West Virginia Regulatory Program

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

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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

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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