COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 614
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported March 1, 2000]
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A BILL to amend and reenact sections three, thirteen and
twenty-three, article three, chapter twenty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to surface mining of coal; modifying
provisions relating to restoring mined land to its approximate
original contour; including commercial forestry as allowable
post-mining land use; and establishing requirements for
bonding and release of bonds.
Be it enacted by the Legislature of West Virginia:
That sections three, thirteen and twenty-three, article three,
chapter twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-3. Definitions.
As used in this article, unless used in a context that clearly
requires a different meaning, the term:
(a) "Adequate treatment" means treatment of water by physical,
chemical or other approved methods in a manner so that the treated
water does not violate the effluent limitations or cause a
violation of the water quality standards established for the river,
stream or drainway into which such the water is released.
(b) "Affected area" means, when used in the context of surface
mining activities, all land and water resources within the permit
area which are disturbed or utilized during the term of the permit
in the course of surface mining and reclamation activities.
"Affected area" means, when used in the context of underground
mining activities, all surface land and water resources affected
during the term of the permit: (1) By surface operations or
facilities incident to underground mining activities; or (2) by
underground operations.
(c) "Adjacent areas" means, for the purpose of permit
application, renewal, revision, review and approval, those land and
water resources, contiguous to or near a permit area, upon which
surface mining and reclamation operations conducted within a permit
area during the life of such the operations may have an impact. "Adjacent areas" means, for the purpose of conducting surface
mining and reclamation operations, those land and water resources
contiguous to or near the affected area upon which surface mining
and reclamation operations conducted within a permit area during
the life of such the operations may have an impact.
(d) "Applicant" means any person who has or should have
applied for any permit pursuant to this article.
(e) "Approximate original contour" means that surface
configuration achieved by the backfilling and grading of the
disturbed mined areas so that the reclaimed area, including any
terracing or access roads, closely resembles the general surface
configuration of the land prior to mining and blends into and
complements the drainage pattern of the surrounding terrain, with
all highwalls and spoil piles eliminated: Provided, That water
impoundments may be permitted pursuant to subdivision (8),
subsection (b), section thirteen of this article: Provided,
however, That minor deviations may be permitted in order to
minimize erosion and sedimentation, retain moisture to assist
revegetation, or to direct surface runoff.
(f) "Assessment officer" means an employee of the division,
other than a surface mining reclamation supervisor, inspector or
inspector-in-training, appointed by the director to issue proposed
penalty assessments and to conduct informal conferences to review notices, orders and proposed penalty assessments.
(g) "Breakthrough" means the release of water which has been
trapped or impounded, or the release of air into any underground
cavity, pocket or area as a result of surface mining operations.
(h) "Coal processing wastes" means earth materials which are
or have been combustible, physically unstable or acid-forming or
toxic-forming, which are wasted or otherwise separated from product
coal, and slurried or otherwise transported from coal processing
plants after physical or chemical processing, cleaning or
concentrating of coal.
(i) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to sections six or
eight, article one of this chapter.
(j) "Disturbed area" means an area where vegetation, topsoil
or overburden has been removed or placed by surface mining
operations, and reclamation is incomplete.
(k) "Division" means the division of environmental protection.
(l) "Imminent danger to the health or safety of the public"
means the existence of such a condition or practice, or any
violation of a permit or other requirement of this article, which
condition, practice or violation could reasonably be expected to
cause substantial physical harm or death to any person outside the permit area before such the condition, practice or violation can be
abated. A reasonable expectation of death or serious injury before
abatement exists if a rational person, subjected to the same
conditions or practices giving rise to the peril, would not expose
the person to the danger during the time necessary for the
abatement.
(m) "Minerals" means clay, coal, flagstone, gravel, limestone,
manganese, sand, sandstone, shale, iron ore and any other metal or
metallurgical ore.
(n) "Operation" means those activities conducted by an
operator who is subject to the jurisdiction of this article.
(o) "Operator" means any person who is granted or who should
obtain a permit to engage in any activity covered by this article
and any rule promulgated hereunder under this article and includes
any person who engages in surface mining or surface mining and
reclamation operations, or both. The term shall also be construed
in a manner consistent with the federal program pursuant to the
federal Surface Mining Control and Reclamation Act of 1977, as
amended.
(p) "Permit" means a permit to conduct surface mining
operations pursuant to this article.
(q) "Permit area" means the area of land indicated on the
approved proposal map submitted by the operator as part of the operator's application showing the location of perimeter markers
and monuments and shall be readily identifiable by appropriate
markers on the site.
(r) "Permittee" means a person holding a permit issued under
this article.
(s) "Person" means any individual, partnership, firm, society,
association, trust, corporation, other business entity or any
agency, unit or instrumentality of federal, state or local
government.
(t) "Prime farmland" has the same meaning as that prescribed
by the United States secretary of agriculture on the basis of such
factors as moisture availability, temperature regime, chemical
balance, permeability, surface layer composition, susceptibility to
flooding and erosion characteristics and which historically have
been used for intensive agricultural purposes and as published in
the federal register.
(u) "Surface mine", "surface mining" or "surface mining
operations" means:
(1) Activities conducted on the surface of lands for the
removal of coal, or, subject to the requirements of section
fourteen of this article, surface operations and surface impacts
incident to an underground coal mine, including the drainage and
discharge therefrom from the mine. Such The activities include: Excavation for the purpose of obtaining coal, including, but not
limited to, such common methods as contour, strip, auger,
mountaintop removal, box cut, open pit and area mining; the uses of
explosives and blasting; reclamation; in situ distillation or
retorting, leaching or other chemical or physical processing; the
cleaning, concentrating or other processing or preparation and
loading of coal for commercial purposes at or near the mine site;
and
(2) The areas upon which the above activities occur or where
such the activities disturb the natural land surface. Such The
areas shall also include any adjacent land, the use of which is
incidental to any such the activities; all lands affected by the
construction of new roads or the improvement or use of existing
roads to gain access to the site of such the activities and for
haulage; and excavations, workings, impoundments, dams, ventilation
shafts, entryways, refuse banks, dumps, stockpiles, overburden
piles, spoil banks, culm banks, tailings, holes or depressions,
repair areas, storage areas, processing areas, shipping areas and
other areas upon which are sited structures, facilities, or other
property or materials on the surface, resulting from or incident to
such the activities: Provided, That such the activities do not
include the extraction of coal incidental to the extraction of
other minerals where coal does not exceed sixteen and two-thirds percent of the tonnage of minerals removed for purposes of
commercial use or sale, or coal prospecting subject to section
seven of this article. Surface mining may does not include any of
the following:
(i) Coal extraction authorized pursuant to a government-
financed reclamation contract;
(ii) Coal extraction authorized as an incidental part of
development of land for commercial, residential, industrial or
civic use; or
(iii) The reclamation of an abandoned or forfeited mine by a
no cost reclamation contract.
(v) "Underground mine" means the surface effects associated
with the shaft, slopes, drifts or inclines connected with
excavations penetrating coal seams or strata and the equipment
connected therewith which contribute directly or indirectly to the
mining, preparation or handling of coal.
(w) "Significant, imminent environmental harm to land, air or
water resources" means the existence of any condition or practice,
or any violation of a permit or other requirement of this article,
which condition, practice or violation could reasonably be expected
to cause significant and imminent environmental harm to land, air
or water resources. The term "environmental harm" means any
adverse impact on land, air or water resources, including, but not limited to, plant, wildlife and fish, and the environmental harm is
imminent if a condition or practice exists which is causing such
the harm or may reasonably be expected to cause such the harm at
any time before the end of the abatement time set by the director.
An environmental harm is significant if that harm is appreciable
and not immediately repairable.
(x) "Unanticipated event or condition" as used in section
eighteen of this article means an event or condition in a remining
operation that was not contemplated by the applicable surface coal
mining and reclamation permit.
(y) "Lands eligible for remining" means those lands that would
be eligible for expenditures under section four, article two of
this chapter. Surface mining operations on lands eligible for
remining may do not affect the eligibility of such the lands for
reclamation and restoration under article two of this chapter. In
event the bond or deposit for lands eligible for remining is
forfeited, funds available under article two of this chapter may be
used to provide for adequate reclamation or abatement. However, if
conditions constitute an emergency as provided in section 410 of
the federal Surface Mining Control and Reclamation Act of 1977, as
amended, then those federal provisions shall apply.
(z) "Replacement of water supply" means, with respect to water
supplies, contaminated, diminished or interrupted provision of water supply on both a temporary and permanent basis of equivalent
quality and quantity. Replacement includes provision of an
equivalent water delivery system and payment of operation and
maintenance cost in excess of customary and reasonable delivery
cost for the replaced water supplies.
Upon agreement by the permittee and the water supply owner,
the obligation to pay such the costs may be satisfied by a one-time
payment in an amount which covers the present annual operation and
maintenance costs for a period agreed to by the permittee and the
water supply owner.
§22-3-13. General environmental protection performance standards
for surface mining; variances.
(a) Any permit issued by the director pursuant to this article
to conduct surface mining operations shall require that the surface
mining operations will meet all applicable performance standards of
this article and other requirements set forth in legislative rules
proposed by the director.
(b) The following general performance standards are applicable
to all surface mines and require the operation, at a minimum to:
(1) Maximize the utilization and conservation of the solid
fuel resource being recovered to minimize reaffecting the land in
the future through surface mining;
(2) Restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any
mining, or higher or better uses of which there is reasonable
likelihood so long as the use or uses do not present any actual or
probable hazard to public health or safety or pose any actual or
probable threat of water diminution or pollution and the permit
applicants' declared proposed land use following reclamation is not
considered to be impractical or unreasonable, inconsistent with
applicable land use policies and plans, involves unreasonable delay
in implementation or is violative of federal, state or local law;
(3) Except as provided in subsection (c) of this section, with
respect to all surface mines, backfill, compact where advisable to
ensure stability or to prevent leaching of toxic materials, and
grade in order to restore the approximate original contour:
Provided, That in surface mining which is carried out at the same
location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits
relative to the volume of the overburden is large and where the
operator demonstrates that the overburden and other spoil and waste
materials at a particular point in the permit area or otherwise
available from the entire permit area is insufficient, giving due
consideration to volumetric expansion, to restore the approximate
original contour, the operator, at a minimum, shall backfill, grade
and compact, where advisable, using all available overburden and other spoil and waste materials to attain the lowest practicable
grade, but not more than the angle of repose, to provide adequate
drainage and to cover all acid-forming and other toxic materials,
in order to achieve an ecologically sound land use compatible with
the surrounding region: Provided, however, That in surface mining
where the volume of overburden is large relative to the thickness
of the coal deposit and where the operator demonstrates that due to
volumetric expansion the amount of overburden and other spoil and
waste materials removed in the course of the mining operation is
more than sufficient to restore the approximate original contour,
the operator shall, after restoring the approximate contour,
backfill, grade and compact, where advisable, the excess overburden
and other spoil and waste materials to attain the lowest grade, but
not more than the angle of repose, and to cover all acid-forming
and other toxic materials, in order to achieve an ecologically
sound land use compatible with the surrounding region and, the
overburden or spoil shall be shaped and graded in such a way as to
prevent slides, erosion and water pollution and revegetated in
accordance with the requirements of this article: Provided
further, That the director shall propose rules for legislative
approval in accordance with article three, chapter twenty-nine-a of
this code, governing variances to the requirements for return to
approximate original contour or highwall elimination and where adequate material is not available from surface mining operations
permitted after the effective date of this article for: (A)
Underground mining operations existing prior to the third day of
August, one thousand nine hundred seventy-seven; or (B) for areas
upon which surface mining prior to the first day of July, one
thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil
piles, affected by the surface mining operation to effectively
control erosion and attendant air and water pollution;
(5) Remove the topsoil from the land in a separate layer,
replace it on the backfill area, or if not utilized immediately,
segregate it in a separate pile from other spoil and, when the
topsoil is not replaced on a backfill area within a time short
enough to avoid deterioration of the topsoil, maintain a successful
vegetative cover by quick growing plants or by other similar means
in order to protect topsoil from wind and water erosion and keep it
free of any contamination by other acid or toxic material:
Provided, That if topsoil is of insufficient quantity or of poor
quality for sustaining vegetation, or if other strata can be shown
to be more suitable for vegetation requirements, then the operator
shall remove, segregate and preserve in a like manner any other
strata which is best able to support vegetation;
(6) Restore the topsoil or the best available subsoil which is best able to support vegetation;
(7) Ensure that all prime farmlands are mined and reclaimed in
accordance with the specifications for soil removal, storage,
replacement and reconstruction established by the United States
secretary of agriculture and the soil conservation service
pertaining thereto. The operator, at a minimum, shall: (A)
Segregate the A horizon of the natural soil, except where it can be
shown that other available soil materials will create a final soil
having a greater productive capacity, and if not utilized
immediately, stockpile this material separately from other spoil,
and provide needed protection from wind and water erosion or
contamination by other acid or toxic material; (B) segregate the B
horizon of the natural soil, or underlying C horizons or other
strata, or a combination of the horizons or other strata that are
shown to be both texturally and chemically suitable for plant
growth and that can be shown to be equally or more favorable for
plant growth than the B horizon, in sufficient quantities to create
in the regraded final soil a root zone of comparable depth and
quality to that which existed in the natural soil, and if not
utilized immediately, stockpile this material separately from other
spoil and provide needed protection from wind and water erosion or
contamination by other acid or toxic material; (C) replace and
regrade the root zone material described in paragraph (B) of this subdivision, with proper compaction and uniform depth over the
regraded spoil material; and (D) redistribute and grade in a
uniform manner the surface soil horizon described in paragraph (A)
of this subdivision;
(8) Create, if authorized in the approved surface mining and
reclamation plan and permit, permanent impoundments of water on
mining sites as part of reclamation activities in accordance with
rules promulgated by the director;
(9) Where augering is the method of recovery, seal all auger
holes with an impervious and noncombustible material in order to
prevent drainage except where the director determines that the
resulting impoundment of water in the auger holes may create a
hazard to the environment or the public welfare and safety:
Provided, That the director may prohibit augering if necessary to
maximize the utilization, recoverability or conservation of the
mineral resources or to protect against adverse water quality
impacts;
(10) Minimize the disturbances to the prevailing hydrologic
balance at the mine site and in associated off-site areas and to
the quality and quantity of water in surface and groundwater
systems both during and after surface mining operations and during
reclamation by: (A) Avoiding acid or other toxic mine drainage by
such measures as, but not limited to: (i) Preventing or removing water from contact with toxic producing deposits; (ii) treating
drainage to reduce toxic content which adversely affects downstream
water upon being released to water courses; and (iii) casing,
sealing or otherwise managing boreholes, shafts and wells and keep
acid or other toxic drainage from entering ground and surface
waters; (B) conducting surface mining operations so as to prevent
to the extent possible, using the best technology currently
available, additional contributions of suspended solids to
streamflow or runoff outside the permit area, but in no event shall
may contributions be in excess of requirements set by applicable
state or federal law; (C) constructing an approved drainage system
pursuant to paragraph (B) of this subdivision, prior to
commencement of surface mining operations, the system to be
certified by a person approved by the director to be constructed as
designed and as approved in the reclamation plan; (D) avoiding
channel deepening or enlargement in operations requiring the
discharge of water from mines; (E) unless otherwise authorized by
the director, cleaning out and removing temporary or large settling
ponds or other siltation structures after disturbed areas are
revegetated and stabilized, and depositing the silt and debris at
a site and in a manner approved by the director; (F) restoring
recharge capacity of the mined area to approximate premining
conditions; and (G) any other actions prescribed by the director;
(11) With respect to surface disposal of mine wastes,
tailings, coal processing wastes and other wastes in areas other
than the mine working excavations, stabilize all waste piles in
designated areas through construction in compacted layers,
including the use of noncombustible and impervious materials if
necessary, and assure the final contour of the waste pile will be
compatible with natural surroundings and that the site will be
stabilized and revegetated according to the provisions of this
article;
(12) Design, locate, construct, operate, maintain, enlarge,
modify and remove or abandon, in accordance with standards and
criteria developed pursuant to subsection (f) of this section, all
existing and new coal mine waste piles consisting of mine wastes,
tailings, coal processing wastes or other liquid and solid wastes,
and used either temporarily or permanently as dams or embankments;
(13) Refrain from surface mining within five hundred feet of
any active and abandoned underground mines in order to prevent
breakthroughs and to protect health or safety of miners: Provided,
That the director shall permit an operator to mine near, through or
partially through an abandoned underground mine or closer to an
active underground mine if: (A) The nature, timing and sequencing
of the approximate coincidence of specific surface mine activities
with specific underground mine activities are coordinated jointly by the operators involved and approved by the director; and (B) the
operations will result in improved resource recovery, abatement of
water pollution or elimination of hazards to the health and safety
of the public: Provided, however, That any breakthrough which does
occur shall be sealed;
(14) Ensure that all debris, acid-forming materials, toxic
materials or materials constituting a fire hazard are treated or
buried and compacted, or otherwise disposed of in a manner designed
to prevent contamination of ground or surface waters, and that
contingency plans are developed to prevent sustained combustion:
Provided, That the operator shall remove or bury all metal, lumber,
equipment and other debris resulting from the operation before
grading release;
(15) Ensure that explosives are used only in accordance with
existing state and federal law and the rules promulgated by the
director, which shall include provisions to:
(A) Maintain for a period of at least three years and make
available for public inspection, upon written request, a log
detailing the location of the blasts, the pattern and depth of the
drill holes, the amount of explosives used per hole and the order
and length of delay in the blasts; and
(B) Require that all blasting operations be conducted by
persons certified by the office of explosives and blasting.
(16) Ensure that all reclamation efforts proceed in an
environmentally sound manner and as contemporaneously as
practicable with the surface mining operations. Time limits shall
be established by the director requiring backfilling, grading and
planting to be kept current: Provided, That where surface mining
operations and underground mining operations are proposed on the
same area, which operations must be conducted under separate
permits, the director may grant a variance from the requirement
that reclamation efforts proceed as contemporaneously as
practicable to permit underground mining operations prior to
reclamation:
(A) If the director finds in writing that:
(i) The applicant has presented, as part of the permit
application, specific, feasible plans for the proposed underground
mining operations;
(ii) The proposed underground mining operations are necessary
or desirable to assure maximum practical recovery of the mineral
resource and will avoid multiple disturbance of the surface;
(iii) The applicant has satisfactorily demonstrated that the
plan for the underground mining operations conforms to requirements
for underground mining in the jurisdiction and that permits
necessary for the underground mining operations have been issued by
the appropriate authority;
(iv) The areas proposed for the variance have been shown by
the applicant to be necessary for the implementing of the proposed
underground mining operations;
(v) No substantial adverse environmental damage, either
on-site or off-site, will result from the delay in completion of
reclamation as required by this article; and
(vi) Provisions for the off-site storage of spoil will comply
with subdivision (22), subsection (b) of this section;
(B) If the director has promulgated specific rules to govern
the granting of the variances in accordance with the provisions of
this subparagraph and has imposed any additional requirements as
the director considers necessary;
(C) If variances granted under the provisions of this
paragraph are reviewed by the director not more than three years
from the date of issuance of the permit: Provided, That the
underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the
permit was issued, unless extended as set forth in subdivision (3),
section eight of this article; and
(D) If liability under the bond filed by the applicant with
the director pursuant to subsection (b), section eleven of this
article is for the duration of the underground mining operations
and until the requirements of subsection (g), section eleven and section twenty-three of this article have been fully complied with;
(17) Ensure that the construction, maintenance and post-mining
conditions of access and haul roads into and across the site of
operations will control or prevent erosion and siltation, pollution
of water, damage to fish or wildlife or their habitat, or public or
private property: Provided, That access roads constructed for and
used to provide infrequent service to surface facilities, such as
ventilators or monitoring devices, are exempt from specific
construction criteria provided adequate stabilization to control
erosion is achieved through alternative measures;
(18) Refrain from the construction of roads or other access
ways up a stream bed or drainage channel or in proximity to the
channel so as to significantly alter the normal flow of water;
(19) Establish on the regraded areas, and all other lands
affected, a diverse, effective and permanent vegetative cover of
the same seasonal variety native to the area of land to be affected
or of a fruit, grape or berry producing variety suitable for human
consumption and capable of self-regeneration and plant succession
at least equal in extent of cover to the natural vegetation of the
area, except that introduced species may be used in the
revegetation process where desirable or when necessary to achieve
the approved post-mining land use plan;
(20) Assume the responsibility for successful revegetation, as required by subdivision (19) of this subsection, for a period of
not less than five growing seasons, as defined by the director,
after the last year of augmented seeding, fertilizing, irrigation
or other work in order to assure compliance with subdivision (19)
of this subsection: Provided, That when the director issues a
written finding approving a long-term agricultural post-mining land
use as a part of the mining and reclamation plan, the director may
grant exception to the provisions of subdivision (19) of this
subsection: Provided, however, That when the director approves an
agricultural post-mining land use, the applicable five growing
seasons of responsibility for revegetation begins on the date of
initial planting for the agricultural post-mining land use;
On lands eligible for remining assume the responsibility for
successful revegetation, as required by subdivision (19) of this
subsection, for a period of not less than two growing seasons, as
defined by the director after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance
with subdivision (19) of this subsection;
(21) Protect off-site areas from slides or damage occurring
during surface mining operations and not deposit spoil material or
locate any part of the operations or waste accumulations outside
the permit area: Provided, That spoil material may be placed
outside the permit area, if approved by the director after a finding that environmental benefits will result from the placing of
spoil material outside the permit area;
(22) Place all excess spoil material resulting from
surface-mining activities in a manner that: (A) Spoil is
transported and placed in a controlled manner in position for
concurrent compaction and in a way as to assure mass stability and
to prevent mass movement; (B) the areas of disposal are within the
bonded permit areas and all organic matter is removed immediately
prior to spoil placements; (C) appropriate surface and internal
drainage system or diversion ditches are used to prevent spoil
erosion and movement; (D) the disposal area does not contain
springs, natural water courses or wet weather seeps, unless lateral
drains are constructed from the wet areas to the main under drains
in a manner that filtration of the water into the spoil pile will
be prevented; (E) if placed on a slope, the spoil is placed upon
the most moderate slope among those upon which, in the judgment of
the director, the spoil could be placed in compliance with all the
requirements of this article, and is placed, where possible, upon,
or above, a natural terrace, bench or berm, if placement provides
additional stability and prevents mass movement; (F) where the toe
of the spoil rests on a downslope, a rock toe buttress, of
sufficient size to prevent mass movement, is constructed; (G) the
final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses; (H) the design of
the spoil disposal area is certified by a qualified registered
professional engineer in conformance with professional standards;
and (I) all other provisions of this article are met: Provided,
That where the excess spoil material consists of at least eighty
percent, by volume, sandstone, limestone or other rocks that do not
slake in water and will not degrade to soil material, the director
may approve alternate methods for disposal of excess spoil
material, including fill placement by dumping in a single lift, on
a site specific basis: Provided, however, That the services of a
qualified registered professional engineer experienced in the
design and construction of earth and rockfill embankment are
utilized: Provided further, That the approval may not be
unreasonably withheld if the site is suitable;
(23) Meet any other criteria necessary to achieve reclamation
in accordance with the purposes of this article, taking into
consideration the physical, climatological and other
characteristics of the site;
(24) To the extent possible, using the best technology
currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife and related environmental values,
and achieve enhancement of these resources where practicable; and
(25) Retain a natural barrier to inhibit slides and erosion on permit areas where outcrop barriers are required: Provided, That
constructed barriers may be allowed where: (A) Natural barriers do
not provide adequate stability; (B) natural barriers would result
in potential future water quality deterioration; and (C) natural
barriers would conflict with the goal of maximum utilization of the
mineral resource: Provided, however, That at a minimum, the
constructed barrier shall be of sufficient width and height to
provide adequate stability and the stability factor shall equal or
exceed that of the natural outcrop barrier: Provided further, That
where water quality is paramount, the constructed barrier shall be
composed of impervious material with controlled discharge points.
(c) (1) The director may prescribe procedures pursuant to
which he or she may permit surface mining operations for the
purposes set forth in subdivision (3) of this subsection.
(2) Where an applicant meets the requirements of subdivisions
(3) and (4) of this subsection, a permit without regard to the
requirement to restore to approximate original contour set forth in
subsection (b) or (d) of this section may be granted for the
surface mining of coal where the mining operation will remove an
entire coal seam or seams running through the upper fraction of a
mountain, ridge or hill, except as provided in subparagraph (A),
subdivision (4) of this subsection, by removing all of the
overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, and capable of supporting post-mining
uses in accordance with the requirements of this subsection.
(3) In cases where an industrial, commercial, woodland,
agricultural, commercial forestry, residential, or public or fish
and wildlife habitat and facility recreation lands use including
recreational uses is proposed for the post-mining use of the
affected land, the director may grant a permit for a surface mining
operation of the nature described in subdivision (2) of this
subsection where: (A) The proposed post-mining land use is
determined to constitute an equal or better use of the affected
land, as compared with premining use; (B) the applicant presents
specific plans for the proposed post-mining land use and
appropriate assurances that the use will be: (i) Compatible with
adjacent land uses; (ii) practicable with respect to achieving the
proposed use; (iii) obtainable according to data regarding expected
need and market; (iv) supported by commitments from public agencies
where appropriate; (iv) (v) practicable with respect to private
financial capability for completion of the proposed use; (v) (vi)
planned pursuant to a schedule attached to the reclamation plan so
as to integrate the mining operation and reclamation with the post-
mining land use; and (vi) (vii) designed by a person approved by
the director in conformance with standards established to assure
the stability, drainage and configuration necessary for the intended use of the site; (C) the proposed use would be compatible
with adjacent land uses, and existing state and local land use
plans and programs; (D) the director provides the county commission
of the county in which the land is located and any state or federal
agency which the director, in his or her discretion, determines to
have an interest in the proposed use, an opportunity of not more
than sixty days to review and comment on the proposed use; and (E)
all other requirements of this article will be met.
(4) In granting any permit pursuant to this subsection, the
director shall require that: (A) A natural barrier be retained to
inhibit slides and erosion on permit areas where outcrop barriers
are required: Provided, That constructed barriers may be allowed
where: (i) Natural barriers do not provide adequate stability;
(ii) natural barriers would result in potential future water
quality deterioration; and (iii) natural barriers would conflict
with the goal of maximum utilization of the mineral resource:
Provided, however, That, at a minimum, the constructed barrier
shall be sufficient in width and height to provide adequate
stability and the stability factor shall equal or exceed that of
the natural outcrop barrier: Provided further, That where water
quality is paramount, the constructed barrier shall be composed of
impervious material with controlled discharge points; (B) the
reclaimed area is stable; (C) the resulting plateau or rolling contour drains inward from the outslopes except at specific points;
(D) no damage will be done to natural watercourses; (E) spoil will
be placed on the mountaintop bench as is necessary to achieve the
planned post-mining land use: And provided further, That all
excess spoil material not retained on the mountaintop shall be
placed in accordance with the provisions of subdivision (22),
subsection (b) of this section; and (F) ensure stability of the
spoil retained on the mountaintop and meet the other requirements
of this article.
(5) All permits granted under the provisions of this
subsection shall be reviewed not more than three years from the
date of issuance of the permit; unless the applicant affirmatively
demonstrates that the proposed development is proceeding in
accordance with the terms of the approved schedule and reclamation
plan.
(d) In addition to those general performance standards
required by this section, when surface mining occurs on slopes of
twenty degrees or greater, or on lesser slopes as may be defined by
rule after consideration of soil and climate, no debris, abandoned
or disabled equipment, spoil material or waste mineral matter will
be placed on the natural downslope below the initial bench or
mining cut: Provided, That soil or spoil material from the initial
cut of earth in a new surface mining operation may be placed on a limited specified area of the downslope below the initial cut if
the permittee can establish to the satisfaction of the director
that the soil or spoil will not slide and that the other
requirements of this section can still be met.
(e) The director may propose rules for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
that permit variances from the approximate original contour
requirements of this section: Provided, That the watershed control
of the area is improved: Provided, however, That complete
backfilling with spoil material is required to completely cover the
highwall, which material will maintain stability following mining
and reclamation.
(f) The director shall propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code, for the design, location, construction, maintenance,
operation, enlargement, modification, removal and abandonment of
new and existing coal mine waste piles. In addition to engineering
and other technical specifications, the standards and criteria
developed pursuant to this subsection shall include provisions for
review and approval of plans and specifications prior to
construction, enlargement, modification, removal or abandonment;
performance of periodic inspections during construction; issuance
of certificates of approval upon completion of construction; performance of periodic safety inspections; and issuance of notices
and orders for required remedial or maintenance work or affirmative
action: Provided, That whenever the director finds that any coal
processing waste pile constitutes an imminent danger to human life,
he or she may, in addition to all other remedies and without the
necessity of obtaining the permission of any person prior or
present who operated or operates a pile or the landowners involved,
enter upon the premises where any coal processing waste pile exists
and may take or order to be taken any remedial action that may be
necessary or expedient to secure the coal processing waste pile and
to abate the conditions which cause the danger to human life:
Provided, however, That the cost reasonably incurred in any
remedial action taken by the director under this subsection may be
paid for initially by funds appropriated to the division for these
purposes, and the sums expended shall be recovered from any
responsible operator or landowner, individually or jointly, by suit
initiated by the attorney general at the request of the director.
For purposes of this subsection "operates" or "operated" means to
enter upon a coal processing waste pile, or part of a coal
processing waste pile, for the purpose of disposing, depositing,
dumping coal processing wastes on the pile or removing coal
processing waste from the pile, or to employ a coal processing
waste pile for retarding the flow of or for the impoundment of water.
§22-3-23. Release of bond or deposits; application; notice; duties
of director; public hearings; final maps on grade
release.
(a) The permittee may file a request with the director for the
release of a bond or deposit. The permittee shall publish an
advertisement regarding such the request for release in the same
manner as is required of advertisements for permit applications.
A copy of such the advertisement shall be submitted to the director
as part of any bond release application and shall contain a
notification of the precise location of the land affected, the
number of acres, the permit and the date approved, the amount of
the bond filed and the portion sought to be released, the type and
appropriate dates of reclamation work performed and a description
of the results achieved as they relate to the permittee's approved
reclamation plan. In addition, as part of any bond release
application, the permittee shall submit copies of letters which the
permittee has sent to adjoining property owners, local government
bodies, planning agencies, sewage and water treatment authorities
or water companies in the locality in which the surface mining
operation is located, notifying them of the permittee's intention
to seek release from the bond. Any request for grade release shall
also be accompanied by final maps.
(b) Upon receipt of the application for bond release, the
director, within thirty days, taking into consideration existing
weather conditions, shall conduct an inspection and evaluation of
the reclamation work involved. Such The evaluation shall consider,
among other things, the degree of difficulty to complete any
remaining reclamation, whether pollution of surface and subsurface
water is occurring, the probability of continuance or future
occurrence of such the pollution and the estimated cost of abating
such the pollution. The director shall notify the permittee in
writing of his or her decision to release or not to release all or
part of the bond or deposit within sixty days from the date of the
initial publication of the advertisement if no public hearing is
requested. If a public hearing is held, the director's decision
shall be issued within thirty days thereafter.
(c) If the director is satisfied that reclamation covered by
the bond or deposit or portion thereof has been accomplished as
required by this article, he or she may release said the bond or
deposit, in whole or in part, according to the following schedule:
(1) For all operations except those with an approved variance
from approximate original contour:
(1)(A) When the operator completes the backfilling,
regrading and drainage control of a bonded area in accordance with
the operator's approved reclamation plan, the release of sixty percent of the bond or collateral for the applicable bonded area:
Provided, That a minimum bond of ten thousand dollars shall be
retained after grade release;
(2) (B) Two years after the last augmented seeding,
fertilizing, irrigation or other work to ensure compliance with
subdivision (19), subsection (b), section thirteen of this article,
the release of an additional twenty-five percent of the bond or
collateral for the applicable bonded area: Provided, That a
minimum bond of ten thousand dollars shall be retained after the
release provided for in this subdivision; and
(3) (C) When the operator has completed successfully all
surface mining and reclamation activities, the release of the
remaining portion of the bond, but not before the expiration of the
period specified in subdivision (20), subsection (b), section
thirteen of this article: Provided, That the revegetation has been
established on the regraded mined lands in accordance with the
approved reclamation plan: Provided, however, That such the a
release may be made where the quality of the untreated post-mining
water discharged is better than or equal to the premining water
quality discharged from the mining site.
(2) For operations with an approved variance from approximate
original contour:
(A) When the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with the operator's
approved reclamation plan, the release of fifty percent of the bond
or collateral for the applicable bonded area: Provided, That a
minimum bond of ten thousand dollars shall be retained after grade
release;
(B) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the release
of an additional ten percent of the bond or collateral for the
applicable bonded area: Provided, That a minimum bond of ten
thousand dollars shall be retained after the release provided for
in this subdivision; and
(C) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen of
this article: Provided, That the revegetation has been established
on the regraded mined lands in accordance with the approved
reclamation plan and if applicable the necessary post-mining
infrastructure is established and any necessary financing is
completed: Provided, however, That the release may be made where
the quality of the untreated post-mining water discharged is better
than or equal to the premining water quality discharged from the mining site.
No part of the bond or deposit may be released under this
subsection so long as the lands to which the release would be
applicable are contributing additional suspended solids to
streamflow or runoff outside the permit area in excess of the
requirements set by section thirteen of this article, or until soil
productivity for prime farmlands has returned to equivalent levels
of yield as nonmined land of the same soil type in the surrounding
area under equivalent management practices as determined from the
soil survey performed pursuant to section nine of this article.
Where a sediment dam is to be retained as a permanent impoundment
pursuant to section thirteen of this article, or where a road or
minor deviation is to be retained for sound future maintenance of
the operation, the portion of the bond may be released under this
subsection so long as provisions for sound future maintenance by
the operator or the landowner have been made with the director.
Notwithstanding the bond release scheduling provisions of
subdivisions (1), (2) and (3) of this subsection, if the operator
completes the backfilling and reclamation in accordance with an
approved post-mining land use plan that has been approved by the
division of environmental protection and accepted by a local or
regional economic development or planning agency for the county or
region in which the operation is located, provisions for sound future maintenance are assured by the local or regional economic
development or planning agency, and the quality of any untreated
post-mining water discharge complies with applicable water quality
criteria for bond release, the director may release the entire
amount of said the bond or deposit. The director shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code to govern a bond
release pursuant to the terms of this paragraph.
(d) If the director disapproves the application for release of
the bond or portion thereof, the director shall notify the
permittee, in writing, stating the reasons for disapproval and
recommending corrective actions necessary to secure said the
release and notifying the operator of the right to a hearing.
(e) When any application for total or partial bond release is
filed with the director, he or she shall notify the municipality in
which a surface mining operation is located by registered or
certified mail at least thirty days prior to the release of all or
a portion of the bond.
(f) Any person with a valid legal interest which is or may be
adversely affected by release of the bond or the responsible
officer or head of any federal, state or local governmental agency
which has jurisdiction by law or special expertise with respect to
any environmental, social or economic impact involved in the operation, or is authorized to develop and enforce environmental
standards with respect to such the operations, has the right to
file written objections to the proposed bond release and request a
hearing with the director within thirty days after the last
publication of the permittee's advertisement. If written
objections are filed and a hearing requested, the director shall
inform all of the interested parties of the time and place of the
hearing and shall hold a public hearing in the locality of the
surface-mining operation proposed for bond release within three
weeks after the close of the public comment period. The date, time
and location of such the public hearing shall also be advertised by
the director in a newspaper of general circulation in the same
locality.
(g) Without prejudice to the rights of the objectors, the
applicant, or the responsibilities of the director pursuant to this
section, the director may hold an informal conference to resolve
any written objections and satisfy the hearing requirements of this
section thereby.
(h) For the purpose of such the hearing, the director has the
authority and is hereby empowered to administer oaths, subpoena
witnesses and written or printed materials, compel the attendance
of witnesses, or production of materials, and take evidence,
including, but not limited to, inspections of the land affected and other surface mining operations carried on by the applicant in the
general vicinity. A verbatim record of each public hearing
required by this section shall be made and a transcript made
available on the motion of any party or by order of the director at
the cost of the person requesting the transcript.
______
(NOTE: The purpose of this bill is to add to West Virginia's
Surface Coal Mining and Reclamation Act provisions addressing when
mined land does not have to be restored to its approximate original
contour.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)