Current through Register Vol. XLI, No. 50, December 13, 2024
Section 38-2D-4 - General Reclamation Requirements4.1. Objectives. The objectives of this section are to establish conditions for the use of the Abandoned Mine Reclamation Fund that are common to approved state reclamation programs and the reclamation activities conducted or funded directly by OSMRE.4.2. Applicability. The provisions of this section apply to all reclamation projects to be carried out with money from the Fund.4.3.Eligible Lands and Water.(a) Lands and water are eligible for reclamation activities if.(1) They were mined or affected by raining processes,(2) They were mined prior to August 3, 1977, and left or abandoned in either an unreclaimed or inadequately reclaimed condition, and(3) There is no continuing responsibility for reclamation by the operator, permittee, or agent of the permittee under statutes of the state or federal government, or the state as a result of bond forfeiture. Bond forfeiture will render lands or water ineligible only if the amount forfeited is sufficient to pay the total cost of the necessary reclamation. In cases where the forfeited bond is insufficient to pay the total cost of reclamation, additional moneys from the Fund may be sought.(b) Lands and water which were mined or affected by mining for minerals and materials other than coal shall be eligible for reclamation activities under a West Virginia reclamation program if:(1) The conditions of paragraph a of this section have been met,(2) The reclamation has been requested by the Governor of West Virginia,(3) All reclamation with respect to abandoned coal mine land and water has been accomplished within West Virginia or the reclamation is necessary for the protection of the public health and safety, and(4) Moneys allocated to West Virginia are available for the work.4.4.Reclamation Objectives and Priorities. Reclamation projects shall meet one (1) or more of the objectives stated in this section. The objectives are stated in the order of priority with the highest priority first. Preference among those projects competing for available resources shall be given to projects meeting higher priority objectives.(a) Protection of public health, safety, general welfare and property from extreme danger resulting from the adverse effects of past coal mining practices.(b) protection of public health, safety, and general welfare from adverse effects of past coal mining practices.(c) Restoration of eligible land and water and the environment previously degraded by adverse effects of past coal mining practices, including measures for the consideration and development of soil, water (excluding channelization), woodland, fish and wildlife, recreation resources, and agricultural productivity.(d) Research and demonstration projects relating to the development of surface coal mining reclamation and water quality control program methods and techniques.(e) Protection, repair, replacement, construction, or enhancement of public facilities such as utilities, roads, recreation, and conservation facilities adversely affected by past coal mining practices.(f) Development of publicly owned land adversely affected by past coal mining practices; including land acquired for recreation and historic purposes, conservation, and reclamation purposes, and open space benefits.(g) Protection of the public from hazards endangering life and property resulting from the adverse effects of past non-coal mining practices. However, upon the request of the Governor of west Virginia such work may be under taken before the priorities related to past coal mining have been fulfilled.(h) Protection of the public from hazards to health and safety from the adverse effects of past non-coal mining practices(i) Restoration of the environment degraded by the adverse effects of past non-coal mining(j) Construction of public facilities in communities impacted by coal development if the Governor of West Virginia certifies that all other objectives of the fund have been met, the available impact funds are inadequate for such construction and the OSMRE concurs.4.5. Reclamation project evaluation.(a) Proposed reclamation projects and completed reclamation work shall be evaluated in terms of the factors stated in this section. The factors shall be used to determine whether or not proposed reclamation will be undertaken and to assign priorities to proposals intended to meet the same objective under the preceding section. Completed reclamation shall be evaluated in terms of the factors set forth below as a means of identifying conditions which should be avoided, corrected, or improved in plans for future reclamation work. The factors shall include:(1) The need for reclamation work to accomplish one (1) or more specific reclamation objectives as stated in the preceding section.(2) The availability of technology to accomplish the reclamation work with reasonable assurance of success. In the case of research and demonstration projects, the research capability and plans shall provide reasonable assurance of beneficial results without residual adverse impacts.(3) The specific benefit, of reclamation which is desirable in the area in which the work will be carried out. Benefits to he considered include but are not limited to: (A) Protection of human life, health, or safety.(B) Protection of the environment, including air and water quality, abatement of erosion and sedimentation, fish, wildlife, and plant habitat, visual beauty, historic or cultural, and recreation resources.(C) Protection of public or private property.(D) Abatement of adverse social and economic impacts of past mining on persons or property including employment, income, and land values or uses, or assistance to persons disabled, displaced or dislocated by past mining practices.(E) Improvement of environmental conditions which may be considered to generally enhance the quality of human life.(F) Improvement of the use of natural resources, including post-reclamation land uses which; (i) Increase the productive capability of the land to be reclaimed.(ii) Enhance the use of surrounding lands consistent with existing land use plans.(iii) Provide for construction or enhancement of public facilities.(iv) Provide for residential commercial, or industrial developments consistent with the needs and plans of the community in which the site is located.(G) Demonstration to the public and industry of methods and technologies which can be used to reclaim areas disturbed by mining.(4) The acceptability of any additional adverse impacts to people or the environment that will occur during or after reclamation and of uncorrected conditions, if any, that will continue to exist after reclamation.(5) The costs of reclamation. Consideration shall be given to both the economy and efficiency of the reclamation work and to the results obtained or expected as a result of reclamation.(6) The availability of additional coal or other mineral or material resources within the project area which: (A) Results in a reasonable probability that the desired reclamation will be accomplished during the process of future mining, or(B) Requires special consideration to assure that the resource is not lost as a result of reclamation and that the benefits of reclamation are not negated by subsequent, essential resource recovery operations.(7) Remining or secondary recovery in conjunction with reclamation projects.(A) Prior to approving proposed reclamation projects on land containing coal refuse piles, coal waste impoundments or abandoned mine workings, the Division shall make a written determination as to whether coal or other mineral resources within such pile, impoundment or working is economical to mine during the reclamation project. In making this determination, the Division shall: (i) Perform a mineral content analysis of the coal refuse or waste to determine economic feasibility of remining.(ii) Identify any coal preparation, washing, and loading operations located within reasonable proximity of the site;(iii) consider the feasibility of re-entering the site to mine a seam of coal other than that which has been previously mined;(iv) Identify persons with the capability of performing any remining or other coal recovery operation believed to be feasible; and (v) Make a written statement as to its findings on its potential for resource recovery as a function of reclamation.(B) If the Division determines that the coal or other mineral resource is not economical to mine, the Division may approve and proceed with the proposed reclamation project.(C) If the Division determines that the coal or other mineral resource is or may be economical to mine, the Division shall decide whether to approve and proceed with the proposed reclamation project, or to defer reclamation until it can be accomplished during the process of future mining, in making its decision, the Division may consider any relevant information, including but not limited to the following. (i) The desirability of completing the reclamation project within the timetable established by the Division;(ii) The effects of delaying reclamation until future mining might occur;(iii) The resources required and available for the proposed reclamation project;(iv) The quantity and quality of the coal or other mineral resource; (v) The mine plans of permittees;(vi) The likelihood and expected timetable of future mining and reclamation in conjunction therewith, and(vii) Information received from the owners or lessees of the surface and mineral estates.(D) Any decision under subsection (c) of this section to defer reclamation until future mining occurs, may be reconsidered by the Division whenever the Division determines that reclamation should be accomplished sooner.(E) If the Division approves a proposed reclamation project under subsection (b) or (c) of this section, the Division shall waive any requirement that the reclamation contractor obtain a permit to extract or remove coal from the reclamation area if, in the opinion of the Division, the waiver will facilitate the reclamation project. The Division may prescribe such limitations and conditions in the waiver as it deems appropriate, including but not limited to limitations and conditions as the quantity and disposition of coal, methods of recovery, duration and area, to assure that coal recovery is restricted to only what is necessary and incidental to completion of the reclamation project. The Division may revoke the waiver at any time.(F) In the reclamation of land containing coal refuse piles, coal waste impoundments or abandoned mine workings, pursuant to an approved reclamation project, many techniques may be acceptable. if the mineral estate under the area to be reclaimed contains other coal seams that are currently uneconomical to mine, provisions should be made allowing the coal to be mined in the future. Methods of reclaiming land containing land coal refuse or waste and abandoned workings are: (i) Removing the coal refuse or coal waste to an environmentally acceptable site;(ii) Surying the refuse or waste, layering of the refuse material, sealing it with clay or other impervious material to prevent water infiltration and contamination, revegetation of the disposal area, and diversion of- water from the reclaimed area,(iii) In place treatment of the refuse pile may include:(1) Diversion ditching to divert water around coal refuse and/or waste;(2) Collecting and conveying drainage from the refuse pile for disposition in an approved water pollution control facility;(3) Treating the refuse with lime or using other material to prevent acid or other toxic drainage; or(4) Any combination of the above treatments;(iv) Opening old underground mine workings to reclaim the area;(v) Sealing underground mine entries to preclude polluted water discharged; or(vi) other appropriate methods approved by the Division.(G) Where the refuse pile impoundment, or abandoned mine workings contains recoverable coal, the Division may approve recovery and disposition of the coal by one (1) or more of the following ways: (i) Coal may be temporarily stored on site for later sale and removal from the site within the time frame of the reclamation project, by the mineral owner;(ii) If authorized by the owner of the mineral estate, the contractor performing reclamation may remove and sell the coal;. thereby reducing the cost of reclamation and paying the mineral estate a royalty on the coal;(iii) After notice to the owner of the mineral rights, the reclamation contractor may be required to remove and sell the coal, placing the receipts in escrow for the determination and equitable distribution of the proceeds, with the contractor collecting an appropriate fee for coal removed; or (iv) The State may acquire the mineral rights in accordance with applicable state law.(v) other appropriate combinations of processing, collection and royalty payments.(H) The Division may contract with a permittee to carry out reclamation projects to reclaim eligible lands and water which impact adversely on the permittee's disturbed area when such reclamation can be accomplished expeditiously arid economically because of the proximity of the permittee's equipment and personnel to the proposed reclamation area. The Division may waive or modify any or all of the contract.(8) The acceptability of post-reclamation land uses in terms of compatibility with land uses in the surrounding area, consistency with applicable state, regional, and local land use plans and laws, and the needs and desires of the community in which the project is located.(9) The probability of post-reclamation management, maintenance and control of the area consistent with the reclamation completed.(b)WVDEP shall incorporate the evaluation factors stated in subsection (a) of this section into the procedures and processes for selecting projects in a manner which they deem appropriate. Additional factors may be developed to meet specific or unique needs Specific values may be assigned to the factors stated in subsection (a) of this section. All evaluation factors are subject to the plan approval process.