§22-4 quarry reclamation act chapter 22. … act.pdfa abandoned quarry lands does not mean a quarry...

§22-4 "Quarry Reclamation Act"

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CHAPTER 22. ENVIRONMENTAL RESOURCES.ARTICLE FOUR. QUARRY RECLAMATION ACT.

§22-4-1. Short title.

This article shall be known and may becited as the "Quarry Reclamation Act."

§22-4-2. Legislative findings.

The Legislature finds that: The extractionof noncoal minerals by quarrying is a basic,essential and vital industry making an importantcontribution to the economic well-being of WestVirginia. From the small family-owned chert pitto the multinational limestone quarry, quarryaggregate production plays a vital role in WestVirginia's economy and the quality of life for itsresidents; it is in the public interest to insure theavailability and orderly development of mineralresources; aggregate minerals are necessarycomponents in many construction activities,without fine and coarse aggregates, it would beimpossible to build or maintain the stateroadways and airports, with every type ofsignificant construction activity being dependanton the availability and reasonable costs ofaggregate minerals and aggregate mineralproducts; it is not practical to extract mineralsrequired by our society without disturbing thesurface of the earth and producing wastematerials, and the very character of quarryoperations precludes complete restoration of theland to its original condition.

This article also provides requirementsintended to protect wildlife and prevent thepollution to the environment surroundingquarries, including rivers, streams, groundwater,aquifers and lakes, to prevent and eliminatehazards to health and safety, to protect allproperty owners" property rights, and to providefor reclamation of quarried areas so as to assurethe continued use and enjoyment of these landsafter quarrying is completed;

Further, certain areas in the state areinappropriate for quarry mining while in mostlocations of West Virginia, quarrying can be

conducted in a fashion to prevent theseundesirable conditions, while allowing formining of valuable minerals. Therefore, theLegislature finds that the quarrying of mineralsand reclamation of quarry lands as provided bythis article will allow the use of valuableminerals and will provide for the protection ofthe state's environment and for the subsequentbeneficial use of the quarry and reclaimed land.

§22-4-3. Definitions.

Unless the context in which it is usedclearly requires a different meaning, as used inthis article:

(1) "Abandoned quarry" or "abandonedquarry lands" means:

(A) A quarry which was operated andabandoned without proper reclamation prior tothe effective date of this article; or

(B) A permitted quarry where no mineralhas been produced or overburden removed for aperiod of at least six months and the permitteehas vacated the site covered by the permitwithout having complied with all of therequirements of the permit.

A abandoned quarry lands does not mean aquarry which has been granted inactive status bythe director and does not mean a quarry whichhas ceased operations and is in the process ofstabilization and reclamation.

(2) "Backfill" means overburden, dirt, rockor other materials that are used as fill material toreduce steepness of slopes or to fill holes,depressions or excavations.

(3) "Berm" means a type of fill or pile usedfor a specific purpose other than excess spoildisposal; such purposes may include, but notnecessarily be limited to drainage control,screening for noise control, screening foraesthetic value, or safety barriers; provided,


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however, that a berm of ten vertical feet or moreat any point shall be designed and theconstruction certified by an approved person andprovided further that any berm consisting ofgreater than twenty percent fines or nondurablerock must be protected from wind and watererosion.

(4) "Borrow pit" means an area from whichsoil or other materials are removed to be used,without further processing, as fill for activitiessuch as landscaping, building construction orhighway maintenance and construction.

(5) "Critical gradient" means the maximumstable inclination of an unsupported slope asmeasured from a horizontal plane.

(6) "Director" means the director of thedivision of environmental protection and his orher authorized agents.

(7) "Disturbed area" means the land areafrom which the mineral is removed by quarryingand all other land area in which the natural landsurface has been disturbed as a result of orincidental to quarrying activities of the operator,including private ways and private roadsappurtenant to the area, land excavations,workings, refuse piles, product stockpiles, areasgrubbed of vegetation, overburden, piles andtailings. The term does not includemanufacturing sites or reclaimed quarry areas.

(8) "Division" means the division ofenvironmental protection.

(9) "Fill" means a side of hill fill or valleyfill.

(10) "Inactive operation" means either:

(A) A permitted site where active work hasceased temporarily due to weatherconditions, market conditions or otherreasonable cause; or

(B) A permitted site where active quarryinghas not yet begun.

(11) "Manufacturing" means the process ofconverting raw materials to salable products butdoes not include crushing or screening ofminerals undertaken in close proximity to activequarrying operations.

(12) "Manufacturing site" means an area ofland on which manufacturing occurs andassociated areas.

(13) "Minerals" means natural deposits ofcommercial value found on or in the earth,whether consolidated or loose, including clay,flagstone, gravel, sand, limestone, sandstone,shale, chert, flint, dolomite, manganese, slate,iron ore and any other metal or metallurgicalore. The term does not include coal or topsoil.

(14) "Mulch" means any natural or plantresidue, organic or inorganic material, applied tothe surface of the earth to retain moisture andcurtail or limit soil erosion.

(15) "Operator" means a person whoengages in any activities regulated by this articleand any rules promulgated hereunder, who as aresult is required to hold a permit pursuant to theprovisions herein.

(16) "Permit area" means the area of landindicated on the approved map submitted by thepermittee and designated in the permit includingthe location of end strip markers, permit markersand monuments.

(17) "Permittee" means any person whoholds a valid permit issued by the division toconduct quarrying activities pursuant to thisarticle".

(18) "Person" means any individual,partnership, firm, society, association, trust,corporation, other business entity or any agency,unit or instrumentality of federal, state or localgovernment.

(19) "Protected structure" means any of thefollowing structures that are situated outside thepermit area: a occupied dwelling, a temporarilyunoccupied dwelling which has been occupiedwithin the past ninety days, a public building, a


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structure for commercial purposes, a school, achurch, a community or institutional building, apublic park, spring box or, water well.

(20) "Quarrying" means any breaking of theground surface in order to facilitate theextraction of minerals. Quarrying also includesany activity constituting all or part of a processfor mineral extraction or removal from theiroriginal location as well as adjacent areasancillary to the operation, including preparationand processing activities, storage areas andhaulage ways, roads and trails. The term"quarrying" does not apply to manufacturingoperations, including those operations adjacentto the permitted area where manufacturing isconducted.

(21) "Reclamation" means returningdisturbed areas to a stable condition which doesnot create health or safety hazards or adverseenvironmental impact, and when appropriate orrequired by permit, returning disturbed quarryareas to a designated postmining land use.

(22) "Side of hill fill" means overburden,dirt or rock that is placed on a natural slope ofmore than twenty degrees.

(23) "Spoil pile" means overburden andwaste material displaced by excavatingequipment or other methods and placed onnatural ground with an original slope of zerodegrees to twenty degrees.

(24) "Surface of regraded bench" means thetop portion or part of any regraded area.

(25) "Unreclaimed" means land which hasnot been stabilized, or if a permit has beenissued pursuant to this enactment, land that hasnot been rehabilitated to a useful purpose inaccordance with the quarrying and reclamationplan approved by the division.

(26) "Valley fill" means a fill structureconsisting of material placed in a valley wherethe natural side slopes measured at the steepestpoint are greater than twenty degrees or theaverage slopes measured at the steepest point aregreater than twenty degrees or the average

slopes or the profile of the hollow are greaterthan twenty degrees.

§22-4-4. Director of the division ofenvironmental protection; powers and duties.

The director of the division ofenvironmental protection is vested withjurisdiction over all aspects of quarrying andwith jurisdiction and control over land, waterand soil aspects pertaining to quarry operations,and the restoration and reclamation of quarriesand areas affected thereby. This article does notaddress coal mining activities unless covered bysub-division (2), subsection (u), section three,article three of this chapter.

In addition to any other powers or dutiesheretofore or hereinafter granted, the directorhas the following powers and duties:

(a) To control and exercise regulatoryauthority over all quarry operations in this stateand enforce the provisions of this article;

(b) To employ all necessary personnel tocarry out the purposes and requirements of thisarticle;

(c) To propose any necessary legislativerules, in accordance with the provisions ofchapter twenty-nine-a of this code to implementthe provisions of this article; and

(d) To make investigations and inspectionsnecessary to ensure compliance with theprovisions of this article.

(e) Nothing in this article may be construedas vesting in the directorthe jurisdiction to adjudicate property-rightsdisputes.

§22-4-5. Quarry permit requirements.

(a) It is unlawful for any person to engagein quarrying without having first obtained fromthe division a permit as required by this article.The application shall fully state the informationrequired by the director. Each new quarrypermit shall be issued for a term of five years


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and is renewable for subsequent terms of fiveyears. The director may grant an administrativeextension of an existing permit for a period notto exceed one year. The application may be inwriting and on a form prepared and furnished bythe division, or the application may be submittedelectronically. Applicants shall verify electronicsubmissions by signed affidavit.

(b) The application shall include thefollowing information:

(1) The names and addresses of theapplicant and every officer, partner, director,owner of the applicant;

(2) The names and mailing addresses of anyperson owning of record or beneficially tenpercent or more of any class of stock of theapplicant;

(3) The name of any person listed insubdivision (1) or (2) of this subsection who hasever had a quarry permit revoked or had a quarrybond forfeited;

(4) The names and addresses of the ownersof the surface of the land to be quarried;

(5) The names and addresses of the ownersof the mineral to be quarried;

(6) The source of the applicant's legal rightto conduct quarrying on the land to be coveredby the permit;

(7) A pre-quarry water assessment toestablish the base level quality and quantity asprovided in section fourteen of this article;

(8) The number of acres to be included inthe permit area;

(9) A list of other quarrying permitspreviously or currently held by the applicant, bylocation and permit number, and any other typeof mining permits being applied for or currentlyheld by the applicant;

(10) The common name and geologic title,where applicable, of the mineral or minerals tobe extracted;

(11) Provide proof of adequate insurance asrequired by this article;

(12) A quarrying and reclamation plan as isrequired by section seventeen of this article;

(13) Any other information required by thedirector reasonably necessary to effectuate thepurposes of this article.

(c) The application for a permit shall beaccompanied by copies of an enlarged UnitedStates geological survey topographic mapmeeting the requirements of the subdivisionsbelow. Aerial photographs of the area areacceptable if the plan for reclamation can beshown to the satisfaction of the director.Attendant documentation must include:

(1) A map prepared and certified by orunder the supervision of a registeredprofessional civil engineer, or a registeredprofessional mining engineer, or a licensed landsurveyor, who shall submit to the director acertificate of registration as a qualified engineeror land surveyor, and be in a scale approved bythe director;

(2) Identify the area to correspond withapplication;

(3) Show probable limits of adjacentunderground mining operations, probable limitsof adjacent inactive or mined-out areas and theboundaries of surface properties and names ofsurface and mineral owners f the surface areawithin five hundred feet of any part of theproposed disturbed area;

(4) Show the base of the crop line,including appropriate geologic cross sections,regrading cross sections and attendantnarratives;

(5) Show the names and locations ofstreams, creeks, tributaries or bodies of publicwater, roads, buildings, cemeteries, active,


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abandoned or plugged oil and gas wells, andutility lines on the area of land to be disturbedand within five hundred feet of such area;

(6) Show by appropriate markings theboundaries of the area of land to be disturbedand the total number of acres involved in thearea of land to be disturbed;

(7) The date on which the map wasprepared, the north point, and the longitude andlatitude of the operation;

(8) Show the drainage plan on and awayfrom the area of land to be disturbed. Such planshall indicate the directional flow of water,constructed drainage systems, natural waterwaysused for drainage, and the streams or tributariesreceiving or to receive this discharge. Uponreceipt of such drainage plan, the director mayfurnish the office of water resources of thedivision a copy of all information required bythis subdivision, as well as the names andlocations of streams, creeks, tributaries or bodiesof public water within five hundred feet of thearea to be disturbed;

(9) Show the presence of known acid-producing materials which when present in theoverburden, may cause spoil with a pH factorbelow 5.5, preventing effective revegetation.The presence of such materials, whereveroccurring in significant quantity, shall beindicated on the map, filed with the applicationfor permit. The operator shall also indicate themanner in which acid-bearing spoil will besuitably prepared for revegetation andstabilization, whether by application of mulch orsuitable soil material to the surface or by someother type of treatment, subject to approval ofthe director.

(10) The operator shall also indicate themanner in which all permanent disposal siteswill be stabilized.

(11) The certification of the maps shall readas follows: "I, the undersigned, hereby certifythat this map is correct, and shows to the best ofmy knowledge and belief all the informationrequired by the quarrying laws of this state."

The certification shall be signed and notarized.The director may reject any map as incompleteif its accuracy is not so attested.

(d) Each applicant shall secure aperformance bond or other appropriate financialassurance and insurance as required by thisarticle.

(e) A permit may cover more than one tractof land, if the tracts are adjacent or part of thesame quarrying complex, and described in theapplication.

(f) If a permittee has more than one permitat any quarrying site at an adjacent, or the samequarrying complex, and if the director deemsappropriate, permits may be consolidated intoone permit at the request of the permittee.

(g) A permit remains valid until quarryingis completed and the final inspection and reportare approved or until the permit is revoked bythe director.

(h) All underground quarry operationswhich disturb more than five acres of surfacemust obtain a quarry permit, includingunderground quarry operations located on morethan one tract of land, if the tracts are adjacent orpart of the same mining complex and the totaldisturbed area exceeds more than five acres.Those underground operations which disturbless than five acres of surface must:

1) File a notice of intent to operate with thedirector at least sixty days prior to disturbance.The notice of intent to operate shall be made inwriting on forms prescribed by the director andshall be signed and verified by the operator.This notice shall include the informationrequired by subdivisions (1) though (11) andsubdivision (13) of subsection (b) of thissection;

(2) The applicant shall publish a notice ofintent to operate as a Class III legaladvertisement in accordance with the provisionsof article three, chapter fifty-nine of this code.The notice shall contain, in abbreviated form,the following:


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(A) The name and address of the operator;

(B) The name and addresses of the surfaceand mineral owners;

(C) That written comments on theapplication will be accepted until a specifieddate, within thirty days after the first date ofpublication of the notice;

(D) A description of the general area wherethe quarry will be located;

(E) The address of the office of the divisionto submit written comments.

(3) The director shall issue a decision toapprove or deny the notice of intent to operate,within thirty days of close of the publiccomment period, unless the period is extendedby the director to receive additional applicationinformation. The director may deny or limitpermission to operate upon the finding that theunderground quarry will cause serious adverseenvironmental impacts pursuant to section sevenor eight of this article.

(4) A minimum of a ten thousand dollarperformance bond is required for eachunderground mining intent to operate. Thisperformance bond shall be released if thepermittee has complied with all permitrequirements and has begun undergroundmining. Underground mining must begin withintwo years of receipt of a notice of intent tooperate.

§22-4-6. Application review, public notice andcomment, and permit approval.

(a) The director shall, upon receipt of anapplication for a permit, determine if theapplication is complete and contains theinformation required in the application. Thedirector has thirty days to review the applicationfor technical completeness. An application iscomplete when all required information has beensubmitted to the director. If the application isdetermined incomplete, the applicant shall benotified with written comments stating the

deficiencies. If the director finds theapplication has technical deficiencies or otherinadequacies which require further information,the thirty-day review period shall be interruptedon the date the notice is mailed to the applicant,and the time period shall resume upon receipt ofthe corrected and complete application. Shouldthe applicant disagree with a decision of thedirector, the applicant may, by written notice,request a hearing before the director. Thedirector shall hold the hearing within thirtycalendar days of receipt of this notice. When ahearing has been held, the director shall notifythe applicant of the decision by certified mailwithin twenty days of the hearing. An applicantaggrieved by a final order of the director may,after the hearing or without a hearing, appeal theorder to the surface mine board. Any appeal tothe board shall be taken without prejudice by thedirector in the final review of a permitapplication.

(b) Upon the director's determination thatan application is complete, the applicant shallpublish a notice of the application for a permit asa Class III legal advertisement in accordancewith the provisions of article three, chapter fifty-nine of this code. The notice shall contain, inabbreviated form, the information required in theapplication. The notice shall state that writtencomments on the application will be accepteduntil a specified date, within thirty days after thefirst date of publication of the notice. The noticeshall also state that a copy of the completeapplication including the quarrying andreclamation plans and maps will be available forpublic inspection during the public commentperiod at the office of the county clerk in thecounty or counties in which the proposed permitarea is located. The publication area of thenotice required by this section is the county orcounties in which any portion of the proposedpermit area is located. The cost of allpublications required by this section shall be theresponsibility of the applicant.

(c) Prior to approval of any quarry miningpermit, the division shall upon receipt of awritten request of a person having expressedconcern or objections to the proposed permit,cause a public hearing to be held in the locality


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where the quarry operation is proposed to belocated for the purpose of receiving commentregarding the expected or perceived impacts ofthe quarry operation on the local area: Provided,That no public hearing is required for a notice ofintent to operate an underground quarry with asurface disturbance less than five acres.

(d) The director shall receive and fullyconsider evidence or comments submittedduring the public comment period by anymember of the public.

(e) Within thirty days of close of the publiccomment period, upon the determination by thedirector that proper public notice has been givenand comment has been received by the agency,and that the quarrying operation will beconducted consistent with the requirements ofthis article, then the director shall issue a quarrypermit to the applicant.

(f) The director, upon receipt of commentsexpressing substantial new questions regardingthe application, may reopen the public commentperiod.

§22-4-7. Denial of quarry permit.

(a) The director may deny a permitapplication, modification or transfer for one ormore of the following reasons:

(1) Any requirement of federal or stateenvironmental law, rule or regulation would beviolated by the proposed permit.

(2) The proposed quarry operation will belocated in an area in the state which the directorfinds ineligible for a permit pursuant to sectioneight.

(3) The applicant or any person required tobe listed on the application pursuant to sectionfive of this article has not corrected all violationsof any prior permit issued pursuant to this articlewhich resulted in:

(A) Revocation of a permit;

(B) Cessation of the operation by order ofthe director;

(C) Forfeiture of all or part of the permitbond or other surety; or

(D) A court order issued against theapplicant related to mining or quarrying;

(E) The applicant or any person required tobe listed on the application pursuant to sectionfive of this article has not paid all fines or feesassessed by the agency or by court judgmentimposed pursuant to the provisions of thisarticle.

(b) An applicant whose application for apermit, modification or transfer was denied maypetition the director for review of the denialdecision. The director, in his or her discretion,may approve an application which waspreviously denied because of a past permitrevocation or forfeiture if the person whosepermit was revoked or bond forfeited pays intothe abandoned quarry reclamation fund anamount determined by the director as adequateto reclaim the area disturbed under the priorpermit or completes reclamation of site uponwhich the permit or bond was revoked orforfeited, and demonstrates to the director'ssatisfaction that he or she will comply with thisarticle and rules promulgated thereunder.

(c) The director may approve a portion of apermit area upon a finding that approval of theentire permit area would otherwise be deniedpursuant to the provisions of this

Section.§22-4-8. Limitations; mandamus.

The Legislature finds that there are certainareas in the state of West Virginia which areimpossible to reclaim either by natural growth orby technological activity and that if quarrying isconducted in these certain areas such operationsmay naturally cause stream pollution, landslides,the accumulation of stagnant water, flooding, thedestruction of land for agricultural purposes, thedestruction of aesthetic values, the destruction ofrecreational areas and future use of the area andsurrounding areas, thereby destroying or


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impairing the health and property rights ofothers, and in general creating hazardsdangerous to life and property so as to constitutean imminent and inordinate peril to the welfareof the state, and that such areas shall not bemined by the surface-mining process.

Therefore, authority is hereby vested in thedirector to delete certain areas from all quarryingoperations.

No application for a permit shall beapproved by the director if there is found on thebasis of the information set forth in theapplication or from information available to thedirector and made available to the applicant thatthe requirements of this article or rules hereafteradopted will not be observed or that there is notprobable cause to believe that the proposedmethod of operation, backfilling, grading orreclamation of the affected area can be carriedout consistent with the purpose of this article.

If the director finds that the overburden onany part of the area of land described in theapplication for a permit is such that experiencein the state of West Virginia with a similar typeof operation upon land with similar overburdenshows that one or more of the followingconditions cannot feasiblely be prevented: (1)Substantial deposition of sediment in streambeds; (2) landslides; or (3) acid-water pollution,the director may delete such part of the landdescribed in the application upon which suchoverburden exists.

If the director finds that the operation willconstitute a hazard to a dwelling house, publicbuilding, school, church, cemetery, commercialor institutional building, public road, stream,lake or other public property, then he or sheshall delete such areas from the permitapplication before it can be approved.

The director shall not give approval toquarry within one hundred feet of any publicroad, stream, lake, or state, national or interstatepark or other public property, and shall notapprove the application for a permit where thequarry operation will cause adverse affects tothese locations unless adequate screening and

other measures approved by the director are tobe utilized and the permit application soprovides: Provided, That the one-hundred-footrestriction does not include berms, drainagecontrol structures and ways used for ingress andegress to and from the minerals as hereindefined and the transportation of the removedminerals, nor does it apply to the dredging andremoval of minerals from the streams orwatercourses of this state. The one hundred footlimitation may be waived only when thedirector, upon consideration of local land uses,finds that the land use of and near the permittedarea will be significantly enhanced by analteration of the topography within the onehundred foot barrier. Mineral removal shall beprohibited within twenty-five feet of all propertylines: Provided, however, That the twenty-fivefoot setback area may, where appropriate, beused for tree planting, berms, visual barriers,vegetation, drainage structures, access rights ofway or any other purposes approved by thedirector: Provided further, That existing berms,barriers, stockpiles, roads and other structures inexistence within the twenty-five foot setbackprior to the effective date of this section mayremain in place. The permittee must provideadequate revegetation within the setback, as isappropriate for the intended use.

Whenever the director finds that ongoingquarry operations are causing or are likely tocause any of the conditions set forth in the firstparagraph of this section, he or she may orderimmediate cessation of such operations and heor she shall take such other action or make suchchanges in the permit as he or she may deemnecessary to avoid said described conditions.

The failure of the director to discharge themandatory duty imposed by this section issubject to a writ of mandamus, in any court ofcompetent jurisdiction by any private citizenaffected thereby.

§22-4-9. Permit renewals and revisions.

(a) Any valid permit issued pursuant to thisarticle carries with it the right of successiverenewal upon expiration with respect to areaswithin the boundaries of the existing permit. All


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permittees shall publish a Class I legaladvertisement in accordance with the provisionsof article three, chapter fifty-nine of this code.

(b) If an application for renewal of a validpermit includes a proposal to extend the quarrymining operation beyond the boundariesauthorized in the existing permit, that portion ofthe application for renewal which addresses anynew land area is subject to the requirements forpermit modifications as provided in section tenof this article. Application for permit renewalshall be made at least one hundred twenty daysprior to the expiration of the valid permit.

§22-4-10. Modification of permits.

(a) Prior to expanding or otherwise alteringquarrying operations beyond the activitiesauthorized under an existing quarry permit, apermittee shall obtain approval for modificationfrom the director. The application shall be inwriting on forms provided by the division, or theapplication may be submitted electronically.Applicants shall verify electronic submissionsby signed affidavit. Information that remainsunchanged from the initial application is notrequired to be resubmitted. A permit may bemodified in any manner, so long as the directordetermines that the modification fully meets therequirements of all applicable federal and statelaw, regulations and rules, and that themodifications would be consistent with theissuance of the original permit.

(b) No modification of a permit which hasbeen approved by the director becomes effectiveuntil any required changes have been made inthe performance bond or other security postedunder the provisions of sections twenty ortwenty-two of this article to assure theperformance of obligations assumed by thepermittee under the permit and the quarrying andreclamation plan.

(c) A minor permit modification is one inwhich the proposed modification would notcause a significant departure from the terms andconditions of the existing permit and would notresult in a significant impact to the environmentor to nearby property.

(d) An application for a minor permitmodification shall require information related tothe modification, any impact it may have on theoriginal permit area and adjacent property,quarrying and reclamation plans, and any otherinformation deemed necessary by the director.An application for a minor permit modificationrequires public notice, but does not require apublic hearing.

(e) Any application for a permitmodification that is not a minor permitmodification is a major permit modification. Anapplication for a major permit modification mustmeet the same requirements as for a new permitapplication. Modification of a buffer zone of aquarry operation is always a major modification.

(f) The director shall act upon theapplication for a permit modification pursuant tothe provisions of subsection (a) of section six ofthis article.

(g) The director may deny the applicationfor a permit modification for the reasons andunder the stated procedure as for new permits setforth in sections seven and eight of this article.

§22-4-11. Transfer of permits.

(a) When the interest of a permittee of anyquarry operation is sold, leased, assigned, orotherwise disposed of, the director may transferthe permit and shall release the transferor fromhis or her liabilities imposed by this article orrules issued under this article if both thetransferor and transferee have complied with therequirements of this article and the transferee ininterest assumes the duties and responsibilitiesof the permit. The transferee shall provideapplicableinformation as required by this article and shallmeet public notice and comments requirementsas required for major permit modifications.

(b) The proposed transferee shall pay a fivehundred dollar fee with the filing of anapplication for transfer of permit.


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(c) The director shall act upon the permittransfer as expeditiously as possible but not laterthan thirty days after the application forms andany supplemental information required are filedwith the director.

(d) The director may deny the permittransfer for any reasons and under the sameprocedure set forth in sections seven and eight ofthis article. If the applicant proposes any changeto the permit conditions, the director shallreview the application and treat it as amodification as provided in this article.

(e) The director, for good cause shown,may allow transfer of a revoked permit if thetransferee complies with the requirements of thisarticle and assumes the duties andresponsibilities of the permit.

(f) If the director denies an application totransfer a permit, the director shall give thepermittee and the proposed transferee writtennotice of:

(1) The director's determination;

(2) Any changes in the application whichwould make it acceptable; and

(3) The right of the permittee and theproposed transferee to a hearing before either orboth the director or the surface mine board.

(f)(1) If a hearing before the director is notrequested within fifteen days after receipt of thedirector's notice of the denial, the denial is thedirector's final order on the matter appealable tothe surface mine board.

(2) If a hearing before the director isrequested within fifteen days after receipt of thedirector's notice, the date for the hearing maynot be less than fifteen days nor more than thirtydays after the date of the request unless theparties mutually agree on another date.

(3) The director shall enter a final ordergranting or denying the transfer applicationwithin thirty days after the hearing.

§22-4-12. Pre-blast survey requirements.

(a) For all new permits issued after theeffective date of this section, at least thirty daysprior to commencing blasting, an operator or anoperator's designee shall make the followingnotifications in writing to all owners andoccupants of protected structures that theoperator or operator's designee will perform pre-blast surveys in accordance with subsection (f)of this section. The required notifications shallbe to all owners and occupants of protectedstructures within one thousand five hundred feetof the blasting area.

(b) For quarries in operation as of theeffective date of this section, the quarry operatorwithin one year, shall conduct a pre-blast surveyof the first protected structure within onethousand feet of the blasting area. Any propertyowner may, at their own expense, pay for a pre-blast survey meeting the provisions of thisarticle, for his or her protected structure to assessthe impact of future blasts to those dwellings orstructures by an existing quarry.

(c) An occupant or owner of a man-madedwelling or structure within the areas describedin subsection (a) of this section, may waive theright to a pre-blast survey in writing. If adwelling is occupied by a person other than theowner, both the owner and the occupant mustwaive the right to a pre-blast survey in writing.If an occupant or owner of a man-made dwellingor structure refuses to allow the operator or theoperator's designee access to the protectedstructure and refuses to waive in writing theright to a pre-blast survey or to the extent thataccess to any portion of the structure,underground water supply or well is impossibleor impractical under the circumstances, the pre-blast survey shall indicate that access wasrefused, impossible or impractical. The operatoror the operator's designee shall execute a swornaffidavit explaining the reasons andcircumstances surrounding the refusals.

(d) If a pre-blast survey was waived by theowner and was within the requisite area and theproperty is sold, the new owner may request apre-blast survey from the operator.


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(e) An owner within the requisite area mayrequest, from the operator, a pre-blast survey onstructures constructed after the original pre-blastsurvey.

(f) The pre-blast survey shall include:

(1) The names, addresses or description ofstructure location and telephone numbers of theowner and the residents of the structure beingsurveyed and the structure number from thepermit blasting map;

(2) The current home insurer of the ownerand the residents of the structure;

(3) The names, addresses and telephonenumbers of the operator and the permit number;

(4) The current general liability insurer ofthe operator;

(5) The name, address and telephonenumber of the person or firm performing thepre-blast survey;

(6) The current general liability insurer ofthe person or firm performing the pre-blastsurvey;

(7) The date of the pre-blast survey and thedate it was mailed or delivered to the director;

(8) A general description of the structureand its appurtenances including, but not limitedto: (A) The number of stories; (B) theconstruction materials for the frame and theexterior and interior finish; (C) the type ofconstruction including any unusual orsubstandard construction; and (D) theapproximate age of the structure;

(9) A general description of the surveymethods and the direction of progression of thesurvey, including a key to abbreviations used;

(10) Written documentation and drawings,videos or photographs of the pre-blast defectsand other physical conditions of all structures,

appurtenances and water sources which could beaffected by blasting;

(11) Written documentation and drawings,videos or photographs of the exterior andinterior of the structure to indicate pre-blastdefects and condition;

(12) Written documentation and drawings,videos or photographs of the exterior andinterior of any appurtenance of the structure toindicate pre-blast defects and condition;

(13) Sufficient exterior and interiorphotographs or videos, using a variety of angles,of the structure and its appurtenances to indicatepre-blast defects and the condition of thestructure and appurtenances;

(14) Written documentation and drawings,videos or photographs of any unusual orsubstandard construction technique andmaterials used on the structure and/or itsappurtenances;

(15) Written documentation relating to thetype of water supply, including a description ofthe type of system and treatment being used, ananalysis of untreated water supplies, a wateranalysis of water supplies other than publicutilities, and information relating to the quantityand quality of water;

(16) When the water supply is a well,written documentation, where available, relatingto the type of well; the well log; the depth, ageand type of casing or lining; the static waterlevel; flow data; the pump capacity; the drillingcontractor; and the source or sources of thedocumentation;

(17) A description of any portion of thestructure and appurtenances not documented orphotographed and the reasons;

(18) The signature of the person performingthe survey; and

(19) Any other information required by thedirector which additional information shall be


12

established by rule in accordance with articlethree, chapter twenty-nine-a of this code.

(g) The director may require a pre-blastsurvey as a condition of a major permitmodification, upon a finding that the proposedblasting area will occur within one thousand fivehundred feet from a protected structure, and willbe of a nature and intensity to potentially causeblasting damage.

§22-4-13. Blasting restrictions; blastingformula; filing preplan; site specific bastingrequirements; penalties; notice.

(a) Where blasting of overburden ormineral is necessary, the blasting shall be donein accordance with established principles forpreventing injury to persons and damage toresidences, buildings and communities, andcomply with the following:

(1) The weight in pounds of explosives tobe detonated in any period less than an eightmillisecond period without seismic monitoringshall conform to the following scaled distanceformula: W = (D/50)(to the second power).Where W equals weight in pounds of explosivesdetonated at any one instant time, then D equalsdistance in feet from nearest point of blast tonearest residence, building or structure, otherthan operation facilities of the mine: Provided,That the scaled distance formulas need not beused if a seismograph measurement is located atthe nearest protected structure is recorded andmaintained for every blast. If access to thestructure is refused by the owner of the protectedstructure, the measurement may be taken asclose as practicable between the blast site andthe protected structure. The peak particlevelocity in inches per second in any one of thethree mutually perpendicular directions shall notexceed the following values at any protectedstructure:

Seismograph Distance to theMeasurement Nearest Protected Structure

1.25 0 - 300 feet1.00 301 - 5,000 feet0.75 5,001 feet or greater

The maximum ground vibration standardsdo not apply to the structures owned by thepermittee and not leased to another person andstructures owned by the permittee and leased toanother person, if a written waiver by the lesseeis submitted to the director before blasting.

(2) Airblast shall not exceed the maximumlimits listed below at the location of anydwelling, public buildings, school or communityor institutional building outside the permit area:Lower frequency limit of measuring system inHz(+3dB) Maximum level in db1Hz or lower-flat response* 134 peak2Hz or lower-flat response 133 peak6Hz or lower-flat response 129 peakc-weighted-slow response* 105 peak dBC* only when approved by the director.

(3) Access to the blast area shall becontrolled against the entrance of unauthorizedpersonnel during blasting for a period thereafteruntil an authorized person has reasonablydetermined that:

(A) No unusual circumstances exist such asimminent slides or undetonated charges, etc.;and

(B) Access to and travel in or through thearea can be safely resumed.

(4) A plan of each operation's methods forcompliance with this section (blast delay design)for typical blasts which shall be adhered to in allblasting at each operation, shall be submitted tothe division of environmental protection with theapplication for a permit. It shall be accepted if itmeets the scaled distance formula established insubdivision (1) of this section.

(5) Records of each blast shall be kept in alog to be maintained for at least three years,which will show for each blast the followinginformation:

(A) Date and time of blast;

(B) Number of holes;


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(C) Typical explosive weight per delayperiod;

(D) Total explosives in blast at any onetime;

(E) Number of delays used;

(F) Weather conditions;

(G) Signature of operator employee incharge of the blast;

(H) Seismograph data; and

(I) Date of seismograph calibration.

(b) Blasting within one thousand feet of aprotected structure shall have a site specific blastdesign which may vary from the requirements ofthis section as is approved by the director. Thesite specific blast plan shall limit the type ofexplosive and detonating equipment, the size,timing and frequency of blasts to: Prevent injuryto persons; prevent damage to public and privateproperty outside the permit area; prevent adverseimpacts to any underground mine; and tominimize dust outside the permit area:Provided, That for quarries permitted pursuant tosection twenty-seven, site specific blasting planwill not be required if not required as part of itsexisting blasting plan, unless the directordetermines that based on valid local complaints,the local conditions require a site specificblasting plan.

(c) All assessments as set forth in thissection shall be assessed by the director,collected by the director and deposited with thetreasurer of the state of West Virginia, to thecredit of the quarry reclamation fund.

(d) The director shall propose legislativerules pursuant to article three, chapter twenty-nine-a of this code which shall provide for awarning of impending blasting to the owners,residents or other persons who may be presenton property adjacent to the blasting area.

(e) Where inspection by the division ofenvironmental protection establishes that the

scaled distance formula or the seismographresults or the approved preplan are not beingadhered to, the following penalties shall beimposed:

(1) For the first offense in any one permityear under this section, the permit holder shallbe assessed not less than five hundred dollarsnor more than one thousand dollars;

(2) For the second offense in any one permityear under this section, the permit holder shallbe assessed not less than one thousand dollarsnor more than five thousand dollars;

(3) For the third offense in any one permityear under this section or for the failure to payany assessment herein above set forth within areasonable time established by the director, thepermit shall be revoked.

§22-4-14. Performance standards.

Each permit issued by the director pursuantto this article shall require the quarry operation,at a minimum, to meet the followingperformance standards:

(a) The operator shall impound, drain ortreat all runoff water so as to reduce soil erosion,damage to agricultural lands and preventunlawful pollution of streams and other waters.The director shall require as a condition of a newpermit, groundwater testing prior to and duringquarrying. Tests shall be for both quantity andquality of surrounding groundwaters.Groundwater test sites above and below gradientof the proposed quarry shall be established priorto quarrying to establish a six months baselinefor area groundwater. Test wells, seeps andsprings may be utilized as is appropriate.Monthly testing shall be done prior to thebeginning of quarrying, and quarterlymonitoring the first year of quarrying. Annualtesting is to be done for an additional four years.If no adverse impact to groundwater isdiscovered, no further monitoring will berequired. However, upon subsequent discoveryof possible adverse impact, the director mayrequire monthly monitoring and appropriateremedial actions to be done by the permittee.


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(b) In the case of storm wateraccumulations or any breakthrough of water,adequate treatment shall be undertaken by theoperator so as to prevent pollution occurringfrom the release of water. Treatment mayinclude check-dams, settling ponds and chemicalor physical treatment. In the case of abreakthrough of water, when it is possible, thewater released shall be impounded immediately.All water so impounded shall receive adequatetreatment by the operator before it is releasedinto the natural drainway.

(c) Water leaving the permit area is subjectto the requirements of article eleven of thischapter.

(d) The permittee shall place a monumentas prescribed by the division in an approvedlocation near the operation. If a quarryoperation is under a single permit and is notgeographically continuous, the permittee shalllocate additional monuments and submitadditional maps, as required by section five ofthis article, before mining other permitted areas.

(e) The operator shall remove or properlydispose of all metal, equipment and other refuseresulting from the operation. No permittee mayengage in or allow, the throwing, dumping,piling or otherwise placing of any overburden,stones, rocks, coal, mineral, earth, soil, dirt,debris, trees, wood, logs or other materials orsubstances of any kind or nature beyond oroutside the area of land which is under permitfor which bond has been posted, unless it isplaced on a site which has a permit allowing thatactivity, nor may any operator place any of theforegoing listed materials in a way that normalerosion or slides brought about by naturalphysical causes will permit the same to gobeyond or outside the area of land which isunder permit and for which bond has beenposted.

(f) Prior to beginning quarrying operations,the operator shall install, certify, and maintain adrainage system in accordance with theapproved drainage control plan. Lateraldrainage ditches connecting to natural or man-

made waterways shall be constructed to controlwater runoff, prevent erosion and provideadequate drainage control. The depth and widthof natural drainage ditches and any otherdiversion ditches may vary depending on thelength and degree of slope.

(g) When the planting of an area has beencompleted and full or partial bond release isrequested the operator shall file a planting reportwith the director on a form to be prescribed andfurnished by the director providing the followinginformation:

(1) Identification of the operation;

(2) The types and rate of application ofplanting or seeding, including mixtures andamounts;

(3) Types and rates of fertilizer and anyother chemicals used or added to the soil;

(4) The date of planting or seeding;

(5) The area of land planted; and

(6) Other relevant information required bythe director. All planting shall be certified bythe permittee, or by the party with whom thepermittee contracted for planting.

(h) All fill and cut slopes of the operationand haulage ways shall be seeded and planted ina manner as prescribed by the quarrying andreclamation plan.

(i) After quarrying is completed, the sitewill be stabilized to prevent erosion.Stabilization may be accomplished by vegetativecover or other means as approved in thequarrying and reclamation plan. Rules proposedpursuant to this article shall contain guidelinesfor establishing the various types ofstabilization.

(j) Planting shall be carried out so that it iscompleted before the end of the first plantingseason. Vegetative planting may be completedby the operator or the permittee may contractwith the local soil conservation district or a


15

private contractor. A revegetation scheduleshall be incorporated into the quarrying andreclamation plan.

(k) The operator may, where appropriate,use visual screening methods such as berms,plantings, or fences which may be placed withinthe buffer where conditions allow and where thesite is readily visible to the general public.

(l) If the permittee or other person desiresto conduct underground quarrying upon thepremises or use underground quarry surfacehaulage ways for other lawful purposes, thepermittee may designate locations to be used forthese purposes where it will not be necessary tobackfill if required by the permit, until theunderground quarrying or other uses iscompleted, during which time the bond on filefor that portion of that operations may not bereleased. Locations shall be described on themap required by the provisions of section five ofthis article.

(m) The operator shall also comply with allother permit conditions and requirements of thisarticle and any rules promulgated thereunder.

§22-4-15. Groundwater protection.

The Groundwater Protection Act provisionscontained in subsection (b), section four, articletwelve of this chapter do not apply to mineralextraction areas of quarry mining sites regulatedunder this article. All other areas of the mine,including groundwater beneath the mineralextraction area, and water discharges from thequarry shall meet the requirements of articletwelve of this chapter.

§22-4-16. Water rights and replacement;waiver of replacement.

(a) Nothing in this article affects the rightsof any person to enforce or protect, underapplicable law, that person's interest in waterresources affected by removal of mineralresources.

(b) Any permittee shall replace the watersupply of an owner of interest in real property

who obtains all or part of the owner's supply ofwater for domestic, agricultural, industrial orother legitimate use from an underground orsurface source where the supply has beenaffected by contamination, diminution orinterruption proximately caused by the mineralremoval and associated activities, unless right ofreplacement is waived by the owner or unlessthe water supply is furnished by a public servicedistrict, municipality, government entity or someother third party.

(c) A public service district, municipality,government entity, or other party may contractwith a permittee to obtain water and waive thereplacement of water supply if contamination,diminution, or interruption should occur.

(d) If the director determines that: (1)Contamination, diminution or damage to anowner"s underground water supply exists; and(2) the contamination, diminution, or damage tothe underground water supply could not be dueto seasonal variations, or other possible causes,then the permittee shall upon receiving writtennotification from the director: (A) Provide anemergency drinking water supply within twenty-four hours; (B) provide a temporary watersupply within seventy-two hours; (C) provide apermanent water supply within thirty days; and(D) pay all reasonable costs incurred by theowner in securing a water supply: Provided,That the permittee is entitled to recover the costof replacing an owner's water supply if it isdetermined that contamination, diminution, ordamage to the water supply was not caused bymineral removal activity of the permittee.

§22-4-17. Quarrying and reclamation plan.

(a) The application for a new permit shallinclude a proposed quarrying and reclamationplan. In developing this complete quarrying andreclamation mining plan all reasonable measuresshall be taken to eliminate damages to membersof the public, their real and personal property,public roads, streams and all other publicproperty from soil erosion, rolling stones andoverburden, water pollution and hazardsdangerous to life and property.


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(b) The quarrying and reclamation plan isrequired to be completed by a person approvedby the director. It shall include the followinginformation:

(1) The purpose for which the land to bepermitted was previously used;

(2) The proposed useful purposes of theland following completion of quarrying;

(3) A general description of the manner inwhich the land is to be opened for quarrying andhow the quarrying activity is to progress acrossthe permitted area and an approximate timeframe for reclamation of each area or phase ofthe quarrying;

(4) The manner in which topsoil is to beconserved and used in reclamation and, ifconditions do not permit conservation andrestoration of all or part of the topsoil, anexplanation of the conditions and proposedalternative procedures;

(5) The description of the proposed finaltopography for the applicant's proposed land useafter reclamation is completed and the proposedmethod of accomplishment;

(6) The practices to provide public safetyfor adjacent properties and provisions forfencing, berms or other site improvementsreasonably necessary to assure safety at thepermitted site after mining and reclamation iscompleted; and

(7) The manner and type of revegetation orother surface treatment of the disturbed area; and

(c) An application for a permit shallindicate the existence of known, threatened orendangered species located within the proposedpermit boundary as defined by federalEndangered Species Act of 1973.

(d) The application shall provide theinformation on slope gradient and fill plans asrequired in section eighteen of this article.

§22-4-18. Land reclamation requirements.

(a) Quarries shall meet the final designrequirements for slopes and gradients:

(1) Final slope gradients of fill areas shallbe designed using recognized standards andcertified by a professional engineer or otherapproved professional specialist, except forbackfill within the mineral excavation pit area,where no standard applies.

(2) The designed steepness and proposedtreatment of the final slopes shall take intoconsideration the physical properties of the slopematerial, its probable maximum water content,landscaping requirements and other factors andmay range from ninety degrees in a soundlimestone or similar hard rock to less thantwenty degrees in unconsolidated materials.

(3) The quarrying and reclamation planshall specify slope angles flatter than the criticalgradient for the type of material involved.

(4) The toe of the proposed fill will rest onnatural slopes no steeper than twenty degreesunless a detailed geotechnical study of the toefoundation area is completed. The results of thisstudy and subsequent stability evaluations mustassure a static safety factor of at least one andone-half. Engineering designs for fillsconstructed on natural slopes steeper thantwenty degrees may require over excavation ofthe toe area to rock, incorporation of toebuttresses or other engineered configurations toenhance stability. The design and constructionof all fills proposed on natural slopes steeperthat twenty degrees shall be certified by aregistered professional engineer.

(5) Constructed slope fills steeper than twohorizontal to one vertical must exhibit a staticsafety factor of one and one-half.

(6) Fills may be constructed so that theouter slope shall be no steeper than twohorizontal to one vertical. A twenty foot widebench shall be installed at a maximum of everyfifty feet in vertical height of the fill with a onepercent to five percent slope toward aconstructed protected channel or natural


17

drainway: Provided, That constructed fill slopesmay be steeper than two horizontal to onevertical if they meet a static safety factor of onepoint five (1.5) and are certified by a registeredprofessional engineer.

(7) Surface water runoff from the areaabove fills shall be diverted away from the fillinto stabilized diversion channels. Runoff fromthe fill surface shall be diverted to stabilizedchannels off the fill.

(8) During and after construction of a fillarea, slope protection shall be provided tominimize surface erosion. All disturbed areas ofthe fill, including diversion channels that are notriprapped or otherwise protected, shall berevegetated upon completion of construction.

(b) Highwalls which are to be left aftercompletion of quarrying shall be backfilled orshot down to provide a final slope in compliancewith subsection (d) of this section unless:

(1) It is demonstrated that the highwall isstable;

(2) Adequate material removed in theprocess of quarrying and not located in apermanent disposal area, is not available; or

(3) These actions are precluded by closeproximity to permit boundaries, other physicallimitations, or the post quarry land use requiresthat the highwall remain.

(c) Backfills, fills, cut slopes or highwallsthat exist and are part of a permit area prior tothe effective date of this article are not requiredto comply with subdivisions (1) through (8),subsection (a) of this section. Permits issuedprior to the effective date of this section whichcontain the requirements of subdivisions (1) and(2), subsection (a) or subsection (b) of thissection are not exempt unless modified by thedivision.

(d) The final land form shall be graded toprovide positive drainage throughout the permitarea except areas that are to be inundated in

accordance with the quarrying and reclamationplan map.

(e) Backfill may be exported off thepermitted areas only for beneficial uses asapproved by the director.

(f) Permanent spoil piles will be stabilized,covered with suitable material and revegetated.

(g) Upon an order of the director, theoperator shall, within sixty days after service ofa copy of the order to the operator by certifiedUnited States mail, furnish to the division fourcopies of a progress map which is preparedconsistent with maps prepared for permitapplications as provided in section five of thisarticle, which shall show in detail completedreclamation work, as required by the director.The progress map shall be within a reasonabledegree of accuracy as is required by the director.When no additional land has been disturbed byoperations during the preceding year and theprior map is still up to date, in lieu of a progressmap, the operator shall provide a signedstatement regarding the status of the operation tothe director. A final map shall be submittedwithin sixty days after completion of miningoperations. Failure to submit maps or aerialphotographs or notices at specified times shallcause the permit in question to besuspended.

§22-4-19. Time period for reclamation.

(a) The operator shall commence thereclamation of the incremental area of landdisturbed by the operator after the completion ofall quarrying of that area in accordance with theapproved quarrying and reclamation plan. Thequarrying and reclamation plan for eachoperation shall be site specific in describing howthe quarrying and reclamation activities are to becoordinated to minimize total land disturbanceand to keep reclamation operations ascontemporaneous as possible with the advanceof the quarry operations. All quarry operationsshall be conducted in compliance with theapproved quarrying and reclamation plan andthe requirements of this article.


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(b) At the option of the permittee and withthe director's concurrence, a quarry permit maybe inactive for a time so specified by thedirector, during which no mineral or overburdenis removed if the following conditions are met:

(1) That economically viable mineralreserves remain in the permitted area;

(2) All disturbed areas are reclaimed orstabilized to prevent erosion and sedimentation;

(3) All drainage and sediment controlstructures, such as culverts, ditches, sedimentbasins and traps are maintained; and

(4) All vegetation is maintained andreseeded as necessary.

(c) Any permit which is not in operationand has failed to apply for inactive status withinsix months is deemed an abandoned quarry.

§22-4-20. Fiscal responsibility.

(a) Each applicant must provide acertificate of insurance issued by an insurancecompany authorized to do business in this statefor all operators at the site including blasting andquarrying operators. Blasting insurance is notrequired of quarry operations which do notconduct blasting. The coverage shall include notless than one million dollars for personal injuryper occurrence, and not less than five hundredthousand dollars for property damage peroccurrence. Proof of continuing insurancecoverage shall be required on an annual basis.In addition, the insurance company shallpromptly notify the director of any lapses,default, nonrenewal, cancellation, or terminationof coverage.

(b) Each applicant who makes applicationfor a new permit under section five of this articleshall furnish a performance bond after permitapproval but before its issuance, on a form to beprescribed and furnished by the director, payableto the state of West Virginia and conditionedthat the permittee faithfully performs all of therequirements of this article. The bond or bondsshall cover the entire area disturbed by quarrying

plus the estimated number of acres to bedisturbed in the upcoming year. As additionalareas outside the bonded acreage are needed tofacilitate the quarry operation, the permitteeshall file an additional bond or bonds to coverthe additional acreage with the director. Thebond shall be posted and accepted by thedirector prior to disturbing an area for quarrying.

(c) The amount of the bond shall be at leastone thousand dollars for each acre or fraction ofan acre of land to be disturbed. The directorshall determine the amount per acre of the bondthat is required before a permit is issued. Theminimum amount of bond required is tenthousand dollars.

(d) In lieu of a performance bond coveringthe entire permitted area, the director may acceptincremental bonding. If incremental bonding isused, as succeeding increments of quarryoperations are to be initiated and conductedwithin the permit area, the permittee shall filewith the director an additional bond or bonds tocover the increments in accordance with thissection.

(e) The applicant may elect to execute theperformance, surety bonding, collateral bonding,establishment of an escrow account,performance bonding fund participation, self-bonding or a combination of these methods.

(f) If collateral bonding is used, theapplicant may elect to deposit cash, or collateralsecurities or certificates as follows: Bonds of theUnited States or its possessions, of the federalland bank, or of the homeowners' loancorporation; full faith and credit generalobligation bonds of the state of West Virginia, orother states, and of any county, district ormunicipality of the state of West Virginia orother states; or certificates of deposit in a bankin this state, which certificates shall be in favorof the division. The cash deposit or marketvalue of such securities or certificates shall beequal to or greater than the sum of the bond. Thedirector shall, upon receipt of any such depositof cash, securities or certificates, promptly placethe same with the treasurer of the state of WestVirginia whose duty it is to receive and hold the


19

same in the name of the state in trust for thepurpose for which the deposit is made when thepermit is issued. The applicant or permitteemaking the deposit is entitled from time to timeto receive from the state treasurer, upon thewritten approval of the director, the whole orany portion of any cash, securities or certificatesso deposited, upon depositing with the treasurerin lieu thereof, cash or other securities orcertificates of the classes herein specified havingvalue equal to or greater than the sum of thebond. Interest received on financial instrumentsshall accrue to the applicant or permittee.

(g) The director shall authorize release ofincremental portions of a bond or other suretyrequired in this section upon verification ofcompletion of adequate reclamation of apreviously mined portion of a quarry covered bythe bond or other surety.

(h) The performance bond or deposits fromthe bond pooling fund shall be forfeited uponfailure of the permittee to perform in the mannerset forth in the approved quarrying andreclamation plan or to reclaim the land asprovided for in the permit or upon revocation ofthe permit. The director shall notify thepermittee by certified mail, return receiptrequested, of its intention to initiate forfeitureproceedings. The permittee has thirty days torequest a hearing before the director. Thedirector shall render a decision within thirty daysof the hearing.Where the operation has deposited cash orsecurities as collateral in lieu of corporatesurety, the director shall declare said collateralforfeited and shall direct the state treasurer topay said funds into the "quarry reclamationfund" as created in section twenty-three of thisarticle, to be used by the director to effect properreclamation and to defray the cost ofadministering this article. Should any corporatesurety fail to promptly pay in full the forfeitedbond, it is disqualified from writing any furthersurety bonds under this article.

(i) Additional bond procedures shall beprovided in legislative rules proposed by thedirector and promulgated in accordance with theprovisions of chapter twenty-nine-a of this code.

(j) The liability under the bond is for theduration of the permit and for a period of twoyears after reclamation unless previouslyreleased, in whole or part, as provided in sectiontwenty-one of this article.

§22-4-21. Release of bonds.

On completion of the reclamation, and afterthe requirements of the permit have been fullycomplied with, the director shall release thebond. An amount of the bond or cash deposit,proportioned to the reclaimed portion of thedisturbed land in ratio to all of the disturbed landcovered by the permit, may be released onapplication by the permittee and inspection andapproval by the director. Performance bondsshall be released upon acceptance into the bondpooling fund and payment of the required fees.Performance bonds for the transferor of a permitshall be released after the transferee posts a bondacceptable to the director.

§22-4-22. Bond pooling fund.

(a) Quarry operators who have operated forfive years without a serious violation underprevious West Virginia mining law or theprovisions of this article, in lieu of the bondingrequirements of section twenty of this article,shall contribute to the "Bond Pooling Fund," asprovided in this section.

(b) For each quarry, permittees contributingto the pool shall make an initial payment to thefund of fifty dollars for each acre currentlydisturbed plus each acre estimated to be newlydisturbed during the next ensuing year.Thereafter, the permittee shall make an annualpayment of twelve dollars and fifty cents foreach disturbed acre plus each acre estimated tobe newly disturbed during the next ensuing year.The payments shall continue until the permitteehas paid into the bond pooling fund a total ofone thousand dollars for each disturbed acre.

(c) There is hereby created in the statetreasury a special revenue fund known as the"Bond Pooling Fund". The fund shall operate asa special fund whereby all deposits and


20

payments thereto do not expire to the generalrevenue fund, but shall remain in the fund andbe available for expenditure in succeeding fiscalyears. This fund shall consist of fees collectedby the director in accordance with the provisionsof this article. Interests of moneys from thisfund shall be deposited in the quarry reclamationfund as established in section twenty-three ofsubsection (b) of this section. Interest earned onmoneys in this fund shall be deposited in thequarry reclamation fund as established in sectiontwenty-three of this article.

(d) No annual bond pooling fund depositsmay be collected from permittees where thepermit bond pooling fund deposits divided bythe number of disturbed acres bonded is equal toor greater than one thousand per acre.

(e) Permittee deposits into the bond poolingfund shall be released under any of the followingconditions:

(1) On completion of the quarrying andreclamation, and after all permit requirementshave been fully complied with, the director shallreturn all bond pooling fund deposits to thepermittee consistent with the bonding releaserequirements of section twenty-one of thisarticle.

(2) When the bond pooling fund balance fora permittee exceeds one thousand dollars foreach disturbed acre and each acre estimated tobe disturbed during the next ensuing year thedirector shall return the excess funds to thepermittee.

(f) The interest transferred to the quarryreclamation fund under subsection (c) of thissection shall be used to reclaim abandonedquarry lands as provided in section twenty-threeof this article.

(g) If a permit is revoked pursuant to thisarticle the payments that the permittee has madeto the bond pooling fund for that permit shall beforfeited. The director shall use those forfeitedpayments for the reclamation of the quarry towhich it applied.

(h) If the cost of reclamation exceeds theamount of payments the permittee shall be liablefor the reclamation costs that exceed thepermittee's payments to the bond pooling fund.

§22-4-23. Quarry reclamation fund.

(a) All funds received by the division fromforfeiture of bonds, civil administrativepenalties, or interest from the bond pooling fundshall be deposited into a special interest-bearingaccount in the state treasury designated the"Quarry Reclamation Fund." The quarryreclamation fund shall be used by the divisionfor reclamation of abandoned quarries.

(b) If the forfeiture of a performance bondor bonding pool fund payments exceeds the costof reclamation for which the liability wascharged, any excess amount shall be depositedinto the quarry reclamation fund.

(c) Reclamation projects that are to befinanced by the quarry reclamation fund shall bedesigned by the division.

(d) The director shall administer andapprove all expenditures from the quarryreclamation fund.

(e) The division shall compile a list ofabandoned quarries in the state and rank them inorder of need for reclamation.

§22-4-24. Orders, inspections andenforcement; permit revocation, damages,civil and criminal penalties.

(a) The director may at reasonable timeswithout prior notice and upon presentation ofappropriate credentials, enter any quarry andconduct periodic inspections and examine anyrequired documentation to effectively implementand enforce the provisions of this article andrules promulgated thereunder.

(b) Whenever the director finds that anongoing quarry operation is causing or is likelyto cause imminent and substantial harm to theenvironment, public safety, or public health, thedirector may order immediate cessation of such


21

operations, or portions of operations, and shalltake other action as is deemed necessary toavoid adverse impact to the area.

(c) If the director, upon inspection orinvestigation observes, discovers or learns of aviolation of this article, rules promulgatedthereunder, or any permit condition or orderissued under this article, he or she shall:

(1) Issue an order stating with reasonablespecificity the nature of the alleged violation andrequiring compliance immediately or within aspecified time. An order under this sectionincludes, but is not limited to, any or all of thefollowing: Notice of noncompliance, orderssuspending, revoking or modifying permits,consent agreements which provide opportunityfor correction without further agency action,orders requiring a permittee to take remedialaction within a specified time, and cease anddesist orders;

(2) Seek an injunction in accordance withsubsection (g) of this section;

(3) Revoke the permit and pursue anappropriate remedy as provided in this section;

(4) Institute a civil action in accordancewith subsection (g) of this section; or

(5) Request the prosecuting attorney of thecounty wherein the alleged violation occurred, tobring an appropriate action, either civil orcriminal in accordance with subsection (g) or (h)of this section.

(d) If the operator has not reached anagreement with the director or has not compliedwith the requirements set forth in the notice ofnoncompliance or order of suspension within thetime limits set therein, the permit may berevoked by order of the director and theperformance bond or contributions to thebonding pooling fund shall then be forfeited. Ifan agreement satisfactory to the director has notbeen reached within thirty days after suspensionof any permit, any and all suspended permitsshall then be declared revoked and the

performance bonds or contributions to the bondpooling fund with respect thereto forfeited.

(e) Any person who violates any provisionof this article, any permit condition or any ruleor order issued pursuant to this article is subjectto a civil administrative penalty, to be levied bythe director, of not more than five thousanddollars for each day of such violation, not toexceed a maximum of twenty thousand dollars.The director may accept in kind assessment byreclamation of an abandoned quarry site in lieuof cash payment of a civil administrativepenalty. In assessing any such penalty, thedirector shall take into account the seriousnessof the violation and any good faith efforts tocomply with the applicable requirements as wellas any other appropriate factors as may beestablished by rules promulgated pursuant to thisarticle and article three, chapter twenty-nine-a ofthis code. No assessment shall be leviedpursuant to this subsection until after the allegedviolator has been notified by certified mail orpersonal service. The notice shall include areference to the section of the statute, rule, orderor statement of permit conditions that wasallegedly violated, a concise statement of thefacts alleged to constitute the violation, astatement of the amount of the administrativepenalty to be imposed and a statement of thealleged violator's right to an informal hearing.The alleged violator has twenty calendar daysfrom receipt of the notice within which todeliver to the director a written request for aninformal hearing. If no hearing is requested, thenotice becomes a final order after the expirationof the twenty-day period. If a hearing isrequested, the director shall inform the allegedviolator of the time and place of the hearing.The director may appoint an assessment officerto conduct the informal hearing and then make awritten recommendation to the directorconcerning the assessment of a civiladministrative penalty. Within thirty daysfollowing the informal hearing, the director shallissue and furnish to the alleged violator a writtendecision, and the reasons therefor, concerningthe assessment of a civil administrative penalty.Within thirty days after notification of thedirector's decision, the alleged violator mayrequest a formal hearing before the surface mine


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board. The authority to levy a civiladministrative penalty is in addition to all otherenforcement provisions of this article and thepayment of any assessment does not affect theavailability of any other enforcement provisionin connection with the violation for which theassessment is levied. No combination ofassessments against a violator under this sectionshall exceed five thousand dollars for each dayof such violation: Provided, That any violationfor which the violator has paid a civiladministrative penalty assessed under thissection shall not be the subject of a separate civilpenalty action under this article to the extent ofthe amount of the civil administrative penaltypaid.

All administrative penalties shall be leviedin accordance with this article and rules issuedpursuant to this article. The net proceeds ofassessments collected pursuant to this subsectionshall be deposited in the quarry reclamation fundestablished in section twenty-three of this article.No assessment levied pursuant to this subsectionbecomes due and payable until the proceduresfor review of such assessment as set out hereinhave been completed.

(f) Any person who violates any provisionof this article, any permit condition, rule or orderissued pursuant to this article is subject to a civilpenalty not to exceed five thousand dollars foreach day of such violation, which penalty shallbe recovered in a civil action either in the circuitcourt wherein the violation occurs or in thecircuit court of Kanawha County.

(g) The director may seek an injunction, ormay institute a civil action against any person inviolation of any provisions of this article or anypermit condition, rule or order issued pursuant tothis article.

In seeking an injunction, it is not necessaryfor the director to post bond nor to allege orprove at any stage of the proceeding thatirreparable damage will occur if the injunction isnot issued or that the remedy at law isinadequate. An application for injunctive reliefor a civil penalty action under this section maybe filed and relief granted notwithstanding the

fact that all administrative remedies provided forin this article have not been exhausted orinvoked against the person or persons againstwhom such relief is sought.

(h) Any person who willfully or negligentlyviolates the provisions of this article, any permitcondition or any rule or order issued pursuant tothis article is subject to the same criminalpenalties as set forth in section twenty-four,article eleven of this chapter.

(i) Upon request of the director, theprosecuting attorney of the county in which theviolation occurs shall assist the director in anycivil or criminal action under this section.

(j) In any civil action brought pursuant tothe provisions of this section, the state, or anyagency of the state which prevails, may beawarded costs, reasonable attorney's fees, and,when a permit has been revoked, any actualcosts incurred by the agency to completereclamation of a permitted site above andbeyond moneys received as a result of bondforfeiture.

(k) In addition to and notwithstanding anyother penalties provided herein, any operatorwho directly causes damage to the property ofothers as a result of quarrying is liable to them,in an amount not in excess of three times theprovable amount of such damage, if and only ifsuch damage occurs before or within one yearafter such operator has completed allreclamation work with respect to the land onwhich such quarrying was carried out and allbonds of such operator with respect to suchreclamation work are released. Such damagesare recoverable in an action at law in any courtof competent jurisdiction.

(l) The director may reinstate a revokedpermit and allow resumption of quarrying upona finding that the circumstance causing therevocation has been abated and the director hasdetermined that the cause of the revocation willnot reoccur upon reinstatement.

(m) It is unlawful for the owner or ownersof surface rights or the owner or owners of


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mineral rights to interfere with the operator inthe discharge of the operator's obligation to thestate for the reclamation of lands disturbed bythe operator. The director may initiate an actionpursuant to either subsection (g) or (h) of thissection, to enforce this prohibition.

§22-4-25. Appeals to board.

Any person claiming to be aggrieved oradversely affected by any ruling or order of thedirector or his or her failure to enter an ordermay appeal to the surface mine board, pursuantto the provisions of article one, chapter twenty-two-b of this code, for an order vacating ormodifying the ruling or order, or for an orderthat the director should have entered.

§22-4-26. Required fees, quarry inspectionand enforcement fund.

The permit application fee is one thousanddollars. The fee for the original permit is onethousand dollars. The permit renewal fee of fivehundred dollars shall be submitted with therenewal application and a progress report map.The fee for transferring a permit is five hundreddollars. The fee for a minor permit modificationis two hundred dollars and for majormodifications, five hundred dollars. There ishereby created in the state treasury a specialrevenue fund known as the "Quarry Inspectionand Enforcement Fund". The fund shall operateas a special fund whereby all deposits andpayments thereto do not expire to the generalrevenue fund, but shall remain in the fund andbe available for expenditure in succeeding fiscalyears. This fund shall consist of fees collectedby the director in accordance with the provisionsof this section, as well as interest earned oninvestments made from moneys deposited in thefund. Moneys from this fund shall be expendedby the director for the administration,permitting, enforcement, inspection, monitoringand other activities required by this article.

§22-4-27. Exception for certain existingquarries.

(a) Quarries that are in operation on orbefore the effective date of this article, shallcomply with the following:

(1) Within two years of the effective date ofthis article, all quarry operations shall submit tothe director a quarrying and reclamation plan tobring the facility into compliance with therequirements of this article and any rulespromulgated thereunder. These quarrying andreclamation plans shall include a reasonableschedule, based on site specific conditions andthe nature of the quarry operation, to allow atransitional time period to bring the operationinto compliance with current reclamationstandards. Quarry areas that are disturbed on theeffective date of this article are exempt fromfurther reclamation requirements. For thepurpose of this section, disturbed areas includeexisting highwalls and all material verticallybelow the surface of the area disturbed.

(2) Pre-blast survey and blasting planrequirements as provided for existing quarries asprovided by section twelve of this article.

(3) Groundwater protection monitoringrequired by section fourteen of this article willnot be required if the director verifies theoperator's certification that no groundwaterproblems at the quarry have occurred in theprevious five years.

(b) The exclusions of this section are alsoapplicable to quarries permitted on or before theeffective date of this article and consolidated orrenewed pursuant to subsection (f) of sectionfive of this article.

(c) Quarries in operation as of the effectivedate of this article for the past five years withouta serious permit violation, shall participate in thebond pooling fund created in section twenty-twoof this article. All other operations shall complywith the bonding requirements of section twentyof this article.

§22-4-28. Persons ineligible for a permit.

No public officer or employee in thedivision having any responsibility or duty either


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directly or of a supervisory nature with respectto the administration or enforcement of thisarticle may:

(1) Engage in quarrying as a sole proprietoror as a partner;

(2) Be an officer, director, stockholder,owner or part owner of any corporation or otherbusiness entity engaged in quarrying; or

(3) Be employed as an attorney, agent or inany other capacity by any person, partnership,firm, association, trust or corporation engaged inquarrying. Any violation of this section by anypublic officer or employee subject to theprohibitions contained in this section is groundsfor removal from office or dismissal fromemployment, as the case may be.

§22-4-29. Exemptions.

(a) The provisions of this article do notapply to activities of the West Virginiadepartment of transportation or any legallyconstituted public governing entities includingmunicipal corporations or other politicalsubdivisions, including the federal government,or to activities of any person acting undercontract with any of these public agencies orentities, on highway rights-of-way or borrowpits owned, operated, or maintained solely inconnection with the construction, repair andmaintenance of the public roads system of thestate or other public facilities. This exemptiondoes not become effective until the publicagencies or entities have adopted reclamationstandards applying to the activities.

(b) The provisions of this article do notapply to quarrying on federal lands whenperformed under a valid permit from theappropriate federal agency having jurisdictionover the land.

(c) The provisions of this article do notapply to the following activities:

(1) Operations engaged only in processingminerals;

(2) Excavation or grading conducted solelyin aid of on-site farming or on-site constructionfor purposes other than quarrying;

(3) Removal of overburden and of limitedamounts of any mineral when done only for thepurpose of prospecting and to the extentnecessary to determine the location, quantity orquality of any natural deposit, if no minerals aresold, processed for sale or consumed in theregular operation of business;

(4) The handling, processing or storage ofminerals on the premises of a manufacturer as apart of any manufacturing process that requiresminerals as raw material;

(5) The removal or deposit of backfillmaterial associated with construction, farmingand noncommercial activities;

(6) Noncommercial quarry operations by alandowner if the disturbed area does not exceedone acre in area, upon notice to the director bythe owner of his or her intent to establish thequarry.

CHAPTER 22B. ENVIRONMENTALBOARDS.

ARTICLE 4. SURFACE MINE BOARD.

§ 22B-4-1. Appointment and organization ofsurface mine board.

(a) On and after the effective date of thisarticle, the "reclamation board of review,"heretofore created, shall continue in existenceand hereafter shall be known as the "surfacemine board."

(b) The board shall be composed of sevenmembers who shall be appointed by thegovernor with the advice and consent of theSenate. Not more than four members of theboard shall be of the same political party. Eachappointed member of the board who is servingin such capacity on the effective date of thisarticle shall continue to serve on the board untilhis or her term ends or he or she resigns or isotherwise unable to serve. As each member's


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term ends, or that member is unable to serve, aqualified successor shall be appointed by thegovernor with the advice and consent of theSenate. One of the appointees to such boardshall be a person who, by reason of previousvocation, employment or affiliations, can beclassed as one capable and experienced in coalmining. One of the appointees to such boardshall be a person who, by reason of training andexperience, can be classed as one capable andexperienced in the practice of agriculture. Oneof the appointees to such board shall be a personwho by reason of training and experience, can beclassed as one capable and experienced inmodern forestry practices. One of theappointees to such board shall be a person who,by reason of training and experience, can beclassed as one capable and experienced inengineering. One of the appointees to suchboard shall be a person who, by reason oftraining and experience, can be classed as onecapable and experienced in water pollutioncontrol or water conservation problems. One ofthe appointees to such board shall be a personwith significant experience in the advocacy ofenvironmental protection. One of the appointeesto such board shall be a person who representsthe general public interest: Provided, That, inany case brought before the board relating toquarry operations as regulated by article four ofchapter twenty-two of this code, two alternateboard members will serve on the board whohave expertise related to the operation ofquarries. These two alternate members willserve in place of the board member appointeddue to his or her expertise in coal operations andthe board member which has been appointed dueto his or her expertise in forestry. Eachalternative member shall have the identical termas the member which he or she is replacing. Thealternative board member replacing the memberwith expertise in coal shall be appointed basedon his or her expertise in quarry operations. Thealternative board member replacing the memberwith expertise in forestry shall be appointedbased on his or her expertise in geology.

(c) During his or her tenure on the board,no member shall receive significant direct orindirect financial compensation from or exerciseany control over any person or entity which

holds or has held, within the two years nextpreceding the member's appointment, a permit toconduct activity regulated by the division, underthe provisions of article three or four, chaptertwenty-two of this code, or any similar agencyof any other state or of the federal government:Provided, That the member classed asexperienced in coal mining, the member classedas experienced in engineering, the memberclassed as experienced in water pollution controlor water conservation problems and the twoalternative board members serving to hearquarry related cases may receive significantfinancial compensation from regulated entitiesfor professional services or regular employmentso long as the professional or employmentrelationship is disclosed to the board. Nomember shall participate in any matter beforethe board related to a regulated entity fromwhich the member receives or has received,within the preceding two years direct or indirectfinancial compensation. For purposes of thissection, "significant direct or indirect financialcompensation" means twenty percent of grossincome for a calendar year received by themember, any member of his or her immediatefamily or the member's primary employer.

(d) The members of the board shall beappointed for terms of the same duration as theirpredecessor under the original appointment oftwo members appointed to serve a term of twoyears; two members appointed to serve a termof three years; two members to serve a term offour years; and one member to serve a term offive years. Any member whose term expiresmay be reappointed by the governor. In theevent a board member is unable to complete theterm, the governor shall appoint a person withsimilar qualification to complete the term. Thesuccessor of any board member appointedpursuant to this article must possess thequalification as prescribed herein. Each vacancyoccurring in the office of a member of the boardshall be filled by appointment within sixty daysafter such vacancy occurs.

§22B-4-2. Authority to receive money.

In addition to all other powers and duties ofthe surface mine board, as prescribed in this


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chapter or elsewhere by law, the board shallhave and may exercise the power and authorityto receive any money as a result of the resolutionof any case on appeal. Moneys received fromcases arising from the Surface MineReclamation Act, as provided in article three ofchapter twenty-two shall be deposited to thecredit of the special reclamation fund createdpursuant to section eleven, article three, chaptertwenty-two of this code. Moneys received fromcases arising from the Quarry Reclamation Act,as provided in article four of chapter twenty-twoof this code, shall be deposited to the credit ofthe quarry reclamation fund created pursuant tosection twenty-two, article four, chapter twenty-two of this code.

§22-4 quarry reclamation act chapter 22. … act.pdfa abandoned quarry lands does not mean a quarry...

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