ENROLLED
Senate Bill No. 681
(Originating in the Committee on Energy, Industry and Mining)
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[Passed
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AN ACT to amend chapter five-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new article, designated
article two-a; to amend and reenact section seven, article one, chapter
twenty-two of said code; to amend and reenact sections thirteen, twenty-three
and twenty-four, article three of said chapter; to further amend said article
by adding thereto three new sections, designated sections thirteen-a,
twenty-two-a and thirty-a; to further amend said chapter by adding thereto a
new article, designated article three-a; and to amend and reenact section
seven-a, article eleven of said chapter, all relating to surface-mining;
creating the office of coalfield community development within the West Virginia
development office; office of coalfield community development’s powers and
duties; promulgation of rules; requiring a community impact statement;
requiring a coalfield community development statement; determining and
developing needed community assets; addressing land and infrastructure needs;
annual reports; land acquisition process; continuation of offices; creating the
office of explosives and blasting within the division of environmental
protection; office of explosives and blasting’s duties, powers and
responsibilities; promulgation of rules; enforcement of blasting laws and
pre-blast surveys by the office of explosives and blasting; education,
training, examination, certification and disciplinary procedures for blasters;
establishing a claims process for blasting damage; requirements for a pre-blast
survey; recordation of notice of pre-blast survey and waiver; prohibiting
production blasting within three hundred feet of a protected structure;
requiring site-specific blast designs within one thousand feet of a protected
structure; requiring studies by the office of blasting; requiring mining
operators to replace an owner’s damaged underground water supply within a
specific area and within a certain amount of time; provision for an emergency
water supply; promulgation of rules; requiring compliance with blasting laws;
civil liability and penalties; reducing the acreage and monetary amount for
mitigation of watersheds by mining operators; and authorizing a study of the
impact of mountaintop mining and valley fills upon the state of West Virginia.
Be it enacted by the Legislature of West Virginia:
That chapter five-b of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new article, designated
article two-a; that section seven, article one, chapter twenty-two of said code
be amended and reenacted; that sections thirteen, twenty-three and twenty-four,
article three of said chapter be amended and reenacted; that said article be
further amended by adding thereto three new sections, designated sections
thirteen-a, twenty-two-a and thirty-a; that said chapter be further amended by
adding thereto a new article, designated article three-a; and that section
seven-a, article eleven of said chapter be amended and reenacted, all to read
as follows:
CHAPTER 5B.
ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2A. Office of
Coalfield Community Development.
§5B-2A-1. Legislative findings and declaration.
The Legislature hereby finds and declares the following:
(a) Coal mining has made and continues to make significant contributions to the
economy of
(b) The development and increasing prominence of surface-mining operations,
including mountaintop mining, has brought increasingly high levels of
productivity, safety and efficiency to the state’s mining industry, enabling the
recovery of coal that could not otherwise be mined and marketed profitably,
increasing the severance tax revenues and other economic benefits described in
subsection (a) above and ensuring the competitiveness of the state’s coal
industry from a national and international perspective.
(c) Where implemented, surface-mining operations, particularly mountaintop
mining, tend to extract most, if not all, of the recoverable coal reserves in
an accelerated fashion. For a state long dependent on the employment and
revenue coal mining provides, this reality should be sobering and there is no
place in which the comprehension of this reality is more crucial than the
coalfields of
(d) The coal industry and those related to the extraction of mineral resources
benefit from the mining of our state’s coal through mining practices which
impact its citizens -- some in a negative way -- and through practices which
will extract significant portions of coal reserves in an accelerated fashion.
Those industries must therefore accept a greater responsibility to help address
the long-term needs of the communities and citizens impacted by their
activities.
(e) Once it becomes public knowledge that a permit is being sought, the
marketability of property may change and the relative bargaining power of the
parties may change with it. The potential for negative impact on those living
in communities near surface-mining operations may limit the options and
bargaining power of the property owners.
(f) Surface-mining operations, including mountaintop mining, present unique
challenges to the coal mining industry and the state and its citizens,
especially those living and working in communities that rely heavily upon these
methods of mining. This requires that these communities, in conjunction with
county commissions, state, local, county and regional development authorities,
landowners and civic, community and business groups and interested citizens,
develop plans related to the communities’ long-term economic viability.
(g) The West Virginia development office, as the state agency charged with
economic development activities, shall take a more active role in the long-term
economic development of communities in which these mining methods are prevalent
and shall establish a formal process to assist property owners in the
determination of the fair market value where the property owner and the coal
company voluntarily enter into an agreement relating to the purchase and sale
of such property.
§5B-2A-2. Application of article.
(a) The provisions of this article shall apply to all surface-mining
operations, except:
(1) The surface operations and surface impacts incident to an underground coal
mine; and
(2) Surface-mining operations of operators that: (A) Establish that their
probable total annual coal production from all locations during any consecutive
twelve-month period, either during the term of the permit or during the first
five years after issuance of the permit, whichever period is shorter, will not
exceed three hundred thousand tons, as determined pursuant to rules promulgated
by the division; and (B) otherwise qualify for the small operator assistance
program authorized under the federal Surface-Mining Control and Reclamation Act
of 1977, as amended, and the federal regulations promulgated thereunder, as
amended.
(b) The provisions of this article shall not apply (1) to underground coal
mining operations or (2) to the extraction of minerals by underground mining
methods or the surface impacts thereof.
§5B-2A-3. Definitions.
(a) For the purpose of this article, the following terms have the meanings
ascribed to them:
(1) “Division” means the division of environmental protection established in
article one, chapter twenty-two of this code;
(2) “Office” means the office of coalfield community development; and
(3) “West Virginia development office” means the office established in article
two of this chapter.
(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-4. Office of coalfield community development.
(a) The office of coalfield community development is hereby established within
the West Virginia development office.
(b) The executive director shall appoint a chief to administer the office, who
will serve at the will and pleasure of the executive director of the West
Virginia development office.
§5B-2A-5. Powers and duties.
(a) The office shall have and 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 developing and implementing coalfield
community development statements as provided in section seven of this article
and to administer the procedure so established;
(3) 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;
(4) 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;
(5) 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;
(6) 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 such meetings;
(7) 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; and
(8) In conjunction with the division, to maintain and operate a system to
receive and address questions, concerns and complaints relating to
surface-mining.
§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 of 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, article three of chapter twenty-two of this code; and
(2) The operator shall provide copies of the community impact statement to the
division’s office of mining reclamation and office of explosives and blasting
and to the county commissions, county clerks’ offices and local or regional
economic development 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.
(c) Where the operator makes any significant revision to the permit application
under section eighteen, article three of 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) The provisions of this section shall apply as follows:
(1) To all surface-mining permits granted after the effective date of this
article; 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-7. Coalfield community development statement.
(a) At the time that the operator applies for any permit pursuant to article
three of chapter twenty-two of this code, the office shall coordinate the
development of a coalfield community development statement as described in this
section.
(b) The office shall establish a procedure for the development of the coalfield
community development statement, which procedure shall include the following:
(1) A method for giving adequate notice to affected persons and entities about
the coalfield community development statement process and how they can participate.
Notice shall be given to at least the following:
(A) The permit applicant;
(B) The individuals living in the affected communities;
(C) Business owners and operators doing business in the affected communities;
(D) Any company owning land or resources on the property to be mined, including
the surface and mineral owners of such property; and
(E) State and local government agencies such as county commissions, city or
town governments and local or regional economic development authorities; and
(2) A procedure to follow which provides for fair and reasonable input into the
development of the coalfield community development statement by those persons
and entities listed in subdivision (1) of this subsection.
(c) The office shall determine what information, findings and recommendations
shall be contained in the coalfield community development statement, which
shall include, but not be limited to the following:
(1) An evaluation of the future of the community once mining operations are
completed;
(2) A method to measure compliance with the provisions of section eight of this
article; and
(3) A method to measure compliance with the provisions of section nine of this
article.
(d) The Legislature hereby finds that, while the preparation of a coalfield
community development statement is important to addressing the legitimate needs
and concerns of the communities, individuals and entities which may be affected
by surface-mining operations, such a statement as required by this section is
in part subjective in nature. The Legislature further finds that, because of
such subjectivity, the development of a coalfield community development
statement shall not be an element of or in any way related to the application
for and approval of any surface-mining permit under article three of chapter
twenty-two of this code. Therefore, the following shall apply to this section:
(1) The office alone shall have authority over the coordination and development
of the coalfield community development statement; and
(2) The development of the coalfield community development statement shall be a
collaborative effort among those persons and entities identified in subdivision
(1) of subsection (b) of this section.
§5B-2A-8. Determining and developing needed community assets.
(a) As a part of the coalfield community development statement required by
section seven of this article, the office, in a collaborative effort with those
persons and entities identified in subdivision (1) of subsection (b) of section
seven of this article, shall determine the community assets that may be
developed by the community, county or region to foster its viability when
surface-mining operations are completed.
(b) Community assets to be identified pursuant to subsection (a) of this
section may include the following:
(1) Water and wastewater services;
(2) Developable land for housing, commercial development or other community
purposes;
(3) Recreation facilities and opportunities; and
(4) Education facilities and opportunities.
(c) To assist the office in the development of the coalfield community
development statement, 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 of 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 determining the nature and extent of the needed community assets, the
office shall consider at least the following:
(1) An evaluation of the future of the community once mining operations are
completed as required to be determined in the coalfield community development
statement;
(2) The prospects for the long-term viability of any asset developed under this
section;
(3) The desirability of foregoing some or all of the asset development required
by this section in lieu of the requirements of section nine of this article;
(4) The determinations made during the development of the coalfield community
development statement of the impacts of the mining operations on the community;
and
(5) The extent to which the community, local, state or the federal government
may participate in the development of assets the community needs to assure its
viability.
§5B-2A-9. Securing developable land and infrastructure.
(a) As a part of the coalfield community development statement required by
section seven of this article, the office, in a collaborative effort with those
persons and entities identified in subdivision (1) of subsection (b) of section
seven of this article, 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 in the development of the coalfield community development
statement, 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 of 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.
(f) 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 multi-lane
highways.
§5B-2A-10. Action report; annual update.
(a) Based upon the information developed under sections eight and nine of this
article, the office shall prepare an action report which shall make
recommendations for achieving economic development initiatives, including
identifying sources of potential funding.
(b) The office shall prepare an annual status update of the action report which
shall describe accomplishments and prospects for continued economic
development.
§5B-2A-11. Land acquisitions.
The office shall establish a procedure to assist property owners who desire
voluntarily to sell their property to the operator or any person, firm or
corporation directly or indirectly affiliated with the operator. The procedure
developed shall be subject to the following:
(1) The procedure only shall apply if all the following conditions are met:
(A) The operator or any person, firm or corporation directly or indirectly
affiliated with the operator, makes an offer in writing to purchase the
property stating all the terms and conditions of the proposed purchase;
(B) The property to be purchased is located within one thousand feet of
property which actually is or will be mined; and
(C) The structures are actually being used for commercial purposes or are occupied
residences situate on the property to be purchased;
(2) Once a permit application has been filed, the operator shall notify the
office of any intended property acquisitions to which this section applies;
(3) The office shall cause notice to be given to potential sellers of the
procedure established by this section, but shall provide no other assistance
unless requested by the potential seller;
(4) If requested by the potential seller, the office shall make a determination
as to whether the value of the property intended to be acquired is diminished
by ongoing or intended mining operations and that the purchase price offered by
the purchaser is less than the value the property would have had prior to any
diminution of value. The office only shall provide assistance if it determines
that the value of such property is diminished and that the offer made by the
operator is less than the value the property would have had prior to any
diminution of value; and
(5) If the office determines that the value of such property is diminished and
that the offer made by the operator is less than the value the property would
have had prior to any diminution of value, then the office shall establish the
value of such property prior to any diminution and shall certify the same to
the parties.
§5B-2A-12. Rule making.
The office shall propose rules for legislative approval in accordance with
article three, chapter twenty-nine-a of this code, to establish, implement and
enforce the provisions of this article, which rules shall include, but not be
limited to:
(1) The development of standards for establishing the value of property by the
office; and
(2) A process for the development of a coalfield community development
statement when multiple permit applications are applied for by one or more
operators in any single county or contiguous area of an adjacent county.
§5B-2A-13. Termination of office.
The office of coalfield community development is continued until the first day
of July, two thousand two, pursuant to the provisions of article ten, chapter
four of this code.
CHAPTER 22.
ENVIRONMENTAL RESOURCES.
ARTICLE 1. DIVISION OF
ENVIRONMENTAL PROTECTION.
§22-1-7. Offices within division; continuation of the office of water
resources.
(a) Consistent with the provisions of this article the director shall, at a
minimum, maintain the following offices within the division:
(1) The office of abandoned mine lands and reclamation, which is charged, at a
minimum, with administering and enforcing, under the supervision of the
director, the provisions of article two of this chapter;
(2) The office of mining and reclamation, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of articles three and four of this chapter;
(3) The office of air quality, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of article five of this chapter;
(4) The office of oil and gas, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of articles six, seven, eight, nine and ten of this chapter;
(5) The office of water resources, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of articles eleven, twelve, thirteen and fourteen of this chapter;
(6) The office of waste management, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of articles fifteen, sixteen, seventeen, eighteen, nineteen and
twenty of this chapter; and
(7) The office of explosives and blasting, which is charged, at a minimum, with
administering and enforcing, under the supervision of the director, the
provisions of article three-a of this chapter.
(b) Pursuant to the provisions of article ten, chapter four of this code, the
office of water resources within the division of environmental protection shall
continue to exist until the first day of July, two thousand one.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-13. General environmental protection performance standards for
surface-mining; variances.
(a) Any permit issued by the director pursuant to this article to conduct
surface-mining operations shall require that the surface-mining operations will
meet all applicable performance standards of this article and other
requirements set forth in legislative rules proposed by the director.
(b) The following general performance standards are applicable to all surface
mines and require the operation, at a minimum to:
(1) Maximize the utilization and conservation of the solid fuel resource being
recovered to minimize reaffecting the land in the future through
surface-mining;
(2) Restore the land affected to a condition capable of supporting the uses
which it was capable of supporting prior to any mining, or higher or better
uses of which there is reasonable likelihood so long as the use or uses do not
present any actual or probable hazard to public health or safety or pose any
actual or probable threat of water diminution or pollution, and the permit
applicants' declared proposed land use following reclamation is not considered
to be impractical or unreasonable, inconsistent with applicable land use
policies and plans, involves unreasonable delay in implementation, or is
violative of federal, state or local law;
(3) Except as provided in subsection (c) of this section, with respect to all
surface mines, backfill, compact where advisable to ensure stability or to
prevent leaching of toxic materials, and grade in order to restore the
approximate original contour: Provided, That in surface-mining which is carried
out at the same location over a substantial period of time where the operation
transects the coal deposit, and the thickness of the coal deposits relative to
the volume of the overburden is large and where the operator demonstrates that
the overburden and other spoil and waste materials at a particular point in the
permit area or otherwise available from the entire permit area is insufficient,
giving due consideration to volumetric expansion, to restore the approximate
original contour, the operator, at a minimum, shall backfill, grade and
compact, where advisable, using all available overburden and other spoil and waste
materials to attain the lowest practicable grade, but not more than the angle
of repose, to provide adequate drainage and to cover all acid-forming and other
toxic materials, in order to achieve an ecologically sound land use compatible
with the surrounding region: Provided, however, That in surface-mining where
the volume of overburden is large relative to the thickness of the coal deposit
and where the operator demonstrates that due to volumetric expansion the amount
of overburden and other spoil and waste materials removed in the course of the
mining operation is more than sufficient to restore the approximate original
contour, the operator shall, after restoring the approximate contour, backfill,
grade and compact, where advisable, the excess overburden and other spoil and
waste materials to attain the lowest grade, but not more than the angle of
repose, and to cover all acid-forming and other toxic materials, in order to
achieve an ecologically sound land use compatible with the surrounding region and,
the overburden or spoil shall be shaped and graded in such a way as to prevent
slides, erosion and water pollution and revegetated in accordance with the
requirements of this article: Provided further, That the director shall propose
rules for legislative approval in accordance with article three, chapter
twenty-nine-a of this code, governing variances to the requirements for return
to approximate original contour or highwall elimination and where adequate
material is not available from surface-mining operations permitted after the
effective date of this article for: (A) Underground mining operations existing
prior to the third day of August, one thousand nine hundred seventy-seven; or
(B) for areas upon which surface-mining prior to the first day of July, one
thousand nine hundred seventy-seven, created highwalls;
(4) Stabilize and protect all surface areas, including spoil piles, affected by
the surface-mining operation to effectively control erosion and attendant air
and water pollution;
(5) Remove the topsoil from the land in a separate layer, replace it on the
backfill area, or if not utilized immediately, segregate it in a separate pile
from other spoil and, when the topsoil is not replaced on a backfill area
within a time short enough to avoid deterioration of the topsoil, maintain a
successful vegetative cover by quick growing plants or by other similar means
in order to protect topsoil from wind and water erosion and keep it free of any
contamination by other acid or toxic material: Provided, That if topsoil is of
insufficient quantity or of poor quality for sustaining vegetation, or if other
strata can be shown to be more suitable for vegetation requirements, then the
operator shall remove, segregate and preserve in a like manner any other strata
which is best able to support vegetation;
(6) Restore the topsoil or the best available subsoil which is best able to
support vegetation;
(7) Ensure that all prime farmlands are mined and reclaimed in accordance with
the specifications for soil removal, storage, replacement and reconstruction
established by the United States secretary of agriculture and the soil
conservation service pertaining thereto. The operator, at a minimum, shall: (A)
Segregate the A horizon of the natural soil, except where it can be shown that
other available soil materials will create a final soil having a greater
productive capacity, and if not utilized immediately, stockpile this material
separately from other spoil, and provide needed protection from wind and water
erosion or contamination by other acid or toxic material; (B) segregate the B
horizon of the natural soil, or underlying C horizons or other strata, or a
combination of the horizons or other strata that are shown to be both
texturally and chemically suitable for plant growth and that can be shown to be
equally or more favorable for plant growth than the B horizon, in sufficient
quantities to create in the regraded final soil a root zone of comparable depth
and quality to that which existed in the natural soil, and if not utilized
immediately, stockpile this material separately from other spoil and provide
needed protection from wind and water erosion or contamination by other acid or
toxic material; (C) replace and regrade the root zone material described in
paragraph (B) of this subdivision, with proper compaction and uniform depth
over the regraded spoil material; and (D) redistribute and grade in a uniform
manner the surface soil horizon described in paragraph (A) of this subdivision;
(8) Create, if authorized in the approved surface-mining and reclamation plan
and permit, permanent impoundments of water on mining sites as part of
reclamation activities in accordance with rules promulgated by the director;
(9) Where augering is the method of recovery, seal all auger holes with an
impervious and noncombustible material in order to prevent drainage except
where the director determines that the resulting impoundment of water in the
auger holes may create a hazard to the environment or the public welfare and
safety: Provided, That the director may prohibit augering if necessary to
maximize the utilization, recoverability or conservation of the mineral
resources or to protect against adverse water quality impacts;
(10) Minimize the disturbances to the prevailing hydrologic balance at the mine
site and in associated off-site areas and to the quality and quantity of water
in surface and groundwater systems both during and after surface-mining
operations and during reclamation by: (A) Avoiding acid or other toxic mine
drainage by such measures as, but not limited to: (i) Preventing or removing
water from contact with toxic producing deposits; (ii) treating drainage to
reduce toxic content which adversely affects downstream water upon being
released to water courses; and (iii) casing, sealing or otherwise managing
boreholes, shafts and wells and keep acid or other toxic drainage from entering
ground and surface waters; (B) conducting surface-mining operations so as to
prevent to the extent possible, using the best technology currently available,
additional contributions of suspended solids to streamflow or runoff outside
the permit area, but in no event shall contributions be in excess of
requirements set by applicable state or federal law; (C) constructing an
approved drainage system pursuant to paragraph (B) of this subdivision, prior
to commencement of surface-mining operations, the system to be certified by a
person approved by the director to be constructed as designed and as approved
in the reclamation plan; (D) avoiding channel deepening or enlargement in
operations requiring the discharge of water from mines; (E) unless otherwise
authorized by the director, cleaning out and removing temporary or large
settling ponds or other siltation structures after disturbed areas are
revegetated and stabilized, and depositing the silt and debris at a site and in
a manner approved by the director; (F) restoring recharge capacity of the mined
area to approximate premining conditions; and (G) any other actions prescribed
by the director ;
(11) With respect to surface disposal of mine wastes, tailings, coal processing
wastes and other wastes in areas other than the mine working excavations,
stabilize all waste piles in designated areas through construction in compacted
layers, including the use of noncombustible and impervious materials if
necessary, and assure the final contour of the waste pile will be compatible
with natural surroundings and that the site will be stabilized and revegetated
according to the provisions of this article;
(12) Design, locate, construct, operate, maintain, enlarge, modify and remove
or abandon, in accordance with standards and criteria developed pursuant to
subsection (f) of this section, all existing and new coal mine waste piles
consisting of mine wastes, tailings, coal processing wastes or other liquid and
solid wastes, and used either temporarily or permanently as dams or
embankments;
(13) Refrain from surface-mining within five hundred feet of any active and
abandoned underground mines in order to prevent breakthroughs and to protect
health or safety of miners: Provided, That the director shall permit an
operator to mine near, through or partially through an abandoned underground
mine or closer to an active underground mine if: (A) The nature, timing and
sequencing of the approximate coincidence of specific surface mine activities
with specific underground mine activities are coordinated jointly by the
operators involved and approved by the director; and (B) the operations will
result in improved resource recovery, abatement of water pollution or
elimination of hazards to the health and safety of the public: Provided,
however, That any breakthrough which does occur shall be sealed;
(14) Ensure that all debris, acid-forming materials, toxic materials or
materials constituting a fire hazard are treated or buried and compacted, or
otherwise disposed of in a manner designed to prevent contamination of ground
or surface waters, and that contingency plans are developed to prevent
sustained combustion: Provided, That the operator shall remove or bury all
metal, lumber, equipment and other debris resulting from the operation before
grading release;
(15) Ensure that explosives are used only in accordance with existing state and
federal law and the rules promulgated by the director, which shall include
provisions to:
(A) Maintain for a period of at least three years and make available for public
inspection, upon written request, a log detailing the location of the blasts,
the pattern and depth of the drill holes, the amount of explosives used per
hole and the order and length of delay in the blasts; and
(B) Require that all blasting operations be conducted by persons certified by
the office of explosives and blasting.
(16) Ensure that all reclamation efforts proceed in an environmentally sound
manner and as contemporaneously as practicable with the surface-mining
operations. Time limits shall be established by the director requiring
backfilling, grading and planting to be kept current: Provided, That where
surface-mining operations and underground mining operations are proposed on the
same area, which operations must be conducted under separate permits, the
director may grant a variance from the requirement that reclamation efforts
proceed as contemporaneously as practicable to permit underground mining
operations prior to reclamation:
(A) If the director finds in writing that:
(i) The applicant has presented, as part of the permit application, specific,
feasible plans for the proposed underground mining operations;
(ii) The proposed underground mining operations are necessary or desirable to
assure maximum practical recovery of the mineral resource and will avoid
multiple disturbance of the surface;
(iii) The applicant has satisfactorily demonstrated that the plan for the
underground mining operations conforms to requirements for underground mining
in the jurisdiction and that permits necessary for the underground mining
operations have been issued by the appropriate authority;
(iv) The areas proposed for the variance have been shown by the applicant to be
necessary for the implementing of the proposed underground mining operations;
(v) No substantial adverse environmental damage, either on-site or off-site,
will result from the delay in completion of reclamation as required by this
article; and
(vi) Provisions for the off-site storage of spoil will comply with subdivision
(22), subsection (b) of this section;
(B) If the director has promulgated specific rules to govern the granting of
the variances in accordance with the provisions of this subparagraph and has
imposed any additional requirements as the director considers necessary;
(C) If variances granted under the provisions of this paragraph are reviewed by
the director not more than three years from the date of issuance of the permit:
Provided, That the underground mining permit shall terminate if the underground
operations have not commenced within three years of the date the permit was
issued, unless extended as set forth in subdivision (3), section eight of this
article; and
(D) If liability under the bond filed by the applicant with the director
pursuant to subsection (b), section eleven of this article is for the duration
of the underground mining operations and until the requirements of subsection
(g), section eleven and section twenty-three of this article have been fully
complied with;
(17) Ensure that the construction, maintenance and postmining conditions of
access and haul roads into and across the site of operations will control or
prevent erosion and siltation, pollution of water, damage to fish or wildlife
or their habitat, or public or private property: Provided, That access roads
constructed for and used to provide infrequent service to surface facilities,
such as ventilators or monitoring devices, are exempt from specific construction
criteria provided adequate stabilization to control erosion is achieved through
alternative measures;
(18) Refrain from the construction of roads or other access ways up a stream
bed or drainage channel or in proximity to the channel so as to significantly
alter the normal flow of water;
(19) Establish on the regraded areas, and all other lands affected, a diverse,
effective and permanent vegetative cover of the same seasonal variety native to
the area of land to be affected or of a fruit, grape or berry producing variety
suitable for human consumption and capable of self-regeneration and plant
succession at least equal in extent of cover to the natural vegetation of the
area, except that introduced species may be used in the revegetation process where
desirable or when necessary to achieve the approved postmining land use plan;
(20) Assume the responsibility for successful revegetation, as required by
subdivision (19) of this subsection, for a period of not less than five growing
seasons, as defined by the director, after the last year of augmented seeding,
fertilizing, irrigation or other work in order to assure compliance with
subdivision (19) of this subsection: Provided, That when the director issues a
written finding approving a long-term agricultural postmining land use as a
part of the mining and reclamation plan, the director may grant exception to
the provisions of subdivision (19) of this subsection: Provided, however, That
when the director approves an agricultural postmining land use, the applicable
five growing seasons of responsibility for revegetation begins on the date of
initial planting for the agricultural postmining land use;
On lands eligible for remining assume the responsibility for successful
revegetation, as required by subdivision (19) of this subsection, for a period
of not less than two growing seasons, as defined by the director after the last
year of augmented seeding, fertilizing, irrigation or other work in order to
assure compliance with subdivision (19) of this subsection;
(21) Protect off-site areas from slides or damage occurring during
surface-mining operations and not deposit spoil material or locate any part of
the operations or waste accumulations outside the permit area: Provided, That
spoil material may be placed outside the permit area, if approved by the
director after a finding that environmental benefits will result from the
placing of spoil material outside the permit area;
(22) Place all excess spoil material resulting from surface-mining activities
in a manner that: (A) Spoil is transported and placed in a controlled manner in
position for concurrent compaction and in a way as to assure mass stability and
to prevent mass movement; (B) the areas of disposal are within the bonded
permit areas and all organic matter is removed immediately prior to spoil
placements; (C) appropriate surface and internal drainage system or diversion
ditches are used to prevent spoil erosion and movement; (D) the disposal area
does not contain springs, natural water courses or wet weather seeps, unless
lateral drains are constructed from the wet areas to the main under drains in a
manner that filtration of the water into the spoil pile will be prevented; (E)
if placed on a slope, the spoil is placed upon the most moderate slope among
those upon which, in the judgment of the director, the spoil could be placed in
compliance with all the requirements of this article, and is placed, where
possible, upon, or above, a natural terrace, bench or berm, if placement
provides additional stability and prevents mass movement; (F) where the toe of
the spoil rests on a downslope, a rock toe buttress, of sufficient size to
prevent mass movement, is constructed; (G) the final configuration is
compatible with the natural drainage pattern and surroundings and suitable for
intended uses; (H) the design of the spoil disposal area is certified by a
qualified registered professional engineer in conformance with professional
standards; and (I) all other provisions of this article are met: Provided, That
where the excess spoil material consists of at least eighty percent, by volume,
sandstone, limestone or other rocks that do not slake in water and will not
degrade to soil material, the director may approve alternate methods for
disposal of excess spoil material, including fill placement by dumping in a
single lift, on a site specific basis: Provided, however, That the services of
a qualified registered professional engineer experienced in the design and
construction of earth and rockfill embankment are utilized: Provided further,
That the approval may not be unreasonably withheld if the site is suitable;
(23) Meet any other criteria necessary to achieve reclamation in accordance
with the purposes of this article, taking into consideration the physical,
climatological and other characteristics of the site;
(24) To the extent possible, using the best technology currently available,
minimize disturbances and adverse impacts of the operation on fish, wildlife
and related environmental values, and achieve enhancement of these resources
where practicable; and
(25) Retain a natural barrier to inhibit slides and erosion on permit areas
where outcrop barriers are required: Provided, That constructed barriers may be
allowed where: (A) Natural barriers do not provide adequate stability; (B)
natural barriers would result in potential future water quality deterioration;
and (C) natural barriers would conflict with the goal of maximum utilization of
the mineral resource: Provided, however, That at a minimum, the constructed barrier
shall be of sufficient width and height to provide adequate stability and the
stability factor shall equal or exceed that of the natural outcrop barrier:
Provided further, That where water quality is paramount, the constructed
barrier shall be composed of impervious material with controlled discharge
points.
(c) (1) The director may prescribe procedures pursuant to which he or she may
permit surface-mining operations for the purposes set forth in subdivision (3)
of this subsection.
(2) Where an applicant meets the requirements of subdivisions (3) and (4) of
this subsection, a permit without regard to the requirement to restore to
approximate original contour set forth in subsection (b) or (d) of this section
may be granted for the surface-mining of coal where the mining operation will
remove an entire coal seam or seams running through the upper fraction of a
mountain, ridge or hill, except as provided in subparagraph (A), subdivision
(4) of this subsection, by removing all of the overburden and creating a level
plateau or a gently rolling contour with no highwalls remaining, and capable of
supporting postmining uses in accordance with the requirements of this
subsection.
(3) In cases where an industrial, commercial, woodland, agricultural,
residential, public or fish and wildlife habitat and recreation lands use is
proposed for the postmining use of the affected land, the director may grant a
permit for a surface-mining operation of the nature described in subdivision
(2) of this subsection where: (A) The proposed postmining land use is
determined to constitute an equal or better use of the affected land, as
compared with premining use; (B) the applicant presents specific plans for the
proposed postmining land use and appropriate assurances that the use will be:
(i) Compatible with adjacent land uses; (ii) practicable with respect to
achieving the proposed use; (iii) supported by commitments from public agencies
where appropriate; (iv) practicable with respect to private financial
capability for completion of the proposed use; (v) planned pursuant to a
schedule attached to the reclamation plan so as to integrate the mining
operation and reclamation with the postmining land use; and (vi) designed by a
person approved by the director in conformance with standards established to
assure the stability, drainage and configuration necessary for the intended use
of the site; (C) the proposed use would be compatible with adjacent land uses,
and existing state and local land use plans and programs; (D) the director provides
the county commission of the county in which the land is located and any state
or federal agency which the director, in his or her discretion, determines to
have an interest in the proposed use, an opportunity of not more than sixty
days to review and comment on the proposed use; and (E) all other requirements
of this article will be met.
(4) In granting any permit pursuant to this subsection, the director shall
require that: (A) A natural barrier be retained to inhibit slides and erosion
on permit areas where outcrop barriers are required: Provided, That constructed
barriers may be allowed where: (i) Natural barriers do not provide adequate
stability; (ii) natural barriers would result in potential future water quality
deterioration; and (iii) natural barriers would conflict with the goal of
maximum utilization of the mineral resource: Provided, however, That, at a
minimum, the constructed barrier shall be sufficient in width and height to
provide adequate stability and the stability factor shall equal or exceed that
of the natural outcrop barrier: Provided further, That where water quality is
paramount, the constructed barrier shall be composed of impervious material
with controlled discharge points; (B) the reclaimed area is stable; (C) the
resulting plateau or rolling contour drains inward from the outslopes except at
specific points; (D) no damage will be done to natural watercourses; (E) spoil
will be placed on the mountaintop bench as is necessary to achieve the planned
postmining land use: And provided further, That all excess spoil material not
retained on the mountaintop shall be placed in accordance with the provisions
of subdivision (22), subsection (b) of this section; and (F) ensure stability
of the spoil retained on the mountaintop and meet the other requirements of
this article.
(5) All permits granted under the provisions of this subsection shall be
reviewed not more than three years from the date of issuance of the permit;
unless the applicant affirmatively demonstrates that the proposed development
is proceeding in accordance with the terms of the approved schedule and
reclamation plan.
(d) In addition to those general performance standards required by this
section, when surface-mining occurs on slopes of twenty degrees or greater, or
on lesser slopes as may be defined by rule after consideration of soil and
climate, no debris, abandoned or disabled equipment, spoil material or waste
mineral matter will be placed on the natural downslope below the initial bench
or mining cut: Provided, That soil or spoil material from the initial cut of
earth in a new surface-mining operation may be placed on a limited specified
area of the downslope below the initial cut if the permittee can establish to
the satisfaction of the director that the soil or spoil will not slide and that
the other requirements of this section can still be met.
(e) The director may propose rules for legislative approval in accordance with
article three, chapter twenty-nine-a of this code, that permit variances from
the approximate original contour requirements of this section: Provided, That
the watershed control of the area is improved: Provided, however, That complete
backfilling with spoil material is required to completely cover the highwall,
which material will maintain stability following mining and reclamation.
(f) The director shall propose rules for legislative approval in accordance
with article three, chapter twenty-nine-a of this code, for the design,
location, construction, maintenance, operation, enlargement, modification,
removal and abandonment of new and existing coal mine waste piles. In addition
to engineering and other technical specifications, the standards and criteria
developed pursuant to this subsection shall include provisions for review and
approval of plans and specifications prior to construction, enlargement,
modification, removal or abandonment; performance of periodic inspections
during construction; issuance of certificates of approval upon completion of
construction; performance of periodic safety inspections; and issuance of
notices and orders for required remedial or maintenance work or affirmative
action: Provided, That whenever the director finds that any coal processing
waste pile constitutes an imminent danger to human life, he or she may, in addition
to all other remedies and without the necessity of obtaining the permission of
any person prior or present who operated or operates a pile or the landowners
involved, enter upon the premises where any coal processing waste pile exists
and may take or order to be taken any remedial action that may be necessary or
expedient to secure the coal processing waste pile and to abate the conditions
which cause the danger to human life: Provided, however, That the cost
reasonably incurred in any remedial action taken by the director under this
subsection may be paid for initially by funds appropriated to the division for
these purposes, and the sums expended shall be recovered from any responsible
operator or landowner, individually or jointly, by suit initiated by the
attorney general at the request of the director. For purposes of this
subsection "operates" or "operated" means to enter upon a
coal processing waste pile, or part of a coal processing waste pile, for the
purpose of disposing, depositing, dumping coal processing wastes on the pile or
removing coal processing waste from the pile, or to employ a coal processing
waste pile for retarding the flow of or for the impoundment of water.
§22-3-13a. Pre-blast survey requirements.
(a) At least thirty days prior to commencing blasting, as defined in section
twenty-two-a of this article, an operator or an operator’s designee shall make
the following notifications in writing to all owners and occupants of man-made
dwellings or structures that the operator or operator’s designee will perform
pre-blast surveys in accordance with subsection (f) of this section:
(1) For surface-mining operations that are less than two hundred acres in a
single permitted area or less than three hundred acres of contiguous or nearly
contiguous area of two or more permitted areas, the required notifications
shall be to all owners and occupants of man-made dwellings or structures within
five tenths of a mile of the permitted area or areas;
(2) For all other surface-mining operations, the required notifications shall
be to all owners and occupants of man-made dwellings or structures within five
tenths of a mile of the permitted area or areas or seven tenths of a mile of
the proposed blasting site, whichever is greater.
(b) Within thirty days of the effective date of this section, any operator
identified in subdivision (2), subsection (a) of this section, that has already
completed pre-blast surveys for man-made dwellings or structures within five
tenths of a mile of the permit area and has commenced operations by the
effective date of this section, shall be required to notify in writing all
additional owners and occupants or man-made dwellings or structures within
seven tenths of a mile of the proposed blasting site. Except for those dwellings
or structures for which the operator secures a written waiver or executes an
affidavit in accordance with the requirements of subsection (c) of this
section, the operator or the operator’s designee must perform the additional
pre-blast surveys in accordance with subsection (f) of this section within
ninety days of the effective date of this section.
(c) An occupant or owner of a man-made dwelling or structure within the areas
described in subdivisions (1) or (2) of subsection (a) of this section, may
waive the right to a pre-blast survey in writing. If a dwelling is occupied by
a person other than the owner, both the owner and the occupant must waive the
right to a pre-blast survey in writing. If an occupant or owner of a man-made
dwelling or structure refuses to allow the operator or the operator’s designee
access to the dwelling or structure and refuses to waive in writing the right
to a pre-blast survey or to the extent that access to any portion of the
structure, underground water supply or well is impossible or impractical under
the circumstances, the pre-blast survey shall indicate that access was refused,
impossible or impractical. The operator or the operator’s designee shall
execute a sworn affidavit explaining the reasons and circumstances surrounding
the refusals. The office of explosives and blasting shall not determine the
pre-blast survey to be incomplete because it indicates that access to a
particular structure, underground water supply or well was refused, impossible
or impractical. The operator shall send copies of all written waivers and
affidavits executed pursuant to this subsection to the office of explosives and
blasting.
(d) If a pre-blast survey was waived by the owner and was within the requisite
area and the property was sold, the new owner may request a pre-blast survey
from the operator.
(e) An owner within the requisite area may request, from the operator, a
pre-blast survey on structures constructed after the original pre-blast survey.
(f) The pre-blast survey shall include:
(1) The names, addresses or description of structure location and telephone
numbers of the owner and the residents of the structure being surveyed and the
structure number from the permit blasting map;
(2) The current home insurer of the owner and the residents of the structure;
(3) The names, addresses and telephone numbers of the surface-mining operator
and the permit number;
(4) The current general liability insurer of the surface-mining operator;
(5) The name, address and telephone number of the person or firm performing the
pre-blast survey;
(6) The current general liability insurer of the person or firm performing the
pre-blast survey;
(7) The date of the pre-blast survey and the date it was mailed or delivered to
the office of explosives and blasting;
(8) A general description of the structure and its appurtenances including, but
not limited to: (A) The number of stories; (B) the construction materials for
the frame and the exterior and interior finish; (C) the type of construction
including any unusual or substandard construction; and (D) the approximate age
of the structure;
(9) A general description of the survey methods and the direction of
progression of the survey, including a key to abbreviations used;
(10) Written documentation and drawings, videos or photographs of the pre-blast
defects and other physical conditions of all structures, appurtenances and
water sources which could be affected by blasting;
(11) Written documentation and drawings, videos or photographs of the exterior
and interior of the structure to indicate pre-blast defects and condition;
(12) Written documentation and drawings, videos or photographs of the exterior
and interior of any appurtenance of the structure to indicate pre-blast defects
and condition;
(13) Sufficient exterior and interior photographs or videos, using a variety of
angles, of the structure and its appurtenances to indicate pre-blast defects
and the condition of the structure and appurtenances;
(14) Written documentation and drawings, videos or photographs of any unusual
or substandard construction technique and materials used on the structure
and/or its appurtenances;
(15) Written documentation relating to the type of water supply, including a
description of the type of system and treatment being used, an analysis of untreated
water supplies, a water analysis of water supplies other than public utilities,
and information relating to the quantity and quality of water;
(16) When the water supply is a well, written documentation, where available,
relating to the type of well; the well log; the depth, age and type of casing
or lining; the static water level; flow data; the pump capacity; the drilling
contractor; and the source or sources of the documentation;
(17) A description of any portion of the structure and appurtenances not
documented or photographed and the reasons;
(18) The signature of the person performing the survey; and
(19) Any other information required by the chief which additional information
shall be established by rule in accordance with article three, chapter
twenty-nine-a of this code.
(g) Except for additional pre-blast surveys prepared within one hundred twenty
days of the effective date of this section, pursuant to subsection (b) of this
section, the pre-blast survey shall be submitted to the office of explosives
and blasting at least fifteen days prior to the commencement of any production
blasting. The office of explosives and blasting shall review each pre-blast
survey as to form and completeness only and notify the operator of any
deficiencies. The office of explosives and blasting shall notify the owner and
occupant of the location and availability of the pre-blast survey and a copy of
the pre-blast survey shall be provided to the owner and/or occupant upon
request.
(h) The surface-mining operator shall file notice of the pre-blast survey or
the waiver in the office of the county clerk of the county commission of the
county where the man-made dwelling or structure is located to notify the public
that a pre-blast survey has been conducted or waived. The notice shall be on a
form prescribed by the office of explosives and blasting.
(i) The chief of the office of explosives and blasting shall propose rules for
legislative approval in accordance with article three, chapter twenty-nine-a of
this code, dealing with pre-blast survey requirements and setting the
qualifications for individuals and firms performing pre-blast surveys.
(j) The provisions of this section shall not apply to the following: (1)
Underground coal mining operations; and (2) the extraction of minerals by
underground mining methods or the surface impacts of the underground mining
methods.
§22-3-22a. Blasting restrictions; site specific blasting design requirement.
(a) For purposes of this section, the term “production blasting” means blasting
that removes the overburden to expose underlying coal seams and shall not
include construction blasting.
(b) For purposes of this section, the term “construction blasting” means
blasting to develop haul roads, mine access roads, coal preparation plants,
drainage structures, or underground coal mine sites and shall not include
production blasting.
(c) For purposes of this section, the term “protected structure” means any of
the following structures that are situated outside the permit area: an occupied
dwelling, a temporarily unoccupied dwelling which has been occupied within the
past ninety days, a public building, a structure for commercial purposes, a
school, a church, a community or institutional building, a public park or a
water well.
(d) Production blasting is prohibited within three hundred feet of a protected
structure or within one hundred feet of a cemetery.
(e) Blasting within one thousand feet of a protected structure shall have a
site specific blast design approved by the office of explosives and blasting.
The site specific blast design shall limit the type of explosives and
detonating equipment, the size, the timing and frequency of blasts to do the
following:
(1) Prevent injury to persons; (2) prevent damage to public and private
property outside the permit area; (3) prevent adverse impacts on any
underground mine; (4) prevent change in the course, channel or availability of
ground or surface water outside the permit area; and (5) reduce dust outside
the permit area.
In the development of a site specific blasting plan consideration shall be
given, but is not limited to, the physical condition, type and quality of
construction of the protected structure, the current use of the protected
structure and the concerns of the owner or occupant living in the protected
structure in the blasting schedule.
(f) An owner or occupant of a protected structure may waive the blasting
prohibition within three hundred feet or the site specific restriction within
one thousand feet in writing. If a protected structure is occupied by a person
other than the owner, both the owner and the occupant of the protected
structure shall waive the blasting prohibition within three hundred feet or the
site specific restriction within one thousand feet in writing. The operator shall
send copies of all written waivers executed pursuant to this subsection to the
office of explosives and blasting. Written waivers executed and filed with the
office of explosives and blasting shall be valid during the life of the permit
or any renewals of the permit and shall be enforceable against any subsequent
owners or occupants of the protected structure.
(g) The provisions of this section shall not apply to the following: (1)
Underground coal mining operations; (2) the surface operations and surface
impacts incident to an underground coal mine; and (3) the extraction of
minerals by underground mining methods or the surface impacts of the
underground mining methods: Provided, That nothing contained in this section
shall be construed to exempt any coal mining operation from the general
performance standards as contained in section thirteen of this article and any
rules promulgated pursuant thereto.
§22-3-23. Release of bond or deposits; application; notice; duties of director;
public hearings; final maps on grade release.
(a) The permittee may file a request with the director for the release of a
bond or deposit. The permittee shall publish an advertisement regarding such
request for release in the same manner as is required of advertisements for
permit applications. A copy of such advertisement shall be submitted to the
director as part of any bond release application and shall contain a
notification of the precise location of the land affected, the number of acres,
the permit and the date approved, the amount of the bond filed and the portion
sought to be released, the type and appropriate dates of reclamation work
performed and a description of the results achieved as they relate to the
permittee's approved reclamation plan. In addition, as part of any bond release
application, the permittee shall submit copies of letters which the permittee
has sent to adjoining property owners, local government bodies, planning
agencies, sewage and water treatment authorities or water companies in the
locality in which the surface-mining operation is located, notifying them of
the permittee's intention to seek release from the bond. Any request for grade
release shall also be accompanied by final maps.
(b) Upon receipt of the application for bond release, the director, within
thirty days, taking into consideration existing weather conditions, shall
conduct an inspection and evaluation of the reclamation work involved. Such
evaluation shall consider, among other things, the degree of difficulty to
complete any remaining reclamation, whether pollution of surface and subsurface
water is occurring, the probability of continuance or future occurrence of such
pollution and the estimated cost of abating such pollution. The director shall
notify the permittee in writing of his or her decision to release or not to
release all or part of the bond or deposit within sixty days from the date of
the initial publication of the advertisement if no public hearing is requested.
If a public hearing is held, the director's decision shall be issued within
thirty days thereafter.
(c) If the director is satisfied that reclamation covered by the bond or
deposit or portion thereof has been accomplished as required by this article,
he or she may release said bond or deposit, in whole or in part, according to
the following schedule:
(1) When the operator completes the backfilling, regrading and drainage control
of a bonded area in accordance with the operator's approved reclamation plan,
the release of sixty percent of the bond or collateral for the applicable
bonded area: Provided, That a minimum bond of ten thousand dollars shall be
retained after grade release;
(2) Two years after the last augmented seeding, fertilizing, irrigation or
other work to ensure compliance with subdivision (19), subsection (b), section
thirteen of this article, the release of an additional twenty-five percent of
the bond or collateral for the applicable bonded area: Provided, That a minimum
bond of ten thousand dollars shall be retained after the release provided for
in this subdivision; and
(3) When the operator has completed successfully all surface-mining and
reclamation activities, the release of the remaining portion of the bond, but
not before the expiration of the period specified in subdivision (20),
subsection (b), section thirteen of this article: Provided, That the
revegetation has been established on the regraded mined lands in accordance
with the approved reclamation plan: Provided, however, That such a release may
be made where the quality of the untreated post-mining water discharged is
better than or equal to the premining water quality discharged from the mining
site.
No part of the bond or deposit may be released under this subsection so long as
the lands to which the release would be applicable are contributing additional
suspended solids to streamflow or runoff outside the permit area in excess of
the requirements set by section thirteen of this article, or until soil
productivity for prime farmlands has returned to equivalent levels of yield as
nonmined land of the same soil type in the surrounding area under equivalent
management practices as determined from the soil survey performed pursuant to
section nine of this article. Where a sediment dam is to be retained as a
permanent impoundment pursuant to section thirteen of this article, or where a
road or minor deviation is to be retained for sound future maintenance of the
operation, the portion of the bond may be released under this subsection so
long as provisions for sound future maintenance by the operator or the
landowner have been made with the director.
Notwithstanding the bond release scheduling provisions of subdivisions (1), (2)
and (3) of this subsection, if the operator completes the backfilling and
reclamation in accordance with an approved post-mining land use plan that has
been approved by the division of environmental protection and accepted by a
local or regional economic development or planning agency for the county or
region in which the operation is located, provisions for sound future maintenance
are assured by the local or regional economic development or planning agency,
and the quality of any untreated postmining water discharge complies with
applicable water quality criteria for bond release, the director may release
the entire amount of said bond or deposit. The director shall propose rules for
legislative approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, to govern a bond release pursuant to the
terms of this paragraph.
(d) If the director disapproves the application for release of the bond or
portion thereof, the director shall notify the permittee, in writing, stating
the reasons for disapproval and recommending corrective actions necessary to
secure said release and notifying the operator of the right to a hearing.
(e) When any application for total or partial bond release is filed with the
director, he or she shall notify the municipality in which a surface-mining
operation is located by registered or certified mail at least thirty days prior
to the release of all or a portion of the bond.
(f) Any person with a valid legal interest which is or may be adversely
affected by release of the bond or the responsible officer or head of any
federal, state or local governmental agency which has jurisdiction by law or
special expertise with respect to any environmental, social or economic impact
involved in the operation, or is authorized to develop and enforce
environmental standards with respect to such operations, has the right to file
written objections to the proposed bond release and request a hearing with the
director within thirty days after the last publication of the permittee's
advertisement. If written objections are filed and a hearing requested, the
director shall inform all of the interested parties of the time and place of
the hearing and shall hold a public hearing in the locality of the
surface-mining operation proposed for bond release within three weeks after the
close of the public comment period. The date, time and location of such public
hearing shall also be advertised by the director in a newspaper of general
circulation in the same locality.
(g) Without prejudice to the rights of the objectors, the applicant, or the
responsibilities of the director pursuant to this section, the director may
hold an informal conference to resolve any written objections and satisfy the
hearing requirements of this section thereby.
(h) For the purpose of such hearing, the director has the authority and is
hereby empowered to administer oaths, subpoena witnesses and written or printed
materials, compel the attendance of witnesses, or production of materials, and
take evidence including, but not limited to, inspections of the land affected
and other surface-mining operations carried on by the applicant in the general
vicinity. A verbatim record of each public hearing required by this section
shall be made and a transcript made available on the motion of any party or by
order of the director at the cost of the person requesting the transcript.
§22-3-24. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects in any way the rights of any person to
enforce or protect, under applicable law, the person's interest in water
resources affected by a surface-mining operation.
(b) Any operator shall replace the water supply of an owner of interest in real
property who obtains all or part of the owner's supply of water for domestic,
agricultural, industrial or other legitimate use from an underground or surface
source where the supply has been affected by contamination, diminution or
interruption proximately caused by the surface-mining operation, unless waived
by the owner.
(c) There is a rebuttable presumption that a mining operation caused damage to
an owner’s underground water supply if the inspector determines the following:
(1) Contamination, diminution or damage to an owner’s underground water supply
exists; and (2) a pre-blast survey was performed, consistent with the
provisions of section thirteen-a of this article, on the owner’s property
including the underground water supply that indicated that contamination,
diminution or damage to the underground water supply did not exist prior to the
mining conducted at the mining operation. The operator conducting the mining
operation shall: (1) Provide an emergency drinking water supply within
twenty-four hours; (2) provide a temporary water supply within seventy-two
hours; (3) provide a permanent water supply within thirty days; and (4) pay all
reasonable costs incurred by the owner in securing a water supply.
(d) An owner aggrieved under the provisions of subsections (b) or (c) of this
section, may seek relief in court or pursuant to the provisions of section
five, article three-a of this chapter.
(e) The director shall propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this code, to
implement the requirements of this section.
(f) The provisions of subsection (c) of this section shall not apply to the
following: (1) Underground coal mining operations; (2) the surface operations
and surface impacts incident to an underground coal mine; and (3) the
extraction of minerals by underground mining methods or the surface impacts of
the underground mining methods.
§22-3-30a. Blasting requirements; liability and civil penalties in the event of
property damage.
(a) Blasting of overburden and coal shall be conducted in accordance with the
rules and laws established to regulate blasting.
(b) If the division of environmental protection establishes after an inspection
that a blast was not in compliance with the regulations governing blasting
parameters and resulted in property damage to a protected structure, as defined
in section twenty-two-a of this article, other than water wells, the following
penalties shall be imposed for each permit area or contiguous permit areas
where the blasting was out of compliance:
(1) For the first offense, the operator shall be assessed a penalty of not less
than one thousand dollars nor more than five thousand dollars.
(2) For the second offense and each subsequent offense within one year of the
first offense, the surface-mining operator shall be assessed a penalty of not
less than five thousand dollars nor more than ten thousand dollars.
(3) For the third offense and any subsequent offense within one year of the
first offense, or for the failure to pay any assessment set forth within a
reasonable time established by the director, the surface-mining operator’s
permit shall be subject to an immediate issuance of a cessation order, as set
out in section sixteen of this article. The cessation order shall only be
released upon written order of the director of the division of environmental
protection when the following conditions have been met:
(A) A written plan has been established and filed with the director assuring
that additional violations will not occur;
(B) The permittee has provided compensation for the property damages or the
assurance of adequate compensation for the property damages that have occurred;
and
(C) A permittee shall provide such monetary and other assurances as the
director shall determine appropriate to compensate for future property damages.
The monetary assurances required shall be in an amount at least equal to the
amount of compensation required in paragraph (B), subdivision (3), of this
subsection.
(4) In addition to the penalties described in subdivisions (1), (2) and (3) of
this subsection, for the second and subsequent offenses on any one permitted
area regardless of the time period, the owner of the protected structure is
entitled to a rebuttable presumption that the property damage is a result of
the blast if (A) a pre-blast survey was performed and (B) the blasting site to
which the second or subsequent offense relates is within seven tenths of a mile
of the protected structure.
(5) No more than one offense shall arise out of any one shot. For purposes of
this section, “shot” means a single blasting event composed of one or multiple
detonations of explosive material, or the assembly of explosive materials for
this purpose. One “shot” may be composed of numerous explosive charges
detonated at intervals measured in milliseconds.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section,
the division of environmental protection may not impose penalties on an
operator for the violation of any rule identified in subsection (a) of this
section that is merely administrative in nature.
(d) The remedies provided in this section are not exclusive and shall not bar
an owner or occupant from any other remedy accorded by law.
(e) Where inspection by the division of environmental protection establishes
that production blasting, in violation of section twenty-two-a of this article,
was done within three hundred feet or was not site specific production blasting
within one thousand feet of any protected structure as defined in section
twenty-two-a of this article, or within one hundred feet of a cemetery, the
monetary penalties and revocation, as set out in subsection (b) of this section,
apply.
(f) All penalties and liabilities as set forth in this section shall be
assessed by the director, collected by the director and deposited with the
treasurer of the state of West Virginia, in the “general school fund”.
(g) The director shall propose rules for legislative approval pursuant to
article three, chapter twenty-nine-a of this code for the implementation of
this section.
(h) The provisions of this section shall not apply to the following: (1)
Underground coal mining operations; (2) the surface operations and surface
impacts incident to an underground coal mine; and (3) the extraction of
minerals by underground mining methods or the surface impacts of the
underground mining methods:
Provided, That nothing contained in this section shall be construed to exempt
any coal mining operation from the general performance standards as contained
in section thirteen of this article and any rules promulgated pursuant thereto.
ARTICLE 3A. OFFICE OF EXPLOSIVES AND BLASTING.
§22-3A-1. Legislative findings; policy and purposes.
(a) The Legislature declares that the establishment of an office within the
division of environmental protection to enforce blasting laws pursuant to
surface-mining within the state of West Virginia is in the public interest and
will promote the protection of the property and citizens of the state of West
Virginia without sacrificing economic development. It is the policy of the
state of West Virginia, in cooperation with other governmental agencies, public
and private organizations, and the citizens of this state, to use reasonable
means and measures to prevent harm from the effects of blasting to its property
and citizens.
(b) It is the purpose of this article to create the office of explosives and
blasting within the division of environmental protection, and to vest in the
office the authority to enforce all the rules and laws established to regulate
blasting consistent with the authority granted in this article.
2§22-3A-2. Office of explosives and blasting created; transfer of functions;
responsibilities.
(a) There is hereby created the office of explosives and blasting within the
division of environmental protection. The director shall appoint a chief to
administer the office. The chief shall serve at the will and pleasure of the director.
(b) As of the effective date of this article, the office of explosives and
blasting shall assume responsibility for the
enforcement of all the rules and laws established to regulate blasting
consistent with the authority granted in this article.
(c) Terms used in this article shall have the definitions set forth in article
three of this chapter, unless used in a context that clearly requires a
different meaning or as otherwise defined herein.
§22-3A-3. Powers and duties.
The duties of the office shall include, but are not limited to:
(a) Regulating blasting on all surface-mining operations;
(b) Implementing and overseeing the pre-blast survey process, as set forth in
section thirteen-a, article three of this chapter;
(c) Maintaining and operating a system to receive and address questions,
concerns and complaints relating to mining operations.
(d) Setting the qualifications for individuals and firms performing pre-blast
surveys;
(e) The education, training, examination and certification of blasters; and
(f) Proposing rules for legislative approval pursuant to article three, chapter
twenty-nine-a of this code for the implementation of this article.
§22-3A-4. Legislative rules on surface-mining blasting; disciplinary procedures
for certified blasters.
(a) The office of explosives and blasting shall propose rules for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code, for the purposes of implementing this article. The
rules shall include, but not be limited to, the following:
(1) A procedure for the review, modification and approval, prior to the
issuance of any permit, of any blasting plan required to be submitted with any
application for a permit to be issued by the director pursuant to article three
of this chapter, which sets forth procedures for the inspection and monitoring
of blasting operations for compliance with blasting laws and rules, and for the
review and modification of the blasting plan of any operator against whom an
enforcement action is taken by the division of environmental protection;
(2) Specific minimum requirements for pre-blast surveys, as set forth in
section thirteen-a, article three of this chapter;
(3) A procedure for review of pre-blast surveys required to be submitted under
section thirteen-a, article three of this chapter;
(4) A procedure for the use of seismographs for production blasting which shall
be made part of the blasting log;
(5) A procedure to warn of impending blasting to the owners or occupants
adjoining the blasting area;
(6) A procedure to limit the type of explosives and detonating equipment, the
size, the timing and frequency of blasts based upon the physical conditions of
the site so as to: (A) Prevent injury to persons; (B) prevent damage to public
and private property outside the permit area; (C) prevent adverse impacts on
any underground mine; (D) prevent change in the course, channel or availability
of ground or surface water outside the permit area; and (E) reduce dust outside
the permit area;
(7) Provisions for requiring mining operators to publish the planned blasting
schedule in a newspaper of general circulation in the locality of the mining
operation; and
(8) Provisions for requiring mining operators to provide adequate advance
written notice of the proposed blasting schedule to local governments, owners
and occupants living within the distances prescribed in subsection (a), section
thirteen-a, article three of this chapter.
(b) The office of explosives and blasting shall propose rules for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code. The rules shall include, but not be limited to, the
following:
(1) Provisions for establishing a process for the education, training,
examination and certification of blasters working on surface-mining operations;
and
(2) Provisions for establishing disciplinary procedures for all certified
blasters responsible for blasting on surface-mining operations conducted within
this state in violation of any law or rule promulgated by the division of
environmental protection to regulate blasting.
§22-3A-5. Claims process.
(a) The office of explosives and blasting shall establish and manage a process
for the filing, administration and resolution of claims related to blasting.
(b) Claims which may be filed and determined under the provisions of this
section shall be those arising from both of the following: (1) Damage to
property arising from blasting activities conducted pursuant to a permit
granted under article three of this chapter; and
(2) The damage is incurred by a claimant who is the owner or occupant of the
property.
(c) The claims process established by the office of explosives and blasting
shall include the following:
(1) An initial determination by the office of the merit of the claim; and
(2) An arbitration process whereby the claim can be determined and resolved by
an arbitrator in a manner which is inexpensive, prompt and fair to all parties.
The office shall propose rules for legislative approval in accordance with
article three, chapter twenty-nine-a of this code for the development of
standards for establishing rules relating to the initial claim determination
and the arbitration process provided in this subsection.
(d) If the operator disagrees with the initial determination made by the office
and requests arbitration, then the following shall apply:
(1) Any party may be represented by a representative of their choice;
(2) At the request of the claimant, the office shall provide the claimant with
representation in the arbitration process, which representation shall not
necessarily be an attorney-at-law; and
(3) If the claim is upheld in whole or in part, then the operator shall pay the
costs of the proceeding, as well as reasonable representation fees and costs of
the claimant, in an amount not to exceed one thousand dollars.
(e) Participation in the claims process created by this section shall be
voluntary for the claimant. However, once the claimant has submitted a claim
for determination under the provisions of this section, it is intended that the
finding of the office, if not taken to arbitration, shall be final. If
arbitration is requested, it is intended that the results of such arbitration
shall be final. The office shall provide written notification to the claimant
of the provisions of this subsection and shall secure a written acknowledgment
from the claimant prior to processing a claim pursuant to the provisions of
this section.
(f) The operator shall pay any claim for which the operator is adjudged liable
within thirty days of a final determination. If the claim is not paid within
thirty days, the director shall issue a cessation order pursuant to section
sixteen, article three of this chapter for all sites operated by the operator.
(g) No permit to mine coal shall be granted unless the permit applicant agrees
to be subject to the terms of this section.
(h) To fulfill its responsibilities pursuant to this section, the office may
retain the services of inspectors, experts and other persons or firms as may be
necessary.
§22-3A-6. Rules, orders and permits to remain in effect; proceedings not
affected.
(a) All orders, determinations, rules, permits, grants, contracts,
certificates, licenses, waivers, bonds, authorizations and privileges which
have been issued, made, granted or allowed to become effective prior to the
enactment of this article shall remain in effect according to their terms until
modified, terminated, superseded, set aside or revoked pursuant to this
article, by a court of competent jurisdiction, or by operation of law.
(b) Any proceedings, including notices of proposed rule-making, or any
application for any license, permit or certificate pending before the division
are not affected by this enactment.
§ 22-3A-7. Funding.
(a) The office shall assess each operator permitted under the provisions of
this chapter a fee on each quantity of explosive material used for any purpose
on the surface-mining operations.
(b) The office shall propose a legislative rule for promulgation in accordance
with article three, chapter twenty-nine-a of this code, establishing the fees
required by this section. The fees shall be calculated to generate sufficient
money to provide for the operation of this office and the office of coalfield
community development as provided for in article two-a, chapter five-b of this
code.
(c) The office shall deposit all moneys received from these fees into a special
revenue fund to be known as the “mountaintop removal fund” in the state
treasury to be expended by the offices in the performance of their duties. The
expenditure of moneys in the fund is not authorized from collections, but shall
be appropriated by the Legislature.
§22-3A-8. Transfer of personnel and assets.
The director shall transfer to the office any personnel and assets presently
used to perform or used in the performance of the duties and functions required
by this article.
§22-3A-9. Limitation of article.
Except for sections five and seven of this article, all provisions of this
article are also applicable to surface-blasting activities related to
underground mining operations.
§22-3A-10. Office to conduct study.
(a) The office shall conduct or participate in studies or research to develop
scientifically based data and recommendations of the following:
(1) Ground vibrations associated with blasting and how the vibrations impact
protected structures;
(2) The proper size and shot parameters to assure protection of protected
structures;
(3) The necessity of expanding the parameters where blasting is prohibited in
relation to protected structures to assure that the shots do not cause damage
to protected structures;
(4) The appropriateness of modifying pre-blast survey requirements that reflect
a pattern of excessive ground vibration and air blast has occurred within a
measured distance;
(5) Analysis of the appropriate air blast limitations to determine damage
criteria; and
(6) Any other data or recommendations the office deems appropriate.
(b) The office shall report the data and recommendations to the joint committee
on government and finance on or before the first day of January, two thousand
one, and annually thereafter or as otherwise required.
§22-3A-11. Termination of office.
The office of explosives and blasting is continued until the first day of July,
two thousand two, pursuant to the provisions of article ten, chapter four of
this code.
ARTICLE 11. WATER POLLUTION CONTROL ACT.
§22-11-7a. Certification agreements; required provisions; effective date.
(a) Any applicant for the water quality certification that seeks certification
of activities covered by the United States army corps of engineers permits
issued in accordance with 33 U.S.C. §1344 and 33 C.F.R. Parts 323 or 330 for
use at or in conjunction with a surface coal mining operation as defined in
section three, article three of this chapter, certification may be issued
subject to the following conditions:
(1) If the applicant's surface coal mining operation will not impact waters of
the state designated as national resource waters and streams where trout
naturally reproduce and will not impact wetlands of the state in a manner
inconsistent with all applicable state or federal standards as the case may be,
as required by the federal Clean Water Act, and if the watershed above the toe
of the farthest downstream permanent structure authorized pursuant to the
United States army corps of engineers permits issued in accordance with 33
U.S.C. §1344 and 33 C.F.R. Parts 323 or 330 is less than two hundred fifty
acres, then the director may issue a water quality certification pursuant to
the requirements of this section. If the watershed above the toe of the
farthest downstream permanent structure impacted is equal to or greater than
two hundred fifty acres, the director shall require that mitigation be
undertaken. Additionally, the director may require mitigation for temporary
impacts to waters of the state as specified in subdivision (2) of this
subsection.
(2) If the watershed above the toe of the farthest downstream permanent
structure authorized pursuant to the United States army corps of engineers
permits issued in accordance with 33 U.S.C. §1344 and 33 C.F.R. Parts 323 or
330 is greater than or equal to two hundred fifty acres and all other necessary
requirements are met consistent with this section, the director shall further
condition a water quality certification on a requirement that the applicant
mitigate the expected water quality impacts under the following conditions:
(A) The water quality certification may require mitigation at a ratio
appropriate to the type of waters impacted, consistent with state or federal
standards as required by the federal Clean Water Act, for the types and
locations of waters impacted;
(B) For waters of the state isolated as a result of a permanent structure, the
maximum mitigation ratio shall be five-tenths acre of mitigation area for every
one acre of those isolated waters; (C) The director may accept mitigation on
the permitted area, mitigation off the permitted area, mitigation banking of
waters of the state, or any combination thereof, or any other mitigation
measure acceptable to the director; and
(D) Upon completion of the work required by an agreement to conduct operations
authorized by this subsection the surface coal mining operation shall obtain a
certification from a registered professional engineer that all mitigation work
specified in the agreement has been completed in accordance with the conditions
of the water quality certification. The director shall promptly review the
certification and provide to the surface coal mining operation with notice that
all mitigation work has been successfully completed, or that further mitigation
work is necessary to meet the conditions imposed by the water quality
certification. The mitigation amount may not exceed two hundred thousand
dollars per acre of stream disturbed above the toe of the farthest downstream
permanent structure. Those moneys shall be deposited in the stream restoration
fund under the jurisdiction of the division of environmental protection and any
expenditures from this fund after the thirtieth day of June, one thousand nine
hundred ninety-eight, shall not be authorized from collections but shall only
be authorized by appropriation by the Legislature. Additionally, the
expenditures are only authorized in those counties where the activity leading
to the mitigation occurred or in those counties adjacent to the counties where
the activity leading to the mitigation occurred. The director shall by the
thirty-first day of December of each year provide a report to the joint
committee on government and finance on receipts and expenditures from the
stream restoration fund, the number of acreage reclaimed by the division
through the use of these funds and the effectiveness of achieving stream
restoration through the payment of the mitigation amounts into the fund in lieu
of reclamation by the certificate holder.
(3) The director shall confer with representatives of the surface coal mining
industry and representatives of environmental organizations with an interest in
water quality in developing a manual of approval options for mitigation on
permitted areas, mitigation off permitted areas and mitigation involving
banking of waters of the state.
(4) The proposed surface coal mining operation shall comply with all applicable
state and federal laws, rules and regulations. (5) The director shall propose
rules for legislative approval in accordance with article three, chapter
twenty-nine-a of this code, for the purpose of implementing the provisions of
this section which rules shall include, but not be limited to, the following:
(A) Establishing all necessary operational and performance requirements for an
operator undertaking activities covered by this section;
(B) Modifying the provisions of this section, when necessary and appropriate to
bring the provisions of this section into compliance with state or federal law
or regulation; and
(C) Establishing the specific operational requirements for mining operations
consistent with this section appropriate to protect the waters of this state
during and following mining operations.
(b) The joint committee on government and finance may undertake or facilitate a
study of the impact of mountaintop mining and valley fills upon the state of
West Virginia.
(1) To facilitate the study, the joint committee on government and finance is
further authorized to coordinate with and seek funding from appropriate federal
agencies to facilitate the study including, but not limited to: The
environmental protection agency, army corps of engineers, office of
surface-mining and the fish and wildlife service.
(2) In order to facilitate the research, the joint committee on government and
finance shall appoint a council to coordinate and direct the research. The
composition of the council shall be determined by the joint committee, but
shall include representatives from the various interested parties as determined
solely by the joint committee.
