Senate Bill No. 689
(By Senators Jackson, Kessler, Fanning and Minear)
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[Introduced March 26, 2001; referred to the Committee on Energy,
Industry and Mining.]
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A BILL to amend and reenact sections thirteen-a, twenty-two-a and
thirty-a,
article three, chapter twenty-two of the code of
West Virginia, one thousand nine hundred thirty-one,
as
amended, all relating to conducting preblast surveys;
requirements for
surface coal mines, water rights and
replacement for residents near surface coal
mines; and
blasting requirements for surface coal mines.
Be it enacted by the Legislature of West Virginia:
That sections thirteen-a, twenty-two-a and thirty-a, article
three, chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-13a. Preblast survey requirements.
(a) At least thirty days prior to commencing blasting, as
defined in section twenty-two-a of this article, an operator or an
operator's designee shall make the following notifications in
writing to all owners and occupants of man-made dwellings or
structures that the operator or operator's designee will perform
preblast surveys in accordance with subsection (f) of this section:
(1) For permitted surface disturbance of underground mines,
and for surface mining operations that are less than two hundred
acres in a single permitted area or less than three hundred acres
of contiguous or nearly contiguous area of two or more permitted
areas, the required notifications shall be to all owners and
occupants of man-made dwellings or structures within five tenths of
a mile of the permitted area or areas;
(2) For all other surface mining operations, the required
notifications shall be to all owners and occupants of man-made
dwellings or structures within five tenths of a mile of the
permitted area or areas or seven tenths of a mile of the proposed
blasting site, whichever is greater.
(b) Within thirty days of the effective date of this section,
any operator identified in subdivision (2), subsection (a) of this
section that has already completed preblast surveys for man-made
dwellings or structures within five tenths of a mile of the permit
area and has commenced operations by the effective date of this section shall be required to notify in writing all additional
owners and occupants of man-made dwellings or structures within
seven tenths of a mile of the proposed blasting site. Except for
those dwellings or structures for which the operator secures a
written waiver or executes an affidavit in accordance with the
requirements of subsection (c) of this section, the operator or the
operator's designee must perform the additional preblast surveys in
accordance with subsection (f) of this section within ninety days
of the effective date of this section.
(c) An occupant or owner of a man-made dwelling or structure
within the areas described in subdivision (1) or (2), subsection
(a) of this section may waive the right to a preblast survey in
writing. If a dwelling is occupied by a person other than the
owner, both the owner and the occupant must waive the right to a
preblast survey in writing. If an occupant or owner of a man-made
dwelling or structure refuses to allow the operator or the
operator's designee access to the dwelling or structure and refuses
to waive in writing the right to a preblast survey or to the extent
that access to any portion of the structure, underground water
supply or well is impossible or impractical under the
circumstances, the preblast survey shall indicate that access was
refused, impossible or impractical. The operator or the operator's
designee shall execute a sworn affidavit explaining the reasons and circumstances surrounding the refusals. The office of explosives
and blasting shall may not determine the preblast survey to be
incomplete because it indicates that access to a particular
structure, underground water supply or well was refused, impossible
or impractical. The operator shall send copies of all written
waivers and affidavits executed pursuant to this subsection to the
office of explosives and blasting.
(d) If a preblast survey was waived by the owner and was
within the requisite area and the property was sold, the new owner
may request a preblast survey from the operator.
(e) An owner within the requisite area may request, from the
operator, a preblast survey on structures constructed after the
original preblast survey.
(f) The preblast survey shall include:
(1) The names, addresses or description of structure location
and telephone numbers of the owner and the residents of the
structure being surveyed and the structure number from the permit
blasting map;
(2) The current home insurer of the owner and the residents of
the structure;
(3) The names, addresses and telephone numbers of the surface
mining operator and the permit number;
(4) The current general liability insurer of the surface mining operator;
(5) The name, address and telephone number of the person or
firm performing the preblast survey;
(6) The current general liability insurer of the person or
firm performing the preblast survey;
(7) The date of the preblast survey and the date it was mailed
or delivered to the office of explosives and blasting;
(8) A general description of the structure and its
appurtenances, including, but not limited to: (A) The number of
stories; (B) the construction materials for the frame and the
exterior and interior finish; (C) the type of construction
including any unusual or substandard construction; and (D) the
approximate age of the structure;
(9) A general description of the survey methods and the
direction of progression of the survey, including a key to
abbreviations used;
(10) Written documentation and drawings, videos or photographs
of the preblast defects and other physical conditions of all
structures, appurtenances and water sources which could be affected
by blasting;
(11) Written documentation and drawings, videos or photographs
of the exterior and interior of the structure to indicate preblast
defects and condition;
(12) Written documentation and drawings, videos or photographs
of the exterior and interior of any appurtenance of the structure
to indicate preblast defects and condition;
(13) Sufficient exterior and interior photographs or videos,
using a variety of angles, of the structure and its appurtenances
to indicate preblast defects and the condition of the structure and
appurtenances;
(14) Written documentation and drawings, videos or photographs
of any unusual or substandard construction technique and materials
used on the structure and/ or its appurtenances or both structure
and appurtenances;
(15) Written documentation relating to the type of water
supply, including a description of the type of system and treatment
being used, an analysis of untreated water supplies, a water
analysis of water supplies other than public utilities and
information relating to the quantity and quality of water;
(16) When the water supply is a well, written documentation,
where available, relating to the type of well; the well log; the
depth, age and type of casing or lining; the static water level;
flow data; the pump capacity; the drilling contractor; and the
source or sources of the documentation;
(17) A description of any portion of the structure and
appurtenances not documented or photographed and the reasons;
(18) The signature of the person performing the survey; and
(19) Any other information required by the chief which
additional information shall be established by rule in accordance
with article three, chapter twenty-nine-a of this code.
(g) Except for additional preblast surveys prepared within one
hundred twenty days of the effective date of this section, pursuant
to subsection (b) of this section, the preblast survey shall be
submitted to the office of explosives and blasting at least fifteen
days prior to the commencement of any production blasting.
The
office of explosives and blasting shall review each preblast survey
as to form and completeness only and notify the operator of any
deficiencies: Provided, That once all required surveys have been
reviewed and accepted by the office of explosives and blasting,
blasting may commence sooner than fifteen days after submittal.
The office of explosives and blasting shall notify the owner and
occupant of the location and availability of the preblast survey
and provide a copy of the preblast survey shall be provided to the
owner and/ or occupant. upon request
(h) The surface mining operator shall file notice of the
preblast survey or the waiver in the office of the county clerk of
the county commission of the county where the man-made dwelling or
structure is located to notify the public that a preblast survey
has been conducted or waived. The notice shall be on a form prescribed by the office of explosives and blasting.
(i) The chief of the office of explosives and blasting shall
propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code dealing with preblast
survey requirements and setting the qualifications for individuals
and firms performing preblast surveys.
(j) The provisions of this section shall do not apply to the
following: (1) Underground coal mining operations; and (2) the
extraction of minerals by underground mining methods. or the
surface impacts of the underground mining methods
(a) For purposes of this section, the term "production
blasting" means blasting that removes the overburden to expose
underlying coal seams and shall does not include construction
blasting.
(b) For purposes of this section, the term "construction
blasting" means blasting to develop haul roads, mine access roads,
coal preparation plants, drainage structures or underground coal
mine sites and shall does not include production blasting.
(c) For purposes of this section, the term "protected
structure" means any of the following structures that are situated
outside the permit area: An occupied dwelling; a temporarily unoccupied dwelling which has been occupied within the past ninety
days; a public building; a structure for commercial purposes; a
school; a church; a community or institutional building; and a
public park or a water well.
(d) Production blasting is prohibited within three hundred
feet of a protected structure or within one hundred feet of a
cemetery.
(e) Blasting within one thousand feet of a protected structure
shall have a site-specific blast design approved by the office of
explosives and blasting. The site-specific blast design shall
limit the type of explosives and detonating equipment, the size,
the timing and frequency of blasts to do the following:
(1) Prevent injury to persons; (2) prevent damage to public
and private property outside the permit area; (3) prevent adverse
impacts on any underground mine; (4) prevent change in the course,
channel or availability of ground or surface water outside the
permit area; and (5) reduce dust outside the permit area.
In the development of a site-specific blasting plan,
consideration shall be given, but is not limited, to the physical
condition, type and quality of construction of the protected
structure, the current use of the protected structure and the
concerns of the owner or occupant living in the protected
structures identified in the blasting schedule notification area.
(f) An owner or occupant of a protected structure may waive
the blasting prohibition within three hundred feet. or the site
specific restriction within one thousand feet in writing If a
protected structure is occupied by a person other than the owner,
both the owner and the occupant of the protected structure shall
waive the blasting prohibition within three hundred feet or the
site specific restriction within one thousand feet in writing. The
operator shall send copies of all written waivers executed pursuant
to this subsection to the office of explosives and blasting.
Written waivers executed and filed with the office of explosives
and blasting shall be are valid during the life of the permit or
any renewals of the permit and shall be are enforceable against any
subsequent owners or occupants of the protected structure.
(g)The provisions of this section shall do not apply to the
following: (1) Underground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods or the surface impacts of the underground mining methods:
Provided, That nothing contained in this section shall may be
construed to exempt any coal mining operation from the general
performance standards as contained in section thirteen of this
article and any rules promulgated pursuant thereto to said section.
§22-3-30a. Blasting requirements; liability and civil penalties in the event of property damage.
(a) Blasting of overburden and coal shall be conducted in
accordance with the rules and laws established to regulate
blasting.
(b) If the division of environmental protection establishes
after an inspection that a blast at a surface coal mine operation
as defined by the provisions of subdivision (2), subsection (a),
section thirteen of this article was not in compliance with the
regulations governing blasting parameters and resulted in property
damage to a protected structure, as defined in section twenty-two-a
of this article, other than water wells, the following penalties
shall be imposed for each permit area or contiguous permit areas
where the blasting was out of compliance:
(1) For the first offense, the operator shall be assessed a
penalty of not less than one thousand dollars nor more than five
thousand dollars.
(2) For the second offense and each subsequent offense within
one year of the first offense, the surface mining operator shall be
assessed a penalty of not less than five thousand dollars nor more
than ten thousand dollars.
(3) For the third offense and any subsequent offense within
one year of the first offense, or for the failure to pay any
assessment set forth within a reasonable time established by the director, the surface mining operator's permit shall be is subject
to an immediate issuance of a cessation order, as set out in
section sixteen of this article. The cessation order shall only be
released upon written order of the director of the division of
environmental protection when the following conditions have been
met:
(A) A written plan has been established and filed with the
director assuring that additional violations will not occur;
(B) The permittee has provided compensation for the property
damages or the assurance of adequate compensation for the property
damages that have occurred; and
(C) A permittee shall provide such monetary and other
assurances as the director shall determine considers appropriate to
compensate for future property damages. The monetary assurances
required shall be in an amount at least equal to the amount of
compensation required in paragraph (B), subdivision (3) of this
subsection.
(4) In addition to the penalties described in subdivisions
(1), (2) and (3) of this subsection for the second and subsequent
offenses on any one permitted area regardless of the time period,
the owner of the protected structure is entitled to a rebuttable
presumption that the property damage is a result of the blast if:
(A) A preblast survey was performed; and (B) the blasting site to which the second or subsequent offense relates is within seven
tenths of a mile of the protected structure.
(5) No more than one offense shall may arise out of any one
shot. For purposes of this section, "shot" means a single blasting
event composed of one or multiple detonations of explosive material
or the assembly of explosive materials for this purpose. One
"shot" may be composed of numerous explosive charges detonated at
intervals measured in milliseconds.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the division of environmental protection may not
impose penalties, as provided for in subsection (b) of this
section, on an operator for the violation of any rule identified in
subsection (a) (b) of this section that is merely administrative in
nature.
(d) The remedies provided in this section are not exclusive
and shall may not bar an owner or occupant from any other remedy
accorded by law.
(e) Where inspection by the division of environmental
protection establishes that production blasting, in violation of
section twenty-two-a of this article, was done within three hundred
feet of a protected structure, or was without an approved site-
specific blast design or not in accordance with an approved site-
specific blast design for production blasting within one thousand feet of any protected structure as defined in section twenty-two-a
of this article or within one hundred feet of a cemetery, the
monetary penalties and revocation, as set out in subsection (b) of
this section, apply.
(f) All penalties and liabilities as set forth in subsection
(b) of this section shall be assessed by the director, collected by
the director and deposited with the treasurer of the state of West
Virginia in the "general school fund".
(g) The director shall propose rules for legislative approval
pursuant to article three, chapter twenty-nine-a of this code for
the implementation of this section.
(h) The provisions of this section shall do not apply to the
following: (1) Underground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal
mine; and (3) the extraction of minerals by underground mining
methods: or the surface impacts of the underground mining methods
shall may be
construed to exempt any coal mining operation from the general
performance standards as contained in section thirteen of this
article and any rules promulgated pursuant thereto.
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(NOTE: The purpose of this bill is to amend the sections of
the code relating to conducting preblast surveys requirements for
surface coal mines, water rights and replacement for residents near
surface coal mines and blasting requirements for surface coal
mines.
Strike-through indicates language that would be stricken from
the present law and underscoring indicates new language that would
be added.)
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ENERGY, INDUSTRY AND MINING COMMITTEE AMENDMENTS
On page two, section thirteen-a, lines six and seven, by
striking out the words "permitted surface disturbance of
underground mines, and for";
On page two, section thirteen-a, line seventeen, after the
word "greater" by changing the period to a semicolon and inserting
a new subdivision, designated subdivision (3), to read as follows:
(3) For permitted surface disturbance of underground mines,
the required notifications shall be to all owners and occupants of
man-made dwellings or structures within five-tenths of a mile of
the permitted surface area or areas.;
On page ten, section thirty-a, line fifteen, by striking out
the word "thirteen" and inserting in lieu thereof the word
"thirteen-a";
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 689--A Bill to amend and reenact sections
thirteen-a, twenty-two-a and thirty-a,
article three, chapter
twenty-two of the code of West Virginia, one thousand nine hundred
thirty-one,
as amended, all relating to the surface coal mining and
reclamation act; preblast survey requirements; notification to
certain owners and occupants of nearby man-made dwellings and
structures; and expanding the operations to which the requirements
apply.