Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-2-24 - Exemption for Coal Extraction Incidental to Extraction of Other Minerals24.1. Exemption determination. The term other minerals as used in this section means any commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste and fill material. No later than 90 days after filing of an administratively complete request for exemption, the Secretary shall make a written determination whether, and under what conditions, the persons claiming the exemption are exempt under this section, and shall notify the person making the request and persons submitting comments on the application of the determination and the basis for the determination. The determination of exemption shall be based upon information contained in the request and any other information available to the regulatory authority at that time. If the Secretary fails to provide a determination as specified in this section, an applicant who has not begun extraction may commence pending a determination Unless the Secretary issues an interim finding, together with reasons, therefore, that the applicant may not begin coal extraction. Any person adversely affected by a determination of the Secretary pursuant to this section may file an appeal only in accordance with the provisions of article one, chapter twenty-two-b of this code, within thirty days after receipt of the determination. The filing of an appeal does not suspend the effect of the determination.24.2. Contents of request for exemption. An request for exemption shall be made part of a quarrying application and shall include at a minimum: 24.2.a. The names and business address of the requestor to include a street address or route number;24.2.b. A list of the minerals to be extracted;24.2.c. Estimates of annual production of coal and the other minerals over the anticipated life of the operation;24.2.d. A reasonable estimate of the number of acres of coal that will be extracted;24.2.e. Evidence of publication of a public notice for an application for exemption. The notice that an application for exemption has been filed with the Secretary shall be published in a newspaper of general circulation in the county in which the operation is located and shall be published once and provide a thirty day comment period. The public notice must contain at a minimum:24.2.e.1. The quarrying number identifying the operation;24.2.e.2. A clear and accurate location map of a scale and detail found in the West Virginia General Highway Map. The map size will be at a minimum four inches (4") x four inches (4"). longitude and latitude lines and north arrow will be indicated on the map and such lines will cross at or near the center of the quarrying operation;24.2.e.3. The names and business address of the requestor to include a street address or route number;24.2.e.4. A narrative description clearly describing the location of the quarrying operation;24.2.e.5. The name and address of the Department of Environmental Protection Office where written comments on the request may be submitted;24.2.f. geologic cross sections, maps or plans of the quarrying operation determine the following information: 24.2.f.1. The locations (latitude and longitude) and elevations of all bore holes;24.2.f.2. The nature and depth of the various strata or overburden including geologic formation names and/or geologic members;24.2.f.3. The nature and thickness of any coal or other mineral to be extracted;24.2.g. A map of appropriate scale which clearly identifies the coal extraction area versus quarrying area;24.2.h. A general description of coal extraction and quarrying activities for the operation;24.2.i. Estimated annual revenues to be derived from bona fide sales of coal and other minerals to be extracted;24.2.j. If coal or the other minerals are to be used rather than sold, estimated annual fair market values at the time of projected use of the coal and other minerals to be extracted;24.2.k The basis for all annual production, revenue, and fair market value estimates;24.2.l. A summary of sale commitments and agreements, if any, that the applicant has received for future delivery of other minerals to be extracted from the mining area, or a description of potential markets for the other minerals;24.2.m. If the other minerals are to be commercially used by the applicant, a description specifying the use; and24.2.n. Any other information pertinent to the qualification of the operation as exempt.24.3. Requirements for exemption. 24.3.a. Activities are exempt from the requirements of the Act if all of the following are satisfied: 24.3.a.1. The production of coal extracted from the mining area determined annually as described in this paragraph does not exceed 16 2/3 percent of the total annual production of coal and other minerals removed during such period for purposes of bona fide sale or reasonable commercial use.24.3.a.2. Coal is extracted from a geological stratum lying above or immediately below the deepest stratum from which other minerals are extracted for purposes of bona fide sale or reasonable commercial use.24.3.a.3. The revenue derived from the coal extracted from the mining area, determined annually does not exceed fifty (50) percent of the total revenue derived from the coal and other minerals removed for purposes of bona fide sale or reasonable commercial use. If the coal extracted or the minerals removed are used by the operator or transferred to a related entity for use instead of being sold in a bona fide sale, then the fair market value of the coal or other minerals shall be calculated at the time of use or transfer and shall be considered rather than revenue.24.3.b. Persons seeking or that have obtained an exemption from the requirements of the Act shall comply with the following:24.3.b.1. Each other mineral upon which an exemption under this section is based must be a commercially valuable mineral for which a market exists or which is quarried in bona fide anticipation that a market will exist for the mineral in the reasonably foreseeable future, not to exceed twelve months. A legally binding agreement for the future sale of other minerals is sufficient to demonstrate the above standard.24.3.b.2. If either coal or other minerals are transferred or sold by the operator to a related entity for its use or sale, the transaction must be made for legitimate business purposes.24.4. Conditions of exemption. A person conducting activities covered by this part shall:
24.4.a. Maintain on-site the information necessary to verify the exemption including, but not limited to, commercial use and sales information, extraction tonnages, and a copy of the exemption application and the Department's exemption approval;24.4.b. Notify the Department of Environmental Protection upon the completion or permanent cessation of all coal extraction activities.24.5. Stockpiling of minerals. 24.5.a. Coal extracted and stockpiled may be excluded from the calculation of annual production until the time of its sale, transfer to a related entity or use: 24.5.a.1. Up to an amount equaling a 12-month supply of the coal required for future sale, transfer or use as calculated based upon the average annual sales, transfer and use from the mining area over the two preceding years; or24.5.a.2. For a mining area where coal has been extracted for a period of less than two years, up to an amount that would represent a 12-month supply of the coal required for future sales, transfer or use as calculated based on the average amount of coal sold, transferred or used each month.24.5.b. The Department of Environmental Protection shall disallow all or part of an operator's tonnages of stockpiled other minerals for purposes of meeting the requirements of this part if the operator fails to maintain adequate and verifiable records of the mining area of origin, the disposition of stockpiles or if the disposition of the stockpiles indicates the lack of commercial use or market for the minerals. The Department of Environmental Protection may only allow an operator to utilize tonnages of stockpiled other minerals for purposes of meeting the requirements of this part if:
24.5.b.1. The stockpiling is necessary to meet market conditions or is consistent with generally accepted industry practices; and24.5.b.2 Except as provided in. 24.5.b.3. of this section, the stockpiled other minerals do not exceed a 12-month supply of the mineral required for future sales as approved by the regulatory authority on the basis of the exemption application.24.5.b.3. The Department of Environmental Protection may allow an operator to utilize tonnages of stockpiled other minerals beyond the 12-month limit established in 24.5.b.2. of this section if the operator can demonstrate to the Department of Environmental Protection's satisfaction that the additional tonnage is required to meet future business obligations of the operator, such as may be demonstrated by a legally binding agreement for future delivery of the minerals.24.5.b.4. The Department of Environmental Protection may periodically revise the other mineral stockpile tonnage limits in accordance with the criteria established by 24.5.b.2. and 3. of this section based on additional information available to the Department of Environmental Protection.24.6. Revocation and enforcement. 24.6.a. The Department of Environmental Protection shall conduct an annual compliance review of the operation requesting exemption.24.6.b. If the Department of Environmental Protection has reason to believe that a specific operation was not exempt at the end of the previous reporting period, is not exempt, or will be unable to satisfy the exemption criteria at the end of the current reporting period, the Department of Environmental Protection shall notify the operator that the exemption may be revoked and the reason(s) therefore. The exemption will be revoked unless the operator demonstrates to the Department of Environmental Protection within 30 days that the operation in question should continue to be exempt.24.6.c. If the Department of Environmental Protection finds that an operator has not demonstrated that activities conducted in the operation area qualify for the exemption, the Department of Environmental Protection shall revoke the exemption and immediately notify the operator and commenter(s). If a decision is made not to revoke an exemption, the Secretary shall immediately notify the operator and commenter(s).24.6.d. Any person adversely affected by a determination of the Secretary pursuant to this section may file an appeal only in accordance with the provisions of article one, chapter twenty-two-b of this code, within thirty days after receipt of the determination. The filing of an appeal does not suspend the effect of the determination.24.6.e. Direct enforcement. 24.6.e.1. An operator mining in accordance with the terms of an approved exemption shall not be cited for violations of WV §22-3 or §38-2 et seq. that occurred prior to the revocation of the exemption. Provided, however, an operator who does not conduct activities in accordance with the terms of an approved exemption and knows or should have known that the activities are not in accordance with the approved exemption shall be subject to direct enforcement action for violations of WV §22-3 or §38-2 et seq. that occur during the period of the activities.24.6.e.2. Upon revocation of an exemption or denial of an exemption application, an operator shall stop conducting surface coal mining operations until a permit is obtained, and shall comply with the reclamation standards of WV §22-3 or §38-2 et seq. with regard to conditions, areas, and activities existing at the time of revocation or denial.24.7. Reporting requirements. 24.7.a.1. following approval by the Department of Environmental Protection of an exemption for an operation, the person receiving the exemption shall file a quarterly production report with the Department of Environmental Protection containing the information specified in 24.7.a.3. of this section.24.7.a.2. The report shall be filed no later than 30 days after the end of each quarter.24.7.a.3. The information in the report shall cover:24.7.a.3.A. Quarterly production of coal and other minerals, and24.7.a.3.B. The cumulative production of coal and other minerals.24.7.a.3.C. The number of tons of coal stockpiled;24.7.a.3.D. The number of tons of other minerals stockpiled by the operator.24.7.b.1. following approval by the Department of Environmental Protection of an exemption for an operation, the person receiving the exemption shall file an annual production report with the Department of Environmental Protection containing the information specified in. 24.7.b.3. of this section.24.7.b.2. The report shall be filed no later than 30 days after the end of each calendar year.24.7.b.3. The information in the report shall include: 24.7.b.3.a. The number of tons of extracted coal sold in bona fide sales and the total revenue derived from these sales;24.7.b.3.b. The number of tons of coal extracted and used or transferred by the operator or related entity and the estimated total fair market value of this coal;24.7.b.3.c. The number of tons of coal stockpiled;24.7.b.3.d. The number of tons of other commercially valuable minerals extracted and sold in bona fide sales and total revenue derived from these sales;24.7.b.3.e. The number of tons of other commercially valuable minerals extracted and used or transferred by the operator or related entity and the estimated total fair market value of these minerals;24.7.b.3.f. The number of tons of other commercially valuable minerals removed and stockpiled by the operator;24.7.b.3.g. The annual production of coal and other minerals and the annual revenue derived from coal and other minerals; and24.7.b.3.h. The annual production of coal and other minerals and the annual revenue derived from coal and other minerals during the preceding year.24.8. Public Availability of Information.24.8.1. Except as provided in 24.8.2, all information submitted to the Secretary shall be made immediately available for public inspection and copying at the office with jurisdiction over coal mining in the locality of the subject exempt operation, until at least three (3) years after expiration of the period during which the subject mining area is active.24.8.2. The Secretary may keep information submitted to the Secretary confidential if the person submitting it requests in writing, at the time of submission, that it be kept confidential and if the information concerns trade secrets or is privileged commercial or financial information of the persons intending to conduct operations under this rule.24.8.3. Information requested to be held as confidential under subsection 24.8.2 shall not be made publicly available until after notice and opportunity to be heard is afforded persons both seeking and opposing disclosure of the information.24.9. Right of Inspection and Entry. 24.9.1. Authorized representatives of the Secretary and the Secretary of the U.S. Department of the Interior shall have the right to conduct inspections of operations claiming exemption.24.9.2. Each authorized representative of the Secretary and the Secretary of the U.S. Department of the Interior conducting an inspection under this rule shall: 24.9.2.a. Have a right of entry to, upon, and through any mining and reclamation operations without advance notice or a search warrant, upon presentation of appropriate credentials;24.9.2.b. At reasonable times and without delay, have access to and copy any records relevant to the exemption; and24.9.2.c. Have a right to gather physical and photographic evidence to document conditions, practices, or violations at a site.24.9.3. No search warrant shall be required with respect to any activity under 24.9.1 and 24.9.2., except that a search warrant may be required for entry into a building.