Senate Bill No. 328
(By Senators Ross, Anderson, Minard,
Snyder, Unger and Minear)
__________
[Introduced March 2, 2001; referred to the
Committee on Energy, Industry and Mining;
and then to the Committee on the Judiciary.]
__________
A BILL to amend and reenact section one, article three, chapter
sixty-four of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to authorizing the
division of environmental protection to promulgate a
legislative rule relating to surface mining blasting.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter sixty-four of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO PROMULGATE
LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-sixth day of October, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control air pollution from the emission of sulfur
oxides, 45 CSR 10), is authorized with the following amendments:
On page nine, paragraph 8.2.c.3., after the word "Director" by
striking out the remainder of the sentence;
On page nine, subdivision 8.3.a., in the last sentence, by
striking out the word "two" and inserting in lieu thereof the word
"five";
On page nine, subdivision 8.3.b., after the words "by the Director" by striking out the remainder of the sentence;
On page nine, subdivision 8.3.c., after the words "by the
Director" by striking out the remainder of the sentence;
And;
On page nine, by striking out subdivision 8.3.e in its
entirety and inserting in lieu thereof a new subdivision 8.3.e to
read as follows:
8.3.e.1. The Director shall respond within five working
days to requests for information generated or required under this
rule. Requests for information not in the Director's custody shall
be promptly forwarded to the appropriate federal or state agency
known to have such information.
8.3.e.2. Data regarding the compliance reporting of electric
utility SO
2
emissions is available from the U.S. Environmental
Protection Agency (EPA). Requests for EPA emissions data should be
sent to: EPA Clean Air Marketing Division, 501 3rd Street NW,
Washington, D.C. 20001 or online at http://www.epa.gov/acidrain/
edata.html. Data relating to fuel quality and costs of fuels are
available at the Federal Energy Regulatory Commission (FERC) and
the West Virginia Public Service Commission. Requests for FERC data should be sent to David P. Boergers, Secretary, Federal Energy
Regulatory Commission, 888 First Street NE, Washington, D.C. 20426
or online at http://www.ferc.fed.us/electric/f423/form423.htm.
Requests for PSC data should be sent to: The West Virginia Public
Service Commission, Utility Division, P.O. Box 812, Charleston, W.
Va. 25323-0812.
(b) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (ambient air quality standard for nitrogen
dioxide, 45 CSR 12), is authorized.
(c) The legislative rule filed in the state register on the
seventeenth day of December, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fifth day of January, two thousand, relating to the
division of environmental protection (permits for construction, modification, relocation and operation of stationary sources of air
pollutants, notification requirements, administrative updates,
temporary permits, general permits and procedures for evaluation,
45 CSR 13), is authorized with the following amendments:
On page 5, paragraph 2.17.f.6, by striking out the words "Upon
written request, the Director may determine that a physical change
results in";
And,
On page 5, paragraph 2.17.f.6, at the end of the paragraph, by
changing the period to a colon and inserting the words "provided
that the owner or operator of the source shall notify the Director
of such replacement and the emissions reduction within ten (10)
working days of the replacement."
(d) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (standards of performance for new
stationary sources, 45 CSR 16), is authorized.
(e) The legislative rule filed in the state register on the sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fourth day of September, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control particulate matter air pollution from
materials handling, preparation, storage and other sources of
fugitive particulate matter, 45 CSR 17), is authorized.
(f) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (to prevent and control particulate air
pollution from direct meat-firing devices, 45 CSR 18), is
authorized.
(g) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five, chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-seventh day of August, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control particulate air pollution from combustion
of fuel in indirect heat exchangers, 45 CSR 2), is authorized with
the following amendments:
On page seven, subdivision 8.1.a., in the last sentence, after
the words "by the Director" by striking out the remainder of the
sentence;
On page eight, subdivision 8.3.a, by adding a new sentence at
the end of the subdivision to read as follows: Such records shall
be retained on-site for a minimum of five years.;
On page eight, subdivision 8.3.b, in the first sentence, after
the words "by the Director" by striking out the remainder of the
sentence;
On page eight, subdivision 8.3.c, in the first sentence, after
the words "by the Director" by striking out the remainder of the
sentence;
On page eight, subdivision 8.4.c., after the word "subsection"
by striking out the number "8.4" and inserting in lieu thereof the
number "8.2";
And;
On page nine, by striking out subsection 8.5. in its entirety
and inserting in lieu thereof a new subsection 8.5. to read as
follows:
8.5.a. The Director shall respond within five working days to
requests for information generated or required under this rule.
Requests for information not in the Director's custody shall be
promptly forwarded to the appropriate federal or state agency known
to have such information.
8.5.b. Data relating to electric utilities and fuel quality
and costs of fuels are available from the Federal Energy Regulatory
Commission (FERC) and the West Virginia Public Service Commission
(PSC).
Requests for FERC data should be sent to David P. Boergers,
Secretary, Federal Energy Regulatory Commission, 888 First Street
NE, Washington, D.C. 20426 or online at http://www.ferc.
fed.us/electric/f423/form423.htm.
Requests for PSC data should be
sent to: The West Virginia Public Service Commission, Utility Division, P.O. Box 812, Charleston, W. Va. 25323-0812.
(h) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-sixth day of October, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control emissions from municipal solid waste
landfills, 45 CSR 23), is authorized.
(i) The legislative rule filed in the state register on the
twenty-second day of December, one thousand nine hundred
ninety-nine, authorized under the authority of section four,
article five, chapter twenty-two of this code, relating to the
division of environmental protection (to prevent and control
emissions from hospital, medical, and infectious waste
incinerators, 45 CSR 24), is authorized.
(j) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine, authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (to prevent and control air pollution from
hazardous waste treatment, storage or disposal facilities, 45 CSR
25), is authorized.
(k) The legislative rule filed in the state register on the
first day of February, one thousand nine hundred ninety-nine,
authorized under the authority of section eighteen, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first day of January, two thousand, relating to the
division of environmental protection (air pollutant emissions
banking and trading, 45 CSR 28), is authorized.
(l) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on the twenty-seventh day of August, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control air pollution from the operation of hot mix
asphalt plants, 45 CSR 3), is authorized.
(m) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (acid rain provisions and permits, 45 CSR
33), is authorized.
(n) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 63, 45 CSR 34), is authorized.
(o) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fourth day of September, one thousand nine hundred
ninety-nine, relating to the division of environmental protection
(to prevent and control air pollution from the operation of coal
preparation plants, coal handling operations and coal refuse
disposal areas, 45 CSR 5), is authorized.
(p) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, relating to the division of
environmental protection (to prevent and control air pollution from
combustion of refuse, 45 CSR 6), is authorized.
(q) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section four, article five,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fourth day of September, one thousand nine hundred ninety-nine, relating to the division of environmental protection
(to prevent and control particulate matter air pollution from
manufacturing processes and associated operations, 45 CSR 7), is
authorized.
(r) The legislative rule filed in the state register on the
twenty-second day of December, one thousand nine hundred
ninety-nine, authorized under the authority of section four,
article five, chapter twenty-two of this code, modified by the
division of environmental protection to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-fifth day of January, two thousand, relating
to the division of environmental protection (ambient air quality
standards for sulfur oxides and particulate matter, 45 CSR 8), is
authorized.
(s) The legislative rule filed in the state register on the
twenty-second day of December, one thousand nine hundred
ninety-nine, authorized under the authority of section four,
article five, chapter twenty-two of this code, modified by the
division of environmental protection to meet the objections of the
legislative rule-making review committee and refiled in the state register on the twenty-fifth day of January, two thousand, relating
to the division of environmental protection (ambient air quality
standards for carbon monoxide and ozone, 45 CSR 9), is authorized.
(t) The legislative rule filed in the state register on the
twenty-fourth twenty-ninth day of September, one thousand nine
hundred ninety-nine August, two thousand, authorized under the
authority of section three, article three-a, chapter twenty-two of
this code, modified by the division of environmental protection to
meet the objections of the legislative rule-making review committee
and refiled in the state register on the twenty-first twentieth day
of January February, two thousand one, relating to the division of
environmental protection (surface mining blasting, 199 CSR 1), is
authorized.
(u) The legislative rule filed in the state register on the
thirtieth day of July, one thousand nine hundred ninety-nine,
authorized under the authority of section three, article one,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first of January, two thousand, relating to the division of environmental protection (surface mining and reclamation rule,
38 CSR 2), is authorized with the following amendments:
On page 4, by inserting a new subsection 2.31 to read as
follows:
'2.31. Commercial Forestry And Forestry.
2.31.a. Commercial Forestry, as used in Subsection 7.4 of this
rule, means a long-term postmining land use designed to accomplish
the following: (1) Achieve greater forest productivity than that
found on the mine site before mining; (2) Minimize erosion and/or
sediment yield and serve the hydrologic functions of infiltrating,
holding, and yielding water commonly found in undisturbed forests;
(3) Result in biodiversity by facilitating rapid recruitment of
native species of plants and animals via the process of natural
succession; (4) Result in a premium forest that will thrive under
stressful conditions; and (5) Result in landscape, vegetation and
water resources that create habitat for forest-dwelling wildlife.
2.31.b. Forestry, as used in Subsection 7.4 of this rule,
means a long-term postmining land use designed to accomplish the
following: (1) Achieve forest productivity equal to that found on
the mine site before mining; (2) Minimize erosion and/or sediment yield and serve the hydrologic functions of infiltrating, holding,
and yielding water commonly found in undisturbed forests; (3)
Result in biodiversity by facilitating rapid recruitment of native
species of plants and animals via the process of natural
succession; and (4) Result in landscape, vegetation and water
resources that create habitat for forest-dwelling wildlife."
and renumber the subsequent subsections;
On page twelve, by striking subsection 2.136, the definition
of 'woodlands' in its entirety and renumber the subsequent
subsections;
On page 68, section 7.2.i, by striking the word 'Woodland' and
inserting in lieu thereof the word 'Forestry.'
On page 68, following section 7.3.c., by inserting the
following:
'7.3.c. A change in postmining land use to grassland uses such
as rangeland and/or hayland or pasture is prohibited on operations
that obtain an approximate original contour variance described in
WV Code §22-3-13(b)(25)(c). Provided, however, That this
subdivision is not effective until Sections 7.4 and 7.5 of this
rule are approved by the federal Office of Surface Mining.
7.4. Standards Applicable to Approximate Original Contour
Variance Operations With a Postmining Land Use of Commercial
Forestry and Forestry.
7.4.a. Applicability.
7.4.a.1. Commercial Forestry and forestry may be approved as
a post mining land use for surface mining operations that receive
variances from the general requirement to restore the postmining
site to its approximate original contour. An applicant may request
AOC variance for purposes of this section for the entire permit
area or any segment thereof. Either commercial forestry or
forestry shall be established on all portions of the permit area.
Provided, that the faces of valley fills shall be reclaimed as
described in 7.4.b.1.J of this rule.
7.4.b. Requirements.
7.4.b.1.The Director may authorize commercial forestry and
forestry as a postmining use only if the following conditions have
been satisfied.
7.4.b.1.A. Planting and Management Plan Development.
7.4.b.1.A.1. A registered professional forester shall develop
a planting plan and long-term management plan for the permitted area that meets the requirements of the West Virginia Surface Coal
Mining and Reclamation Act. These plans shall be made a part of
the surface mining permit application and shall be the basis for
determining the capability of the applicant to meet the
requirements of this rule. The plans shall be in sufficient detail
to demonstrate that the requirements of the commercial forestry and
forestry uses can be met. The plans shall contain a signed
statement of intent from the landowner demonstrating its commitment
to long-term implementation and management in accordance with the
plan. Once final bond release is authorized, the permittee's
responsibility for implementing the long-term management plan
ceases. Upon final bond release, the jurisdiction of the Director
over the permittee, the operator, the landowner or any other
responsible party shall cease. The minimum required content of
these plans shall be as follows:
7.4.b.1.A.2. The landowner or other responsible party shall
submit their objectives for achieving commercial forestry and
forestry postmining land uses. The Director may approve the uses
only when the planting plan and long term management plan
demonstrate that the forest will be managed only for long term forest products, such as sawlogs or veneer, that take 50 to 80
years to mature.
7.4.b.1.A.3. A commercial species planting plan and
prescription shall be developed by the registered professional
forester to achieve the commercial forestry and forestry use. The
plan shall include the following:
7.4.b.1.A.3.(a) A topographic map of the permit area, 1:12000
or finer, showing the mapped location of premining native soil. A
description of each soil mapping unit that includes, at minimum,
total depth and volume to bedrock, soil horizons, including the O,
A, E, B, C, and Cr horizon depths, soil texture, structure, color,
reaction and bedrock type and a site index for common native tree
species. An approved certified professional soil scientist shall
conduct a detailed on-site survey, create the maps, and provide the
written description of the soils. As part of the field survey, the
soil scientist shall map and certify the slopes that are 50% or
less with a confidence level of ± 2%.
7.4.b.1.A.3.(b) An approved geologist shall create a
certified geology map showing the location, depth, and volume of
all strata in the mined area, the physical and chemical properties of each stratum to include rock texture, pH, potential acidity and
alkalinity, total soluble salts, degree of weathering, extractable
levels of phosphorus, potassium, calcium, magnesium, manganese, and
iron and other properties required by the director to select best
available materials for minesoils.
7.4.b.1.A.3.(c) A description of the present soils and soil
substitutes to be used as the plant medium and the proposed
handling, and placement of these materials. The handling plan
shall include procedures to:
7.4.b.1.A.3.(c)(1) protect native soil organisms and the
native seed pool;
7.4.b.1.A.3.(c)(2) include organic debris such as litter,
branches, small logs, roots, and stumps in the soil;
7.4.b.1.A.3.(c)(3) inoculate the minesoil with native soil
organisms;
7.4.b.1.A.3.(c)(4) increase soil fertility; and
7.4.b.1.A.3.(c)(5) encourage plant succession.
7.4.b.1.A.3.(d) A surface preparation plan which includes a
description of the methods for replacing and grading the soil and
other soil substitutes and their preparation for seeding and tree planting.
7.4.b.1.A.3.(e) Liming and fertilization plans.
7.4.b.1.A.3.(f) Mulching type, rates and procedures.
7.4.b.1.A.3.(g) Species seeding rates and procedures for
application of perennial and annual herbaceous, shrub, and vine
plant materials for ground cover.
7.4.b.1.A.3.(h) A tree planting prescription to establish
commercial forestry and forestry, to include species, stems per
acre, planting mixes, and site-specific planting arrangements to
maximize productivity.
7.4.b.1.A.4. A long-term management plan shall be developed
by a registered professional forester. The plan shall include:
7.4.b.1.A.4.(a) A topographic map, with a minimum scale of
1:12000 shall be used to show the boundaries and extent of the
proposed surface mining operation, the boundaries of areas being
planned for commercial forestry and forestry land uses, and the
proposed postmining surface configuration, stream drainages and
wetlands, and the plant species mix that will be planted in each
area.
7.4.b.1.A.4.(b) A proposed schedule of all silvicultural activities necessary to develop the forest resources for commercial
forestry and forestry.
7.4.b.1.A.4.(c) A description of activities necessary to
protect the forest resources from vandalism, wildfire, insects,
diseases, exotic organisms and herbivory detrimental to long-term
success.
7.4.b.1.A.4.(d) A plan to assure forest access for future
management, protection, and eventual utilization of the forest
resources. The plan shall be developed to minimize adverse
environmental impacts, including additional road building and other
land disturbances. Forestry best management practices shall be
followed.
7.4.b.1.A.4.(e) A plan for using forestry best management
practices to minimize silvicultural and harvesting impacts on the
permit area and on waters of the State. Best Management Practices
shall be sufficient to assure compliance with applicable State and
Federal water quality standards.
7.4.b.1.A.5. A signed statement from the permittee containing
financial information and data sufficient to demonstrate:
7.4.b.1.A.5.(a) That achieving the commercial forestry use is practicable with respect to the private financial capability
necessary to achieve the use; and
7.4.b.1.A.5.(b) That the commercial forestry use will be
obtainable according to data regarding expected need and market.
7.4.b.1.A.6. Two copies of the planting plan, management
plan, pertinent maps and statement of intent shall be submitted to
the appropriate Division of Forestry District Forester and two
copies of each plan shall be submitted to the Director of the
Division of Environmental Protection.
7.4.b.1.B. Oversight Procedures for Achieving Commercial
Forestry and Forestry.
7.4.b.1.B.1. Before approving a commercial forestry and
forestry reclamation plan, the Director shall assure that the
planting plan, long-term management plan, and statement of intent
are reviewed and approved by a registered professional forester
employed either by the West Virginia Division of Forestry or the
Director of the Division of Environmental Protection and that a
certified professional soil scientist employed by the Director
reviews and field verifies the soil slope and sandstone mapping.
Before approving the reclamation plan, the Director shall assure that the reviewing forester has made site-specific written findings
adequately addressing each of the elements of the plans and
statements. The reviewing forester and soil scientist shall make
these findings within 45 days of receipt of the plans and maps.
7.4.b.1.B.2. If after reviewing the plans, the reviewing
forester and soil scientist find that the plans and statements
comply with the requirements of this land use, they shall prepare
written findings stating the basis of approval. A copy of the
findings shall be sent to the Director and to the surface mining
permit supervisor for the region in which the permit is located.
The written findings shall be made part of the facts and findings
section of the surface mining permit application file. The
Director shall assure that the plans and statements comply with the
requirements of this rule and other provisions of the approved
State surface mining program.
7.4.b.1.B.3. If the reviewing forester finds the plans to be
insufficient, the forester shall either:
7.4.b.1.B.3.(a) Contact the preparing forester or the
permittee and provide the permittee with an opportunity to make the
changes necessary to bring the reclamation plan into compliance with the regulations, or
7.4.b.1.B.3.(b) Notify the Director that the reclamation plan
does not meet the requirements of the regulations. The Director
may not approve the surface mining permit until finding that the
reclamation plans satisfy all of the requirements of the
regulations.
7.4.b.1.C. Landscape Criteria.
7.4.b.1.C.1. For commercial forestry, the Director shall
assure that the postmining landscape is rolling, and diverse. The
backfill on the mine bench shall be configured to create a
postmining topography that includes the principles of landforming
(e.g. the creation of swales) to reflect the premining
irregularities in the land. Postmining landform shall provide a
rolling topography with slopes of both 5% and 15% with an average
slope of 10% to 12.5%. The elevation change between the ridgeline
and the valleys shall be varied. The slope lengths shall not
exceed 500 feet. The minimum thickness of backfill, including
minesoil, placed on the pavement of the basal seam mined in any
particular area shall be ten (10) feet.
7.4.b.1.C.2. For commercial forestry, the surface drainage pattern shall contain watersheds of various sizes shall exhibit a
dendritic drainage pattern that simulates the premining pattern,
and shall include the drainage channels, sediment control or other
water retention surfaces, which shall remain on the site after bond
release.
7.4.b.1.C.3. For commercial forestry, in areas where drainage
channel design criteria do not mandate erosion control materials,
and in other drainage areas where applicable, bioengineering
techniques such as fascines, branch packings, live crib walls, and
plantings of native herbs and shrubs appropriate for the site shall
be used, to the extent possible, to increase the site biodiversity.
Only native stone shall be used for erosion control.
7.4.b.1.C.4. For commercial forestry, at least 3 ponds,
permanent impoundments or wetlands totaling at least 3.0 acres
shall be created on each 200 acres of permitted area. They shall
be dispersed throughout the landscape and each water body shall be
no smaller than 0.20 acres. All ponds, permanent impoundments or
wetlands shall be subject to the requirements of subsection 5.5 of
this rule, and shall be left in place after final bond release.
The substrate of the ponds and wetlands must be capable of retaining water to support aquatic and littoral vegetation.
7.4.b.1.C.5. For forestry, all ponds and impoundments created
during mining shall be left in place after bond release and shall
be subject to the requirements of section 5.5 of the Rules, except
for ponds and impoundments located below the valley fills. The
substrate of the ponds and wetlands must be capable of retaining
water to support aquatic and littoral vegetation.
7.4.b.1.C.6. Before Phase III bond release may be approved,
the ponds, permanent impoundments or wetlands used to satisfy parts
7.4.d.1.C.4. and 5. of this rule shall be vegetated on the
perimeter with at least six native herbaceous species typical of
the region at a density of not less than 1 plant per linear foot of
edge, and at least 4 native shrub species at a density of not less
than 1 shrub per 6 linear feet of edge. No species of herbaceous
or shrub species shall be less than 15% of the total for its life
form. This requirement may be met by planted vegetation or that
which naturally colonizes the site.
7.4.b.1.C.7. The landscape criteria in parts 7.4.d.1.C.1., 2.,
3., 4., 5., and 6. above, do not apply to valley fills.
7.4.b.1.D. Soil and Soil Substitutes.
7.4.b.1.D.1. Soil is defined as and shall consist of the O, A,
E, B, C and Cr horizons.
7.4.b.1.D.2. The Director shall require the operator to
recover and use the soil volume equal to the total soil volume on
the mined area, as shown on the soil maps and survey except for
those areas with a slope of at least 50%. The Director shall assure
that all saved soil includes all of the material from the O through
Cr horizons.
7.4.b.1.D.3. When the soil volume recovered in 7.4.b.1.D.2.
above, is insufficient to meet the depth requirements, selected
overburden materials may be used as soil substitutes. In such
cases, the Director shall require the operator to recover and use
all of the weathered, slightly acid brown sandstone from within ten
(10) feet of the soil surface on the mined area. This weathered,
slightly acid, brown sandstone material may contain or be
supplemented with up to 25% by-volume weathered, slightly acid
brown shale or siltstone from within ten (10) feet of the soil
surface. Material from this layer may be removed with the soil and
mixed with the soil in order to meet the depth requirement.
Provided, that once the operator has recovered material sufficient to meet the depth requirements, it may cease recovering such
material.
7.4.b.1.D.4. When the materials described in 7.4.b.1.D.2. and
3. of this rule are insufficient to meet the depth requirements,
then the Director shall require the operator to recover and use all
of the weathered, slightly acid, brown sandstone from below ten
feet of the soil surface on the mined area. Provided, that once
the operator has recovered material sufficient to meet the depth
requirements, it may cease recovering such material.
7.4.b.1.D.5. If the applicant affirmatively demonstrates that
the materials described in 7.4.b.1.D.2., 3., and 4. of this rule
within the mined area are insufficient to meet the depth
requirements, then up to 2/3 of the minesoil may consist of the
best available material or mix of materials.
7.4.b.1.D.6. Before approving the use of soil substitutes, the
Director shall require the permittee to demonstrate that the
selected overburden material is suitable for restoring land
capability and productivity. This will be demonstrated by the
results of chemical and physical analyses that show that this
material is at least 75% sandstone, has at least 15% fines (<2mm), has a net acid-base accounting between -3 and +3 calcium carbonate
equivalent per 1000 tons of material excluding siderite effects, a
soluble salt level less than 1.0 mmhos/cm, to result in a long-term
equilibrium pH of between 5.0 and 6.5 and additional analyses as
the Director deems necessary. If this spoil is made up of strongly
contrasting materials with respect to acid/base accounting these
materials shall be blended.
7.4.b.1.D.7. The minesoils shall be distributed across the
disturbed areas, except the faces of valley fills, in a uniform and
consistent mix.
7.4.b.1.D.8. For commercial forestry, the final surface
material used as the planting and growth medium (hereinafter
referred to as commercial forestry minesoil) shall consist of a
minimum of four feet, and an average of at least five feet, of soil
or a mixture of materials consisting of no less than one-third soil
and two-thirds of the materials described in 7.4.b.1.D.3. and 4. of
this rule.
7.4.b.1.D.9. For forestry, the final surface material used as
the planting and growth medium (forestry minesoil) shall consist of
a minimum of 4 feet of soil, or a mixture of soil and suitable soil substitutes described in 7.4.b.1.D.4 through 6 of this rule.
7.4.b.1.D.10. Commercial forestry minesoil shall be placed on
that portion of the mined area which receives an AOC variance. For
a proposed mine permit area or any specifically defined segment of
the proposed permit area that does not satisfy the volumetric
criteria for AOC, an AOC variance shall be required. In order to
define the portion of the permit classified as AOC-compliant or
AOC-variant, the permit may be divided into segments. The number
of segments shall not exceed the number of excess spoil disposal
areas proposed and each segment shall include at least one
associated fill. In no event will there be more variance segments
than there are excess spoil disposal areas on the permit area. For
each segment, the AOC status shall be defined as complying with AOC
if that segment meets the backfill volume, valley fill design,
backfill inflection point tests and other criteria as described in
the AOC policy adopted by the Director.
7.4.b.1.D.11. Forestry minesoil shall, at a minimum, be placed
on all areas achieving AOC.
7.4.b.1.D.12. If the applicant does not demonstrate that there
is sufficient material available on the permit area to satisfy the requirements of 7.4.d.1.D., then the Director may not authorize
this postmining land use.
7.4.b.1.D.13. The Director shall require the operator to
include, as part of the commercial forestry and forestry minesoil
mix, organic debris such as forest litter, branches, small logs,
roots and stumps in the soil to help reseed and resprout the native
vegetation, inoculate the minesoil with native soil organisms,
increase soil fertility, and encourage plant succession.
7.4.b.1.D.14. The Director shall require that soil be removed
and reapplied in a manner that minimizes stockpiling to protect
seed pools and soil organisms. Only soil removed from the mined
area during the one-year period immediately following commencement
of soil removal may be placed in a long-term stockpile. Except for
soil in a long-term stockpile, soil redistribution shall be done
within six months of soil removal. Except for soil in a long-term
stockpile, soil shall be stored for less than six months in piles
less than six feet high and 24 feet wide in a stable area within
the permit area where it will not be disturbed and will be
protected from water or wind erosion or contaminants that lessen
its capability to support vegetation. Long-term stockpiles shall be seeded with the legumes specified in the ground cover mixes used
for reforestation (7.4.d.1.G.1. of this rule).
7.4.b.1.E. Soil Placement and Grading.
7.4.b.1.E.1. The Director shall require the permittee to place
minesoil loosely and in a non-compacted manner while meeting static
safety factor requirements. Minesoil shall be graded only when
necessary to maintain stability or on slopes greater than 20%
unless otherwise approved by the Director. Grading shall be
minimized to reduce compaction. When grading is approved by the
Director, only light grading equipment may be used to grade the
tops off the piles, roughly leveling the area with no more than one
or two passes. Tracking in and rubber-tired equipment shall not be
used. Non-permanent roads, equipment yards, and other trafficked
areas shall be deep-ripped (24" to 36") to mitigate compaction and
to allow these areas to be restored to productive commercial
forestry. Soil physical quality shall be inadequate if it inhibits
water infiltration or prevents root penetration or if their
physical properties or water-supplying capacities cause them to
restrict root growth of trees common to the area. Slopes greater
than 50% shall be compacted no more than is necessary to achieve stability and non-erodability.
7.4.b.1.E.2. The Director shall require the permittee to leave
soil surfaces rough with random depressions across the entire
surface to catch seed and sediment, conserve soil water, and
promote revegetation. Organic debris such as forest litter, logs,
and stumps shall be left on and in the soil.
7.4.b.1.F. Liming and Fertilizing.
7.4.b.1.F.1. The Director shall require the permittee to apply
lime where the average soil pH is less than 5.5. Lime rates will
be used to achieve a uniform soil pH of 6.0. An alternate maximum
or minimum soil pH may be approved, however, based on the optimum
pH for the forest revegetation species. Soil pH may vary from 4.5
to a maximum of 7.0 from place to place across the reclaimed area
with no more than 10% of the site below pH 5.0 and/or no more than
10% of the site above pH 6.5. Low and high pH levels may be
approved only when tree species tolerant of the pH range have been
approved for planting.
7.4.b.1.F.2. The Director shall require the permittee to
fertilize based on the needs of trees and ground cover vegetation.
The permittee shall apply up to 300 pounds/acre of diammonium phosphate (18-46-0) and up to 100 pounds/acre potassium sulfate
(0-0-52) with the ground cover seeding. Other fertilizer materials
and rates may be used only if the Director finds that the
substitutions are appropriate based on soil tests performed by
state certified laboratories.
7.4.b.1.G. Ground Cover Vegetation.
7.4.b.1.G.1. The Director shall require the permittee to
establish a temporary erosion control vegetative cover as
contemporaneously as practicable with backfilling and grading until
a permanent tree cover can be established. This cover shall
consist of a combination of native and domesticated non-competitive
and non-invasive cool and warm season grasses and other herbaceous
vine or shrub species including legume species and ericaceous
shrubs. All species shall be slow growing, tolerant of low pH, and
compatible with tree establishment and growth. The ground cover
vegetation shall be capable of stabilizing the soil from excessive
erosion, but it should be minimized to control tree-damaging rodent
population, and allow the establishment and unrestricted growth of
native herbaceous plants and trees. Seeding rates and composition
must be in the planting plan. The following ground cover mix and seeding rates (pounds/acre) shall be used: winter wheat (15
lbs/acre, fall seeding), foxtail millet (5 lbs/acre, summer
seeding), redtop (2 lbs/acre), perennial ryegrass (2 lbs/acre),
orchardgrass (5 lbs/acre), weeping lovegrass (2 lbs/acre) kobe
lespedeza (5 lbs/acre), birdsfoot trefoil (10 lbs/acre), and white
clover (3 lbs/acre). Kentucky-31 fescue, serecia lespedeza, all
vetches, clovers (except ladino and white clover) and other
aggressive or invasive species shall not be used. South- and
west-facing slopes with a soil pH of 6.0 or greater, the four
grasses in the mixture shall be replaced with 20 lbs/acre of
warm-season grasses consisting of the following species: Niagara
big bluestem (5 lbs/acre), Camper little bluestem (2 lbs/acre),
Indian grass (2 lbs/acre), and Shelter switch grass (1 lb/acre), or
other varieties of these species approved by the Director. Also,
a selection of at least 3 native shrub species native of the area
shall be included in the ground cover mix. Provided, that on
slopes less than 20%, the Director may approve lesser or no
vegetative cover when tree growth and productivity will be enhanced
and excessive sedimentation will not result.
7.4.b.1.G.2. All mixes shall be compatible with the plant and animal species of the region and the commercial forestry use. The
Director shall require the use of a variety of site-specific ground
cover treatments so that different ground cover treatments are used
on different parts of the reclamation area to add biodiversity and
landscape mosaic to the overall plan.
7.4.b.1.G.3. The permittee may regrade and reseed only those
rills and gullies that are unstable.
7.4.b.1.H. Tree Species and Compositions.
7.4.b.1.H.1. Commercial tree and nurse tree species selection
shall be based on site-specific characteristics and long-term goals
outlined in the forest management plan and approved by a registered
professional forester. For commercial forestry, the Director shall
assure that all areas suitable for hardwoods are planted with
native hardwoods at a rate of 500 seedlings per acre in continuous
mixtures across the permitted area with at least six (6) species
from the following list: white and red oaks, other native oaks,
white ash, yellow-poplar, black walnut, sugar maple, black cherry,
or native hickories. For forestry, the Director shall assure that
all areas suitable for hardwoods are planted with native hardwoods
at a rate of 450 seedlings per acre in continuous mixtures across the permitted area with at least three (3) or four (4) species from
the following list: white and red oaks, other native oaks, white
ash, yellow-poplar, black walnut, sugar maple, black cherry, or
native hickories.
7.4.b.1.H.2. For commercial forestry, each of the species
shall be not less than 10% of the total planted composition and at
least 75% of the total planted woody plant composition shall be
from the list of species in part 7.4.d.1.H.1. Species shall be
selected based on their compatibility and expected site-specific
long-term dynamics. For forestry, if only three species from the
above list are planted, then each of the species shall be not less
than 20% of the total planted composition. If four species from
the list in part 7.4.d.1.H.1. are planted, then each of the
species shall be not less than 15% of the total planted
composition. Species shall be selected based on their
compatibility and expected site-specific long-term dynamics.
7.4.b.1.H.3. Between 5% and 10% of the required number of
woody plants shall be planted in a continuous mix of three or more
nurse tree and shrub species that improve soil quality and habitat
for wildlife. They shall consist of black alder, black locust, bristley locust, redbud, or bi-color lespedeza or other
non-invasive, native nurse tree or shrub species, approved by the
Director. One to five acres within each 100 acres of the permit
area shall be left unplanted with trees, but left with ponds,
wetlands or ground cover vegetation only. These areas may be
continuous or divided into 2-4 separate parcels, each at least 0.25
acres large.
7.4.b.1.H.4. On areas unsuitable for hardwoods, the Director
may authorize the following conifers: Virginia pine, red pine,
white pine, pitch pine, or pitch x loblolly hybrid pine. Areas
unsuitable for hardwoods shall be limited to southwest-facing
slopes greater than 10% or areas where the soil pH is less than
5.5. These conifers shall be planted as single-species stands less
than 10 acres in size at the same rate as the hardwood requirements
in 7.4.b.1.H.1 of this rule. The Director shall assure that no
reclaimed area of the permit area contains a total of more than 15%
conifers.
7.4.b.1.H.5. The Director shall assure that the specific
species and selection of trees and shrubs shall be based on the
suitability of the planting site for each species' site requirements based on soil type, degree of compaction, ground
cover, competition, topographic position, and aspect.
7.4.b.1.H.6. For commercial forestry only, in addition to the
trees and shrubs required in the sections above, 2-0 white pine
seedlings shall be planted across all sites at a rate of 5 to 10
trees per acre. These trees will be used for the productivity
check required for Phase III bond release.
7.4.b.1.I. Standards of Success.
7.4.b.1.I.1. The Director shall assure the ability of the
commercial forestry and forestry areas to produce a high-quality
commercial forest by confirming, after on-site soil testing, that
the minesoil selection, placement, and preparation criteria in
7.4.d.1.D.7 through 11 of this rule are met before Phase I bond
release may occur. Before approving Phase I bond release, a
certified soil scientist shall certify, and the Director shall make
a written finding that the minesoil meets these criteria.
7.4.b.1.I.2. The Director shall not authorize Phase II bond
release for commercial forestry before the end of the fifth tree
growing season. The Director may approve Phase II bond release
only if the tree survival is equal to or greater than 300 commercial trees per acre (80% of which must be commercial hardwood
species listed in 7.4.b.1.H.1 of this rule) or the rate specified
in the forest management plan, whichever is greater. For forestry,
Phase II bond release may be granted by the Director at the end of
the second growing season only if the tree survival is equal to or
greater than 300 trees per acre, 60% of which must be commercial
hardwood species listed in part 7.4.d.1.H.1. of this rule, or the
rate specified in the forest management plan, whichever is greater.
Furthermore, for both commercial forestry and forestry, where there
is potential for excessive erosion on slopes greater than 20%,
there shall be 70% ground cover where ground cover includes tree
canopy, shrub and herbaceous cover, organic litter, and rock cover,
and at least 80% of all trees and shrubs used to determine
re-vegetation success must have been in place for at least 60% of
the applicable minimum period of responsibility. Trees and shrubs
counted in determining such success shall be healthy and shall have
been in place for not less than two growing seasons with no
evidence of die back.
7.4.b.1.I.3. The Director may approve Phase III bond release
for commercial forestry and forestry only if all criteria for Phase II bond release in 7.4.b.1.I.2 of this rule are still being met at
the time Phase III bond release is considered. For forestry, Phase
III bond release may not be authorized until at least five growing
seasons have passed since the trees were planted. Additionally,
for commercial forestry, Phase III bond release may not be
authorized unless commercial forest productivity has been achieved
by the end of the twelfth growing season or, if such productivity
has not been achieved, if a commercial forestry mitigation plan is
submitted to the Director, approved and completed. Commercial
forest productivity is achieved only when annual height increments
of the white pine indicator species, based on the average of four
or more consecutive annual height increments, is equal to or
greater than 1.5 feet. The Director shall measure the average
four-year growth increment of all trees along two perpendicular
transects across the site that will achieve a tree sample size of
no less than two trees per acre.
7.4.b.1.I.4. A commercial forestry mitigation plan shall
require a permittee who has not achieved commercial forestry
productivity requirements by the end of the twelfth growing season
to either pay to the Special Reclamation Fund an amount equal to twice the remaining bond amount or to perform an equivalent amount
of in-kind mitigation. The Director shall use any money collected
under this plan to establish forests on bond forfeiture sites.
In-kind mitigation requires establishing forests on AML or bond
forfeiture sites. After completion of the mitigation plan, Phase
III bond release may be approved if the Director finds that the
failure to achieve productivity did not result from a failure to
follow the provisions of this rule and did not result in
environmental damage.
7.4.b.1.I.5. The Director may release all or part of the bond
for the commercial forestry and forestry variance or increment
thereof in accordance with this subsection and 38-2-12.2.d. and
12.2.e. of this rule. The Director may release the variance
portion if all appropriate standards have been met without regard
to the bonding scheme selected for the permit.
7.4.b.1.J. Front Faces of Valley Fills.
7.4.b.1.J.1. Front faces of valley fills shall be exempt from
the requirements of this rule except that:
7.4.b.1.J.1.(a) They shall be graded and compacted no more
than is necessary to achieve stability and non-erodability;
7.4.b.1.J.1.(b) No unweathered shales may be present in the
upper four feet of surface material;
7.4.b.1.J.1.(c) The upper four feet of surface material shall
be composed of soil and the materials described in 7.4.b.1.D. of
this rule, when available, unless the Director determines other
material is necessary to achieve stability;
7.4.b.1.J.1.(d) The groundcover mixes described in
subparagraph 7.4.d.1.G. shall be used unless the Director requires
a different mixture;
7.4.b.1.J.1.(e) Kentucky 31 fescue, serecia lespedeza,
vetches, clovers (except ladino and white clover) or other invasive
species may not be used; and
7.4.b.1.J.2. Although not required by this rule, native,
non-invasive trees may be planted on the faces of fills.
7.4.b.1.K. Long-term Monitoring and Adaptive Management. The
Director shall under-take, with the assistance of the Division of
Forestry or other forestry research units, a performance assessment
of all Commercial Forestland permits within 10 years of Phase III
bond release. Species composition, biodiversity, productivity,
carbon capture, wildlife habitat, stream and wetland biota, and hydrologic function will be assessed. Results will be reported,
analyzed, interpreted and used as part of an adaptive management
program to improve the regulations and guidelines for Commercial
Forestland.
7.5.The Homestead land use meets the requirements for a
variance from the AOC requirements of the Act (W.Va. Code
22-3-13(c)). An appropriately planned Homestead will promote
sustainable settlement patterns that protect the environment and
support the region's economic development.
7.5.a. Operations receiving a variance from AOC for this use
shall establish homesteading on at least one-half (½) of the permit
area. The remainder of the permit area shall support an alternate
AOC variance use.
7.5.b. The following terms are applicable only to this
subsection of this rule.
7.5.b.1. Building Pad means an accessible, designated, and
properly drained area where the soil and/or mine-spoil has been
specially placed and compacted to minimize post-mining surface
settlement. After the building pad is completed, a registered
professional engineer shall certify that the building pad was constructed as designed. This certification shall accompany the
deed of conveyance.
7.5.b.2. Civic Parcel means a parcel designated in the Land
Plan for public use.
7.5.b.3. Commercial Parcel means a parcel retained by the
Landowner of record and incorporated within the Homestead Area on
which the landowner or its designee may develop commercial uses.
The size and location of commercial parcels shall comply with the
requirements of this regulation.
7.5.b.4. Community Association means an association of all the
homesteaders. This association shall receive title to the civic
parcels, conservation easements and nurseries at the time of final
bond release.
7.5.b.5. Conservation Easement means an area, typically a
strip no less than 200 feet wide, designated in the land plan for
the purpose of establishing a natural habitat for the development
and migration of native species of fauna and flora. These
easements shall extend through the mined areas of the land,
starting and ending in natural, undisturbed land. These areas
shall be permanent easements maintained for conservation and not commercial purposes.
7.5.b.6. Entity Administering The Civic Parcels means the
Community Association or its designee shall administer the civic
parcels.
7.5.b.7. Escrow Agent means the Attorney General of the State
of West Virginia shall be the Escrow Agent.
7.5.b.8. Homesteader means a citizen of the State that
fulfills the requirements of this regulation and who is selected by
lottery to reside on a designated homestead parcel.
7.5.b.9. Homestead Area means the entire area designated for
homestead use, including roads.
7.5.b.10. Homestead Infrastructure means the facilities
necessary to sustain residential use, including roads, electricity,
telephone, water and sewage or septic systems.
7.5.b.11.Homestead Parcel means an individual segment of a
homestead area designated as either a rural or village parcel. The
permittee shall assure that each parcel has been surveyed by a
licensed land surveyor before Phase I bond release.
7.5.b.12.Homestead Plan means all the required documentation,
engineered drawings, authorizations, agreements and schedules which are to be submitted and approved by the Director.
7.5.b.13. Homestead Selection Lottery means a lottery
sanctioned by the State, operated under rules established and
administered by the Director or the Director's designee as soon as
practicable after Phase I bond release.
7.5.b.14. Landowner Of Record means the surface estate owner
at the time the mining permit is submitted to the Director. More
than one Landowner of Record may be involved in a Homestead Plan.
The Landowner of Record shall transfer the title to the surface
estate of the Homestead Area to the Escrow Agent prior to the
beginning of mining. The cost of transfer shall be paid by the
Landowner of Record.
7.5.b.15. Land Plan means the depiction, with supporting
documentation, including surveys and narratives, of the homestead
parcels, building pads, roads, easements, civic parcels, commercial
parcels, and other features of the Homestead Area.
7.5.b.16. Machine Passable Grade means the maximum grade that
can be safely accommodated by commonly used, self-propelled,
rubber-tired farming equipment.
7.5.b.17. Rural Parcels means homesteading parcels planned to promote rural uses such as farming, orchard growing, timber
management, viticulture, and Morret gardening. The rural parcels
shall be an appropriate size for the designated use and may be up
to 40 acres. Rural homesteaders may receive title only to that
portion of the land that they have improved over the five-year
period.
7.5.b.18. Service Drop means the overhead service conductors
from the last pole or other aerial support to and including the
splices, if any, connecting to the service-entrance conductors at
the building or other structure.
7.5.b.19. Service-Entrance Conductors, Overhead System means
the service conductors between the terminals of the service
equipment and a point usually outside the building, clear of
building walls, where joined by tap or splice to the service drop.
7.5.b.20. Service-Entrance Conductors, Underground System
means the service conductors between the terminals of the service
equipment and the point of connection to the service lateral.
7.5.b.21.Service Lateral means the underground service
conductors between the street main, including any risers at a pole
or other structure or from transformers, and the first point of connection to the service-entrance conductors in a terminal box or
meter or other enclosure with adequate space, inside or outside the
building wall. Where there is no terminal box, meter, or other
enclosure with adequate space, the point of connection shall be
considered to be the point of entrance of the service conductors
into the building.
7.5.b.22. Soil Plan means the maps and descriptions of
premining and postmining soil included in the Homestead Plan.
7.5.b.23. Village Parcels means homesteading parcels that
provide a higher density of residential population than rural
parcels.
7.5.c. Eligibility Requirements And Responsibilities For
Homesteaders.
7.5.c.1. Homesteader shall meet the following eligibility
requirements:
7.5.c.1.A. Be a resident of the State of West Virginia and be
at least 18 years old;
7.5.c.1.B. Apply for a homestead as required by this rule;
7.5.c.1.C. Abide by the rules of the Homestead Selection
Lottery;
7.5.c.1.D. Reside on the subject parcel within 12 months after
the property is certified as ready for use. Provided that subject
to the approval of the Escrow Agent, occupancy may be delayed up to
6 additional months for good cause shown.
7.5.d. Rules For The Lottery.
7.5.d.1. The rules for the Lottery are as follows:
7.5.d.1.A. Each household may receive no more than one
homestead.
7.5.d.1.B. Homestead parcels shall be distributed by anonymous
lottery.
7.5.d.1.C. For any given Homestead, the lottery shall first be
opened only to West Virginians living within three (3) miles of the
permitted area within five years of the date of the filing of the
permit application. Provided, however, that if parcels remain
after an initial lottery, subsequent lotteries shall be held in the
following order. The first subsequent lottery shall be open to any
resident of a county (or counties, if more than one) in which the
mine is located. Further, lotteries, if necessary, shall be open to
any resident of West Virginia, and shall be held at six (6) month
intervals.
7.5.d.1.D. The lottery shall be held as soon as practicable
after Phase I bond release is approved. Adequate notice shall be
provided at least six (6) months in advance of the lottery.
7.5.d.1.E. The lottery shall be fair, impartial, and open to
the public.
7.5.d.1.F. A lottery participant who receives a parcel may
decline a parcel, but may not sell the right to homestead on the
parcel.
7.5.d.1.G. The right to participate in the lottery is not
assignable or saleable.
7.5.d.1.H. Each lottery participant shall, before the lottery,
apply for either a rural or a village parcel.
7.5.e. Homestead Plan Development.
7.5.e.1. The Director may authorize Homesteading as a
post-mining use only if the following conditions have been
satisfied.
7.5.e.1.A. The Homestead Plan and any subsequent modifications
shall be prepared under the direction of and certified by a
professional engineer, a soil scientist, and a design professional
that is either a licensed architect, landscape architect, or AICP certified land planner.
7.5.e.1.B. The Homestead Plan shall identify each member of a
specialty group that contributed to the plan. The Plan shall be
sufficiently detailed to ensure success in achieving the designated
use of each homestead panel and to ensure sound future management
of the homestead.
7.5.e.1.C. Homestead plan may be used alone or in conjunction
with any other alternate land use plan. The Homesteading area,
minus commercial parcels, shall occupy at least 50% of the
permitted area. In the event that the Homestead use is used in
conjunction with another land use, the Landowner of Record shall
provide for the Homestead use at least as much land on the mining
bench as it retains for alternate land use.
7.5.e.1.D. The Permittee shall submit plans prepared at a
preferred scale of at least 1 inch = 200 feet, which include the
following:
7.5.e.1.D.1. A Land Plan showing the homestead boundaries,
homestead parcels, building pads, roads, easements, civic parcels,
and commercial parcels, as applicable.
7.5.e.1.D.2. A Site Plan and description of the following:
7.5.e.1.D.2.(a) waste water and sewage systems,
7.5.e.1.D.2.(b) potable water supply,
7.5.e.1.D.2.(c) non-potable water supply (if applicable),
7.5.e.1.D.2.(d) electrical service, and
7.5.e.1.D.2.(e) telephone service.
7.5.e.1.D.3. A grading plan showing contours at an interval
appropriate for the map scale and slopes, and including surface
drainage and storm water provisions. The Director shall require
maps at specific scales and contour intervals to satisfy the
designated uses of the homestead parcels and the land plan.
7.5.e.1.D.4. A map showing all off-bench fill areas and the
outcrop of the lowest coal bed.
7.5.e.1.D.5. A Soil Plan showing soil and weathered spoil
storage areas. The plan shall describe the methods to be used to
distribute, protect, and enhance the stored material upon final
regrading of the disturbed surfaces. The plan shall identify the
proposed depths of soil and subsoil for each specific use within
the Homestead Area. These specific uses may include, but shall not
be limited to, the following:
7.5.e.1.D.5.(a) Haul roads
7.5.e.1.D.5.(b) Conservation Easements
7.5.e.1.D.5.(c) Building Pads
7.5.e.1.D.5.(d) Garden Plots
7.5.e.1.D.5.(e) Waste Water and Sewage Disposal Facilities
7.5.e.1.D.5.(f) Storm Drainage Facilities
7.5.e.1.D.5.(g) Wetland Facilities
7.5.e.1.D.5.(h) Utility Easements
7.5.e.1.D.5.(i) Civic/Public Facilities
7.5.e.1.D.5.(j) Commercial Areas
7.5.e.1.D.6. Soil maps.
7.5.f. Financial Commitments.
7.5.f.1. A contract between the Permittee and the Director,
binding the Permittee to complete the homestead use as soon
practicable but no later than two years after the completion of
mining, shall be required.
7.5.f.2. The contract between the Permittee and the Director
shall, at a minimum, require the Permittee to follow the
homesteading reclamation plan.
7.5.f.3. To receive approval for a homestead use, the
Permittee shall demonstrate that it has the financial capability to achieve the use and carry out the reclamation plan. The Permittee
shall submit signed statements containing financial information and
data sufficient to demonstrate that the Permittee has the financial
capability to achieve the homesteading use.
7.5.f.4. Before approving the Permit, the Director shall find,
in writing, that the Permittee has the financial capability to
achieve the use.
7.5.g. Required Elements For All Homestead Plans.
7.5.g.1. Boundary of the homestead area:
7.5.g.1.A. The Homestead Area shall be defined by a metes and
bounds description prepared and certified by a Professional
Engineer or Licensed Land Surveyor registered with the State of
West Virginia.
7.5.g.1.B. Non-mined areas may be included in the Homestead
Area.
7.5.g.1.C. In the event that any portion of the land
transferred to the Escrow Agent is not mined, that land may revert
to the Landowner of Record.
7.5.g.2. General Requirements of all Parcels:
7.5.g.2.A. Each individual parcel shall be delineated by metes and bounds description prepared by a Professional Engineer or
Licensed Land Surveyor registered with the State of West Virginia.
7.5.g.2.B. Parcels shall support their designated land uses.
7.5.g.2.C. Parcels shall be configured and arranged to
minimize adverse environmental impacts.
7.5.g.2.D. The Permittee shall provide adequate road frontage
for access to each Homestead, Public Nursery, Civic and Commercial
Parcel.
7.5.g.2.E. Houses and appurtenant facilities shall be no
closer than 50 feet from the edge of a designated Conservation
Easement.
7.5.g.3. Homestead parcels:
7.5.g.3.A. Homestead Parcels shall be designated as either
rural or village parcels. All parcels shall contain machine
passable land appropriate to the designated use.
7.5.g.3.B. Each rural homestead parcel shall be provided with
a garden area of at least 5,000 square feet. Each village
homestead parcel shall be provided with a garden area of at least
600 square feet. The garden areas shall be constructed in
compliance with the soil requirements set forth in subdivision 7.5.j. of this rule.
7.5.g.3.C. Each rural and village homestead parcel shall
contain a building pad of a minimum of 2,500 square feet for a
dwelling. Each rural homestead parcel shall also contain a
building pad of a minimum of 2,500 square feet for an outbuilding.
7.5.g.4. Civic Parcels:
7.5.g.4.A. The Homestead Plan shall delineate one or more
appropriate sites within the total proposed Homestead area for
Civic Parcels. These uses may include, but are not limited to, the
following: park land, playing fields, schools, post office, and
community administrative facilities. This area shall occupy at
least 10% of the post-mining permit area.
7.5.g.4.B. The Civic Parcels may be one contiguous parcel or
appropriately sized non-contiguous parcels.
7.5.g.4.C. The Civic Parcels shall be deeded at no charge to
the duly recognized Community Association.
7.5.g.4.D. The Civic Parcels shall be provided with an access
road and utilities that are consistent with the proposed civic land
use.
7.5.g.5. Commercial Parcels:
7.5.g.5.A. The Landowner of Record may elect to retain up to
15% of the land in the proposed Homestead Area for the purpose of
commercial development; provided that the Landowner of Record may
retain no more than 50% of the permitted area.
7.5.g.5.B. The retained commercial area may be comprised of
one or more parcels and shall be indicated on the Land Plan.
7.5.g.5.C. In the area for the Commercial Parcel the
mine-spoil shall be placed, compacted, and regraded in a manner
consistent with the proposed commercial land use.
7.5.g.6. Approval:
7.5.g.6.A. Before approving a homesteading reclamation plan,
the Director shall assure that Homestead Plan is reviewed and
approved by either a licensed architect, landscape architect, or
AICP certified land planner employed by or under contract to the
Director. In addition, the Director shall assure that the plans
for Rural Parcels are reviewed and approved by an agronomist
employed by or under contract with the Director. The applicants
shall pay for any review under this subsection.
7.5.h. Construction And Conveyance Of Homestead Parcels. All
construction projects not performed by the homesteaders on Homestead Areas shall be performed by the Permittee, using a West
Virginia licensed contractor.
7.5.h.1. Stabilization Of The Homestead Area:
7.5.h.1.A. The Homestead Plan shall describe the methods that
will be used during the placement of mine spoil to minimize mine
spoil consolidation and its associated ground settlement, where
such settlement will adversely affect the use of the homestead.
Conditions relating to the placement of structures on the
mine-spoil shall be clearly identified in the Plan.
7.5.h.1.B. The Plan must delineate the areas on each parcel
where the mine-spoil will be placed in a manner to minimize
post-mining land surface settlement on Building Pads, roads and
other appropriate areas.
7.5.h.1.C. The placement methodology shall be specified by a
qualified engineer. The Plan shall indicate the type and style of
structure appropriate for each building pad. The Plan shall
include the requirement that a professional engineer will monitor
the construction of the building pads to certify compliance with
the specifications of the plan.
7.5.h.2. Construction Of The Building Pad:
7.5.h.2.A. Building Pads shall be designed by a registered
professional engineer.
7.5.h.2.B. The registered professional engineer shall
supervise the placement of the uppermost 20 feet of spoil for
Building Pads to minimize consolidation.
7.5.h.2.C. The engineer shall certify the integrity of the
Building Pad and that the Building Pads will not settle more than
2 inch after the expected structure is in place.
7.5.h.2.D. Building Pads shall be designed to accommodate the
type of building expected to be placed on the pad.
7.5.h.2.E. Building Pads shall not be placed on valley fills.
7.5.h.3. Conveyance Of Homestead Parcels:
7.5.h.3.A. Estimated short and long-term costs to Homesteaders
shall be designated in the Homestead Plan and presented to
Homesteaders immediately after the Lottery on a parcel specific
basis.
7.5.h.3.B. The rights to the surface estate shall be deeded to
each Homesteader free and clear of all liens and encumbrances as
soon after bond release as the Escrow Agent determines that the
property is ready for use. The deeds shall not retain right of entry onto the homestead parcels to conduct future surface mining
activities.
7.5.h.3.C. Consistent with State and Federal law, the transfer
of the surface to the Escrow Agent may be for surface rights only
and need not include any minerals, oil or gas and shall be subject
to usual and customary mining or extraction rights.
7.5.h.3.D. Before receiving the Homestead Parcel, each
homesteader shall:
7.5.h.3.D.1. Install and reside in a dwelling whose structure
complies with the Homestead Plan community association rules, and
all applicable local, county and state laws;
7.5.h.3.D.2. Reside on the parcel for at least forty-five
weeks each year for five (5) consecutive years prior to receipt of
title to the land;
7.5.h.3.D.3. Use and improve the parcel by completing a
dwelling that complies with this rule, installing an approved
septic system and maintaining vegetative cover on all parts of the
homestead parcel and plant trees from the Public Nursery in
accordance with subdivision 7.5.l.4. of this rule.
7.5.h.3.E. In the event extreme hardship causes a homesteader to be forced to sell his property before the five-year occupancy
period has expired, the Escrow Agent shall convey title early. The
Escrow Agent's determination of extreme hardship shall be
reasonable by the Circuit Court of County in which the homestead
parcel is located.
7.5.i. Required Infrastructure.
7.5.i.1. Roads:
7.5.i.1.A. The Land Plan shall designate an all-weather road
connecting the Homestead Area to a public road or highway. The
road shall meet State Department of Highways' standards, and shall
be certified as safe for passenger car traffic by registered
professional engineer.
7.5.i.1.B. The Land Plan shall incorporate adequate road
frontage to all parcels. Such roads shall be designated in the
plan and referred to as "main roads." Main roads shall meet State
Department of Highways standards, and shall be certified as built
as safe for passenger car traffic by registered civil engineer.
Before the Director may approve a surface mining application for
this use, the County or State road authority shall conditionally
agree to accept responsibility for maintaining the all-weather and main roads after mining is complete.
7.5.i.1.C. The Land Plan shall provide an entrance from the
main road to each parcel, complete with culvert as needed. The
Homesteader shall be responsible for extending the driveway from
the entrance to the building pad.
7.5.i.2. Waste Water And Sewage:
7.5.i.2.A. The Homestead Plan shall incorporate a waste water
and sewage disposal plan conditionally approved by the Director,
the West Virginia Bureau of Public Health or the public health
authority of the county. The waste water/sewage disposal system
shall be approved by the appropriate entities before Phase II bond
release shall be authorized. No such approval may be granted
unless the system meets local health department standards.
7.5.i.2.B. A variety of waste water and sewage disposal
systems, including individual septic systems, may be proposed.
Alternative/innovative systems shall be consistent with all State
and federal regulations. The reclamation, topsoiling, grading, and
revegetation plan of each parcel shall be designed to accommodate
the proposed waste water/sewage system.
7.5.i.2.C. The Homestead Plan shall provide a functional waste water and sewage system for each Civic, Commercial or Homestead
Parcel. The system shall describe an approved hookup/cleanout
point no more than 50 feet from such homestead and civic Building
Pads.
7.5.i.2.D. Each Homesteader shall be responsible for all costs
incurred to connect structures on the Homestead parcel to the waste
water and sewage system. Additionally, if necessary, each
homesteader shall be responsible for all costs incurred to install
an individual septic system.
7.5.i.2.E. The entity administering the Civic Parcel shall be
responsible for all costs incurred to connect structures on the
Civic Parcel to the waste water and sewage system.
7.5.i.2.F. The Homestead Plan shall describe the maintenance
and upkeep demands of any proposed sewage disposal system, and
shall designate the entity responsible for such maintenance. Phase
III bond release may not be approved until the designated entity
has accepted responsibility for such maintenance.
7.5.i.3. Water Supply:
7.5.i.3.A. The Homestead Plan shall include a potable water
supply source or sources adequate for each Homestead Parcel. The supply of water shall be provided by one of the following methods
in the following order of priority: a) water piped from an
existing public water supply; b) from wells; or c) from reservoirs
with catchment basins adequate to supply the homestead area.
Before authorizing any system of potable water supply that is not
piped from an existing water supply, the Director shall find, in
writing, that the higher order methods of delivery of potable water
are not feasible. The Director may rely on the sewers if an
appropriate Public Health Authority.
7.5.i.3.B. The Permittee shall establish and pay for the
potable water supply system.
7.5.i.3.C. The water shall be delivered at a constant rate
and at water industry accepted pressure and flow.
7.5.i.3.D. The Homestead Plan shall describe the future
maintenance of the water supply system. If the water system is
public, the plan shall designate the entity responsible for its
upkeep. Homesteaders may be required to pay a fair market price
for the water. Homesteaders shall not be charged for water from
their own individual well, although Homesteaders shall be
responsible for maintenance of their own wells.
7.5.i.3.E. Individual supply systems shall, at a minimum, meet
all applicable health standards, comply with all state and federal
laws, and be approved by the appropriate public health authority.
Appropriate wellhead protection or watershed protection practices
shall be incorporated into the Homestead Plan, and shall protect
water from potential vulnerability from future land use.
7.5.i.3.F. The source or sources of potable water must be
identified within the Homesteading Plan, along with a demonstration
of the adequacy of quantity and quality. Upon completion of the
reclamation plan, the Permittee shall install and demonstrate the
quality and adequacy of the supply. If the originally proposed
water supply system proves to be inadequate or unsuitable, the
Permittee shall immediately make application with the Director for
approval of alternate supplies or adequate improvements to the
water supply system. The resulting improvements and/or alternate
supplies shall comply with the requirements in this rule and shall
be subject to the approval of the appropriate public health
authority. Phase I bond release may not be approved until the
Director finds that the installed water supply complies with this
rule and applicable State and federal law.
7.5.i.3.G. The Homestead Plan shall describe a water supply
plan that is adequate to meet the needs of the Homestead Area. The
water supply plan shall address the anticipated future land use of
the Homestead Area, and must be reviewed and approved by the
Director and the appropriate public health authorities.
7.5.i.3.H. The potable water supply sources shall meet the
Federal Primary Drinking Water Maximum Contaminant Level standards.
(40 CFR 141, Subpart B). Verification of such quality shall be
provided to the appropriate public health authority.
7.5.i.3.I. The supply source means the contiguous water body
or contiguous aquifer from which supplies are drawn. If multiple
homestead unit supplies are withdrawn from the same source,
determination of water quality of the source shall be made at
points that are representative of the water that will be withdrawn
from the source.
7.5.i.3.J. The potable water supply shall provide for a
minimum quantity of 12,500 gallons per month per homestead unit.
The supply may incorporate one or a combination of sources and
storage facilities demonstrated to provide an adequate supply for
each homestead parcel.
7.5.i.3.K. If a ground water source is to be used, the plan
and the confirmation of the installed ground water supply system
shall be conducted under the direction of a qualified ground water
professional. The locations of drilled wells shall be consistent
with appropriate public health requirements.
7.5.i.3.L. The water supply shall be developed (or extended as
applicable) free of charge to the homesteader to a point within 50
feet of the designated residence and civic parcel construction pads
for each homestead unit.
7.5.i.3.M. After initial establishment of compliant water
quality and quantity, responsibility for maintenance of the water
supply shall revert to the homesteader or, in the event that the
supply is community- or publicly-controlled, to the appropriate and
capable public authority.
7.5.i.3.N. When the potable water supply is insufficient to
meet the needs of the proposed use for rural homestead parcels, the
Homestead Plan shall include nonpotable water supplies for uses
that do not require potable water. Before approving Phase I bond
release, the Director shall find that the non-potable water supply
is sufficient in both quality and quantity for such uses, including agricultural uses. The plan for the system shall indicate the
provisions that will be taken to assure that the potable water
supply shall not be compromised. The approval of nonpotable water
supplies distribution and handling system shall be consistent with
State and federal law.
7.5.i.3.O. Each Homesteader shall be responsible for costs
incurred to connect dwellings to water facilities.
7.5.i.3.P. The entity administering the civic parcel shall be
responsible for costs incurred to connect structures on the civic
parcel to water facilities.
7.5.i.3.Q. If a reservoir is used, a registered professional
engineer shall certify its integrity. The engineer shall also
certify that, taking account of inflow, seepage and evaporation,
the reservoir will provide the amount of water and water pressure
required by the Homestead use.
7.5.i.4. Electrical Utilities:
7.5.i.4.A. The Homestead Plan shall provide access to
electrical power for all Homestead Parcels and for all Civic
Parcels requiring electric power. The quantity of electricity
supplied shall be sufficient to support the proposed use. Phase II bond release may not be approved until all the necessary facilities
have been rendered operational and extended to a point where the
service drop for the Homestead or Civic Parcel can be accomplished
in no more than one span. If a service lateral is proposed, access
to electrical power shall be deemed to have been satisfactorily
provided when the service lateral is no more than 50 feet in
length. Such electrical power facilities shall be designated in
the plan and referred to as "main electrical power facilities."
7.5.i.4.B. All line work shall conform to the practices of the
electric power utility servicing the area. The installed main
utilities and associated equipment shall be conveyed to the
electric power utility servicing the area.
7.5.i.4.C. Each Homesteader shall be responsible for all costs
incurred to install a service drop or service lateral the building
pads.
7.5.i.4.D. The entity administering the Civic Parcel shall be
responsible for all costs incurred to install a service drop or
service lateral to structures on the Civic Parcel.
7.5.i.4.E. Each Homesteader shall be responsible for cost of
electrical service.
7.5.i.5. Communication Services:
7.5.i.5.A. The Permittee shall provide access to telephone
service for all Homestead Parcels and for all Civic Parcels
requiring telephone service. Phase II bond release may not be
approved until access to telephone service has been rendered
operational and extended to a point within 50 feet of the Parcel's
building pads. Such telephone or equivalent utilities shall be
designated in the plan and referred to as "main telephone
facilities."
7.5.i.5.B. All service line work shall conform to the
practices of the telephone service provider of the area. All line
work and associated equipment shall be conveyed to the local
telephone service provider.
7.5.i.5.C. Each Homesteader shall be responsible for all costs
incurred to extend and connect main telephone facilities to the
building pads.
7.5.i.5.D. The entity administering the Civic Parcel shall be
responsible for all costs incurred to extend and connect main
telephone facilities to the Civic Parcels.
7.5.i.5.E. Each Homesteader shall be responsible for the cost of telephone service.
7.5.i.6. Solid Waste:
7.5.i.6.A. The Homestead Plan shall contain a plan for the
off-site disposal of solid waste that is acceptable to the Director
and the appropriate public health authority.
7.5.i.7. Surface Drainage And Storm Water:
7.5.i.7.A. The Homestead Plan shall contain a detailed surface
drainage pattern and storm water runoff control plan. This plan
shall be certified by a registered professional engineer.
7.5.i.7.B. The surface drainage pattern and storm water plan
shall be consistent with a surface drainage pattern that would be
found on natural topography similar to the post-mining topography
proposed in the Homestead Plan. The beds of the surface and storm
water drainways shall contain material that is as natural as
practicable.
7.5.i.8. Reforested Conservation Easements:
7.5.i.8.A. The Homestead Plan shall identify areas within the
Homestead Area reserved for reforested Conservation Easements.
These areas shall be reforested by the Permittee at no cost to
Homesteaders.
7.5.i.8.B. In the event that an isolated forest patch exists
as a result of mining activities, the Conservation Easement shall
serve as a corridor to establish a wind break and a forested
connection with the isolated forest patch and to facilitate the
adequate movement of fauna out of and into the isolated forest
patch.
7.5.i.8.C. Conservation Easements may serve the purpose of a
storm water management system. In such case, the technical
specifications applicable to the design and construction of the
storm water channels and their associated structures shall be
satisfied.
7.5.i.8.D. Conservation Easement shall compromise at least 10%
of the Homestead Area, including the Commercial Parcels.
7.5.i.8.E. The Director shall assure that all areas suitable
for hardwoods in the Conservation Easement are planted with native
hardwoods at a rate of 500 seedings per acre in continuous mixtures
across the conservation easement with at least six (6) species from
the following list: white and red oaks, other native oaks, white
ash, yellow-poplar, black walnut, sugar maple, black cherry, or
native hickories. Plants shall be a minimum of 3/4" in diameter at breast height at planting.
7.5.i.8.F. Each of the species shall not be less than 10% of
the total planted composition and at least 75% of the total planted
woody plant composition shall be from the above list of species.
Species shall be selected based on their compatibility and expected
site-specific long-term dynamics.
7.5.i.8.G. At least 10% of the required number of woody plants
shall be a planted continuous mix of three or more nurse tree and
shrub species that improve soil quality and habitat for wildlife.
They shall consist of black alder, black locust, bristley locust,
redbud, or bi-color lespedeza.
7.5.i.8.H. On areas unsuitable for hardwoods, the Director may
authorize the following conifers: Virginia pine, red pine, white
pine, pitch pine, or pitch x loblolly hybrid pine. Areas
unsuitable for hardwoods shall be limited to southwest-facing
slopes of greater than 10% or areas where the soil pH is less than
5.5. These conifers shall be planted as single-species stands less
than 10 acres in size at the same rate as the hardwood requirements
in this rule. The Director shall assure that no Conservation
Easement area contains a total of more than 15% conifers.
7.5.i.8.I. The Director shall assure that the specific species
and selection of trees and shrubs shall be based on the suitability
of the planting site for each species site requirements based on
soil type, degree of compaction, ground cover, competition,
topographic position, and aspect.
7.5.i.8.J. The Director shall assure that the total planting
rate of trees and nurse plants is not less than 500 stems per acre.
7.5.i.9. Perpetual Easements:
7.5.i.9.A. The Homestead Plan shall describe areas within the
Homestead reserved for perpetual easements relating to storm water
management, protection of outslopes and steep slopes, protection of
water sources, public roads of all kinds, and utilities. These
areas shall be included within Homesteader's deeded parcels and may
have permanent development restrictions included within the
Homesteader's deeds of conveyance.
7.5.i.9.B. Fill faces shall be placed under perpetual
easements that prohibit activities that may lead to instability or
erodability. Trees may be planted on the faces of the fills.
7.5.i.10.Wetlands: Each Homestead Plan may describe areas
within the Homestead Area reserved for created wetlands. These created wetlands may be ponds, permanent impoundments or wetlands
created during mining. They may be left in place after final bond
release.
7.5.j. Soils, Soil Placement And Grading.
7.5.j.1. General Requirements:
7.5.j.1.A. Phase I bond release shall not be approved until a
soil scientist certifies and the Director finds that the soil meets
the criteria established in this rule and has been placed in
accordance with this rule.
7.5.j.1.B. The Homestead Plan shall include a topographic map
of the permit area, 1:12000 or finer, showing the location of
pre-mining native solids, weathered slightly-acidic brown sandstone
and drainages which includes site index for common native tree
species. A profile description of each soil mapping unit that
includes, at minimum, soil horizons, including the O. horizon
depths, soil texture, structure, color, reaction and bedrock type.
A certified professional soil scientist shall conduct a detailed
on-site survey, create the maps, and provide the written
description of the soils and sandstones.
7.5.j.1.C. The Homesteading Plan shall include a description of the present soils and soil substitutes to be used as the plant
medium, and a description of the proposed handling, and placement
of these materials. The handling plan shall include procedures to:
7.5.j.1.C.1. Protect native soil organisms and the native seed
pool;
7.5.j.1.C.2. Include organic debris such as litter, branches,
small logs, roots and stumps in the soil;
7.5.j.1.C.3. Inoculate the minesoil with native soil
organisms; and
7.5.j.1.C.4. Increase soil fertility.
7.5.j.1.D. A surface preparation plan which includes a
description of the methods for replacing and grading the soil and
other soil substitutes and their preparation for homesteading.
7.5.j.2. Landscape Criteria:
7.5.j.2.A. The Director shall assure that the postmining
landscape is rolling, and diverse. The backfill on the mine bench,
shall be configured to create a postmining topography that includes
the principles of landforming to reflect the premining
irregularities in the land. Postmining landform shall provide a
rolling topography with slopes of between 5% and 15%. The elevation change between the ridgeline and the valleys shall be
varied. The slope lengths shall not exceed 500 feet. The minimum
thickness of backfill, including minesoil, placed on the pavement
of the basal seam mined in any particular area shall be 10 feet.
7.5.j.2.B. At least 3 ponds, permanent impoundments or
wetlands totaling at least 3.0 acres shall be created on each 200
acres of permitted area. They shall be dispersed throughout the
landscape and each water body shall be no smaller than 0.20 acres.
All ponds, permanent impoundments or wetlands shall comply with all
requirements of this rule, and shall be left in place after final
bond release.
7.5.j.2.C. All ponds and impoundments created during mining
shall be left in place after bond release and shall comply with all
the requirements of this rule.
7.5.j.2.D. The ponds, permanent impoundments, surface water
channels and wetlands on the Permit Area shall be vegetated on the
perimeter with at least six native herbaceous species typical of
the region at a density of not less than 1 plant per linear foot of
edge, and at least 4 native shrub species at a density of not less
than 1 shrub per 6 linear feet of edge. No species of herbaceous or shrub species shall be less than 15% of the total for its life
form.
7.5.j.2.E. The landscape criteria in this rule do not apply to
valley fills.
7.5.j.3. Soil:
7.5.j.3.A. Soil is defined as and shall consist of the O, A,
B, C, and Cr horizons.
7.5.j.3.B. The Director shall require the operator to recover
and use all the soil on the mined area, as shown on the soil maps,
except for those areas with a slope of at least 50%, and other
areas from which the applicant affirmatively demonstrates and the
Director finds that soil cannot reasonably be recovered. The
Director shall assure that all saved soil includes all of the
material from the O and A horizons.
7.5.j.3.C. When the Director determines that available soil
volume on the permit area is not sufficient to meet the depth
requirements, selected overburden materials may be used as soil
substitutes. Soil substitutes shall consist of weathered, slightly
acid, brown sandstone from within 10 feet of the soil surface if
the Director determines that such material is available. Material from this layer may be removed with the soil and mixed with the
soil in order to meet the depth requirement.
7.5.j.3.D. If the applicant affirmatively demonstrates and the
Director finds that weathered, slightly acid, brown sandstone from
within 10 feet of the soil surface cannot reasonably be recovered,
weathered, slightly acid, brown sandstone taken from below 10 feet
of the soil surface from anywhere in the permit area may be
substituted. Materials may be suitable for this purpose only if
their bulk pH in water is between 5.0 and 7.0. Materials with net
potential acidity greater than 5 tons of calcium carbonate
equivalence per 1000 tons may not be used.
7.5.j.3.E. Before approving the use of soil substitutes, the
Director shall require the permittee to demonstrate that the
selected overburden material is suitable for restoring land
capability and productivity. This will be demonstrated by the
results of chemical and physical analyses, including pH, total
soluble salts, phosphorus, potassium, calcium, texture class,
acid-base accounting, and other such analyses as necessary.
7.5.j.3.F. The final surface material used on all parts of the
permit area except roads, building pads, and valley fill faces shall consist of a minimum of 4 feet of soil, or a mixture of soil
and suitable soil substitutes. Homesteading soil depth shall
contain at least 33% soil. If the applicant affirmatively
demonstrate and the Director finds, that sufficient weathered
slightly acid brown sandstone cannot reasonably be recovered from
the mined area to satisfy the mine soil depth requirement, then up
to one quarter of the total volume of the minesoil may consist of
highly-fractured sandstone, as long as it has been demonstrated
that the physical and chemical quality of this material is
suitable.
7.5.j.3.G. If the applicant does not demonstrate that there is
sufficient material available on the permit area to satisfy the
requirements of this rule, then the Director may not authorize a
Homesteading variance.
7.5.j.3.H. The Director may require the operator to include as
part of the minesoil mix organic debris such as forest litter,
branches, small logs, roots and stumps in the soil to help reseed
the native vegetation, inoculate the minesoil with native soil
organisms and increase soil fertility.
7.5.j.3.I. The Director shall require that soil be removed and reapplied in a manner that minimizes stockpiling such that seed
pools and soil organisms remain biological viable. No more than
10% of the available soil, described in the Director's findings,
may be placed in a long-term stockpile, soil redistribution shall
be done within one month of soil removal. Except for soil in a
long-term stockpile, soil shall be stored for less than one month
in piles less than six feet high and 24 feet wide in a stable area
within the permit area where it will not be disturbed and will be
protected from water or wind erosion or contaminants that lessen
its capability to support vegetation. Long-term stockpiles shall
be seeded with ground cover mixes used for reforestation.
7.5.j.4. Soil Placement And Grading:
7.5.j.4.A. Except for valley fill faces, building pads, roads,
and other areas that must be compacted, the Director shall require
the Permittee to place minesoil loosely and in a non-compacted
manner while meeting static safety factor requirements. Grading
the final surface shall be minimized to reduce compaction. Once
the material is placed, light grading equipment shall be used to
grade the tops of the piles, roughly leveling the area with no more
than one or two passes. Tracking in and rubber-tired equipment shall not be used. Non-permanent roads, equipment yards and other
trafficked areas shall be deep-ripped (24" to 36") to mitigate
compaction.
7.5.j.4.B. Soil physical quality shall be inadequate if it
inhibits water infiltration or prevents root penetration or if
their physical properties or water-supplying capacities cause them
to restrict root growth of trees. Slopes greater than 50% shall be
compacted no more than is necessary to achieve stability and
non-erodability.
7.5.j.4.C. The Director shall require the permittee to leave
soil surfaces rough with random depressions across the entire
surface to catch seed and sediment, conserve soil water. Organic
debris such as forest litter, logs, and stumps may be left on and
in the soil.
7.5.j.5. Limiting And Fertilizing: The Permittee shall submit
a liming and fertilizing plan. The Director shall assure that the
liming and fertilizing plan is appropriate for establishing the
ground cover vegetation.
7.5.j.6. Ground Cover Vegetation:
7.5.j.6.A. The Director shall require the permittee to establish a temporary vegetative cover as contemporaneously as
practicable with backfilling and grading. This cover shall consist
of a combination of native and domesticated non-invasive cool and
warm season grasses and other herbaceous vine or shrub species
including legume species and ericaceious shrubs. All species shall
be slow growing. The ground cover vegetation shall be capable of
stabilizing the soil from excessive erosion. Seeding rates and
composition must be in the Homestead Plan. The following ground
cover mix and seeding rates (pounds/acre) shall be used: winter
wheat (15 lbs/acre, fall seeding), foxtail millet (5 lbs./acre,
summer seeding), redtop (2 lbs/acre), perennial ryegrass (2
lbs/acre), orchardgrass (5 lbs/acre), weeping lovegrass (2
lbs/acre) kobe lespedeza (5 lbs/acre), birdsfoot trefoil (10
lbs./acre), and white clover (3 lbs/acre). Kentucky-31 fescue,
serecia lespedeza, all vetches, clovers (except ladino and white
clover) and other aggressive or invasive species shall not be used.
On south- and west-facing slopes with a soil pH of 6.0 or greater,
the four grasses in the mixture shall be replaced with 20 lbs/acre
of warm-season grasses consisting of the following species:
Niagara big bluestem (95 lbs/acre), Camper little bluestem (2 lbs/acre), Indian grass (2 lbs/acre), and Shelter switch grass (1
lb/acre), or other varieties of these species approved by the
Director. Also, a selection of at least 3 ericaceous shrub species
shall be included in the ground cover mix.
7.5.j.6.B. The Permittee may regrade and reseed only those
rills and gullies that are unstable.
7.5.j.7. Front Faces Of Valley Fills:
7.5.j.7.A. Front faces of valley fills shall be exempt from
the requirements of this rule except that:
7.5.j.7.A.1. They shall be graded and compacted no more than
is necessary to achieve stability and non-erodability.;
7.5.j.7.A.2. No shales may be present in the upper four feet
of surface material;
7.5.j.7.A.3. The upper four feet of surface material shall be
composed of soil and weathered brown sandstone when available,
unless the Director determines other material is necessary to
achieve stability;
7.5.j.7.A.4. The groundcover mixes described in subparagraph
shall be used unless the Director requires a different mixture.
7.5.j.7.A.5. Kentucky 31 fescue, serecia lespedeza, vetches, clovers (except ladino and white clover) or other invasive species
may not be used; and
7.5.j.7.B. Although not required by this rule, native,
non-invasive trees may be planted on the faces of fills.
7.5.k. Requirements For Reclamation Maps. An appropriately
scaled, "as-built" topographic map of the Homestead Area shall be
prepared and submitted as part of the permit application. An
identically scaled *overlay* map showing the elevation contours at
the base of all mined areas as well as the original ground contour
of all excess mine spoil storage areas shall accompany the as-built
map. The overlay map shall identify all backfilled mine sites and
excess mine-spoil storage areas. The overlay map shall depict the
boundaries of all parcels, areas of mine spoil specifically
compacted for the placement of structures, easements, and areas
that the Director may designate for special or limited uses. All
post-reclamation maps shall be prepared under the direction of and
certified by a registered professional engineer and shall be
recorded with the county within one year following the final
reclamation of the proposed Homestead Area.
7.5.l. Homestead Village.
7.5.l.1. Homestead Village: The Homestead Village provides
for a residential development at a higher density than in rural
Homestead parcels. The Village is intended to:
7.5.l.1.A. Encourage mixed residential and commercial land
uses, and
7.5.l.1.B. At least 20% of the Homestead Area shall be
composed of Village parcels.
7.5.l.2. Village Parcel Requirements:
7.5.l.2.A. Each Village homestead parcel shall be no larger
than one acre in size.
7.5.l.2.B. Each parcel shall have a minimum road frontage of
40 feet. No pipe stem parcel arrangements are permitted.
7.5.l.2.C. Each parcel shall be graded evenly to 5% maximum.
7.5.l.3. Common Lands: In addition to the Civic Parcels and
Conservation Easements, each Homestead Area shall include a reserve
of 10% of the land as a common area. The Common Land shall be
conveyed to the Community Association. The planning and
maintenance of the Common Land shall be the responsibility of the
Community Association.
7.5.l.4. Public Nursery: Each Village Homestead shall designate an area for a Public Nursery constructed and planted by
the Permittee at no cost to the Homesteaders. The nursery may be
located adjacent to the Common Land but shall not constitute the
required Common Land area. The Nursery shall provide woody plants
of high quality and appearance for the use of the Homesteaders as
specified below.
7.5.l.4.A. The nursery shall be 1 acre per 30 acres of
Homestead Area. The Public Nursery shall be a civic parcel. The
Permittee shall plant the nursery with the same species and to the
same standards as required in the Conservation Easement. Once bond
is released, the Community Association shall be responsible for
maintaining the nursery. Success standards shall be the same as
for the conservation easements.
7.5.l.4.B. The nursery plants shall consist of at least six
species from the following list: white oak, red oak, other native
oaks, white ash, yellow poplar, black walnut, sugar maple, black
cherry, or native hickories.
7.5.l.4.C. Adequate water supply shall be provided for the
nursery. This may be achieved through any of the water supply
means specified or through the storm water drainage system.
7.5.l.4.D. The nursery shall be maintained in manner
consistent with the healthy development of the plants. The nursery
plants shall meet the following criteria upon conveyance: 1) in
regular form for the species, 2) 80% live branches, and 3) color
consistent with the species. Materials not meeting the
specifications shall be replaced with like species by the
permittee. After final bond release, the nursery shall be conveyed
to the Community Association.
7.5.l.4.E. Each Homesteader shall be allowed to take trees
from the nursery as determined by the Community Association. The
remainder of the trees shall be for the common landscapes.
7.5.m. Community Association:
7.5.m.1. At the completion of the lottery, a Community
Association shall be established among the designated Homesteaders
for each Homestead Area. The Association shall maintain and
administer the public areas, Conservation Easements and Civic
Parcels of the Homestead and may levy membership fees.
7.5.m.2. By-laws for the Community Association shall be
developed by the Escrow Agent, working with the Homesteaders and a
qualified design professional as defined by this rule. The permittee shall pay the qualified land designer for such services.
The by-laws may establish rules for building standards and other
Homestead Area rules, as appropriate.
7.5.m.3. Membership in the association is mandatory for all
Homesteaders and their successors.
7.5.m.4. The association shall obtain liability insurance for
its property and shall be responsible for maintenance of insurance
and taxes on undivided open space. The association may place liens
on the homes or houselots of its members who fail to pay their
association dues in a timely manner. Such liens may require the
imposition of penalty interest charges.
7.5.m.5. The association shall administer common facilities
and pay for maintaining and developing such facilities.
7.5.n. Interim Homestead Management.
7.5.n.1. The Director or the Director's designee shall
administer the Homestead Selection Lotteries.
7.5.n.2. The Escrow Agent shall monitor the 5-year occupancy
requirement for each Homestead Parcel and transfer of the titles of
the surface estates to the qualified Homesteaders.
7.5.n.3. The Escrow Agent shall manage and administer the homestead between final bond release and the time when all of the
titles to the Homestead Parcels have been transferred and duly
recorded with the Clerk of the County.
7.5.n.4. Funding these services shall be guaranteed by an
insured Bank account established by the Permittee.
7.5.n.5. Before approving any Homestead variance, the Director
shall find, in writing, that the funds in the account are
sufficient to pay for these services.
7.5.n.6. After final bond release, this account shall be
administered by the Escrow Agent.
7.5.n.7. The Escrow Agent shall receive the surface rights to
the entire Homestead Area and all-weather and main roads before
mining begins.
7.5.n.8. The Escrow Agent shall be charged with responsibility
for transferring the surface rights in escrow to the Homesteaders,
the Community Association, or the State or county road authority.
7.5.n.9. Such transfers shall promptly occur upon
certification by the Escrow Agent that the Homesteader has met the
requirements of this rule.
7.5.n.10. Before the homesteader receives title, property may revert to the Escrow Agent, when after notice and hearing, the
Escrow Agent determines that the homesteader has not abided by this
rule. The Escrow Agent's determination shall be reviewable by the
Circuit Court of the County in which the homestead parcel is
located.
7.5.n.11. If developed property reverts to Escrow, the Escrow
Agent shall promptly sell the property and remit proceeds, less
costs, to the homesteader, up to the value of the homesteader's
investment.
7.5.n.12. Because deeds to Homestead Parcels will not be
transferred to Homesteaders before a Homesteader has lived on a
parcel for five years, lending institutions may be reluctant to
make loans to Homesteaders before the five-year period has expired.
Accordingly, to assure that lending institutions are willing to
make loans to Homesteaders during this period, the Escrow Agent
shall establish a system to provide mortgage insurance to
homesteaders so that lenders will be able to finance private
development of homestead parcels. The Escrow Agent shall have all
powers necessary to structure loans and other necessary
transactions so lenders are reasonably secure.
7.5.o. Bond Release:
7.5.o.1. Before approving Phase I bond release, the Director
shall assure that the soil is in place, the vegetative cover has
been established, that the water system has been completed, that
the roads have been completed and transferred to the State or
county road authority, and that the main electricity transmission
line is in place.
7.5.o.2. Phase II bond release may not occur before two years
have passed since Phase I bond release. Before approving Phase II
bond release, the Director shall assure that the vegetative cover
is still in place. The Director shall further assure that the tree
survival on the Conservation Easements and Public Nurseries are no
less than 300 trees per acre (80% of which must be species from the
approved list). Furthermore, in the Conservation Easement and
Public Nursery areas, there shall be a 70% ground cover where
ground cover includes tree canopy, shrub and herbaceous cover,
organic litter, and rock cover. Trees and shrubs counted in
considering success shall be healthy and shall have been in place
at least two years, and no evidence of inappropriate dieback.
Phase II bond release shall not occur until the service drops for the utilities and communications have been installed to each
Homestead Parcel.
7.5.o.3. The Director may authorize Phase III bond release
only after all parcels in the Homestead Areas are certified and
ready for occupancy.
7.5.o.4. Once final bond release is authorized, the
Permittee's responsibility for implementing the Homestead Plan
shall cease.'
And,
On page 129, subsection 14.12.a.1, by following the words
'industrial, commercial, residential' by striking the word
'woodlands' and inserting in lieu thereof 'commercial forestry'."
(v) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section two, article four,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fifth day of January, two thousand, relating to the
division of environmental protection (mining and restoration for sandstone, limestone and sand, 38 CSR 2A), is disallowed and not
authorized.
(w) The legislative rule filed in the state register on the
sixth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section two, article four,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-fifth day of January, two thousand, relating to the
division of environmental protection (mining and reclamation of
minerals other than coal, limestone, sandstone and sand, 38 CSR
2B), is disallowed and not authorized.
(x) The legislative rule filed in the state register on the
fifth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section twenty, article fifteen,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first day of January, two thousand, relating to the
division of environmental protection (sewage sludge management, 33 CSR 2), is authorized.
(y) The legislative rule filed in the state register on the
fourth day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section six, article eighteen,
chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the twenty-first day of January, two thousand, relating to the
division of environmental protection (hazardous waste management,
33 CSR 20), is authorized.
(z) The legislative rule filed in the state register on the
twenty-eighth day of July, one thousand nine hundred ninety-nine,
authorized under the authority of section ten, article eleven,
chapter twenty-two of this code, relating to the division of
environmental protection (water pollution control permit fee
schedule, 47 CSR 26), is authorized.
(aa) The legislative rule filed in the state register on the
twenty-eighth day of July, one thousand nine hundred ninety-nine,
authorized under the authority of section three, article two,
chapter twenty-two-c of this code, relating to the division of environmental protection (state water pollution control revolving
fund program, 47 CSR 31), is authorized.
(bb) The legislative rule filed in the state register on the
third day of August, one thousand nine hundred ninety-nine,
authorized under the authority of section five, article twelve,
chapter twenty-two of this code, relating to the division of
environmental protection (groundwater protection standards at steam
electric generating facilities, 47 CSR 57A), is authorized.
(cc) The legislative rule filed in the state register on the
first day of January, one thousand nine hundred sixty-five,
authorized under the authority of section seven, article five,
chapter twenty-two of this code relating to the division of
environmental protection (to prevent and control air pollution from
coal refuse disposal areas, 45 CSR 1), is repealed.
NOTE: The purpose of this bill is to authorize the Division of
Environmental Protection to promulgate a legislative rule relating
to Surface Mining Blasting.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.