Senate Bill No. 601
(By Senator Snyder)
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[Introduced February 28, 2010; referred to the Committee on
Energy, Industry and Mining; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §22-3-9 and §22-3-22 of the Code of
West Virginia, 1931, as amended; to amend and reenact §22-6-6
and §22-6-11 of said code;
to amend and reenact §29-1-8a
of
said code
; to amend and reenact §37-13A-1, §37-13A-2 and §37-
13A-5 of said code; to amend said code by adding thereto a new
section, designated §37-13A-7; and to amend and reenact §61-8-
14 of said code, all relating to the access to and protection
of cemeteries; amending surface mining permit application
requirements; amending gas and oil well work permit
requirements; requiring permits be reviewed to determine the
potential for cemetery damage;
clarifying procedures for
protection of graves and burial sites
; clarifying requirements
and procedures for access to cemeteries and grave sites
located on private land; and enhancing the crime of
disinterment of a dead body or damage to a cemetery.
Be it enacted by the Legislature of West Virginia:
That §22-3-9 and §22-3-22 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §22-6-6 and §22-6-11 of
said code be amended and reenacted; that §29-1-8a of said code be
amended and reenacted; that §37-13A-1, §37-13A-2 and §37-13A-5 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §37-13A-7; and that §61-8-
14 of said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE MINING CONTROL AND RECLAMATION ACT.
§22-3-9. Permit application requirements and contents.
(a) The surface-mining permit application shall contain:
(1) The names and addresses of: (A) The permit applicant;
(B) the owner of record of the property, surface and mineral, to be
mined; (C) the holders of record of any leasehold interest in the
property; (D) any purchaser of record of the property under a real
estate contract; (E) the operator, if different from the
applicant; and (F) if any of these are business entities other
than a single proprietor, the names and addresses of the
principals, officers and resident agent;
(2) The names and addresses of the owners of record of all
surface and subsurface areas contiguous to any part of the proposed
permit area:
Provided, That all residents living on property
contiguous to the proposed permit area shall be notified by the applicant, by registered or certified mail, of such application on
or before the first day of publication of the notice provided for
in subdivision (6) of this subsection;
(3) A statement of any current surface-mining permits held by
the applicant in the state and the permit number and each pending
application;
(4) If the applicant is a partnership, corporation,
association or other business entity, the following where
applicable: The names and addresses of every officer, partner,
resident agent, director or person performing a function similar to
a director, together with the names and addresses of any person
owning of record ten percent or more of any class of voting stock
of the applicant; and a list of all names under which the
applicant, officer, director, partner or principal shareholder
previously operated a surface-mining operation in the United States
within the five-year period preceding the date of submission of the
application;
(5) A statement of whether the applicant, or any officer,
partner, director, principal shareholder of the applicant, any
subsidiary, affiliate or persons controlled by or under common
control with the applicant, has ever been an officer, partner,
director or principal shareholder in a company which has ever held
a federal or state mining permit which in the five-year period
prior to the date of submission of the application has been
permanently suspended or revoked or has had a mining bond or similar security deposited in lieu of bond forfeited and, if so, a
brief explanation of the facts involved;
(6) A copy of the applicant's advertisement to be published in
a newspaper of general circulation in the locality of the proposed
permit area at least once a week for four successive weeks. The
advertisement shall contain in abbreviated form the information
required by this section including the ownership and map of the
tract location and boundaries of the proposed site so that the
proposed operation is readily locatable by local residents, the
location of the office of the division where the application is
available for public inspection and stating that written protests
will be accepted by the director until a certain date which is at
least thirty days after the last publication of the applicant's
advertisement;
(7) A description of the type and method of surface-mining
operation that exists or is proposed, the engineering techniques
used or proposed, and the equipment used or proposed to be used;
(8) The anticipated starting and termination dates of each
phase of the surface-mining operation and the number of acres of
land to be affected;
(9) A description of the legal documents upon which the
applicant's legal right to enter and conduct surface-mining
operations on the proposed permit area is based and whether that
right is the subject of pending court litigation:
Provided, That
nothing in this article may be construed as vesting in the director the jurisdiction to adjudicate property-rights disputes;
(10) The name of the watershed and location of the surface
stream or tributary into which surface and pit drainage will be
discharged;
(11) A determination of the probable hydrologic consequences
of the mining and reclamation operations, both on and off the mine
site, with respect to the hydrologic regime, quantity and quality
of water in surface and groundwater systems, including the
dissolved and suspended solids under seasonal flow conditions and
the collection of sufficient data for the mine site and surrounding
areas so that an assessment can be made by the director of the
probable cumulative impacts of all anticipated mining in the area
upon the hydrology of the area, and particularly upon water
availability:
Provided, That this determination is not required
until such time as hydrologic information on the general area prior
to mining is made available from an appropriate federal or state
agency or, if existing and in the possession of the applicant, from
the applicant:
Provided, however, That the permit application
shall may not be approved until the information is available and is
incorporated into the application;
(12) Accurate maps to an appropriate scale clearly showing:
(A) The land to be affected as of the date of application; (B) the
area of land within the permit area upon which the applicant has
the legal right to enter and conduct surface-mining operations;
and (C) all types of information set forth on enlarged topographical maps of the United States geological survey of a
scale of 1:24,000 or larger, including all man-made features and
significant known archaeological sites existing on the date of
application. In addition to other things specified by the
director, the map shall show the boundary lines and names of
present owners of record of all surface areas abutting the proposed
permit area,
and the location of all structures within one thousand
feet of the proposed permit area,
and the location of all
cemeteries within one hundred feet of the proposed permit area;
(13) Cross-section maps or plans of the proposed affected
area, including the actual area to be mined, prepared by or under
the direction of and certified by a person approved by the
director, showing pertinent elevation and location of test borings
or core samplings, where required by the director, and depicting
the following information: (A) The nature and depth of the various
strata or overburden; (B) the location of subsurface water, if
encountered, and its quality; (C) the nature and thickness of any
coal or rider seams above the seam to be mined; (D) the nature of
the stratum immediately beneath the coal seam to be mined; (E) all
mineral crop lines and the strike and dip of the coal to be mined,
within the area of land to be affected; (F) existing or previous
surface-mining limits; (G) the location and extent of known
workings of any underground mines, including mine openings to the
surface; (H) the location of any significant aquifers; (I) the
estimated elevation of the water table; (J) the location of spoil, waste or refuse areas and topsoil preservation areas; (K) the
location of all impoundments for waste or erosion control; (L) any
settling or water treatment facility or drainage system; (M)
constructed or natural drainways and the location of any discharges
to any surface body of water on the area of land to be affected or
adjacent thereto; and (N) adequate profiles at appropriate cross
sections of the anticipated final surface configuration that will
be achieved pursuant to the operator's proposed reclamation plan;
(14) A statement of the result of test borings or core samples
from the permit area, including: (A) Logs of the drill holes; (B)
the thickness of the coal seam to be mined and analysis of the
chemical and physical properties of the coal; (C) the sulfur
content of any coal seam; (D) chemical analysis of potentially
acid or toxic forming sections of the overburden; and (E) chemical
analysis of the stratum lying immediately underneath the coal to be
mined:
Provided, That the provisions of this subdivision may be
waived by the director with respect to the specific application by
a written determination that such requirements are unnecessary;
(15) For those lands in the permit application which a
reconnaissance inspection suggests may be prime farmlands, a soil
survey shall be made or obtained according to standards established
by the secretary of agriculture in order to confirm the exact
location of such prime farmlands;
(16) A reclamation plan as presented in section ten of this
article;
(17) Information pertaining to coal seams, test borings, core
samplings or soil samples as required by this section shall be made
available to any person with an interest which is or may be
adversely affected:
Provided, That information which pertains only
to the analysis of the chemical and physical properties of the
coal, except information regarding mineral or elemental content
which is potentially toxic to the environment, shall be kept
confidential and not made a matter of public record;
(18) When requested by the director, the climatological
factors that are peculiar to the locality of the land to be
affected, including the average seasonal precipitation, the average
direction and velocity of prevailing winds, and the seasonal
temperature ranges;
and
(19)
For those lands in the permit application which include
a cemetery, a plan for the ingress and egress of persons who may
wish to visit the cemetery; and
(20) Other information that may be required by rules
reasonably necessary to effectuate the purposes of this article.
(b) If the director finds that the probable total annual
production at all locations of any coal surface-mining operator
will not exceed three hundred thousand tons, the determination of
probable hydrologic consequences including the engineering analyses
and designs necessary as required by this article or rules
promulgated thereunder; the development of cross-section maps and
plans as required by this article or rules promulgated thereunder; the geologic drilling and statement of results of test borings and
core samplings as required by this article or rules promulgated
thereunder; preblast surveys required by this article or rules
promulgated thereunder; the collection of site-specific resource
information and production of protection and enhancement plans for
fish and wildlife habitats and other environmental values required
by this article or rules promulgated thereunder; and the collection
of archaeological and historical information required by this
article and rules promulgated thereunder and any other
archaeological and historical information required by the federal
department of the interior and the preparation of plans that may be
necessitated thereby shall, upon the written request of the
operator, be performed by a qualified public or private laboratory
designated by the director and a reasonable cost of the preparation
of such determination and statement shall be assumed by the
division from funds provided by the United States Department of the
Interior Pursuant to the Federal Surface Mining Control and
Reclamation Act of 1977, as amended.
(c) Before the first publication of the applicant's
advertisement, each applicant for a surface-mining permit shall
file, except for that information pertaining to the coal seam
itself, a copy of the application for public inspection in the
nearest office of the division as specified in the applicant's
advertisement.
(d) Each applicant for a permit
shall be is required to submit to the director as a part of the permit application a certificate
issued by an insurance company authorized to do business in this
state covering the surface-mining operation for which the permit is
sought, or evidence that the applicant has satisfied state self-
insurance requirements. The policy shall provide for personal
injury and property damage protection in an amount adequate to
compensate any persons damaged as a result of surface coal mining
and reclamation operations, including use of explosives, and
entitled to compensation under the applicable provisions of state
law. The policy shall be maintained in full force and effect
during the terms of the permit or any renewal, including the length
of all reclamation operations.
(e) Each applicant for a surface-mining permit shall submit to
the director as part of the permit application a blasting plan
where explosives are to be used, which shall outline the procedures
and standards by which the operator will meet the provisions of the
blasting performance standards.
(f) The applicant shall file as part of the permit application
a schedule listing all notices of violation, bond forfeitures,
permit revocations, cessation orders or permanent suspension orders
resulting from a violation of the Federal Surface Mining Control
and Reclamation Act of 1977, as amended, this article or any law or
regulation of the United States or any department or agency of any
state pertaining to air or Environmental Protection received by the
applicant in connection with any surface-mining operation during the three-year period prior to the date of application, and
indicating the final resolution of any notice of violation,
forfeiture, revocation, cessation or permanent suspension.
(g) Within five working days of receipt of an application for
a permit, the director shall notify the operator in writing,
stating whether the application is administratively complete and
whether the operator's advertisement may be published. If the
application is not administratively complete, the director shall
state in writing why the application is not administratively
complete.
§22-3-22. Designation of areas unsuitable for surface mining;
petition for removal of designation; prohibition of
surface mining on certain areas; exceptions; taxation
of minerals underlying land designated unsuitable.
(a) The director shall establish a planning process to enable
objective decisions based upon competent and scientifically sound
data and information as to which, if any, land areas of this state
are unsuitable for all or certain types of surface-mining
operations pursuant to the standards set forth in subdivisions (1)
and (2) of this subsection:
Provided, That such designation
shall
does not prevent prospecting pursuant to section seven of this
article on any area so designated.
(1) Upon petition pursuant to subsection (b) of this section,
the director shall designate an area as unsuitable for all or certain types of surface-mining operations, if it determines that
reclamation pursuant to the requirements of this article is not
technologically and economically feasible.
(2) Upon petition pursuant to subsection (b) of this section,
a surface area may be designated unsuitable for certain types of
surface-mining operations, if the operations: (A) Conflict with
existing state or local land use plans or programs; (B) affect
fragile or historic lands in which the operations could result in
significant damage to important historic, cultural, scientific and
aesthetic values and natural systems; (C) affect renewable resource
lands, including significant aquifers and aquifer recharge areas,
in which the operations could result in a substantial loss or
reduction of long-range productivity of water supply, food or fiber
products; or (D) affect natural hazard lands in which the
operations could substantially endanger life and property. Such
lands shall include lands subject to frequent flooding and areas of
unstable geology.
(3) The director shall develop a process which includes: (A)
The review of surface-mining lands; (B) a database and an inventory
system which will permit proper evaluation of the capacity of
different land areas of the state to support and permit reclamation
of surface-mining operations; (C) a method for implementing land
use planning decisions concerning surface-mining operations; and
(D) proper notice and opportunities for public participation,
including a public hearing prior to making any designation or redesignation pursuant to this section.
(4) Determinations of the unsuitability of land for surface
mining, as provided for in this section, shall be integrated as
closely as possible with present and future land use planning and
regulation processes at federal, state and local levels.
(5) The requirements of this section do not apply to lands on
which surface-mining operations were being conducted on August 3,
1977, or under a permit issued pursuant to this article, or where
substantial legal and financial commitments in the operations were
in existence prior to January 4, 1977.
(b) Any person having an interest which is or may be adversely
affected has the right to petition the director to have an area
designated as unsuitable for surface-mining operations or to have
such a designation terminated. The petition shall contain
allegations of fact with supporting evidence which would tend to
establish the allegations. After receipt of the petition, the
director shall immediately begin an administrative study of the
area specified in the petition. Within ten months after receipt of
the petition, the director shall hold a public hearing in the
locality of the affected area after appropriate notice and
publication of the date, time and location of the hearing. After
the director or any person having an interest which is or may be
adversely affected has filed a petition and before the hearing
required by this subsection, any person may intervene by filing
allegations of fact with supporting evidence which would tend to establish the allegations. Within sixty days after the hearing,
the director shall issue and furnish to the petitioner and any
other party to the hearing, a written decision regarding the
petition and the reasons therefor.
In the event that If all the
petitioners stipulate agreement prior to the requested hearing and
withdraw their request, the hearing need not be held.
(c) Prior to designating any land areas as unsuitable for
surface-mining operations, the director shall prepare a detailed
statement on: (1) The potential coal resources of the area; (2)
the demand for the coal resources; and (3) the impact of the
designation on the environment, the economy and the supply of coal.
(d) After August 3, 1977, and subject to valid existing
rights, no surface-mining operations, except those which existed on
that date, shall be permitted:
(1) On any lands in this state within the boundaries of units
of the national park system, the national wildlife refuge systems,
the national system of trails, the national wilderness preservation
system, the wild and scenic rivers system, including study rivers
designated under section five-a of the Wild and Scenic Rivers Act,
and national recreation areas designated by Act of Congress;
(2) Which will adversely affect any publicly owned park or
places included in the national register of historic sites, or
national register of natural landmarks unless approved jointly by
the director and the federal, state or local agency with
jurisdiction over the park, the historic site or natural landmark;
(3) Within one hundred feet of the outside right-of-way line
on any public road, except where mine access roads or haulage roads
join such right-of-way line, and except that the director may
permit the roads to be relocated or the area affected to lie within
one hundred feet of the road if, after public notice and an
opportunity for a public hearing in the locality, the director
makes a written finding that the interests of the public and the
landowners affected thereby will be protected;
(4) Within three hundred feet from any occupied dwelling,
unless waived by the owner thereof, or within one hundred feet of
any public building, school, church, community or institutional
building, public park or within one hundred feet of a cemetery; or
(5) On any federal lands within the boundaries of any national
forest:
Provided, That surface coal mining operations may be
permitted on the lands if the secretary of the interior finds that
there are no significant recreational, timber, economic or other
values which may be incompatible with the surface-mining
operations:
Provided, however, That the surface operations and
impacts are incident to an underground coal mine.
(e) Notwithstanding any other provision of this code, the coal
underlying any lands designated unsuitable for surface-mining
operations under any provisions of this article or underlying any
land upon which mining is prohibited by any provisions of this
article shall be assessed for taxation purposes according to their
value and the Legislature hereby finds that the coal has no value for the duration of the designation or prohibition unless suitable
for underground mining not in violation of this article:
Provided,
That the owner of the coal shall forthwith notify the proper
assessing authorities if the designation or prohibition is removed
so that the coal may be reassessed.
ARTICLE 6. OFFICE OF OIL AND GAS; OIL AND GAS WELLS;
ADMINISTRATION; ENFORCEMENT
§22-6-6. Permit required for well work; permit fee; application;
soil erosion control plan.
(a) It is unlawful for any person to commence any well work,
including site preparation work which involves any disturbance of
land, without first securing from the director a well work permit.
An application may propose and a permit may approve two or more
activities defined as well work.
(b) The application for a well work permit shall be
accompanied by applicable bond as prescribed by section twelve,
fourteen or twenty-three of this article, and the applicable plat
required by section twelve or fourteen of this article.
(c) Every permit application filed under this section shall be
verified and shall contain the following:
(1) The names and addresses of: (i) The well operator, (ii)
the agent required to be designated under subsection (e) of this
section, and (iii) every person whom the applicant must notify
under any section of this article together with a certification and
evidence that a copy of the application and all other required documentation has been delivered to all such persons;
(2) The name and address of every coal operator operating coal
seams under the tract of land on which the well is or may be
located, and the coal seam owner of record and lessee of record
required to be given notice by section twelve, if any, if said
owner or lessee is not yet operating said coal seams;
(3) The number of the well or such other identification as the
director may require;
(4) The type of well;
(5) The well work for which a permit is requested;
(6) The approximate depth to which the well is to be drilled
or deepened, or the actual depth if the well has been drilled;
(7) Any permit application fee required by law;
(8) If the proposed well work will require casing or tubing to
be set, the entire casing program for the well, including the size
of each string of pipe, the starting point and depth to which each
string is to be set, and the extent to which each such string is to
be cemented;
(9) If the proposed well work is to convert an oil well or a
combination well or to drill a new well for the purpose of
introducing pressure for the recovery of oil as provided in section
twenty-five of this article, specifications in accordance with the
data requirements of section fourteen of this article;
(10) If the proposed well work is to plug or replug the well:
(i) Specifications in accordance with the data requirements of section twenty-three of this article, (ii) a copy of all logs in
the operator's possession as the director may require, and (iii) a
work order showing in detail the proposed manner of plugging or
unplugging the well, in order that a representative of the director
and any interested persons may be present when the work is done.
In the event of an application to drill, redrill or deepen a well,
if the well work is unsuccessful so that the well must be plugged
and abandoned, and if the well is one on which the well work has
been continuously progressing pursuant to a permit, the operator
may proceed to plug the well as soon as the operator has obtained
the verbal permission of the director or the director's designated
representative to plug and abandon the well, except that the
operator shall make reasonable effort to notify as soon as
practicable the surface owner and the coal owner, if any, of the
land at the well location, and shall also timely file the plugging
affidavit required by section twenty-three of this article;
(11) If the proposed well work is to stimulate an oil or gas
well, specifications in accordance with the data requirements of
section thirteen of this article;
(12) The erosion and sediment control plan required under
subsection (d) of this section for applications for permits to
drill;
and
(13) The location of any cemetery within one hundred feet of
a proposed well and a plan for the ingress and egress of persons
who may wish to visit the cemetery; and
(13)(14) Any other relevant information which the director may
require by rule.
(d) An erosion and sediment control plan shall accompany each
application for a well work permit except for a well work permit to
plug or replug any well. Such plan shall contain methods of
stabilization and drainage, including a map of the project area
indicating the amount of acreage disturbed. The erosion and
sediment control plan shall meet the minimum requirements of the
West Virginia Erosion and Sediment Control Manual as adopted and
from time to time amended by the division, in consultation with the
several soil conservation districts pursuant to the control program
established in this state through section 208 of the Federal Water
Pollution Control Act Amendments of 1972. The erosion and sediment
control plan shall become part of the terms and conditions of a
well work permit, except for a well work permit to plug or replug
any well, which is issued and the provisions of the plan shall be
carried out where applicable in the operation. The erosion and
sediment control plan shall set out the proposed method of
reclamation which shall comply with the requirements of section
thirty of this article.
(e) The well operator named in such application shall
designate the name and address of an agent for such operator who
shall be the attorney-in-fact for the operator and who shall be a
resident of the State of West Virginia upon whom notices, orders or
other communications issued pursuant to this article or article eleven, chapter twenty-two, may be served, and upon whom process
may be served. Every well operator required to designate an agent
under this section shall within five days after the termination of
such designation notify the director of such termination and
designate a new agent.
(f) The well owner or operator shall install the permit number
as issued by the director in a legible and permanent manner to the
well upon completion of any permitted work. The dimensions,
specifications and manner of installation shall be in accordance
with the rules of the director.
(g) The director may waive the requirements of this section
and sections nine, ten and eleven of this article in any emergency
situation, if the director deems such action necessary. In such
case the director may issue an emergency permit which would be
effective for not more than thirty days, but which would be subject
to reissuance by the director.
(h) The director shall deny the issuance of a permit if the
director determines that the applicant has committed a substantial
violation of a previously issued permit, including the erosion and
sediment control plan, or a substantial violation of one or more of
the rules promulgated hereunder, and has failed to abate or seek
review of the violation within the time prescribed by the director
pursuant to the provisions of sections three and four of this
article and the rules promulgated hereunder, which time may not be
unreasonable:
Provided, That in the event that the director does find that a substantial violation has occurred and that the
operator has failed to abate or seek review of the violation in the
time prescribed, the director may suspend the permit on which said
violation exists, after which suspension the operator shall
forthwith cease all well work being conducted under the permit:
Provided, however, That the director may reinstate the permit
without further notice, at which time the well work may be
continued. The director shall make written findings of any such
determination and may enforce the same in the circuit courts of
this state and the operator may appeal such suspension pursuant to
the provisions of section forty of this article. The director
shall make a written finding of any such determination.
(i) Any person who violates any provision of this section
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than $5,000.00, or be imprisoned in the
county jail not more than twelve months, or both fined and
imprisoned.
§22-6-11. Review of application; issuance of permit in the
absence of objections; copy of permits to county
assessor.
The director shall review each application for a well work
permit and shall determine whether or not a permit shall be issued.
No permit shall be issued less than fifteen days after the
filing date of the application for any well work except plugging
or replugging; and no permit for plugging or replugging shall be issued less than five days after the filing date of the
application except a permit for plugging or replugging a dry hole:
Provided, That if the applicant certifies that all persons
entitled to notice of the application under the provisions of this
article have been served in person or by certified mail, return
receipt requested, with a copy of the well work application,
including the erosion and sediment control plan, if required,
a
cemetery access plan, if required, and the plat required by
section six of this article, and further files written statements
of no objection by all such persons, the director may issue the
well work permit at any time.
The director may cause such inspections to be made of the
proposed well work location as to assure adequate review of the
application. The permit
shall may not be issued, or shall be
conditioned including conditions with respect to the location of
the well and access roads prior to issuance if the director
determines that:
(1) The proposed well work will constitute a hazard to the
safety of persons; or
(2) The plan for soil erosion and sediment control is not
adequate or effective; or
(3) Damage would occur to publicly owned lands or resources,
or public or private cemeteries; or
(4) The proposed well work fails to protect fresh water
sources or supplies.
The director shall promptly review all comments filed. If
after review of the application and all comments received, the
application for a well work permit is approved, and no timely
objection or comment has been filed with the director or made by
the director under the provisions of section fifteen, sixteen or
seventeen of this article, the permit shall be issued, with
conditions, if any. Nothing in this section shall be construed
to supersede the provisions of sections six, twelve, thirteen,
fourteen, fifteen, sixteen and seventeen of this article.
The director shall mail a copy of the permit as issued or a
copy of the order denying a permit to any person who submitted
comments to the director concerning said permit and requested such
copy.
Upon the issuance of any permit pursuant to the provisions
of this article, the director shall transmit a copy of such permit
to the office of the assessor for the county in which the well is
located.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-8a. Protection of human skeletal remains, grave artifacts
and grave markers; permits for excavation and
removal; penalties.
(a)
Legislative findings and purpose. --
The Legislature finds that there is a real and growing threat
to the safety and sanctity of unmarked human graves in West Virginia and the existing laws of the state do not provide equal
or adequate protection for all such graves. As evident by the
numerous incidents in West Virginia which have resulted in the
desecration of human remains and vandalism to grave markers, there
is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is to assure that all human burials be accorded equal
treatment and respect for human dignity without reference to
ethnic origins, cultural backgrounds, or religious affiliations.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been acquired
in accordance with the law are engaged in legitimate and worthy
scientific and educational activities. Therefore, this
legislation is intended to permit the appropriate pursuit of those
lawful activities.
Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers, or
those engaged in the development, mining or improvement of real
property. (b)
Definitions.--
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth, hair or
tissue of a deceased human body;
(2) "Unmarked grave" means any grave or location where a
human body or bodies have been buried or deposited for at least
fifty years and the grave or location is not in a publicly or privately maintained cemetery or in the care of a cemetery
association, or is located within such cemetery or in such care
and is not commonly marked;
(3) "Grave artifact" means any items of human manufacture or
use that are associated with the human skeletal remains in a
grave;
(4) "Grave marker" means any tomb, monument, stone, ornament,
mound, or other item of human manufacture that is associated with
a grave;
(5) "Person"
includes the federal and state governments and
any political subdivision of this state
means any individual,
partnership, firm, society, association, trust, corporation, other
business entity or any agency, unit or instrumentality of federal,
state or local government;
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting, or desecrating in any
way of human skeletal remains, unmarked graves, grave artifacts
or grave markers;
(7) "Native American tribe" means any Indian tribe, band,
nation, or organized group or community which is recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians;
(8) "Cultural affiliation" means the relationship of shared
group identity which can be reasonably traced historically or
prehistorically between a present day group and an identifiable earlier group;
(9) "Lineal descendants" means any individuals tracing his
or her ancestry directly or by proven kinship; and
(10) "Proven kinship" means the relationship among people
that exists because of genetic descent, which includes racial
descent.
(c) Acts prohibited; penalties; exceptions. --
(1) No person may excavate, remove, destroy, or otherwise
disturb any historic or prehistoric ruins, burial grounds,
archaeological site, or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance unless
such person has a valid permit issued to him or her by the
Director of the Historic Preservation Section: Provided, That the
supervising archaeologist of an archaeological investigation being
undertaken in compliance with the federal Archaeological Resources
Protection Act (Public Law 96-95 at 16 USC 470(aa)) and
regulations promulgated thereunder shall is not be required to
obtain such permit, but shall notify the Director of the Historic
Preservation Section that such investigation is being undertaken
and file reports as are required of persons issued a permit under
this section: Provided, however, That projects being undertaken
in compliance with section 106 of the National Historic
Preservation Act of 1966, as amended, or subsection (a), section
five of this article shall is not be required to obtain such
permit for excavation, removal, destruction or disturbance of historic or prehistoric ruins or archaeological sites.
(2) A person who, either by himself or herself or through an
agent, intentionally excavates, removes, destroys or otherwise
disturbs any historic or prehistoric ruins, burial grounds or
archaeological site, or unmarked grave, grave artifact or grave
marker of historical significance without first having been issued
a valid permit by the Director of the Historic Preservation
Section, or who fails to comply with the terms and conditions of
such permit, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $500, and
may be imprisoned confined in the county jail for not less than
ten days nor more than six months, or both fined and imprisoned
confined.
(3) A person who, either by himself or herself or through an
agent, intentionally excavates, removes, destroys or otherwise
disturbs human skeletal remains of historical significance without
first having been issued a valid permit by the Director of the
Historic Preservation Section, or who fails to comply with the
terms and conditions relating to disinterment or displacement of
human skeletal remains of such permit, is guilty of the felony of
disinterment or displacement of a dead human body or parts thereof
under section fourteen, article eight, chapter sixty-one of this
code and, upon conviction thereof, shall be confined in the state
penitentiary imprisoned in a state correctional facility not less
than two nor more than five years.
(4) A person who intentionally withholds information about
the excavation, removal, destruction, or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological
site, or human skeletal remains, unmarked grave, grave artifact
or grave marker of historical significance is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than $100, and may be imprisoned in the county or confined in jail
not more than ten days, or both fined and confined.
(2) No person may offer for sale or exchange any human
skeletal remains, grave artifact or grave marker obtained in
violation of this section.
(5) A person who, either by himself or herself or through an
agent, offers for sale or exchange any human skeletal remains,
grave artifact or grave marker obtained in violation of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $1,000 nor more than $5,000 and may
be imprisoned in the county or confined in jail not less than six
months nor more than one year, or both fined and confined.
(3) (6) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under subdivisions
(1), and (2) through (5) of this subsection shall constitute a
separate offense.
(7) It is a complete defense in a prosecution under this
section if the defendant can prove by a preponderance of evidence
that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve the remains accidentally
disturbed or discovered, and that the accidental discovery or
disturbance was properly reported.
(8) This subsection does not apply to actions taken in the
performance of official law enforcement duties.
(d) Notification of discovery of human skeletal remains in
unmarked locations. --
Within forty-eight hours of Upon the discovery of human
skeletal remains, grave artifact or grave marker in an unmarked
grave on any publicly or privately owned property, the person
making such discovery shall immediately cease any activity which
may cause further disturbance, make a reasonable effort to protect
the area from further disturbance and notify the county sheriff
within forty-eight hours of the discovery and its location. If the
human remains, grave artifact or grave marker appear to be from
an unmarked grave, the sheriff shall promptly, and prior to any
further disturbance or removal of the remains, notify the Director
of the Historic Preservation Section. The director shall cause
an on-site inspection of the disturbance to be made to determine
the potential for archaeological significance of the site:
Provided, That when the discovery is made by an archaeological
investigation permitted under state or federal law, the
supervising archaeologist shall notify the Director of the
Historic Preservation Section directly.
If the Director of the Historic Preservation Section determines that the site has no archaeological significance, the
removal, transfer and disposition of the remains shall be subject
to the provisions of article thirteen, chapter thirty-seven of
this code, and the director shall notify the circuit court of the
county wherein the site is located.
If the Director of the Historic Preservation Section
determines that the site has a potential for archaeological
significance, the director shall take such action as is
reasonable, necessary and prudent, including consultation with
appropriate private or public organizations, to preserve and
advance the culture of the state in accordance with the powers and
duties granted to the director, including the issuance of a permit
for the archaeological excavation or removal of the remains. If
the director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.
(e) Issuance of permits. --
Prior to the issuance of a permit for the disturbance of
human skeletal remains, grave artifacts, or grave markers, the
director of historic preservation shall convene and chair an ad
hoc committee to develop permit conditions. The committee shall
be comprised of the chair and six or eight members representing
known or presumed lineal descendants, private and public
organizations which have cultural affiliation to the presumed contents of the site, the Council for West Virginia Archaeology
and the West Virginia Archaeological Society. In the case of
Native American sites, the membership of the committee shall be
comprised of the chair and six or eight members representing the
Council for West Virginia Archaeology, the West Virginia
Archaeological Society, and known or presumed lineal descendants,
preferably with cultural affiliation to tribes that existed in the
geographic area that is now West Virginia.
In the case of a site of less then five acres, which is owned
by an individual or partnership, the ad hoc committee must be
formed within thirty days of application for same by the property
owner, must meet within sixty days of such application, and must
render a decision within ninety days of such application.
All such permits shall at a minimum address the following
conditions: (1) The methods by which lineal descendants of the
deceased are notified prior to the disturbance; (2) the
respectful manner in which the remains, artifacts or markers are
to be removed and handled; (3) scientific analysis of the
remains, artifacts or markers and the duration of those studies;
(4) the way in which the remains may be reburied in consultation
with any lineal descendants, when available; (5) methods for the
respectful curation of recovered items; and (6) such other
conditions as the director may deem necessary. Expenses accrued
in meeting the permit conditions shall be borne by the permit
applicant, except in cases where the deceased descendants or sponsors are willing to share or assume the costs. A permit to
disturb human skeletal remains, grave artifacts or grave markers
will be issued only after alternatives to disturbance and other
mitigative measures have been considered.
In addition, a person applying for a permit to excavate or
remove human skeletal remains, grave artifacts, grave markers, or
any historic or prehistoric features of archaeological
significance may provide to the ad hoc committee information he
or she deems appropriate and shall:
(1) Provide a detailed statement to the Director of the
Historic Preservation Section giving the reasons and objectives
for excavation or removal and the benefits expected to be obtained
from the contemplated work;
(2) Provide data and results of any excavation, study or
collection in annual reports to the Director of the Historic
Preservation Section and submit a final report to the director
upon completion of the excavation;
(3) Obtain the prior written permission of the owner if the
site of such proposed excavation is on privately owned land; and
(4) Provide any additional information the ad hoc committee
deems necessary in developing the permit conditions.
Such The permits shall be issued for a period of two years
and may be renewed at expiration. The permits are not
transferable but other persons who have not been issued a permit
may work under the direct supervision of the person holding the permit. The person or persons to whom a permit was issued must
carry the permit while exercising the privileges granted and must
be present at the site whenever work is being done.
Notwithstanding any other penalties to which a person may be
subject under this section for failing to comply with the terms
and conditions of a permit, the permit of a person who violates
any of the provisions of this subsection shall be revoked.
As permits are issued, the Director of the Historic
Preservation Section shall maintain a catalogue of unmarked grave
locations throughout the state.
(f) Property tax exemption for unmarked grave sites. --
To serve as an incentive for the protection of unmarked
graves, the owner, having evidence of the presence of unmarked
graves on his or her property, may apply to the Director of the
Historic Preservation Section for a determination as to whether
such is the case. Upon making such a determination in the
affirmative, the Director of the Historic Preservation Section
shall provide written certification to the landowner that the site
containing the graves is a cemetery and as such is exempt from
property taxation upon presentation of the certification to the
county assessor. The area of the site to receive property tax
exempt status shall be determined by the Director of the Historic
Preservation Section. Additionally, a property owner may
establish protective easements for the location of unmarked
graves.
(g) Additional provisions for enforcement; civil penalties;
rewards for information. --
(1) The prosecuting attorney of the county in which a
violation of any provision of this section is alleged to have
occurred may be requested by the Director of the Historic
Preservation Section to initiate criminal prosecutions or to seek
civil damages, injunctive relief and any other appropriate relief.
The Director of the Historic Preservation Section shall cooperate
with the prosecuting attorney in resolving such allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for sale
or exchange of historic or prehistoric ruins, burial grounds,
archaeological site, human skeletal remains, unmarked grave, grave
artifact or grave marker under the provisions of subdivisions (1)
and (2), subsection (c) of this section shall also be liable for
civil damages to be assessed by the prosecuting attorney in
consultation with the Director of the Historic Preservation
Section.
Civil damages may include:
(i) Forfeiture of any and all equipment used in disturbing
the protected unmarked graves or grave markers;
(ii) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii) Any and all costs associated with recovery of data, and
analyzing, publishing, accessioning and curating materials when the prohibited activity is so extensive as to preclude the
restoration of the unmarked burials or grave markers;
(iv) Any and all costs associated with restoring the land to
its original contour or the grave marker to its original
condition;
(v) Any and all costs associated with reinterment of the
human skeletal remains; and
(vi) Any and all costs associated with the determination and
collection of the civil damages.
When civil damages are recovered, the proceeds, less the
costs of the prosecuting attorney associated with the
determination and collection of such damages, shall be deposited
into the Endangered Historic Properties Fund and may be expended
by the Commissioner of Culture and History for archaeological
programs at the state level, including the payment of rewards for
information leading to the arrest and conviction of persons
violating the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(3) The Commissioner of Culture and History is authorized to
offer and pay rewards of up to $1,000 from funds on deposit in the
Endangered Historic Properties Fund for information leading to the
arrest and conviction of persons who violate the provisions of
subdivisions (1) and (2), subsection (c) of this section.
(h) Disposition of remains and artifacts not subject to
reburial. --
All human skeletal remains and grave artifacts found in
unmarked graves on public or private land, and not subject to
reburial, under the provisions of subsection (e) of this section,
are held in trust for the people of West Virginia by the state and
are under the jurisdiction of the Director of Historic
Preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect for the
people of the state under the care of the West Virginia State
Museum.
CHAPTER 37. REAL PROPERTY.
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-1. Access of certain persons to cemeteries and graves
located on private land.
(a) For the purposes set forth in section two of this
article, he State recognizes that the owners of private land on
which a cemetery or graves are located have a duty to allow
ingress and egress to the cemetery or graves by family members,
close friends and descendants of deceased persons buried there,
by any cemetery plot owner, or by any person engaging in genealogy
research who has given reasonable notice to the owner of record
or to the occupant of the property or to both the owner and
occupant Any authorized person who wishes to visit a cemetery or
grave site located on privately owned land and for which no public
ingress or egress is available, shall have the right to reasonable
ingress or egress for the purposes described in subsection (b) after providing the owner of the privately owned land with
reasonable notice as defined in section two of this article.
(b) The right of access to cemeteries or grave sites provided
in subsection (a) shall be during reasonable hours and only for
the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery;
(3) Burying a deceased person in a cemetery plot by those
granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c) (1) The access route to the cemetery or grave site may
be designated by the landowner if no traditional access route is
obviously visible by a view of the property.
(2) Any access route designated by the landowner must be safe
and usable by a class A motor vehicle as defined by section one,
article ten, chapter seventeen-A of this code.
(3) Unless the property owner has caused a traditional access
route to the cemetery or grave site to be unusable or
unavailable, the property owner is not required to make any
improvements to their property to satisfy the requirement of
providing reasonable ingress and egress to a cemetery or burial
site pursuant to this section.
(d) A property owner who is required to permit authorized
persons reasonable ingress and egress for the purpose of visiting
a cemetery or grave site and who acts in good faith and in a reasonable manner pursuant to this section is not liable for any
personal injury or property damage that occurs in connection with
the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or
modify the power or authority of a court in any action of law or
equity to order the disinterment and removal of the remains from
a cemetery and interment in a suitable location.
§37-13A-2. Definitions.
The right of ingress and egress granted to persons specified
in section one of this article shall be limited to the purposes
of: (1) visiting graves; (2) maintaining the grave site or
cemetery; (3) burying a deceased person in a cemetery plot by
those granted rights of burial to that plot; and (4) conducting
genealogy research.
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased
person;
(B) A cemetery plot owner; or
(C) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission
or municipality.
(3) "Reasonable ingress and egress" or "reasonable access"
means access to the cemetery or grave site within ten days of the
receipt of written notice of the intent to visit the cemetery or grave site. If the property owner cannot provide reasonable
access to the cemetery or grave on the desired date, the property
owner shall provide reasonable alternative dates when the property
owner can provide access within five days of the receipt of the
initial notice.
(4) "Reasonable notice" means written notice of the date and
time the authorized person intends to visit the cemetery or grave
site delivered to the property owner at least ten days prior to
the date of the intended visit.
§37-13A-5. Cause of action for injunctive relief.
(a) Any An authorized person denied reasonable access under
the provisions of this section article, including the denial of
permission to use vehicular access, may institute a proceeding in
the circuit court of the county in which the cemetery or grave
site is located to enjoin the owner of the private lands on which
the cemetery or grave site is located, or his or her agent, from
denying the authorized person reasonable ingress and egress to the
cemetery or grave site for the purposes set forth in section two
of this article. In granting such relief, the court may set the
frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.
§37-13A-7. Existence of cemetery or grave site, notification.
If a governmental subdivision is notified of the existence
of a cemetery, or a marked grave site that is not located in a
dedicated cemetery, within its jurisdiction, the governmental
subdivision shall, as soon as is practicable, notify the owner of
the land upon which the cemetery or burial site is located of the
cemetery's or grave site's existence and location. The
notification shall include an explanation of the provisions of
this article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-14. Disinterment or displacement of dead body or part
thereof; damage to cemetery or graveyard;
penalties; damages in civil action.
(a) Any person who unlawfully
and intentionally disinters or
displaces a dead human body, or any part of a dead human body,
placed or deposited in any vault, mausoleum or any temporary or
permanent burial place,
removes personal effects of the decedent
removes or damages caskets, surrounds, outer burial containers,
or any other device used in making the original burial; transports
unlawfully removed human remains from the cemetery; or knowingly
receives unlawfully removed human remains from the cemetery is
guilty of a felony, and, upon conviction thereof, shall be
confined in
the penitentiary or other suitable a state
correctional facility for a determinate sentence of not less than
two nor more than five years.
(b)(1) Any person who intentionally desecrates any
tomb,
plot, monument, memorial, or marker in a cemetery, or any gate,
door, fence, wall, post, or railing, or any enclosure for the
protection of a cemetery or any property in a cemetery, graveyard,
mausoleum or other designated human burial site is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than $2,000.00, or confined in jail not more than one year, or
both fined and confined.
(2) Any person who intentionally and without legal right
destroys, cuts, breaks, removes, or injures any building,
statuary, ornamentation, [landscape contents, including] tree,
shrub, flower, or plant within the limits of a cemetery is guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not
more than $2,000.00, or confined in jail not more than one year,
or both fined and confined.
(2)(3) For the purposes of this subsection, "desecrate" means
destroying, cutting, mutilating, effacing, injuring, tearing down,
removing, defacing, damaging or otherwise physically mistreating
in a way that a reasonable person knows will outrage the
sensibilities of persons likely to observe or discover his or her
actions.
NOTE: The purpose of the bill is to preserve and protect
family cemeteries by clarifying procedures for protection of
graves and burial sites; and enhancing the opportunity for access
to cemeteries on private land.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§37-13A-7 is new; therefore, strike-throughs and underscoring
have been omitted.