H. B. 2102
(By Delegates Douglas, Faircloth and Williams)
[Introduced Janaury 13, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact article four, chapter twenty-two of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to 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; groundwater
protection; grandfather clause for prior permitted quarries;
quarry reclamation fund; severability clause; and
enforcement date.
Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 4. QUARRYING AND RECLAMATION OF MINERALS OTHER THAN
COAL.
§22-4-1. Jurisdiction vested in division of environmental
protection.
The division of environmental protection is 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.
§22-4-2. Legislative findings.
The Legislature finds that the extraction of noncoal
minerals by quarrying is a basic, essential and vital industry
making an important contribution to the economic well-being of
West Virginia. From the small family-owned chert pit to the
multinational limestone quarry, aggregate production 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. Quarry minerals
are needed to provide railroad ballast, stone jetties in rivers,
riprap and erosion control, fluidized beds at coal power plants,
agricultural lime, glass sand, landscape materials, stream
reclamation and flagstone. It is not practical to extract
minerals required by our society without disturbing the surface
of the earth and producing waste materials, and the very
character of quarry operations precludes complete restoration of the land to its original condition. Unregulated quarrying may
cause soil erosion, stream pollution, landslides, accumulation of
stagnant water or may impair the health, safety and welfare and
property rights of the citizens of West Virginia. However, it is
possible to conduct quarrying and proper reclamation of quarried
land in order to prevent undesirable land and water conditions
that would be detrimental to the general welfare, health, safety
and the property rights of the citizens of the state. The
Legislature finds that the quarrying of minerals and reclamation
of quarried lands as provided by this article will allow the 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.
§22-4-4. Definitions.
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 without having 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 area.
(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 of
environmental protection 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 quarry areas.
(8) "Division" means the division of environmental
protection.
(9) "Fill" means a side of hill fill or valley fill. It
does not include berms or screening berms.
(10) "Inactive operation" means either:
(A) A permitted site where active work has ceased
temporarily due to weather conditions, market conditions or other
reasonable cause; or
(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 topsoil.
(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 monuments.
(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) "Prelaw 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)(A) "Quarrying" means any of the following:
(i) The breaking of the surface soil in order to facilitate
or accomplish the extraction or removal of minerals;
(ii) Any activity constituting all or part of a process for
the extraction or removal of minerals from their original
location; or
(iii) The extraction of sand, gravel, rock, stone, earth or
fill from borrow pits for highway construction or other public
facilities; and
(B) Quarrying does not include manufacturing.
(23) "Reclamation" means the rehabilitation of the disturbed
land for useful purposes and that it will become stable and
productive.
(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 degrees.
(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 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 administration or 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 be.
§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 are required to 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 under this
article.
§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 a 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:
(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 quarried;
(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
permit area;
(5) A list of other quarrying permits held by the permittee;
(6) The names and mailing addresses of every officer,
partner, director of the applicant or a person fulfilling a
similar function of a director;
(7) The names and mailing addresses of any person owning of
record or beneficially ten percent or more of any class of stock
of the applicant;
(8) The name of any person listed in subdivisions (6) and
(7) of this subsection 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 dollars.
(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
previously used;
(3) The proposed useful purposes of the land following
completion of quarrying;
(4) A general description of the manner in which the land is
to be opened for quarrying and how the quarrying activity is to progress across the tract and an approximate time frame for
reclamation of each area or phase of the 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
fill;
(7) The description of the proposed final topography for the
applicant's proposed land use after reclamation is completed and
the proposed method of accomplishment;
(8) The practices to provide public safety for adjacent
properties;
(9) The manner and type of revegetation or other surface
treatment of the disturbed land; and
(10) A blasting plan that meets the requirements of section
fifteen of this article, and describes whether the scale distance
formula or a seismograph will be used to monitor blasting.
(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 may 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 applies.
(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 involved.
(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 professional engineer.
(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 unless:
(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 the division.
(g) The final land form shall be graded to provide positive
drainage throughout the permit area except areas that are to be
ponded in accordance with the 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;
(3) Show underground operations within five hundred feet and
designate whether active or inactive;
(4) State the names of landowners of record within five
hundred feet of the proposed permit area and the names of the
landowner of the permit property;
(5) Be of a scale not smaller than one inch equals five
hundred feet;
(6) Show the names and locations of all streams and other
bodies of water, roads, railroads, buildings, cemeteries, active,
abandoned or plugged oil and gas wells, and distribution utility
lines on or within five hundred feet of the proposed permit area;
(7) Show the outcrop line and the strike and dip of the
mineral deposit to be quarried;
(8) State the date and dates of revision on which the map
was prepared;
(9) Contain a vicinity map and north arrow and state the
name of the county and district of the permit and the nearest post office;
(10) Show representative cross-sections which include the
depth of various strata, including acid producing strata, the
contours prior to quarrying and the proposed contours following
quarrying;
(11) Show the drainage control plans on and away from the
area of land to be disturbed depicting the directional flow of
water, constructed drain ways and natural waterways receiving
discharge from the permit area; and
(12) Contain this map certification "I, the undersigned,
hereby certify that this map is correct and shows all the
information required by the quarrying laws of this state, to the
best of my knowledge and belief." The certification shall be
notarized.
§22-4-10. Required fees.
(a) The fee for an original permit is five hundred dollars.
(b) An annual permit fee of one hundred dollars shall be
submitted with the annual progress report map.
(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 application.
(b) If the application for a new permit is determined
complete, the director shall cause to be published, as a Class
III legal advertisement in accordance with the provisions of
article three, chapter fifty-nine of this code, a notice of the
application for the permit. 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 is 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:
(A) Revocation of his or her permit;
(B) Termination of the operation by order of the director;
(C) Forfeiture of part or all of his or her bond or other
security; or
(D) A court order issued against the applicant as a result
of division action.
(d) A permit remains 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.
§22-4-13. Modification.
(a) A 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 the article.
(b) A modification under this section may affect the land
area covered by the permit, the approved reclamation plan coupled
with the permit, or other terms and conditions of the permit. A
permit may be modified to include land adjacent or neighboring
the affected land, but not other lands. The 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 becomes 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
plan.
(d) Notice of opportunity for a public hearing is required
for applications for permit modification requesting additional
land which exceeds ten percent of the permit area.
(e) In lieu of a permit modification a permittee may apply
for a new permit in the manner described by section seven of this
article.
(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 notice of:
(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 rules
issued under this article 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 shall agree to the
transfer in writing.
(3) The transferee shall provide information required by the
director.
(b) The proposed transferee shall pay a five hundred dollar
fee with the filing of an application for transfer of permit.
(c) 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) The director may deny the permit transfer on finding:
(1) That the transferor or transferee has an unabated
violation of the type listed in section twenty-three of this
article; or
(2) That the proposed transferee has failed to pay the
transfer fee stated above or post the bond required by section
sixteen of this article.
(e) If the director denies an application to transfer a
permit, the director shall give the permittee and the proposed transferee written notice of:
(1) The director's determination;
(2) Any changes in the application which would make it
acceptable; and
(3) The right of the permittee and the proposed transferee
to a hearing before either or both the director or the quarry
review board.
(f)(1) If a hearing before the director is not requested
within fifteen days after receipt of the director's notice of the
denial, the denial is the director's final order on the matter
appealable to the quarry review board.
(2) If a hearing before the director is requested within
fifteen days after receipt of the director's notice, the date for
the hearing may not be less than fifteen days nor more than
thirty days after the date of the request unless the parties
mutually agree on another date.
(3) The director shall enter a final order granting or
denying the transfer application within thirty days after the
hearing.
§22-4-15. Blasting restrictions; formula; filing preplan;
penalties; notice.
(a) Where blasting of overburden or mineral is necessary,
the blasting shall be done in accordance with established principles for preventing injury to persons and damage to
residences, buildings and communities. The blasting is in
accordance with provisions of this article if the following
measures are adhered to:
(1) No blasting may 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 does not
exceed the following values at any protected structure:
Seismograph MeasurementDistance to the Nearest
Protected Structure
1.250 - 300 feet
1.00301 - 5,000 feet
0.755,001 feet or greater
The maximum ground vibration standards do not apply to the
structures owned by the permittee and not leased to another
person and structures owned by the permittee and leased to
another person, if a written waiver by the lessee is submitted to
the director before blasting. The maximum ground vibration
standards also do not apply on property not owned by the
permittee if that landowner submits a written waiver to the
director.
(4) Airblast measured by the seismograph used for compliance
monitoring at or between the blast site and the nearest residence
or building does not exceed the maximum limits listed below:
Lower frequency limit ofMaximum level in db
measuring system in Hz(+3dB)
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 that:
(A) No unusual circumstances such as imminent slides or
underdetonated charges exist; and
(B) Access to and travel in or through the area can be
safely resumed.
(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.
(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 rules 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 imposed:
(1) For the first offense in any one permit year under this
section, the permit holder may be assessed not less than one
hundred dollars nor more than one thousand dollars;
(2) For the second offense in any one permit year under this
section, the permit holder may be assessed not less than one
thousand dollars nor more than five thousand dollars;
(3) For the third offense in any one permit year under this
section or for the failure to pay any assessment herein above set
forth within a reasonable time established by the director, the
permit may be revoked; and
(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 survey; or
(2) The permittee or applicant obtains written consent of
the owners of all buildings, dwellings or structures situated
within those areas.
§22-4-16. Performance bonds.
(a) Each applicant who makes application for a permit under
section seven of this article shall 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 faithfully
performs all of the requirements of this article. 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 quarrying-related activity.
(b) The amount of the bond shall be at least one thousand
dollars for each acre or fraction of an acre of 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 is 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, if the
certificates are 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 is 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 shall 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. 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 reclamation
security fund a total of one thousand dollars for each disturbed
acre.
(b) Entry in the reclamation security fund is mandatory for
all eligible permittees.
(c) No annual reclamation security fund deposits may be
collected from permits where the permit reclamation security fund
deposits divided by the number of disturbed acres is equal to or
greater than one thousand per acre.
(d) Permittee deposits into the reclamation security fund
shall 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 reclamation security fund
deposits to the permittee.
(2) When the director grants the approval of the transfer of the quarry permit to another permittee all reclamation security
fund 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
reclamation security fund 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
reclamation security fund deposits for the permit shall be
returned to the relinquishing permittee upon the directors
approval of the relinquishment.
(4) When the reclamation security fund 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 reclamation security fund
shall be used to reclaim abandoned quarry lands as provided in
section thirty-five of this article.
(f) If a permit is revoked pursuant to section twenty-three
of this article the payments that the permittee has made to the
reclamation security fund for that permit shall be forfeited.
The director shall use those forfeited payments for the
reclamation of the quarry to which it applied.
(g) If the cost of reclamation exceeds the amount of
payments the director shall also use moneys from the permittees bond or other security in conjunction with the revocation of that
permit, and if necessary, income from moneys deposited in the
reclamation security fund by other permittees.
§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
previous year;
(5) State and describe the amount and type of reclamation
carried out during the previous year; and
(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
security 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 may throw, dump or pile; or permit the throwing,
dumping, piling or otherwise placing of any overburden, stones,
rocks, coal, mineral, earth, soil, dirt, debris, trees, wood,
logs or other materials or substances of any kind or nature
beyond or outside the area of land which is under permit for
which bond has been posted, unless it is placed on a site which
has a permit allowing that activity, nor may any permittee place
any of the foregoing listed materials in 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 may 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 of slope.
(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
amounts;
(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 the construction.
(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 stabilization.
(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 reclamation plan.
(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 and, reseeded as necessary.
§22-4-22. Rules.
(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
miners' 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.
§22-4-23. Noncompliance.
(a) If any of the requirements of this article or rules
proposed pursuant to this article, 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 in the
notice, 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
to the permit forfeited.
(d) (1) Any permittee who forfeits a bond may 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 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 site.
§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
adjudication, 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 be confined in jail
for a period not exceeding six months, or 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 judgment of the circuit court upon any application
filed under the provisions of this article is final unless
reversed, vacated or modified on appeal to the supreme court of
appeals. Any appeal shall be sought in the manner provided by
law for appeals from circuit courts except that the petitioner
seeking the review shall file the petition with the supreme court
of appeals within thirty days from the date of entry of the
judgment of the circuit court.
§22-4-27. Appeals to the quarry review board.
Any person aggrieved or adversely affected by any rule or
order of the director or his or her failure to enter an order may
appeal to the quarry review board pursuant to the provisions of
article one, chapter twenty-two-b of this code, for an order
vacating or modifying the rule or order, or for an order the
director should have entered.
§22-4-28. Quarry review board.
(a) There is 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 party.
(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 successors are appointed
and qualified. The governor may reappoint any member whose term
expires. 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 filling a vacancy
during a term, the appointment is for the unexpired term. The
board shall elect a chair. Three members of the board is 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 their duties.
(c) The powers and duties of the board are:
(1) To review and approve rules proposed by the director
under this article;
(2) To hear appeals from orders or decisions of the
director;
(3) To affirm, vacate or modify any order or decision of the
director; and
(4) To approve expenditures from the quarry reclamation fund.
(d)(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) The filing of an appeal provided for in this section
stays execution of the order appealed.
(6) The board shall hear the appeal de novo, and any party
to the appeal may submit evidence.
(7)(A) 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 are 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.
(B) 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
the disobedience, neglect or refusal occurs, or any judge on
application of the board or any member of the board, shall compel obedience by attachment proceedings for contempt as in the case
of disobedience of the requirements of a subpoena or subpoena
duces tecum or a refusal to testify. Witnesses at a hearing
shall testify under oath, and any member of the board may
administer oaths or affirmations to persons who testify.
(8) 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, and if the board refuses to admit
evidence the party offering same may make a proffer of the
evidence, 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 the record.
(9) 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. 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.
(10) The order of the board is final unless vacated upon
judicial review of the order 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 judgment of the court is final unless reversed,
vacated or modified on appeal to the supreme court of appeals of
West Virginia.
§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. 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 this section, it shall notify the permittee in
writing and release the permittee from further obligations
regarding the affected land. At the same time it shall release
all or the appropriate portion of any performance bond or
reclamation security fund which the permittee has posted under
section sixteen or section eighteen of this article.
(b) The permittee shall furnish a final reclamation report
which includes the following:
(1) The terms of the original permit and all subsequent
modifications;
(2) A summary of the original 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.
§22-4-31. Exemptions.
(a) The provisions of this article do not apply to
activities of the West Virginia department of transportation and
any legally constituted public governing entities such as
municipal corporations or other political subdivisions, including
the federal government or to activities of any person acting
under contract with any of these public agencies or entities, on
highway rights-of-way or borrow pits owned, operated, or
maintained solely in connection with the construction, repair and
maintenance of the public roads system of the state or other
public facilities. This exemption does not become effective
until the public agencies or entities have adopted reclamation
standards applying to the activities.
(b) The provisions of this article do not apply to quarrying
on federal lands when performed under a valid permit from the
appropriate federal agency having jurisdiction over the land.
(c) The provisions of this article do not apply to the
following activities:
(1) Those aspects of 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 landowner; or
(7) Quarry operations if the affected land does not exceed
one acre in area.
§22-4-32. Premining land use and postreclamation useful
purposes of land.
The following is a partial list of primary land uses and
useful purposes of land to be applied in accordance with
subdivisions (2) and (3), subsection (b), section eight of this article:
(1) Cropland;
(2) Fish and wildlife;
(3) Forest land;
(4) Industrial/commercial;
(5) Pasture land;
(6) Recreation;
(7) Residential;
(8) Permanent water impoundment;
(9) Vegetated open space; and
(10) Wetlands.
§22-4-33. Groundwater protection.
(a) 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 this chapter.
(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 permit renewals.
§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) Reclamation projects that are to be financed by the
quarry reclamation fund shall be designed by the division.
(g) The quarry review board shall administer and approve all
expenditures from the quarry reclamation fund.
(h) 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, 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
article.
NOTE: The purpose of this bill is to outline procedures and
requirements for the regulation of quarries by the division of
environmental protection.
This article has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.