[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Proposed Rules]
[Pages 19327-19330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9887]
[[Page 19327]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-081-FOR]
West Virginia Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the West
Virginia permanent regulatory program (hereinafter referred to as the
West Virginia program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). The amendment revises the West Virginia Code to
create the Office of Explosives and Blasting, and adds and amends
sections of the West Virginia Code concerning blasting. The amendment
is intended to improve the operational efficiency of the State program.
DATES: Written comments must be received on or before 4:00 p.m. on May
20, 1999. If requested, a public hearing on the proposed amendments
will be held at 1:00 p.m. on May 17, 1999. Requests to present oral
testimony at the hearing must be received on or before 4:00 p.m. on May
5, 1999.
ADDRESSES: Your written comments and requests to speak at the hearing
should be mailed or hand delivered to Mr. Roger W. Calhoun, Director,
Charleston Field Office at the address listed below.
Copies of the proposed amendment, the West Virginia program, and
the administrative record on the West Virginia program are available
for public review and copying at the addresses below, during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the proposed amendment by contacting the OSM
Charleston Field Office.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301 Telephone: (304) 347-7158
West Virginia Division of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515
In addition, copies of the proposed amendment are available for
inspection during regular business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office,323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. Background information on the West
Virginia program, including the Secretary's findings, the disposition
of comments, and the conditions of the approval can be found in the
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent
actions concerning the West Virginia program and previous amendments
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
By letter dated March 25, 1999 (Administrative Record Number WV-
1119), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to the West Virginia program pursuant to 30 CFR
732.17. The amendment concerns changes to Chapter 22 Article 3
(Sec. 22-3) and Sec. 22-1 of the West Virginia Code as contained in
West Virginia Senate Bill (SB) 681. The amendment creates the Office of
Explosives and Blasting within the WVDEP, and adds and amends sections
of the West Virginia Code concerning blasting. By letter dated April 1,
1999 (Administrative Record Number WV-1121), the WVDEP notified us that
the West Virginia Governor signed SB-681, and provided a copy of the
signed bill.
The amendments submitted by the WVDEP are identified below. Minor
wording changes and other non-substantive changes are not identified.
1. 22-1-7 Offices Within the Division; Continuation of the Office of
Water Resources
New section 22-1-7(a)(7) is added to provide that the director
shall maintain the office of explosives and blasting, which is charged,
at a minimum, with administering and enforcing, under the supervision
of the director, the provisions of 22-3A, concerning the office of
explosives and blasting.
2. 22-3-13 General Environmental Protection Performance Standards for
Surface Mining; Variances
Section 22-3-13(a) is amended to change the phrase ``* * * and
other requirements as the director promulgates'' to read `` * * * and
other requirements set forth in legislative rules proposed by the
director.''
Section 22-3-13(b)(3) is amended to change a proviso statement
concerning backfilling and grading requirements from, ``Provided
further, That the director shall promulgate rules governing variances *
* *'' to read, ``Provided further, That the director shall propose
rules for legislative approval in accordance with article three,
chapter twenty-nine-a of this code. * * *''
Section 22-3-13(b)(15) concerning explosives is amended by deleting
paragraphs (A), (C), and (E), and relettering the remaining paragraphs.
Paragraph (D) concerning blaster certification, now relettered as
paragraph (B), is amended by deleting the word ``director'' and adding
in its place the words ``office of explosives and blasting.''
Section 22-3-13(e) concerning variances from approximate original
contour is amended from the words, ``The director may promulgate rules
that permit variances * * *'' to read ``The director may propose rules
for legislative approval in accordance with article three, chapter
twenty-nine-a of this code, that permit variances. * * *''
Section 22-3-13(f) concerning coal mine waste piles is also amended
to provide that the director may propose rules for legislative
approval, rather than promulgate rules.
3. 22-3-13a Pre-Blast Survey Requirements
This section is all new. Section 22-3-13a(a) provides that at least
30 days before blasting, the following notifications shall be made in
writing to all owners and occupants of man-made dwellings or structures
that the operator or designee will perform pre-blast surveys: (1) For
operations less than 200 acres in a single permitted area or less than
300 acres of contiguous or nearly contiguous area of two or more
permitted areas, the notifications shall be to all owners and occupants
within five tenths of a mile of the permitted area or areas; (2) for
all other surface mining operations, the required notifications shall
be to all owners or occupants within five tenths of a mile of the
permitted area or areas, or seven
[[Page 19328]]
tenths of a mile of the proposed blasting site, whichever is greater.
Section 22-3-13a(b) adds a requirement that operators who have
already made pre-blast surveys, and if Section 22-3-13a(a)(2) applies,
shall notify owners and occupants within seven tenths of a mile of the
blasting site, unless a written waiver is executed in accordance with
Section 22-3-13(c).
Section 22-3-13a(c) provides for the waiver of the right to a pre-
blast survey. This provision also provides that if access to conduct a
pre-blast survey is denied and a waiver is not provided, or to the
extent that access to any portion of the structure, underground water
supply or well is impossible or impractical under the circumstances,
the pre-blast survey shall indicate that access was refused, impossible
or impractical. The operator or designee shall execute a sworn
affidavit explaining the reasons and circumstances surrounding the
refusals. The office of explosives and blasting shall not determine the
pre-blast survey to be incomplete because it indicates that access was
refused, impossible, or impractical. The operator shall send copies of
all written waivers and affidavits to the office of explosives and
blasting.
Section 22-3-13a(d) provides that if a pre-blast survey was waived
by the owner and the property sold, the new owner may request a pre-
blast survey from the operator.
Section 22-3-13a(e) provides that an owner may request from the
operator a pre-blast survey on structures conducted after the original
pre-blast survey.
Section 22-3-13a(f) provides for the information that a pre-blast
survey must contain. Such information includes a general description of
the structure and the survey methods; written documentation and
drawings, videos or photos of the pre-blast defects, other physical
conditions, and unusual or substandard construction of all structures,
appurtenances and water sources which could be affected by blasting;
written documentation of the water supply; a description of any portion
of the structure and appurtenances not documented or photographed and
the reasons; signature of the person performing the survey; and any
other information required by rule.
Section 22-3-13a(g) provides that pre-blast surveys shall be
submitted to the office of explosives and blasting at least 15 days
prior to the start of blasting. The office shall review each survey for
completeness only, and notify the operator of any deficiencies. The
office shall notify the owner and occupant of the location and
availability of the pre-blast survey, and provide a copy upon request.
Section 22-3-13a(h) provides that the operator shall file notice of
the pre-blast survey or waiver in the office of the county clerk of the
county commission of the county where the man-made dwelling or
structure is located. The office of explosives and blasting shall
prescribe the form to be used.
Section 22-3-13a(i) provides that the chief of the office of
explosives and blasting shall propose rules for legislative approval in
accordance with Article 29A-3 of the State Code, dealing with pre-blast
survey requirements and setting the qualifications for individuals and
firms performing pre-blast surveys.
Section 22-3-13a(j) provides that the provisions of Section 22-3-
13a shall not apply to underground coal mining operations, and the
extraction of minerals by underground mining methods or the surface
impacts of the underground mining methods.
4. 22-3-22a Blasting Restrictions; Site Specific Blasting Design
Requirement
This is a new section. Section 22-3-22a(a) provides that for this
section, the term ``production blasting'' means blasting that removes
the overburden to expose underlying coal seams and shall not include
construction blasting.
Section 22-3-22a(b) provides that for this section, the term
``construction blasting'' means blasting to develop haul roads, mine
access roads, coal preparation plants, drainage structures, or
underground coal mine sites and shall not include production blasting.
Section 22-3-22a(c) provides that for this section, the term
``protected structure'' means any of the following that are outside the
permit area: an occupied dwelling, a temporarily unoccupied dwelling
which has been occupied within the past ninety days, a public building,
a structure for commercial purposes, a school, a church, a community or
institutional building, a public park or a water well.
Section 22-3-22a(d) provides that production blasting is prohibited
within 300 feet of a protected structure or within 100 feet of a
cemetery.
Section 22-3-22a(e) provides that blasting within 1000 feet of a
protected structure shall have a site specific blast design approved by
the office of explosives and blasting. The design shall limit the type
of explosives and detonating equipment, the size, the timing and
frequency of blasts to do the following: (1) Prevent injury to persons;
(2) prevent damage to property outside the permit area; (3) prevent
adverse impacts on any underground mine; (4) prevent change in the
course, channel or availability of ground or surface water outside the
permit area; and (5) reduce dust outside the permit area. This
provision also provides that in developing the blasting plan,
consideration be given to such items as the physical condition, type
and quality of construction of the protected structure, current use of
the protected structure, and the concerns of the owner or occupant.
Section 22-3-22a(f) provides for the waiver in writing of the
blasting prohibition within 300 feet, or the site specific restriction
within 1000 feet. The operator shall send copies of all waivers to the
office of explosives and blasting. Waivers shall be valid during the
life of the permit and renewals, and shall be enforceable against any
subsequent owners or occupants of the protected structure.
Section 22-3-22a(g) provides that this section does not apply to
underground coal mining operations and the surface operations and
impacts incident to underground coal operations, or to the extraction
of minerals by underground mining methods or the surface impacts of the
underground mining methods. Nothing in this section shall exempt any
coal mining operation from the general performance standards contained
in Section 22-3-13 and any implementing rules.
5. 22-3-23(c) Release of Bond or Deposits
Subsection 22-3-22(c)(3) concerning final bond release is amended
to add a paragraph which provides that notwithstanding the bond release
scheduling provisions of subdivisions (1), (2) and (3) of this
subsection, if the operator completes the backfilling and reclamation
in accordance with an approved post-mining land use plan that has been
approved by the division of environmental protection and accepted by a
local or regional economic development or planning agency for the
county or region in which the operation is located, provisions for
sound future maintenance are assured by the local or regional economic
development or planning agency, and the quality of any untreated
postmining water discharge complies with applicable water quality
criteria for bond release, the director may release the entire amount
of said bond or deposit. The director shall propose rules for
legislative approval in accordance with the provisions of article 29a-3
of this code, to govern a bond release pursuant to the terms of this
paragraph.
[[Page 19329]]
6. 22-3-24 Water Rights and Replacement; Waiver of Replacement
This Section is being amended to add new subsections (c), (d), (e),
and (f). New subsection (c) provides that there is a rebuttable
presumption that a mining operation caused damage to an owner's
underground water supply if the inspector determines the following: (1)
Contamination, diminution or damage to an owner's underground water
supply exists; and (2) a pre-blast survey was performed, consistent
with the provisions of section 22-3-13a, on the owner's property
including the underground water supply that indicated that
contamination, diminution or damage to the underground water supply did
not exist prior to the mining conducted at the mining operation. The
operator conducting the mining operation shall: (1) Provide an
emergency drinking water supply within 24-hours; (2) provide a
temporary water supply within 72-hours; (3) provide a permanent water
supply within 30 days; and (4) pay all reasonable costs incurred by the
owner in securing a water supply.
New subsection 22-3-24(d) provides that an owner aggrieved under
the provisions of subsections (b) or (c) of this section, may seek
relief in court or pursuant to the provisions of 22-3b-6.
New subsection 22-3-24(e) provides that the director shall propose
rules for legislative approval to implement the requirements of this
section.
New subsection 22-3-24(f) provides that the provisions of 22-3-
24(c) shall not apply to underground coal mining operations, the
surface operations and impacts incident to an underground coal mine,
and the extraction of minerals by underground mining methods or the
surface impacts of the underground mining methods.
7. 22-3-30a Blasting Requirements; Liability and Civil Penalties in the
Event of Property Damage
This section is new. Subsection 22-3-30a(a) provides that blasting
of overburden and coal shall be conducted in accordance with the rules
and laws established to regulate blasting.
Subsection 22-3-30a(b) provides the penalties to be imposed for
each permit area or contiguous permit areas where blasting was out of
compliance and resulted in property damage to a protected structure as
defined in 22-3-22a.
Subsection 22-3-30a(c) provides that the division of environmental
protection may not impose penalties on an operator for the violation of
any rule identified in 22-3-30a that is merely administrative in
nature.
Subsection 22-3-30a(d) provides that the remedies provided in this
section are not exclusive and shall not bar an owner or occupant from
any other remedy accorded by law.
Subsection 22-3-30a(e) provides that the monetary penalties and
revocation set out at 22-3-30(b) apply if the division of environmental
protection establishes that production blasting was conducted within
the 300 feet, or the 1000 feet standards set out at 22-3-22a, or was
within 100 feet of a cemetery.
Subsection 22-3-30(f) provides that all penalties and liabilities
set forth in this section shall be assessed and collected by the
director, and deposited with the treasurer of the State of West
Virginia in the ``general school fund.''
Subsection 22-3-30(g) provides that the director shall propose
rules for the implementation of this section.
Subsection 22-3-30(h) provides that the provisions of this section
shall not apply to underground coal mining operations and the surface
operations and impacts incident to underground coal operations, or to
the extraction of minerals by underground mining methods or the surface
impacts of the underground mining methods. Nothing in this section
shall exempt any coal mining operation from the general performance
standards contained in Section 22-3-13 and any implementing rules.
8. 22-3A Office of Explosives and Blasting
Article 3A is new . Section 22-3A-1 provides for legislative
findings, and policies and purposes. Section 22-3A-1 declares that
establishment of the office of explosives and blasting is in the public
interest, and that this office will be vested with authority to enforce
the rules and laws established to regulate blasting.
Section 22-3A-2 creates the office of explosives and blasting,
provides that the director shall appoint a chief to administer the
office, and provides that the office shall assume responsibility for
the enforcement of all the rules and laws established to regulate
blasting.
Section 22-3A-3 establishes the powers and duties of the office of
explosives and blasting.
Section 22-3A-4 provides that the office shall propose rules for
the purpose of implementing Article 22-3A. The rules shall include, but
not be limited to: procedures for the review, modification and approval
of blasting plans, inspection and monitoring of blasting; minimum
requirements for pre-blast surveys; procedures for the use of
seismographs; a procedure to warn of impending blasting; a procedure to
limit the type of explosives and detonating equipment, the size,
timing, and frequency of blasts based on the physical conditions at the
site to prevent injury, damage, and adverse impacts; publication of
blasting schedules; and written notice of blasting schedules. The
office shall also propose rules for blaster certification, and for
disciplinary procedures for blasters.
Section 22-3A-5 provides that the office shall establish and manage
a claims process related to blasting, and shall propose rules
concerning blasting claims and arbitration. The section also provides
that participation in the claims process is voluntary, but that claim
determinations are intended to be final, if not taken to arbitration.
The section provides for written notice, the payment of claims for
which an operator is adjudged liable, and for the issuance of cessation
orders. The section also provides that no permit shall be granted
unless the applicant agrees to be subject to the terms of this section.
The section also authorizes the office to retain the services of
inspectors, experts and other persons or firms as necessary to fulfill
its responsibilities under this section.
Section 22-3A-6 provides that rules, orders and permits already
issued will remain in effect until modified, terminated, superseded,
set aside or revoked by a court, and that proceedings pending before
the division are not effected by this enactment.
Section 22-3A-7 concerns funding. It provides that the office shall
assess each operator a fee on each quantity of explosive material used
on the surface mining operations. The office shall propose rules
establishing the fees, and the office shall deposit all monies received
into a special fund called the ``mountaintop removal fund'' to be spent
by the offices in conducting their duties. The legislature shall
appropriate the funds for expenditure.
Section 22-3A-8 concerns the transfer of personnel and assets
currently used to perform the duties of Article 22-3A to the office of
explosives and blasting
Section 22-3A-9 sets forth the limitations of Article 22-3A. Except
for sections five and seven of this article, all provisions of this
article are also applicable to surface blasting activities related to
underground mining operations.
Section 22-3A-10 provides that the office of explosives and
blasting shall conduct or participate in studies or research to develop
scientifically based data and recommendations related to various
aspects of blasting. The office
[[Page 19330]]
shall report the data and recommendations to the joint committee on
government and finance on or before January 1, 2001, and annually
thereafter or as otherwise requested.
Section 22-3A-11 provides that the office of explosives and
blasting is continued until July 1, 2002.
III. Public Comment Procedures
We are seeking comments, in accordance with the provisions of 30
CFR 732.17(h), on the proposed amendment submitted by the State of West
Virginia by letter dated March 25, 1999. Your comments should address
whether the proposed amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If the amendment is deemed
adequate, it will become part of the West Virginia program.
Written Comments
Your written comments should be specific, pertain only to the
issues proposed in this notice and include explanations in support of
your recommendations. Comments received after the time indicated under
DATES or at locations other than the OSM Charleston Field Office will
not necessarily be considered in the final rulemaking or included in
the Administrative Record.
Public Hearing
If you wish to comment at the public hearing, you should contact
the person listed above at FOR FURTHER INFORMATION CONTACT by close of
business on May 5, 1999. If no one requests an opportunity to comment
at a public hearing, the hearing will not be held.
If you file a written statement at the same time that you request a
hearing, the statement will greatly assist the person who will make a
transcript of the hearing.
The public hearing will continue on the specified date until all
persons scheduled to comment have been heard. Persons in the audience
who have not been scheduled to comment, and who wish to do so, will be
heard following those scheduled. The hearing will end after all persons
scheduled to comment and persons present in the audience who wish to
comment have been heard.
Public Meeting
If only one person requests an opportunity to comment at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with us to discuss the proposed amendments, may request
a meeting at the Charleston Field Office by contacting the person
listed above at FOR FURTHER INFORMATION CONTACT. All such meetings will
be open to the public and, if possible, notices of meetings will be
posted in advance at the locations listed above at ADDRESSES. A written
summary of each public meeting will be made part of the Administrative
Record.
If you are disabled and have need for a special accommodation to
attend a public hearing, please contact the person listed above at FOR
FURTHER INFORMATION CONTACT.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 13, 1999.
H. Vann Weaver,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 99-9887 Filed 4-19-99; 8:45 am]
BILLING CODE 4310-05-P