West Virginia Code of State Rules › Agency 38 - Mining And Reclamation › Title 38 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION MINING AND RECLAMATION › Series 38-02 - West Virginia Surface Mining Reclamation Rule › Section 38-2-20 - Inspection and Enforcement

Current through Register Vol. XLI, No. 28, July 12, 2024
In addition to the requirements set forth in section 15, 16,
				  and 17 of the Act, the following requirements shall be met.
20.1. Inspection Frequencies.
20.1.a. Scheduling. In addition to the
				requirements of subsection (a) of section 15 of the Act, the Secretary shall
				have a right of entry to, upon, and through any prospecting operation or
				surface coalmining and reclamation operation without advance notice upon
				presentation of appropriate credentials. No search warrant shall be required,
				except with respect to entry into a building. The Secretary shall conduct:
20.1.a.1. An average of at least one partial
				inspection per month of each active surface mining operation.
20.1.a.2. One complete inspection per
				calendar quarter of each active and inactive surface mining operation. An
				inactive operation is one which has requested and received approval to
				temporarily cease operations as provided in subsection 14.11 of this rule, or
				one that has been granted Phase I bond release, and the revegetation on the
				surface coal mining and reclamation operation has been successfully established
				at the end of the first growing season with a minimum ground cover of sixty
				(60%) percent and the operation is in compliance with the requirements set by
				subparagraph (B), paragraph 10, subsection (b) of section 13 of the Act or
				until soil productivity for prime farmlands has returned to the equivalent
				levels of yield as nonmined land of the same soil type in the surrounding area
				under equivalent management practices as determined by the soil survey
				performed pursuant to paragraph (15) subsection (a) of section 9 of the Act and
				subsection 10.3 and section 10 of this rule.
20.1.a.3. Prospecting operations shall be
				inspected as necessary to assure compliance with the Act and this
				rule.
20.1.a.4. At least one
				partial inspection monthly and one complete inspection quarterly for each
				prospecting operation for which approval has been granted for coal removal in
				excess of 250 tons.
20.1.a.5. More
				frequent inspections shall be made on any prospecting, active surface mining
				operation, or inactive surface mining operation as necessary to assure
				compliance with the Act, this rule, and the terms and conditions of the
				permit.
20.1.a.6. When a permit has
				been revoked and is not under a reclamation contract, In lieu of the inspection
				frequency established in paragraphs 20.1.a.1 and 20.1.a.2 of this subsection,
				the Secretary shall inspect each revoked site on a set frequency commensurate
				with the public health and safety and environmental consideration present at
				each specific site, but in no case shall the inspection frequency be set at
				less than one complete inspection per calendar year. In selecting an alternate
				inspection frequency, the Secretary shall first conduct a complete inspection
				of the site and provide public notice. The Secretary shall place a notice in
				the newspaper with the broadest circulation in the locality of the revoked mine
				site providing the public with a 30-day period in which to submit written
				comments. The public notice shall contain the permittee's name, the permit
				number, the precise location of the land affected, the inspection frequency
				proposed, the general reasons for reducing the inspection frequency, the bond
				status of the permit, the telephone number and address of Department of
				Environmental Protection Office where written comments on the reduced
				inspection frequency may be submitted, and the closing date of the comment
				period. following the inspection and public notice, the Secretary shall prepare
				and maintain for public review a written finding justifying the alternative
				inspection frequency selected. This written finding shall justify the new
				inspection frequency by affirmatively addressing in detail all of the following
				criteria:
20.1.a.6.A. Whether, and to what
				extent, there exists on the site impoundments, earthen structures or other
				conditions that pose, or may reasonably be expected to ripen into, imminent
				dangers to the health or safety of the public or significant environmental
				harms to land, air, or water resources;
20.1.a.6.B. The extent to which existing
				impoundments or earthen structures were constructed and certified in accordance
				with prudent engineering designs approved in the permit;
20.1.a.6.C. The degree to which erosion and
				sediment control is present and functioning;
20.1.a.6.D. The extent to which the site is
				located near or above urbanized areas, communities, occupied dwellings, schools
				and other public or commercial buildings and facilities;
20.1.a.6.E. The extent of reclamation
				completed prior to abandonment and the degree of stability of unreclaimed
				areas, taking into consideration the physical characteristics of the land mined
				and the extent of settlement or revegetation that has occurred naturally with
				them; and
20.1.a.6.F. Based on a
				review of the complete and partial inspection report record for the site during
				at least two consecutive years, the rate at which adverse environmental or
				public health and safety conditions have and can be expected to progressively
				deteriorate.