SB 751 Text

Introduced Version Senate Bill 751 History

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sb751 intr Senate Bill No. 751
(By Senator McCabe)
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[Introduced February 18, 2008; 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 §22-3-11 of the Code of West Virginia, 1931, as amended, relating generally to the special reclamation tax; continuing the Special Reclamation Fund; establishing the Special Reclamation Water Trust Fund; continuing and reimposing a tax on clean coal mined for deposit into both funds; and providing for the investment of moneys thereby deposited.

Be it enacted by the Legislature of West Virginia:

That §22-3-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-11. Bonds; amount and method of bonding; bonding requirements; special reclamation tax and funds; prohibited acts; period of bond liability.

(a) After a surface mining permit application has been approved pursuant to this article but before a permit has been issued, each operator shall furnish a penal bond, on a form to be prescribed and furnished by the secretary, payable to the State of West Virginia and conditioned upon the operator faithfully performing all of the requirements of this article and of the permit. The penal amount of the bond shall be not less than one thousand dollars nor more than five thousand dollars for each acre or fraction thereof: Provided, That the minimum amount of bond furnished for any type of reclamation bonding shall be ten thousand dollars. The bond shall cover: (1) The entire permit area; or (2) that increment of land within the permit area upon which the operator will initiate and conduct surface mining and reclamation operations within the initial term of the permit. If the operator chooses to use incremental bonding, as succeeding increments of surface mining and reclamation operations are to be initiated and conducted within the permit area, the operator shall file with the secretary an additional bond or bonds to cover the increments in accordance with this section: Provided, however, That once the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, the operator shall continue bonding in that manner for the term of the permit.
(b) The period of liability for bond coverage begins with issuance of a permit and continues for the full term of the permit plus any additional period necessary to achieve compliance with the requirements in the reclamation plan of the permit.
(c) (1) The form of the bond shall be approved by the secretary and may include, at the option of the operator, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, self-bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia or other states, and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of such securities or certificates shall be equal to or greater than the penal sum of the bond. The secretary shall, upon receipt of any deposit of cash, securities or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it is to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The operator making the deposit is entitled, from time to time, to receive from the State Treasurer, upon the written approval of the secretary, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him or her in lieu thereof cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.
(2) The secretary may approve an alternative bonding system if it will: (A) Reasonably assure that sufficient funds will be available to complete the reclamation, restoration and abatement provisions for all permit areas which may be in default at any time; and (B) provide a substantial economic incentive for the permittee to comply with all reclamation provisions.
(d) The secretary may accept the bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the secretary the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self-insure.
(e) It is unlawful for the owner of surface or mineral rights to interfere with the present operator in the discharge of the operator's obligations to the state for the reclamation of lands disturbed by the operator.
(f) All bond releases shall be accomplished in accordance with the provisions of section twenty-three of this article.
(g) The Special Reclamation Fund previously created is continued. The Special Reclamation Water Trust Fund is created within the State Treasury into and from which moneys shall be paid for the purpose of assuring a reliable source of capital to reclaim and restore water treatment systems on forfeited sites. The moneys accrued in ~~the~~ both funds, ~~including~~ any interest earned thereon, and yield from investments by the State Treasurer or West Virginia Investment Management Board, are reserved solely and exclusively for the purposes set forth in this section and section seventeen, article one of this chapter. The ~~fund~~ funds shall be administered by the secretary who is authorized to expend the moneys in ~~the fund~~ both funds for the reclamation and rehabilitation of lands which were subjected to permitted surface mining operations and abandoned after the third day of August, one thousand nine hundred seventy-seven, where the amount of the bond posted and forfeited on the land is less than the actual cost of reclamation, and where the land is not eligible for abandoned mine land reclamation funds under article two of this chapter. The secretary shall develop a long-range planning process for selection and prioritization of sites to be reclaimed so as to avoid inordinate short-term obligations of the assets in ~~the~~ both funds of such magnitude that the solvency of ~~the fund~~ either is jeopardized. The secretary may use ~~the special reclamation fund~~ both funds for the purpose of designing, constructing and maintaining water treatment systems when they are required for a complete reclamation of the affected lands described in this subsection. The secretary may also expend an amount not to exceed ten percent of the total annual assets in ~~the~~ both funds to implement and administer the provisions of this article and, as they apply to the Surface Mine Board, articles one and four, chapter twenty-two-b of this code.
(h) (1) ~~Prior to the first day of January, two thousand two, every person conducting coal surface mining operations shall contribute into the fund a sum equal to three cents per ton of clean coal mined.~~ For tax periods commencing on and after the first day of ~~January, two thousand two~~ July, two thousand eight, every person conducting coal surface mining shall ~~contribute into the fund~~ remit a special reclamation tax as follows: (A) For a the initial period ~~not to exceed fifty-seven~~ of twenty-four months, ending the thirtieth day of June, two thousand ten, seven and four-tenths cents per ton of clean coal mined, the proceeds of which shall be allocated by the secretary for deposit in the Special Reclamation Fund and the Special Reclamation Water Trust Fund; ~~and~~ (B) for each successive period of twenty-four months, such amount per ton deemed necessary to ensure the financial viability of both funds, as determined by the secretary upon the consultation and advice of a qualified actuary performing the studies required by this section; and (C) an additional seven cents per ton of clean coal mined, the proceeds of which shall be deposited in the Special Reclamation Fund. The tax shall be levied upon each ton of clean coal severed or clean coal obtained from refuse pile and slurry pond recovery or clean coal from other mining methods extracting a combination of coal and waste material as part of a fuel supply. ~~on or after the first day of January, two thousand two~~ The additional seven-cent tax shall be reviewed and, if necessary, adjusted annually by the Legislature upon recommendation of the Council pursuant to the provisions of section seventeen, article one of this chapter: Provided, That the tax may not be reduced until the Special Reclamation Fund ~~has~~ and Special Reclamation Water Trust Fund have sufficient moneys to meet the reclamation responsibilities of the state established in this section.
(2) In managing the Special Reclamation Program, the secretary shall: (A) Pursue cost effective alternative water treatment strategies; and (B) Conduct formal actuarial studies every two years and conduct informal reviews annually on the Special Reclamation Fund and Special Reclamation Water Trust Fund.
(3) Prior to the thirty-first day of December, two thousand five, the secretary shall: (A) Determine the feasibility of allowing full cost bonding in lieu of a portion of the per ton coal tax. In making this determination, the secretary shall consider the availability and affordability of full cost bonding to operators and the overall fiscal stability of the Special Reclamation Program; (B) determine the feasibility of creating a water quality trust fund to provide long-term funding for water treatment from forfeited sites and to reduce a portion of the per ton coal tax. In making this determination, the secretary shall consider the availability and fiscal stability of any funding for a water quality trust fund and any impact it may have on the overall fiscal stability of the Special Reclamation Program; and (C) Determine the feasibility of establishing a bonding requirement for water treatment activities in lieu of a portion of the per ton coal tax. In making this determination, the secretary shall consider the availability and affordability of bonding to operators and the overall fiscal stability of the Special Reclamation Program. (4) If the secretary determines that full cost bonding, water treatment bonding, the establishment of a water quality trust fund, or the use of other funding mechanisms, or a combination of any or all of these financial assurance mechanisms, reasonably assure that sufficient funds will be available to complete the reclamation of a forfeited site and that the special reclamation fund will remain fiscally stable, the secretary is authorized to propose legislative rules in accordance with article three, chapter twenty-nine-a of this code to implement a full cost bonding program, a water reclamation bonding program, a water quality trust fund program, or other funding mechanisms, or a combination thereof, in lieu of the per ton coal tax or a portion thereof.
(i) This special reclamation tax shall be collected by the State Tax Commissioner in the same manner, at the same time and upon the same tonnage as the minimum severance tax imposed by article twelve-b, chapter eleven of this code is collected: Provided, That under no circumstance shall the special reclamation tax be construed to be an increase in either the minimum severance tax imposed by said article or the severance tax imposed by article thirteen of said chapter.
(j) Every person liable for payment of the special reclamation tax shall pay the amount due without notice or demand for payment.
(k) The Tax Commissioner shall provide to the secretary a quarterly listing of all persons known to be delinquent in payment of the special reclamation tax. The secretary may take the delinquencies into account in making determinations on the issuance, renewal or revision of any permit.
(l) The Tax Commissioner shall deposit the ~~fees~~ moneys collected with the Treasurer of the State of West Virginia to the credit of the Special Reclamation Fund and Special Reclamation Water Trust Fund. ~~The moneys in the fund shall be placed by the Treasurer in an interest-bearing account with the interest being returned to the fund on an annual basis.~~
(m) At the beginning of each quarter, the secretary shall advise the State Tax Commissioner and the Governor of the assets, excluding payments, expenditures and liabilities, in ~~the fund~~ both funds.
(n) To the extent that this section modifies any powers, duties, functions and responsibilities of the department that may require approval of one or more federal agencies or officials in order to avoid disruption of the federal-state relationship involved in the implementation of the Federal Surface Mining Control and Reclamation Act, 30 U.S.C. §1270 by the state, the modifications will become effective upon the approval of the modifications by the appropriate federal agency or official.

NOTE: The purpose of this bill is to modify the Surface Coal Mining and Reclamation Act by implementing the recommendations of the secretary, in consultation with the Special Reclamation Advisory Council and supported by academic and actuarial findings, to provide for the continued fiscal viability of the Special Reclamation Fund and to ensure that, as the coal mining industry matures, adequate funds are nonetheless reserved in trust to reclaim and restore water treatment systems on former mine sites where the reclamation bond has been forfeited.

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