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Introduced Version Senate Bill 1011 History

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sb1011 intr
Senate Bill No. 1011

(By Senators Tomblin (Mr. President) and Caruth,

By Request of the Executive)

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[Introduced May 31, 2009; referred to the Committee on Economic Development.]

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A BILL to amend and reenact §5B-2A-3, §5B-2A-5, §5B-2A-6 and §5B-2A-9 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22-3-10 of said code, all relating to ensuring the post-mine development of reclaimed surface mine property; defining certain terms; requiring certain counties to develop master land use plans for post-mine development; clarifying procedures relating to master land use plans and community impact statements; enhancing certain powers and responsibilities of the Office of Coalfield Community Development and the Department of Environmental Protection with respect to master land use plans; requiring surface mine reclamation plans to comport with approved master land use plans; and authorizing surface mine reclamation plans to contain alternative, noncomporting post-mining land uses under certain circumstances.

Be it enacted by the Legislature of West Virginia:
That §5B-2A-3, §5B-2A-5, §5B-2A-6 and §5B-2A-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §22-3-10 of said code be amended and reenacted, all to read as follows:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 2A. OFFICE OF COAL FIELD COMMUNITY DEVELOPMENT.
§5B-2A-3. Definitions
.
(a) For the purpose of this article, the following terms have the meanings ascribed to them:
(1) "Department" means the Department of Environmental Protection established in article one, chapter twenty-two of this code;
(2) "Office" means the Office of Coalfield Community Development;
(3) "Operator" means the definition in section three, article three, chapter twenty-two of this code; and
(4) "Renewable and alternative energy" means energy produced or generated from natural or replenishable resources other than traditional fossil fuels or nuclear resources and includes, without limitation, solar energy, wind power, hydropower, geothermal energy, biomass energy, biologically derived fuels, energy produced with advanced coal technologies, coalbed methane, fuel produced by a coal gasification or liquefaction facility, synthetic gas, waste coal, tire-derived fuel, pumped storage hydroelectric power or similar energy sources.
(b) Unless used in a context that clearly requires a different meaning or as otherwise defined herein, terms used in this article shall have the definitions set forth in this section.
§5B-2A-5. Powers and duties.
The office has and may exercise the following duties, powers and responsibilities:
(1) To establish a procedure for developing a community impact statement as provided in section six of this article and to administer the procedure so established;
(2) To establish a procedure for determining the assets that could be developed in and maintained by the community to foster its long-term viability as provided in section eight of this article and to administer the procedure so established;
(3) To establish a procedure for determining the land and infrastructure needs in the general area of the surface mining operations as provided in section nine of this article and to administer the procedure so established;
(4) To establish a procedure to develop action reports and annual updates as provided in section ten of this article and to administer the procedure so established;
(5) To determine the need for meetings to be held among the various interested parties in the communities impacted by surface mining operations and, when appropriate, to facilitate the meetings;
(6) To establish a procedure to assist property owners in the sale of their property as provided in section eleven of this article and to administer the procedure so established;
(7) In conjunction with the department, to maintain and operate a system to receive and address questions, concerns and complaints relating to surface mining; and
(8) On its own initiative or at the request of a community in close proximity to a mining operation, or a mining operation, offer assistance to facilitate the development of economic or community assets. Such assistance may shall include the preparation of a master land use plan pursuant to the provisions of section nine of this article.
§5B-2A-6. Community impact statement.
(a)(1) The operator shall develop a community impact statement, as described in this section, which shall be submitted to the office within sixty days of the filing of a surface mining application pursuant to the provisions of article three, chapter twenty-two of this code. Failure to submit a community impact statement to the office shall be considered a violation under the provisions of section seventeen of said article; and
(2) The operator shall provide copies of the community impact statement to the division's department's office of mining reclamation and office of explosives and blasting and to the county commissions, county clerks' offices and local, county or regional economic development or redevelopment authorities of the areas to be affected by the surface mining operations.
(b) The community impact statement, where practicable, shall not be a highly technical or legalistic document, but shall be written in a clear and concise manner understandable to all citizens. The community impact statement shall include the following:
(1) The amount and location of land to be mined or used in the actual mining operations;
(2) The expected duration of the mining operations in each area of the community;
(3) The extent of anticipated mining-related property acquisitions, to the extent that such acquisitions are known or knowable;
(4) The intentions of the surface and mineral owners relative to the acquired property, to the extent that such intentions are known or knowable;
(5) A statement of the post-mining land use for all land within the permit boundary;
(6) The intended blasting plan and the expected time and duration it will affect each community;
(7) Information concerning the extent and nature of valley fills and the watersheds to be affected; and
(8) Economic information, such as the number of jobs created and annual coal production resulting from the surface mining operation, the anticipated life of the mining operation and such other information as may be deemed appropriate; and
(9) An acknowledgment of the recommendations of any approved master land use plan that pertains to the land proposed to be mined, including an acknowledgment of the infrastructure components needed to accomplish the designated post-mine land use required by the plan.
(c) Where the operator makes any significant revision to the permit application under section eighteen, article three, chapter twenty-two of this code, which revision substantially affects any of the information provided in subsection (b) of this section, the operator shall revise the affected provisions of its community impact statement and shall submit such revisions as set forth in subsection (a) of this section.
(d) Within thirty days of receipt of a community impact statement pursuant to subdivision (2), subsection (a) of this section or a revised community impact statement pursuant to subsection (c) of this section, the local, county or regional development or redevelopment authorities of the areas to be affected by the surface mining operations shall provide a written acknowledgment of the receipt of this community impact statement or revised community impact statement to the department's Division of Mining Reclamation, to the county commission or county commissions and to the office.
(d) (e) The provisions of this section shall apply as follows:
(1) To all surface-mining permits granted after the effective date of this article June 11, 1999; and
(2) At the first renewal date of all previously issued permits: Provided, That the permittee shall be afforded ninety days from said date to comply with the provisions of this section.
§5B-2A-9. Securing developable land and infrastructure.
(a) The office shall determine the land and infrastructure needs in the general area of the surface mining operations.
(b) For the purposes of this section, the term "general area" shall mean the county or counties in which the mining operations are being conducted or any adjacent county.
(c) To assist the office the operator shall be required to prepare and submit to the office the information set forth in this subsection as follows:
(1) A map of the area for which a permit under article three, chapter twenty-two of this code is being sought or has been obtained;
(2) The names of the surface and mineral owners of the property to be mined pursuant to the permit; and
(3) A statement of the post-mining land use for all land which may be affected by the mining operations.
(d) In making a determination of the land and infrastructure needs in the general area of the mining operations, the office shall consider at least the following:
(1) The availability of developable land in the general area;
(2) The needs of the general area for developable land;
(3) The availability of infrastructure, including, but not limited to, access roads, water service, wastewater service and other utilities;
(4) The amount of land to be mined and the amount of valley to be filled;
(5) The amount, nature and cost to develop and maintain the community assets identified in section eight of this article; and
(6) The availability of federal, state and local grants and low-interest loans to finance all or a portion of the acquisition and construction of the identified land and infrastructure needs of the general area.
(e) In making a determination of the land and infrastructure needs in the general area of the surface mining operations, the office shall give significant weight to developable land on or near existing or planned multilane highways.
(f) The office may secure developable land and infrastructure for a Development Office or county through the preparation of a master land use plan for inclusion into a reclamation plan prepared pursuant to the provisions of section ten, article three, chapter twenty-two of this code. No provision of this section may be construed to modify requirements of article three of said chapter. Participation in a master land use plan is voluntary
(1) State, local, county or regional development or redevelopment authorities may The county commission or other governing body for each county in which there are surface mining operations that are subject to this article shall determine land and infrastructure needs within their jurisdictions through the development of a master land use plan which incorporates post-mining land use needs that include renewable and alternative energy uses, residential uses, highway uses, industrial uses, commercial uses, agricultural uses, public facility uses or recreational facility uses. A county commission or other governing body of a county may designate a local, county, or regional development or redevelopment authority to assist in the preparation of a master land use plan. A county commission or other governing body of a county may adopt a master land use plan developed after July 1, 2009, only after a reasonable public comment period;
(2) A master land use plan must be reviewed by the office of coalfield community development and approved by the Division of Environmental Protection pursuant to section ten, article three, chapter twenty-two of this code before the master land use plan can be implemented.
(2) Upon the request of a county or designated development or redevelopment authority, the office shall assist the county or development or redevelopment authority with the development of a master land use plan;
(3)(A) The Department of Environmental Protection and the Office of Coalfield Community Development shall review master land use plans existing as of July 1, 2009. If the office determines that a master land use plan complies with the requirements of this article and the rules promulgated pursuant to this article, the office shall approve the plan on or before July 1, 2010;
(B) Master land use plans developed after July 1, 2009, shall be submitted to the department and the office for review. The office shall determine whether to approve a master land use plan submitted pursuant to this subdivision within three months of submission. The office shall approve the plan if it complies with the requirements of this article and the rules promulgated pursuant to this article;
(C) The office shall review a master land use plan approved under this section every three years. No later than six months before the review of a master land use plan, the county or designated development or redevelopment authority shall submit an updated master land use plan to the department and the office for review. The county may submit its updated master land use plan only after a reasonable public comment period. The office shall approve the master land use plan if the updated plan complies with the requirements of this article and the rules promulgated pursuant to this article;
(D) If the office does not approve a master land use plan, the county or designated development or redevelopment authority shall submit a supplemental master land use plan to the office for approval;
(3) (4) The required infrastructure component standards needed to accomplish the designated post-mining land uses identified in subdivision (1) of this subsection a master land use plan shall be developed by the relevant state, local, county or regional its designated development or redevelopment authority. These standards must be in place before the respective state, local, county or regional development or redevelopment authority can accept ownership of property donated pursuant to a master land use plan. Acceptance of ownership of such property by a state, local, county or regional development or redevelopment authority may not occur unless it is determined that: (a) (i) The property use is compatible with adjacent land uses; (b) (ii) the use satisfies the relevant county or development or redevelopment authority's anticipated need and market use; (c) (iii) the property has in place necessary infrastructure components needed to achieve the anticipated use; (d) (iv) the use is supported by all other appropriate public agencies; (e) (v) the property is eligible for bond release in accordance with section twenty-three, article three, chapter twenty-two of this code; and (f) (vi) the use is feasible. Required infrastructure component standards require approval of the relevant county commission or, commissions or other county governing body before such standards are accepted. County commission or other county governing body approval may be rendered only after a reasonable public comment period;
(4) (5) The provisions of this subsection shall not take effect until legislative rules are promulgated pursuant to paragraph (C), subdivision (1), subsection (c), section twenty-three, article three, chapter twenty-two of this code governing bond releases which assure sound future maintenance by the local or regional economic development, redevelopment or planning agencies.
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-10. Reclamation plan requirements
.
(a) Each reclamation plan submitted as part of a surface mining permit application shall include, in the degree of detail necessary to demonstrate that reclamation required by this article can be accomplished, a statement of:
(1) The identification of the lands subject to surface mining over the estimated life of these operations and the size, sequence and timing of the operations for which it is anticipated that individual permits for mining will be sought;
(2) The condition of the land to be covered by the permit prior to any mining, including: (A) The uses existing at the time of the application and, if the land has a history of previous mining, the uses which preceded any mining; (B) the capability of the land prior to any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography and vegetation cover and, if applicable, a soil survey prepared pursuant to subdivision (15), subsection (a), section nine of this article; and (C) the best information available on the productivity of the land prior to mining, including appropriate classification as prime farmlands and the average yield of food, fiber, forage or wood products from the lands obtained under high levels of management;
(3) The use which is proposed to be made of the land following reclamation, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, including, but not limited to, renewable and alternative energy uses, residential uses, highway uses, industrial uses, commercial uses, agricultural uses, public facility uses or recreational facility uses, and the relationship of the use to existing land use policies and plans and the comments of any owner of the surface, other state agencies and local governments which would have to initiate, implement, approve or authorize the proposed use of the land following reclamation;
The plan may include a master plan as provided in section nine, article two-a, chapter five-b of this code which included a post-mining land use consistent with the reclamation and post-mining land use requirements of this article;
(A) The post-mining land use proposed in any reclamation plan for lands proposed to be mined by surface mining methods shall comport with the land use that is specified in the approved master land use plan for the area as provided in section nine, article two-a, chapter five-b of this code: Provided, That the secretary may approve an alternative post-mining land use where the applicant demonstrates that:
(i) The proposed post-mining land use is a higher and better use than the land use specified in the approved master land use plan;
(ii) Site-specific conditions make attainment of a post-mining land use which comports with the land use that is specified in the approved master land use plan for the area impractical; or
(iii) The post-mining land use specified in the approved master land use plan would substantially interfere with the future extraction of mineable coal, as that term is defined in rules promulgated by the Tax Commissioner relating to the valuation of active or reserve coal property for ad valorem property tax purposes, 110 C.S.R. 1I-3 or a successor rule, from the land to be mined.
(B) Existing permits with approved reclamation plans may be modified by the operator through an appropriate permit revision to include a post-mining land use which comports with the land use that is specified in the approved master land use plan for the area as provided in section nine, article two-a, chapter five-b of this code;
(C) By complying with a master land use plan that has been approved in accordance with article two-a, chapter five-b of this code, a post-mining land use satisfies the requirements for an alternative post-mining land use and satisfies the variance requirements set forth in subsection (c), section thirteen, article three, chapter twenty-two of this code if applicable to the proposed use;

(4) A detailed description of how the proposed post-mining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;
(5) The engineering techniques proposed to be used in mining and reclamation and a description of the major equipment; a plan for the control of surface water drainage and of water accumulation; a plan, where appropriate, for backfilling, soil stabilization and compacting, grading, revegetation and a plan for soil reconstruction, replacement and stabilization pursuant to the performance standards in subdivision (7), subsection (b), section thirteen of this article for those food, forage and forest lands identified therein; and a statement as to how the operator plans to comply with each of the applicable requirements set out in section thirteen or fourteen of this article;
(6) A detailed estimated timetable for the accomplishment of each major step in the reclamation plan;
(7) The consideration which has been given to conducting surface mining operations in a manner consistent with surface owner plans and applicable state and local land use plans and programs;
(8) The steps to be taken to comply with applicable air and water quality laws and rules and any applicable health and safety standards;
(9) The consideration which has been given to developing the reclamation plan in a manner consistent with local physical environmental and climatological conditions;
(10) All lands, interests in lands or options on the interests held by the applicant or pending bids on interests in lands by the applicant, which lands are contiguous to the area to be covered by the permit;
(11) A detailed description of the measures to be taken during the surface mining and reclamation process to assure the protection of:
(A) The quality of surface and groundwater systems, both on and off site, from adverse effects of the surface mining operation;
(B) The rights of present users to the water; and
(C) The quantity of surface and groundwater systems, both on and off site, from adverse effects of the surface mining operation or to provide alternative sources of water where the protection of quantity cannot be assured;
(12) The results of tests borings which the applicant has made at the area to be covered by the permit or other equivalent information and data in a form satisfactory to the director, including the location of subsurface water and an analysis of the chemical properties, including acid-forming properties of the mineral and overburden: Provided, That information which pertains only to the analysis of the chemical and physical properties of the coal, except information regarding the mineral or elemental contents which are potentially toxic in the environment, shall be kept confidential and not made a matter of public record;
(13) The consideration which has been given to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future can be minimized; and
(14) Any other requirements as the director may prescribe by rule.
(b) Any surface mining permit application filed after the effective date of this subsection may contain, in addition to the requirements of subsection (a) of this section, a master land use plan, prepared in accordance with article two-a, chapter five-b of this code, as to the post-mining land use. A reclamation plan approved but not implemented or pending approval as of the effective date of this section may be amended by the operator to provide for a revised reclamation plan consistent post-mining land use that comports with the provisions of this subsection a master land use plan that has been approved in accordance with article two-a, chapter five-b of this code.
(c) The reclamation plan shall be available to the public for review except for those portions thereof specifically exempted in subsection (a) of this section.
(d) The amendments to this section by the first extraordinary session of the Legislature in 2009 are effective upon the approval of the corresponding amendments to West Virginia's state program, as that term is defined in the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §1291, by the federal Office of Surface Mining Reclamation and Enforcement.


NOTE: The purpose of this bill is to enhance the utilization of master land use plans in counties affected by surface mining. The bill requires the adoption or approval of master land use plans by counties, and will establish enhanced periodic review procedures. The bill encourages also the involvement of land owners and the public in developing master land use plans. To ensure that master land use plans are utilized to the fullest extent, the bill requires post-mining land uses specified in surface mine reclamation plans to comport with master land use plans. However, the bill authorizes the Secretary of DEP to approve alternative land uses where a proposed use is a higher or better use or where site-specific conditions render comporting with a master land use plan impractical.

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