H. B. 2639
(By Delegates Douglas, Davis and Capito)
[Introduced February 4, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section twenty-two, article three,
chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
prohibiting surface mining within one thousand feet of an
occupied building; exception.
Be it enacted by the Legislature of West Virginia:
That section twenty-two, article three, chapter twenty-two
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-22. Designation of areas unsuitable for surface mining;
petition for removal of designation; prohibition
of surface mining on certain areas; exceptions; taxation of minerals underlying land designated
unsuitable.
(a) The director shall establish a planning process to
enable objective decisions based upon competent and
scientifically sound data and information as to which, if any,
land areas of this state are unsuitable for all or certain types
of surface-mining operations pursuant to the standards set forth
in subdivisions (1) and (2) of this subsection: Provided,
That
such designation shall not prevent prospecting pursuant to
section seven of this article on any area so designated.
(1) Upon petition pursuant to subsection (b) of this
section, the director shall designate an area as unsuitable for
all or certain types of surface-mining operations, if it the
director determines that reclamation pursuant to the requirements
of this article is not technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this
section, a surface area may be designated unsuitable for certain
types of surface-mining operations, if the operations: (A)
Conflict with existing state or local land use plans or programs;
(B) affect fragile or historic lands in which the operations
could result in significant damage to important historic,
cultural, scientific and aesthetic values and natural systems;
(C) affect renewable resource lands, including significant aquifers and aquifer recharge areas, in which the operations
could result in a substantial loss or reduction of long-range
productivity of water supply, food or fiber products; or (D)
affect natural hazard lands in which the operations could
substantially endanger life and property. Such lands shall
include lands subject to frequent flooding and areas of unstable
geology.
(3) The director shall develop a process which includes:
(A) The review of surface-mining lands; (B) a data base and an
inventory system which will permit proper evaluation of the
capacity of different land areas of the state to support and
permit reclamation of surface-mining operations; (C) a method for
implementing land use planning decisions concerning
surface-mining operations; and (D) proper notice and
opportunities for public participation, including a public
hearing prior to making any designation or redesignation pursuant
to this section.
(4) Determinations of the unsuitability of land for surface
mining, as provided for in this section, shall be integrated as
closely as possible with present and future land use planning and
regulation processes at federal, state and local levels.
(5) The requirements of this section do not apply to lands
on which surface-mining operations were being conducted on the
third day of August, one thousand nine hundred seventy-seven, or under a permit issued pursuant to this article, or where
substantial legal and financial commitments in the operations
were in existence prior to the fourth day of January, one
thousand nine hundred seventy-seven.
(b) Any person having an interest which is or may be
adversely affected has the right to petition the director to have
an area designated as unsuitable for surface-mining operations or
to have such a designation terminated. The petition shall
contain allegations of fact with supporting evidence which would
tend to establish the allegations. After receipt of the
petition, the director shall immediately begin an administrative
study of the area specified in the petition. Within ten months
after receipt of the petition, the director shall hold a public
hearing in the locality of the affected area after appropriate
notice and publication of the date, time and location of the
hearing. After the director or any person having an interest
which is or may be adversely affected has filed a petition and
before the hearing required by this subsection, any person may
intervene by filing allegations of fact with supporting evidence
which would tend to establish the allegations. Within sixty days
after the hearing, the director shall issue and furnish to the
petitioner and any other party to the hearing, a written decision
regarding the petition and the reasons therefor. In the event
that all the petitioners stipulate agreement prior to the requested hearing and withdraw their request, the hearing need
not be held.
(c) Prior to designating any land areas as unsuitable for
surface-mining operations, the director shall prepare a detailed
statement on: (1) The potential coal resources of the area; (2)
the demand for the coal resources; and (3) the impact of the
designation on the environment, the economy and the supply of
coal.
(d) After the third day of August, one thousand nine hundred
seventy-seven, and Subject to valid existing rights, no
surface-mining operations, except those which existed on that
date prior to the enactment of this section, shall be permitted:
(1) On any lands in this state within the boundaries of
units of the national park system, the national wildlife refuge
systems, the national system of trails, the national wilderness
preservation system, the wild and scenic rivers system, including
study rivers designated under section five-a of the Wild and
Scenic Rivers Act, and national recreation areas designated by
act of Congress;
(2) Which will adversely affect any publicly owned park or
places included in the national register of historic sites, or
national register of natural landmarks unless approved jointly by
the director and the federal, state or local agency with
jurisdiction over the park, the historic site or natural landmark;
(3) Within one hundred feet of the outside right-of-way line
on any public road, except where mine access roads or haulage
roads join such right-of-way line, and except that the director
may permit the roads to be relocated or the area affected to lie
within one hundred feet of the road if, after public notice and
an opportunity for a public hearing in the locality, the director
makes a written finding that the interests of the public and the
landowners affected thereby will be protected;
(4) Within three hundred one thousand feet from any occupied
dwelling, unless waived by the owner thereof, or within three
hundred feet of any public building, school, church, community or
institutional building, public park, or within one five hundred
feet of a cemetery. The director may issue a waiver to this
restriction for surface mining to be conducted between five
hundred feet and one thousand feet, if the owner or resident
authorizes the surface mining in writing after being first
notified and informed about the surface-mining activities.
Surface mining is prohibited within five hundred feet; or
(5) On any federal lands within the boundaries of any
national forest: Provided,
That surface coal mining operations
may be permitted on the lands if the secretary of the interior
finds that there are no significant recreational, timber,
economic or other values which may be incompatible with the surface-mining operations: Provided, however,
That the surface
operations and impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the
coal underlying any lands designated unsuitable for
surface-mining operations under any provisions of this article or
underlying any land upon which mining is prohibited by any
provisions of this article shall be assessed for taxation
purposes according to their value and the Legislature hereby
finds that the coal has no value for the duration of the
designation or prohibition unless suitable for underground mining
not in violation of this article: Provided,
That the owner of
the coal shall forthwith notify the proper assessing authorities
if the designation or prohibition is removed so that the coal may
be reassessed.
NOTE: The purpose of this bill is to prohibit surface
mining within one thousand feet of any occupied building, with
exceptions.
This bill has been recommended for passage by the Joint
Standing Committee on Government Organization.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.