West Virginia Permanent Regulatory Program

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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