W. Va. Code R. § 38-2-13

Current through Register Vol. XLI, No. 21, May 23, 2024

Section 38-2-13 - Requirements of a Notice of Intent to Prospect

13.1. Notice of Intent to Prospect Without Land Disturbance. Where prospecting operations are proposed without surface disturbance and without appreciable impacts on land, air, water, or other environmental resources, the requirements of this section and the bonding requirements in section 7 of the Act may be waived by the Secretary subject to the following:

13.1.a. At least fifteen (15) days prior to commencement of any prospecting activities, the operator shall file with the Secretary a written notice of intent to prospect, which notice will include a description of the activities to be conducted and a USGS topographic map showing the area to be prospected.

13.1.b. The Secretary may approve the notice of intent subject to the findings required in subdivision 13.4.b of this section.

13.2. Notice of Intent to Prospect - two hundred fifty (250) tons or less. Any person who intends to commercially sell or use coal extracted pursuant to this subsection in any quantity for reasons other than test purposes shall first obtain a surface mining permit. In addition to the requirements of section 7 of the Act, all prospecting operations shall be subject to the requirements of this subsection.

13.2.a. Application. The Notice of Intent shall be filed in triplicate, in clasp-type binders, on forms prescribed by the Secretary, and shall contain the following information:

13.2.a.1. The name, street address or route number, and telephone number of the operator;

13.2.a.2. Indicate if the operator is a corporation, partnership, or individual;

13.2.a.3. The name, address, and telephone number of the person who will have responsibility for conducting prospecting;

13.2.a.4. The name and address of all owners of surface land and mineral rights;

13.2.a.5. The location of the operation (county, magisterial district and nearestpost office);

13.2.a.6. The anticipated date of commencement and completion of operations;

13.2.a.7. Indicate whether or not the operator or any person, partnership, or corporation associated with the operator has on file, or has ever had on file, in the State of West Virginia a prospect permit and bond or an intent to prospect. If so, list all prospect permits and Notices of Intent to Prospect, together with an indication of their current reclamation status;

13.2.a.8. The operator's source of legal right to enter and conduct operations;

13.2.a.9. The notarized signature of a principal officer of the operator affixed to a statement declaring that the information contained in the Notice is true and correct to the best of his knowledge;

13.2.a.10. The name, address, and telephone number of the applicant's representative who will have on-site responsibility for conducting the operation;

13.2.a.11. A narrative description of the proposed operation including an estimated timetable for conducting and completing each phase of the operation to include reclamation;

13.2.a.12. A description of how the applicant will conduct prospecting operations so as to protect habitats of unique or unusually high value for fish, wildlife, and other related environmental values and critical habitats of threatened or endangered species identified pursuant to the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); and

13.2.a.13. A description of cultural or historical resources listed or known to be eligible for listing on the National Register of historic places and all known archaeological sites located within the proposed prospecting area.

13.2.b. Reclamation Plan. A reclamation plan which includes the following:

13.2.b.1. The method of prospecting;

13.2.b.2. The method for controlling runoff and sedimentation;

13.2.b.3. The method of regrading;

13.2.b.4. A plan for revegetation;

13.2.b.5. The method for sealing, casing or otherwise managing prospecting holes, bore holes, wells or other exposed underground openings created during the prospecting; and

13.2.b.6. The method of constructing and/or utilizing roads.

13.2.c. Maps. A map showing topographic features, streams, bodies of water, manmade structures, utility lines, etc. equivalent to that of a United States geological survey topographic quadrangle map (scale 1" = 2,000'). The following additional information shall also be shown:

13.2.c.1. The surface and mineral owners of the tract(s) and property lines within the area to be prospected, including occupied dwellings not otherwise shown on the map;

13.2.c.2. The quadrangle title with a north arrow;

13.2.c.3. Clearly indicate the name(s) of the receiving stream(s);

13.2.c.4. Show by proper markings the approximate location of the cropline(s) and name of the seam(s);

13.2.c.5. Show the area(s) to be disturbed and the approximate location of excavations, trenches, drill holes, proposed and existing roads, and list the number of disturbed acres and;

13.2.c.6. Show the location of critical habitats of any threatened or endangered species identified within the proposed prospecting area.

13.3. Notice of Intent to Prospect - Greater than two hundred fifty (250) Tons. Any person who intends to commercially sell or use coal extracted pursuant to this subsection in any quantity for reasons other than test purposes shall first obtain a surface mining permit. If prospecting will remove more than 250 tons of coal, the Notice of Intent to Prospect shall include, in addition to the requirements of subsection 13.2 of this section, the following:

13.3.a. The applicant shall prepare a narrative discussion of a feasibility study for the site, including the specific reasons for extraction of the amount of tonnage for which permission is requested. The narrative shall be of sufficient detail to enable the Secretary to make a determination that the proposed extraction and sale of the coal is incidental to testing of the coal to determine if it is of a mineable and merchandisable quality, so as to make it possible to conduct surface mining and reclamation operations on the site for which a permit application can be submitted at a later date. The narrative shall explain in detail why other means of prospecting/exploration, such as core drilling, involving extraction of less than 250 tons of coal, are not adequate to determine the quality of the coal and the feasibility of future surface mining and reclamation operations on the site. Form, generic or general statements by the applicant of a need for quality testing of more than 250 tons shall not be adequate grounds for the Secretary's approval of removal of greater than 250 tons. The narrative shall contain at a minimum:

13.3.a.1. A demonstration that the amount of coal to be removed under the notice of intent to prospect application is not the total reserve of coal but is a random sampling of a larger reserve.

13.3.a.2. Demonstrates that the coal testing is necessary for the development of a surface coal mining and reclamation operation for which a surface coal mining operation permit application is to be submitted in the near future, and that the proposed commercial use or sale of coal extracted during prospecting operations is solely for the purpose of testing the coal.

13.3.a.3. A demonstration that the application is for prospecting and is not surface mining or an "early start-up" for a surface mining operation.

13.3.a.4. A statement that reclamation will be completed within three (3) months of initial disturbance of each site to be disturbed under the notice of intent to prospect.

13.3.a.5. A description of any endangered or threatened species identified within the prospecting area.

13.3.a.6. The location of cultural or historical resources listed or known to be eligible for listing on the National Register of historic places and all known archaeological sites located within the proposed prospecting area.

13.3.a.7. Any other information required by the Secretary regarding known or unknown historic or archaeological resources.

13.3.a.8. A narrative description of the methods and equipment to be used to conduct prospecting and reclamation.

13.3.b. The name of the company that will receive the tonnage for test burning or other testing purposes and further identify with specificity the precise tests that will be conducted on the coal and the location of the test site. Furthermore, the applicant shall state that the testing proposed in the application has already been agreed to by the applicant and the company that will receive the coal.

13.3.c. The intended end user and/or agent or broker shall provide a statement to be made a part of the application which will set forth the specific reasons for the test, including why the coal may be so different from the intended user's other coal supplies as to require testing; the amount of coal necessary for the test and why a lesser amount is not sufficient; and a description of the specific tests that will be conducted.

13.3.d. A map which contains all information required in subsection 13.1 of this section and which additionally shows the location of critical habitats of threatened or endangered species identified within the proposed prospecting area.

13.3.e. A copy of a legal notice to be published in a newspaper of general circulation in the county where prospecting will occur. The ad shall contain the following:

13.3.e.1. The name and business address of the operator;

13.3.e.2. The date the application was filed and the date of close of a public comment period which date shall not be less than fifteen (15) days after the date of publication;

13.3.e.3. The address of the office of the Department of Environmental Protection where any person whose interest is or may be adversely affected shall have the right to submit written comments;

13.3.e.4. A description of the general area where prospecting will occur;

13.3.e.5. A statement that an excess of two hundred fifty (250) tons of coal will be removed;

13.3.e.6. The purpose for removing more than two hundred fifty (250) tons; and

13.3.e.7. An estimate of the total tonnage to be removed.

13.4. Approval of Notice of Intent to Prospect - Greater than two hundred fifty (250) Tons.

13.4.a. The Secretary shall act upon an administratively complete application for a prospecting approval and any written comments within a reasonable period of time, but in no event shall action be taken prior to the close of the public comment period.

13.4.b. The Secretary shall approve a complete and accurate application for a prospecting approval filed in accordance with this section if he finds, in writing, that the applicant has demonstrated that the prospecting and reclamation operation described in the application will:

13.4.b.1. Be conducted in accordance with this section, and other applicable provisions of this rule, the Act, and the application;

13.4.b.2. Not jeopardize the continued existence of an endangered or threatened species listed pursuant to section 4 of the Endangered Species Act of 1973 ( 16 U.S.C. 1533 ) or result in the destruction or adverse modification of critical habitat of those species; and

13.4.b.3. Not adversely affect any cultural or historical resources listed on the National Register of Historic Places, pursuant to the National Historic Preservation Act, as amended (16 U.S.C. Sec. 470 et seq., 1976, Supp V), unless the proposed prospecting has been approved by both the Secretary and the agency with jurisdiction over such matters.

13.4.c. Terms of approval issued by the Secretary shall contain conditions necessary to ensure that the prospecting and reclamation operations will be conducted in compliance with this rule, the Act and the application.

13.4.d. The Secretary shall notify the applicant, the appropriate local government officials, and other commenters on the application, in writing, of his decision on the application. If the application is disapproved, the notice to the applicant shall include a statement of the reason for disapproval. Public notice of the decision on each application shall be posted by the Secretary at the nearest Department of Environmental Protection office in the vicinity of the proposed prospecting operations.

13.4.e. Any person having an interest which is or may be adversely affected by a decision of the Secretary pursuant to subdivision 13.4.d of this subsection shall have the opportunity for administrative and judicial review.

13.4.f. The Secretary shall not approve the extraction of more than 250 tons for any reason other than that the coal will be tested for quality and combustibility.

13.4.g. The Secretary shall monitor the operation of each and every prospecting approval granted for total compliance with the provisions of the Act, this rule, and the terms and conditions of the approval application.

13.4.h. The operator shall submit a sworn statement to the local surface mining reclamation inspector prior to the completion of coal removal which will verify that the coal was used for the purpose for which the notice of intent to prospect was originally granted.

13.4.i. If the Secretary determines that, or suspects on the basis of information made available to him that, a prospecting operation is not being conducted in the precise manner set forth in the notice of intent to prospect and/or the accompanying narrative, the Secretary shall take immediate steps to compel compliance or to establish that violations have occurred. Such steps may include, but would not be limited to, checking weight tickets and the inspection of end-user records.

13.5. Performance Standards.

13.5.a. This subsection establishes minimum performance standards applicable to prospecting operations provided that upon an affirmative demonstration that drilling operations that do not substantially disturb the land and are to be conducted solely for establishing property values for purposes of taxation or highway construction purposes, such drilling shall be exempted from this section. The commercial sale or use of coal extracted under an approval pursuant to subsection 13.1 or 13.2 of this section except for test purposes as provided therein is prohibited.

13.5.b. Blasting. Blasting is prohibited on prospecting operations unless otherwise approved by the Secretary. Any blasting approved must be conducted in accordance with section 6 of this rule.

13.5.c. Drainage. All disturbances created by prospecting operations shall be conducted in such a manner as to prevent or control erosion, siltation, pollution of water, and to minimize disturbance to the prevailing hydrologic balance. Such operations shall be exempt from specific design and construction criteria for sediment control structures only if stabilization to control erosion is achieved through alternative measures. Any operation which will substantially disturb the natural land surface shall be required by the Secretary to install drainage control structures in accordance with section 5 of this rule.

13.5.d. All prospecting operations carried out in steep slope conditions shall be conducted in a manner consistent with the steep slope requirements provided for in subsection (d) of section 13 of the Act and subsection 14.8 of this rule.

13.5.e. The Secretary may limit prospecting operations from encroaching nearer than one hundred feet (100') of a perennial or intermittent stream, provided that roads or access ways may be located within one hundred feet (100') of an intermittent or perennial stream. Roads shall not be constructed up a stream bed or drainage channel or in close proximity to such channel so as to significantly alter the normal flow of water.

13.5.f. Each prospecting hole, borehole, well or other exposed underground opening created during prospecting shall be cased, sealed, or otherwise managed to prevent acid or toxic drainage from entering ground or surface water, or substantial degradation of ground water quality or quantity. All such holes or openings shall be sealed, plugged, or otherwise managed to insure the safety of people, livestock, fish and wildlife, machinery, etc., during prospecting. When no longer needed, such holes or openings shall be permanently closed.

13.5.g. All toxic or acid-forming materials encountered while prospecting shall be handled in accordance with the requirements of subsections 14.5 and 14.6 of this permit.

13.5.h. All facilities and equipment shall be removed from the prospecting area when they are no longer needed.

13.5.i. Topsoil shall be removed, stored and redistributed on disturbed areas as necessary to assure successful revegetation.

13.5.j. All areas disturbed during prospecting operations shall be regraded to approximate original contour within three months of initial disturbance unless reclamation has been waived pursuant to receipt of an appropriate surface mine application number (SMA); provided, that reclamation cannot be delayed more than one (1) year from receipt of a surface mine application number.

13.5.k. All disturbed areas must be revegetated in a manner consistent with section 9 of this permit.

13.5.l. The operation shall be conducted so as to provide protection of endangered and threatened species and their critical habitats as determined by the Endangered Species Act of 1973 ( 16 U.S.C. 1531, et seq.) or habitats of unique or unusual high value for fish or wildlife.

13.6. Prospecting Roads.

13.6.a. Each prospecting road shall be located, designed, constructed, reconstructed, used, maintained, and reclaimed so as to:

13.6.a.1. Control or prevent erosion, siltation and the air pollution attendant to erosion, including road dust as well as dust occurring on other exposed surfaces, by measures such as vegetating, watering, using chemicals or other dust suppressants, or otherwise stabilizing all exposed surfaces in accordance with current, prudent engineering practices;

13.6.a.2. Control or prevent damage to fish, wildlife, or their habitat and related environmental values;

13.6.a.3. Control or prevent additional contributions of suspended solids to stream flow or runoff outside the permit area;

13.6.a.4. Neither cause nor contribute to, directly or indirectly, the violation of State or Federal water quality standards applicable to receiving waters;

13.6.a.5. Refrain from seriously altering the normal flow of water in streambeds or drainage channels;

13.6.a.6. Prevent or control damage to public or private property, including the prevention or mitigation of adverse effects on lands within the boundaries of units of the National Park System, the National Wildlife Refuge System, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including designated study rivers, and National Recreation Areas designated by Act of Congress; and

13.6.a.7. Prevent the use of acid and toxic-forming substances inroad surfacing.

13.6.b. To ensure environmental protection appropriate for their planned duration and use, including consideration of the type and size of equipment used, the design and construction or reconstruction of prospecting roads shall incorporate appropriate limits for grade, width, surface materials, surface drainage control, culvert placement, and culvert size, in accordance with current, prudent engineering practices, and any design criteria established by the Secretary.

13.6.c. No part of any prospecting road shall be located in the channel of an intermittent or perennial stream unless specifically approved by the Secretary in accordance with the applicable provisions of subdivision 4.2.b of this rule. Roads shall be located to minimize downstream sedimentation and flooding.

13.6.d. A prospecting road shall be maintained to meet the performance standards of this subsection and any additional criteria specified by the Secretary.

13.6.e. A prospecting road damaged by a catastrophic event, such as a flood or earthquake, shall be repaired as soon as is practicable after the damage has occurred.

13.6.f. Reclamation. A prospecting road not to be retained under an approved postmining land use shall be reclaimed in accordance with the approved reclamation plan as soon as practicable after it is no longer need for prospecting operations. This reclamation shall include:

13.6.f.1. Closing the road to traffic;

13.6.f.2. Removing all bridges and culverts unless approved as part of the postmining land use;

13.6.f.3. Removing or otherwise disposing of road-surfacing materials that are incompatible with the postmining land use and revegetation requirements;

13.6.f.4. Reshaping cut and fill slopes as necessary to be compatible with the postmining land use and to complement the natural drainage pattern of the surrounding terrain;

13.6.f.5. Protecting the natural drainage patterns by installing dikes or cross drains as necessary to control surface runoff and erosion; and

13.6.f.6. Scarifying and ripping the roadbed; replacing topsoil or substitute material, and revegetating disturbed surfaces in accordance with section 9 and subsection 14.3 of this rule.

13.7. Expiration. A notice of intent to prospect shall be valid only for the time period indicated in the application, which period shall not exceed two (2) years. The Secretary may approve an extension of the time period upon a request by the operator subject to the reclamation requirements of paragraph (h), section 7 of the Act and this section.

13.8. Bond Release. The bond or other securities accompanying a notice of intent shall be released upon satisfactory regrading and establishment of a permanent vegetative cover. All applications for bond release shall be accompanied by a final map showing the total disturbed area of the prospecting operation.

13.9. Notice on Site. All operators conducting prospecting activities shall, while in the prospecting areas, have in their possession, a copy of the written approval of notice of intent for such activities issued by or submitted to the Secretary.

13.10. Public Records. All information submitted to the Department of Environmental Protection as a part of the notice of intent to prospect, as required in the Act and this section, shall be made available for public inspection and copying at the nearest Department of Environmental Protection office; provided, that information submitted to the Secretary pursuant to this subsection which contains trade secrets or privileged commercial or financial information which relates to the competitive rights of the person filing such information or other persons who may be affected, is certified information and shall not be available for public examination.

13.11. Lands Unsuitable Designation. Notwithstanding any other provision of this section, any person who proposes to conduct prospecting operations on lands which have been designated as unsuitable for surface mining pursuant to section 22 of the Act, shall prepare and file a notice of intent in accordance with subsection 13.3 of this section. Approval of the notice of intent shall be in accordance with subsection 13.4 of this section.

W. Va. Code R. § 38-2-13