[Federal Register Volume 64, Number 195 (Friday, October 8, 1999)]
[Proposed Rules]
[Pages 54845-54847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26359]
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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; reopening of public comment period.
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SUMMARY: OSM is announcing the reopening of the public comment period
on 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. The comment period is
being reopened because West Virginia submitted additional information
which may affect our final decision on the proposed amendment.
DATES: Written comments must be received on or before 4:00 p.m. on
October 25, 1999.
ADDRESSES: Your written comments 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
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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.
We published an announcement of the proposed rule and invited
public comment in the April 20, 1999, Federal Register (64 FR 19327).
No one requested a public hearing on the proposed amendment, so none
was held.
During our review of the amendment, we submitted to West Virginia a
listing of our issues and draft findings on the proposed amendment
(Administrative Record Number WV-1136). The WVDEP requested a meeting
to discuss our issues and draft findings, and that meeting was held on
July 19, 1999. Finally, the WVDEP sent us a letter dated August 10,
1999 (Administrative Record Number WV-1137) which addressed the issues
we presented in our listing and at the July meeting. A brief summary of
the WVDEP's responses follows.
The WVDEP stated that the deletion of W.Va. Code section 22-3-
13(b)(15)(C) does not leave a gap in the state's program. This section
requires that blasting operations limit the type of explosives and
detonating equipment, the size, timing and frequency of blasts based
upon the conditions of the site so as to prevent injury to persons,
damage to public and private property outside the permit area, adverse
impacts on any underground mine, and change in the course, channel or
availability of ground or surface water outside the permit area. The
WVDEP stated that the deletion of this section leaves no gap in the
approved program, because existing provisions at W.Va. Code section 22-
3-2(c)(1), (2), and (5), and in the Code of State Regulations (CSR) at
sections 38-2-6.4, 38-2-6.5 and 38-2-6.5.a., continue to apply and
cover all of the requirements contained in the deleted provision.
The WVDEP stated that new section 22-3-13a(g) merely adds a
requirement that operations conducting production blasting submit a
pre-blast survey to the Office of Explosives and Blasting at least 15
days before blasting. The new section is not intended to limit the
general requirement for a pre-blast survey to production blasting. In
fact, the WVDEP stated, the regulatory time limits for pre-blast
surveys, at CSR 38-2-6.8.a.4, continue to apply to all other blasting.
The WVDEP agrees with OSM that a copy of the pre-blast survey should be
provided to the owner or occupant of a dwelling who requested the
survey, regardless of whether the owner or occupant actually requests a
copy.
The WVDEP stated that it would not object if OSM were to disapprove
section 22-3-13a(j), because this provision appears to exempt the
surface blasting effects of underground mining operations from the
general pre-blast survey requirements of section 22-3-13a.
The WVDEP stated that the distance prohibition on production
blasting, contained in section 22-3-22a(d), is in addition to the
general mining prohibitions contained in section 22-3-22(d)(4), and is
not intended to replace those general prohibitions. Also, the WVDEP
stated that if the site-specific blast design requirements of section
22-3-22a(e) are waived, the operator must still submit a generic blast
design, as required by CSR 38-2-6.5.g.
The WVDEP requested that OSM defer its decision with respect to the
new bond release provisions of section 22-3-23(c), because it plans to
submit implementing regulations that it believes will address OSM's
concerns with this provision. OSM is concerned that the proposed change
to section 22-3-23(c) will allow final bond release prior to the end of
the revegetation responsibility period, and that this allowance would
be inconsistent with SMCRA section 515(b)(20).
Finally, the WVDEP stated that the new civil penalty provisions of
section 22-3-30a apply only to production blasting violations that
result in property damage. All other blasting related violations,
according to the WVDEP, would continue to be subject to the existing
civil penalty provisions contained in CSR 38-2-20.
We are reopening the public comment period to provide an
opportunity to review the information provided by the WVDEP in response
to our issues and draft findings on this amendment. If the information
submitted by the WVDEP is found to be adequate, we may rely on that
information as we make our findings on the provisions of the proposed
amendment.
III. Public Comment Procedures
We are seeking comments, in accordance with the provisions of 30
CFR 732.17(h), on the WVDEP response letter dated August 10, 1999.
Since the WVDEP letter responds directly to the issues raised in our
July 7, 1999, listing of issues and draft findings, we recommend that
you consult both documents during your review. Your comments should
address whether the explanations provided by the WVDEP satisfy the
applicable program approval criteria of 30 CFR 732.15. If the
explanations provided by the WVDEP are deemed adequate, we may rely on
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them as we write our findings on the proposed amendment to the West
Virginia program.
Written Comments
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking [or administrative] record,
which we will honor to the extent allowable by law. There also may be
circumstances in which we would withhold from the rulemaking [or
administrative] record a respondent's identity, as allowable by law. If
you wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
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.
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: September 29, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 99-26359 Filed 10-7-99; 8:45 am]
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