H. B. 2956


(By Delegates Frederick, H. White, Carmichael,

R. M. Thompson, Warner, Cann and Stalnaker)


[Introduced February 11, 2003; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact sections two and four, article three, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to requiring the secretary of the department of environmental protection to adopt the federal regulations governing surface coal mining activities; and providing that any legislative rules proposed by the West Virginia Department of Environmental Protection for the purposes of permitting and regulating mining operations may be no more stringent than the federal regulations promulgated by the office of surface mining reclamation and enforcement.

Be it enacted by the Legislature of West Virginia:
That sections two and four, 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.
§22-3-2. Legislative findings and purpose; jurisdiction vested in division of environmental protection; authority of director; inter-departmental cooperation.

(a) The Legislature finds that it is essential to the economic and social well-being of the citizens of the state of West Virginia to strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements.
Further, the Legislature finds that there is great diversity in terrain, climate, biological, chemical and other physical conditions in parts of this nation where mining is conducted; that the state of West Virginia in particular needs an environmentally sound and economically healthy mining industry; and by reason of the above it may be necessary for the director to promulgate rules which vary from federal regulations as is provided for in sections 101 (f) and 201 (c)(9) of the federal Surface Mining Control and Reclamation Act of 1977, as amended, "Public Law 95-87": Provided, That with the exception of rules necessary to maintain the special reclamation fund created by section eleven of this article or any alternative bonding system that may be created by the Legislature, no rule proposed for legislative approval by the secretary may be approved in the event the rule varies from the federal regulations unless the Legislature determines the variation from the federal regulations is specifically warranted to protect and preserve the quality of the natural environment in this state or to address public health, safety and welfare concerns.
Further, the Legislature finds that unregulated surface coal mining operations may result in disturbances of surface and underground areas that burden and adversely affect commerce, public welfare and safety by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural and forestry purposes; by causing erosion and landslides; by contributing to floods; by polluting the water and river and stream beds; by destroying fish, aquatic life and wildlife habitats; by impairing natural beauty; by damaging the property of citizens; by creating hazards dangerous to life and property; and by degrading the quality of life in local communities, all where proper mining and reclamation is not practiced.
(b) Therefore, it is the purpose of this article to:
(1) Expand the established and effective statewide program to protect the public and the environment from the adverse effects of surface-mining operations;
(2) Assure that the rights of surface and mineral owners and other persons with legal interest in the land or appurtenances to land are adequately protected from such operations;
(3) Assure that surface-mining operations are not conducted where reclamation as required by this article is not feasible;
(4) Assure that surface-mining operations are conducted in a manner to adequately protect the environment;
(5) Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface-mining operations;
(6) Assure that adequate procedures are provided for public participation where appropriate under this article;
(7) Assure the exercise of the full reach of state common law, statutory and constitutional powers for the protection of the public interest through effective control of surface-mining operations; and
(8) Assure that the coal production essential to the nation's energy requirements and to the state's economic and social well-being is provided.
(c) In recognition of these findings and purposes, the Legislature hereby vests authority in the director of the division of environmental protection to:
(1) Administer and enforce the provisions of this article as it relates to surface mining to accomplish the purposes of this article;
(2) Conduct hearings and conferences or appoint persons to conduct them in accordance with this article;
(3) Promulgate, administer and enforce rules pursuant to this article;
(4) Enter into a cooperative agreement with the secretary of the United States department of the interior to provide for state regulation of surface-mining operations on federal lands within West Virginia consistent with section 523 of the federal Surface Mining Control and Reclamation Act of 1977, as amended; and
(5) Administer and enforce rules promulgated pursuant to this chapter to accomplish the requirements of programs under the federal Surface Mining Control and Reclamation Act of 1977, as amended.
(d) The director of the division of environmental protection and the director of the office of miners' health, safety and training shall cooperate with respect to each agency's programs and records to effect an orderly and harmonious administration of the provisions of this article. The director of the division of environmental protection may avail himself or herself of any services which may be provided by other state agencies in this state and other states or by agencies of the federal government, and may reasonably compensate them for such services. Also, he or she may receive any federal funds, state funds or any other funds, and enter into cooperative agreements, for the reclamation of land affected by surface mining.
§22-3-4. Reclamation; duties and functions of director.

(a) The director shall administer the provisions of this article relating to surface-mining operations. The director has within his or her jurisdiction and supervision all lands and areas of the state, mined or susceptible of being mined, for the removal of coal and all other lands and areas of the state deforested, burned over, barren or otherwise denuded, unproductive and subject to soil erosion and waste. Included within such lands and areas are lands seared and denuded by chemical operations and processes, abandoned coal mining areas, swamplands, lands and areas subject to flowage easements and backwaters from river locks and dams, and river, stream, lake and pond shore areas subject to soil erosion and waste. The jurisdiction and supervision exercised by the director shall be consistent with other provisions of this chapter.
(b) The director has the authority to:
(1) Promulgate Propose legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, to implement the provisions of this article: Provided, That in proposing legislative rules, the secretary shall adopt by reference the regulations promulgated by the federal office of surface mining reclamation and enforcement pursuant to the Federal Surface Mining Control and Reclamation Act of 1977, as amended, "Public Law 95-87." The director shall give notice by publication of the public hearing required in article three, chapter twenty-nine-a of this code: Provided, however, That any forms, handbooks or similar materials having the effect of a rule as defined in article three, chapter twenty-nine-a of this code were issued, developed or distributed by the director pursuant to or as a result of a rule are subject to the provisions of article three, chapter twenty-nine-a of this code;
(2) Within one hundred eighty days of the effective date of this subdivision, with the exception of rules necessary to maintain the special reclamation fund created by section eleven, article three of this chapter or any alternative bonding system that may be created by the Legislature, the secretary shall adopt by reference the regulations promulgated by the federal office of surface mining reclamation and enforcement pursuant to the Federal Surface Mining Control and Reclamation Act of 1977, as amended, "Public Law 95-87." Further, the secretary shall review all existing procedural rules, interpretive rules, permits, policies, guidance, directives and programs to assure that the same properly implement the federal regulations promulgated by the federal office of surface mining reclamation and enforcement pursuant to the Federal Surface Mining Control and Reclamation Act of 1977, as amended, "Public Law 95-87." Within one hundred eighty days of the effective date of this subdivision, the secretary shall review all existing legislative rules, interpretive rules, permits, policies, guidance, directives and programs to assess their conformity to corresponding federal regulations. Where necessary, the secretary shall, within one hundred eighty days of the effective date of this subdivision, submit proposed changes to legislative rules and interpretive rules to ensure conformity to the corresponding federal regulations.
(3) Provided, That nothing in this article may be construed to prohibit the maintenance of the special reclamation fund or the implementation of another alternative bonding system as provided in section eleven, article three of this chapter and implemented in title thirty-eight, series two, section eleven of the code of state rules.
(2) (4) Make investigations or inspections necessary to ensure complete compliance with the provisions of this code;
(3) (5) Conduct hearings or appoint persons to conduct hearings under provisions of this article or rules adopted by the director; and for the purpose of any investigation or hearing hereunder, the director or his or her designated representative, may administer oaths or affirmations, subpoena witnesses, compel their attendance, take evidence and require production of any books, papers, correspondence, memoranda, agreements, or other documents or records relevant or material to the inquiry;
(4) (6) Enforce the provisions of this article as provided herein; and
(5) (7) Appoint such advisory committees as may be of assistance to the director in the development of programs and policies: Provided, That such advisory committees shall, in each instance, include members representative of the general public.
(c) (1) After the director has adopted the rules required by this article, any person may petition the director to initiate a proceeding for the issuance, amendment or appeal of a rule under this article.
(2) The petition shall be filed with the director and shall set forth the facts which support the issuance, amendment or appeal of a rule under this article.
(3) The director may hold a public hearing or may conduct such investigation or proceeding as he or she considers appropriate in order to determine whether the petition should be granted or denied.
(4) Within ninety days after filing of a petition described in subdivision (1) of this subsection, the director shall either grant or deny the petition. If the director grants the petition, he or she shall promptly commence an appropriate proceeding in accordance with the provisions of chapter twenty-nine-a of this code. If the director denies the petition, he or she shall notify the petitioner in writing setting forth the reasons for the denial.



NOTE: The purpose of this bill is to require the secretary of the department of environmental protection to adopt the federal regulations governing surface coal mining activities. The bill further provides that any legislative rules proposed by the West Virginia Department of Environmental Protection for the purposes of permitting and regulating mining operations may be no more stringent than the federal regulations promulgated by the office of surface mining reclamation and enforcement.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.