[Federal Register Volume 64, Number 218 (Friday, November 12, 1999)]
[Rules and Regulations]
[Pages 61507-61518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29580]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-081-FOR]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing its approval, with certain exceptions, of an 
amendment to the West Virginia permanent regulatory 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.

EFFECTIVE DATE: November 12, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION

I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. You can find

[[Page 61508]]

background information on the West Virginia program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of the approval in the January 21, 1981, Federal Register (46 FR 5915-
5956). You can find later actions concerning the West Virginia program 
and previous amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 
948.16.

II. Submission of the 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 also 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 reviewed the amendment, and provided the 
WVDEP with our comments at a meeting on July 19, 1999 (Administrative 
Record Number WV-1136). The WVDEP responded to our comments in a letter 
dated August 10, 1999 (Administrative Record Number WV-1137).
    We announced receipt of the proposed amendment in the April 20, 
1999, Federal Register (64 FR 19327), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period closed on May 20, 1999. 
No one requested an opportunity to speak at a public hearing, so none 
was held. We reopened the public comment period on October 8, 1999 (64 
FR 54845), to provide an opportunity for the public to review and 
comment on the information provided to us by the WVDEP at the July 19, 
1999, meeting. The comment period closed on October 25, 1999.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment. 
Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised paragraph notations to 
reflect organizational changes that result from this amendment.

1. Sec. 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.
    There is no direct counterpart to this provision in SMCRA or the 
Federal regulations. Nevertheless, we find that the provision does not 
render the West Virginia program less stringent than SMCRA nor less 
effective than the Federal regulations.

2. Sec. 22-3-13 General Environmental Protection Performance Standards 
for Surface Mining; Variances

    (A) W.Va. Code 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.'' We find that this amendment is substantively identical to 
SMCRA at section 515(a). Further, this amendment clarifies the manner 
in which the director of the WVDEP must promulgate requirements under 
this provision.
    (B) W.Va. Code 22-3-13(b)(3), concerning approximate original 
contour, is amended by changing the words ``The director shall 
promulgate rules governing variances * * *'' to read, ``The director 
shall propose rules for legislative approval in accordance with article 
three, chapter twenty-nine-a of this code, governing variances. * * *'' 
We find that this amendment clarifies the manner in which the director 
of the WVDEP must promulgate regulations under this provision, and is 
not inconsistent with SMCRA at section 515.
    (C) W.Va. Code 22-3-13(b)(15)(A): Paragraph (A), which concerns the 
general performance standard for providing advance written notice to 
local governments and residents of the planned blasting schedule, has 
been deleted. However, the State has added a new article 3A, which 
concerns the new Office of Explosives and Blasting. New section 22-3A-
4(a)(8) provides that the office of explosives and blasting shall 
propose rules that shall include provisions for requiring mining 
operators to provide adequate advance written notice of the proposed 
blasting schedule. Such notice shall be made to local governments, 
owners and occupants living within the distances prescribed in section 
22-3-13a(a). New section 22-3A-4(a)(5) provides that the office of 
explosives and blasting shall propose rules that shall provide a 
procedure to warn of impending blasting to the owners or occupants 
adjoining the blasting area. In addition, the currently approved West 
Virginia regulations at Code of State Regulations (CSR) 38-2-6.3.a. 
provide for public notice of blasting operations. These blasting 
schedule notice requirements are applicable to both surface and 
underground mining operations. CSR 38-2-6.3.a. requires the operator to 
publish a blasting schedule in a newspaper of general circulation in 
the county of the proposed permit area and copies of the schedule must 
be distributed by certified mail to local governments, public utilities 
and each resident within \1/2\ mile of the blasting site. Finally, the 
State regulations at CSR 38-2-6.5.b. concerning safety precautions 
provide that a warning signal audible to a range of \1/2\ mile from the 
blast site shall be given before each blast. Consequently, we find that 
the audible warning signal requirements at CSR 38-2-6.5.b. satisfy the 
daily notice requirement under section 515(b)(15)(A) of SMCRA. 
Therefore, we find that the deletion of Sec. 22-3-13(b)(15)(A) does not 
render the West Virginia program less stringent than SMCRA at section 
515(b)(15)(A), and can be approved.
    (D) W.Va. Code 22-3-13(b)(15)(C): Paragraph (C), which concerns the 
general performance standard for limiting the size, type, and frequency 
of blasting to prevent injury to persons and damage to property and the 
environment has been deleted. Concurrently, the State has added a new 
article 3A, which creates the Office of Explosives and Blasting. New 
section 22-3A-4(a)(6) provides that the office of explosives and 
blasting shall propose rules that shall include a procedure to limit 
the type of explosives and detonating equipment, as well as size, type, 
and frequency of blasts based upon the physical conditions of the site 
to prevent injury to persons and damage to property and the 
environment. When promulgated, the new regulations required by 22-3A-
4(a)(6) should provide a replacement for the deleted requirement at 
section 22-3-13(b)(15)(C). However, during our review of this 
amendment, we were concerned that in the meantime, the deletion of the 
performance standard at section 22-3-13(b)(15)(C) may leave a gap in 
the West Virginia program and render it less stringent than SMCRA at 
section 515(b)(15)(C). In response to our concern, the WVDEP stated in 
a letter dated August 10, 1999 (Administrative

[[Page 61509]]

Record Number WV-1137) that the deletion does not leave a gap in the 
West Virginia program. Specifically, the WVDEP stated that the blasting 
provisions at CSR 38-2-6.5.a. continue to apply and provide that 
blasting shall be conducted in such a way so as to prevent injury to 
persons, damage to public or private property outside the permit area, 
adverse impacts on any underground mine, and change in the course 
channel, or availability of surface or groundwater outside the permit 
area. The WVDEP also added that there are specific limitations on blast 
design contained in CSR 38-2-6.4 and 6.5 which in effect limit the 
explosives and type of blast. These regulations remain in effect under 
the authority of W.Va. Code sections 22-3-2(b)(1) and (2), and 22-3-
2(c)(1), (3), and (5). Finally, the WVDEP acknowledged that re-
inserting the deleted language at section 22-3-13(b)(15)(C) would 
remove any uncertainty relative to the authority of WVDEP to protect 
the public from the effects of blasting.
    Therefore, we are approving the deletion of section 22-3-
13(b)(15)(C) with the understanding that, as explained by the WVDEP, 
the West Virginia program regulations at CSR 38-2-6.5.a. and CSR 38-2-
6.4 and 6.5 continue in effect and provide the protection afforded by 
the deleted provision. In addition, we encourage West Virginia to re-
insert the deleted section 22-3-13(b)(15)(C) in the W.Va. Code.
    (E) W.Va. Code 22-3-13(b)(15)(D) concerning blaster certification, 
now re-lettered as paragraph (B), is amended by deleting the word 
``director'' and adding in its place the words ``office of explosives 
and blasting.'' We find that this amendment does not render the West 
Virginia program less stringent than SMCRA section 515(b)(15)(D) and 
can be approved.
    (F) W.Va. Code 22-3-13(b)(15)(E), concerning the right to request a 
pre-blast survey, has been deleted. However, the State has added a new 
article 3A, which concerns the new Office of Explosives and Blasting. 
New section 22-3A-4(a)(2) provides that the office of explosives and 
blasting shall propose rules that shall provide specific minimum 
requirements for pre-blast surveys, as set forth in new section 22-3-
13a concerning pre-blast survey requirements. This new section contains 
many of the requirements contained in section 22-3-13(b)(15)(E). Please 
note in Finding 3, however, that we are not approving new section 22-3-
13a in its entirety. Nevertheless, the approved West Virginia program 
currently contains counterparts to the deleted requirements at CSR 38-
2-6.8.a.1. and 38-2-6.8.a.3. Therefore, we find the deletion of section 
22-3-13(b)(15)(E) does not render the West Virginia program less 
stringent than section 515(b)(15)(E) of SMCRA.
    (G) W.Va. Code 22-3-13(b)(21) is amended by providing that the 
spoil may be placed outside the permit area if the director finds the 
placing of spoil material outside the permit area will result in 
environmental benefits. The change proposed by the State is a non-
substantive change and, therefore, our approval is not needed. We note 
that the approved State regulations at CSR 38-2-14.14.c. currently 
limit the placement of excess spoil to another permitted area or to an 
approved project conducted under the Abandoned Mine Land Program. 
Therefore, section 22-3-13(b)(21) remains no less stringent than 
sections 515(b)(21) and 515(b)(22)(B) of SMCRA.
    (H) W.Va. Code 22-3-13(e), concerning variances from approximate 
original contour, is amended by changing the words, ``The director may 
promulgate rules * * *'' 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 from approximate original 
contour * * *.'' We find that this amendment clarifies the manner in 
which the director of the WVDEP must promulgate regulations under this 
provision, and is not inconsistent with SMCRA at section 515(e)(5). 
Furthermore, to implement these requirements, the State has promulgated 
existing rules at CSR 38-2-14.12 to govern the approval of steep slope 
mining variances from approximate original contour.
    (I) W.Va. Code 22-3-13(f) concerning coal mine waste piles is 
amended to provide that the director shall propose rules for 
legislative approval, rather than promulgate rules. We find that this 
amendment clarifies the manner in which the director of the WVDEP must 
promulgate regulations under this provision, and is not inconsistent 
with SMCRA at section 515(f).

3. Sec. 22-3-13a Pre-blast Survey Requirements

    (A) 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 surface mining 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 tenths 
of a mile of the proposed blasting site, whichever is greater. For 
operations described at section 22-3-13a(a)(1), the requirements of 
subsection 22-3-13a(a) are substantively identical to and therefore no 
less stringent than SMCRA at section 515(b)(15)(E) concerning pre-blast 
surveys. For operations described at section 22-3-13a(a)(2), the 
requirements of subsection 22-3-13(a) provide for more stringent 
blasting controls of surface coal mining operations than do the 
provisions of SMCRA section 515(b)(15)(E), and are, therefore, not 
inconsistent with section 515(b)(15)(E).
    (B) Section 22-3-13a(b) adds a requirement that operators who have 
already made pre-blast surveys prior to the effective date of section 
13a, and who otherwise would have been subject to the requirements of 
section 22-3-13a(a)(2) shall notify owners and occupants within seven 
tenths of a mile of the blasting site of the right to request a pre-
blast survey, unless a written waiver is executed in accordance with 
section 22-3-13(c). Any such additional surveys must be performed 
within ninety days of the effective date of this section. We find that 
section 22-3-13a(b) provides for more stringent blasting controls of 
surface coal mining operations than do the provisions of SMCRA section 
515(b)(15)(E), and it is, therefore, not inconsistent with section 
515(b)(15)(E).
    (C) Section 22-3-13a(c) provides for the written waiver of the 
right to a pre-blast survey. This section 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.
    Neither SMCRA nor the Federal regulations contains counterparts to 
the

[[Page 61510]]

proposed provisions for waivers of pre-blasting surveys, or the 
provisions concerning the impossibility or impracticality of access to 
conduct a survey. We find, however, that since a pre-blasting survey 
must be requested by an owner or occupant, that the waiving of such a 
survey in writing by an owner or occupant is not inconsistent with the 
pre-blast survey requirements of SMCRA at section 515(b)(15)(E). In 
addition, we find the proposed provisions concerning the impossibility 
or impracticality of access to be reasonable, and not inconsistent with 
the pre-blasting survey requirements of SMCRA at section 515(b)(15)(E), 
and no less effective than the Federal regulations at 30 CFR 816/
817.62(b) and (c).
    (D) 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. While this subsection has no 
precise Federal counterpart, we find it to be consistent with the pre-
blast survey requirements of SMCRA at section 515(b)(15)(E).
    (E) Section 22-3-13a(e) provides that an owner may request from the 
operator a pre-blast survey on structures constructed after the 
original pre-blast survey. While this subsection has no direct Federal 
counterpart, we find it to be consistent with the pre-blast survey 
requirements of SMCRA at section 515(b)(15)(E).
    (F) Section 22-3-13a(f) provides for the information that a pre-
blast survey must contain. Such information must include: The names, 
addresses or description of the location of the structure and the 
names, addresses and telephone numbers of the owner and residents of 
the structure, as well as the structure number from the permit blasting 
map; the current home insurer of the owner and residents of the 
structure; the names, addresses and telephone numbers of the surface 
mining operator, as well as the permit number; the current general 
liability insurer of the surface mining operator; the name, address and 
telephone number of the person or firm conducting the survey, as well 
as the name of the current general liability insurer of that person or 
firm; the date of the pre-blast survey and the date the survey was 
mailed or delivered to the office of explosives and blasting; a general 
description of the structure and its appurtenances; a general 
description of 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 type of water supply; a description of any 
portion of the structure and appurtenances not documented or 
photographed and the reasons; the signature of the person performing 
the survey; and any other information required by rule. While this 
subsection has no precise Federal counterpart, we find it to be 
consistent with the pre-blast survey requirements of SMCRA at section 
515(b)(15)(E) and the Federal regulations at 30 CFR 816/817.62.
    (G) 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 any ``production blasting.'' The office shall 
review each survey for form and 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.
    Our first interpretation of this provision was that pre-blast 
surveys would only be provided for ``production blasting.'' This would 
render the West Virginia program less effective than the Federal 
regulations at 30 CFR 816.61(a) and 817.61(a) and (b) which provide 
that the Federal blasting provisions at 30 CFR 816/817.61 through 816/
817.68 apply to all surface blasting activities, including surface 
blasting incident to underground coal mining. In response to our 
concern, the WVDEP clarified that the intent of this provision is to 
single out ``production blasting'' and to require that such blasting 
requires the submittal of the pre-blast survey to the office of 
explosives and blasting at least 15 days prior to the commencement of 
``production blasting.'' Other blasting (construction blasting) 
operations, the WVDEP explained, must still comply with the pre-blast 
survey requirements at CSR 38-2-6.8.a.4. which provide that surveys 
requested more than 10 days before the planned initiation of blasting 
shall be completed before blasting operations begin. In effect, the 
pre-blast survey requirement for ``production blasting'' is a higher 
standard than that which is applied to other blasting operations.
    The proposed provision also requires that the office of explosives 
and blasting shall provide a copy of the pre-blast survey to the owner 
and/or occupant upon request. However, the Federal regulations at 30 
CFR 816/817.62(d) provide that a copy of the pre-blast survey report be 
provided to the owner or occupant, even if the owner or occupant does 
not specifically request a copy. Therefore, the words ``upon request'' 
render the West Virginia program less effective than the Federal 
regulations at 30 CFR 816/817.62(d) and cannot be approved.
    We are approving this provision with the understanding that, as 
explained by the WVDEP, the time limits for submittal of pre-blast 
surveys at CSR 38-2-6.8.a.4. continue to apply to all blasting other 
than ``production blasting.'' However, the words ``upon request'' are 
not approved. In addition, we are requiring that the State amend its 
program to remove the words ``upon request'' from subsection (g), or 
otherwise amend its program to require that a copy of the pre-blast 
survey be provided to the owner and/or occupant even if the owner or 
occupant does not specifically request a copy. In addition, we are only 
approving this provision to the extent that the State continues to 
implement CSR 38-2-6.8.a.5. to allow any person who disagrees with the 
survey to file a detailed description of the areas of disagreement.
    (H) 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 to notify the public that the pre-
blast survey has been conducted or waived. The office of explosives and 
blasting shall prescribe the form to be used. While this subsection has 
no precise Federal counterparts, we find that it is not inconsistent 
with SMCRA section 515(b)(15)(E) concerning pre-blast surveys and can, 
therefore, be approved.
    (I) 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. We find this provision to be 
consistent with SMCRA section 515(b)(15)(E) concerning pre-blast 
surveys and that it can be approved.
    (J) 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. Except as discussed below, 
we find that this provision is consistent with SMCRA section 
515(b)(15)(E) and the Federal regulations at 30 CFR 816/817.62 which 
provide for pre-blast surveys only for surface mining operations and 
for surface blasting activities incident to

[[Page 61511]]

underground coal mining. At subsection 22-3-13a(j)(2) the phrase ``or 
the surface impacts of the underground mining methods'' renders the 
West Virginia program less effective than the Federal regulations at 30 
CFR 817.61(a). 30 CFR 817.61(a) provides that the Federal blasting 
provisions at 30 CFR 817.61 through 817.68 apply to surface blasting 
activities incident to underground coal mining, including, but not 
limited to, initial rounds of slopes and shafts. Consequently, the 
proposed exclusion of the surface impacts of the underground mining 
methods from the requirements of section 22-3-13a renders the West 
Virginia program less effective than the Federal regulations. 
Therefore, we are approving this provision, except for the phrase ``or 
the surface impacts of the underground mining methods'' at section 22-
3-13a(j)(2), which is not approved. In addition, we are requiring the 
State to amend its program to remove this phrase or otherwise amend its 
program to clarify that the surface blasting impacts of underground 
mining operations are subject to the requirements of 22-3-13a.

4. Sec. 22-3-22a Blasting Restrictions; Site Specific Blasting Design 
Requirement

    (A) 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. There is no counterpart to this 
definition in SMCRA or the Federal regulations. We find, however, that 
the definition is not inconsistent with the blasting requirements in 
SMCRA at section 515(b)(15) nor the Federal regulations concerning 
blasting at 30 CFR 816/817.61-816/817.68 and can be approved.
    (B) 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. 
There is no counterpart to this definition in SMCRA or the Federal 
regulations. We find, however, that the definition is not inconsistent 
with the blasting requirements in SMCRA at section 515(b)(15) nor the 
Federal regulations concerning blasting at 30 CFR 816/817.61-816/817.68 
and can be approved.
    (C) 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. There is no 
counterpart to this definition in SMCRA or the Federal regulations. We 
find, however, that the definition is not inconsistent with the 
blasting requirements in SMCRA at section 515(b)(15) nor the Federal 
regulations concerning blasting at 30 CFR 816/817.61-816/817.68 and can 
be approved.
    (D) 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. This provision has no precise Federal counterpart. 
However, section 522(e)(5) of SMCRA prohibits surface coal mining 
operations, except those with valid existing rights (VER), from being 
conducted within 300 feet of any occupied dwelling, unless waived by 
the owner, or within 300 feet of any public building, school, church, 
community or institutional building, or public park, or within 100 feet 
of a cemetery. The West Virginia counterpart to section 522(e)(5) is at 
W.Va. Code section 22-3-22(d)(4). Upon initial review of this 
provision, we were concerned that because the new prohibitions were 
limited to production blasting, they implicitly negated the mining 
prohibitions contained in W.Va. Code section 22-3-22(d)(4), with 
respect to construction blasting. In response to our concern, the WVDEP 
explained that section 22-3-22(d)(4) of the W.Va. Code remains in 
effect for all blasting operations. New section 22-3-22a(d) is intended 
to prohibit ``production blasting,'' despite a showing of VER, within 
300 feet of a protected structure or 100 feet of a cemetery. In other 
words, operators possessing VER are exempt from the prohibitions of 
section 22-3-22(d)(4), but they are not exempt from the production 
blasting prohibitions of section 22-3-22a(d). Therefore, we are 
approving this provision with the understanding that, as explained by 
the WVDEP, the prohibitions contained in W.Va Code 22-3-22(d)(4) 
continue to apply to all blasting operations.
    (E) Section 22-3-22a(e) provides that blasting within 1,000 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 
living in the protected structure. In its letter of August 10, 1999, 
the WVDEP clarified that section 22-3-22a(e) requires a site-specific 
blast design and not the generic blast design in the Federal rules. If 
the site-specific design is waived, then a blast design plan in 
accordance with CSR 38-2-6.5.g. must be submitted. However, the 
requirements of CSR 38-2-6.5.g.3 must be met with respect to all blast 
designs, whether they be site specific or generic. These requirements 
are also contained in the Federal regulations at 30 CFR 816/
817.61(d)(3), and require that the blast design contain sketches of the 
drill patterns, delay patterns and decking, indicate the type and 
amount of explosives to be used, and contain a discussion of the design 
factors to be used to protect the public and meet applicable blasting 
regulatory limitations. Since the requirements of section 6.5.g.3. are 
not specifically included in W.Va. Code section 22-3-22a(e), we are 
approving it only to the extent that all blast designs, site specific 
and generic, comply with section 6.5.g.3. Otherwise, we find this 
provision to be not inconsistent with SMCRA section 515(b)(15)(C) which 
concerns the prevention of injury to persons and damage to property, 
and no less effective than the requirements of 30 CFR 816/817.67(a) and 
the 1,000-foot blast design standard at 30 CFR 816/817.61(d). We also 
recommend that the State remove the phrase ``in the blasting schedule'' 
at the end of the sentence or include the word ``identified'' before 
the phrase to clarify the intent of this provision.
    (F) 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. There is no 
direct counterpart to this provision in SMCRA or the Federal 
regulations. However, SMCRA

[[Page 61512]]

section 522(e)(5) prohibits surface coal mining operations, except 
those with VER, from being conducted within 300 feet of any occupied 
dwelling, unless waived by the owner, or within 300 feet of any public 
building, school, church, community or institutional building, or 
public park, or within 100 feet of a cemetery.
    In response to our concern, the WVDEP explained that this 
provision, as well as the production blasting prohibition contained in 
section 22-3-22a(d), are in addition to the mining prohibitions 
contained in SMCRA section 522(e)(5) and its West Virginia program 
counterpart at section 22-3-22(d)(4) of the W.Va. Code. In other words, 
operators who propose to conduct production blasting within 300 feet of 
a protected structure or within 100 feet of a cemetery must not only 
possess VER, or, with respect to occupied dwellings, obtain a waiver 
from the owner in accordance with W.Va. Code section 22-3-22(d)(4), but 
must also obtain a specific waiver of the new production blasting 
prohibitions contained in W.Va. Code section 22-3-22a(d). Waivers 
granted by owners of occupied dwellings to the general prohibition on 
mining at W.Va. Code section 22-3-22(d)(4) are not enforceable against 
subsequent owners, unless the subsequent owners have actual or 
constructive knowledge of the waivers, in accordance with 30 CFR 
761.11(e). However, waivers granted under 22-3-22a(f) are enforceable 
against all subsequent owners and occupants, including those without 
actual or constructive knowledge of the existence of the waivers.
    As stated above, the prohibition on production blasting contained 
in section 22-3-22a(d) is in addition to and does not supersede the 
mining prohibitions contained in W.Va. Code 22-3-22(d)(4). As such, it 
is a more stringent land use or environmental control or regulation 
than is contained in SMCRA, and is therefore not inconsistent with 
SMCRA. See SMCRA section 505(b), 30 U.S.C. 1255(b). West Virginia is 
free to allow waivers of more stringent requirements as it sees fit. 
Therefore, the waiver at Section 22-3-22a(f) of the blasting 
prohibition at Section 22-3-22a(d) is approved.
    As discussed above in Finding 4(E), if a waiver of the site 
specific restriction within 1000 feet of a protected structure is 
obtained, then a blast design plan in accordance with CSR 38-2-6.5.g. 
must be submitted. However, both site specific and generic blast 
designs must comply with CSR 38-2-6.5.g.3. With this condition, 
therefore, the allowance of the waiver at Section 22-3-22a(f) of the 
site specific blast design requirement at Section 22-3-22a(e) does not 
render the West Virginia program less effective than the Federal 
regulations at 30 CFR 816/817.61(d) and can be approved.
    (G) Section 22-3-22a(g) provides that section 22-3-22a does not 
apply to: (1) underground coal mining operations; (2) the surface 
operations and surface impacts incident to an underground coal mine; 
and (3) the extraction of minerals by underground mining methods or the 
surface impacts of the underground mining methods. Section 22-3-22a(g) 
further provides that nothing in section 22-3-22a shall exempt any coal 
mining operation from the general performance standards contained in 
Section 22-3-13 and any implementing rules. Since the requirements of 
section 22-3-22a are in addition to those contained in the approved 
program, and do not supersede any of those requirements, we find that 
the exemptions contained in section 22-3-22a(g) do not render the 
State's program inconsistent with SMCRA section 515(b)(15), or the 
Federal regulations at 30 CFR 817.61(a).

5. Sec. 22-3-23(c) Release of Bond or Deposits

    Subsection 22-3-23(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 22-3-23(c), 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 
three, chapter 29a of the W.Va. Code, to govern a bond release pursuant 
to the terms of this paragraph.
    The new language added to this subdivision appears to allow the 
total release of the performance bond despite the bond release 
scheduling provisions of section 22-3-23(c)(1), (2), and (3). Such 
release could only take place if both backfilling and reclamation have 
been achieved in accordance with an approved post-mining land use plan. 
Further, the post-mining land use plan must have been approved by the 
WVDEP and accepted by a local or regional economic development or 
planning agency for the county or region in which the operation is 
located. In addition, provisions for sound future maintenance must be 
assured by the local or regional economic development or planning 
agency, and the quality of any untreated postmining water discharge 
must comply with applicable water quality criteria for bond release.
    SMCRA at section 509(a) provides that before a permit is issued, 
the applicant must file a bond for performance, that is conditional 
upon the faithful performance of all the requirements of SMCRA and the 
permit. SMCRA at section 509(b) provides that liability under the bond 
shall be for the duration of the surface coal mining and reclamation 
operation and for a period coincident with the operator's 
responsibility for revegetation requirements in section 515 of SMCRA. 
SMCRA at section 515(b)(20) provides that the operation shall assume 
the responsibility for successful revegetation for a period of five 
years after the last year of augmented seeding, fertilizing, 
irrigation, or other work in order to assure compliance with section 
515(b)(19) concerning the establishment of a diverse, effective and 
permanent vegetative cover. Despite these revegetation requirements and 
the bond release provisions of section 519(c) of SMCRA and the Federal 
regulations at 30 CFR 800.40(c), the proposed provision appears to 
authorize the release of a performance bond prior to the end of the 
revegetation responsibility period. Since neither SMCRA nor the Federal 
regulations provide for exemptions to the bond release provisions, the 
proposed amendment, to the extent that it conflicts with the existing 
bond release requirements at Section 22-3-23 and CSR 38-2-12.2 would 
render the West Virginia program less stringent than SMCRA at section 
519(c). In response to our concerns with this provision, the WVDEP 
requested that our decision on this provision be deferred, because the 
WVDEP is currently developing implementing regulations that it believes 
will address our concerns. Therefore, we are deferring our decision on 
Section 22-3-23(c). We will reconsider this proposed provision when the 
WVDEP submits the implementing regulations for our review and approval. 
In the meantime, the State

[[Page 61513]]

is prohibited from implementing these proposed bond release provisions.

6. Sec. 22-3-24 Water Rights and Replacement; Waiver of Replacement

    (A) 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.
    There is no direct counterpart to this provision in SMCRA or the 
Federal regulations. However, we find that this provision is not 
inconsistent with the water rights and replacement provisions at 
sections 717(b) and 720(a)(2) of SMCRA and to an extent constitutes a 
more stringent standard for water replacement than is provided for in 
SMCRA or the Federal regulations, in accordance with section 505(b). 
Therefore, the provision is approved.
    (B) 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 section 22-3A-5 
concerning claims processing. There is no direct counterpart to this 
provision in SMCRA or the Federal regulations. However, we find that 
this provision is not inconsistent with the requirements of section 
717(b) of SMCRA and can, therefore, be approved.
    (C) New subsection 22-3-24(e) provides that the director shall 
propose rules for legislative approval to implement the requirements of 
this section. We find that this provision is not inconsistent with the 
water replacement provisions in SMCRA at section 717(b) and can, 
therefore, be approved.
    (D) New subsection 22-3-24(f) provides that the rebuttable 
presumption provisions of subsection 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. Since neither SMCRA nor the Federal regulations provide 
for rebuttable presumptions of water supply loss or damage due to 
surface or underground coal mining operations, we find that the 
provision is consistent with sections 717(b) and 720(a)(2) of SMCRA and 
can, therefore, be approved. However, it should be noted that the water 
replacement requirements of subsection 720(a)(2) of SMCRA are 
applicable to underground mining operations. The proposed State 
provision does not negate the State's water replacement requirements at 
subsection 22-3-24(b), and it would not relieve an operator of 
replacing a water supply which is adversely affected by an underground 
mining operation.

7. Sec. 22-3-30a Blasting Requirements; Liability and Civil Penalties 
in the Event of Property Damage

    (A) 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. By doing so, the 
State is limiting all of its blasting requirements only to ``production 
blasting.'' We find this provision would render the West Virginia 
program less stringent than SMCRA section 515(b)(15) and less effective 
than the Federal regulations at 30 CFR 816/817.61(a). Specifically, the 
proposed provision only applies to the blasting of overburden and coal, 
whereas the Federal blasting provisions apply to all blasting at 
surface coal mining and reclamation operations and surface blasting 
activities incident to underground coal mining, including, but not 
limited to, initial rounds of slopes and shafts. Therefore, we are 
approving this provision, except for the phrase ``of overburden and 
coal'' which is not approved. Also, we are requiring the State to amend 
its program to remove the phrase ``of overburden and coal,'' or to 
otherwise clarify that its general surface coal mining blasting laws 
and regulations apply to all blasting at surface coal mining and 
reclamation operations and surface blasting activities incident to 
underground coal mining, including, but not limited to, initial rounds 
of slopes and shafts.
    (B) 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, 
other than wells, as defined in section 22-3-22a. The first offense 
carries a penalty of not less than $1,000.00 and not more than 
$5,000.00. The second offense and each subsequent offense within one 
year of the first offense carries a penalty of not less than $5,000.00 
and not more than $10,000.00. The third offense, any subsequent offense 
within one year of the first offense, and any failure to pay any 
assessment within a reasonable time will subject the permit to a 
cessation order, which shall be released only when the permittee files 
a plan with the director assuring that additional violations will not 
occur, compensates for any property damages that have occurred due to 
the offense, and provides monetary or other assurances to compensate 
for future property damages. Second and subsequent offenses on any one 
permit area entitle the owner of a protected structure to a rebuttable 
presumption that the property damage was caused by the blasting 
offense, if a pre-blast survey was performed and the blasting is within 
seven tenths of a mile of the protected structure. No more than one 
offense shall arise out of a single ``shot,'' which means a single 
blasting event composed of one or multiple detonations, or the assembly 
of explosive materials for this purpose. One ``shot'' may be composed 
of numerous explosive charges detonated at intervals measured in 
milliseconds.
    There is no direct counterpart to this provision in SMCRA or the 
Federal regulations. However, during our review of this provision, it 
appeared that the phrase ``other than wells'' which excludes wells from 
penalties to be imposed where blasting was out of compliance and 
resulted in property damage would render the West Virginia program less 
stringent than SMCRA at sections 515(b)(15)(C) and section 518(a). 
SMCRA at section 515(b)(15)(C) provides that blasting shall be limited 
so as to prevent injury to persons and 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. Wells are not excluded from the 
requirements of section 515(b)(15)(C). SMCRA at section 518(a) also 
provides for civil penalty assessment for violations of any provision 
of SMCRA. SMCRA does not exclude wells from this requirement.
    In response to our concern with the phrase ``other than wells,'' 
the WVDEP

[[Page 61514]]

explained that new section 22-3-30a pertains only to production 
blasting violations that result in property damage. All other blasting 
related violations, including those cited for damage to wells, will 
utilize the penalty system described in CSR 38-2-20.
    We note that the clear language of subsection 22-3-30a(b) indicates 
that it applies to all blasting that results in property damage to 
protected structures, rather than just to production blasting that 
results in damage to protected structures. Therefore, we cannot concur 
with the WVDEP's construction of subsection (b) in this regard. 
However, we agree with the WVDEP that the West Virginia program may 
reasonably be interpreted such that all other blasting related 
violations, including those cited for damage to water wells, will 
continue to be subject to the civil penalty provisions at CSR 38-2-20. 
Therefore, the exclusion of water wells from the coverage of the new 
requirements in section 22-3-30a(b) does not render the West Virginia 
program less stringent than section 518 of SMCRA or inconsistent with 
the Federal regulations at 30 CFR part 845.
    We note that the proposed provision is silent on how the specific 
amount of a penalty would be determined. SMCRA at section 518(a) 
provides four criteria that should be considered that in determining 
the amount of a penalty: (1) the permittee's history of previous 
violations at the particular surface coal mining operation; (2) the 
seriousness of the violation, including any irreparable harm to the 
environment and any hazard to the health or safety of the public; (3) 
whether the permittee was negligent; and (4) the demonstrated good 
faith of the permittee charged in attempting to achieve rapid 
compliance after notification of the violation.
    Therefore, we are approving section 22-3-30a(b) because blasting 
related enforcement actions taken for damage to wells, and all 
enforcement actions taken for blasting that does not cause damage to 
protected structures, will continue to be subject to the civil penalty 
requirements of CSR 38-2-20, rather than to the new requirements of 
this subsection, except as provided for in section 22-3-30a(e). Also, 
as noted below in Finding 7.H, violations for surface blasting 
activities incident to underground coal mining will continue to be 
subject to the requirements of CSR 38-2-20. We are also approving 
section 22-3-30a(b) upon the condition that the new rules to be 
developed by the State to implement this provision shall contain the 
four criteria listed above in determining the amount of a penalty for 
any type of blasting violation. In addition, the State may only 
implement this provision now, prior to promulgation of implementing 
regulations, to the extent that it applies the four criteria listed 
above and found in the State's program at W.Va. Code 22-3-17(c), to 
civil penalties assessed pursuant to this section.
    (C) 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(a) that is merely 
administrative in nature. The meaning of this prohibition is unclear, 
and may allow the WVDEP to waive the assessment of a civil penalty on a 
cessation order issued for failure to abate a blasting related 
violation which is administrative in nature. If so, this new subsection 
is less stringent than section 518(a) of SMCRA which mandates the 
issuance of a civil penalty for any violation that leads to a cessation 
order. Therefore, this provision cannot be approved. The State may wish 
to clarify the meaning of the term ``administrative in nature'' in any 
regulation it may develop to implement this section, and if 
appropriate, we will reconsider this provision when the new regulations 
are submitted to OSM.
    (D) 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. While this provision has no 
Federal counterpart, we find that it is not inconsistent with SMCRA or 
the Federal regulations and it can, therefore, be approved.
    (E) 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 
300 feet of a protected structure, within 100 feet of a cemetery, or 
within 1000 feet of a protected structure without an approved site 
specific blast design. Production blasting conducted within these 
distance limitations need not cause property damage to protected 
structures to be subject to the provisions of 22-3-30a(b). As noted 
above in Finding 7.B, all other blasting violations that do not cause 
property damage to protected structures will continue to be subject to 
the civil penalty requirements of CSR 38-2-20. We find that subsection 
22-3-30a(e) is no less stringent than SMCRA section 518 and not 
inconsistent with 30 CFR Part 845.
    (F) Subsection 22-3-30a(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.'' The approved program, at W.Va. 
Code Sec. 22-3-17(d)(2), currently requires that civil penalty moneys 
be deposited into the State's alternative bonding fund, known as the 
``special reclamation fund.'' If this provision is approved, however, 
penalties collected from blasting violations that resulted in property 
damage to protected structures would no longer be placed in the special 
reclamation fund, but instead would be deposited into the newly created 
general school fund. Prior to our approval of subsection 22-3-30a(f), 
the State must demonstrate that the special reclamation fund will not 
become unacceptably compromised without the proceeds from these 
blasting related civil penalties. The State has not yet satisfied the 
required program amendment codified at 30 CFR 948.16(lll) concerning 
elimination of the deficit in the State's alternative bonding system 
and requiring that sufficient money will be available to complete 
reclamation, including the treatment of polluted water, at all existing 
and future bond forfeiture sites. Therefore, we are not approving 
subsection 22-3-30a(f) until the State demonstrates that the special 
reclamation fund does not have a deficit and that it will not become 
unacceptably compromised without the proceeds from blasting related 
civil penalties.
    (G) Subsection 22-3-30a(g) provides that the director shall propose 
rules for the implementation of this section. We find this provision is 
not inconsistent with the blasting provisions in SMCRA at section 
515(b)(15) and the Federal regulations at 30 CFR 816/817.61-816/817.68 
and can be approved.
    (H) Subsection 22-3-30a(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. As noted above in Finding 7.B., surface blasting activities 
incident to underground coal mining will continue to be regulated under 
CSR 38-2-6, and 20. Therefore, we are approving this provision.

8. Sec. 22-3A Office of Explosives and Blasting

    (A) Article 3A is new . Section 22-3A-1 provides for legislative 
findings,

[[Page 61515]]

and policies and purposes. Section 22-3A-1 declares that establishment 
of the office of explosives and blasting (office) is in the public 
interest, and that this office will be vested with authority to enforce 
all rules and laws established to regulate blasting. There is no 
Federal counterpart to this provision. We find, however, that the 
provision is not inconsistent with SMCRA at section 515(b)(15) and the 
Federal regulations at 30 CFR 816/817.61-816/817.68 and can be 
approved.
    (B) 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. There is no Federal counterpart to this provision. We find, 
however, that the provision is not inconsistent with SMCRA at section 
515(b)(15) and the Federal regulations at 30 CFR 816/817.61-816/817.68 
and can be approved.
    (C) Section 22-3A-3 establishes the powers and duties of the office 
of explosives and blasting. These include, but are not limited to: 
regulating blasting on all surface mining operations; implementing and 
overseeing the pre-blast survey process; maintaining and operating a 
system to receive and address questions, concerns and complaints; 
setting the qualifications for individuals and firms performing pre-
blast surveys; education, training, examination and certification of 
blasters; and proposing rules for legislative approval. There is no 
Federal counterpart to this provision. We find, however, that the 
provision is not inconsistent with SMCRA at section 515(b)(15) and the 
Federal regulations at 30 CFR 816/817.61-816/817.68 and can be 
approved.
    (D) Section 22-3A-4 provides that the office shall propose rules 
for the purpose of implementing article 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 and review procedures 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. We find 
that the provision is not inconsistent with the Federal blasting 
provisions in SMCRA at section 515(b)(15) and the Federal regulations 
at 30 CFR 816/817.61-816/817.68 and Part 850, and can be approved.
    (E) 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 for the claimant, 
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 to operators who fail to pay claims within thirty 
days of a final determination of liability. 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. This section has no Federal counterparts. However, we find 
that the section provides for more stringent environmental controls of 
surface coal mining and reclamation operations than those contained in 
SMCRA or the Federal regulations. Therefore, in accordance with section 
505(b) of SMCRA, this section is not inconsistent with SMCRA and can be 
approved.
    (F) Section 22-3A-6 provides that rules, orders, licenses, 
certificates 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 affected by this 
enactment. We find that the provision is not inconsistent with the 
Federal blasting provisions in SMCRA at section 515(b)(15) and the 
Federal regulations at 30 CFR 816/817.61-816/817.68, and can be 
approved.
    (G) 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 office of explosives and blasting and the office of coal field 
community development in conducting their duties. The legislature shall 
appropriate the funds for expenditure. This section has no Federal 
counterparts. However, because this section provides for the creation 
of a new funding source for these newly created offices and it will not 
affect the current funding of the State's approved program, we find 
this provision is not inconsistent with section 503(a)(3) of SMCRA and 
can be approved.
    (H) Section 22-3A-8 concerns the transfer of personnel and assets 
currently used to perform the duties of article 3A to the office. We 
find that the provision is necessary to effectuate the transfer of 
authority for the regulation and enforcement of blasting activities to 
the office, that it is not inconsistent with the Federal blasting 
provisions in SMCRA at section 515(b)(15) and the Federal regulations 
at 30 CFR 816/817.61-816/817.68, and can be approved to the extent that 
the levels of funding, staffing, and equipment continue as before, with 
the addition of the funding provided for in section seven of this 
article.
    (I) Section 22-3A-9 sets forth the limitations of article 3A. 
Except for sections five and seven of this article, pertaining to the 
claims process and funding, respectively, all provisions of this 
article are also applicable to surface blasting activities related to 
underground mining operations. As noted above, article 3A generally 
provides for blasting controls of surface coal mining and reclamation 
operations that are in addition to and to some extent more stringent 
than those contained in SMCRA or the Federal regulations. Sections five 
and seven are two examples of these additional controls. Therefore, the 
exemption of surface blasting activities related to underground mining 
operations from the requirements of section 5 and 7 of article 3A does 
not render this section inconsistent with SMCRA, and it can be 
approved.
    (J) Section 22-3A-10 provides that the office shall conduct or 
participate in studies or research to develop scientifically based data 
and recommendations related to various aspects of blasting. The office 
shall report the data and recommendations to the West Virginia 
Legislature's joint committee on government and finance on or before 
January 1, 2001, and annually thereafter or as otherwise requested. We 
find that the provision is not inconsistent with the Federal blasting 
provisions in SMCRA at section 515(b)(15) and the Federal regulations 
at 30 CFR 816/817.61-816/817.68, and can be approved.
    (K) Section 22-3A-11 provides that the office of explosives and 
blasting is continued until July 1, 2002. We find that the provision is 
not inconsistent with the Federal blasting provisions in SMCRA at 
section 515(b)(15) and the

[[Page 61516]]

Federal regulations at 30 CFR 816/817.61-816/817.68, and can be 
approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the West Virginia program. The U.S. Department of 
Labor, Mine Safety and Health Administration (MSHA) responded and 
stated that the changes do not appear to affect MSHA. The U.S. Army 
Corps of Engineers responded and recommended that the proposed 
amendments specify measures in the International System of Units (SI), 
in lieu of the inch-pound (IP) system. While we concur with this 
recommendation, the lack of the use of SI units does not render the 
amendment less stringent than SMCRA nor less effective than the Federal 
regulations.

Public Comments

    We solicited public comments on the amendment. The Surety 
Association of America (SAA) commented on the amended bond release 
provision at section 22-3-23(c)(3). The SAA stated that the amendment 
creates another bond release provision. Specifically, the SAA stated, 
the director of the WVDEP may release the entire amount of bond after 
satisfaction of the three specified criteria (backfilling and 
reclamation, sound future maintenance, and the quality of untreated 
discharges). Under this provision, the SAA stated, the director of the 
WVDEP will have the discretion to retain 100 percent of the bond 
throughout the entire reclamation process, as opposed to releasing the 
bond according to the normal three-phase bond release process. The SAA 
further stated that it is its understanding that the original intent of 
the bond release amendment was to permit an accelerated final bond 
release during Phase Three of reclamation. That is, the passing of five 
growing seasons alluded to in Subsection 22-3-23(c)(3) could be 
disregarded. However, as written the SAA asserts, the amendment 
actually prolongs the period during which the full bond liability is 
outstanding.
    The SAA expressed its concern regarding the legislation (and any 
implementing rules) that permit the retention of the full bond amount 
during the entire reclamation process and which abandon the practice of 
a phased bond release. The current West Virginia Code mitigated the 
long-term underwriting hazard of the bond by allowing a phased release 
of the liability. The proposed amendment, the SAA stated, prevents any 
bond release until the entire process is completed.
    The SAA provided the following recommendations. The SAA recommends 
that the phrase ``notwithstanding the bond release provisions of 
subdivision (1), (2), and (3)'' should be revised to state 
``notwithstanding the bond release scheduling provision of subdivision 
(3).'' Further, the SAA suggested that the phrase ``backfilling and 
reclamation'' be revised to read ``backfilling and revegetation.'' With 
these changes, the SAA stated, ``the amendment is clear that the 
provisions regarding bond release in Phase One and Phase Two of 
reclamation are unchanged.'' With this change, the amendment would only 
affect Phase Three (monitoring). The SAA also requested that any rules 
concerning bond release should retain the phased bond release element.
    In response, and as noted above in Finding 5, we have deferred our 
decision on this provision. The WVDEP requested that we defer our 
decision because the WVDEP is in the process of developing rules that, 
the WVDEP stated, will address our concerns with this provision. When 
those are submitted for our review, we will reopen the public comment 
period so that this statute and its implementing rules can be reviewed 
together. At that time, we will considered the SAA comments. Of course, 
the SAA may submit additional comments when the comment period is 
reopened on this provision.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The EPA responded by letter dated June 3, 1999 (Administrative 
Record Number WV-1134), and concurred with the amendment. The EPA 
stated that the amendment does not violate the Clean Water Act or the 
Clean Air Act.
    Pursuant to 732.17(h)(11)(i), we also solicited comments on the 
proposed amendment from EPA. The EPA provided the following two 
comments. First, the EPA commented on section 22-3-13(a)(21) [the 
correct cite is 22-3-13(b)(21)], which provides an exemption for 
placing spoil material within the permit area. The EPA stated that 
although the change to this provision is a change in wording rather 
than in substance, the EPA endorses the State's concept of authorizing 
the placement of spoil material outside the permit area if it is 
determined that environmental benefits will result. The EPA stated that 
in some situations, it can be seen that placement of spoil on adjacent 
reclaimed permit areas, rather than in valley fills, can help minimize 
stream impacts. We concur with the EPA's comment concerning this 
provision, subject to the restrictions contained in the State's 
regulations at CSR 38-2-14.14.c.
    Second, the EPA stated that changes to section 22-3-24 are 
disturbing because they place more burden of proof on a well owner if 
an underground mine is the suspected cause of damage to an underground 
water supply than if a surface mine is the suspected cause. 
Specifically, new subsection 22-3-24(c) provides a rebuttable 
presumption that a mining operation caused damages to an underground 
water supply if an inspector determines that contamination, diminution, 
or damage to the well exists, and that a pre-blast survey indicated 
that these problems did not exist beforehand. However, the EPA stated, 
new subsection 22-3-24(f) provides an exemption to subsection 22-3-
24(c) if the suspected cause is either an underground mine, the surface 
operations incident to an underground mine, or surface impacts caused 
by an underground mine. In these situations, the EPA stated, the well 
owner would have to prove on his or her own that the underground mine 
is the cause of the damage to the underground water supply. This 
proposed exemption, the EPA stated, basically shifts the burden from 
the underground mining company, to the well owner. Since most well 
damage problems are linked to underground mines rather than surface 
mines, the proposed exemption in subsection 22-3-24(f) would seem to 
place an undue burden on the well owner to substantiate damage. The EPA 
recommended that this exemption be eliminated.
    We agree with the EPA that proposed section 22-3-24(f) exempts 
underground mines from the rebuttable presumption at section 22-3-24(c) 
that a mining operation caused damage to an owner's underground water 
supply. However, as noted above in Finding 6, we find that the 
exception provided at section 22-3-24(f) is not inconsistent with 
sections 717(b) and 720(a)(2) of SMCRA concerning water rights and 
replacement, since the Federal provisions do not provide for a

[[Page 61517]]

rebuttable presumption of water supply loss or damage due to either an 
underground or surface coal mining operation. Nothing in the revised 
section would relieve an operator of replacing a water supply which is 
determined to be adversely affected by an underground mining operation.

V. Director's Decision

    Based on the findings above, we are approving the proposed 
amendment, except as noted below.
    The deletion of section 22-3-13(b)(15)(C) is approved with the 
understanding that the West Virginia rules at CSR 38-2-6.5.a. and CSR 
38-2-6.4 and 6.5 continue in effect and provide the protection afforded 
by the deleted provision.
    Section 22-3-13a(g) is approved with the understanding that the 
time limits for submittal of pre-blast surveys at CSR 38-2-6.8.a. 
continue to apply to all blasting other than ``production blasting.'' 
However, the words ``upon request'' are not approved. The State is 
being required to amend its program to remove the words ``upon 
request'' from subsection (g), or otherwise amend its program to 
require that a copy of the pre-blast survey be provided to the owner 
and/or occupant even if the owner or occupant does not specifically 
request a copy. In addition, the remainder of section 22-3-13a(g) is 
approved only to the extent that the State continues to implement CSR 
38-2-6.8(a)(5) to allow any person who disagrees with the survey to 
file a detailed description of the areas of disagreement.
    At section 22-3-13a(j)(2), the phrase ``or the surface impacts of 
the underground mining methods'' is not approved, and the State is 
being required to amend its program to remove this phrase or otherwise 
amend its program to clarify that the surface blasting impacts of 
underground mining operations are subject to the requirements of 22-3-
13a.
    Section 22-3-22a(d) is approved with the understanding that the VER 
requirements at W.Va. Code 22-3-22(d)(4) continue to apply to all 
blasting operations.
    Section 22-3-22a(e) is approved only to the extent that all blast 
designs, site specific and generic, comply with section 38-2-6.5.g.3.
    Section 22-3-22a(f) is approved with the understanding that all 
blast designs, site specific and generic, comply with section 38-2-
6.5.g.3.
    Our decision on section 22-3-23(c)(3) is deferred.
    Section 22-3-30a(a) is approved, except the phrase ``of overburden 
and coal'' which is not approved.
    Section 22-3-30a(b) is approved because blasting-related violations 
cited for damage to wells, and all violations cited for blasting that 
does not cause damage to protected structures, will continue to be 
subject to the civil penalty requirements of CSR 38-2-20, rather than 
to the new requirements of this subsection, except as provided for in 
section 22-3-30a(e). Violations for surface blasting activities 
incident to underground coal mining will also continue to be subject to 
the requirements of CSR 38-2-20. Also, section 22-3-30a(b) is approved 
upon the condition that the new rules to be developed by the State to 
implement this provision shall consider the four criteria listed at 
section 518(a) of SMCRA in determining the amount of a penalty for any 
type of blasting violation. In addition, the State may only implement 
this provision now, prior to promulgation of implementing regulations, 
to the extent that it applies the four criteria at section 518(a) of 
SMCRA and found in the State's program at W.Va. Code 22-3-17(c), to 
civil penalties assessed pursuant to this Section.
    Section 22-3-30a(c) is not approved.
    Section 22-3-30a(f) is not approved.
    Section 22-3-30a(h) is approved because surface blasting activities 
incident to underground coal mining will continue to be regulated under 
CSR 38-2-6, and 20.
    Section 22-3A-8 is approved to the extent that the levels of 
funding, staffing, and equipment continue as before, with the addition 
of the funding provided for in section 22-3A-7.
    The Federal regulations at 30 CFR 948 codifying decisions 
concerning the West Virginia program are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. 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

[[Page 61518]]

on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 29, 1999.
Michael K. Robinson,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 948--WEST VIRGINIA

    1. The authority citation for Part 948 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
   *                  *                  *                  *
                                       *
March 25, 1999................  November 12, 1999  W.Va. Code 22-1-
                                                    7(a)(7); 22-3-13(a),
                                                    (b)(3) and (15),
                                                    (e), and (f); 22-3-
                                                    13a, in 13a(g) the
                                                    words ``upon
                                                    request'' are not
                                                    approved, in
                                                    13a(j)(2) the phrase
                                                    ``or the surface
                                                    impacts of the
                                                    underground mining
                                                    methods'' is not
                                                    approved; 22-3-22a;
                                                    22-3-23(c)(3)
                                                    decision is
                                                    deferred; 22-3-
                                                    24(c), (d), (e), and
                                                    (f); 22-3-30a, in
                                                    30a(a) the phrase
                                                    ``of overburden and
                                                    coal'' is not
                                                    approved, 30a(c) and
                                                    (f) are not
                                                    approved; and 22-3A.
------------------------------------------------------------------------

    3. Section 948.16 is amended by adding new paragraphs (kkkk), 
(llll) and (mmmm) to read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (kkkk) By January 11, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to remove the words ``upon 
request'' at W. VA. Code 22-3-13a(g), or otherwise amend its program to 
require that a copy of the pre-blast survey be provided to the owner 
and/or occupant even if the owner or occupant does not specifically 
request a copy.
    (llll) By January 11, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to remove the phrase ``or the 
surface impacts of the underground mining methods'' from 22-3-
13a(j)(2), or otherwise amend its program to clarify that the surface 
blasting impacts of underground mining operations are subject to the 
requirements of 22-3-13a.
    (mmmm) By January 11, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to remove the phrase ``of 
overburden and coal'' from W.Va. Code 22-3-30a(a), or to otherwise 
clarify that its general surface coal mining blasting laws and 
regulations apply to all blasting at surface coal mining and 
reclamation operations and surface blasting activities incident to 
underground coal mining, including, but not limited to, initial rounds 
of slopes and shafts.

[FR Doc. 99-29580 Filed 11-10-99; 8:45 am]
BILLING CODE 4310-05-P