[Federal Register Volume 64, Number 218 (Friday, November 12, 1999)]
[Rules and Regulations]
[Pages 61507-61518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29580]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-081-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing its approval, with certain exceptions, of an
amendment to the West Virginia permanent regulatory program under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
amendment revises the West Virginia Code to create the Office of
Explosives and Blasting, and adds and amends sections of the West
Virginia Code concerning blasting. The amendment is intended to improve
the operational efficiency of the State program.
EFFECTIVE DATE: November 12, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION
I. Background on the West Virginia Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. You can find
[[Page 61508]]
background information on the West Virginia program, including the
Secretary's findings, the disposition of comments, and the conditions
of the approval in the January 21, 1981, Federal Register (46 FR 5915-
5956). You can find later actions concerning the West Virginia program
and previous amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and
948.16.
II. Submission of the Amendment
By letter dated March 25, 1999 (Administrative Record Number WV-
1119), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to the West Virginia program pursuant to 30 CFR
732.17. The amendment concerns changes to Chapter 22 Article 3
(Sec. 22-3) and Sec. 22-1 of the West Virginia Code as contained in
West Virginia Senate Bill (SB) 681. The amendment also creates the
Office of Explosives and Blasting within the WVDEP, and adds and amends
sections of the West Virginia Code concerning blasting. By letter dated
April 1, 1999 (Administrative Record Number WV-1121), the WVDEP
notified us that the West Virginia Governor signed SB-681, and provided
a copy of the signed bill. We reviewed the amendment, and provided the
WVDEP with our comments at a meeting on July 19, 1999 (Administrative
Record Number WV-1136). The WVDEP responded to our comments in a letter
dated August 10, 1999 (Administrative Record Number WV-1137).
We announced receipt of the proposed amendment in the April 20,
1999, Federal Register (64 FR 19327), invited public comment, and
provided an opportunity for a public hearing on the adequacy of the
proposed amendment. The public comment period closed on May 20, 1999.
No one requested an opportunity to speak at a public hearing, so none
was held. We reopened the public comment period on October 8, 1999 (64
FR 54845), to provide an opportunity for the public to review and
comment on the information provided to us by the WVDEP at the July 19,
1999, meeting. The comment period closed on October 25, 1999.
III. Director's Findings
Following, according to SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17, are our findings concerning the proposed amendment.
Any revisions that we do not specifically discuss below concern
nonsubstantive wording changes or revised paragraph notations to
reflect organizational changes that result from this amendment.
1. Sec. 22-1-7 Offices Within the Division; Continuation of the Office
of Water Resources
New section 22-1-7(a)(7) is added to provide that the director
shall maintain the office of explosives and blasting, which is charged,
at a minimum, with administering and enforcing, under the supervision
of the director, the provisions of 22-3A, concerning the office of
explosives and blasting.
There is no direct counterpart to this provision in SMCRA or the
Federal regulations. Nevertheless, we find that the provision does not
render the West Virginia program less stringent than SMCRA nor less
effective than the Federal regulations.
2. Sec. 22-3-13 General Environmental Protection Performance Standards
for Surface Mining; Variances
(A) W.Va. Code 22-3-13(a) is amended to change the phrase ``* * *
and other requirements as the director promulgates'' to read ``* * *
and other requirements set forth in legislative rules proposed by the
director.'' We find that this amendment is substantively identical to
SMCRA at section 515(a). Further, this amendment clarifies the manner
in which the director of the WVDEP must promulgate requirements under
this provision.
(B) W.Va. Code 22-3-13(b)(3), concerning approximate original
contour, is amended by changing the words ``The director shall
promulgate rules governing variances * * *'' to read, ``The director
shall propose rules for legislative approval in accordance with article
three, chapter twenty-nine-a of this code, governing variances. * * *''
We find that this amendment clarifies the manner in which the director
of the WVDEP must promulgate regulations under this provision, and is
not inconsistent with SMCRA at section 515.
(C) W.Va. Code 22-3-13(b)(15)(A): Paragraph (A), which concerns the
general performance standard for providing advance written notice to
local governments and residents of the planned blasting schedule, has
been deleted. However, the State has added a new article 3A, which
concerns the new Office of Explosives and Blasting. New section 22-3A-
4(a)(8) provides that the office of explosives and blasting shall
propose rules that shall include provisions for requiring mining
operators to provide adequate advance written notice of the proposed
blasting schedule. Such notice shall be made to local governments,
owners and occupants living within the distances prescribed in section
22-3-13a(a). New section 22-3A-4(a)(5) provides that the office of
explosives and blasting shall propose rules that shall provide a
procedure to warn of impending blasting to the owners or occupants
adjoining the blasting area. In addition, the currently approved West
Virginia regulations at Code of State Regulations (CSR) 38-2-6.3.a.
provide for public notice of blasting operations. These blasting
schedule notice requirements are applicable to both surface and
underground mining operations. CSR 38-2-6.3.a. requires the operator to
publish a blasting schedule in a newspaper of general circulation in
the county of the proposed permit area and copies of the schedule must
be distributed by certified mail to local governments, public utilities
and each resident within \1/2\ mile of the blasting site. Finally, the
State regulations at CSR 38-2-6.5.b. concerning safety precautions
provide that a warning signal audible to a range of \1/2\ mile from the
blast site shall be given before each blast. Consequently, we find that
the audible warning signal requirements at CSR 38-2-6.5.b. satisfy the
daily notice requirement under section 515(b)(15)(A) of SMCRA.
Therefore, we find that the deletion of Sec. 22-3-13(b)(15)(A) does not
render the West Virginia program less stringent than SMCRA at section
515(b)(15)(A), and can be approved.
(D) W.Va. Code 22-3-13(b)(15)(C): Paragraph (C), which concerns the
general performance standard for limiting the size, type, and frequency
of blasting to prevent injury to persons and damage to property and the
environment has been deleted. Concurrently, the State has added a new
article 3A, which creates the Office of Explosives and Blasting. New
section 22-3A-4(a)(6) provides that the office of explosives and
blasting shall propose rules that shall include a procedure to limit
the type of explosives and detonating equipment, as well as size, type,
and frequency of blasts based upon the physical conditions of the site
to prevent injury to persons and damage to property and the
environment. When promulgated, the new regulations required by 22-3A-
4(a)(6) should provide a replacement for the deleted requirement at
section 22-3-13(b)(15)(C). However, during our review of this
amendment, we were concerned that in the meantime, the deletion of the
performance standard at section 22-3-13(b)(15)(C) may leave a gap in
the West Virginia program and render it less stringent than SMCRA at
section 515(b)(15)(C). In response to our concern, the WVDEP stated in
a letter dated August 10, 1999 (Administrative
[[Page 61509]]
Record Number WV-1137) that the deletion does not leave a gap in the
West Virginia program. Specifically, the WVDEP stated that the blasting
provisions at CSR 38-2-6.5.a. continue to apply and provide that
blasting shall be conducted in such a way so as to prevent injury to
persons, damage to public or private property outside the permit area,
adverse impacts on any underground mine, and change in the course
channel, or availability of surface or groundwater outside the permit
area. The WVDEP also added that there are specific limitations on blast
design contained in CSR 38-2-6.4 and 6.5 which in effect limit the
explosives and type of blast. These regulations remain in effect under
the authority of W.Va. Code sections 22-3-2(b)(1) and (2), and 22-3-
2(c)(1), (3), and (5). Finally, the WVDEP acknowledged that re-
inserting the deleted language at section 22-3-13(b)(15)(C) would
remove any uncertainty relative to the authority of WVDEP to protect
the public from the effects of blasting.
Therefore, we are approving the deletion of section 22-3-
13(b)(15)(C) with the understanding that, as explained by the WVDEP,
the West Virginia program regulations at CSR 38-2-6.5.a. and CSR 38-2-
6.4 and 6.5 continue in effect and provide the protection afforded by
the deleted provision. In addition, we encourage West Virginia to re-
insert the deleted section 22-3-13(b)(15)(C) in the W.Va. Code.
(E) W.Va. Code 22-3-13(b)(15)(D) concerning blaster certification,
now re-lettered as paragraph (B), is amended by deleting the word
``director'' and adding in its place the words ``office of explosives
and blasting.'' We find that this amendment does not render the West
Virginia program less stringent than SMCRA section 515(b)(15)(D) and
can be approved.
(F) W.Va. Code 22-3-13(b)(15)(E), concerning the right to request a
pre-blast survey, has been deleted. However, the State has added a new
article 3A, which concerns the new Office of Explosives and Blasting.
New section 22-3A-4(a)(2) provides that the office of explosives and
blasting shall propose rules that shall provide specific minimum
requirements for pre-blast surveys, as set forth in new section 22-3-
13a concerning pre-blast survey requirements. This new section contains
many of the requirements contained in section 22-3-13(b)(15)(E). Please
note in Finding 3, however, that we are not approving new section 22-3-
13a in its entirety. Nevertheless, the approved West Virginia program
currently contains counterparts to the deleted requirements at CSR 38-
2-6.8.a.1. and 38-2-6.8.a.3. Therefore, we find the deletion of section
22-3-13(b)(15)(E) does not render the West Virginia program less
stringent than section 515(b)(15)(E) of SMCRA.
(G) W.Va. Code 22-3-13(b)(21) is amended by providing that the
spoil may be placed outside the permit area if the director finds the
placing of spoil material outside the permit area will result in
environmental benefits. The change proposed by the State is a non-
substantive change and, therefore, our approval is not needed. We note
that the approved State regulations at CSR 38-2-14.14.c. currently
limit the placement of excess spoil to another permitted area or to an
approved project conducted under the Abandoned Mine Land Program.
Therefore, section 22-3-13(b)(21) remains no less stringent than
sections 515(b)(21) and 515(b)(22)(B) of SMCRA.
(H) W.Va. Code 22-3-13(e), concerning variances from approximate
original contour, is amended by changing the words, ``The director may
promulgate rules * * *'' to read ``The director may propose rules for
legislative approval in accordance with article three, chapter twenty-
nine-a of this code, that permit variances from approximate original
contour * * *.'' We find that this amendment clarifies the manner in
which the director of the WVDEP must promulgate regulations under this
provision, and is not inconsistent with SMCRA at section 515(e)(5).
Furthermore, to implement these requirements, the State has promulgated
existing rules at CSR 38-2-14.12 to govern the approval of steep slope
mining variances from approximate original contour.
(I) W.Va. Code 22-3-13(f) concerning coal mine waste piles is
amended to provide that the director shall propose rules for
legislative approval, rather than promulgate rules. We find that this
amendment clarifies the manner in which the director of the WVDEP must
promulgate regulations under this provision, and is not inconsistent
with SMCRA at section 515(f).
3. Sec. 22-3-13a Pre-blast Survey Requirements
(A) This section is all new. Section 22-3-13a(a) provides that at
least 30 days before blasting, the following notifications shall be
made in writing to all owners and occupants of man-made dwellings or
structures that the operator or designee will perform pre-blast
surveys: (1) for surface mining operations less than 200 acres in a
single permitted area or less than 300 acres of contiguous or nearly
contiguous area of two or more permitted areas, the notifications shall
be to all owners and occupants within five tenths of a mile of the
permitted area or areas; (2) for all other surface mining operations,
the required notifications shall be to all owners or occupants within
five tenths of a mile of the permitted area or areas, or seven tenths
of a mile of the proposed blasting site, whichever is greater. For
operations described at section 22-3-13a(a)(1), the requirements of
subsection 22-3-13a(a) are substantively identical to and therefore no
less stringent than SMCRA at section 515(b)(15)(E) concerning pre-blast
surveys. For operations described at section 22-3-13a(a)(2), the
requirements of subsection 22-3-13(a) provide for more stringent
blasting controls of surface coal mining operations than do the
provisions of SMCRA section 515(b)(15)(E), and are, therefore, not
inconsistent with section 515(b)(15)(E).
(B) Section 22-3-13a(b) adds a requirement that operators who have
already made pre-blast surveys prior to the effective date of section
13a, and who otherwise would have been subject to the requirements of
section 22-3-13a(a)(2) shall notify owners and occupants within seven
tenths of a mile of the blasting site of the right to request a pre-
blast survey, unless a written waiver is executed in accordance with
section 22-3-13(c). Any such additional surveys must be performed
within ninety days of the effective date of this section. We find that
section 22-3-13a(b) provides for more stringent blasting controls of
surface coal mining operations than do the provisions of SMCRA section
515(b)(15)(E), and it is, therefore, not inconsistent with section
515(b)(15)(E).
(C) Section 22-3-13a(c) provides for the written waiver of the
right to a pre-blast survey. This section also provides that if access
to conduct a pre-blast survey is denied and a waiver is not provided,
or to the extent that access to any portion of the structure,
underground water supply or well is impossible or impractical under the
circumstances, the pre-blast survey shall indicate that access was
refused, impossible or impractical. The operator or designee shall
execute a sworn affidavit explaining the reasons and circumstances
surrounding the refusals. The office of explosives and blasting shall
not determine the pre-blast survey to be incomplete because it
indicates that access was refused, impossible, or impractical. The
operator shall send copies of all written waivers and affidavits to the
office of explosives and blasting.
Neither SMCRA nor the Federal regulations contains counterparts to
the
[[Page 61510]]
proposed provisions for waivers of pre-blasting surveys, or the
provisions concerning the impossibility or impracticality of access to
conduct a survey. We find, however, that since a pre-blasting survey
must be requested by an owner or occupant, that the waiving of such a
survey in writing by an owner or occupant is not inconsistent with the
pre-blast survey requirements of SMCRA at section 515(b)(15)(E). In
addition, we find the proposed provisions concerning the impossibility
or impracticality of access to be reasonable, and not inconsistent with
the pre-blasting survey requirements of SMCRA at section 515(b)(15)(E),
and no less effective than the Federal regulations at 30 CFR 816/
817.62(b) and (c).
(D) Section 22-3-13a(d) provides that if a pre-blast survey was
waived by the owner and the property sold, the new owner may request a
pre-blast survey from the operator. While this subsection has no
precise Federal counterpart, we find it to be consistent with the pre-
blast survey requirements of SMCRA at section 515(b)(15)(E).
(E) Section 22-3-13a(e) provides that an owner may request from the
operator a pre-blast survey on structures constructed after the
original pre-blast survey. While this subsection has no direct Federal
counterpart, we find it to be consistent with the pre-blast survey
requirements of SMCRA at section 515(b)(15)(E).
(F) Section 22-3-13a(f) provides for the information that a pre-
blast survey must contain. Such information must include: The names,
addresses or description of the location of the structure and the
names, addresses and telephone numbers of the owner and residents of
the structure, as well as the structure number from the permit blasting
map; the current home insurer of the owner and residents of the
structure; the names, addresses and telephone numbers of the surface
mining operator, as well as the permit number; the current general
liability insurer of the surface mining operator; the name, address and
telephone number of the person or firm conducting the survey, as well
as the name of the current general liability insurer of that person or
firm; the date of the pre-blast survey and the date the survey was
mailed or delivered to the office of explosives and blasting; a general
description of the structure and its appurtenances; a general
description of the survey methods; written documentation and drawings,
videos or photos of the pre-blast defects, other physical conditions,
and unusual or substandard construction of all structures,
appurtenances and water sources which could be affected by blasting;
written documentation of the type of water supply; a description of any
portion of the structure and appurtenances not documented or
photographed and the reasons; the signature of the person performing
the survey; and any other information required by rule. While this
subsection has no precise Federal counterpart, we find it to be
consistent with the pre-blast survey requirements of SMCRA at section
515(b)(15)(E) and the Federal regulations at 30 CFR 816/817.62.
(G) Section 22-3-13a(g) provides that pre-blast surveys shall be
submitted to the office of explosives and blasting at least 15 days
prior to the start of any ``production blasting.'' The office shall
review each survey for form and completeness only, and notify the
operator of any deficiencies. The office shall notify the owner and
occupant of the location and availability of the pre-blast survey, and
provide a copy upon request.
Our first interpretation of this provision was that pre-blast
surveys would only be provided for ``production blasting.'' This would
render the West Virginia program less effective than the Federal
regulations at 30 CFR 816.61(a) and 817.61(a) and (b) which provide
that the Federal blasting provisions at 30 CFR 816/817.61 through 816/
817.68 apply to all surface blasting activities, including surface
blasting incident to underground coal mining. In response to our
concern, the WVDEP clarified that the intent of this provision is to
single out ``production blasting'' and to require that such blasting
requires the submittal of the pre-blast survey to the office of
explosives and blasting at least 15 days prior to the commencement of
``production blasting.'' Other blasting (construction blasting)
operations, the WVDEP explained, must still comply with the pre-blast
survey requirements at CSR 38-2-6.8.a.4. which provide that surveys
requested more than 10 days before the planned initiation of blasting
shall be completed before blasting operations begin. In effect, the
pre-blast survey requirement for ``production blasting'' is a higher
standard than that which is applied to other blasting operations.
The proposed provision also requires that the office of explosives
and blasting shall provide a copy of the pre-blast survey to the owner
and/or occupant upon request. However, the Federal regulations at 30
CFR 816/817.62(d) provide that a copy of the pre-blast survey report be
provided to the owner or occupant, even if the owner or occupant does
not specifically request a copy. Therefore, the words ``upon request''
render the West Virginia program less effective than the Federal
regulations at 30 CFR 816/817.62(d) and cannot be approved.
We are approving this provision with the understanding that, as
explained by the WVDEP, the time limits for submittal of pre-blast
surveys at CSR 38-2-6.8.a.4. continue to apply to all blasting other
than ``production blasting.'' However, the words ``upon request'' are
not approved. In addition, we are requiring that the State amend its
program to remove the words ``upon request'' from subsection (g), or
otherwise amend its program to require that a copy of the pre-blast
survey be provided to the owner and/or occupant even if the owner or
occupant does not specifically request a copy. In addition, we are only
approving this provision to the extent that the State continues to
implement CSR 38-2-6.8.a.5. to allow any person who disagrees with the
survey to file a detailed description of the areas of disagreement.
(H) Section 22-3-13a(h) provides that the operator shall file
notice of the pre-blast survey or waiver in the office of the county
clerk of the county commission of the county where the man-made
dwelling or structure is located to notify the public that the pre-
blast survey has been conducted or waived. The office of explosives and
blasting shall prescribe the form to be used. While this subsection has
no precise Federal counterparts, we find that it is not inconsistent
with SMCRA section 515(b)(15)(E) concerning pre-blast surveys and can,
therefore, be approved.
(I) Section 22-3-13a(i) provides that the chief of the office of
explosives and blasting shall propose rules for legislative approval in
accordance with Article 29A-3 of the State Code, dealing with pre-blast
survey requirements and setting the qualifications for individuals and
firms performing pre-blast surveys. We find this provision to be
consistent with SMCRA section 515(b)(15)(E) concerning pre-blast
surveys and that it can be approved.
(J) Section 22-3-13a(j) provides that the provisions of section 22-
3-13a shall not apply to underground coal mining operations, and the
extraction of minerals by underground mining methods or the surface
impacts of the underground mining methods. Except as discussed below,
we find that this provision is consistent with SMCRA section
515(b)(15)(E) and the Federal regulations at 30 CFR 816/817.62 which
provide for pre-blast surveys only for surface mining operations and
for surface blasting activities incident to
[[Page 61511]]
underground coal mining. At subsection 22-3-13a(j)(2) the phrase ``or
the surface impacts of the underground mining methods'' renders the
West Virginia program less effective than the Federal regulations at 30
CFR 817.61(a). 30 CFR 817.61(a) provides that the Federal blasting
provisions at 30 CFR 817.61 through 817.68 apply to surface blasting
activities incident to underground coal mining, including, but not
limited to, initial rounds of slopes and shafts. Consequently, the
proposed exclusion of the surface impacts of the underground mining
methods from the requirements of section 22-3-13a renders the West
Virginia program less effective than the Federal regulations.
Therefore, we are approving this provision, except for the phrase ``or
the surface impacts of the underground mining methods'' at section 22-
3-13a(j)(2), which is not approved. In addition, we are requiring the
State to amend its program to remove this phrase or otherwise amend its
program to clarify that the surface blasting impacts of underground
mining operations are subject to the requirements of 22-3-13a.
4. Sec. 22-3-22a Blasting Restrictions; Site Specific Blasting Design
Requirement
(A) This is a new section. Section 22-3-22a(a) provides that for
this section, the term ``production blasting'' means blasting that
removes the overburden to expose underlying coal seams and shall not
include construction blasting. There is no counterpart to this
definition in SMCRA or the Federal regulations. We find, however, that
the definition is not inconsistent with the blasting requirements in
SMCRA at section 515(b)(15) nor the Federal regulations concerning
blasting at 30 CFR 816/817.61-816/817.68 and can be approved.
(B) Section 22-3-22a(b) provides that for this section, the term
``construction blasting'' means blasting to develop haul roads, mine
access roads, coal preparation plants, drainage structures, or
underground coal mine sites and shall not include production blasting.
There is no counterpart to this definition in SMCRA or the Federal
regulations. We find, however, that the definition is not inconsistent
with the blasting requirements in SMCRA at section 515(b)(15) nor the
Federal regulations concerning blasting at 30 CFR 816/817.61-816/817.68
and can be approved.
(C) Section 22-3-22a(c) provides that for this section, the term
``protected structure'' means any of the following that are outside the
permit area: an occupied dwelling, a temporarily unoccupied dwelling
which has been occupied within the past ninety days, a public building,
a structure for commercial purposes, a school, a church, a community or
institutional building, a public park or a water well. There is no
counterpart to this definition in SMCRA or the Federal regulations. We
find, however, that the definition is not inconsistent with the
blasting requirements in SMCRA at section 515(b)(15) nor the Federal
regulations concerning blasting at 30 CFR 816/817.61-816/817.68 and can
be approved.
(D) Section 22-3-22a(d) provides that ``production blasting'' is
prohibited within 300 feet of a protected structure or within 100 feet
of a cemetery. This provision has no precise Federal counterpart.
However, section 522(e)(5) of SMCRA prohibits surface coal mining
operations, except those with valid existing rights (VER), from being
conducted within 300 feet of any occupied dwelling, unless waived by
the owner, or within 300 feet of any public building, school, church,
community or institutional building, or public park, or within 100 feet
of a cemetery. The West Virginia counterpart to section 522(e)(5) is at
W.Va. Code section 22-3-22(d)(4). Upon initial review of this
provision, we were concerned that because the new prohibitions were
limited to production blasting, they implicitly negated the mining
prohibitions contained in W.Va. Code section 22-3-22(d)(4), with
respect to construction blasting. In response to our concern, the WVDEP
explained that section 22-3-22(d)(4) of the W.Va. Code remains in
effect for all blasting operations. New section 22-3-22a(d) is intended
to prohibit ``production blasting,'' despite a showing of VER, within
300 feet of a protected structure or 100 feet of a cemetery. In other
words, operators possessing VER are exempt from the prohibitions of
section 22-3-22(d)(4), but they are not exempt from the production
blasting prohibitions of section 22-3-22a(d). Therefore, we are
approving this provision with the understanding that, as explained by
the WVDEP, the prohibitions contained in W.Va Code 22-3-22(d)(4)
continue to apply to all blasting operations.
(E) Section 22-3-22a(e) provides that blasting within 1,000 feet of
a protected structure shall have a site specific blast design approved
by the Office of Explosives and Blasting. The design shall limit the
type of explosives and detonating equipment, the size, the timing and
frequency of blasts to do the following: (1) Prevent injury to persons;
(2) prevent damage to property outside the permit area; (3) prevent
adverse impacts on any underground mine; (4) prevent change in the
course, channel or availability of ground or surface water outside the
permit area; and (5) reduce dust outside the permit area. This
provision also provides that in developing the blasting plan,
consideration be given to such items as the physical condition, type
and quality of construction of the protected structure, current use of
the protected structure, and the concerns of the owner or occupant
living in the protected structure. In its letter of August 10, 1999,
the WVDEP clarified that section 22-3-22a(e) requires a site-specific
blast design and not the generic blast design in the Federal rules. If
the site-specific design is waived, then a blast design plan in
accordance with CSR 38-2-6.5.g. must be submitted. However, the
requirements of CSR 38-2-6.5.g.3 must be met with respect to all blast
designs, whether they be site specific or generic. These requirements
are also contained in the Federal regulations at 30 CFR 816/
817.61(d)(3), and require that the blast design contain sketches of the
drill patterns, delay patterns and decking, indicate the type and
amount of explosives to be used, and contain a discussion of the design
factors to be used to protect the public and meet applicable blasting
regulatory limitations. Since the requirements of section 6.5.g.3. are
not specifically included in W.Va. Code section 22-3-22a(e), we are
approving it only to the extent that all blast designs, site specific
and generic, comply with section 6.5.g.3. Otherwise, we find this
provision to be not inconsistent with SMCRA section 515(b)(15)(C) which
concerns the prevention of injury to persons and damage to property,
and no less effective than the requirements of 30 CFR 816/817.67(a) and
the 1,000-foot blast design standard at 30 CFR 816/817.61(d). We also
recommend that the State remove the phrase ``in the blasting schedule''
at the end of the sentence or include the word ``identified'' before
the phrase to clarify the intent of this provision.
(F) Section 22-3-22a(f) provides for the waiver in writing of the
blasting prohibition within 300 feet, or the site specific restriction
within 1000 feet. The operator shall send copies of all waivers to the
Office of Explosives and Blasting. Waivers shall be valid during the
life of the permit and renewals, and shall be enforceable against any
subsequent owners or occupants of the protected structure. There is no
direct counterpart to this provision in SMCRA or the Federal
regulations. However, SMCRA
[[Page 61512]]
section 522(e)(5) prohibits surface coal mining operations, except
those with VER, from being conducted within 300 feet of any occupied
dwelling, unless waived by the owner, or within 300 feet of any public
building, school, church, community or institutional building, or
public park, or within 100 feet of a cemetery.
In response to our concern, the WVDEP explained that this
provision, as well as the production blasting prohibition contained in
section 22-3-22a(d), are in addition to the mining prohibitions
contained in SMCRA section 522(e)(5) and its West Virginia program
counterpart at section 22-3-22(d)(4) of the W.Va. Code. In other words,
operators who propose to conduct production blasting within 300 feet of
a protected structure or within 100 feet of a cemetery must not only
possess VER, or, with respect to occupied dwellings, obtain a waiver
from the owner in accordance with W.Va. Code section 22-3-22(d)(4), but
must also obtain a specific waiver of the new production blasting
prohibitions contained in W.Va. Code section 22-3-22a(d). Waivers
granted by owners of occupied dwellings to the general prohibition on
mining at W.Va. Code section 22-3-22(d)(4) are not enforceable against
subsequent owners, unless the subsequent owners have actual or
constructive knowledge of the waivers, in accordance with 30 CFR
761.11(e). However, waivers granted under 22-3-22a(f) are enforceable
against all subsequent owners and occupants, including those without
actual or constructive knowledge of the existence of the waivers.
As stated above, the prohibition on production blasting contained
in section 22-3-22a(d) is in addition to and does not supersede the
mining prohibitions contained in W.Va. Code 22-3-22(d)(4). As such, it
is a more stringent land use or environmental control or regulation
than is contained in SMCRA, and is therefore not inconsistent with
SMCRA. See SMCRA section 505(b), 30 U.S.C. 1255(b). West Virginia is
free to allow waivers of more stringent requirements as it sees fit.
Therefore, the waiver at Section 22-3-22a(f) of the blasting
prohibition at Section 22-3-22a(d) is approved.
As discussed above in Finding 4(E), if a waiver of the site
specific restriction within 1000 feet of a protected structure is
obtained, then a blast design plan in accordance with CSR 38-2-6.5.g.
must be submitted. However, both site specific and generic blast
designs must comply with CSR 38-2-6.5.g.3. With this condition,
therefore, the allowance of the waiver at Section 22-3-22a(f) of the
site specific blast design requirement at Section 22-3-22a(e) does not
render the West Virginia program less effective than the Federal
regulations at 30 CFR 816/817.61(d) and can be approved.
(G) Section 22-3-22a(g) provides that section 22-3-22a does not
apply to: (1) underground coal mining operations; (2) the surface
operations and surface impacts incident to an underground coal mine;
and (3) the extraction of minerals by underground mining methods or the
surface impacts of the underground mining methods. Section 22-3-22a(g)
further provides that nothing in section 22-3-22a shall exempt any coal
mining operation from the general performance standards contained in
Section 22-3-13 and any implementing rules. Since the requirements of
section 22-3-22a are in addition to those contained in the approved
program, and do not supersede any of those requirements, we find that
the exemptions contained in section 22-3-22a(g) do not render the
State's program inconsistent with SMCRA section 515(b)(15), or the
Federal regulations at 30 CFR 817.61(a).
5. Sec. 22-3-23(c) Release of Bond or Deposits
Subsection 22-3-23(c)(3) concerning final bond release is amended
to add a paragraph which provides that notwithstanding the bond release
scheduling provisions of subdivisions (1), (2) and (3) of this
subsection 22-3-23(c), if the operator completes the backfilling and
reclamation in accordance with an approved post-mining land use plan
that has been approved by the division of environmental protection and
accepted by a local or regional economic development or planning agency
for the county or region in which the operation is located, provisions
for sound future maintenance are assured by the local or regional
economic development or planning agency, and the quality of any
untreated postmining water discharge complies with applicable water
quality criteria for bond release, the director may release the entire
amount of said bond or deposit. The director shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter 29a of the W.Va. Code, to govern a bond release pursuant
to the terms of this paragraph.
The new language added to this subdivision appears to allow the
total release of the performance bond despite the bond release
scheduling provisions of section 22-3-23(c)(1), (2), and (3). Such
release could only take place if both backfilling and reclamation have
been achieved in accordance with an approved post-mining land use plan.
Further, the post-mining land use plan must have been approved by the
WVDEP and accepted by a local or regional economic development or
planning agency for the county or region in which the operation is
located. In addition, provisions for sound future maintenance must be
assured by the local or regional economic development or planning
agency, and the quality of any untreated postmining water discharge
must comply with applicable water quality criteria for bond release.
SMCRA at section 509(a) provides that before a permit is issued,
the applicant must file a bond for performance, that is conditional
upon the faithful performance of all the requirements of SMCRA and the
permit. SMCRA at section 509(b) provides that liability under the bond
shall be for the duration of the surface coal mining and reclamation
operation and for a period coincident with the operator's
responsibility for revegetation requirements in section 515 of SMCRA.
SMCRA at section 515(b)(20) provides that the operation shall assume
the responsibility for successful revegetation for a period of five
years after the last year of augmented seeding, fertilizing,
irrigation, or other work in order to assure compliance with section
515(b)(19) concerning the establishment of a diverse, effective and
permanent vegetative cover. Despite these revegetation requirements and
the bond release provisions of section 519(c) of SMCRA and the Federal
regulations at 30 CFR 800.40(c), the proposed provision appears to
authorize the release of a performance bond prior to the end of the
revegetation responsibility period. Since neither SMCRA nor the Federal
regulations provide for exemptions to the bond release provisions, the
proposed amendment, to the extent that it conflicts with the existing
bond release requirements at Section 22-3-23 and CSR 38-2-12.2 would
render the West Virginia program less stringent than SMCRA at section
519(c). In response to our concerns with this provision, the WVDEP
requested that our decision on this provision be deferred, because the
WVDEP is currently developing implementing regulations that it believes
will address our concerns. Therefore, we are deferring our decision on
Section 22-3-23(c). We will reconsider this proposed provision when the
WVDEP submits the implementing regulations for our review and approval.
In the meantime, the State
[[Page 61513]]
is prohibited from implementing these proposed bond release provisions.
6. Sec. 22-3-24 Water Rights and Replacement; Waiver of Replacement
(A) This section is being amended to add new subsections (c), (d),
(e), and (f). New subsection (c) provides that there is a rebuttable
presumption that a mining operation caused damage to an owner's
underground water supply if the inspector determines the following: (1)
contamination, diminution or damage to an owner's underground water
supply exists; and (2) a pre-blast survey was performed, consistent
with the provisions of section 22-3-13a, on the owner's property
including the underground water supply that indicated that
contamination, diminution or damage to the underground water supply did
not exist prior to the mining conducted at the mining operation. The
operator conducting the mining operation shall: (1) provide an
emergency drinking water supply within 24-hours; (2) provide a
temporary water supply within 72-hours; (3) provide a permanent water
supply within 30 days; and (4) pay all reasonable costs incurred by the
owner in securing a water supply.
There is no direct counterpart to this provision in SMCRA or the
Federal regulations. However, we find that this provision is not
inconsistent with the water rights and replacement provisions at
sections 717(b) and 720(a)(2) of SMCRA and to an extent constitutes a
more stringent standard for water replacement than is provided for in
SMCRA or the Federal regulations, in accordance with section 505(b).
Therefore, the provision is approved.
(B) New subsection 22-3-24(d) provides that an owner aggrieved
under the provisions of subsections (b) or (c) of this section, may
seek relief in court or pursuant to the provisions of section 22-3A-5
concerning claims processing. There is no direct counterpart to this
provision in SMCRA or the Federal regulations. However, we find that
this provision is not inconsistent with the requirements of section
717(b) of SMCRA and can, therefore, be approved.
(C) New subsection 22-3-24(e) provides that the director shall
propose rules for legislative approval to implement the requirements of
this section. We find that this provision is not inconsistent with the
water replacement provisions in SMCRA at section 717(b) and can,
therefore, be approved.
(D) New subsection 22-3-24(f) provides that the rebuttable
presumption provisions of subsection 22-3-24(c) shall not apply to
underground coal mining operations, the surface operations and impacts
incident to an underground coal mine, and the extraction of minerals by
underground mining methods or the surface impacts of the underground
mining methods. Since neither SMCRA nor the Federal regulations provide
for rebuttable presumptions of water supply loss or damage due to
surface or underground coal mining operations, we find that the
provision is consistent with sections 717(b) and 720(a)(2) of SMCRA and
can, therefore, be approved. However, it should be noted that the water
replacement requirements of subsection 720(a)(2) of SMCRA are
applicable to underground mining operations. The proposed State
provision does not negate the State's water replacement requirements at
subsection 22-3-24(b), and it would not relieve an operator of
replacing a water supply which is adversely affected by an underground
mining operation.
7. Sec. 22-3-30a Blasting Requirements; Liability and Civil Penalties
in the Event of Property Damage
(A) This section is new. Subsection 22-3-30a(a) provides that
blasting of overburden and coal shall be conducted in accordance with
the rules and laws established to regulate blasting. By doing so, the
State is limiting all of its blasting requirements only to ``production
blasting.'' We find this provision would render the West Virginia
program less stringent than SMCRA section 515(b)(15) and less effective
than the Federal regulations at 30 CFR 816/817.61(a). Specifically, the
proposed provision only applies to the blasting of overburden and coal,
whereas the Federal blasting provisions apply to all blasting at
surface coal mining and reclamation operations and surface blasting
activities incident to underground coal mining, including, but not
limited to, initial rounds of slopes and shafts. Therefore, we are
approving this provision, except for the phrase ``of overburden and
coal'' which is not approved. Also, we are requiring the State to amend
its program to remove the phrase ``of overburden and coal,'' or to
otherwise clarify that its general surface coal mining blasting laws
and regulations apply to all blasting at surface coal mining and
reclamation operations and surface blasting activities incident to
underground coal mining, including, but not limited to, initial rounds
of slopes and shafts.
(B) Subsection 22-3-30a(b) provides the penalties to be imposed for
each permit area or contiguous permit areas where blasting was out of
compliance and resulted in property damage to a protected structure,
other than wells, as defined in section 22-3-22a. The first offense
carries a penalty of not less than $1,000.00 and not more than
$5,000.00. The second offense and each subsequent offense within one
year of the first offense carries a penalty of not less than $5,000.00
and not more than $10,000.00. The third offense, any subsequent offense
within one year of the first offense, and any failure to pay any
assessment within a reasonable time will subject the permit to a
cessation order, which shall be released only when the permittee files
a plan with the director assuring that additional violations will not
occur, compensates for any property damages that have occurred due to
the offense, and provides monetary or other assurances to compensate
for future property damages. Second and subsequent offenses on any one
permit area entitle the owner of a protected structure to a rebuttable
presumption that the property damage was caused by the blasting
offense, if a pre-blast survey was performed and the blasting is within
seven tenths of a mile of the protected structure. No more than one
offense shall arise out of a single ``shot,'' which means a single
blasting event composed of one or multiple detonations, or the assembly
of explosive materials for this purpose. One ``shot'' may be composed
of numerous explosive charges detonated at intervals measured in
milliseconds.
There is no direct counterpart to this provision in SMCRA or the
Federal regulations. However, during our review of this provision, it
appeared that the phrase ``other than wells'' which excludes wells from
penalties to be imposed where blasting was out of compliance and
resulted in property damage would render the West Virginia program less
stringent than SMCRA at sections 515(b)(15)(C) and section 518(a).
SMCRA at section 515(b)(15)(C) provides that blasting shall be limited
so as to prevent injury to persons and damage to public and private
property outside the permit area, adverse impacts on any underground
mine, and change in the course, channel or availability of ground or
surface water outside the permit area. Wells are not excluded from the
requirements of section 515(b)(15)(C). SMCRA at section 518(a) also
provides for civil penalty assessment for violations of any provision
of SMCRA. SMCRA does not exclude wells from this requirement.
In response to our concern with the phrase ``other than wells,''
the WVDEP
[[Page 61514]]
explained that new section 22-3-30a pertains only to production
blasting violations that result in property damage. All other blasting
related violations, including those cited for damage to wells, will
utilize the penalty system described in CSR 38-2-20.
We note that the clear language of subsection 22-3-30a(b) indicates
that it applies to all blasting that results in property damage to
protected structures, rather than just to production blasting that
results in damage to protected structures. Therefore, we cannot concur
with the WVDEP's construction of subsection (b) in this regard.
However, we agree with the WVDEP that the West Virginia program may
reasonably be interpreted such that all other blasting related
violations, including those cited for damage to water wells, will
continue to be subject to the civil penalty provisions at CSR 38-2-20.
Therefore, the exclusion of water wells from the coverage of the new
requirements in section 22-3-30a(b) does not render the West Virginia
program less stringent than section 518 of SMCRA or inconsistent with
the Federal regulations at 30 CFR part 845.
We note that the proposed provision is silent on how the specific
amount of a penalty would be determined. SMCRA at section 518(a)
provides four criteria that should be considered that in determining
the amount of a penalty: (1) the permittee's history of previous
violations at the particular surface coal mining operation; (2) the
seriousness of the violation, including any irreparable harm to the
environment and any hazard to the health or safety of the public; (3)
whether the permittee was negligent; and (4) the demonstrated good
faith of the permittee charged in attempting to achieve rapid
compliance after notification of the violation.
Therefore, we are approving section 22-3-30a(b) because blasting
related enforcement actions taken for damage to wells, and all
enforcement actions taken for blasting that does not cause damage to
protected structures, will continue to be subject to the civil penalty
requirements of CSR 38-2-20, rather than to the new requirements of
this subsection, except as provided for in section 22-3-30a(e). Also,
as noted below in Finding 7.H, violations for surface blasting
activities incident to underground coal mining will continue to be
subject to the requirements of CSR 38-2-20. We are also approving
section 22-3-30a(b) upon the condition that the new rules to be
developed by the State to implement this provision shall contain the
four criteria listed above in determining the amount of a penalty for
any type of blasting violation. In addition, the State may only
implement this provision now, prior to promulgation of implementing
regulations, to the extent that it applies the four criteria listed
above and found in the State's program at W.Va. Code 22-3-17(c), to
civil penalties assessed pursuant to this section.
(C) Subsection 22-3-30a(c) provides that the division of
environmental protection may not impose penalties on an operator for
the violation of any rule identified in 22-3-30a(a) that is merely
administrative in nature. The meaning of this prohibition is unclear,
and may allow the WVDEP to waive the assessment of a civil penalty on a
cessation order issued for failure to abate a blasting related
violation which is administrative in nature. If so, this new subsection
is less stringent than section 518(a) of SMCRA which mandates the
issuance of a civil penalty for any violation that leads to a cessation
order. Therefore, this provision cannot be approved. The State may wish
to clarify the meaning of the term ``administrative in nature'' in any
regulation it may develop to implement this section, and if
appropriate, we will reconsider this provision when the new regulations
are submitted to OSM.
(D) Subsection 22-3-30a(d) provides that the remedies provided in
this section are not exclusive and shall not bar an owner or occupant
from any other remedy accorded by law. While this provision has no
Federal counterpart, we find that it is not inconsistent with SMCRA or
the Federal regulations and it can, therefore, be approved.
(E) Subsection 22-3-30a(e) provides that the monetary penalties and
revocation set out at 22-3-30(b) apply if the division of environmental
protection establishes that production blasting was conducted within
300 feet of a protected structure, within 100 feet of a cemetery, or
within 1000 feet of a protected structure without an approved site
specific blast design. Production blasting conducted within these
distance limitations need not cause property damage to protected
structures to be subject to the provisions of 22-3-30a(b). As noted
above in Finding 7.B, all other blasting violations that do not cause
property damage to protected structures will continue to be subject to
the civil penalty requirements of CSR 38-2-20. We find that subsection
22-3-30a(e) is no less stringent than SMCRA section 518 and not
inconsistent with 30 CFR Part 845.
(F) Subsection 22-3-30a(f) provides that all penalties and
liabilities set forth in this section shall be assessed and collected
by the director, and deposited with the treasurer of the State of West
Virginia in the ``general school fund.'' The approved program, at W.Va.
Code Sec. 22-3-17(d)(2), currently requires that civil penalty moneys
be deposited into the State's alternative bonding fund, known as the
``special reclamation fund.'' If this provision is approved, however,
penalties collected from blasting violations that resulted in property
damage to protected structures would no longer be placed in the special
reclamation fund, but instead would be deposited into the newly created
general school fund. Prior to our approval of subsection 22-3-30a(f),
the State must demonstrate that the special reclamation fund will not
become unacceptably compromised without the proceeds from these
blasting related civil penalties. The State has not yet satisfied the
required program amendment codified at 30 CFR 948.16(lll) concerning
elimination of the deficit in the State's alternative bonding system
and requiring that sufficient money will be available to complete
reclamation, including the treatment of polluted water, at all existing
and future bond forfeiture sites. Therefore, we are not approving
subsection 22-3-30a(f) until the State demonstrates that the special
reclamation fund does not have a deficit and that it will not become
unacceptably compromised without the proceeds from blasting related
civil penalties.
(G) Subsection 22-3-30a(g) provides that the director shall propose
rules for the implementation of this section. We find this provision is
not inconsistent with the blasting provisions in SMCRA at section
515(b)(15) and the Federal regulations at 30 CFR 816/817.61-816/817.68
and can be approved.
(H) Subsection 22-3-30a(h) provides that the provisions of this
section shall not apply to underground coal mining operations and the
surface operations and impacts incident to underground coal operations,
or to the extraction of minerals by underground mining methods or the
surface impacts of the underground mining methods. Nothing in this
section shall exempt any coal mining operation from the general
performance standards contained in section 22-3-13 and any implementing
rules. As noted above in Finding 7.B., surface blasting activities
incident to underground coal mining will continue to be regulated under
CSR 38-2-6, and 20. Therefore, we are approving this provision.
8. Sec. 22-3A Office of Explosives and Blasting
(A) Article 3A is new . Section 22-3A-1 provides for legislative
findings,
[[Page 61515]]
and policies and purposes. Section 22-3A-1 declares that establishment
of the office of explosives and blasting (office) is in the public
interest, and that this office will be vested with authority to enforce
all rules and laws established to regulate blasting. There is no
Federal counterpart to this provision. We find, however, that the
provision is not inconsistent with SMCRA at section 515(b)(15) and the
Federal regulations at 30 CFR 816/817.61-816/817.68 and can be
approved.
(B) Section 22-3A-2 creates the office of explosives and blasting,
provides that the director shall appoint a chief to administer the
office, and provides that the office shall assume responsibility for
the enforcement of all the rules and laws established to regulate
blasting. There is no Federal counterpart to this provision. We find,
however, that the provision is not inconsistent with SMCRA at section
515(b)(15) and the Federal regulations at 30 CFR 816/817.61-816/817.68
and can be approved.
(C) Section 22-3A-3 establishes the powers and duties of the office
of explosives and blasting. These include, but are not limited to:
regulating blasting on all surface mining operations; implementing and
overseeing the pre-blast survey process; maintaining and operating a
system to receive and address questions, concerns and complaints;
setting the qualifications for individuals and firms performing pre-
blast surveys; education, training, examination and certification of
blasters; and proposing rules for legislative approval. There is no
Federal counterpart to this provision. We find, however, that the
provision is not inconsistent with SMCRA at section 515(b)(15) and the
Federal regulations at 30 CFR 816/817.61-816/817.68 and can be
approved.
(D) Section 22-3A-4 provides that the office shall propose rules
for the purpose of implementing article 3A. The rules shall include,
but not be limited to: procedures for the review, modification and
approval of blasting plans, inspection and monitoring of blasting;
minimum requirements and review procedures for pre-blast surveys;
procedures for the use of seismographs; a procedure to warn of
impending blasting; a procedure to limit the type of explosives and
detonating equipment, the size, timing, and frequency of blasts based
on the physical conditions at the site to prevent injury, damage, and
adverse impacts; publication of blasting schedules; and written notice
of blasting schedules. The office shall also propose rules for blaster
certification, and for disciplinary procedures for blasters. We find
that the provision is not inconsistent with the Federal blasting
provisions in SMCRA at section 515(b)(15) and the Federal regulations
at 30 CFR 816/817.61-816/817.68 and Part 850, and can be approved.
(E) Section 22-3A-5 provides that the office shall establish and
manage a claims process related to blasting, and shall propose rules
concerning blasting claims and arbitration. The section also provides
that participation in the claims process is voluntary for the claimant,
but that claim determinations are intended to be final, if not taken to
arbitration. The section provides for written notice, the payment of
claims for which an operator is adjudged liable, and for the issuance
of cessation orders to operators who fail to pay claims within thirty
days of a final determination of liability. The section also provides
that no permit shall be granted unless the applicant agrees to be
subject to the terms of this section. The section also authorizes the
office to retain the services of inspectors, experts and other persons
or firms as necessary to fulfill its responsibilities under this
section. This section has no Federal counterparts. However, we find
that the section provides for more stringent environmental controls of
surface coal mining and reclamation operations than those contained in
SMCRA or the Federal regulations. Therefore, in accordance with section
505(b) of SMCRA, this section is not inconsistent with SMCRA and can be
approved.
(F) Section 22-3A-6 provides that rules, orders, licenses,
certificates and permits already issued will remain in effect until
modified, terminated, superseded, set aside or revoked by a court, and
that proceedings pending before the division are not affected by this
enactment. We find that the provision is not inconsistent with the
Federal blasting provisions in SMCRA at section 515(b)(15) and the
Federal regulations at 30 CFR 816/817.61-816/817.68, and can be
approved.
(G) Section 22-3A-7 concerns funding. It provides that the office
shall assess each operator a fee on each quantity of explosive material
used on the surface mining operations. The office shall propose rules
establishing the fees, and the office shall deposit all monies received
into a special fund called the ``mountaintop removal fund'' to be spent
by the office of explosives and blasting and the office of coal field
community development in conducting their duties. The legislature shall
appropriate the funds for expenditure. This section has no Federal
counterparts. However, because this section provides for the creation
of a new funding source for these newly created offices and it will not
affect the current funding of the State's approved program, we find
this provision is not inconsistent with section 503(a)(3) of SMCRA and
can be approved.
(H) Section 22-3A-8 concerns the transfer of personnel and assets
currently used to perform the duties of article 3A to the office. We
find that the provision is necessary to effectuate the transfer of
authority for the regulation and enforcement of blasting activities to
the office, that it is not inconsistent with the Federal blasting
provisions in SMCRA at section 515(b)(15) and the Federal regulations
at 30 CFR 816/817.61-816/817.68, and can be approved to the extent that
the levels of funding, staffing, and equipment continue as before, with
the addition of the funding provided for in section seven of this
article.
(I) Section 22-3A-9 sets forth the limitations of article 3A.
Except for sections five and seven of this article, pertaining to the
claims process and funding, respectively, all provisions of this
article are also applicable to surface blasting activities related to
underground mining operations. As noted above, article 3A generally
provides for blasting controls of surface coal mining and reclamation
operations that are in addition to and to some extent more stringent
than those contained in SMCRA or the Federal regulations. Sections five
and seven are two examples of these additional controls. Therefore, the
exemption of surface blasting activities related to underground mining
operations from the requirements of section 5 and 7 of article 3A does
not render this section inconsistent with SMCRA, and it can be
approved.
(J) Section 22-3A-10 provides that the office shall conduct or
participate in studies or research to develop scientifically based data
and recommendations related to various aspects of blasting. The office
shall report the data and recommendations to the West Virginia
Legislature's joint committee on government and finance on or before
January 1, 2001, and annually thereafter or as otherwise requested. We
find that the provision is not inconsistent with the Federal blasting
provisions in SMCRA at section 515(b)(15) and the Federal regulations
at 30 CFR 816/817.61-816/817.68, and can be approved.
(K) Section 22-3A-11 provides that the office of explosives and
blasting is continued until July 1, 2002. We find that the provision is
not inconsistent with the Federal blasting provisions in SMCRA at
section 515(b)(15) and the
[[Page 61516]]
Federal regulations at 30 CFR 816/817.61-816/817.68, and can be
approved.
IV. Summary and Disposition of Comments
Federal Agency Comments
According to 30 CFR 732.17(h)(11)(i), we solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the West Virginia program. The U.S. Department of
Labor, Mine Safety and Health Administration (MSHA) responded and
stated that the changes do not appear to affect MSHA. The U.S. Army
Corps of Engineers responded and recommended that the proposed
amendments specify measures in the International System of Units (SI),
in lieu of the inch-pound (IP) system. While we concur with this
recommendation, the lack of the use of SI units does not render the
amendment less stringent than SMCRA nor less effective than the Federal
regulations.
Public Comments
We solicited public comments on the amendment. The Surety
Association of America (SAA) commented on the amended bond release
provision at section 22-3-23(c)(3). The SAA stated that the amendment
creates another bond release provision. Specifically, the SAA stated,
the director of the WVDEP may release the entire amount of bond after
satisfaction of the three specified criteria (backfilling and
reclamation, sound future maintenance, and the quality of untreated
discharges). Under this provision, the SAA stated, the director of the
WVDEP will have the discretion to retain 100 percent of the bond
throughout the entire reclamation process, as opposed to releasing the
bond according to the normal three-phase bond release process. The SAA
further stated that it is its understanding that the original intent of
the bond release amendment was to permit an accelerated final bond
release during Phase Three of reclamation. That is, the passing of five
growing seasons alluded to in Subsection 22-3-23(c)(3) could be
disregarded. However, as written the SAA asserts, the amendment
actually prolongs the period during which the full bond liability is
outstanding.
The SAA expressed its concern regarding the legislation (and any
implementing rules) that permit the retention of the full bond amount
during the entire reclamation process and which abandon the practice of
a phased bond release. The current West Virginia Code mitigated the
long-term underwriting hazard of the bond by allowing a phased release
of the liability. The proposed amendment, the SAA stated, prevents any
bond release until the entire process is completed.
The SAA provided the following recommendations. The SAA recommends
that the phrase ``notwithstanding the bond release provisions of
subdivision (1), (2), and (3)'' should be revised to state
``notwithstanding the bond release scheduling provision of subdivision
(3).'' Further, the SAA suggested that the phrase ``backfilling and
reclamation'' be revised to read ``backfilling and revegetation.'' With
these changes, the SAA stated, ``the amendment is clear that the
provisions regarding bond release in Phase One and Phase Two of
reclamation are unchanged.'' With this change, the amendment would only
affect Phase Three (monitoring). The SAA also requested that any rules
concerning bond release should retain the phased bond release element.
In response, and as noted above in Finding 5, we have deferred our
decision on this provision. The WVDEP requested that we defer our
decision because the WVDEP is in the process of developing rules that,
the WVDEP stated, will address our concerns with this provision. When
those are submitted for our review, we will reopen the public comment
period so that this statute and its implementing rules can be reviewed
together. At that time, we will considered the SAA comments. Of course,
the SAA may submit additional comments when the comment period is
reopened on this provision.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the EPA with respect to
any provisions of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et
seq.). The EPA responded by letter dated June 3, 1999 (Administrative
Record Number WV-1134), and concurred with the amendment. The EPA
stated that the amendment does not violate the Clean Water Act or the
Clean Air Act.
Pursuant to 732.17(h)(11)(i), we also solicited comments on the
proposed amendment from EPA. The EPA provided the following two
comments. First, the EPA commented on section 22-3-13(a)(21) [the
correct cite is 22-3-13(b)(21)], which provides an exemption for
placing spoil material within the permit area. The EPA stated that
although the change to this provision is a change in wording rather
than in substance, the EPA endorses the State's concept of authorizing
the placement of spoil material outside the permit area if it is
determined that environmental benefits will result. The EPA stated that
in some situations, it can be seen that placement of spoil on adjacent
reclaimed permit areas, rather than in valley fills, can help minimize
stream impacts. We concur with the EPA's comment concerning this
provision, subject to the restrictions contained in the State's
regulations at CSR 38-2-14.14.c.
Second, the EPA stated that changes to section 22-3-24 are
disturbing because they place more burden of proof on a well owner if
an underground mine is the suspected cause of damage to an underground
water supply than if a surface mine is the suspected cause.
Specifically, new subsection 22-3-24(c) provides a rebuttable
presumption that a mining operation caused damages to an underground
water supply if an inspector determines that contamination, diminution,
or damage to the well exists, and that a pre-blast survey indicated
that these problems did not exist beforehand. However, the EPA stated,
new subsection 22-3-24(f) provides an exemption to subsection 22-3-
24(c) if the suspected cause is either an underground mine, the surface
operations incident to an underground mine, or surface impacts caused
by an underground mine. In these situations, the EPA stated, the well
owner would have to prove on his or her own that the underground mine
is the cause of the damage to the underground water supply. This
proposed exemption, the EPA stated, basically shifts the burden from
the underground mining company, to the well owner. Since most well
damage problems are linked to underground mines rather than surface
mines, the proposed exemption in subsection 22-3-24(f) would seem to
place an undue burden on the well owner to substantiate damage. The EPA
recommended that this exemption be eliminated.
We agree with the EPA that proposed section 22-3-24(f) exempts
underground mines from the rebuttable presumption at section 22-3-24(c)
that a mining operation caused damage to an owner's underground water
supply. However, as noted above in Finding 6, we find that the
exception provided at section 22-3-24(f) is not inconsistent with
sections 717(b) and 720(a)(2) of SMCRA concerning water rights and
replacement, since the Federal provisions do not provide for a
[[Page 61517]]
rebuttable presumption of water supply loss or damage due to either an
underground or surface coal mining operation. Nothing in the revised
section would relieve an operator of replacing a water supply which is
determined to be adversely affected by an underground mining operation.
V. Director's Decision
Based on the findings above, we are approving the proposed
amendment, except as noted below.
The deletion of section 22-3-13(b)(15)(C) is approved with the
understanding that the West Virginia rules at CSR 38-2-6.5.a. and CSR
38-2-6.4 and 6.5 continue in effect and provide the protection afforded
by the deleted provision.
Section 22-3-13a(g) is approved with the understanding that the
time limits for submittal of pre-blast surveys at CSR 38-2-6.8.a.
continue to apply to all blasting other than ``production blasting.''
However, the words ``upon request'' are not approved. The State is
being required to amend its program to remove the words ``upon
request'' from subsection (g), or otherwise amend its program to
require that a copy of the pre-blast survey be provided to the owner
and/or occupant even if the owner or occupant does not specifically
request a copy. In addition, the remainder of section 22-3-13a(g) is
approved only to the extent that the State continues to implement CSR
38-2-6.8(a)(5) to allow any person who disagrees with the survey to
file a detailed description of the areas of disagreement.
At section 22-3-13a(j)(2), the phrase ``or the surface impacts of
the underground mining methods'' is not approved, and the State is
being required to amend its program to remove this phrase or otherwise
amend its program to clarify that the surface blasting impacts of
underground mining operations are subject to the requirements of 22-3-
13a.
Section 22-3-22a(d) is approved with the understanding that the VER
requirements at W.Va. Code 22-3-22(d)(4) continue to apply to all
blasting operations.
Section 22-3-22a(e) is approved only to the extent that all blast
designs, site specific and generic, comply with section 38-2-6.5.g.3.
Section 22-3-22a(f) is approved with the understanding that all
blast designs, site specific and generic, comply with section 38-2-
6.5.g.3.
Our decision on section 22-3-23(c)(3) is deferred.
Section 22-3-30a(a) is approved, except the phrase ``of overburden
and coal'' which is not approved.
Section 22-3-30a(b) is approved because blasting-related violations
cited for damage to wells, and all violations cited for blasting that
does not cause damage to protected structures, will continue to be
subject to the civil penalty requirements of CSR 38-2-20, rather than
to the new requirements of this subsection, except as provided for in
section 22-3-30a(e). Violations for surface blasting activities
incident to underground coal mining will also continue to be subject to
the requirements of CSR 38-2-20. Also, section 22-3-30a(b) is approved
upon the condition that the new rules to be developed by the State to
implement this provision shall consider the four criteria listed at
section 518(a) of SMCRA in determining the amount of a penalty for any
type of blasting violation. In addition, the State may only implement
this provision now, prior to promulgation of implementing regulations,
to the extent that it applies the four criteria at section 518(a) of
SMCRA and found in the State's program at W.Va. Code 22-3-17(c), to
civil penalties assessed pursuant to this Section.
Section 22-3-30a(c) is not approved.
Section 22-3-30a(f) is not approved.
Section 22-3-30a(h) is approved because surface blasting activities
incident to underground coal mining will continue to be regulated under
CSR 38-2-6, and 20.
Section 22-3A-8 is approved to the extent that the levels of
funding, staffing, and equipment continue as before, with the addition
of the funding provided for in section 22-3A-7.
The Federal regulations at 30 CFR 948 codifying decisions
concerning the West Virginia program are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year
[[Page 61518]]
on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 29, 1999.
Michael K. Robinson,
Regional Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 948--WEST VIRGINIA
1. The authority citation for Part 948 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * * *
*
March 25, 1999................ November 12, 1999 W.Va. Code 22-1-
7(a)(7); 22-3-13(a),
(b)(3) and (15),
(e), and (f); 22-3-
13a, in 13a(g) the
words ``upon
request'' are not
approved, in
13a(j)(2) the phrase
``or the surface
impacts of the
underground mining
methods'' is not
approved; 22-3-22a;
22-3-23(c)(3)
decision is
deferred; 22-3-
24(c), (d), (e), and
(f); 22-3-30a, in
30a(a) the phrase
``of overburden and
coal'' is not
approved, 30a(c) and
(f) are not
approved; and 22-3A.
------------------------------------------------------------------------
3. Section 948.16 is amended by adding new paragraphs (kkkk),
(llll) and (mmmm) to read as follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(kkkk) By January 11, 2000, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to remove the words ``upon
request'' at W. VA. Code 22-3-13a(g), or otherwise amend its program to
require that a copy of the pre-blast survey be provided to the owner
and/or occupant even if the owner or occupant does not specifically
request a copy.
(llll) By January 11, 2000, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to remove the phrase ``or the
surface impacts of the underground mining methods'' from 22-3-
13a(j)(2), or otherwise amend its program to clarify that the surface
blasting impacts of underground mining operations are subject to the
requirements of 22-3-13a.
(mmmm) By January 11, 2000, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption, to remove the phrase ``of
overburden and coal'' from W.Va. Code 22-3-30a(a), or to otherwise
clarify that its general surface coal mining blasting laws and
regulations apply to all blasting at surface coal mining and
reclamation operations and surface blasting activities incident to
underground coal mining, including, but not limited to, initial rounds
of slopes and shafts.
[FR Doc. 99-29580 Filed 11-10-99; 8:45 am]
BILLING CODE 4310-05-P
