W. Va. Code R. § 38-2-2

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 38-2-2 - Definitions

As used in this rule unless used in a context that clearly requires a different meaning, the term:

2.1. Abandoned Coal Waste Disposal Area means any coal refuse disposal area which is not part of an active surface mining operation. This definition does not relieve any operator from his reclamation responsibility for the abandoned coal waste disposal area.

2.2. Acidity means the quantitative capacity of an aqueous medium to donate protons in a reaction with hydroxyl ions.

2.3. Acid Mine Drainage means water discharged from an active, inactive, or abandoned surface mine and reclamation operations or from areas affected by surface mining and reclamation operations with said water having a pH of less than six (6.0) in which total acidity exceeds total alkalinity.

2.4. Acid-Producing Coal Seam means coal seams commonly associated with other minerals which create acid mine drainage. Site specific data may, on a case-by-case basis, be accepted as an affirmative demonstration that this seam is not acid producing.

2.5. Acid-Producing Overburden means overburden which upon appropriate analysis shows a potential for producing acid mine drainage.

2.6. Act means the West Virginia Surface Coal Mining and Reclamation Act, W. Va. Code § 22-3-1, et seq.

2.7. Active Surface Mining Operation means, for the purpose of permit renewal as provided in subsection 3.27 of this rule, an operation where a Phase 1 bond reduction has not been approved.

2.8. Administratively Complete Application means an application for permit approval or approval for prospecting, which the Secretary determines to contain information addressing each application requirement of the regulatory program and to contain all information necessary to initiate processing and public review.

2.9. Affected Area means, when used in the context of surface-mining activities, all land and water resources within the permit area which are disturbed or utilized during the term of the permit in the course of surface-mining and reclamation activities. Affected area means, when used in the context of underground mining activities, all surface land and water resources affected during the term of the permit (1) by surface operations or facilities incident to underground mining activities or (2) by underground operations. The term also includes other lands the use of which is incidental to surface coal mining and reclamation operations; all areas covered by new or existing roads used to gain access to, or for hauling coal to or from, surface coal mining and reclamation operations; any areas covered by surface excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, shipping areas; any areas upon which are sited structures, facilities, or other property; material on the surface resulting from, or incident to, surface coal mining and reclamation operations; and the area located above underground workings.

2.10. Area Mining Operation means a mining operation where all disturbed areas are restored to approximate original contour (AOC) unless the operation is located in steep slope areas and a steep slope AOC variance in accordance with subsection 14.12 of this rule has been approved. An area mining operation may remove all or part of coal seam(s) in the upper fraction of a mountain, ridge, or hill. However, it is not classified as a mountaintop operation for one or more of the following reasons:

2.10.a. The site may be restored to AOC; or

2.10.b. The entire coal seam may not be removed.

2.11. Asset Ratio means the relation of total assets to total liabilities.

2.12. Auger Mining means a method of mining coal at the surface by drilling or cutting horizontally into an exposed coal seam at the highwall.

2.13. Bearing Capacity means a measure, as determined by standard engineering evaluation, of the ability of a foundation material to carry loads imposed by an embankment or other structure.

2.14. Best Technology Currently Available means equipment, devices, systems, methods or techniques which will:

2.14.a. Prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area, but in no event result in contributions of suspended solids in excess of requirements set by applicable State or Federal laws and rules and regulations; and

2.14.b. Minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife, and related environmental values and achieve enhancement of those resources where practicable.

2.15. Buffer Zone means an undisturbed border along or around an intermittent or perennial stream.

2.16. Capital Assets means those assets such as land, buildings and equipment held for use in the production or sale of other assets or services.

2.17. Cash means:

2.17.a. All cash items except cash (1) restricted by an agreement, or (2) described as earmarked for a particular purpose; and

2.17.b. Short-term investment such as stocks, bonds, notes, and certificates of deposit, where the intent and ability to sell them in the near future is established by the operator.

2.18. Cemetery means any area of land where human bodies are interred.

2.19. Channel Protection means any measures taken to prevent or control erosion, scouring, or other deteriorating processes in channels such as diversion ditches and spillways.

2.20. Chemical Treatment means the treatment of water from a surface coal mining operation using chemical reagents such as but not limited to sodium hydroxide, calcium carbonate, or anhydrous ammonia for purposes of meeting applicable state and federal effluent limitations. Chemical treatment does not include passive treatment systems such as but not limited to limestone drains, wetlands, alkaline addition, application of fly ash, agricultural lime, or injection of fly ash, limestone, or other minerals into underground coal operations.

2.21. Coal Preparation means chemical or physical processing and the cleaning, concentrating, or other processing or preparation of coal.

2.22. Coal Preparation Plant means a facility operated in connection with a mine where coal is subjected to chemical or physical processing or cleaning, crushing (by any means) concentrating, screening or sizing, or other processing or preparation. It includes facilities associated with coal preparation activities, including, but not limited to the following: loading facilities; storage and stockpile facilities; sheds; shops, and other buildings; water-treatment and water-storage facilities; settling basins and impoundments; and coal processing and other waste disposal areas.

2.23. Coal Processing Waste means materials which are separated and wasted from the product coal during its physical or chemical processing, cleaning or concentrating.

2.24. Coal Refuse Site means a deposit of coal processing waste or underground development waste.

2.25. Coal Remining Operation means a coal mining operation on lands which would be eligible for expenditures under section 4, Article 2 of Chapter 22.

2.26. Coarse Coal Refuse means coal processing waste predominantly within a size range greater than the number twenty-eight (#28) sieve size.

2.27. Collateral Bond means an indemnity agreement in sum certain executed by the permittee and supported by one or more of the following:

2.27.a. The deposit of cash in one or more federally insured accounts, payable only to the Secretary upon demand;

2.27.b. Negotiable bonds of the United States, a State, or a municipality, endorsed to the order of, and in the possession of, the Secretary;

2.27.c. Negotiable certificates of deposit, payable only to the Secretary, and in his possession;

2.27.d. An irrevocable letter of credit of any bank organized or authorized to transact business in the State of West Virginia, payable only upon presentation by the Secretary;

2.27.e A perfected, first-lien security interest in real property, in favor of the Secretary;

2.27.f. Investment-grade rated securities, having the highest rating issued by a nationally recognized securities rating service, endorsed to the order of, and in the possession of, the Secretary, excluding all issues of the type traded on a commodity exchange such as contracts for future delivery of goods; or

2.27.g. A whole life insurance policy assigned to the Department of Environmental Protection and in the possession of the Secretary, said policy having been issued by only those companies with an independent financial rating of A+, Aaa, or the equivalent authorized to do business in the State of West Virginia and are member insurers of the West Virginia Life and Health Insurance Guaranty Association.

2.28. Combined Coal Refuse means a mixture of coarse coal refuse and dewatered fine coal refuse.

2.29. Combustible Materials means organic materials that are capable of burning by fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

2.30. Commercial Forestry and Forestry.

2.30.a. Commercial Forestry, as used in subsection 7.4 of this rule, means a long-term postmining land use designed to accomplish the following:

2.30.a.1. Achieve greater forest productivity than that found on the mine site before mining;

2.30.a.2. Minimize erosion and/or sediment yield and serve the hydrologic functions of infiltrating, holding, and yielding water commonly found in undisturbed forests;

2.30.a.3. Result in biodiversity by facilitating rapid recruitment of native species of plants and animals via the process of natural succession;

2.30.a.4. Result in a premium forest that will thrive under stressful conditions; and

2.30.a.5. Result in landscape, vegetation and water resources that create habitat for forest-dwelling wildlife.

2.30.b. Forestry, as used in subsection 7.4 of this rule, means a long-term postmining land use designed to accomplish the following:

2.30.b.1. Forestry, as used in subsection 7.4 of this rule, means a long-term postmining land use for the production of wood or wood products designed to accomplish the following:

2.30.b.1.A. Achieve forest productivity equal to that found on the mine site before mining;

2.30.b.1.B. Minimize erosion and/or sediment yield and serve the hydrologic functions of infiltrating, holding, and yielding water commonly found in undisturbed forests;

2.30.b.1.C. Result in biodiversity by facilitating rapid recruitment of native species of plants and animals via the process of natural succession; and

2.30.b.1.D. Result in landscape, vegetation and water resources that create habitat for forest- dwelling wildlife.

2.31. Common Size Comparative Balance Sheet means item amounts from a number of the permittees or applicant's successive yearly balance sheets arranged side-by-side in a single statement followed by common size percentages whereby:

2.31.a. The asset total is assigned a value of one hundred percent (100%);

2.31.b. The total of liabilities and owner equity is also assigned a value of one hundred percent (100%); and

2.31.c. Each individual asset, liability, and owner equity item is shown as a fraction of one of the one hundred percent (100%) totals.

2.32. Common Size Comparative Income Statement means an operator's income statement amounts for a number of successive yearly periods arranged side by side in a single statement followed by common size percentages whereby net sales are assigned a one hundred percent (100%) value, and then each statement item is shown as a percentage of net sales.

2.33. Community or Institutional Building means any structure, other than a public building or an occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation or sewage treatment.

2.34. Compaction means the densification of a soil or soil-like material by means of mechanical manipulation.

2.35. Complete and Accurate Application means an application for a surface mining permit or prospecting approval which, immediately prior to issuance, contains all maps, plans, designs and other application materials required by the Act and this rule, excluding bond, which are necessary for the Secretary to make a decision on approval or denial.

2.36. Construction Pore Pressures means water pressures generated in foundation soils or embankments due to compression by loads imposed by construction of an embankment or other structure.

2.37. Cumulative Impact Area means the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and groundwater systems. Anticipated mining shall include the entire projected lives through bond releases of:

2.37.a. The proposed operation;

2.37.b. All existing operations;

2.37.c. Any operation for which a permit application has been submitted to the Secretary, and;

2.37.d. All operations required to meet diligent development requirements for leased Federal coal for which there is actual mine development information available.

2.38. Current Ratio means the relation of current assets to current liabilities.

2.39. Density means the weight of soil or soil-like solids per unit of total volume of soil or similar mass.

2.40. Design Storm means predicted precipitation of given intensity, frequency and duration based on United States Weather Bureau data.

2.41. Downslope means the land surface between the projected outcrop of the lowest coal seam being mined along each highwall or any mining-related construction, and the valley floor.

2.42. Embankment means a manmade deposit of earth or waste materials, usually exhibiting at least one sloping face, that is raised above the natural surface of the land.

2.43. Embankment Stability means the degree of safety relative to a structural failure of the embankment.

2.44. Emergency Spillway means a hydraulic structure designed to pass water in excess of that which an impoundment is designed to store or which cannot be passed through a principal spillway.

2.45. Excess Spoil means overburden material disposed of in a Location other than the pit.

2.46. Existing Coal Refuse Area means a refuse disposal area that is part of an active surface mining operation.

2.47. Existing Structure means a structure or facility used with or to facilitate surface coal mining and reclamation operations for which construction began prior to January 18, 1981.

2.48. Face-Up means the result of an excavation where a vertical or near vertical highwall is created that exposes the overburden and the mineral face.

2.49. Fine Coal Refuse means coal processing waste which may be disposed of in a slurry form or in a dewatered or treated state.

2.50. Foundation means soil, bedrock, or other earth material on or against which an embankment or other structure is placed.

2.51. Fragile Lands means geographic areas containing natural, ecologic, scientific or aesthetic resources that could be significantly damaged or destroyed by surface coal mining operations. Examples of fragile lands include valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, uncommon geologic formations, national natural landmark sites, areas where mining may result in flooding, environmental corridors containing a concentration of ecologic and aesthetic features, and areas of recreational value due to high environmental quality.

2.52. Freeboard means:

2.52.a. The vertical distance between the lowest point of the crest of the embankment and the reservoir water surface; or

2.52.b. The vertical distance between the top of a ditch or channel and the water surface during the design flow.

2.53. Gravity Discharge means, with respect to underground mining activities, mine drainage that flows freely down gradient in an open channel. Mine drainage that occurs as a result of flooding a mine to the level of the discharge is not gravity discharge.

2.54. Groundwater means subsurface water in the zone of saturation.

2.55. Growing Season means one (1) year.

2.56. Handbook means the Technical Handbook of Standards and Specifications for Mining Operations in West Virginia.

2.57. Haulageway Road or Access Road means a surface right-of-way for purposes of travel by land vehicles used in surface mining and reclamation or prospecting operations. A road consists of the entire area within the right-of-way, including the roadbed, shoulders, parking and side areas, approaches, ditches, and other related structures. The term includes access and hauhoads constructed, used, reconstructed, improved, or maintained for use in surface mining and reclamation or prospecting operations, including use by coal hauling vehicles to and from transfer, processing, or storage areas. The term does not include ramps and routes of travel within the immediate mining area or within spoil or coal mine waste disposal areas.

2.58. Hazard Potential means a classification rating assigned to a structure based on engineering evaluations and judgment predicting the potential damage to human life, property and environment should a failure of the structure occur.

2.59. Highwall means the face of exposed overburden or coal in an open cut of a surface mining operation or for entry to an underground mining operation.

2.60. Historic Lands means historic, archaeological, cultural, and scientific areas. Examples of historic lands include archaeological sites, sites listed on or eligible for listing on a state or national register of historic places, national historic landmarks, sites having cultural significance to native Americans, or religious significance to religious groups, and sites for which historic designation is pending.

2.61. Hydrologic Balance means the relationship between the quality and quantity of water inflow to, water outflow from a hydrologic unit including water stored in the unit. It encompasses the dynamic relationships among precipitation, runoff, evaporation and changes in ground and surface water levels and storage capacity.

2.62. Hydrological Isolated Operations means a surface mining operation where hydrologic impacts are negligible or are dissipated before reaching points in the system where they are additive to hydrologic impacts of other surface mining operations.

2.63. Hydrologic Regime means the entire state of water movement in a given area.

2.64. Impoundment or Impounding Structure means a basin either naturally formed or artificially built for the retention of water, sediment, slurry, or other liquid or semi-liquid material.

2.65. Infiltration means the flow or movement of water through the surface of soil or soil like material into the ground.

2.66. Inspection means a visual review of prospecting, surface or other mining operations to assure compliance with applicable laws, rules, regulations or permit conditions under jurisdiction of the Secretary.

2.67. Intermittent Stream means:

2.67.a. A stream or reach of a stream that drains a watershed of at least one square mile; or

2.67.b. A stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

2.68. Irreparable Damage to the Environment means any damage to the environment in violation of the Act and this rule which cannot be corrected by activities of the responsible person.

2.69. Knowingly means that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal.

2.70. Leachate means a liquid that has percolated through soil, rock or waste and has extracted dissolved or suspended materials.

2.71. Lightly Buffered Stream means any stream or its tributaries that contains less than fifteen (15) PPM methyl orange alkalinity (to pH4.5) and a conductivity of less than fifty (50) micro MHO.

2.72. Liquefaction means a phenomenon wherein a saturated granular soil or soil like material loses strength and flows in a manner resembling a liquid.

2.73. Liquidity Ratio means the relation of cash to current liabilities.

2.74. Mineral Face means the exposed vertical cross section of the natural coal seam or mineral deposit.

2.75. Mountaintop Mining Operation means a mining operation that removes an entire coal seam or seam(s) in an upper fraction of a mountain, ridge, or hill and creating a level plateau or a gently rolling contour with no highwalls. The approved postmining land use must be in accordance with § 22-3-13(c)(3).

2.76. Natural Drainway means any natural water course which may carry water to the tributaries and rivers of the watershed.

2.77. Natural Hazard Lands means geographic areas in which natural conditions exist which pose or, as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave-ins, severe wind or soil erosion, frequent flooding and areas of unstable geology.

2.78. Net Profit means the bottom line of the income statement after taxes, including taxes based on income, adjustments, all extraordinary income and expense, but before preferred and common stock dividends.

2.79. Occupied Dwelling means any building that is currently being used on a regular or temporary basis for human habitation.

2.80. Operator means any person who is granted or who should obtain a permit to engage in any activity covered by the Act or this rule, or anyone who engages in surface mining and/or surface mining and reclamation operations. Further, the term shall be construed in a manner consistent with the federal program pursuant to Public Law 95-87.

2.81. Outer Spoil or Outer slope means a disturbed area extending from the outer point of the bench to the extreme lower limit of the disturbed land.

2.82. Overburden means consolidated or unconsolidated material of any nature which overlies a mineral deposit, excluding topsoil.

2.83. Owned or Controlled and Owns or Controls means any one or a combination of the relationships specified in subdivisions 85.a through d of this subsection:

2.83.a. Being a permittee of a surface coal mining operation;

2.83.b. Based on instrument of ownership or voting securities, owning of record in excess of fifty (50) percent of an entity; or

2.83.c. Having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, or other entity conducts surface mining operations.

2.83.d. The following relationships are presumed to constitute ownership or control unless a person can demonstrate that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface mining operation is conducted:

2.83.d.1. Being an officer or director of an entity;

2.83.d.2. Being the operator of a surface mining operation;

2.83.d.3. Having the ability to commit the financial or real property assets or working resources of an entity;

2.83.d.4. Being a general partner in a partnership;

2.83.d.5. Based on the instruments of ownership or the voting securities of a corporate entity, owning of record ten (10) through fifty (50) percent of the entity; or

2.83.d.6. Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface mining operation.

2.84. Peak Runoff means the maximum flow in a specified geographic Location resulting from a given design storm.

2.85. Perennial Stream means a stream or portion of a stream that flows continuously.

2.86. Person having an interest which is or may be adversely affected or person with a valid legal interest means any person:

2.86.a. Who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by prospecting or surface mining and reclamation operations or any related action of the Secretary; or

2.86.b. Whose property is or may be adversely affected by prospecting or surface mining and reclamation operations or any related action of the Secretary.

2.87. Piping means a process of internal erosion which occurs when water transports soil or soil like materials through unprotected exits, developing unseen channels or pipes through an embankment or its foundation.

2.88. Pit means that part of the surface mining operation from which the mineral is being actively removed or where the mineral has been removed and the area has not been backfilled.

2.89. Pre-Existing Discharge means any water discharge from the proposed disturbed area prior to disturbance as approved in a permit or a prospecting approval.

2.90. Previously mined areas means land affected by surface mining operations prior to August 3,1977, that as not been reclaimed to the standards of this rule.

2.91. Preplan means the total application submitted to the Secretary including the application forms, mining and reclamation plan, drainage plan, blasting plan, planting plan, maps, drawings, data, cross-sections, bonds and other information as may be required to obtain a permit.

2.92. Principal Shareholder means any person who is the record or beneficial owner of ten percent (10%) or more of any class of voting stock.

2.93. Principal Spillway means a hydraulic structure which passes water at levels between normal pool and the emergency spillway invert elevations.

2.94. Probable Maximum Precipitation means the depth-duration-area rainfall for a particular area that represents the maximizing of meteorological conditions.

2.95. Prospecting means the field gathering of surface or subsurface geologic, physical, or chemical data by trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; or the gathering of environmental data to establish the conditions of an area before beginning surface mining and reclamation operations, where such activity may cause any disturbance of the land surface or may cause any appreciable effect on land, air, water, or other environmental resources. Regardless of whether or not any disturbance is anticipated, the gathering of environmental data on lands designated unsuitable pursuant to section 22 of the Act shall be considered prospecting and subject to the requirements of section 13 of this rule.

2.96. Protected Structures means for purposes of blasting, dwellings, public buildings, schools, churches, or community or institutional buildings.

2.97. Public Building means any structure that is owned or leased by a public agency or used primarily for public business or meetings.

2.98. Quick Assets means cash and current assets that can be quickly turned into cash.

2.99. Reasonably Available Spoil means spoil and suitable coal mine waste material generated by the remining operation or other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment.

2.100. Recharge Capacity means the ability of the soils and underlying materials to allow precipitation to infiltrate and reach the zone of saturation.

2.101. Reclamation means those actions taken to restore mined land to the approved post mining land use.

2.102. Remined Area means only that area of any coal remining operation.

2.103. Renewable Resource Lands means aquifers and areas for the recharge of aquifers and other underground waters, areas for agricultural or silvicultural production of food and fiber, and grazing lands.

2.104. Retained Earnings means stockholder's equity that has arisen from retained assets from earnings in the business. This shall include only earnings from normal operations and not gains from such transactions as the sale of plant assets or investments.

2.105. Return On Investment means the relation of net profit for the last yearly period to ending net worth

2.106. Safety Factor means the ratio of the sum of the resisting forces to the sum of the loading or driving forces.

2.107. Secretary means the Secretary of the Department of Environmental Protection or his authorized agent.

2.108. Sediment means solid material that is either in suspension, is being transported, or has been moved from its site of origin and has come to rest on the earth's surface.

2.109. Sediment Control or Other Water Retention Structure, Sediment Control or Other Water Retention System, or Sediment Pond means an impoundment designed, constructed, and maintained in accordance with this rule for the purpose of removing solids from water in order to meet applicable water quality standards or effluent limitations before the water is discharged into the receiving stream. Examples include wildlife ponds, settling basins and all ponds and facilities or structures used for water treatment.

2.110. Self-Bond means an indemnity agreement in a sum certain payable to the Secretary, executed by the permittee and by each individual and business organization capable of influencing or controlling the investment or financial practices of the permittee by virtue of his authority as an officer or ownership of all or a significant part of the permittee, and supported by agreements granting the Secretary a security interest in real or personal property pledged to secure performance by the permittee.

2.111. Significant Aquifer means a stratum or group of strata that can store and transmit water in significant quantities for a specific use.

2.112. slope Protection means measures taken to control erosion on slopes.

2.113. slope Stability means the relative degree of safety from the development of a landslide in a slope, as defined by one or more standard engineering methods of analysis.

2.114. Spoil means overburden that has been removed during surface mining operations.

2.115. Stabilize means to control movement of soil, spoil piles or areas of disturbed earth.

2.116. Strength Parameters mean those engineering values obtained from standard engineering shear strength tests of soil or soil like material.

2.117. Structure means, except as used in the context of subsection 3.8 of this rule, any man-made structures within or outside the permit areas which include, but is not limited to: dwellings, outbuildings, commercial buildings, public buildings, community buildings, institutional buildings, gas lines, water lines, towers, airports, underground mines, tunnels and dams. The term does not include structures built and/or utilized for the purpose of carrying out the surface mining operation.

2.118. Sub-Drainage System means a designed and constructed system provided for the conveyance of subsurface water.

2.119. Subsidence means, as it relates to underground mining operations or auger mining, a sinking, collapsing or cracking of a portion of the earth's surface caused by voids beneath the surface created by mining.

2.120. Substantial Legal and Financial Commitments in a Surface Coal Mining Operation means that significant investments and legal commitments have been made in activities and facilities such as power plants, railroads, coal handling, preparation, extraction or storage facilities and other capital-intensive activities on the basis of a long term coal contract.

2.121. Substantially Disturb means, for purposes of prospecting, to significantly impact land or water resources by blasting; by removal of vegetation, topsoil, or overburden; by construction of roads or other access routes; by placement of excavated earth or waste material on the natural land surface or by other such activities; or to remove more than 250 tons of coal.

2.122. Successor in Interest means any person who succeeds to rights granted under a permit by transfer, assignment or sale of those rights.

2.123. Surety Bond means an indemnity agreement in a sum certain payable to the Secretary executed by the permittee which is supported by the performance guarantee of a corporation licensed to do business as a surety in the State of West Virginia.

2.124. Surface Mining and Reclamation Operation means surface coal mining operations and all activities necessary or incidental to the reclamation of such operations.

2.125. Surface Water means water on the surface of the earth.

2.126. Topsoil means the A and E-horizon soil layer of the four (4) major soil horizons.

2.127. Toxic-Forming Materials means earth materials or wastes which, if acted upon by air, water, weathering or microbiological processes, are likely to produce chemical or physical conditions in soils, air or water that are detrimental to the environment.

2.128. Toxic Mine Drainage means water that is discharged from active or abandoned mines or other areas affected by surface mining operations, reclamation operations, or prospecting operations which contains a substance which through chemical action or physical effects, is likely to kill, injure or impair biota commonly present in the area that might be exposed to it.

2.129. Transfer, Assignment or Sale of Rights means a change in ownership pursuant to subsection 2.85 or other effective control over the right granted in a permit or approval to conduct surface mining operations.

2.130. Underground development Waste means waste rock mixtures of coal, shale, claystone, siltstone or other related materials that are brought to the surface for disposal.

2.131. Valid Existing Rights exists, except for haulroads, in each case in which a person demonstrates that the limitation provided for in the Act would result in the unconstitutional taking of that person's rights. For haulroads, valid existing rights means a road or recorded right-of-way or easement for a road which was in existence prior to August 3, 1977. A person possesses valid existing rights if he can demonstrate that the coal is immediately adjacent to an ongoing mining operation which existed on August 3, 1977 and is needed to make the operation as a whole economically viable. Valid existing rights shall also be found for an area where a person can demonstrate that an SMA number had been issued prior to the time when the structure, road, cemetery or other entity came into existence.

2.132. Valley or Head-of-Ho How Fill means a fill structure consisting of any material, other than organic material, placed in a valley where side slopes of the existing valley measured at the steepest point are greater than twenty (20) degrees or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than ten (10) degrees. In head-of-hollow fills the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area.

2.133. Violation, Failure or Refusal means a violation of a condition of a permit issued pursuant to the Act or this rule; or a failure or refusal to comply with any order issued under Sections 15, 16, or 17 of the Act, or any order incorporated in a final decision issued by the Secretary under the Act, except an order incorporated in a decision issued under paragraph (1), subsection (d), section 17 of the Act.

2.134. Willfully means that an individual acted:

2.134.a. Either intentionally, voluntarily or consciously; and

2.134.b. with intentional disregard or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittees action or omission that constituted a violation, failure or refusal.

2.135. Working Capital means the excess of the operator's current assets over its current liabilities.

2.136. Zone of Saturation means the zone below the piezometric surface in which all voids are filled with groundwater.

W. Va. Code R. § 38-2-2