H. B. 4055
(By Delegates Linch, Johnson, Dalton, Webb,
Pino, Faircloth and Smirl)
(Originating in the House Committee on the Judiciary)
[February 29, 2000]
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; and to amend and reenact sections one and two,
article four, chapter twenty-two-b of said code, all relating
generally to quarry mining; creating the quarry reclamation
act; establishing legislative findings; defining terms;
establishing the powers and duties of the director of the
division of environmental protection; providing that the
quarry reclamation act does not apply to coal mining;
authorizing proposal of legislative rules; establishing
conditions and requirements for quarry permits; prohibiting
quarrying without a permit; establishing five year term for
permits; requiring quarry permit for certain underground
quarry operations and requiring performance bond; providing
for application review, including public hearing, notice and
comment period; providing for approval of quarry permits; authorizing denial of permit application, modification or
transfer under certain conditions; authorizing approval of
portion of permit area; providing certain requirements for
underground mines; providing for reinstatement under certain
conditions; prohibiting quarrying in certain areas;
authorizing permit denial in certain situations; allowing
permit denial at certain locations; establishing limitations
and conditions for permit denials; providing for writ of
mandamus to enforce performance of mandatory duty; authorizing
permit renewals and revisions; establishing criteria for
modification of permits; requiring application for permit
modifications; providing for minor permit modifications;
requiring public notice but not public hearing for minor
modifications; establishing requirements for major permit
modifications; requiring applicants for major permit
modifications meet same requirements as new permit applicants;
authorizing transfer of permits; establishing transfer fee;
prohibiting transfer of permits under certain conditions;
establishing requirements for pre-blast survey; establishing
restrictions on blasting; establishing a blasting formula;
requiring pre-blast plan to be filed; establishing site
specific blasting requirements; providing penalties;
authorizing promulgation of legislative rules for blasting
notice; establishing performance standards for quarry operations; establishing applicability of the ground water
protection act to portions of quarry operations; requiring a
quarrying and reclamation plan; establishing requirements of
quarrying and reclamation plans; establishing land reclamation
requirements; providing time period for reclamation; providing
that all quarry operations comply with approved quarrying and
reclamation plan and this article; requiring blasting
insurance; requiring performance bonds for new quarry
operations; allowing incremental and other forms of bonding;
providing for release of bond; establishing a bond pooling
fund; establishing requirements for participation in bond
pooling fund; authorizing expenditures from bond pooling fund
for reclamation upon forfeiture of bond; creating quarry
reclamation fund consisting of forfeited bonds, interest from
bond pooling fund, and civil administrative penalties;
providing treble damages for certain offenses; providing funds
from quarry reclamation fund to be used for reclamation of
abandoned quarries; providing for notice of noncompliance;
authorizing suspension or revocation of permit for
noncompliance; authorizing revocation of bond; authorizing
director to inspect quarry operations; authorizing enforcement
actions, civil and criminal penalties; authorizing appeals to
surface mine board; assessing fees relating to permits and
disposition of those fees; establishing quarry inspection and enforcement fund, requiring permit fees be deposited into
fund; providing exceptions for certain existing quarries;
declaring certain persons ineligible for permit; exempting
certain activities of governmental entities and manufacturers
from this article; authorizing quarry mining appeals to
surface mining board; adding alternative members to board to
hear quarry cases; establishing qualifications and eligibility
for alternative surface mine board members; and providing that
funds from quarry cases be deposited quarry reclamation fund.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE FOUR. QUARRY RECLAMATION ACT.
§22-4-1. Short title.
This article shall be known and may be cited as the "Quarry
§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,
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 many construction activities, without fine and coarse
aggregates, it would be impossible to build or maintain the State
roadways and airports, with every type of significant construction
activity being dependant on the availability and reasonable costs
of aggregate minerals and aggregate mineral products; 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.
This act also provides requirements intended to protect
wildlife and prevent the pollution to the environment surrounding
quarries, including rivers, streams, groundwater, aquifers and
lakes, to prevent and eliminate hazards to health and safety, to
protect all property owners' property rights, and to provide for
reclamation of quarried areas so as to assure the continued use and
enjoyment of these lands after quarrying is completed;
Further, certain areas in the state are inappropriate for
quarry mining while in most locations of West Virginia, quarrying
can be conducted in a fashion to prevent these undesirable
conditions, while allowing for mining of valuable minerals.
Therefore, the Legislature finds that the quarrying of
minerals and reclamation of quarry lands as provided by this act
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 quarry and reclaimed land.
Unless the context in which it is used clearly requires a
different meaning, as used in this article:
(1) "Abandoned quarry" or "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 at least six months and the
permittee has vacated the site covered by the permit without having
complied with all of the requirements of the permit.
An abandoned quarry lands does not mean a quarry which has
been granted inactive status by the director and does not mean a
quarry which has ceased operations and is in the process of
stabilization and reclamation.
(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 a type of fill or pile used for a specific
purpose other than excess spoil disposal; such purposes may
include, but not necessarily be limited to drainage control,
screening for noise control, screening for aesthetic value, or
safety barriers; provided, however, that a berm of ten vertical
feet or more at any point shall be designed and the construction certified by an approved person and provided further that any berm
consisting of greater than 20% fines or non-durable rock must be
protected from wind and water erosion.
(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 and his or her authorized agents.
(7) "Disturbed area" 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 quarrying activities of the operator, including
private ways and private roads appurtenant to the area, land
excavations, workings, refuse piles, product stockpiles, areas
grubbed of vegetation, 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.
(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
(11)"Manufacturing" means the process of converting raw
materials to salable products but does not include crushing or
screening of minerals undertaken in close proximity to active
(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, slate, 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) "Operator" means a person who engages in any activities
regulated by this article and any rules promulgated hereunder, who
as a result is required to hold a permit pursuant to the provisions
(16)"Permit area" means the area of land indicated on the
approved map submitted by the permittee and designated in the
permit including the location of end strip markers, permit markers and monuments.
(17) "Permittee" means any person who holds a valid permit
issued by the division to conduct quarrying activities pursuant to
(18) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity or
any agency, unit or instrumentality of federal, state or local
(19) "Protected structure" means any of the following
structures that are situated outside the permit area: an occupied
dwelling, a temporarily unoccupied dwelling which has been occupied
within the past ninety days, a public building, a structure for
commercial purposes, a school, a church, a community or
institutional building, a public park, spring box or, water well.
(20) "Quarrying" means any breaking of the ground surface in
order to facilitate the extraction of minerals. Quarrying also
includes any activity constituting all or part of a process for
mineral extraction or removal from their original location as well
as adjacent areas ancillary to the operation, including preparation
and processing activities, storage areas and haulage ways, roads
and trails. The term "quarrying" does not apply to manufacturing
operations, including those operations adjacent to the permitted
area where manufacturing is conducted.
(21) "Reclamation" means returning disturbed areas to a stable condition which does not create health or safety hazards or adverse
environmental impact, and when appropriate or required by permit,
returning disturbed quarry areas to a designated post mining land
(22)"Side of hill fill" means overburden, dirt or rock that
is placed on a natural slope of more than twenty degrees.
(23)"Spoil pile" means overburden and waste material
displaced by excavating equipment or other methods and placed on
natural ground with an original slope of zero degrees to twenty
(24)"Surface of regraded bench" means the top portion or part
of any regraded area.
(25)"Unreclaimed" means land which has not been stabilized,
or if a permit has been issued pursuant to this enactment, land
that has not been rehabilitated to a useful purpose in accordance
with the quarrying and reclamation plan approved by the division.
(26)"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
are greater than twenty degrees.
§22-4-4. Director of the division of environmental protection;
powers and duties.
The director of 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 sub-
division (2), subsection (u), section three, article three of this
In addition to any other powers or duties heretofore or
hereinafter granted, the director has the following powers and
(a) To control and exercise regulatory authority over all
quarry operations in this state and enforce the provisions of this
(b) To employ all necessary personnel to carry out the
purposes and requirements of this article;
(c) To propose any necessary legislative rules, in accordance
with the provisions of chapter twenty-nine-a of this code to
implement the provisions of this article; and
(d) To make investigations and inspections necessary to ensure
compliance with the provisions of this article.
(e) Nothing in this article may be construed as vesting in the
director the jurisdiction to adjudicate property-rights disputes.
§22-4-5. Quarry permit requirements.
(a) It is unlawful for any person to engage in quarrying
without having first obtained from the division a permit as
required by this article. The application shall fully state the
information required by the director. Each new quarry permit shall
be issued for a term of five years and is renewable for subsequent
terms of five years. The director may grant an administrative
extension of an existing permit for a period not to exceed one
year. 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
(b)The application shall include the following information:
(1)The names and addresses of the applicant and every
officer, partner, director, owner of the applicant;
(2)The names and mailing addresses of any person owning of
record or beneficially ten percent or more of any class of stock of
(3)The name of any person listed in subdivisions (1) or (2)
of this subsection who has ever had a quarry permit revoked or had
a quarry bond forfeited;
(4)The names and addresses of the owners of the surface of
the land to be quarried;
(5)The names and addresses of the owners of the mineral to
(6)The source of the applicant's legal right to conduct
quarrying on the land to be covered by the permit;
(7) A pre-quarry water assessment to establish the base level
quality and quantity as provided in section fourteen of this
(8)The number of acres to be included in the permit area;
(9)A list of other quarrying permits previously or currently
held by the applicant, by location and permit number, and any other
type of mining permits being applied for or currently held by the
(10)The common name and geologic title, where applicable, of
the mineral or minerals to be extracted;
(11)Provide proof of adequate insurance as required by this
(12)A quarrying and reclamation plan as is required by
section seventeen of this article;
(13) Any other information required by the director reasonably
necessary to effectuate the purposes of this article.
(c) The application for a permit shall be accompanied by
copies of an enlarged United States geological survey topographic
map meeting the requirements of the subdivisions below. Aerial
photographs of the area are acceptable if the plan for reclamation
can be shown to the satisfaction of the director. Attendant
documentation must include:
(1) A map prepared and certified by or under the supervision
of a registered professional civil engineer, or a registered
professional mining engineer, or a licensed land surveyor, who
shall submit to the director a certificate of registration as a
qualified engineer or land surveyor, and be in a scale approved by
(2) Identify the area to correspond with application;
(3) Show probable limits of adjacent underground mining
operations, probable limits of adjacent inactive or mined-out
areas and the boundaries of surface properties and names of surface
and mineral owners of the surface area within five hundred feet of
any part of the proposed disturbed area;
(4) Show the base of the crop line, including appropriate
geologic cross sections, regrading cross sections and attendant
(5) Show the names and locations of streams, creeks,
tributaries or bodies of public water, roads, buildings,
cemeteries, active, abandoned or plugged oil and gas wells, and
utility lines on the area of land to be disturbed and within five
hundred feet of such area;
(6) Show by appropriate markings the boundaries of the area of
land to be disturbed and the total number of acres involved in the
area of land to be disturbed;
(7) The date on which the map was prepared, the north point, and the longitude and latitude of the operation;
(8) Show the drainage plan on and away from the area of land
to be disturbed. Such plan shall indicate the directional flow of
water, constructed drainage systems, natural waterways used for
drainage, and the streams or tributaries receiving or to receive
this discharge. Upon receipt of such drainage plan, the director
may furnish the office of water resources of the division a copy of
all information required by this subdivision, as well as the names
and locations of streams, creeks, tributaries or bodies of public
water within five hundred feet of the area to be disturbed;
(9) Show the presence of known acid-producing materials which
when present in the overburden, may cause spoil with a pH factor
below 5.5, preventing effective revegetation. The presence of such
materials, wherever occurring in significant quantity, shall be
indicated on the map, filed with the application for permit. The
operator shall also indicate the manner in which acid-bearing spoil
will be suitably prepared for revegetation and stabilization,
whether by application of mulch or suitable soil material to the
surface or by some other type of treatment, subject to approval of
(10) The operator shall also indicate the manner in which all
permanent disposal sites will be stabilized.
(11) The certification of the maps shall read as follows: "I,
the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required
by the quarrying laws of this state." The certification shall be
signed and notarized. The director may reject any map as
incomplete if its accuracy is not so attested.
(d) Each applicant shall secure a performance bond or other
appropriate financial assurance and insurance as required by this
(e) A permit may cover more than one tract of land, if the
tracts are adjacent or part of the same quarrying complex, and
described in the application.
(f) If a permittee has more than one permit at any quarrying
site at an adjacent, or the same quarrying complex, and if the
director deems appropriate, permits may be consolidated into one
permit at the request of the permittee.
(g) A permit remains valid until quarrying is completed and
the final inspection and report are approved or until the permit is
revoked by the director.
(h) All underground quarry operations which disturb more than
five acres of surface must obtain a quarry permit, including
underground quarry operations located on more than one tract of
land, if the tracts are adjacent or part of the same mining complex
and the total disturbed area exceeds more than five acres. Those
underground operations which disturb less than five acres of
(1) File a notice of intent to operate with the director at
least sixty days prior to disturbance. The notice of intent to
operate shall be made in writing on forms prescribed by the
director and shall be signed and verified by the operator. This
notice shall include the information required by subdivisions one
though eleven and subdivision thirteen of subsection (b) of this
(2) The applicant shall publish a notice of intent to operate
as a Class III legal advertisement in accordance with the
provisions of article three, chapter fifty-nine of this code. The
notice shall contain, in abbreviated form, the following:
(A) The name and address of the operator;
(B) The name and addresses of the surface and mineral owners;
(C) That written comments on the application will be accepted
until a specified date, within thirty days after the first date of
publication of the notice;
(D) A description of the general area where the quarry will be
(E) The address of the office of the division to submit
(3) The director shall issue a decision to approve or deny the
notice of intent to operate, within thirty days of close of the
public comment period, unless the period is extended by the
director to receive additional application information. The director may deny or limit permission to operate upon the finding
that the underground quarry will cause serious adverse
environmental impacts pursuant to section seven or eight of this
(4) A minimum of a ten thousand dollar performance bond is
required for each underground mining intent to operate. This
performance bond shall be released if the permittee has complied
with all permit requirements and has begun underground mining.
Underground mining must begin within two years of receipt of a
notice of intent to operate.
§22-4-6. Application review, public notice and comment, and permit
(a) The director shall, upon receipt of an application for a
permit, determine if the application is complete and contains the
information required in the application. The director has thirty
days to review the application for technical completeness. An
application is complete when all required information has been
submitted to the director. If the application is determined
incomplete, the applicant shall be notified with written comments
stating the deficiencies. If the director finds the application
has technical deficiencies or other inadequacies which require
further information, the thirty day review period shall be
interrupted on the date the notice is mailed to the applicant, and
the time period shall resume upon receipt of the corrected and complete application. Should the applicant disagree with a
decision of the director, the applicant may, by written notice,
request a hearing before the director. The director shall hold the
hearing within thirty calendar days of receipt of this notice.
When a hearing has been held, the director shall notify the
applicant of the decision by certified mail within twenty days of
the hearing. An applicant aggrieved by a final order of the
director may, after the hearing or without a hearing, appeal the
order to the surface mine board. Any appeal to the board shall be
taken without prejudice by the director in the final review of a
(b) Upon the director's determination that an application is
complete, the applicant shall publish a notice of the application
for a permit as a Class III legal advertisement in accordance with
the provisions of article three, chapter fifty-nine of this code.
The notice shall contain, in abbreviated form, the information
required in the application. The notice shall state that written
comments on the application will be accepted until a specified
date, within thirty days after the first date of publication of the
notice. The notice shall also state that a copy of the complete
application including the quarrying and reclamation plans and maps
will be available for public inspection during the public comment
period at the office of the county clerk in the county or counties
in which the proposed permit area is located. The publication area of the notice 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 the
responsibility of the applicant.
(c) Prior to approval of any quarry mining permit, the
division shall upon receipt of a written request of a person having
expressed concern or objections to the proposed permit, cause a
public hearing to be held in the locality where the quarry
operation is proposed to be located for the purpose of receiving
comment regarding the expected or perceived impacts of the quarry
operation on the local area. Provided, That no public hearing is
required for a notice of intent to operate an underground quarry
with a surface disturbance less than five acres.
(d) The director shall receive and fully consider evidence or
comments submitted during the public comment period by any member
of the public.
(e) Within thirty days of close of the public comment period,
upon the determination by the director that proper public notice
has been given and comment has been received by the agency, and
that the quarrying operation will be conducted consistent with the
requirements of this article, then the director shall issue a
quarry permit to the applicant.
(f) The director, upon receipt of comments expressing
substantial new questions regarding the application, may reopen the public comment period.
§22-4-7. Denial of quarry permit.
(a) The director may deny a permit application, modification
or transfer for one or more of the following reasons:
(1) Any requirement of federal or state environmental law,
rule or regulation would be violated by the proposed permit.
(2) The proposed quarry operation will be located in an area
in the state which the director finds ineligible for a permit
pursuant to section eight.
(3) The applicant or any person required to be listed on the
application pursuant to section five of this article has not
corrected all violations of any prior permit issued pursuant to
this article which resulted in:
(A) Revocation of a permit;
(B) Cessation of the operation by order of the director;
(C) Forfeiture of all or part of the permit bond or other
(D) A court order issued against the applicant related to
mining or quarrying.
(E) The applicant or any person required to be listed on the
application pursuant to section five of this article has not paid
all fines or fees assessed by the agency or by court judgement
imposed pursuant to the provisions of this article.
(b) An applicant whose application for a permit, modification or transfer was denied may petition the director for review of the
denial decision. The director, in his or her discretion, may
approve an application which was previously denied because of a
past permit revocation or forfeiture if the person whose permit was
revoked or bond forfeited pays into the abandoned quarry
reclamation fund an amount determined by the director as adequate
to reclaim the area disturbed under the prior permit or completes
reclamation of site upon which the permit or bond was revoked or
forfeited, and demonstrates to the director's satisfaction that he
or she will comply with this article and rules promulgated
(c) The director may approve a portion of a permit area upon
a finding that approval of the entire permit area would otherwise
be denied pursuant to the provisions of this section.
§22-4-8. Limitations; mandamus.
The Legislature finds that there are certain areas in the
state of West Virginia which are impossible to reclaim either by
natural growth or by technological activity and that if quarrying
is conducted in these certain areas such operations may naturally
cause stream pollution, landslides, the accumulation of stagnant
water, flooding, the destruction of land for agricultural purposes,
the destruction of aesthetic values, the destruction of
recreational areas and future use of the area and surrounding
areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life
and property so as to constitute an imminent and inordinate peril
to the welfare of the state, and that such areas shall not be mined
by the surface-mining process.
Therefore, authority is hereby vested in the director to
delete certain areas from all quarrying operations.
No application for a permit shall be approved by the director
if there is found on the basis of the information set forth in the
application or from information available to the director and made
available to the applicant that the requirements of this article or
rules hereafter adopted will not be observed or that there is not
probable cause to believe that the proposed method of operation,
backfilling, grading or reclamation of the affected area can be
carried out consistent with the purpose of this article.
If the director finds that the overburden on any part of the
area of land described in the application for a permit is such that
experience in the state of West Virginia with a similar type of
operation upon land with similar overburden shows that one or more
of the following conditions cannot feasiblely be prevented: (1)
Substantial deposition of sediment in stream beds, (2) landslides,
or (3) acid-water pollution, the director may delete such part of
the land described in the application upon which such overburden
If the director finds that the operation will constitute a hazard to a dwelling house, public building, school, church,
cemetery, commercial or institutional building, public road,
stream, lake or other public property, then he or she shall delete
such areas from the permit application before it can be approved.
The director shall not give approval to quarry within one
hundred feet of any public road, stream, lake, or state, national
or interstate park or other public property, and shall not approve
the application for a permit where the quarry operation will cause
adverse affects to these locations unless adequate screening and
other measures approved by the director are to be utilized and the
permit application so provides: Provided, That the one-hundred-foot
restriction does not include berms, drainage control structures and
ways used for ingress and egress to and from the minerals as herein
defined and the transportation of the removed minerals, nor does it
apply to the dredging and removal of minerals from the streams or
watercourses of this state. The one hundred foot limitation may be
waived only when the director, upon consideration of local land
uses, finds that the land use of and near the permitted area will
be significantly enhanced by an alteration of the topography within
the one hundred foot barrier. Mineral removal shall be prohibited
within twenty five feet of all property lines: Provided, however,
That the twenty five foot setback area may, where appropriate, be
used for tree planting, berms, visual barriers, vegetation,
drainage structures, access right of ways or any other purposes approved by the director: Provided, further, That existing berms,
barriers, stockpiles, roads and other structures in existence
within the twenty-five foot set back prior to the effective date of
this section may remain in place. The permittee must provide
adequate revegetation within the setback, as is appropriate for the
Whenever the director finds that ongoing quarry operations are
causing or are likely to cause any of the conditions set forth in
the first paragraph of this section, he or she may order immediate
cessation of such operations and he or she shall take such other
action or make such changes in the permit as he or she may deem
necessary to avoid said described conditions.
The failure of the director to discharge the mandatory duty
imposed by this section is subject to a writ of mandamus, in any
court of competent jurisdiction by any private citizen affected
§22-4-9. Permit renewals and revisions.
(a) Any valid permit issued pursuant to this article carries
with it the right of successive renewal upon expiration with
respect to areas within the boundaries of the existing permit. All
permittees shall publish a Class I legal advertisement in
accordance with the provisions of article three, chapter fifty-nine
of this code.
(b) If an application for renewal of a valid permit includes a proposal to extend the quarry mining operation beyond the
boundaries authorized in the existing permit, that portion of the
application for renewal which addresses any new land area is
subject to the requirements for permit modifications as provided in
section ten of this article. Application for permit renewal shall
be made at least one hundred twenty days prior to the expiration of
the valid permit.
§22-4-10. Modification of permits.
(a) Prior to expanding or otherwise altering quarrying
operations beyond the activities authorized under an existing
quarry permit, a permittee shall obtain approval for modification
from the director. The application shall be in writing on forms
provided by the division, or the application may be submitted
electronically. Applicants shall verify electronic submissions by
signed affidavit. Information that remains unchanged from the
initial application is not required to be resubmitted. A permit
may be modified in any manner, so long as the director determines
that the modification fully meets the requirements of all
applicable federal and state law, regulations and rules, and that
the modifications would be consistent with the issuance of the
(b) No modification of a permit which has been approved by the
director becomes effective until any required changes have been
made in the performance bond or other security posted under the provisions of sections twenty or twenty two of this article to
assure the performance of obligations assumed by the permittee
under the permit and the quarrying and reclamation plan.
(c) A minor permit modification is one in which the proposed
modification would not cause a significant departure from the terms
and conditions of the existing permit and would not result in a
significant impact to the environment or to nearby property.
(d) An application for a minor permit modification shall
require information related to the modification, any impact it may
have on the original permit area and adjacent property, quarrying
and reclamation plans, and any other information deemed necessary
by the director. An application for a minor permit modification
requires public notice, but does not require a public hearing.
(e) Any application for a permit modification that is not a
minor permit modification is a major permit modification. An
application for a major permit modification must meet the same
requirements as for a new permit application. Modification of a
buffer zone of a quarry operation is always a major modification.
(f) The director shall act upon the application for a permit
modification pursuant to the provisions of subsection (a) of
section six of this article.
(g) The director may deny the application for a permit
modification for the reasons and under the stated procedure as for
new permits set forth in sections seven and eight of this article.
§22-4-11. Transfer of permits.
(a) When the interest of a permittee of any quarry operation
is sold, leased, assigned, or otherwise disposed of, the director
may transfer the permit and shall 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 of the permit.
The transferee shall provide applicable information as required by
this article and shall meet public notice and comments requirements
as required for major permit modifications.
(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 act upon the permit transfer as
expeditiously as possible but not later than thirty days after the
application forms and any supplemental information required are
filed with the director.
(d) The director may deny the permit transfer for any reasons
and under the same procedure set forth in section seven and eight
of this article. If the applicant proposes any change to the
permit conditions, the director shall review the application and
treat it as a modification as provided in this article.
(e) The director, for good cause shown, may allow transfer of
a revoked permit if the transferee complies with the requirements of this article and assumes the duties and responsibilities of the
(f) 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
(3) The right of the permittee and the proposed transferee to
a hearing before either or both the director or the surface mine
(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 surface mine 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.
§22-4-12. Pre-blast survey requirements.
(a) For all new permits issued after the effective date of this section, at least thirty days prior to commencing blasting, an
operator or an operator's designee shall make the following
notifications in writing to all owners and occupants of protected
structures that the operator or operator's designee will perform
pre-blast surveys in accordance with subsection (f) of this
section. The required notifications shall be to all owners and
occupants of protected structures within one thousand five hundred
feet of the blasting area.
(b) For quarries in operation as of the effective date of this
section, the quarry operator within one year, shall conduct a pre-
blast survey of the first protected structure within one thousand
feet of the blasting area. Any property owner may, at their own
expense, pay for a pre-blast survey meeting the provisions of this
article, for his or her protected structure to assess the impact of
future blasts to those dwellings or structures by an existing
(c) An occupant or owner of a man-made dwelling or structure
within the areas described in subsection (a) of this section, may
waive the right to a pre-blast survey in writing. If a dwelling is
occupied by a person other than the owner, both the owner and the
occupant must waive the right to a pre-blast survey in writing. If
an occupant or owner of a man-made dwelling or structure refuses to
allow the operator or the operator's designee access to the
protected structure and refuses to waive in writing the right to a pre-blast survey or to the extent that access to any portion of the
structure, underground water supply or well is impossible or
impractical under the circumstances, the pre-blast survey shall
indicate that access was refused, impossible or impractical. The
operator or the operator's designee shall execute a sworn affidavit
explaining the reasons and circumstances surrounding the refusals.
(d) If a pre-blast survey was waived by the owner and was
within the requisite area and the property is sold, the new owner
may request a pre-blast survey from the operator.
(e) An owner within the requisite area may request, from the
operator, a pre-blast survey on structures constructed after the
original pre-blast survey.
(f) The pre-blast survey shall include:
(1) The names, addresses or description of structure location
and telephone numbers of the owner and the residents of the
structure being surveyed and the structure number from the permit
(2) The current home insurer of the owner and the residents of
(3) The names, addresses and telephone numbers of the operator
and the permit number;
(4) The current general liability insurer of the operator;
(5) The name, address and telephone number of the person or
firm performing the pre-blast survey;
(6) The current general liability insurer of the person or
firm performing the pre-blast survey;
(7) The date of the pre-blast survey and the date it was
mailed or delivered to the director;
(8) A general description of the structure and its
appurtenances including, but not limited to: (A) The number of
stories; (B) the construction materials for the frame and the
exterior and interior finish; (C) the type of construction
including any unusual or substandard construction; and (D) the
approximate age of the structure;
(9) A general description of the survey methods and the
direction of progression of the survey, including a key to
(10) Written documentation and drawings, videos or photographs
of the pre-blast defects and other physical conditions of all
structures, appurtenances and water sources which could be affected
(11) Written documentation and drawings, videos or photographs
of the exterior and interior of the structure to indicate pre-blast
defects and condition;
(12) Written documentation and drawings, videos or photographs
of the exterior and interior of any appurtenance of the structure
to indicate pre-blast defects and condition;
(13) Sufficient exterior and interior photographs or videos, using a variety of angles, of the structure and its appurtenances
to indicate pre-blast defects and the condition of the structure
(14) Written documentation and drawings, videos or photographs
of any unusual or substandard construction technique and materials
used on the structure and/or its appurtenances;
(15) Written documentation relating to the type of water
supply, including a description of the type of system and treatment
being used, an analysis of untreated water supplies, a water
analysis of water supplies other than public utilities, and
information relating to the quantity and quality of water;
(16) When the water supply is a well, written documentation,
where available, relating to the type of well; the well log; the
depth, age and type of casing or lining; the static water level;
flow data; the pump capacity; the drilling contractor; and the
source or sources of the documentation;
(17) A description of any portion of the structure and
appurtenances not documented or photographed and the reasons;
(18) The signature of the person performing the survey; and
(19) Any other information required by the director which
additional information shall be established by rule in accordance
with article three, chapter twenty-nine-a of this code.
(g) The director may require a pre-blast survey as a condition
of a major permit modification, upon a finding that the proposed blasting area will occur within one thousand five hundred feet from
a protected structure, and will be of a nature and intensity to
potentially cause blasting damage.
§22-4-13. Blasting restrictions; blasting formula; filing
preplan; site specific blasting requirements;
(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, and comply with the following:
(1) 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 mine:
Provided, That the scaled distance formulas need not be used if a
seismograph measurement is located at the nearest protected
structure is recorded and maintained for every blast. If access to
the structure is refused by the owner of the protected structure,
the measurement may be taken as close as practicable between the
blast site and the protected structure. The peak particle
velocity in inches per second in any one of the three mutually perpendicular directions shall not exceed the following values at
any protected structure:
Seismograph Measurement Distance to the Nearest Protected Structure
1.25 0 - 300 feet
1.00 301 - 5,000 feet
0.75 5,001 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
(2) Airblast shall not exceed the maximum limits listed below
at the location of any dwelling, public buildings, school or
community or institutional building outside the permit area:
Lower frequency limit of measuring
system in Hz(+3dB) Maximum level in db
1Hz or lower-flat response* 134 peak
2Hz or lower-flat response 133 peak
6Hz or lower-flat response 129 peak
c-weighted-slow response* 105 peak dBC
* only when approved by the director.
(3) Access to the blast area shall be controlled against the
entrance of unauthorized personnel during blasting for a period
thereafter until an authorized person has reasonably determined that:
(A) No unusual circumstances exist such as imminent slides or
undetonated charges, etc.; and
(B) Access to and travel in or through the area can be safely
(4) 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 division of environmental protection with the application for
a permit. It shall be accepted if it meets the scaled distance
formula established in subdivision (1) of this section.
(5) 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 operator employee in charge of the blast;
(H) Seismograph data; and
(I) Date of seismograph calibration.
(b) Blasting within one thousand feet of a protected structure shall have a site specific blast design which may vary from the
requirements of this section as is approved by the director. The
site specific blast plan shall limit the type of explosive and
detonating equipment, the size, timing and frequency of blasts to:
prevent injury to persons; prevent damage to public and private
property outside the permit area; prevent adverse impacts to any
underground mine; and to minimize dust outside the permit area.
Provided, That for quarries permitted pursuant to section twenty-
seven, site specific blasting plan will not be required if not
required as part of its existing blasting plan, unless the director
determines that based on valid local complaints, the local
conditions require a site specific blasting plan.
(c) 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 quarry reclamation fund.
(d) The director shall propose legislative rules 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.
(e) Where inspection by the division of environmental
protection establishes that the scaled distance formula or the
seismograph results or the approved preplan are not being adhered to, the following penalties shall be imposed:
(1) For the first offense in any one permit year under this
section, the permit holder shall be assessed not less than five
hundred dollars nor more than one thousand dollars;
(2) For the second offense in any one permit year under this
section, the permit holder shall 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 shall be revoked.
§22-4-14. Performance standards.
Each permit issued by the director pursuant to this article
shall require the quarry operation, at a minimum, to meet the
following performance standards:
(a) The operator shall impound, drain or treat all runoff
water so as to reduce soil erosion, damage to agricultural lands
and prevent unlawful pollution of streams and other waters. The
director shall require as a condition of a new permit, groundwater
testing prior to and during quarrying. Tests shall be for both
quantity and quality of surrounding groundwaters. Groundwater test
sites above and below gradient of the proposed quarry shall be
established prior to quarrying to establish a six months baseline
for area groundwater. Test wells, seeps and springs may be utilized as is appropriate. Monthly testing shall be done prior to
the beginning of quarrying, and quarterly monitoring the first year
of quarrying. Annual testing is to be done for an additional four
years. If no adverse impact to groundwater is discovered, no
further monitoring will be required. However, upon subsequent
discovery of possible adverse impact, the director may require
monthly monitoring and appropriate remedial actions to be done by
(b) In the case of storm water accumulations or any
breakthrough of water, adequate treatment shall be undertaken by
the operator so as to prevent pollution occurring from the release
of water. 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 operator before it is released into the natural
(c) Water leaving the permit area is subject to the
requirements of article eleven of this chapter.
(d) The permittee shall place a monument as prescribed by the
division in an approved location near the operation. If a quarry
operation is under a single permit and is not geographically
continuous, the permittee shall locate additional monuments and
submit additional maps, as required by section five of this article, before mining other permitted areas.
(e) The operator shall remove or properly dispose of all
metal, equipment and other refuse resulting from the operation. No
permittee may engage in or allow, 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 operator place any of the foregoing listed materials in a way
that normal erosion 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) Prior to beginning quarrying operations, the operator
shall install, certify, and maintain a drainage system in
accordance with the approved drainage control plan. Lateral
drainage ditches connecting to natural or man-made waterways shall
be constructed to control water runoff, prevent erosion and provide
adequate drainage control. The depth and width of natural drainage
ditches and any other diversion ditches may vary depending on the
length and degree of slope.
(g) When the planting of an area has been completed and full
or partial bond release is requested the operator 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 types and rate of application of planting or seeding,
including mixtures and amounts;
(3) Types and rates of fertilizer and any other chemicals used
or added to the soil;
(4) The date of planting or seeding;
(5) The area of land planted; and
(6) 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.
(h) All fill and cut slopes of the operation and haulage ways
shall be seeded and planted in a manner as prescribed by the
quarrying and reclamation plan.
(i) 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 pursuant to this article shall
contain guidelines for establishing the various types of
(j) Planting shall be carried out so that it is completed
before the end of the first planting season. Vegetative planting
may be completed by the operator 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
(k) The operator may, where appropriate, use visual screening
methods such as berms, plantings, or fences which may be placed
within the buffer where conditions allow and where the site is
readily visible to the general public.
(l) If the permittee or other person desires to conduct
underground quarrying upon the premises or use underground quarry
surface 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 five of this article.
(m) The operator shall also comply with all other permit
conditions and requirements of this article and any rules
§22-4-15. Groundwater protection.
The Groundwater Protection Act provisions contained in
subsection (b), section four, article twelve of this chapter do not
apply to mineral extraction areas of quarry mining sites regulated
under this article. All other areas of the mine, including
groundwater beneath the mineral extraction area, and water discharges from the quarry shall meet the requirements of article
twelve of this chapter.
§22-4-16. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects the rights of any person
to enforce or protect, under applicable law, that person's interest
in water resources affected by removal of mineral resources.
(b) Any permittee shall replace the water supply of an owner
of interest in real property who obtains all or part of the owner's
supply of water for domestic, agricultural, industrial or other
legitimate use from an underground or surface source where the
supply has been affected by contamination, diminution or
interruption proximately caused by the mineral removal and
associated activities, unless right of replacement is waived by the
owner or unless the water supply is furnished by a public service
district, municipality, government entity or some other third
(c) A public service district, municipality, government
entity, or other party may contract with a permittee to obtain
water and waive the replacement of water supply if contamination,
diminution, or interruption should occur.
(d) If the director determines that: (1) contamination,
diminution or damage to an owner's underground water supply exists;
and (2) the contamination, diminution, or damage to the underground
water supply could not be due to seasonal variations, or other possible causes, then the permittee shall upon receiving written
notification from the director: (A) provide an emergency drinking
water supply within twenty-four hours; (B) provide a temporary
water supply within seventy-two hours; (C) provide a permanent
water supply within thirty days; and (D) pay all reasonable costs
incurred by the owner in securing a water supply; Provided, That
the permittee is entitled to recover the cost of replacing an
owners water supply if it is determined that contamination,
diminution, or damage to the water supply was not caused by mineral
removal activity of the permittee.
§22-4-17. Quarrying and reclamation plan.
(a) The application for a new permit shall include a proposed
quarrying and reclamation plan. In developing this complete
quarrying and reclamation mining plan all reasonable measures shall
be taken to eliminate damages to members of the public, their real
and personal property, public roads, streams and all other public
property from soil erosion, rolling stones and overburden, water
pollution and hazards dangerous to life and property.
(b) The quarrying and reclamation plan is required to be
completed by a person approved by the director. It shall include
the following information:
(1) The purpose for which the land to be permitted was
(2) The proposed useful purposes of the land following completion of quarrying;
(3) 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 permitted area and an approximate time frame
for reclamation of each area or phase of the quarrying;
(4) 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;
(5) The description of the proposed final topography for the
applicant's proposed land use after reclamation is completed and
the proposed method of accomplishment;
(6) The practices to provide public safety for adjacent
properties and provisions for fencing, berms or other site
improvements reasonably necessary to assure safety at the permitted
site after mining and reclamation is completed; and
(7) The manner and type of revegetation or other surface
treatment of the disturbed area; and
(c) An application for a permit shall indicate the existence
of known, threatened or endangered species located within the
proposed permit boundary as defined by federal Endangered Species
Act of 1973.
(d) The application shall provide the information on slope
gradient and fill plans as required in section eighteen of this article.
§22-4-18. Land reclamation requirements.
(a) Quarries shall meet the final design requirements for
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
(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 over excavation 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 that 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 so that the outer slope shall be
no steeper than two horizontal to one vertical. A twenty foot wide
bench shall be installed at a maximum of every fifty feet in
vertical height of the fill with a one percent to five percent
slope toward a constructed protected channel or natural drainway.
Provided, That constructed fill slopes may be steeper than two
horizontal to one vertical if they meet a static safety factor of
one point five (1.5) and are certified by a registered professional
(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.
(b) Highwalls which are to be left after completion of
quarrying shall 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, other physical limitations, or the post quarry land use
requires that the highwall remain.
(c) Backfills, fills, cut slopes or highwalls that exist and
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 (a) of this section. Permits issued prior to the
effective date of this section which contain the requirements of
subdivisions (1) and (2), subsection (a) or subsection (b) of this
section are not
exempt unless modified by the division.
(d) The final land form shall be graded to provide positive
drainage throughout the permit area except areas that are to be
inundated in accordance with the quarrying and reclamation plan
(e) Backfill may be exported off the permitted areas only for
beneficial uses as approved by the director.
(f) Permanent spoil piles will be stabilized, covered with suitable material and revegetated.
(g) Upon an order of the director, the operator shall, within
sixty days after service of a copy of the order to the operator by
certified United States mail, furnish to the division four copies
of a progress map which is prepared consistent with maps prepared
for permit applications as provided in section five of this
article, which shall show in detail completed reclamation work, as
required by the director. The progress map shall be within a
reasonable degree of accuracy as is required by the director. When
no additional land has been disturbed by operations during the
preceding year and the prior map is still up to date, in lieu of a
progress map, the operator shall provide a signed statement
regarding the status of the operation to the director. A final map
shall be submitted within sixty days after completion of mining
operations. Failure to submit maps or aerial photographs or
notices at specified times shall cause the permit in question to be
§22-4-19. Time period for reclamation.
(a) The operator shall commence the reclamation of the
incremental area of land disturbed by the operator after the
completion of all quarrying of that area in accordance with the
approved quarrying and reclamation plan. The quarrying and
reclamation plan for each operation shall be site specific in
describing how the quarrying and reclamation activities are to be coordinated to minimize total land disturbance and to keep
reclamation operations as contemporaneous as possible with the
advance of the quarry operations. All quarry operations shall be
conducted in compliance with the approved quarrying and reclamation
plan and the requirements of this article.
(b) At the option of the permittee and with the director's
concurrence, a quarry permit may be inactive for a time so
specified by the director, during which no mineral or overburden is
removed if the following conditions are met:
(1) That economically viable mineral reserves remain in the
(2) All disturbed areas are reclaimed or stabilized to prevent
erosion and sedimentation;
(3) All drainage and sediment control structures, such as
culverts, ditches, sediment basins and traps are maintained; and
(4) All vegetation is maintained and reseeded as necessary.
(c) Any permit which is not in operation and has failed to
apply for inactive status within six months is deemed an abandoned
§22-4-20. Fiscal responsibility.
(a) Each applicant must provide a certificate of insurance
issued by an insurance company authorized to do business in this
state for all operators at the site including blasting and
quarrying operators. Blasting insurance is not required of quarry operations which do not conduct blasting. The coverage shall
include not less than one million dollars for personal injury per
occurrence, and not less than five hundred thousand dollars for
property damage per occurrence. Proof of continuing insurance
coverage shall be required on an annual basis. In addition, the
insurance company shall promptly notify the director of any lapses,
default, nonrenewal, cancellation, or termination of coverage.
(b) Each applicant who makes application for a new permit
under section five 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.
(c) 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 required is ten thousand dollars.
(d) In lieu of a performance bond covering the entire
permitted area, the director may accept incremental bonding. If
incremental bonding is used, as succeeding increments of quarry
operations are to be initiated and conducted within the permit
area, the permittee shall file with the director an additional bond
or bonds to cover the increments in accordance with this section.
(e) The applicant may elect to execute the performance, surety
bonding, collateral bonding, establishment of an escrow account,
performance bonding fund participation, self-bonding or a
combination of these methods.
(f) If collateral bonding is used, the applicant may elect to
deposit cash, or collateral securities or certificates as follows:
bonds of the United States or its possessions, of the federal land
bank, or of the homeowners' loan corporation; 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; or certificates of deposit in a bank
in this state, which certificates shall be in favor of the
division. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the sum of the bond.
The director shall, upon receipt of any such deposit of cash,
securities or certificates, promptly 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 when the permit is issued. The
applicant or permittee making the deposit is entitled from time to
time to receive from the state treasurer, upon the written approval
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. Interest received on financial instruments shall
accrue to the applicant or permittee.
(g) The director shall authorize release of incremental
portions of a bond or other surety required in this section upon
verification of completion of adequate reclamation of a previously
mined portion of a quarry covered by the bond or other surety.
(h) The performance bond or deposits from the bond pooling
fund shall be forfeited upon failure of the permittee to perform in
the manner set forth in the approved quarrying and reclamation plan
or 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, of its intention to
initiate forfeiture proceedings. The permittee has thirty days to
request a hearing before the director. The director shall render
a decision within thirty days of the hearing. Where the operation
has deposited cash or securities as collateral in lieu of corporate surety, the director shall declare said collateral forfeited and
shall direct the state treasurer to pay said funds into the "quarry
reclamation fund" as created in section twenty-three of this
article, to be used by the director to effect proper reclamation
and to defray the cost of administering this article. Should any
corporate surety fail to promptly pay in full the forfeited bond,
it is disqualified from writing any further surety bonds under this
(i) Additional bond procedures shall be provided in
legislative rules proposed by the director and promulgated in
accordance with the provisions of chapter twenty-nine-a of this
(j) 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
twenty-one of this article.
§22-4-21. 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 director. Performance bonds shall be released upon acceptance into the bond pooling 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
§22-4-22. Bond pooling fund.
(a) Quarry operators who have operated for five years without
a serious violation under previous West Virginia mining law or the
provisions of this article, in lieu of the bonding requirements of
section twenty of this article, shall contribute to the "Bond
Pooling Fund," as provided in this section.
(b) For each quarry, permittees contributing to the pool 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. The payments shall continue until
the permittee has paid into the bond pooling fund a total of one
thousand dollars for each disturbed acre.
(c) There is hereby created in the state treasury a special
revenue fund known as the "Bond Pooling Fund". The fund shall
operate as a special fund whereby all deposits and payments thereto
do not expire to the general revenue fund, but shall remain in the
fund and be available for expenditure in succeeding fiscal years. This fund shall consist of fees collected by the director in
accordance with the provisions of this article. Interests of
moneys from this fund shall be deposited in the quarry reclamation
fund as established in section twenty-three of subsection (b) of
this section. Interest eared on moneys in this fund shall be
deposited in the quarry reclamation fund as established in section
twenty-three of this article.
(d) No annual bond pooling fund deposits may be collected from
permittees where the permit bond pooling fund deposits divided by
the number of disturbed acres bonded is equal to or greater than
one thousand per acre.
(e) Permittee deposits into the bond pooling fund shall be
released under any of the following conditions:
(1) On completion of the quarrying and reclamation, and after
all permit requirements have been fully complied with, the director
shall return all bond pooling fund deposits to the permittee
consistent with the bonding release requirements of section twenty-
one of this article.
(2) When the bond pooling fund balance for a permittee 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.
(f) The interest transferred to the quarry reclamation fund
under subsection (c) of this section shall be used to reclaim abandoned quarry lands as provided in section twenty-three of this
(g) If a permit is revoked pursuant to this article the
payments that the permittee has made to the bond pooling fund for
that permit shall be forfeited. The director shall use those
forfeited payments for the reclamation of the quarry to which it
(h) If the cost of reclamation exceeds the amount of payments
the permittee shall be liable for the reclamation costs that exceed
the permittee's payments to the bond pooling fund.
§22-4-23. Quarry reclamation fund.
(a) All funds received by the division from forfeiture of
bonds, civil administrative penalties, or interest from the bond
pooling fund shall be deposited into a special interest-bearing
account in the state treasury designated the "Quarry Reclamation
Fund." The quarry reclamation fund shall be used by the division
for reclamation of abandoned quarries.
(b) If the forfeiture of a performance bond or bonding pool
fund payments exceeds the cost of reclamation for which the
liability was charged, any excess amount shall be deposited into
the quarry reclamation fund.
(c) Reclamation projects that are to be financed by the quarry
reclamation fund shall be designed by the division.
(d) The director shall administer and approve all expenditures from the quarry reclamation fund.
(e) The division shall compile a list of abandoned quarries in
the state and rank them in order of need for reclamation.
§22-4-24. Orders, inspections and enforcement; permit revocation,
damages, civil and criminal penalties.
(a) The director may at reasonable times without prior notice
and upon presentation of appropriate credentials, enter any quarry
and conduct periodic inspections and examine any required
documentation to effectively implement and enforce the provisions
of this article and rules promulgated thereunder.
(b) Whenever the director finds that an ongoing quarry
operation is causing or is likely to cause imminent and substantial
harm to the environment, public safety, or public health, the
director may order immediate cessation of such operations, or
portions of operations, and shall take other action as is deemed
necessary to avoid adverse impact to the area.
(c) If the director, upon inspection or investigation
observes, discovers or learns of a violation of this article, rules
promulgated thereunder rules, or any permit condition or order
issued under this article, he or she shall:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under this
section includes, but is not limited to, any or all of the following: notice of non-compliance, orders suspending, revoking or
modifying permits, consent agreements which provide opportunity for
correction without further agency action, orders requiring a
permittee to take remedial action within a specified time, and
cease and desist orders;
(2) Seek an injunction in accordance with subsection (g) of
(3) Revoke the permit and pursue an appropriate remedy as
provided in this section;
(4) Institute a civil action in accordance with subsection (g)
of this section; or
(5) Request the prosecuting attorney of the county wherein the
alleged violation occurred, to bring an appropriate action, either
civil or criminal in accordance with subsection (g) or (h) of this
(d) If the operator has not reached an agreement with the
director or has not complied with the requirements set forth in the
notice of noncompliance or order of suspension within the time
limits set therein, the permit may be revoked by order of the
director and the performance bond or contributions to the bonding
pooling fund shall then be forfeited. If an agreement satisfactory
to the director 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 or contributions to the bond pooling fund with respect thereto forfeited.
(e) Any person who violates any provision of this article, any
permit condition or any rule or order issued pursuant to this
article is subject to a civil administrative penalty, to be levied
by the director, of not more than five thousand dollars for each
day of such violation, not to exceed a maximum of twenty thousand
dollars. The director may accept in kind assessment by reclamation
of an abandoned quarry site in lieu of cash payment of a civil
In assessing any such penalty, the director shall take into
account the seriousness of the violation and any good faith efforts
to comply with the applicable requirements as well as any other
appropriate factors as may be established by rules promulgated
pursuant to this article and article three, chapter twenty-nine-a
of this code. No assessment shall be levied pursuant to this
subsection until after the alleged violator has been notified by
certified mail or personal service. The notice shall include a
reference to the section of the statute, rule, order or statement
of permit conditions that was allegedly violated, a concise
statement of the facts alleged to constitute the violation, a
statement of the amount of the administrative penalty to be imposed
and a statement of the alleged violator's right to an informal
hearing. The alleged violator has twenty calendar days from receipt
of the notice within which to deliver to the director a written request for an informal hearing. If no hearing is requested, the
notice becomes a final order after the expiration of the twenty-day
period. If a hearing is requested, the director shall inform the
alleged violator of the time and place of the hearing.
The director may appoint an assessment officer to conduct the
informal hearing and then make a written recommendation to the
director concerning the assessment of a civil administrative
penalty. Within thirty days following the informal hearing, the
director shall issue and furnish to the alleged violator a written
decision, and the reasons therefor, concerning the assessment of a
civil administrative penalty. Within thirty days after
notification of the director's decision, the alleged violator may
request a formal hearing before the surface mine board. The
authority to levy a civil administrative penalty is in addition to
all other enforcement provisions of this article and the payment of
any assessment does not affect the availability of any other
enforcement provision in connection with the violation for which
the assessment is levied. No combination of assessments against
a violator under this section shall exceed five thousand dollars
for each day of such violation: Provided, That any violation for
which the violator has paid a civil administrative penalty assessed
under this section shall not be the subject of a separate civil
penalty action under this article to the extent of the amount of
the civil administrative penalty paid. All administrative penalties shall be levied in accordance with this article and rules
issued pursuant to this article. The net proceeds of assessments
collected pursuant to this subsection shall be deposited in the
quarry reclamation fund established in section twenty-three of this
article. No assessment levied pursuant to this subsection becomes
due and payable until the procedures for review of such assessment
as set out herein have been completed.
(f) Any person who violates any provision of this article, any
permit condition, rule or order issued pursuant to this article is
subject to a civil penalty not to exceed five thousand dollars for
each day of such violation, which penalty shall be recovered in a
civil action either in the circuit court wherein the violation
occurs or in the circuit court of Kanawha County.
(g) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any permit condition, rule or order issued pursuant
to this article. In seeking an injunction, it is not necessary for
the director to post bond nor to allege or prove at any stage of
the proceeding that irreparable damage will occur if the injunction
is not issued or that the remedy at law is inadequate. An
application for injunctive relief or a civil penalty action under
this section may be filed and relief granted notwithstanding the
fact that all administrative remedies provided for in this article
have not been exhausted or invoked against the person or persons against whom such relief is sought.
(h) Any person who willfully or negligently violates the
provisions of this article, any permit condition or any rule or
order issued pursuant to this article is subject to the same
criminal penalties as set forth in section twenty-four, article
eleven of this chapter.
(i) Upon request of the director, the prosecuting attorney of
the county in which the violation occurs shall assist the director
in any civil or criminal action under this section.
(j) In any civil action brought pursuant to the provisions of
this section, the state, or any agency of the state which prevails,
may be awarded costs, reasonable attorney's fees, and, when a
permit has been revoked, any actual costs incurred by the agency to
complete reclamation of an permitted site above and beyond monies
received as a result of bond forfeiture.
(k) In addition to and notwithstanding any other penalties
provided herein, any operator who directly causes damage to the
property of others as a result of quarrying is liable to them, in
an amount not in excess of three times the provable amount of such
damage, if and only if such damage occurs before or within one year
after such operator has completed all reclamation work with respect
to the land on which such quarrying was carried out and all bonds
of such operator with respect to such reclamation work are
released. Such damages are recoverable in an action at law in any court of competent jurisdiction.
(l) The director may reinstate a revoked permit and allow
resumption of quarrying upon a finding that the circumstance
causing the revocation has been abated and the director has
determined that the cause of the revocation will not reoccur upon
(m) It is unlawful for the owner or owners of surface rights
or the owner or owners of mineral rights to interfere with the
operator in the discharge of the operator's obligation to the state
for the reclamation of lands disturbed by the operator. The
director may initiate an action pursuant to either subsection (g)
or (h) of this section, to enforce this prohibition.
§22-4-25. Appeals to board.
Any person claiming to be aggrieved or adversely affected by
any ruling or order of the director or his or her failure to enter
an order may appeal to the surface mine board, pursuant to the
provisions of article one, chapter twenty-two-b of this code, for
an order vacating or modifying the ruling or order, or for an order
that the director should have entered.
§22-4-26. Required fees, quarry inspection and enforcement fund.
The permit application fee is one thousand dollars. The fee
for the original permit is one thousand dollars. The permit
renewal fee of five hundred dollars shall be submitted with the
renewal application and a progress report map. The fee for transferring a permit is five hundred dollars. The fee for a minor
permit modification is two hundred dollars and for major
modifications, five hundred dollars. There is hereby created in
the state treasury a special revenue fund known as the "Quarry
Inspection and Enforcement Fund". The fund shall operate as a
special fund whereby all deposits and payments thereto do not
expire to the general revenue fund, but shall remain in the fund
and be available for expenditure in succeeding fiscal years. This
fund shall consist of fees collected by the director in accordance
with the provisions of this section, as well as interest earned on
investments made from moneys deposited in the fund. Moneys from
this fund shall be expended by the director for the administration,
permitting, enforcement, inspection, monitoring and other
activities required by this article.
§22-4-27. Exception for certain existing quarries.
(a) Quarries that are in operation on or before the effective
date of this article, shall comply with the following:
(1) Within two years of the effective date of this article,
all quarry operations shall submit to the director a quarrying and
reclamation plan to bring the facility into compliance with the
requirements of this article and any rules promulgated thereunder.
These quarrying and reclamation plans shall include a reasonable
schedule, based on site specific conditions and the nature of the
quarry operation, to allow a transitional time period to bring the operation into compliance with current reclamation standards.
Quarry areas that are disturbed on the effective date of this act
are exempt from further reclamation requirements. For the purpose
of this section, disturbed areas include existing highwalls and all
material vertically below the surface of the area disturbed.
(2) Pre-blast survey and blasting plan requirements as
provided for existing quarries as provided by section twelve of
(3) Groundwater protection monitoring required by section
fourteen of this article will not be required if the director
verifies the operator's certification that no groundwater problems
at the quarry have occurred in the previous five years.
(c) The exclusions of this section are also applicable to
quarries permitted on or before the effective date of this article
and consolidated or renewed pursuant to subsection (f) of section
five of this article.
(d) Quarries in operation as of the effective date of this
article for the past five years without a serious permit violation,
shall participate in the bond pooling fund created in section
twenty-two of this article. All other operations shall comply with
the bonding requirements of section twenty of this article.
§22-4-28. Persons ineligible for a permit.
No public officer or employee in the division having any
responsibility or duty either directly or of a supervisory nature with respect to the administration or enforcement of this article
(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;
(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.
(a) The provisions of this article do not apply to activities
of the West Virginia department of transportation or any legally
constituted public governing entities including 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
(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
(1) Operations engaged only in processing minerals;
(2) Excavation or grading conducted solely in aid of on-site
farming or on-site construction for purposes other than quarrying;
(3) 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;
(4) 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;
(5) The removal or deposit of backfill material associated
with construction, farming and non-commercial activities;
(6) Noncommercial quarry operations by a landowner if the
disturbed area does not exceed one acre in area, upon notice to the
director by the owner of his or her intent to establish the quarry.
CHAPTER 22B. ENVIRONMENTAL BOARDS.
§ 22B-4-1. Appointment and organization of surface mine board.
(a) On and after the effective date of this article, the
"reclamation board of review," heretofore created, shall continue
in existence and hereafter shall be known as the "surface mine
(b) The board shall be composed of seven members who shall be
appointed by the governor with the advice and consent of the
Senate. Not more than four members of the board shall be of the
same political party. Each appointed member of the board who is
serving in such capacity on the effective date of this article
shall continue to serve on the board until his or her term ends or
he or she resigns or is otherwise unable to serve. As each
member's term ends, or that member is unable to serve, a qualified
successor shall be appointed by the governor with the advice and
consent of the Senate. One of the appointees to such board shall
be a person who, by reason of previous vocation, employment or
affiliations, can be classed as one capable and experienced in coal
mining. One of the appointees to such board shall be a person who,
by reason of training and experience, can be classed as one capable
and experienced in the practice of agriculture. One of the
appointees to such board shall be a person who by reason of
training and experience, can be classed as one capable and
experienced in modern forestry practices. One of the appointees to
such board shall be a person who, by reason of training and experience, can be classed as one capable and experienced in
engineering. One of the appointees to such board shall be a person
who, by reason of training and experience, can be classed as one
capable and experienced in water pollution control or water
conservation problems. One of the appointees to such board shall
be a person with significant experience in the advocacy of
environmental protection. One of the appointees to such board
shall be a person who represents the general public interest.
Provided: That, in any case brought before the board relating to
quarry operations as regulated by article four of chapter twenty-
two of this code, two alternate board members will serve on the
board who have expertise related to the operation of quarries.
These two alternate members will serve in place of the board member
appointed due to his or her expertise in coal operations and the
board member which has been appointed due to his or her expertise
in forestry. Each alternative member shall has the identical term
as the member which he or she is replacing. The alternative board
member replacing the member with expertise in coal shall be
appointed based on his or her expertise in quarry operations. The
alternative board member replacing the member with expertise in
forestry shall be appointed based on his or her expertise in
(c) During his or her tenure on the board, no member shall
receive significant direct or indirect financial compensation from or exercise any control over any person or entity which holds or
has held, within the two years next preceding the member's
appointment, a permit to conduct activity regulated by the
division, under the provisions of article three or four, chapter
twenty-two of this code, or any similar agency of any other state
or of the federal government: Provided, That the member classed as
experienced in coal mining, the member classed as experienced in
and the member classed as experienced in water
pollution control or water conservation problems and the two
alternative board members serving to hear quarry related cases may
receive significant financial compensation from regulated entities
for professional services or regular employment so long as the
professional or employment relationship is disclosed to the board.
No member shall participate in any matter before the board related
to a regulated entity from which the member receives or has
received, within the preceding two years direct or indirect
financial compensation. For purposes of this section, "significant
direct or indirect financial compensation" means twenty percent of
gross income for a calendar year received by the member, any member
of his or her immediate family or the member's primary employer.
(d) The members of the board shall be appointed for terms of
the same duration as their predecessor under the original
appointment of two members appointed to serve a term of two years;
two members appointed to serve a term of three years; two members to serve a term of four years; and one member to serve a term of
five years. Any member whose term expires may be reappointed by
the governor. In the event a board member is unable to complete
the term, the governor shall appoint a person with similar
qualification to complete the term. The successor of any board
member appointed pursuant to this article must possess the
qualification as prescribed herein. Each vacancy occurring in the
office of a member of the board shall be filled by appointment
within sixty days after such vacancy occurs.
§22B-4-2. Authority to receive money.
In addition to all other powers and duties of the surface mine
board, as prescribed in this chapter or elsewhere by law, the board
shall have and may exercise the power and authority to receive any
money as a result of the resolution of any case on appeal.
Moneys received from cases arising from the Surface Mine
Reclamation Act, as provided in article three of chapter twenty-two
shall be deposited to the credit of the special reclamation fund
created pursuant to section eleven, article three, chapter
twenty-two of this code. Moneys received from cases arising from
the Quarry Reclamation Act, as provided in article four of chapter
twenty-two of this code, shall be deposited to the credit of the
quarry reclamation fund created pursuant to section twenty-two,
four, chapter twenty-two of this code.