upon which are sited structures,
facilities, or other property or materials on the surface,
resulting from or incident to such activities: Provided, That such activities do not include the extraction of coal incidental
to the extraction of other minerals where coal does not exceed
sixteen and two-thirds percent of the tonnage of minerals removed
for purposes of commercial use or sale, or coal prospecting
subject to section seven of this article. Surface-mining may not
include any of the following:
(1) Coal extraction authorized pursuant to a
government-financed reclamation contract;
(2) Coal extraction authorized as an incidental part of
development of land for commercial, residential, industrial, or
civic use; or
(3) The reclamation of an abandoned or forfeited mine by a
no cost reclamation contract.
(v) "Underground mine" means the surface effects associated
with the shaft, slopes, drifts or inclines connected with
excavations penetrating coal seams or strata and the equipment
connected therewith which contribute directly or indirectly to
the mining, preparation or handling of coal.
(w) "Significant, imminent environmental harm to land, air
or water resources" means the existence of any condition or
practice, or any violation of a permit or other requirement of
this article, which condition, practice or violation could
reasonably be expected to cause significant and imminent
environmental harm to land, air or water resources. The term "environmental harm" means any adverse impact on land, air or
water resources, including, but not limited to, plant, wildlife
and fish, and the environmental harm is imminent if a condition
or practice exists which is causing such harm or may reasonably
be expected to cause such harm at any time before the end of the
abatement time set by the director. An environmental harm is
significant if that harm is appreciable and not immediately
repairable.
(x) "Unanticipated event or condition" as used in section
eighteen of this article means an event or condition in a
remining operation that was not contemplated by the applicable
surface coal mining and reclamation permit.
(y) "Lands eligible for remining" means those lands that
would be eligible for expenditures under section four, article
two of this chapter. Surface-mining operations on lands eligible
for remining may not affect the eligibility of such lands for
reclamation and restoration under article two of this chapter.
In event the bond or deposit for lands eligible for remining is
forfeited, funds available under article two of this chapter may
be used to provide for adequate or abatement, except that if
conditions constitute an emergency as provided in section 410 of
the federal Surface-Mining Control and Reclamation Act of 1977,
as amended.
(z)"Replacement of water supply" means with respect to water supplies contaminated, diminished, or interrupted, provision of
water supply on both a temporary and permanent basis of
equivalent quality and quantity. Replacement includes provision
of an equivalent water delivery system and payment of operation
and maintenance cost in excess of customary and reasonable
delivery cost for the replaced water supplies.
Upon agreement by the permittee and the water supply owner,
the obligation to pay such costs may be satisfied by a one-time
payment in an amount which covers the present annual operation
and maintenance costs for a period agreed to by the permittee and
the water supply owner.
§22-3-13. General environmental protection performance standards
for surface-mining; variances.
(a) Any permit issued by the director pursuant to this
article to conduct surface-mining operations shall require that
such the surface-mining operations will meet all applicable
performance standards of this article and other requirements as
the director promulgates.
(b) The following general performance standards are
applicable to all surface mines and require the operation, at
a minimum to:
(1) Maximize the utilization and conservation of the solid
fuel resource being recovered to minimize reaffecting the land in the future through surface-mining;
(2) Restore the land affected to a condition capable of
supporting the uses which it was capable of supporting prior to
any mining, or higher or better uses of which there is reasonable
likelihood so long as the use or uses do not present any actual
or probable hazard to public health or safety or pose any actual
or probable threat of water diminution or pollution, and the
permit applicants' declared proposed land use following
reclamation is not deemed to be impractical or unreasonable,
inconsistent with applicable land use policies and plans,
involves unreasonable delay in implementation, or is violative of
federal, state or local law;
(3) Except as provided in subsection (c) of this section,
with respect to all surface mines, backfill, compact where
advisable to ensure stability or to prevent leaching of toxic
materials, and grade in order to restore the approximate original
contour: Provided, That in surface-mining which is carried out
at the same location over a substantial period of time where the
operation transects the coal deposit, and the thickness of the
coal deposits relative to the volume of the overburden is large
and where the operator demonstrates that the overburden and other
spoil and waste materials at a particular point in the permit
area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion,
to restore the approximate original contour, the operator, at a
minimum, shall backfill, grade and compact, where advisable,
using all available overburden and other spoil and waste
materials to attain the lowest practicable grade, but not more
than the angle of repose, to provide adequate drainage and to
cover all acid-forming and other toxic materials, in order to
achieve an ecologically sound land use compatible with the
surrounding region: Provided, however, That in surface-mining
where the volume of overburden is large relative to the thickness
of the coal deposit and where the operator demonstrates that due
to volumetric expansion the amount of overburden and other spoil
and waste materials removed in the course of the mining operation
is more than sufficient to restore the approximate original
contour, the operator shall, after restoring the approximate
contour, backfill, grade and compact, where advisable, the excess
overburden and other spoil and waste materials to attain the
lowest grade, but not more than the angle of repose, and to cover
all acid-forming and other toxic materials, in order to achieve
an ecologically sound land use compatible with the surrounding
region and, such the overburden or spoil shall be shaped and
graded in such a way as to prevent slides, erosion and water
pollution and is revegetated in accordance with the requirements of this article: Provided further, That the director shall
promulgate rules governing variances to the requirements for
return to approximate original contour or highwall elimination
and where adequate material is not available from surface-mining
operations permitted after the effective date of this article
for: (A) Underground mining operations existing prior to the
third day of August, one thousand nine hundred seventy-seven; or
(B) for areas upon which surface-mining prior to the first day of
July, one thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil
piles, affected by the surface-mining operation to effectively
control erosion and attendant air and water pollution;
(5) Remove the topsoil from the land in a separate layer,
replace it on the backfill area, or if not utilized immediately,
segregate it in a separate pile from other spoil and, when the
topsoil is not replaced on a backfill area within a time short
enough to avoid deterioration of the topsoil, maintain a
successful vegetative cover by quick growing plants or by other
similar means in order to protect topsoil from wind and water
erosion and keep it free of any contamination by other acid or
toxic material: Provided, That if topsoil is of insufficient
quantity or of poor quality for sustaining vegetation, or if
other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate and
preserve in a like manner such other strata which is best able to
support vegetation;
(6) Restore the topsoil or the best available subsoil which
is best able to support vegetation;
(7) Ensure that all prime farmlands are mined and reclaimed
in accordance with the specifications for soil removal, storage,
replacement and reconstruction established by the United States
secretary of agriculture and the soil conservation service
pertaining thereto. The operator, at a minimum, shall be
required to: (A) Segregate the A horizon of the natural soil,
except where it can be shown that other available soil materials
will create a final soil having a greater productive capacity,
and if not utilized immediately, stockpile this material
separately from other spoil, and provide needed protection from
wind and water erosion or contamination by other acid or toxic
material; (B) segregate the B horizon of the natural soil, or
underlying C horizons or other strata, or a combination of such
horizons or other strata that are shown to be both texturally and
chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in
sufficient quantities to create in the regraded final soil a root
zone of comparable depth and quality to that which existed in the
natural soil, and if not utilized immediately, stockpile this material separately from other spoil and provide needed
protection from wind and water erosion or contamination by other
acid or toxic material; (C) replace and regrade the root zone
material described in subparagraph (B) above with proper
compaction and uniform depth over the regraded spoil material;
and (D) redistribute and grade in a uniform manner the surface
soil horizon described in subparagraph (A) above;
(8) Create, if authorized in the approved surface-mining and
reclamation plan and permit, permanent impoundments of water on
mining sites as part of reclamation activities in accordance with
rules promulgated by the director;
(9) Where augering is the method of recovery, seal all auger
holes with an impervious and noncombustible material in order to
prevent drainage except where the director determines that the
resulting impoundment of water in such auger holes may create a
hazard to the environment or the public welfare and safety:
Provided, That the director may prohibit augering if necessary
to maximize the utilization, recoverability or conservation of
the mineral resources or to protect against adverse water quality
impacts;
(10) Minimize the disturbances to the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quality and quantity of water in surface and groundwater systems both during and after surface-mining operations and
during reclamation by: (A) Avoiding acid or other toxic mine
drainage by such measures as, but not limited to: (i) Preventing
or removing water from contact with toxic producing deposits;
(ii) treating drainage to reduce toxic content which adversely
affects downstream water upon being released to water courses;
and (iii) casing, sealing or otherwise managing boreholes, shafts
and wells and keep acid or other toxic drainage from entering
ground and surface waters; (B) conducting surface-mining
operations so as to prevent to the extent possible, using the
best technology currently available, additional contributions of
suspended solids to streamflow or runoff outside the permit area,
but in no event shall contributions be in excess of requirements
set by applicable state or federal law; (C) constructing an
approved drainage system pursuant to subparagraph (B) of this
subdivision prior to commencement of surface-mining operations,
such system to be certified by a person approved by the director
to be constructed as designed and as approved in the reclamation
plan; (D) avoiding channel deepening or enlargement in operations
requiring the discharge of water from mines; (E) unless otherwise
authorized by the director, cleaning out and removing temporary
or large settling ponds or other siltation structures after
disturbed areas are revegetated and stabilized, and depositing
the silt and debris at a site and in a manner approved by the director; (F) restoring recharge capacity of the mined area to
approximate premining conditions; and (G) such other actions as
the director may prescribe;
(11) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine working excavations, stabilize all waste piles in
designated areas through construction in compacted layers,
including the use of noncombustible and impervious materials if
necessary, and assure the final contour of the waste pile will be
compatible with natural surroundings and that the site will be
stabilized and revegetated according to the provisions of this
article;
(12) Design, locate, construct, operate, maintain, enlarge,
modify and remove or abandon, in accordance with standards and
criteria developed pursuant to subsection (f) of this section,
all existing and new coal mine waste piles consisting of mine
wastes, tailings, coal processing wastes or other liquid and
solid wastes, and used either temporarily or permanently as dams
or embankments;
(13) Refrain from surface-mining within five hundred feet of
any active and abandoned underground mines in order to prevent
breakthroughs and to protect health or safety of miners:
Provided, That the director shall permit an operator to mine near, through or partially through an abandoned underground mine
or closer to an active underground mine if: (A) The nature,
timing and sequencing of the approximate coincidence of specific
surface mine activities with specific underground mine activities
are coordinated jointly by the operators involved and approved by
the director; and (B) such operations will result in improved
resource recovery, abatement of water pollution or elimination of
hazards to the health and safety of the public: Provided,
however, That any breakthrough which does occur shall be sealed;
(14) Ensure that all debris, acid-forming materials, toxic
materials or materials constituting a fire hazard are treated or
buried and compacted, or otherwise disposed of in a manner
designed to prevent contamination of ground or surface waters,
and that contingency plans are developed to prevent sustained
combustion: Provided, That the operator shall remove or bury all
metal, lumber, equipment and other debris resulting from the
operation before grading release;
(15) Ensure that explosives are used only in accordance with
existing state and federal law and the rules promulgated by the
director, which shall include provisions to: (A) Provide
adequate advance written notice to local governments and
residents who might be affected by the use of the explosives by
publication of the planned blasting schedule in a newspaper of general circulation in the locality and by mailing a copy of the
proposed blasting schedule to every resident living within
one-half mile of the proposed blasting site: Provided, That this
notice shall suffice as daily notice to residents or occupants of
the areas; (B) maintain for a period of at least three years and
make available for public inspection, upon written request, a log
detailing the location of the blasts, the pattern and depth of
the drill holes, the amount of explosives used per hole and the
order and length of delay in the blasts; (C) limit the type of
explosives and detonating equipment, the size, the timing and
frequency of blasts based upon the physical conditions of the
site so as to prevent: (i) Injury to persons; (ii) damage to
public and private property outside the permit area; (iii)
adverse impacts on any underground mine; and (iv) change in the
course, channel or availability of ground or surface water
outside the permit area; (D) require that all blasting operations
be conducted by persons certified by the director; and (E)
provide that upon written request of a resident or owner of a
man-made dwelling or structure within one-half mile of any
portion of the permit area, the applicant or permittee shall
conduct a preblasting survey or other appropriate investigation
of the structures and submit the results to the director and a
copy to the resident or owner making the request. The area of the survey shall be determined by the director in accordance
with rules promulgated by him or her;
(16) Ensure that all reclamation efforts proceed in an
environmentally sound manner and as contemporaneously as
practicable with the surface-mining operations. Time limits
shall be established by the director requiring backfilling,
grading and planting to be kept current: Provided, That where
surface-mining operations and underground mining operations are
proposed on the same area, which operations must be conducted
under separate permits, the director may grant a variance from
the requirement that reclamation efforts proceed as
contemporaneously as practicable to permit underground mining
operations prior to reclamation:
(A) If the director finds in writing that:
(i) The applicant has presented, as part of the permit
application, specific, feasible plans for the proposed
underground mining operations;
(ii) The proposed underground mining operations are
necessary or desirable to assure maximum practical recovery of
the mineral resource and will avoid multiple disturbance of the
surface;
(iii) The applicant has satisfactorily demonstrated that the
plan for the underground mining operations conforms to requirements for underground mining in the jurisdiction and that
permits necessary for the underground mining operations have been
issued by the appropriate authority;
(iv) The areas proposed for the variance have been shown by
the applicant to be necessary for the implementing of the
proposed underground mining operations;
(v) No substantial adverse environmental damage, either
on-site or off-site, will result from the delay in completion of
reclamation as required by this article; and
(vi) Provisions for the off-site storage of spoil will
comply with subdivision (22), subsection (b) of this section;
(B) If the director has promulgated specific rules to
govern the granting of such variances in accordance with the
provisions of this subparagraph and has imposed such additional
requirements as the director deems necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the director not more than three years
from the date of issuance of the permit: Provided, That the
underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the
permit was issued, unless extended as set forth in subdivision
(3), section eight of this article; and
(D) If liability under the bond filed by the applicant with the director pursuant to subsection (b), section eleven of this
article is for the duration of the underground mining operations
and until the requirements of subsection (g), section eleven and
section twenty-three of this article have been fully complied
with.
(17) Ensure that the construction, maintenance and
postmining conditions of access and haulroads into and across the
site of operations will control or prevent erosion and siltation,
pollution of water, damage to fish or wildlife or their habitat,
or public or private property: Provided, That access roads
constructed for and used to provide infrequent service to surface
facilities, such as ventilators or monitoring devices, are
exempt from specific construction criteria provided adequate
stabilization to control erosion is achieved through alternative
measures;
(18) Refrain from the construction of roads or other access
ways up a stream bed or drainage channel or in proximity to the
channel so as to significantly alter the normal flow of water;
(19) Establish on the regraded areas, and all other lands
affected, a diverse, effective and permanent vegetative cover of
the same seasonal variety native to the area of land to be
affected or of a fruit, grape or berry producing variety suitable
for human consumption and capable of self-regeneration and plant succession at least equal in extent of cover to the natural
vegetation of the area, except that introduced species may be
used in the revegetation process where desirable or when
necessary to achieve the approved postmining land use plan;
(20) Assume the responsibility for successful revegetation,
as required by subdivision (19) of this subsection, for a period
of not less than five growing seasons, as defined by the,
director after the last year of augmented seeding, fertilizing,
irrigation or other work in order to assure compliance with
subdivision (19) of this subsection: Provided, That when the
director issues a written finding approving a long-term
agricultural postmining land use as a part of the mining and
reclamation plan, the director may grant exception to the
provisions of subdivision (19) of this subsection: Provided,
however, That when the director approves an agricultural
postmining land use, the applicable five growing seasons of
responsibility for revegetation begins on the date of initial
planting for such agricultural postmining land use;
On lands eligible for remining assume the responsibility for
successful revegetation, as required by subdivision (19) of this
subsection, for a period of not less than two growing seasons, as
defined by the director after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance with subdivision (19) of this subsection.
(21) Protect off-site areas from slides or damage occurring
during surface-mining operations and not deposit spoil material
or locate any part of the operations or waste accumulations
outside the permit area: Provided, That spoil material may be
placed outside the permit area, if approved by the director
after a finding that environmental benefits will result from
such;
(22) Place all excess spoil material resulting from surface- mining activities in such a manner that: (A) Spoil is
transported and placed in a controlled manner in position for
concurrent compaction and in a way as to assure mass stability
and to prevent mass movement; (B) the areas of disposal are
within the bonded permit areas and all organic matter is removed
immediately prior to spoil placements; (C) appropriate surface
and internal drainage system or diversion ditches are used to
prevent spoil erosion and movement; (D) the disposal area does
not contain springs, natural water courses or wet weather seeps,
unless lateral drains are constructed from the wet areas to the
main underdrains in a manner that filtration of the water into
the spoil pile will be prevented; (E) if placed on a slope, the
spoil is placed upon the most moderate slope among those upon
which, in the judgment of the director, the spoil could be placed in compliance with all the requirements of this article, and is
placed, where possible, upon, or above, a natural terrace, bench
or berm, if placement provides additional stability and prevents
mass movement; (F) where the toe of the spoil rests on a
downslope, a rock toe buttress, of sufficient size to prevent
mass movement, is constructed; (G) the final configuration is
compatible with the natural drainage pattern and surroundings and
suitable for intended uses; (H) design of the spoil disposal area
is certified by a qualified registered professional engineer in
conformance with professional standards; and (I) all other
provisions of this article are met: Provided, That where the
excess spoil material consists of at least eighty percent, by
volume, sandstone, limestone or other rocks that do not slake in
water and will not degrade to soil material, the director may
approve alternate methods for disposal of excess spoil material,
including fill placement by dumping in a single lift, on a site
specific basis: Provided, however, That the services of a
qualified registered professional engineer experienced in the
design and construction of earth and rockfill embankment are
utilized: Provided further, That such approval shall may not be
unreasonably withheld if the site is suitable;
(23) Meet such other criteria as are necessary to achieve
reclamation in accordance with the purposes of this article, taking into consideration the physical, climatological and other
characteristics of the site;
(24) To the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife and related environmental values,
and achieve enhancement of these resources where practicable; and
(25) Retain a natural barrier to inhibit slides and erosion
on permit areas where outcrop barriers are required: Provided,
That constructed barriers may be allowed where: (A) Natural
barriers do not provide adequate stability; (B) natural barriers
would result in potential future water quality deterioration; and
(C) natural barriers would conflict with the goal of maximum
utilization of the mineral resource: Provided, however, That at
a minimum, the constructed barrier must be of sufficient width
and height to provide adequate stability and the stability factor
must equal or exceed that of the natural outcrop barrier:
Provided further, That where water quality is paramount, the
constructed barrier must be composed of impervious material with
controlled discharge points.
(c) (1) The director may prescribe procedures pursuant to
which he or she may permit surface-mining operations for the
purposes set forth in subdivision (3) of this subsection.
(2) Where an applicant meets the requirements of subdivisions (3) and (4) of this subsection, a permit without
regard to the requirement to restore to approximate original
contour set forth in subsection (b) or (d) of this section may be
granted for the surface-mining of coal where the mining operation
will remove an entire coal seam or seams running through the
upper fraction of a mountain, ridge or hill, except as provided
in subparagraph (A), subdivision (4) of this subsection, by
removing all of the overburden and creating a level plateau or a
gently rolling contour with no highwalls remaining, and capable
of supporting postmining uses in accordance with the requirements
of this subsection.
(3) In cases where an industrial, commercial, woodland,
agricultural, residential, or public or fish and wildlife habitat
and recreation lands use is proposed for the postmining use of
the affected land, the director may grant a permit for a
surface-mining operation of the nature described in subdivision
(2) of this subsection where: (A) The proposed postmining land
use is deemed to constitute an equal or better use of the
affected land, as compared with premining use; (B) the applicant
presents specific plans for the proposed postmining land use and
appropriate assurances that the use will be: (i) Compatible with
adjacent land uses; (ii) practicable with respect to achieving
the proposed use; (iii) supported by commitments from public
agencies where appropriate; (iv) practicable with respect to private financial capability for completion of the proposed use;
(v) planned pursuant to a schedule attached to the reclamation
plan so as to integrate the mining operation and reclamation with
the postmining land use; and (vi) designed by a person approved
by the director in conformance with standards established to
assure the stability, drainage and configuration necessary for
the intended use of the site; (C) the proposed use would be
compatible with adjacent land uses, and existing state and local
land use plans and programs; (D) the director provides the
county commission of the county in which the land is located and
any state or federal agency which the , director in his or her
discretion, determines to have an interest in the proposed use,
an opportunity of not more than sixty days to review and comment
on the proposed use; and (E) all other requirements of this
article will be met.
(4) In granting any permit pursuant to this subsection, the
director shall require that: (A) A natural barrier be retained
to inhibit slides and erosion on permit areas where outcrop
barriers are required: Provided, That constructed barriers may
be allowed where: (i) Natural barriers do not provide adequate
stability; (ii) natural barriers would result in potential future
water quality deterioration; and (iii) natural barriers would
conflict with the goal of maximum utilization of the mineral resource: Provided, however, That, at a minimum, the constructed
barrier must be sufficient width and height to provide adequate
stability and the stability factor must equal or exceed that of
the natural outcrop barrier: Provided further, That where water
quality is paramount, the constructed barrier must be composed of
impervious material with controlled discharge points; (B) the
reclaimed area is stable; (C) the resulting plateau or rolling
contour drains inward from the outslopes except at specific
points; (D) no damage will be done to natural watercourses; (E)
spoil will be placed on the mountaintop bench as is necessary to
achieve the planned postmining land use: And provided further,
That all excess spoil material not retained on the mountaintop
shall be placed in accordance with the provisions of subdivision
(22), subsection (b) of this section; and (F) ensure stability of
the spoil retained on the mountaintop and meet the other
requirements of this article.
(5) All permits granted under the provisions of this
subsection shall be reviewed not more than three years from the
date of issuance of the permit; unless the applicant
affirmatively demonstrates that the proposed development is
proceeding in accordance with the terms of the approved schedule
and reclamation plan.
(d) In addition to those general performance standards required by this section, when surface-mining occurs on slopes of
twenty degrees or greater, or on such lesser slopes as may be
defined by rule after consideration of soil and climate, no
debris, abandoned or disabled equipment, spoil material or waste
mineral matter will be placed on the natural downslope below the
initial bench or mining cut: Provided, That soil or spoil
material from the initial cut of earth in a new surface-mining
operation may be placed on a limited specified area of the
downslope below the initial cut if the permittee can establish to
the satisfaction of the director that the soil or spoil will not
slide and that the other requirements of this section can still
be met.
(e) The director may promulgate rules that permit variances
from the approximate original contour requirements of this
section: Provided, That the watershed control of the area is
improved: Provided, however, That complete backfilling with
spoil material is required to completely cover the highwall,
which material will maintain stability following mining and
reclamation.
(f) The director shall promulgate rules for the design,
location, construction, maintenance, operation, enlargement,
modification, removal and abandonment of new and existing coal
mine waste piles. In addition to engineering and other technical specifications, the standards and criteria developed pursuant to
this subsection must include provisions for review and approval
of plans and specifications prior to construction, enlargement,
modification, removal or abandonment; performance of periodic
inspections during construction; issuance of certificates of
approval upon completion of construction; performance of periodic
safety inspections; and issuance of notices and orders for
required remedial or maintenance work or affirmative action:
Provided, That whenever the director finds that any coal
processing waste pile constitutes an imminent danger to human
life, he or she may, in addition to all other remedies and
without the necessity of obtaining the permission of any person
prior or present who operated or operates a pile or the
landowners involved, enter upon the premises where any such coal
processing waste pile exists and may take or order to be taken
such remedial action as may be necessary or expedient to secure
the coal processing waste pile and to abate the conditions which
cause the danger to human life: Provided, however, That the cost
reasonably incurred in any remedial action taken by the director
under this subsection may be paid for initially by funds
appropriated to the division for these purposes, and the sums so
expended shall be recovered from any responsible operator or
landowner, individually or jointly, by suit initiated by the attorney general at the request of the director. For purposes
of this subsection "operates" or "operated" means to enter upon
a coal processing waste pile, or part thereof, for the purpose of
disposing, depositing, dumping coal processing wastes thereon or
removing coal processing waste therefrom, or to employ a coal
processing waste pile for retarding the flow of or for the
impoundment of water.
§22-3-15. Inspections; monitoring; right of entry; inspection
of records; identification signs; progress maps.
(a) The director shall cause to be made such inspections of
surface-mining operations as are necessary to effectively enforce
the requirements of this article and for such purposes the
director or his or her authorized representative 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 any records required to be
maintained under subdivision (1), subsection (b) of this section
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.
(b) For the purpose of enforcement under this article, in
the administration and enforcement of any permit under this
article, or for determining whether any person is in violation of any requirement of this article:
(1) The commissioner director shall, at a minimum, require
any operator to: (A) Establish and maintain appropriate records;
(B) make monthly reports to the division; (C) install, use and
maintain any necessary monitoring equipment or methods consistent
with subdivision (11), subsection (a), section nine of this
article; (D) evaluate results in accordance with such methods, at
such locations, intervals and in such manner as the director
prescribes; and (E) provide such any other information relative
to surface-mining operations as the director finds reasonable
and necessary; and
(2) 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 director shall require that: (A) 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; (B) 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; (C) records or well logs and
borehole data be maintained; and (D) 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.
(c) All surface-mining operations shall be inspected at
least once every thirty days. Such The inspections shall be made
on an irregular basis without prior notice to the operator or
the operator's agents or employees, except for necessary on-site
meetings with the operator. The inspections shall include the
filing of inspection reports adequate to enforce the
requirements, terms and purposes of this article.
(d) Each permittee shall maintain at the entrances to the
surface-mining operations a clearly visible monument which sets
forth the name, business address and telephone number of the
permittee and the permit number of the surface-mining operations.
(e) Copies of any records, reports, inspection materials or
information obtained under this article by the director shall be
made immediately available to the public at central and
sufficient locations in the county, multicounty or state area of
mining so that they are conveniently available to residents in
the areas of mining unless specifically exempted by this article.
(f) Within thirty days after service of a copy of an order
of the director upon an operator by registered or certified
mail, the operator shall furnish to the director five copies of
a progress map prepared by or under the supervision of a person
approved by the director showing the disturbed area to the date of such map. Such progress map shall contain information
identical to that required for both the proposed and final maps
required by this article, and shall show in detail completed
reclamation work as required by the director. Such progress map
shall include a geologic survey sketch showing the location of
the operation, shall be properly referenced to a permanent
landmark, and shall be within such reasonable degree of accuracy
as may be prescribed by the director. If no land has been
disturbed by operations during the preceding year, the operator
shall notify the director of that fact.
(g) Whenever on the basis of available information,
including reliable information from any person, the director has
cause to believe that any person is in violation of this article,
any permit condition or any rule promulgated under this article,
the director shall immediately order state inspection of the
surface-mining operation at which the alleged violation is
occurring unless the information is available as a result of a
prior state inspection. The director shall notify any person who
supplied such reliable information when the state inspection will
be carried out. Such person may accompany the inspector during
the inspection.
(h) When requested by the permittee, the director may
provide for a compliance conference with his or her authorized
representative to review the compliance status of any coal exploration or surface-coal mining and reclamation operation.
Any such conference may not constitute an inspection as defined
in this section.
§22-3-17. Notice of violation; procedure and actions;
enforcement; permit revocation and bond forfeiture;
civil and criminal penalties; appeals to the board;
prosecution; injunctive relief.
(a) If any of the requirements of this article, rules
promulgated pursuant thereto or permit conditions have not been
complied with, the director shall cause a notice of violation to
be served upon the operator or the operator's duly authorized
agent. A copy of the notice shall be handed to the operator or
the operator's duly authorized agent in person or served by
certified mail addressed to the operator at the permanent address
shown on the application for a permit. The notice shall specify
in what respects the operator has failed to comply with this
article, rules or permit conditions and shall specify a
reasonable time for abatement of the violation not to exceed
thirty days. If the operator has not abated the violation within
the time specified in the notice, or any reasonable extension
thereof, not to exceed sixty days, the director shall order the
cessation of the operation or the portion thereof causing the
violation, unless the operator affirmatively demonstrates that compliance is unattainable due to conditions totally beyond the
control of the operator. If a violation is not abated within the
time specified or any extension thereof, or any cessation order
is issued, a mandatory civil penalty of not less than seven
hundred fifty dollars per day per violation shall be assessed.
A cessation order remains in effect until the director
determines that the violation has been abated or until modified,
vacated or terminated by the director or by a court. In any
cessation order issued under this subsection, the director shall
determine the steps necessary to abate the violation in the most
expeditious manner possible and shall include the necessary
measures in the order.
(b) If the director determines that a pattern of violations
of any requirement of this article or any permit condition exists
or has existed, as a result of the operator's lack of reasonable
care and diligence, or that the violations are willfully caused
by the operator, the director shall immediately issue an order
directing the operator to show cause why the permit should not be
suspended or revoked and giving the operator thirty days in which
to request a public hearing. If a hearing is requested, the
director shall inform all interested parties of the time and
place of the hearing. Any hearing under this section shall be
recorded and is subject to the provisions of chapter
twenty-nine-a of this code. Within sixty days following the public hearing, the director shall issue and furnish to the
permittee and all other parties to the hearing a written
decision, and the reasons therefor, concerning suspension or
revocation of the permit. Upon the operator's failure to show
cause why the permit should not be suspended or revoked, the
director shall immediately suspend or revoke the operator's
permit. If the permit is revoked, the director shall initiate
procedures in accordance with rules promulgated by the director
to forfeit the entire amount of the operator's bond, or other
security posted pursuant to sections eleven or twelve of this
article, and give notice to the attorney general, who shall
collect the forfeiture without delay: Provided, That the entire
proceeds of such forfeiture shall be deposited with the treasurer
of the state of West Virginia to the credit of the special
reclamation fund. All forfeitures collected shall be deposited
in the special reclamation fund and shall be expended back upon
the areas for which the bond was posted: Provided, however, That
any excess therefrom shall remain in the special reclamation
fund.
Within one year following the notice of permit revocation,
subject to the discretion of the director and based upon a
petition for reinstatement, the revoked permit may be reinstated.
The reinstated permit may be assigned to any person who meets the permit eligibility requirements of this article.
(c) 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 may not exceed
five thousand dollars. Each day of continuing violation may be
deemed a separate violation for purposes of penalty assessments.
In determining the amount of the penalty, consideration shall be
given to the operator's history of previous violations at the
particular surface-mining operation, the seriousness of the
violation, including any irreparable harm to the environment and
any hazard to the health or safety of the public, whether the
operator was negligent, and the demonstrated good faith of the
operator charged in attempting to achieve rapid compliance after
notification of the violation.
(d) (1) Upon the issuance of a notice or order pursuant to
this section, the assessment officer shall, within thirty days,
set a proposed penalty assessment and notify the operator in
writing of such proposed penalty assessment. The proposed
penalty assessment must be paid in full within thirty days 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 surface mine board 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 has 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 has 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 director
for placement in an escrow account. Formal hearings shall be of
record and subject to the provisions of article five, chapter
twenty-nine-a of this code. Following the hearing the board
shall affirm, modify or vacate the notice, order or proposed
penalty assessment and, when appropriate, incorporate an
assessment order requiring that the assessment be paid.
(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
special reclamation fund established in section eleven 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 is a waiver of all legal rights to
contest the violation or the amount of the penalty.
(e) Any person having an interest which is or may be
adversely affected by any order of the director or the surface
mine board may file an appeal only in accordance with the
provisions of article one, chapter twenty-two-b of this code,
within thirty days after receipt of the order.
(f) The filing of an appeal or a request for an informal
conference or formal hearing provided for in this section does
not stay execution of the order appealed from. Pending
completion of the investigation and conference or hearing
required by this section, the applicant may file with the
director a written request that the director grant temporary
relief from any notice or order issued under section sixteen or
seventeen 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 five days of its receipt. The director may grant
such relief, under such conditions as he or she may prescribe if:
(1) All parties to the proceedings have been notified and
given an opportunity to be heard on a request for temporary
relief;
(2) The person requesting the relief shows that there is a
substantial likelihood that they will prevail on the merits in
the final determination of the proceedings;
(3) The relief will not adversely affect the public health
or safety or cause significant imminent environmental harm to
land, air or water resources; and
(4) The relief sought is not the issuance of a permit where
a permit has been denied, in whole or in part, by the director.
(g) Any person who willfully and knowingly violates a
condition of a permit issued pursuant to this article or rules
promulgated pursuant thereto, or fails or refuses to comply with
any order issued under said article and rules or any order
incorporated in a final decision issued by the director, is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than one hundred dollars nor more than ten
thousand dollars, or imprisoned in the county jail not more than
one year, or both fined and imprisoned.
(h) Whenever a corporate operator violates a condition of a
permit issued pursuant to this article, rules promulgated
pursuant thereto, or any order incorporated in a final decision
issued by the director, any director, officer or agent of the
corporation who willfully and knowingly authorized, ordered or
carried out the failure or refusal, is subject to the same civil
penalties, fines and imprisonment that may be imposed upon a
person under subsections (c) and (g) of this section.
(i) Any person who knowingly makes any false statement,
representation or certification, or knowingly fails to make any
statement, representation or certification in any application,
petition, record, report, plan or other document filed or
required to be maintained pursuant to this article or rules
promulgated pursuant thereto, is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than ten thousand dollars, or imprisoned in the
county jail not more than one year, or both fined and imprisoned.
(j) Whenever any person: (A) Violates or fails or refuses
to comply with any order or decision issued by the director
under this article; or (B) interferes with, hinders or delays the
director in carrying out the provisions of this article; or (C)
refuses to admit the director to the mine; or (D) refuses to
permit inspection of the mine by the director; or (E) refuses to
furnish any reasonable information or report requested by the director in furtherance of the provisions of this article; or (F)
refuses to permit access to, and copying of, such records as the
director determines necessary in carrying out the provisions of
this article; or (G) violates any other provisions of this
article, the rules promulgated pursuant thereto, or the terms
and conditions of any permit, the director, the attorney general
or the prosecuting attorney of the county in which the major
portion of the permit area is located may institute a civil
action for relief, including a permanent or temporary injunction,
restraining order or any other appropriate order, in the circuit
court of Kanawha County or any court of competent jurisdiction to
compel compliance with and enjoin such violations, failures or
refusals. The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.
(k) Any person who shall, except as permitted by law,
willfully resists, prevents, impedes or interferes with the
director or any of his or her agents in the performance of duties
pursuant to this article is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not more than
five thousand dollars or by imprisonment for not more than one
year, or both.
§22-3-18. Approval, denial, revision and prohibition of permit.
(a) Upon the receipt of a complete surface-mining
application or significant revision or renewal thereof, including
public notification and an opportunity for a public hearing, the
director shall grant, require revision of, or deny the
application for a permit within sixty days and notify the
applicant in writing of the decision. The applicant for a
permit, or revision of a permit, has the burden of establishing
that the application is in compliance with all the requirements
of this article and the rules promulgated hereunder.
(b) No permit or significant revision of a permit may be
approved unless the applicant affirmatively demonstrates and the
director finds in writing on the basis of the information set
forth in the application or from information otherwise available
which shall be documented in the approval and made available to
the applicant that:
(1) The permit application is accurate and complete and that
all the requirements of this article and rules thereunder have
been complied with;
(2) The applicant has demonstrated that reclamation as
required by this article can be accomplished under the
reclamation plan contained in the permit application;
(3) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, as
specified in section nine of this article, has been made by the
director and the proposed operation has been designed to prevent
material damage to the hydrologic balance outside the permit
area;
(4) The area proposed to be mined is not included within an
area designated unsuitable for surface-mining pursuant to section
twenty-two of this article or is not within an area under
administrative study by the director for such designation; and
(5) In cases where the private mineral estate has been
severed from the private surface estate, the applicant has
submitted: (A) The written consent of the surface owner to the
extraction of coal by surface-mining; or (B) a conveyance that
expressly grants or reserves the right to extract the coal by
surface-mining; or (C) if the conveyance does not expressly grant
the right to extract coal by surface-mining, the surface
subsurface legal relationship shall be determined in accordance
with applicable law: Provided, That nothing in this article
shall be construed to authorize the director to adjudicate
property rights disputes.
(c) Where information available to the division indicates
that any surface-mining operation owned or controlled by the
applicant is currently in violation of this article or other environmental laws or rules, the permit shall may not be issued
until the applicant submits proof that such violation has been
corrected or is in the process of being corrected to the
satisfaction of the director or the department or agency which
has jurisdiction over the violation, and no permit may be issued
to any applicant after a finding by the director, after an
opportunity for hearing, that the applicant or the operator
specified in the application controls or has controlled mining
operations with a demonstrated pattern of willful violations of
this article or of other state or federal programs implementing
the federal Surface-mining Control and Reclamation Act of 1977,
as amended, of such nature and duration with such irreparable
damage to the environment as to indicate an intent not to comply
with the provisions of this article or the federal Surface-mining
Control and Reclamation Act of 1977, as amended: Provided, That
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 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 may not issue a permit to
the applicant: Provided, however, That subject to the discretion
of the director and based upon a petition for reinstatement, permits may be issued to any applicant if: (1) After the
revocation or forfeiture, the operator whose permit has been
revoked or bond forfeited has paid into the special reclamation
fund any additional sum of money determined by the director to
be adequate to reclaim the disturbed area; (2) the violations
which resulted in the revocation or forfeiture have not caused
irreparable damage to the environment; and (3) the director is
satisfied that the petitioner will comply with this article.
(d) (1) In addition to finding the application in compliance
with subsection (b) of this section, if the area proposed to be
mined contains prime farmland, the director may, pursuant to
rules promulgated hereunder, grant a permit to mine on prime
farmland if the operator affirmatively demonstrates that the
operator has the technological capability to restore such mined
area, within a reasonable time, to equivalent or higher levels of
yield as nonmined prime farmland in the surrounding area under
equivalent levels of management, and can meet the soil
reconstruction standards in subdivision (7), subsection (b),
section thirteen of this article. Except for compliance with
subsection (b) of this section, the requirements of subdivision
(1) of this subsection apply to all permits issued after the
third day of August, one thousand nine hundred seventy-seven.
(2) Nothing in this subsection applies to any permit issued
prior to the third day of August, one thousand nine hundred seventy-seven, or to any revisions or renewals thereof, or to any
existing surface-mining operations for which a permit was issued
prior to said date.
(e) 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 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.
(f) The prohibition of subsection (c) of this section may
not apply to a permit application due to any violation resulting
from an unanticipated event or condition at a surface coal mine
eligible for remining under a permit held by the applicant.
§22-3-28. Special permits authorization for reclamation of
existing abandoned coal processing waste piles; coal extraction pursuant to a government-financed reclamation contract; coal extraction as an incidental part of development of land for commercial, residential, industrial, or civic use;
no cost reclamation contract.
(a) Except where exempted by section twenty-six of this
article, it is unlawful for any person to engage in surface- mining as defined in this article as an incident to the
development of land for commercial, residential, industrial or
civic use without having first obtained from the director a
permit therefor as provided in section eight of this article,
unless a special permit authorization therefor has been first
obtained from the director as provided in this section.
Application for a special permit authorization to engage in
surface-mining as an incident to the development of land for
commercial, residential, industrial or civic use shall be made in
writing on forms prescribed by the director and shall be signed
and verified by the applicant. The application shall be
accompanied by:
(1) A site preparation plan, prepared and certified by or
under the supervision of a person approved by the director,
showing the tract of land which the applicant proposes to develop
for commercial, residential, industrial or civic use; the
probable boundaries and areas of the coal deposit to be mined and
removed from said tract of land incident to the proposed
commercial, residential, industrial or civic use thereof; and
such other information as prescribed by the director;
(2) A development plan for the proposed commercial,
residential, industrial or civic use of said land;
(3) The name of owner of the surface of the land to be
developed;
(4) The name of owner of the coal to be mined incident to
the development of the land;
(5) A reasonable estimate of the number of acres of coal
that would be mined as a result of the proposed development of
said land: Provided, That in no event may such number of acres
to be mined, excluding roadways, exceed five acres; and
(6) Such other information as the director may require to
satisfy and assure the director that the surface-mining under
special permit authorization is incidental or secondary to the
proposed commercial, residential, industrial or civic use of said
land.
(b) There shall be attached to the application for the
special permit authorization a certificate of insurance
certifying that the applicant has in force a public liability
insurance policy issued by an insurance company authorized to do
business in this state affording personal injury protection in
accordance with subsection (d), section nine of this article.
The application for the special permit authorization shall
also be accompanied by a bond, or cash or collateral securities
or certificates of the same type, in the form as prescribed by
the director and in the minimum amount of two thousand dollars per acre, for a maximum disturbance of five acres.
The bond shall be payable to the state of West Virginia and
conditioned that the applicant complete the site preparation for
the proposed commercial, residential, industrial or civic use of
said land. At the conclusion of the site preparation, in
accordance with the site preparation plan submitted with the
application, the bond conditions are satisfied and the bond and
any cash, securities or certificates furnished with said bond may
be released and returned to the applicant. The filing fee for
the special permit authorization is five hundred dollars. The
special permit authorization is valid until work permitted is
completed for two-years.
(c) The purpose of this section is to vest jurisdiction in
the director, where the surface-mining is incidental or
secondary to the preparation of land for commercial, residential,
industrial or civic use and where, as an incident to such
preparation of land, minerals must be removed, including, but not
limited to, the building and construction of railroads, shopping
malls, factory and industrial sites, residential and building
sites and recreational areas. Anyone who has been issued a
special permit authorization shall may not be issued an
additional special permit authorization on the same or adjacent
tract of land unless satisfactory evidence has been submitted to
the director that such permit authorization is necessary to subsequent development or construction. As long as the operator
complies with the purpose and provisions of this section, the
other sections of this article are not applicable to the
operator holding a special permit authorization: Provided, That
the director shall promulgate rules establishing applicable
performance standards for operations permitted under this
section.
(d) The director may, in the exercise of his or her sound
discretion, when not in conflict with the purposes and findings
of this article and to bring about a more desirable land use or
to protect the public and the environment, issue a special permit
reclamation contract solely for the removal of existing abandoned
coal processing waste piles: The director shall promulgate
specific rules for such operations: Provided, That a bond and
a reclamation plan is required for such operations.
(e) No person may engage in coal extraction pursuant to a
government financed reclamation contract without a valid surface- mining permit issued pursuant to this article unless such person
affirmatively demonstrates that he is eligible to secure special
authorization pursuant to this section to engage in a
government-financed reclamation contract authorizing incidental
and necessary coal extraction. The director shall determine
eligibility before entering into a government financed reclamation contract authorizing incidental and necessary coal
extraction. The director may provide the special authorization
as part of the government financed reclamation contract:
Provided, That the contract contains and does not violate the
requirements of this section. The director may not be required
to grant a special authorization to any eligible person. The
director may, however, in his or her discretion, grant a special
authorization allowing incidental and necessary coal extraction
pursuant to a government financed reclamation contract in
accordance with this section.
Only eligible persons may secure special authorization to
engage in incidental and necessary coal extraction pursuant to a
government financed reclamation contract. A person is eligible
to secure a special authorization if he or she can demonstrate,
at a minimum, to the director's satisfaction that he or she meets
the permit eligibility requirements of this article.
Any eligible person who proposes to engage in coal
extraction pursuant to a government-financed reclamation contract
may request and secure special authorization from the director to
conduct such activities under this section. The director may
issue the special authorization as part of the
government financed reclamation contract: Provided, That the
contract contains and does not violate the requirements of this section. A special authorization can only be obtained if a
clause is inserted in a government financed reclamation contract
authorizing such extraction and the person requesting such
authorization has affirmatively demonstrated to the director's
satisfaction that he or she has satisfied the provisions of this
section. A special authorization shall only be granted by the
director prior to the commencement of coal extraction on a
project area. In order to be considered for a special
authorization by the director, an eligible person must
demonstrate a minimum that:
(1) The primary purpose of the operation to be undertaken is
the reclamation of abandoned or forfeited mine lands;
(2) The extraction of coal will be incidental and necessary
to accomplish the reclamation of abandoned or forfeited mine
lands pursuant to a government financed reclamation contract;
(3) Incidental and necessary coal extraction will be
confined to the project area being reclaimed;
(4) All coal extraction and reclamation activity undertaken
pursuant to a government financed reclamation project will be
accomplished pursuant to the applicable environmental protection
performance standards and conditions included in the
government-financed reclamation contract.
Prior to commencing coal extraction pursuant to a government
financed reclamation project, the contractor shall file with the director a performance bond conditioned upon the contractor's
performance of all the requirements of the government financed
reclamation contract pursuant to this article. For a no cost
reclamation contract, the criteria for establishing the amount of
the performance bond shall be the engineering estimate,
determined by the director: Provided, That the director may
establish a lesser bond amount for long term, no cost reclamation
projects in which the reclamation schedule extends beyond two
years. In these contracts, the director may in the alternative
establish a bond amount which reflects the cost of the
proportionate amount of reclamation which will occur during a
specified period. The performance bond which is provided by the
contractor under a federally financed or state financed
reclamation contract shall be deemed to satisfy the requirements
of this section: Provided, however, That the amount of such bond
is equivalent to or greater than the amount determined by the
criteria set forth in this subsection.
(f) Any person engaging in coal extraction pursuant to this
section is subject to the following:
(1) Payment of all applicable taxes and fees related to coal
extraction;
(2) Replacement or restoration of the water supply of an
owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or
other legitimate use from an underground or surface source where
such supply has been affected by contamination, diminution or
interruption proximately caused by coal extraction;
(3) Extraction pursuant to this section cannot be initiated
without the consent of the surface owner for right of entry and
consent of the mineral owner for extraction of coal.