H. B. 4460Be it enacted by the Legislature of West Virginia:
(By Mr. Speaker, Mr. Kiss, and Delegates Douglas, Michael,
Mezzatesta, Faircloth, Trump and Williams)
[Introduced February 17, 1998; refrerred 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 quarrying 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; quarrying and reclamation
plan required; quarrying 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; prequarrying land use and
postreclamation useful purposes of land; ground water
protection; grandfather clause for prior permitted quarries;
quarry reclamation fund; severability clause; and enforcement
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:
The division of environmental protection is hereby vested with
jurisdiction over all aspects of quarrying and with jurisdiction and
control over land, water and soil aspects pertaining to quarry
operations, and the restoration and reclamation of quarries and
areas affected thereby. This article does not address coal mining
activities unless covered by subdivision (2), subsection (u),
section three, article three of this chapter.
ARTICLE 4. QUARRYING AND RECLAMATION OF MINERALS OTHER THAN COAL§22-4-1. Jurisdiction vested in division of environmental
§22-4-2. Legislative findings.
The Legislature finds that the extraction of noncoal minerals
by quarrying is a basic, essential and vital industry
important contribution to the economic well being of West Virginia.
From the small family-owned chert pit to the multinational limestone
quarry, aggregate production plays 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.
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 use 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.
It is the purpose of this article to provide 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. 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 article may be taken as
indicating an attempt to apply to quarries a standard currently
applied to coal mining operations in the state. Nothing in this
article may be construed to mean that reclamation to approximate
original contour, contemporaneous reclamation or any similar
standards applied to coal mines may be applied to quarrying.
Unless the context in which used clearly requires a different
meaning, as used in this article:(1) "Abandoned quarry lands" means: (A) A quarry which was operated and abandoned without proper reclamation prior to the
effective date of this article; or (B) 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
complied with all the requirements of the permit.
(2) "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.
(3) "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
(4) "Borrow pit" means an area from which soil or other
materials are removed to be used, without further processing, as
fill for activities such as landscaping, building construction or
highway maintenance and construction.
(5) "Critical gradient" means the maximum stable inclination
of an unsupported slope as measured from a horizontal plane.
(6) "Director" means the director of the division or his or
her authorized agents.(7) "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
(8) "Division" means the division of environmental protection.(A) A permitted site where active work has ceased temporarily
due to weather conditions, market conditions or other reasonable
(9) "Fill" means a side of hill fill or valley fill. It does
not include berms or screening berms.
(10) "Inactive Operation" means either:
(B) A permitted site where active quarrying has not yet begun.(11) "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.
(12) "Manufacturing site" means an area of land on which
manufacturing occurs and associated areas.(13) "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
(14) "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.
(15) "Neighboring" means in close proximity or in the immediate vicinity, but not necessarily in actual contact.
(16) "Operator" means a person who conducts quarry activities
either with or without a permit.
(17) "Permit area" means the area of land indicated on the
approved map submitted by the permittee with the quarrying and
reclamation plan as specified in section seven of this article
showing the exact location of end strip markers, permit markers and
(18) "Permittee" means any person who holds a valid permit to
conduct quarrying.(19) "Person" means any individual, partnership, firm,
association, trust or corporation.
(20) "Pre-law quarry" means a quarry that was quarried and not
reclaimed prior to the effective date of this section.
(21) "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 haulage ways,
roads or trails.
(22) "Quarrying" means any of the following:
(A) The breaking of the surface soil in order to facilitate or
accomplish the extraction or removal of minerals;
(B) Any activity constituting all or part of a process for the
extraction or removal of minerals from their original location; or
(C) The extraction of sand, gravel, rock, stone, earth or fill
from borrow pits for highway construction or other public
(D) Quarrying does not include manufacturing.
(23) "Reclamation" means the rehabilitation of the disturbed
land for useful purposes and that it will become stable and
(24) "Side of hill fill" means overburden, dirt or rock that is
placed on a natural slope of more than twenty degrees.
(25) "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
(26) "Surface of a regraded bench" means the top portion or
part of any regraded area.
(27) "Unreclaimed" means land which has not been rehabilitated
for useful purposes or the protection of natural resources.
(28) "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.
Authority to administer and enforce the provisions of this
article is hereby vested in the director of the division. 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
services. He or she may also receive any federal funds, state funds
or any other funds for the reclamation of land affected by
quarrying. 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
enforcement of this article may:
(1) Engage in quarrying as a sole proprietor or as a partner;
(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 section by any public officer or employee
subject to the prohibitions contained in this section is grounds for
removal from office or dismissal from employment, as the case may
§22-4-6. Inspectors and inspections.
(a) The director shall employ qualified inspectors and is
authorized to employ other personnel necessary to carry out the
purposes of this article. Inspectors shall have at least two years experience with environmental issues. Employees are covered under
the classified service of the state.
(b) The director shall cause each permit area to 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 rules promulgated thereunder.
§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. The application shall fully state the information reasonably
required by the director. The application may be in writing and on a
form prepared and furnished by the division, or the application may
be submitted electronically. Applicants shall verify electronic
submissions by signed affidavit.
(c) The application shall include the following information:(6) The names and mailing addresses of every officer, partner,
director of the applicant or a person fulfilling a similar function
of a director;
(1) The names and addresses of the owners of the surface of
the land to be quarried;
(2) The names and addresses of the owners of the mineral to be
(3) The source of the applicant's legal right to conduct
quarrying on the land to be covered by the permit;
(4) An estimate of the number of acres to be covered by the
(5) A list of other quarrying permits held by the permittee:
(7) The names and mailing addresses of any person owning of
record or beneficially ten percent or more of any class of stock of
(8) The name of any person listed in subdivisions (6) and (7)
above who had a quarry permit revoked or had a quarry bond forfeited
within the last five years; and
(9) 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,
where applicable 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 three hundred thousand
(d) A permit may cover more than one tract of land, if the
tracts are described in the application.(e) 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. Quarrying and reclamation plan.
(a) The application for a permit shall include a proposed
quarrying and reclamation plan.
(b) The quarrying and reclamation plan is not required to be
completed by a professional engineer or licensed land surveyor. It shall include the following information:
(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
(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 quarrying;
(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
(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;(10) A blasting plan that meets the requirements of section
fifteen of this article, and describes whether the scale distance
formula or a seismograph will be used to monitor blasting.
(9) The manner and type of revegetation or other surface
treatment of the disturbed land; and
(c) 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. The director
shall not impose any enforcement of this subsection which is more
strict than that of the federal act cited above.
(d) The application shall provide the following information
with respect to slopes and gradients:(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 for backfill
within the mineral excavation pit area, where no standard shall
(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 unconsolidated materials.
(3) The quarrying and reclamation plan shall specify slope
angles flatter than the critical gradient for the type of material
(4) The toe of the proposed fill will rest on natural slopes
no steeper than twenty degrees unless a detailed geotechnical study
of the toe foundation area is completed. The results of this study
and subsequent stability evaluations must assure a static safety
factor of at least one and one half. Engineering designs for fills
constructed on natural slopes steeper than twenty degrees may
require overexcavation of the toe area to rock, incorporation of toe
buttresses or other engineered configurations to enhance stability.
The design and construction of all fills proposed on natural slopes
steeper than twenty degrees shall be certified by a registered
(5) Constructed slope fills steeper than two horizontal to one
vertical must exhibit a static safety factor of one and one-half.
(6) Fills may be constructed with slopes no steeper than one
and one-half horizontal to one vertical unless an eight foot minimum
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 percent toward the fill area.
(7) 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.
(8) 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 feet which are to be left after
completion of quarrying may be backfilled or shot down to provide a
final slope in compliance with subsection (d) of this section
(1) It is demonstrated that the highwall is stable;(2) Adequate material removed in the process of quarrying and
not located in a permanent disposal area, is not available; or
(3) These actions are precluded by close proximity to permit
boundaries or other physical limitations.(f) Backfills, 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 (8), subsection (d)
of this section. Permits issued prior to the effective date which
contain the requirements of subdivisions (1) and (2), subsection (d)
or subsection (e) of this section are not exempt unless modified by
(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 quarrying and reclamation plan map.
§22-4-9. Quarrying 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
quarrying 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;(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;
(3) Show underground operations within five hundred feet and
designate whether active or inactive;
(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
mineral deposit to be quarried;(9) Contain a vicinity map and north arrow and state the name
of the county and district of the permit and the nearest post
(8) State the date and dates of revision on which the map was
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
§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.
(c) All registration and renewal fees for quarrying shall be
collected by the director and shall be deposited with the treasurer
of the state of West Virginia to the credit of the operating permit
fees fund and shall be used, upon requisition of the director, for
the administration of this article.
§22-4-11. 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 the 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
(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. The 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 the
application will be accepted until a specified date, set 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) The director shall receive and consider evidence or
comments submitted by anyone whether adversely affected or not. 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 a substantial environmental
harm or a substantial physical harm 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;(d) A permit shall remain valid until quarrying 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.
(ii) Termination of the operation by order of the director;
(iii) Forfeiture of part or all of his or her bond or other
(iv) A court order issued against the applicant as a result of
(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 to adequately enforce
(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 quarrying 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 quarrying and reclamation
(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
(f) If the director determines from inspections of the quarry
that the activities under the quarrying and reclamation plan and the
permit or its conditions will cause harm or danger to the public
safety or environment the director shall give the permittee written
(1) The director's determination; and
(2) The director's intention to modify the permit and quarrying
and reclamation plan in a stated manner.
§22-4-14. Transfer of a permit.
(a) (1) When the interest of a permittee in any 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) The transferee shall provide information required by the
(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
(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) Provided -- 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;(3) The right of the permittee and the proposed transferee to
a hearing before either or both the director or the quarry review
(2) Any changes in the application which would make it
(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;
(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 the following measures are adhered to:
(1) No blasting shall be conducted on Sundays unless the
permittee notifies the division that an emergency exists,
(2) 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:
Provided, That 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.
(3) 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 NearestThe 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
1.250 - 300 feet
1.00301 - 5,000 feet
0.755,001 feet or greater
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 used for compliance
monitoring 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
The 1Hz or lower-flat response and the c-weight slow response may
be used when approved by the director.
(5) 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
(A) No unusual circumstances such as imminent slides or
underdetonated charges exist, and(6) 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.
(B) Access to and travel in or through the area can be safely
(7) Records of each blast shall be kept in a log to be
maintained for at least three years which will show, for each blast,
the following information:
(A) Date and time of blast,
(B) Number of holes;
(C) Typical explosive weight per delay period;
(D) Total explosives in blast at any one time;
(E) Number of delays used;
(F) Weather conditions;
(G) Signature of permittee employee in charge of the blast;
(H) Seismograph data;
(I) Date of seismograph calibration; and
(J) Whether the scale distance formula or a seismograph was
used for compliance monitoring.
(8) 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.
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.
(b) 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
(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 herein above 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.
(c) The director shall propose rules for legislative approval
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.
(d) After receipt and approval of an application for a new
permit 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.
The preblast survey shall document any
preblasting damage and other physical factors that could reasonably
be affected by the blasting.
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 an offer and unsuccessful attempts, to conduct a preblast
(2) The permittee or applicant obtains written consent of the
owners of all buildings, dwellings or structures situated within
§22-4-16. Performance bonds.
(a) Each applicant who makes application for a permit under
section seven of this article shall, at the time the 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
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.
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.
The bond shall be posted and
accepted by the director prior to disturbing an area for
(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 bank 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 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 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 the
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.
On completion of the reclamation, and after the requirements of
the permit have been fully complied with, the director shall release
the bond. 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.
Performance bonds will be released upon acceptance into the
reclamation security fund and payment of the required fees.
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). 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. 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. The payments shall continue until the permittee has
paid into the RSF a total of one thousand dollars for each disturbed
(b) Entry in the RSF shall be mandatory for all eligible
(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 permit.
(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 in section thirty-five of this
(f) If a permit is revoked pursuant to section twenty-three of
this article the payments that the permittee has made to the RSF for
that permit shall be forfeited. The director shall use those
forfeited payments for the reclamation of the quarry to which it
(g) If the cost of reclamation exceeds the amount of payments
the director shall also use monies from the permittees bond or other
security in conjunction with the revocation of that permit, and if
necessary, income from monies deposited in the RSF by other
§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 the quarrying during the
(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 the quarrying
in the next year.
(b) 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.
(c) An aerial photograph may be submitted in lieu of the map.
(d) 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.
(e) 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
underground quarrying upon the premises or use underground quarry
opening haulage ways for other lawful purposes, the permittee may
designate locations to be used for these purposes where it will not
be necessary to backfill if required by the permit, until the
underground quarrying or other uses is completed, during which time
the bond on file for that portion of that operations may not be
released. Locations shall be described on the map required by the
provisions of section seven of this article.
(b) 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.
(c) 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 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.
(d) Water leaving the permit area is subject to the
requirements of article eleven of this chapter and must comply with
the NPDES permit.
(e) 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
outsider the area of land which is under permit 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.
(f) There shall be no mineral extraction within fifty feet of
any public road, stream, lake or other public property, unless it is
determined by the director that this activity is safe to the public
welfare and the environment. If mineral extraction is prohibited
within the fifty foot buffer, the buffer may be utilized by the
permittee for screening, drainage control, and roadways provided
that adequate safety controls are in place. The fifty foot
restriction does not apply to the dredging and removal of minerals
from the streams or watercourses of this state. In no event is
disturbance past the property line or right of way line permitted
without written permission of the owner.
(g) 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
(h) 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
(3) The date of planting or seeding;
(4) The area of land planted; and
(5) Other relevant information required by the director. All
planting shall be certified by the permittee, or by the party with
whom the permittee contracted for planting.
(i) 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 planting or seeding season after
(j) After quarrying is completed, the site will be stabilized to
prevent erosion. Stabilization may be accomplished by vegetative
cover or other means as approved in the quarrying and reclamation
plan. Rules proposed under section twenty-two of this article shall
contain guidelines for establishing the various types of
(k) Planting shall be carried out so that it is completed before the end of the first available planting season. Vegetative planting
may be completed by the permittee or the permittee may contract with
the local soil conservation district or a private contractor. A
revegetation schedule shall be incorporated into the quarrying and
(l) The permittee may use visual screening methods such as
berms, plantings, or fences which may be placed along the fifty 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 quarrying and
reclamation plan and shall complete 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 are maintained; and
(3) All vegetation is maintained (reseeded as necessary)
(a) The director shall propose rules for legislative approval
in accordance with the provisions or 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 submission to the Legislature.
(b) Pursuant to the authority granted to the office of mine
health safety and training set forth in article four chapter twenty- two-a of this code, the office shall, not later than six months from
the effective date of this article, propose rules providing for the
health, safety and training of workers in the quarrying industry for
legislative approval pursuant to the provisions of article three,
chapter twenty-nine-a of this code. The office shall consult with
the division and the quarrying industry in the preparation of the
rules. The rules shall recognize and acknowledge the difference
between coal mining and quarrying and shall be specifically tailored
to the quarry industry.
(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 the
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) (1) Any permittee who forfeits a bond shall not be issued
any new permits, permit modifications, or transfers until the
permittee complies with the requirements of subdivision (2) of this
subsection. Other permits issued to this permittee existing at the
time of forfeiture shall continue in full force and effect.
(2) 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 and the permittee reimburses the division for the
cost of any reclamation which it completed on the forfeiture site or
completes the reclamation as required by the permit issued for the
§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 quarrying and reclamation plan
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 the failure of the permittee to show cause, the director
may initiate forfeiture proceedings against the bond or reclamation
security fund deposits. The director shall provide notice of the
forfeiture proceedings to the permittee, the legal owner of the
land, and the surety. If a showing of intent to restore compliance
with the permit is not submitted to the director within thirty days
from the day of initiation of forfeiture proceedings, the bond or
reclamation security funds deposits may 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 and findings.
Every adjudication, determination or finding by the director
affecting the rights, duties or privileges of any person subject to
this article shall be made by written order and shall contain a
written finding by the director of the facts upon which the
adjucation, determination or finding is based. Notice of the order
shall be given to the person whose rights, duties or privileges are
affected thereby by mailing a true copy thereof by certified mail or
by hand delivery. The director may 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 quarrying without a
permit is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not less than one thousand or 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 not extenuating
circumstances. It is the duty of the director to institute
prosecution for violations of the provisions of this article. The
director may institute any suit or other legal action necessary for
the effective administration of the provisions of this article.
(b) Upon application by the director, the attorney general or
the prosecuting attorney of the county in which the major portion of
the permit area is located, any court of competent jurisdiction may
by injunction compel compliance with and enjoin violations of the
provisions of this article. The court or the judge thereof in
vacation may issue a preliminary injunction in any case pending a
decision on the merits of any application filed. An application for
an injunction under the provisions of this section may be filed and
injunctive relief granted notwithstanding that all of the
administrative remedies provided for in this article have not been
pursued or invoked against the person or persons against whom relief
is sought and notwithstanding that the person or persons against
whom relief is sought have not been prosecuted or convicted under
the provisions of this article.
(c) The judgement 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
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 judgement 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 the rule or order, or for an order the director should
§22-4-28. Quarry review board.
(a) There is hereby created a "Quarry review board" composed of
five members appointed by the governor with the advice and consent
of the senate. Two members shall be citizens of the state having no
financial interest in any quarrying activity. Two members of the
board shall be quarry permittees or their representatives who have
been engaged in operations in this state for at least five years.
One member shall be an individual property owner who leases land or
is an executive of a corporation that leases land upon which quarry
operations have been or are being conducted, but who has no other
financial interest in quarrying operations. No board member may
participate in a decision regarding a permit in which he or she maintains a financial interest as a permittee or landowner. No more
than three members of the board may be from the same political
(b) The appointed members of the board shall serve staggered
terms of three years. Of the members first appointed, one member
shall serve for one year, two members, for two years and two
members, for three years, or until their sucessors are appointed and
qualified. The governor may reappoint any member whose term
expires; however, a member who has served all or part of two
consecutive terms may not be reappointed unless three years have
elapsed since the member last served. In the case of a vacancy
during a term, appointments shall be for the unexpired term. The
board shall elect a chair. Three members of the board shall
constitute a quorum. The director or his or her designee shall
serve as secretary to the board but is not a member and may not
participate in deliberations or decisions of the board. The members
may not receive compensation for their service but shall be
reimbursed for their actual expenses incurred in the performance of
(c) The powers and duties of the board are:
(1) To review and approve rules proposed by the director under
(2) To hear appeals from orders or decisions of the director;
(3) To affirm, vacate or modify any order or decision of the
(4) To approve expenditures from the quarry reclamation fund.
(d) All appeals shall be in writing and shall set forth the
rule, order or omission complained of and the grounds upon which the
appeal is based:
(1) Where the appellant claims to be aggrieved or adversely
affected by an order or decision, the appeal shall be filed with the
board within thirty days after the date upon which the appellant
received notice by certified mail of the issuance of the final order
or decision of the director. A notice of the filing of the appeal
shall be filed with the director within three days after the appeal
is filed with the board.
(2) Within ten days after receipt of the 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.
(3) When an appeal is filed, the board shall fix the time and
place of hearing. The date fixed shall be within twenty days after
the notice of appeal is filed, and at least ten days written notice
of hearing shall be given to the appellant and the director 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 agree or for good cause shown.
(4) The filing of an appeal provided for in this section shall
stay execution of the order appealed.
(5) The board shall hear the appeal de novo, and any party to
the appeal may submit evidence.
(6) 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 deuces
tecum to compel the production of any books, records or papers,
directed to the sheriff of the county where the 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. Fees and mileage expenses incurred at the request
of the appellant shall be paid in advance by the appellant, and the
remainder of the 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 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 tecumor a
refusal to testify therein. Witnesses at hearing shall testify
under oath, and any member of the board may administer oaths or
affirmations to persons who so testify.
(7) In accordance with the provisions of section one, article five of chapter twenty-nine-a, all testimony at any hearing held by
the board shall be recorded by stenographic notes and characters or
by mechanical or electronic means. The 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 the proffer shall be
made a part of the record of hearing. Copies of the record shall be
made available at the expenses of the party making the request for
(8) If upon completion of the hearing the board finds that the
rule, decision or order appealed was lawful and reasonable, it shall
make a written order affirming the rule, decision or order appealed.
If the board finds that the rule, decision or order was unreasonable
or unlawful, it shall make a written order vacating or modifying the
rule, decision or order appealed; and if the board finds that the
director has unreasonably or unlawfully failed to enter an order, it
may enter the order it finds the director should have made. Every
order entered by the board shall contain findings of facts and
conclusions of law. Notice of the order shall be given forthwith to
each party to the appeal by certified mail, return receipt
requested. The board shall render its decision within thirty days
after the close of the hearing.
(9) The order of the board shall be final unless vacated upon
judicial review thereof in accordance with the provisions of section twenty-nine of this article.
§22-4-29. Appeal from the quarry review board.
(a) Within thirty days 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 judgement of the court shall be final unless reversed,
vacated or modified on appeal to the supreme court of appeals of
§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 the director finds that the permittee
has not completed 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 the 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
(2) A summary of the original quarrying and reclamation plan and
all subsequent modifications;
(3) A statement summarizing any departures from the quarrying
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.
(a) The provisions of this article do not apply:
(1) 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, repair and
maintenance of the public roads systems of the state or other public
(2) This exemption does not become effective until the public
agencies or entities have adopted reclamation standards applying to
(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
(1) Those aspects of underground quarrying 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 minerals as raw material;
(6) The extraction of minerals by a landowner for the
landowner's own noncommercial use from land owned or leased by the
(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
(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
(2) Fish and wildlife;
(3) Forest land;
(5) Pasture land;
(8) Permanent water impoundment;
(9) Vegetated open space; and
§22-4-33. Groundwater protection.
(a) The provisions of subsection (b), section four and
subsections (e), (f) and (g), section five, article twelve of this
chapter, do not apply to quarrying and earth disturbing activities
directly involved in quarry operations that are subject to either or
both this article or article eleven of this chapter. These
activities are subject to all other provisions of article twelve of
(b) Upon written notice by the director, the permittee shall replace a water supply that fails as a direct result of quarry
activities. The director's decision shall be based on the
determination of a hydrologist, employed by the director, after
inspecting the quarry and the affected property and performing
necessary studies and tests.
§22-4-34. Exception for certain existing quarries.
(a) Quarries that were permitted on or before the effective date
of this article are not required to do the following:
(1) Backfilling, filling or slope reduction unless the current
permit requires the work;
(2) File a performance bond except when 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 demonstrable
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 subsection(e),
section seven of this article, and to permit modifications and
§22-4-35. Quarry reclamation fund.
(a) All funds received by the division from forfeiture of bonds
or reclamation security fund and any assessments under section
fifteen of this article shall be deposited into a special interest- bearing account in the state treasury designated the "Quarry reclamation fund." Fines collected upon a conviction under section
twenty-six of this article shall be deposited to the credit of the
general revenue fund. This fund shall be used by the division for
reclamation of abandoned quarries.
(b) 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.
(c) Any interest accrued to the quarry reclamation fund shall
remain in the fund.
(f) (1) 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.
(2) The division shall compile a list of abandoned quarries in
the state and rank them in order of need for reclamation.
§22-4-36. Savings provision.
All orders, determinations, rules, permits, grants, contracts,
licenses, waivers, bonds, authorizations and privileges which have
been issued, made or granted by the division, or by a court of
competent jurisdiction, shall continue in effect according to their
terms until modified, terminated, superseded, set aside or revoked
in accordance with this article. Any proceedings, including notices
of proposed rule-making, or any application for any license, permit,
certificate, or financial assistance pending before the division are
not affected by this enactment. The provisions of this section do not require the regrading or replanting of any area on which work
was satisfactorily performed prior to the effective date of this
NOTE: The purpose of this bill is to outline procedures and
requirements for the regulation of quarries by the division of
This article has been completely rewritten; therefore, strike- throughs and underscoring have been omitted.