Chapter 5B. Economic Development Act Of 1985


Published: 2015

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WEST VIRGINIA CODE











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WVC 5B-

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

WVC 5 B- 2 A-

ARTICLE 2A. OFFICE OF COALFIELD COMMUNITY DEVELOPMENT.







WVC 5 B- 2 A- 1

§5B-2A-1. Legislative findings and declaration.

The Legislature hereby finds and declares the following:

(a) Coal mining has made and continues to make significant

contributions to the economy of West Virginia. These contributions

include the creation of quality jobs that pay high wages and

provide good benefits; the consequent stimulation and support of

mining contractors, suppliers of mining equipment and services,

other mining-related industries and numerous providers of goods and

services that are indirectly related to coal mining and dependent

upon its existence and prosperity; the generation of significant

severance and other tax revenues that support important economic

development, infrastructure and education initiatives in mining

communities and throughout the state; the support of civic,

education and service groups in mining communities; and, in the

case of surface mining operations, including mountaintop mining,

the creation of much-needed flat land for economic development and

recreational uses.

(b) The development and increasing prominence of surface

mining operations, including mountaintop mining, has brought

increasingly high levels of productivity, safety and efficiency to

the state's mining industry, enabling the recovery of coal that

could not otherwise be mined and marketed profitably, increasing

the severance tax revenues and other economic benefits described in

subsection (a) of this section and ensuring the competitiveness of

the state's coal industry from a national and international perspective.

(c) Where implemented, surface mining operations, particularly

mountaintop mining, tend to extract most, if not all, of the

recoverable coal reserves in an accelerated fashion. For a state

long dependent on the employment and revenue coal mining provides,

this reality should be sobering and there is no place in which the

comprehension of this reality is more crucial than the coalfields

of West Virginia. Long dependent primarily on mining, this area

must plan for a future without coal. The state and its

subdivisions have a legitimate interest in securing that future.

(d) The coal industry and those related to the extraction of

mineral resources benefit from the mining of our state's coal

through mining practices which impact its citizens -- some in a

negative way -- and through practices which will extract

significant portions of coal reserves in an accelerated fashion.

Those industries must therefore accept a greater responsibility to

help address the long-term needs of the communities and citizens

impacted by their activities.

(e) Once it becomes public knowledge that a permit is being

sought, the marketability of property may change and the relative

bargaining power of the parties may change with it. The potential

for negative impact on those living in communities near surface

mining operations may limit the options and bargaining power of the

property owners.

(f) Surface mining operations, including mountaintop mining, present unique challenges to the coal mining industry and the state

and its citizens, especially those living and working in

communities that rely heavily upon these methods of mining. This

requires that these communities, in conjunction with county

commissions, state, local, county and regional development

authorities, landowners and civic, community and business groups

and interested citizens, develop plans related to the communities'

long-term economic viability.

(g) The Division of Energy, as the state agency charged with

energy policy and development activities, shall take a more active

role in the long-term economic development of communities in which

these mining methods are prevalent and shall establish a formal

process to assist property owners in the determination of the fair

market value where the property owner and the coal company

voluntarily enter into an agreement relating to the purchase and

sale of such property.







WVC 5 B- 2 A- 2

§5B-2A-2. Application of article.

(a) The provisions of this article shall apply to all

surface-mining operations, except:

(1) The surface operations and surface impacts incident to an

underground coal mine; and

(2) Surface-mining operations of operators that: (A)

Establish that their probable total annual coal production from all

locations during any consecutive twelve-month period, either during

the term of the permit or during the first five years after

issuance of the permit, whichever period is shorter, will not

exceed three hundred thousand tons, as determined pursuant to rules

promulgated by the division; and (B) otherwise qualify for the

small operator assistance program authorized under the federal

Surface-Mining Control and Reclamation Act of 1977, as amended, and

the federal regulations promulgated thereunder, as amended.

(b) The provisions of this article shall not apply: (1) To

underground coal mining operations; or (2) to the extraction of

minerals by underground mining methods or the surface impacts

thereof.







WVC 5 B- 2 A- 3

§5B-2A-3. Definitions.

(a) For the purpose of this article, the following terms have

the meanings ascribed to them:

(1) "Department" means the Department of Environmental

Protection established in article one, chapter twenty-two of this

code;

(2) "Office" means the Office of Coalfield Community

Development;

(3) "Operator" means the definition in section three, article

three, chapter twenty-two of this code; and

(4) "Renewable and alternative energy" means energy produced

or generated from natural or replenishable resources other than

traditional fossil fuels or nuclear resources and includes, without

limitation, solar energy, wind power, hydropower, geothermal

energy, biomass energy, biologically derived fuels, energy produced

with advanced coal technologies, coalbed methane, fuel produced by

a coal gasification or liquefaction facility, synthetic gas, waste

coal, tire-derived fuel, pumped storage hydroelectric power or

similar energy sources.

(b) Unless used in a context that clearly requires a different

meaning or as otherwise defined herein, terms used in this article

shall have the definitions set forth in this section.







WVC 5 B- 2 A- 4

§5B-2A-4. Office of Coalfield Community Development.

(a) The Office of Coalfield Community Development is hereby

established within the Division of Energy.

(b) The director of the Division of Energy may appoint a chief

to administer the office, who will serve at the will and pleasure

of the Director of the Division of Energy.







WVC 5 B- 2 A- 5

§5B-2A-5. Powers and duties.

The office has and may exercise the following duties, powers

and responsibilities:

(1) To establish a procedure for developing a community impact

statement as provided in section six of this article and to

administer the procedure so established;

(2) To establish a procedure for determining the assets that

could be developed in and maintained by the community to foster its

long-term viability as provided in section eight of this article

and to administer the procedure so established;

(3) To establish a procedure for determining the land and

infrastructure needs in the general area of the surface mining

operations as provided in section nine of this article and to

administer the procedure so established;

(4) To establish a procedure to develop action reports and

annual updates as provided in section ten of this article and to

administer the procedure so established;

(5) To determine the need for meetings to be held among the

various interested parties in the communities impacted by surface

mining operations and, when appropriate, to facilitate the

meetings;

(6) To establish a procedure to assist property owners in the

sale of their property as provided in section eleven of this

article and to administer the procedure so established;

(7) In conjunction with the department, to maintain and operate a system to receive and address questions, concerns and

complaints relating to surface mining; and

(8) On its own initiative or at the request of a community in

close proximity to a mining operation, or a mining operation, offer

assistance to facilitate the development of economic or community

assets. Such assistance shall include the preparation of a master

land use plan pursuant to the provisions of section nine of this

article.







WVC 5 B- 2 A- 6

§5B-2A-6. Community impact statement.

(a)(1) The operator shall develop a community impact

statement, as described in this section, which shall be submitted

to the office within sixty days of the filing of a surface mining

application pursuant to the provisions of article three, chapter

twenty-two of this code. Failure to submit a community impact

statement to the office shall be considered a violation under the

provisions of section seventeen of said article; and

(2) The operator shall provide copies of the community impact

statement to the department's Office of Mining Reclamation and

Office of Explosives and Blasting and to the county commissions,

county clerks' offices and local, county or regional development or

redevelopment authorities of the areas to be affected by the

surface mining operations.

(b) The community impact statement, where practicable, shall

not be a highly technical or legalistic document, but shall be

written in a clear and concise manner understandable to all

citizens. The community impact statement shall include the

following:

(1) The amount and location of land to be mined or used in the

actual mining operations;

(2) The expected duration of the mining operations in each

area of the community;

(3) The extent of anticipated mining-related property

acquisitions, to the extent that such acquisitions are known or knowable;

(4) The intentions of the surface and mineral owners relative

to the acquired property, to the extent that such intentions are

known or knowable;

(5) A statement of the post-mining land use for all land

within the permit boundary;

(6) The intended blasting plan and the expected time and

duration it will affect each community;

(7) Information concerning the extent and nature of valley

fills and the watersheds to be affected;

(8) Economic information, such as the number of jobs created

and annual coal production resulting from the surface mining

operation, the anticipated life of the mining operation and such

other information as may be deemed appropriate; and

(9) An acknowledgment of the recommendations of any approved

master land use plan that pertains to the land proposed to be

mined, including an acknowledgment of the infrastructure components

needed to accomplish the designated post-mine land use required by

the plan.

(c) Where the operator makes any significant revision to the

permit application under section eighteen, article three, chapter

twenty-two of this code, which revision substantially affects any

of the information provided in subsection (b) of this section, the

operator shall revise the affected provisions of its community

impact statement and shall submit such revisions as set forth in subsection (a) of this section.

(d) Within thirty days of receipt of a community impact

statement pursuant to subdivision (2), subsection (a) of this

section or a revised community impact statement pursuant to

subsection (c) of this section, the local, county or regional

development or redevelopment authorities of the areas to be

affected by the surface mining operations shall provide a written

acknowledgment of the receipt of this community impact statement or

revised community impact statement to the department's Division of

Mining Reclamation, to the county commission or county commissions

and to the office.

(e) The provisions of this section shall apply as follows:

(1) To all surface mining permits granted after June 11, 1999;

and

(2) At the first renewal date of all previously issued

permits: Provided, That the permittee shall be afforded ninety

days from said date to comply with the provisions of this section.







WVC 5 B- 2 A- 7

§5B-2A-7.

Repealed.

Acts, 2002 Reg. Sess., Ch. 58.







WVC 5 B- 2 A- 8

§5B-2A-8. Determining and developing needed community assets.

(a) The office shall determine the community assets that may

be developed by the community, county or region to foster its

viability when surface mining operations are completed.

(b) Community assets to be identified pursuant to subsection

(a) of this section may include the following:

(1) Water and wastewater services;

(2) Developable land for housing, commercial development or

other community purposes;

(3) Recreation facilities and opportunities; and

(4) Education facilities and opportunities.

(c) The operator shall be required to prepare and submit to

the office the information set forth in this subsection as follows:

(1) A map of the area for which a permit under article three,

chapter twenty-two of this code is being sought or has been

obtained;

(2) The names of the surface and mineral owners of the

property to be mined pursuant to the permit; and

(3) A statement of the post-mining land use for all land which

may be affected by the mining operations.

(d) In determining the nature and extent of the needed

community assets, the office shall consider at least the following:

(1) An evaluation of the future of the community once mining

operations are completed;

(2) The prospects for the long-term viability of any asset developed under this section;

(3) The desirability of foregoing some or all of the asset

development required by this section in lieu of the requirements of

section nine of this article; and

(4) The extent to which the community, local, state or the

federal government may participate in the development of assets the

community needs to assure its viability.







WVC 5 B- 2 A- 9

§5B-2A-9. Securing developable land and infrastructure.

(a) The office shall determine the land and infrastructure

needs in the general area of the surface mining operations.

(b) For the purposes of this section, the term "general area"

shall mean the county or counties in which the mining operations

are being conducted or any adjacent county.

(c) To assist the office the operator shall be required to

prepare and submit to the office the information set forth in this

subsection as follows:

(1) A map of the area for which a permit under article three,

chapter twenty-two of this code is being sought or has been

obtained;

(2) The names of the surface and mineral owners of the

property to be mined pursuant to the permit; and

(3) A statement of the post-mining land use for all land which

may be affected by the mining operations.

(d) In making a determination of the land and infrastructure

needs in the general area of the mining operations, the office

shall consider at least the following:

(1) The availability of developable land in the general area;

(2) The needs of the general area for developable land;

(3) The availability of infrastructure, including, but not

limited to, access roads, water service, wastewater service and

other utilities;

(4) The amount of land to be mined and the amount of valley to be filled;

(5) The amount, nature and cost to develop and maintain the

community assets identified in section eight of this article; and

(6) The availability of federal, state and local grants and

low-interest loans to finance all or a portion of the acquisition

and construction of the identified land and infrastructure needs of

the general area.

(e) In making a determination of the land and infrastructure

needs in the general area of the surface mining operations, the

office shall give significant weight to developable land on or near

existing or planned multilane highways.

(f) The office may secure developable land and infrastructure

for a development office or county through the preparation of a

master land use plan for inclusion into a reclamation plan prepared

pursuant to the provisions of section ten, article three, chapter

twenty-two of this code. No provision of this section may be

construed to modify requirements of article three of said chapter.

(1) The county commission or other governing body for each

county in which there are surface mining operations that are

subject to this article shall determine land and infrastructure

needs within their jurisdictions through the development of a

master land use plan which incorporates post-mining land use needs,

including, but not limited to, renewable and alternative energy

uses, residential uses, highway uses, industrial uses, commercial

uses, agricultural uses, public facility uses or recreational facility uses. A county commission or other governing body of a

county may designate a local, county or regional development or

redevelopment authority to assist in the preparation of a master

land use plan. A county commission or other governing body of a

county may adopt a master land use plan developed after July 1,

2009, only after a reasonable public comment period;

(2) Upon the request of a county or designated development or

redevelopment authority, the office shall assist the county or

development or redevelopment authority with the development of a

master land use plan;

(3)(A) The Department of Environmental Protection and the

Office of Coalfield Community Development shall review master land

use plans existing as of July 1, 2009. If the office determines

that a master land use plan complies with the requirements of this

article and the rules promulgated pursuant to this article, the

office shall approve the plan on or before July 1, 2010;

(B) Master land use plans developed after July 1, 2009, shall

be submitted to the department and the office for review. The

office shall determine whether to approve a master land use plan

submitted pursuant to this subdivision within three months of

submission. The office shall approve the plan if it complies with

the requirements of this article and the rules promulgated pursuant

to this article;

(C) The office shall review a master land use plan approved

under this section every three years. No later than six months before the review of a master land use plan, the county or

designated development or redevelopment authority shall submit an

updated master land use plan to the department and the office for

review. The county may submit its updated master land use plan

only after a reasonable public comment period. The office shall

approve the master land use plan if the updated plan complies with

the requirements of this article and the rules promulgated pursuant

to this article;

(D) If the office does not approve a master land use plan, the

county or designated development or redevelopment authority shall

submit a supplemental master land use plan to the office for

approval;

(4) The required infrastructure component standards needed to

accomplish the designated post-mining land uses identified in a

master land use plan shall be developed by the county or its

designated development or redevelopment authority. These standards

must be in place before the respective county or development or

redevelopment authority can accept ownership of property donated

pursuant to a master land use plan. Acceptance of ownership of

such property by a county or development or redevelopment authority

may not occur unless it is determined that: (i) The property use

is compatible with adjacent land uses; (ii) the use satisfies the

relevant county or development or redevelopment authority's

anticipated need and market use; (iii) the property has in place

necessary infrastructure components needed to achieve the anticipated use; (iv) the use is supported by all other appropriate

public agencies; (v) the property is eligible for bond release in

accordance with section twenty-three, article three, chapter

twenty-two of this code; and (vi) the use is feasible. Required

infrastructure component standards require approval of the relevant

county commission, commissions or other county governing body

before such standards are accepted. County commission or other

county governing body approval may be rendered only after a

reasonable public comment period;

(5) The provisions of this subsection shall not take effect

until legislative rules are promulgated pursuant to paragraph (C),

subdivision (1), subsection (c), section twenty-three, article

three, chapter twenty-two of this code governing bond releases

which assure sound future maintenance by the local or regional

economic development, redevelopment or planning agencies.







WVC 5 B- 2 A- 10

§5B-2A-10. Action report; annual update.

(a) Based upon the information developed under sections eight

and nine of this article, the office shall prepare an action report

which shall make recommendations for achieving economic development

initiatives, including identifying sources of potential funding.

(b) The office shall prepare an annual status update of the

action report which shall describe accomplishments and prospects

for continued economic development.







WVC 5 B- 2 A- 11

§5B-2A-11. Land acquisitions.

The office shall establish a procedure to assist property

owners who desire voluntarily to sell their property to the

operator or any person, firm or corporation directly or indirectly

affiliated with the operator. The procedure developed shall be

subject to the following:

(1) The procedure only shall apply if all the following

conditions are met:

(A) The operator or any person, firm or corporation directly

or indirectly affiliated with the operator, makes an offer in

writing to purchase the property stating all the terms and

conditions of the proposed purchase;

(B) The property to be purchased is located within one

thousand feet of property which actually is or will be mined; and

(C) The structures are actually being used for commercial

purposes or are occupied residences situate on the property to be

purchased;

(2) Once a permit application has been filed, the operator

shall notify the office of any intended property acquisitions to

which this section applies;

(3) The office shall cause notice to be given to potential

sellers of the procedure established by this section, but shall

provide no other assistance unless requested by the potential

seller;

(4) If requested by the potential seller, the office shall make a determination as to whether the value of the property

intended to be acquired is diminished by ongoing or intended mining

operations and that the purchase price offered by the purchaser is

less than the value the property would have had prior to any

diminution of value. The office only shall provide assistance if

it determines that the value of such property is diminished and

that the offer made by the operator is less than the value the

property would have had prior to any diminution of value; and

(5) If the office determines that the value of such property

is diminished and that the offer made by the operator is less than

the value the property would have had prior to any diminution of

value, then the office shall establish the value of such property

prior to any diminution and shall certify the same to the parties.







WVC 5 B- 2 A- 12

§5B-2A-12. Rulemaking.

The office shall propose rules for legislative approval in

accordance with article three, chapter twenty-nine-a of this code

to establish, implement and enforce the provisions of this article,

which rules shall include, but not be limited to:

(1) The development of standards for establishing the value of

property by the office; and

(2) Criteria for the development of a master plan by local,

county, regional or redevelopment authorities which coordinates the

permitting and reclamation requirements of the Department of

Environmental Protection with these authorities.







WVC 5 B- 2 A- 13

§5B-2A-13.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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