Senate Bill No. 480
(By Senator Snyder, By Request)
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[Introduced February 11, 2003; referred to the Committee on
Energy, Industry and Mining; and then to the Committee on
Finance.]
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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 federal regulations governing surface coal mining
activities.
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, article three of this
chapter or any alternative bonding system that may be created by
the Legislature, the secretary shall not promulgate rules that vary
from the federal regulations unless and until the Legislature so
determines that a variation from the federal standards is
specifically warranted to protect and preserve the quality of the
natural environment in West Virginia or to address public health,
safety or 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 rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement the provisions of
this article: Provided,
That in promulgating such 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." Further, 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: Provided
however, further, That any forms, handbooks or similar materials
having the effect of a rule as defined in article three, chapter twenty-nine 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) Make investigations or inspections necessary to ensure
complete compliance with the provisions of this code;
(3) 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) Enforce the provisions of this article as provided herein;
(5)
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; and
(6) 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" and within 180 days of the
passage of this statute shall, excepting for those 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, review all existing
procedural rules, interpretive rules, permits, policies, guidance,
directives and programs to assure that such policies and guidance
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": Provided, That nothing in
this section will be construed to prohibit the maintenance of the
special reclamation fund or implementation or another alternative
bonding system as provided in section eleven, article three of this
chapter and implemented in thirty-eight, series two, section eleven
of the code of state rules.
(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 West
Virginia Department of Environmental Protection to adopt, with the
exception of regulations governing alternative bonding systems,
federal regulations promulgated by the Office of Surface Mining
Reclamation and Enforcement for the purposes of permitting and
regulating coal mining within the State of West Virginia.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.