Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-2-18 - Citizen's Actions18.1. Notice of Citizen's Suits. A person who intends to initiate a civil action on his own behalf under section 25 of the Act shall give notice of intent in accordance with the following: 18.1.a. Notice shall, in all cases, be given by certified mail to the Secretary. A copy of the notice shall also be sent by first class mail to the Office of Surface Mining Field Office Secretary;18.1.b. In legal actions brought against any person, the State of West Virginia or any other governmental instrumentality, agency or agent thereof, notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation of the Act or any regulation, order or permit issued under the Act;18.1.c. Service of notice under this section is complete upon mailing to the last known address of the person being notified;18.1.d. A person giving notice regarding an alleged violation shall state to the extent known: 18.1.d.1 Sufficient information to identify the provision of the Act, regulation or permit allegedly violated;18.1.d.2. The act or omission alleged to constitute a violation;18.1.d.3. The name, address and telephone numbers of the person or persons responsible for the alleged violation;18.1.d.4. The date, time and location of the alleged violation(s);18.1.d.5. The name, address and telephone number of the person giving notice; and18.1.d.6. The name, address and telephone number of legal counsel, if any.18.1.e. A person giving notice of an alleged failure by the Secretary, reclamation board of review, or appropriate Department employee, to perform a mandatory act or duty under the Act, shall state to the extent known:18.1.e.1. The provision of the Act containing the mandatory act or duty allegedly not performed;18.1.e.2. Sufficient information to identify the omission alleged to constitute the failure to perform a mandatory act or duty under the Act;18.1.e.3. The name, address and telephone number of the person giving notice; and18.1.e.4. The name, address and telephone number of legal counsel, if any, of the person giving notice.18.2. Citizen's Request for State Inspections.18.2.a. Any person may request a State inspection by furnishing to the Secretary a signed, written statement (or an oral report followed by a signed, written statement) giving the Secretary reason to believe that a violation exists or that a condition or practice which creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause a significant, imminent environmental harm to land, air, or water resources exists. The statement shall contain a phone number and address where the person can be contacted.18.2.b. The identity of any person supplying information to the Secretary relating to a possible violation or imminent danger or harm shall remain confidential, if requested by that person, unless that person elects to accompany the inspector on the inspection.18.2.c. If an inspection is conducted as a result of information provided to the Secretary by a person as described in subdivision 18.2.a of this subsection, the person shall be notified as far in advance as practicable when the inspection is to occur and shall be allowed to accompany the State inspector during the inspection. Such person has a right of entry to, upon and through the coal exploration or surface coal mining and reclamation operation about which he or she supplied information, but only if he or she is in the presence of and is under the control, direction and supervision of a State inspector while on the mine property. Such right of entry does not include a right to enter buildings without consent of the person in control of the buildings or without a search warrant.18.2.d. Within ten (10) days of the inspection or, if there is no inspection within fifteen (15) days of receipt of the person's written statement, the Secretary shall respond in writing as follows:18.2.d.1. If an inspection was made, a description of the enforcement action taken, which may consist of copies of the State inspection report and all notices of violation and cessation orders;18.2.d.2. If no state inspection was conducted or enforcement action taken, an explanation of the reason why;18.2.d.3. An explanation of the person's right to informal review of the action or inaction of the Secretary; and18.2.d.4. Copies of all materials in paragraphs 18.2.d.1 and 18.2.d.2. of this subdivision within the time limits specified to the person alleged to be in violation, except that the name of the person shall be removed unless disclosure of the person's identity is permitted under subdivision 18.2.b of this subsection.18.2.e. Any person who is or may be adversely affected by a prospecting or surface coal mining operation may notify the Secretary in writing of any alleged failure to make adequate and complete inspections as required by law and regulation. The notification shall include sufficient information to create a reasonable belief that the law and regulations regarding inspections are not being complied with and to demonstrate how the person is or may be adversely affected. The Secretary shall, within fifteen (15) days of receipt of the notice, determine whether or not the statutes or rules concerning inspections are being complied with and if not, shall order an inspection. The Secretary shall furnish the complainant with a written decision of the reasons for his determination and actions, if any, he has taken.18.3. Review of Decision Not to Inspect or Enforce. 18.3.a. Any person who is or may be adversely affected by a surface coal mining or prospecting operation may ask the Secretary to informally review an authorized representative's decision not to inspect or take appropriate enforcement action with respect to any violation alleged by that person in a request for inspection under section 15 of the Act. The request for review shall be in writing and shall include a statement of how the person is or may be adversely affected and why the decision merits review. The Secretary shall conduct the review within thirty (30) days of his receipt of the request and inform the person of the results. The person alleged to be in violation shall be given a copy of the results of the review, except that the name of the person who is or may be adversely affected by a prospecting or surface mining operation shall not be disclosed unless confidentiality has been waived or disclosure is required under the Freedom of Information Act or other State or Federal laws.18.3.b. Any person who is or may be adversely affected by the decision of the Secretary may appeal such decision to the Surface Mine Board pursuant to W. Va. Code § 22B-4-2.18.3.c. Informal review under this section shall not affect any right to formal review or to a citizen's suit.18.4. Public Record.18.4.a. Availability of public records shall be in accordance with W. Va. Code § 29B-1-1 et. seq. Copies of all records, reports, inspection materials or information obtained under the Act, except information in subdivisions 18.2.b and 18.2.c of this subsection, shall be made immediately available to the public at regional offices in the area of mining so that they are conveniently available. Such information shall include copies of all documents relating to applications for and approvals of existing, new or revised prospecting approvals or surface coal mining and reclamation permits, including the revision, renewal, transfer, assignment or sale thereof, and all documents relating to inspection and enforcement actions.18.4.b. All records will be maintained and preserved for a period of not less than five (5) years. Relative to prospecting approvals and surface mining permits, the five-year period applies after final bond release.18.4.c. Information as to coal seams, test borings, core samplings or soil samples pertaining to the analysis of the chemical and physical properties of the coal, except information regarding mineral or element content which is potentially toxic to the environment, shall be kept confidential and shall not be made a matter of public record.18.4.d. Information on the nature and location of archaeological resources shall be kept confidential to the extent required by the archaeological Resources Protection Act of 1979.18.4.e. Permit applications and other related materials requiring public notices shall be made immediately available in the county courthouse or other available public office approved by the Secretary, in the county in which the proposed mining operation is located.18.4.f. The Secretary shall provide procedures, including notice and opportunity to be heard for persons both seeking and opposing disclosure, to ensure confidentiality of qualified confidential information, which shall be clearly identified by the applicant and submitted separately from the remainder of the application. Confidential information is limited to that information identified in paragraph 3.23.f.1 of this rule, subdivisions 18.2.b and 18.2.c. of this subsection, and information relating to the nature and location of archeological resources on public land as required under the archeological Resources Protection Act of 1979.