[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Proposed Rules]
[Pages 75889-75897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30870]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-087-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the West
Virginia regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The program amendment adds new West
Virginia regulations at 199 CSR 1 concerning Surface Mine Blasting
Rule. The amendments are intended to improve the operational
effectiveness of the West Virginia program.
DATES: If you submit written comments, they must be received on or
before 4:00 p.m. (local time), on January 4, 2001. If requested, a
public hearing on the proposed amendments will be held at 1:00 p.m.
(local time), on January 2, 2001. Requests to speak at the hearing must
be received by 4:00 p.m. (local time), on December 20, 2000.
ADDRESSES: Mail or hand-deliver your written comments and requests to
speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston
Field Office at the address listed below.
You may review copies of the West Virginia program, the proposed
amendment, a listing of any scheduled hearings, and all written
comments received in response to this document at the addresses below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the proposed amendment by
contacting OSM's Charleston Field Office.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301 Telephone: (304) 347-7158. E-mail:
[email protected]
West Virginia Division of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515. The proposed
amendment will be posted at the Division's Internet page: http://www.dep.state.wv.us
In addition, you may review copies of the proposed amendment during
regular business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. You can find background information
on the West Virginia program, including the Secretary's findings, the
disposition of comments, and the conditions of approval in the January
21, 1981, Federal Register (46 FR 5915-5956). You can find later
actions concerning the conditions of approval and program amendments at
30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
By letter dated October 30, 2000 (Administrative Record Number WV-
1187), the WVDEP submitted an amendment to its program. The amendment
concerns the addition to the West Virginia regulations of new Title
199, Series 1, entitled Surface Mine Blasting Rule. These regulations
consist of new blasting provisions and blasting provisions that have
been relocated or derived from previously approved West Virginia
blasting provisions. We have identified in brackets in the proposed
amendment below, those instances where the State has indicated that
specific provisions have been relocated or derived from previously
approved blasting provisions. On November 12, 1999 (Administrative
Record Number WV-1143), we approved, with certain exceptions, revisions
to the West Virginia Code (W. Va. Code) concerning blasting (64 FR
61507-61518). The current amendment is intended to revise the States
blasting rules to implement the approved blasting statutes.
The new blasting regulations are presented below.
199 CSR 1
Title 199
Legislative Rule
Division of Environmental Protection
Series 1
Surface Mining Blasting Rule
Section 199-1-1. General
1.1. Scope.--This rule establishes general and specific rules
for overseeing and regulating blasting on all surface mining
operations; implementing and overseeing the pre-blast survey
process; inspection and monitoring of blasting operations;
seismograph use; warning methods; site specific limitations for
type, size, timing and frequency of blasts; public notice
requirements; maintaining and operating a system to receive and
address questions, concerns and complaints relating to mining
operations; setting the qualifications for individuals and firms
performing pre-blast surveys; establishing the education, training,
examination and certification of blasters; disciplinary procedures
for blasters; and administering a claims process, including
arbitration, for property damage caused by blasting.
1.2. Applicability.--This rule applies to all surface mining
operations and surface disturbances associated with underground
mining operations in the State of West Virginia.
1.3. Authority.--W. Va. Code Sections 22-1-3, 22-3A-4, 22-1-5.
et seq.
1.4. Filing Date.
1.5. Effective Date.
1.6. Incorporation by Reference.--Federal Counterpart
Regulations--30 CFR 850.
1.7. Repeal of Former Rule.--This rule repeals and replaces
38CSR2C--Standards for Certification of Blasters--Surface Coal
Mines, effective May 1, 1995, filed April 26, 1995.
Section 199-1-2
Definitions.--As used in this rule unless used in a context that
clearly requires a different meaning the term:
2.1. Active Blasting Experience means experience gained by a
person who has worked on a blasting crew, supervised a blasting
crew, or worked on a drilling crew which performed blasting
operations. Two hundred forty working days constitutes one year of
experience. Experience may only be gained by ``first-hand''
participation in activities associated with the storing, handling,
transportation and use of explosives or the immediate supervision of
those activities within surface coal mines, and the surface areas of
underground coal mines. Experience should be related to surface mine
blasting; Provided, that other related blasting experience
(quarrying
[[Page 75890]]
operations, etc.) may be accepted by the director on a case-by-case
basis as qualifying experience. [This provision was relocated from
CSR 38-2C-2.1]
2.2. Air Blast means an airborne shock wave resulting from the
detonation of explosives.
2.3. Adjuster means an outside party that is assigned to
investigate, document, evaluate and make recommendations on a
reported loss.
2.4. Arbitrator means an impartial individual appointed by the
Office of Environmental Protection with the authority to settle the
disputes between property owners and mine operators as they relate
to allegations of blasting damage.
2.5. Arbitration means the referral of a dispute to a neutral or
impartial person for total or partial determination. It is intended
to be inexpensive, prompt and fair to the parties.
2.6. Blast means any planned or unplanned detonation(s) of an
explosive(s) being initiated simultaneously by a single energy
source. [This provision was relocated from CSR 38-2C-2.2.]
2.7. Blast Site means the area where explosive materials is
handled during loading including the perimeter formed by the loaded
blast holes and 50 feet in all directions from loaded holes.
2.8. Blaster means a qualified person in charge of and
responsible for the design, loading and firing of a blast. This must
be an individual who is certified by the Office of Explosives and
Blasting.
2.9. Blasting Complaint means a communication to the Office of
Explosives and Blasting from a member of the public expressing
concern, aggravation, fear or indications of blasting damage. A
blasting complaint may or may not initially indicate damage.
2.10. Blasting Claim means an allegation by the property owner
of blasting related damage to property.
2.11. Blasting Log means a written record containing all
pertinent information about a specific blast as may be required by
law or rule.
2.12. Blasting Vibration means the temporary ground movement
produced by a blast that can vary in both intensity and duration.
2.13. Caused By Blasting means that there is direct, consistent
and conclusive evidence or information that the alleged damage was
definitely caused by blasting from the mine site in question.
2.14. Certified Blaster means a person who has taken and passed
the examination described in this rule, and has been issued a
certification card by the Office of Explosives and Blasting. [This
provision was relocated from CSR 38-2C-2.3.]
2.15. Certified Examiner/Inspector means a person employed by
the Office of Explosives and Blasting who administers training or
examinations to applicants for certification as certified blasters,
or who inspects surface mining operations and who has taken and
passed the examination described in of this rule. [This provision
was relocated from CSR 38-2C-2.4.]
2.16. Claimant means the property owner who makes a blasting
damage claim.
2.17. Claims Administrator means the individual, firm or
organization that manages the blasting damage claims program for the
Office of Explosives and Blasting.
2.18. Construction Blasting means blasting to develop haulroads,
mine access roads, coal preparation plants, drainage structures, or
underground coal mine sites and shall not include production
blasting.
2.19. Detonation means a chemical reaction resulting in a rapid
release of energy. [This provision was relocated from CSR 38-2C-2.5]
2.20. Director means the director of the Division of
Environmental Protection or the director's authorized agent.
2.21. Division means the Division of Environmental Protection.
2.22. Explosives means any chemical compound, mixture or device,
the primary or common purpose of which is to function by explosion;
including, but not limited to, water gel, slurries, emulsion,
dynamites, permissibles, pellet powder, blasting caps, cast primers
and boosters, detonating cord, detonating cord delay connectors, and
blasting agents. [This provision was relocated from CSR 38-2C-2.6]
2.23. Fly Rock means rock and/or earth propelled from the blast
area through the air or along the ground by the force of the
detonated explosives.
2.24. Loss Reserve means the total amount of money indicated in
a given loss to include the estimated value (repairs or replacement
costs), and the costs to administer and adjust that loss.
2.25. Loss Value means the amount of money indicated in a given
loss to include costs of repairs or replacement costs.
2.26. Not Caused By Blasting means that there is direct,
consistent, and conclusive evidence or information that blasting
from the mine site in question was definitely not at fault for the
alleged property damage.
2.27. Office means the Office of Explosives and Blasting.
2.28. Operator means any person who is granted or who should
obtain a permit to engage in any activity covered by W. Va. Code
Section 22.
2.29. Possible Caused By Blasting means the physical damage in
question is not entirely consistent with blasting induced property
damage, but that blasting cannot be ruled out as a casual factor.
2.30. Pre-Blast Survey means the written documentation of the
existing condition of a given structure near an area where blasting
is to be conducted. The purpose of the survey is to note the pre-
blasting condition of the structure and note any observable defects
or damage.
2.31. Probably Caused By Blasting means that there is physical
damage present at the site in question that is entirely consistent
with blasting induced property damage, and said damage can be
attributed to a specific mine site and/or blast event(s).
2.32. Probably Not Caused By Blasting means that there is
substantial, but not conclusive information that the alleged damage
was caused by something other than blasting.
2.33. Production Blasting means blasting that removes the
overburden to expose underlying coal seams and shall not include
construction blasting.
2.34. Protected Structure means any of the following structures
that are situated outside the permit area: an occupied dwelling, a
temporarily unoccupied dwelling which has been occupied within the
past ninety (90) days, a public building, a habitable building for
commercial purposes, a school, a church, a community or
institutional building, a public park or a water well. [This
provision was relocated and modified from CSR 38-2-2.98.]
2.35. Supervised a Blasting Crew means that a person assumed
responsibility for the conduct of a blasting crew(s) and that the
crew(s) reported directly to that person. [This provision was
relocated from CSR 38-2C-2.7.]
2.36. Surface Mine and Surface Area of Underground Mines means
all areas except underground workings surface mined or being surface
mined, including adjacent areas ancillary to the operations, i.e.,
preparation and processing plants, storage areas, shops,
haulageways, roads, and trails, which are covered by the provisions
of W. Va. Code Section 22-3-1 et seq., and rules promulgated under
that article. [This provision was relocated from CSR 38-2C-2.8.]
2.37. Worked on a Drilling Crew means that a person has directly
participated in the loading, connecting, and preparation of blast
holes and has detonated blasts. [This provision was relocated from
CSR 38-2C-2.9.]
2.38. Worked on a Blasting Crew means that a person has first-
hand experience in storing, handling, transporting, and using
explosives. [This provision was relocated from CSR 38-2C.2.10.]
Section 199-1-3. Blasting
3.1. General Requirements. Each operator shall comply with all
applicable state and federal laws in the use of explosives. A
blaster certified by the office shall be responsible for all
blasting operations including the transportation, storage and use of
explosives within the permit area in accordance with the blasting
plan. [This provision was relocated from CSR 38-2-6.1.]
3.2. Blasting Plans.
3.2.a. As required by statute, all surface mining operations
that propose blasting shall include a blasting plan. The blasting
plan shall explain how the applicant will comply with the blasting
requirements of W. Va. Code Section 22-3-1 et seq., and this rule.
This plan shall include, at a minimum, information setting forth the
limitations the operator will meet with regard to ground vibration
and airblast, the basis for those limitations, and the methods to be
applied in preventing the adverse effects of blasting operations.
[This provision was relocated and modified from CSR 38-2-6.2.]
3.2.b. The blasting plans referred to in paragraph 3.2.a. of
this rule will be reviewed for administrative and technical
completeness by the office. The person conducting the review shall
be experienced in common blasting practices utilized on surface
mining operations. The reviewer will take into consideration past
operational history of the applicant, the geological
[[Page 75891]]
formation the blasting operations will take place in, and the
proximity of individual dwellings or communities to the blasting
operations.
3.2.c. The blasting plan shall also contain an inspection and
monitoring procedure to insure that all blasting operations are
conducted to eliminate, to the maximum extent technically feasible,
adverse impacts to the surrounding environment and surrounding
occupied dwellings.
3.2.d. For operations where a notice of violation (NOV) or
cessation order (CO) has been issued; the office shall review the
blasting plan within thirty (30) days of final disposition of the
NOV or CO. This review will focus on the specific circumstances that
led to the enforcement action. If necessary the blasting plan will
be modified to insure all precautions are being taken to safely
conduct blasting operations.
3.3. Public Notice of Blasting Operations. [Subsection CSR 199-
1-3.3 was relocated and modified from CSR 38-2.6.3.a.]
3.3.a. At least ten (10) days but not more than thirty (30) days
prior to any blasting operations which detonate five (5) pounds or
more of explosives at any given time, the operator shall publish a
blasting schedule in a newspaper of general circulation in all the
counties of the proposed area. Copies of the schedule described in
subdivision 3.6.a. of this rule shall be distributed by Certified
Mail to local governments, public utilities and each resident within
seven tenths (0.7 mi.) of a mile of the blasting site in accordance
with W. Va. Code Section 22-3-13a(a)(1 and 2). The operator shall
republish and redistribute the schedule at least every twelve (12)
months and revise, republish and redistribute the schedule at least
ten (10) days but not more than thirty (30) days prior to blasting
whenever the area covered by the schedule changes or actual time
periods for blasting significantly differ from that set forth in the
prior schedule. The blasting schedule described in subdivision
3.6.a. shall contain at a minimum the following:
3.3.a.1. Name, address and phone number of the operator;
3.3.a.2. Identification of the specific areas in which blasting
will take place;
3.3.a.3. Dates and times when explosives will be detonated;
3.3.a.4. Methods to be used to control access to the blasting
area; and
3.3.a.5. Types and patterns of audible warning and all clear
signals to be used before and after blasting.
3.4. Surface blasting activities incident to underground coal
mining are not subject to the requirements of subdivision 3.3.a of
this rule so long as all local governments and residents or owners
of dwellings or structures located within one-half (\1/2\) mile of
the blast site are notified in writing by the operator of proposed
times and locations of the blasting operation. Such notice of times
that blasting is to be conducted may be announced weekly, but in no
case less than twenty-four (24) hours before the blasting will
occur. [This provision was relocated from CSR 38-2-6.3.b.]
3.5. Blast Record. [Subsection CSR 199-1-3.5 was relocated from
CSR 38-2-6.4.]
3.5.a. A blasting log book formatted in a manner prescribed by
the director shall be kept current daily and made available for
inspection at the site by the director and upon written request by
the public.
3.5.b. The blasting log shall be retained by the operator for
three (3) years.
3.5.c. The blasting log shall, at a minimum, contain the
following information:
3.5.c.1. Name of permittee, operator or other person conducting
the blast;
3.5.c.2. Location, date and time of blast;
3.5.c.3. Name, signature and certification number of blaster-in-
charge;
3.5.c.4. Identification of nearest structure not owned or leased
by the operator and direction and distance, in feet, to such
structure;
3.5.c.5. Weather conditions;
3.5.c.6. Type of material blasted;
3.5.c.7. Number of holes, burden, and spacing;
3.5.c.8. Diameter and depth of holes;
3.5.c.9. Types of explosives used;
3.5.c.10. Weight of explosives used per hole;
3.5.c.11. Total weight of explosives used;
3.5.c.12. Maximum weight of explosives detonated within any
eight (8) millisecond period;
3.5.c.13. Method of firing and type of circuit;
3.5.c.14. Type and length of stemming;
3.5.c.15. If mats or other protections were used;
3.5.c.16. Type of delay detonator used and delay periods used;
3.5.c.17. Seismograph records and air blast records shall
include but not be limited to:
3.5.c.17.A. Seismograph and air blast reading, including exact
location, date, and time of reading and its distance from the blast;
3.5.c.17.B. Name of person and firm taking the readings;
3.5.c.17.C. Name of person and firm analyzing the record, where
analysis is necessary; and
3.5.c.17.D. Type of instrument, sensitivity and calibration
signal or certification of annual calibration.
3.5.c.18. Shot location;
3.5.c.19. Sketch of delay pattern to include the entire blast
pattern and all decks; and
3.5.c.20. Reasons and conditions for unscheduled blasts.
3.6. Blasting Procedures. [Subsection 199-1-3.6. was relocated
and modified from CSR 38-2-6.5.]
3.6.a. All blasting shall be conducted during daytime hours,
between sunrise and sunset; provided, that the director may specify
more restrictive time periods based on public requests or other
consideration, including the proximity to residential areas. No
blasting shall be conducted on Sunday. Provided, however, the
director may grant approval of a request for Sunday blasting if the
operator demonstrates to the satisfaction of the director that the
blasting is necessary and there has been an opportunity for a public
hearing. Blasting shall not be conducted at times different from
those announced in the blasting schedule except in emergency
situations where rain, lightning, or other atmospheric conditions,
or operator or public safety requires unscheduled detonations.
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.
3.6.b. Safety Precautions:
3.6.b.1. Three (3) minutes prior to blasting, a warning signal
audible to a range of one-half (1/2) mile from the blast site will
be given. This preblast warning shall consist of three (3) short
warning signals of five (5) seconds duration with five (5) seconds
between each signal. One (1) long warning signal of twenty (20)
seconds duration shall be the ``all clear'' signal. Each person in
the permit area, and each person who resides or regularly works
within one-half (1/2) mile of the permit area shall be notified of
the meaning of these signals;
3.6.b.2. All approaches to the blast area shall be guarded
against unauthorized entry prior to and immediately after blasting;
3.6.b.3. All charged holes shall be guarded and posted against
unauthorized entry; and
3.6.b.4. The certified blaster shall be accompanied by at least
one other person at the time of firing of the blast.
3.6.c. Airblast Limits.
3.6.c.1. Airblast shall not exceed the maximum limits listed
below at the location of any dwelling, public buildings, school,
church, or community or institutional building outside the permit
area.
Lower Frequency Limit of Measuring System in Hz (+ 3 dB)--Maximum
Level, in db
0.1 Hz or lower--flat response (Only when approved by the
Director)--134 peak.
2 Hz or lower--flat response133 peak.
6 Hz or lower--flat response 129 peak.
C-weighted--slow response (Only when approved by the Director)--105
peak dBC.
3.6.c.2. If necessary to prevent damage, the director may
specify lower maximum allowable airblast levels for use in the
vicinity of a specific blasting operation.
3.6.c.3. Monitoring. The operator shall conduct periodic
monitoring to ensure compliance with the airblast standards. The
director may require airblast measurement of any or all blasts and
may specify the locations at which such measurements are taken. The
air blast measuring systems used shall have an upper-end flat-
frequency response of at least 200 Hz.
3.6.d. Flyrock, including blasted material, shall not be cast
from the blasting site more than half way to the nearest dwelling or
other occupied structure, beyond the area of control specified in
subdivision 3.6.e of this rule, or in no case beyond the bounds of
the permit area.
3.6.e. Access to the blast area shall be controlled against the
entrance of livestock or unauthorized personnel during blasting and
for a period thereafter until an authorized person has reasonably
determined:
3.6.e.1. That no unusual circumstances exist such as imminent
slides or undetonated charges, etc.; and
3.6.e.2. That access to and travel in or through the area can be
safely resumed. from 38-2-6.5
3.6.f. At the request of the director, the operator shall
monitor air blast levels using
[[Page 75892]]
an instrument with an upper-end flat-frequency response of at least
200 Hz.
3.6.g. Blast Design.
3.6.g.1. An anticipated blast design shall be submitted if
blasting operations will be conducted within:
3.6.g.1.A. 1,000 feet of any building used as a dwelling, public
building, school, church, or community or institutional building
outside the permit area; or
3.6.g.1.B. 500 feet of an active or abandoned underground mine.
3.6.g.2. The blast design may be presented as part of a permit
application or at a time, before the blast as approved by the
director.
3.6.g.3. The blast design shall contain sketches of the drill
patterns, delay periods, and decking and shall indicate the type and
amount of explosives to be used, critical dimensions, and the
location and general description of structures, including protected
structures, to be protected, as well as a discussion of design
factors to be used, which protect the public and meet the applicable
airblast, flyrock, and ground-vibration standards.
3.6.g.4. The blast design shall be prepared and signed by a
certified blaster.
3.6.g.5. The director may require changes to the design
submitted. [This provision was relocated from CSR 38-2-6.5.g.]
3.6.h. No blasting within five hundred (500) feet of an
underground mine not totally abandoned shall be permitted except
with the concurrence of the office, the operator of the underground
mine and the Mine Safety and Health Administration. The director may
prohibit blasting on specific areas where it is deemed necessary for
the protection of public or private property, or the general welfare
and safety of the public. [This provision was relocated from CSR 38-
2-6.5.h.]
3.6.i. The operator may use the following scaled distance
formulas to determine the allowable maximum weight of explosives
(lbs.) to be detonated in any eight millisecond period without
seismic monitoring:
Formula and Distance in Feet From the Blasting Site to the Nearest
Protected Structure
W = (D/50)2--0--300 feet
W = (D/55)2--301--5,000 feet
W = (D/65)2--5,001 feet or greater
W = Weight of explosives in pounds
D = Distance to the nearest structure
[This provision was relocated from CSR 38-2-6.5.i.]
3.6.j. The scaled distance formulas need not be used if a
seismograph measurement at the nearest protected structure is
recorded and maintained for every blast. The peak particle velocity
in inches per second in any one of the three mutually perpendicular
directions shall not exceed the following values at any protected
structure:
Seismograph Measurement and Distance to the Nearest Protected
Structure
1.25--0--300 feet
1.0--301--5,000 feet
0.75--5,001 feet or greater
[This provision was relocated from CSR 38-2-6.5.j.]
3.6.k. The director may require a seismograph recording of any
or all blasts based on the physical conditions of the site in order
to prevent injury to persons or damage to property. [This provision
was relocated from CSR 38-2-6.5.k.]
3.6.l. The maximum allowable ground vibration as provided in
subdivisions 3.6.i and 3.6.j of this subsection shall be reduced by
the director, if determined necessary to provide damage protection.
[This provision was relocated from CSR 38-2-6.5.l.]
3.6.m. The maximum airblast and ground-vibration standards of
subdivisions 3.6.c and 3.6.j of this subsection shall not apply at
the following locations:
3.6.m.1. Structures owned by the permittee and not leased to
another person; and
3.6.m.2. Structures owned by the permittee and leased to another
person, if a written waiver by the lessee is submitted to the
director before blasting. [This provision was relocated from CSR 38-
2-6.5.m.]
3.7. Blasting Control for Other Structures. [Subsection CSR 199-
1-3.7. was relocated from CSR 38-2-6.6.]
3.7.a. All other structures in the vicinity of the blasting area
which are not defined as protected structures in subsection 2.24 of
this rule shall be protected from damage by establishment of a
maximum allowable limit on ground vibration, specified by the
operator in the blasting plan and approved by the director.
3.7.b. The plan submitted under this subsection shall not reduce
the level of protection for other structures otherwise provided for
in this rule.
3.8. Certified Blasting Personnel.--Each person responsible for
blasting operations shall be certified. Each certified blaster shall
have proof of certification either on his person or on file at the
permit area during blasting operations. Certified blasters shall be
familiar with the blasting plan and blasting related performance
standards for the operation at which they are working. [This
provision was relocated from CSR 38-2-6.7.]
3.9. Pre-blast Surveys. [This provision is new. Many of the
previously approved pre-blast survey requirements and specifications
are now included in statute at W. Va. Code 22-3-13a.]
3.9.a. Qualifications for Individuals and Firms Performing Pre-
blast Surveys.--Individuals must comply with the following:
3.9.a.1. Individuals must be approved by the office to
administer pre-blast surveys.
3.9.a.2. The office shall develop a list of individuals who have
exhibited ability by past experience to perform pre-blast surveys.
Provided, however, attending a training course administered by the
office on pre-blast surveys shall meet the previous experience
requirements.
3.9.a.3. Every three (3) years after meeting initial
qualifications for performing pre-blast surveys, individuals must
meet the requirements of subparagraphs 3.9.a.1. (or submit written
qualifications of previous experience performing pre-blast surveys)
of this rule.
3.9.b. Pre-blast Survey Review.
3.9.b.1. Pre-blast surveys shall be submitted to the office on
forms prescribed by the director in accordance with W. Va. Code
Section 22-3-13a.
3.9.b.2. The office shall review each pre-blast survey as to
form and completeness only, and notify the operator of any
deficiencies within 15 days.
3.9.b.3. At the time the pre-blast survey is accepted by the
DEP, the DEP shall forward a copy to the homeowner or resident.
3.9.b.4. The Office of Explosives and Blasting shall develop a
procedure for assuring surveys shall remain confidential.
3.9.b.5. The DEP shall make available informational materials
educating citizens about pre-blast surveys and blasting.
Section 199-1-4. Certification of Blasters.
4.1. Requirements for Certification.--In every surface mine and
surface area of an underground mine when blasting operations are
being conducted, a certified blaster shall be responsible for the
storage, handling, transportation, and use of explosives for each
and every blast, and for conducting the blasting operations in
accordance with the blasting plans approved in a permit issued
pursuant to W. Va. Code Section 22-3-1 et seq., and the rules
promulgated under that article. [This provision is relocated and
modified from CSR 38-2-6-1 and 38-2C-3.1.]
4.2. Qualifications for Certification.--Each applicant for
certification shall have had at least one (1) year active blasting
experience within the past five (5) years, and have demonstrated a
working knowledge of and skills of the storage, handling,
transportation, and use of explosives, and a knowledge of all state
and federal laws pertaining thereto, by successfully taking and
passing the examination for certification required by subsection 6.2
of this rule. [This provision is derived from W. Va. Code 22-3C-
3.2.]
4.3. Application for Certification.--Prior to taking the
examination for certification, a person must submit an application
along with a fifty dollar ($50.00) application fee to the office to
take the examination on forms prescribed by the director. Upon
receipt of an application for examination, the director shall, after
determining that the applicant meets the experience requirements of
subsection 4.2 of this rule, notify the applicant of the date, time,
and location of the scheduled examination. [This provision was
derived from W. Va. Code 22-3C-3.3.]
Section 199-1-5. Training.--
The office will administer a training program to assist
applicants for blaster certification or re-certification in
acquiring the knowledge and skills required for certification. The
training requirements shall include, at a minimum, those subject
areas set forth in subdivisions 6.1.a through 6.1.k of subsection
6.1 of this rule, and paragraphs 6.2.a.1 through 6.2.a.11 of
subsection 6.2 of this rule.
In lieu of completing the training program, the applicant for
certification or re-certification may complete a self-study course
using the study guide and other materials available from the office.
[CSR 199-1-5 was relocated and modified from CSR 38-2C-4.]
Section 199-1-6.
Examination for Certification of Examiner/Inspector and
Certified Blaster. [This entire
[[Page 75893]]
section was relocated and modified from CSR 38-2C-5.1.]
6.1. Examinations for Certified Blaster Examiners/Inspectors.--
All persons employed by the office, whose duties include training,
examining, and certification of blasters and/or inspecting blasting
operations shall be a certified examiner/inspector. Certification
under the provisions of this subsection does not constitute
certification under the provisions of subsection 6.2 of this rule;
however, certification under subsection 6.2 of this rule is
sufficient for certification under this subsection. The examination
for certified examiner/inspector shall at a minimum tests the
applicant's knowledge of the information presented in the Study
guide for West Virginia Surface Mine Blasters, and shall consist of
three parts;
6.1.a. Part 1.--A written multiple choice examination covering:
6.1.a.1. Types of explosives and their properties, to include
selection of appropriate explosives;
6.1.a.2. Blasting equipment and accessories, to include blasting
machines;
6.1.a.3. Blast dimensions and calculations, to include geologic
and topographic considerations, blast hole design, flyrock control,
secondary blasting, and blast plans;
6.1.a.4. Delay systems, to include pattern design, field layout,
and initiation systems;
6.1.a.5. Timing;
6.1.a.6. Blast vibration and vibration control, to include
airblast, monitoring techniques, and use of preblast surveys;
6.1.a.7. Loading and detonating, to include priming, scheduling,
site control warning signals, and unpredictable hazards;
6.1.a.8. Storage and transportation of explosives;
6.1.a.9. Record keeping and reporting;
6.1.a.10. Current state and federal laws and regulations
relating to the storage, handling, transportation, and use of
explosives; the training and certification of blasting personnel,
and blasting signs; and
6.1.a.11. Responsibilities of a certified blaster.
6.1.b. Part 2.--A written simulation whereby the applicant must
correctly and properly complete a blasting log.
6.1.c. Part 3.--A hands-on simulation whereby the applicant must
demonstrate the ability to properly connect a blast, simulate a
selected initiation system, and simulate detonating a blast.
6.1.d. A score of 70 percent (70%) for part 1, and
satisfactorily completion of parts 2 and 3 are required for
successful passage of the examination. An individual who fails to
achieve a passing score may retake the examination subject to the
discretion of the director.
6.2. Examination for Certified Blaster. [This provision was
relocated from CSR 38-2C-5.2.]--The examination for certified
blaster shall include information presented in the study Guide for
West Virginia Surface Mine Blasters, and shall consist of three (3)
parts:
6.2.a. Part 1.--A written multiple choice examination covering:
6.2.a.1. Types of explosives and their properties, to include
selection of appropriate explosive(s);
6.2.a.2. Blasting equipment and accessories, to include blasting
machines;
6.2.a3. Blast dimensions and calculations, to include geologic
and topographic considerations, blast hole design, flyrock control,
secondary blasting, and blast plans;
6.2.a.4. Delay systems, to include pattern design, field layout,
and initiation systems;
6.2.a.5. Timing;
6.2.a.6. Blast vibration and vibration control, to include
airblast, monitoring techniques, and use of preblast surveys;
6.2.a.7. Loading and detonating, to include priming, scheduling,
site control, warning signals, and unpredictable hazards;
6.2.a.8. Storage and transportation of explosives;
6.2.a.9. Record keeping and reporting;
6.2.a.10. Current state and federal laws and regulations
relating to the handling, storage, transportation, and use of
explosives; the training and certification of blasting personnel,
and blasting signs; and
6.2.a.11. Responsibilities of a certified blaster.
6.2.a.b. Part 2.--A simulation examination whereby the applicant
must correctly and properly complete a blasting log.
6.2.c. Part 3--A hands-on simulation whereby the applicant must
demonstrate the ability to properly connect a blast, simulate a
selected initiation system, and simulate detonating a blast.
6.2.d. A score of 80 percent (80%) for a part 1, and a ``passing
grade'' on parts 2 and 3, which are graded on a pass/fail basis, are
required for successful passage of the examination.
6.3. Notification of Score.--The office will notify all persons
of their scores within thirty (30) days of completing the
examination. A person who fails to achieve a passing score of any of
the three (3) parts of the examination, may apply, after thirty (30)
days of receipt of his or her examination results, to retake the
entire examination or any portions that the individual failed to
pass.
Any person who fails to pass the exam on the second attempt must
certify that he/she has taken or retaken the training course
described in section 4 of this rule prior to applying for another
examination. [This provision is relocated from CSR 38-2C-5.3]
Section 199-1-7
Approval of Certification.
Upon determination that an applicant for certification has
satisfactorily passed the examination, the director shall, within
thirty (30) days of the examination date, issue a certification card
to the applicant. [This provision was relocated from CSR 38-2C-6.]
Section 199-1-8
Conditions or Practice Prohibiting Certification.
[This provision was relocated from CSR 38-2C-7.]--The Director
shall not issue a blaster certification to persons who:
8.1. Are currently addicted to alcohol, narcotics or other
dangerous drugs;
8.2. Have exhibited a pattern of conduct inconsistent with the
acceptance of responsibility for blasting operations; or
8.3. Are convicted felons. [This provision was relocated from
CSR 38-2C-7.]
Section 199-1-9
Re-certification Requirements for Certified Blaster.
9.1. Re-certification of Blasters.--A certified blaster must be
re-certified every three (3) years. Each applicant for re-
certification must be currently and must document that he or she
satisfactorily meets the experience requirements of subsection 4.2
of this rule and has retaken the training course described in
section 4 of this rule within the past twelve (12) months prior to
application. The application for re-certification must be submitted
on forms prescribed by the director along with a thirty dollar
(30.00) reapplication fee. [This provision was relocated and
modified from CSR 38-2C-8.1.]
9.2. Refresher Training Course/Self-Study Course.--An applicant
who does not meet the experience requirements of subsection 3.8 of
this rule must take the refresher training course, or complete the
self-study course described in section 5 of this rule, and must take
and pass the examination required in subsection 6.2 of this rule.
[This provision was relocated form CSR 38-2C-8.2.]
Section 199-1-10
Presentation of Certificate; Transfer; and Delegation of
Authority
10.1. Upon request by the director, a certified blaster shall
exhibit his or her blaster certification card. [This provision was
derived from W. Va. Code 22-3C-9.1.]
10.2. The certified blaster shall take all reasonable care to
protect his or her certification card from loss or unauthorized
duplication, and shall immediately report any such loss or
duplication to the office. [This provision was derived from W. Va.
Code 22-3C-9.2.]
10.3. Blaster's certifications may not be transferred or
assigned. [This provision was derived from W. Va. Code 22-3C-9.3.]
10.4. Certified blasters shall not delegate their authority or
responsibility to any individual who is not a certified blaster.
[This provision was derived form W. Va. Code 22-3C-9.4.].
Section 199-1-11
Violations by a Certified Blaster.
The director may issue a notice of violation against a certified
blaster who is in violation of any of the following:
11.1. Failure to comply with any order issued by the director;
11.2. Illegal use of drugs or narcotics, or any use of alcohol
in the work place;
11.3. Violations of federal laws or regulations governing the
purchase, use, handling, transportation, storage, or detonation of
explosives;
11.4. False swearing in order to obtain a blaster's
certification card; or
11.5. Any illegal or improper action taken by a certified
blaster which may or has led to injury or death at a blast site.
[Relocated from CSR 38-2C-10.1.]
Section 199-1-12
Penalties.
[Section 199-1-12 was relocated from CSR 38-2C-11.]
12.1. Suspension.--Upon service of a written notice of violation
by the director to a certified blaster, the director may also, based
on clear and convincing evidence of a violation, issue an order
suspending his or
[[Page 75894]]
her certification. Prior to the issuance of such an order, the
certified blaster shall be granted a hearing before the director to
show cause why his or her certification should not be suspended.
The period of suspension will be conditioned upon the time
period for completion of remedial measures to abate the violation as
specified in the notice of violation. The director may also require
retraining or reexamination as a condition for reinstatement of
certification.
12.2. Revocation.--If the remedial action required to abate a
notice of violation issued by the director to a certified blaster is
not taken within the specified time period for abatement, the
director may revoke the blaster's certification and require the
blaster to relinquish his or her certification card. Revocation will
occur if the certified blaster fails to retrain or fails to take and
pass reexamination as a requirement for remedial action as described
in subsection 12.1 of this rule.
12.3. Civil and Criminal Penalties--Any certified blaster is
subject to the individual civil and criminal penalties provided for
in W. Va. Code Section 22-3-17.
Section 199-1-13
Hearings and Appeals.--Any certified blaster who is served a
notice of violation, suspension order, revocation order, or civil
and criminal sanctions is entitled to the rights of hearings and
appeals as provided for in W. Va. Code section 22-3-16 and 17. [This
section was relocated from CSR 38-2C-12.]
Section 199-1-14. Blasting Crew
Persons who are not certified and who are assigned to a blasting
crew, or assist in the use of explosives, shall receive directions
and on-the-job training from a certified blaster. [This section was
relocated from CSR 38-2C-13.]
Section 199-1-15
Reciprocity With Other States.
The director may enter into a reciprocal agreement with other
states wherein persons holding a valid certification in that state
may apply for certification in West Virginia, and upon approval by
the director, be certified without undergoing the training or
examination requirements set forth in this rule. [This section was
relocated from CSR 38-2C-14.]
Section 199-1-16
Blasting Damage Claim [This section is new.]
16.1. Damage to Surface Structures.--A claim of damage to
surface structures from blasting will be the result of one or more
of the following:
16.1.a. Fly Rock.--Fly rock damage is based on the presence of
debris from the blast site and the presence of impact damage;
16.1.b. Air Blast.--Air blast damage is characterized by broken
or cracked window glass; and
16.1.c. Blasting Vibration Damage.--Blasting vibration damage is
investigated by experienced and specially trained personnel to
accurately determine the presence of such damage. Examples are
explained in, but not limited to, the American Insurance Association
publication, Blasting Damage, A Guide for Adjusters and Engineers.
16.2. Filing a Claim.
16.2.a. It is the responsibility of the property owner to notify
the office of the alleged blasting damage. An inspector will be
assigned to conduct a field investigation to determine the initial
merit of the damage. An investigation will include the following:
16.2.a.1. Inspector will contact property owner within one (1)
business day of receiving the complaint to schedule a visit to the
property where the alleged blasting damage occurred and interview
the property owner;
16.2.a.2. Inspector will visit the blasting site to determine if
the operator and blaster are in compliance with state blasting
requirements; and
16.2.a.3. Inspector will make written documentation on the
investigation that describes the nature and extent of alleged
damage, taking into consideration the damage that is accurately
indicated on a pre-blast survey, damage where there has been no
blasting conducted by the operator or other reliable indicators that
the alleged damage actually pre-dated the blasting. Inspector will
make one of the following determinations:
16.2.a.3.A. A definite determination that the merit of the
alleged blasting damage can be made. Inspector will notify the
claims administrator and supply such information that the claims
administrator needs to sufficiently document the claim;
16.2.a.3.B. A definite determination that the merit of the
alleged blasting damage cannot be made. Inspector will notify the
claims administrator and supply such information that the claims
administrator needs to sufficiently document the claim;
16.2.a.3.C. Inspector will inform the property owner of the
following four resolution options available for the alleged blasting
damage:
16.2.a.3.C.1. Withdraw the claim, with no further action
required by the office;
16.2.a.3.C.2. File a claim with the operator or the operator's
general liability insurance carrier;
16.2.a.3.C.3. File a claim with the homeowner's insurance
carrier; or 16.2.a.3.C.4. Submit to the office's claims process.
16.2.a.3.D. If the property owner declines Part 16.2.a.3.C.4. of
this rule, the office's involvement will be concluded.
16.2.a.4. Once a determination is made as to the merit of a
claim, the office shall offer a chance to meet between the claimant
and the permittee to attempt to resolve the issue.
16.3. The claims administrator will be responsible for the
following:
16.3.a. Sending notice to the respective operator of the damage
claim;
16.3.b. Making an initial assignment of the damage claim to a
qualified claims adjuster within one business day;
16.3.c. Making an initial monetary determination of loss reserve
of the respective claim; and
16.3.d. Providing the relevant claims information to the
arbitrator assigned to that claim.
16.4. The adjuster will be responsible for the following:
16.4.a. Contacting the property owner and physically visiting
the blasting damage site within three (3) business days of the
initial assignment;
16.4.b. Documenting the alleged blasting damage through accepted
methods such as photographs, video tapes, written descriptions, and
diagrams;
16.4.c. Reviewing such available supporting information such as
blasting logs, seismograph records and pre-blasting surveys;
16.4.d. Making a determination for the need for additional
assistance from structural engineers, building contractors, and
blasting consultants. The claims administrator will be the approving
authority for the assignment of such specialists;
16.4.e. Making a determination as to the merit of the alleged
blasting damage claim.
16.4.f. Making an initial monetary determination of the loss
value of the respective claim.
16.4.f.1. The adjuster will use the following ratings in the
determination of the merit of the alleged blasting damage claim:
16.4.f.1.A. Caused by blasting;
16.4.f.1.B. Probably caused by blasting;
16.4.f.1.C. Possibly caused by blasting;
16.4.f.1.D. Probably not caused by blasting; or
16.4.f.1.E. Not caused by blasting.
16.4.f.2. The merit-rating factors include, but are not limited
to the following:
16.4.f.2.A. The claimant is the property owner;
16.4.f.2.B. Correlation of alleged damage event to a specific
blast and mine;
16.4.f.2.C. Correlation of alleged damage event to a large,
unusual, or problem shot;
16.4.f.2.D. Proximity to the blast site;
16.4.f.2.E. Timeliness of first notice of loss;
16.4.f.2.F. Damage that is not indicated on the pre-blast
survey;
16.4.f.2.G. Lack of any other issues or grievances besides
blasting;
16.4.f.2.H. Age and physical condition of the structure in
question;
16.4.f.2.I. Presence of seismographic records close to the
structure in question;
16.4.f.2.J. History of previous blasting in the immediate area;
16.4.f.2.K. Property that has been undermined; and
16.4.f.2.L. An area with a history of geological abnormalities.
16.4.g. Recommendations as to the equitable resolution of the
claim; and
16.4.h. Completing report and sending to the claims
administrator.
Section 199-1-17
Arbitration for Blasting Damage Claims. [This section is new.]
17.1. Listing of Arbitrators.--The office shall maintain and
make available to the claimant and the operator a listing of persons
willing and qualified to serve as arbitrators. The listing shall
identify those persons who are qualified and willing to serve,
included but not limited to, those willing to serve on a volunteer
(i.e., without compensation) basis. The office shall establish a
pool of arbitrators sufficient to handle the claims process. Once a
year the Environmental Advocate, and industry representatives
(selected by the West Virginia Mining and
[[Page 75895]]
Reclamation Association and the West Virginia Coal Association) may
move to strike up to twenty-five percent (25%) of the list. The
Environmental Advocate is required to seek citizen input. It is
anticipated that the office will recommend the roster be maintained
by the American Arbitration Association from which the parties will
choose the arbitrator.
17.2. Selection of Arbitrator.--The parties may choose their own
arbitrator by agreement, who may or may not be a person on the
listing of arbitrators as defined in subsection 17.1 of this rule.
In the absence of such agreement, the director will provide the
parties with a listing of arbitrators and permit each of the parties
to eliminate, in rotation, names from the list until one name
remains. That person shall serve as the arbitrator.
17.3. Provision for Preliminary Information to the Arbitrator.--
The arbitrator may require the parties to provide pertinent
information to the arbitrator and to the other parties prior to the
arbitration session. Such information may include, but is not
limited to:
17.3.a. The pre-blast survey, shot logs, and other documents
deemed necessary by the arbitrator to determine the merits and
value, if any, of the blasting damage claim; and
17.3.b. A confidential statement summarizing a party's position
on the issues and what relief, if any, should be awarded.
17.4. Demand for Arbitration and Timeframes for Arbitration.--On
forms to be provided by the office when notifying the parties of its
initial claim determination and the right to demand arbitration, a
party seeking arbitration shall serve the other party by certified
mail a written demand for arbitration within fifteen (15) days of
receipt of the initial claim determination. An arbitrator shall be
chosen within fifteen (15) days of receipt. Unless otherwise agreed
by the parties and the arbitrator, the arbitration shall be
conducted within thirty (30) days after the appointment of the
arbitrator. Arbitration shall be completed within thirty (30) days
after the first arbitration session, unless changed by agreement of
the parties and the arbitrator. The arbitrator is empowered to set
the date and time of all arbitration sessions.
17.5. Place of Arbitration.--The parties may by agreement select
the place of arbitration and arrange for paying any associated
costs. If the place of arbitration is determined by agreement, the
place must be identified to the arbitrator upon the arbitrator's
appointment. The office shall upon reasonable request by the parties
make available its state office for the arbitration. In the event
the parties cannot agree on the place of arbitration, the arbitrator
is empowered to do so.
17.6. Confidentiality of the Arbitration Process.--Arbitration
shall be regarded as confidential. The arbitrator shall maintain and
preserve the confidentiality of all arbitration proceedings and
records. An arbitrator may not be subpoenaed or called to testify,
or otherwise be subject to process requiring disclosure of
confidential information in any proceeding relating to or arising
out of the dispute arbitrated.
17.7. Presentations to the Arbitrator.--Unless otherwise
directed by the arbitrator:
17.7.a. Witnesses for the claimant will be the claimant, any one
other person designated by the claimant, and the claimant's
representative; and witnesses for the operator will be a company
officer, its engineer or blaster, and its representative. If the
claimant does not have a representative and requests representation,
the Office of Explosives and Blasting, through the Office of the
Environmental Advocate, shall provide a representative throughout
the arbitration process, which representative shall not necessarily
be an attorney-at-law.
17.8. Arbitration Award, Fees, Costs and Expenses.--If parties
agree on settlement after entering into arbitration, parties may
request their settlement be declared the official award by the
arbitrator. Within thirty (30) days after the arbitration process is
closed or terminated, the arbitrator shall issue a decision
upholding, upholding in part, or overruling the initial claim
determination made by the representatives of the Office of
Explosives and Blasting. If the initial claim determination was in
favor of the claimant, the operator requests arbitration and the
claim determination is upheld or upheld in part, the operator shall
pay the costs of the proceeding, as well as reasonable
representation fees and costs of the claimant not to exceed one
thousand dollars ($1,000.00). Otherwise, the parties are equally
responsible for the cost of the proceeding and are responsible for
their own fees and costs.
17.9. Binding Nature of the Award.--By requesting arbitration,
the results of such arbitration are intended to be final and
binding. As such they are not appealable to the West Virginia
Supreme Court of Appeals, the circuit courts, or any other tribunal.
The office shall provide written notice to the claimant of the
binding nature of the arbitration award and shall secure from the
claimant a written acknowledgement that the claimant understands the
final nature of the award and agrees to be bound by it.
17.10. Payment of the Award.--Should an award be made against
the operator on an arbitrated claim, the operator shall pay the full
amount of the award within thirty (30) days of the final
determination and award. If the operator fails to pay the award
within thirty (30) days, the director may issue a cessation order
pursuant to W. Va. Code Section 22-3-16 for all sites operated by
the operator.
Section 199-1-18
Explosive Material Fee [This section is new.]
18.1. Assessment Fee on Blasting Material.--Pursuant to W. Va.
Code Section 22-3A-7 and Section 22-5B-2a-2, there is hereby
assessed a fee of one-quarter cent ($.0025) per pound on explosive
material used for any purpose on surface mining operations.
Provided, That the operators exempted from the application of
Chapter 5B, Article 2A shall pay one-eighth ($.00125) cent per pound
on explosive material.
18.2. Remittance of Fee.--Within thirty (30) days of the end of
each previous quarter after the effective date of this rule, the
operator shall remit to the office the amount of the fee calculated
by multiplying one-quarter cent ($.0025) or one-eighth cent
($.00125) for operators exempt from the application of Chapter 5B,
Article 2A, times the number of pounds of explosive material used
during the preceding quarter for any purpose on the surface mining
operations: Provided, That, the materials are measured by the pound.
Copies of the delivery records and inventories shall be submitted
with the fee to verify the accuracy of the fee calculation.
18.3. Dedication of the Fee.--The office shall deposit all
moneys received from the explosive material fees into a special
revenue fund to be known as the ``mountaintop removal fund'' within
the state treasury. These moneys shall be expended by the Office of
Explosives and Blasting and the Office of Coalfield Community
Development, created by W. Va. Code Section 5B-2A-1, in the
performance of their respective duties: Provided, However, that no
explosive material fees collected from underground or surface mining
operations specifically exempted from application of Chapter 5B,
Article 2A, may be expended to fund the Office of Coalfield
Community Development. All such fees shall be reserved and expended
exclusively to fund the Office of Explosives and Blasting.
18.4. Expenditures.--Direct expenditures from the fees collected
are not authorized, but shall be appropriated by the legislature.
18.5. Sufficiency of Fees.--After one year of collection of the
explosive material fees and expenditure of the appropriations
therefrom, the office shall report to the legislature whether the
fees have provided sufficient revenue to fund the operation of both
the Office of Explosives and Blasting and the Office of Coalfield
Community Development.
18.6 The director is authorized, through the Treasurer's Office
to invest the mountaintop removal fund with all interest earnings
accrued to be returned to and be made part of the fund.
Section 199-1-19
Noncompliance. [This section is new.]
Failure to timely comply with the fee requirements of W. Va.
Code Section 22-3A and this rule may result in permit suspension or
revocation in accordance with W. Va. Code Section 22-3-17.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments, on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the West Virginia program.
Written Comments
If you submit written or electronic comments on the proposed
amendment during the 30-day comment period, they should be specific,
should be confined to issues pertinent to the notice, and should
explain the reason for your recommendation(s). We may not be able to
consider or include in the Administrative Record comments
[[Page 75896]]
delivered to an address other than the one listed above (see
ADDRESSES).
Electronic Comments
Please submit Internet comments as an ASCII, Word Perfect, or Word
file avoiding the use of special characters and any form of encryption.
Please also include ``Attn: SPATS NO. WV-087-FOR'' and your name and
return address in your Internet message. If you do not receive a
confirmation that we have received your Internet message, contact the
Charleston Field office at (304) 347-7158.
Availability of Comments
Our practice is to make comments, including names and home
addresses of respondents, available for public review during our
regular business hours at the OSM Administrative Record Room (see
ADDRESSES). Individual respondents may request that we withhold their
home address from the rulemaking record, which we will honor to the
extent allowable by law. There also may be circumstances in which we
would withhold from the rulemaking record a respondent's identity, as
allowable by law. If you wish us to withhold your name and/or address,
you must state this prominently at the beginning of your comment.
However, we will not consider anonymous comments. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, you should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. (local
time), on December 20, 2000. The location and time of the hearing will
be arranged with those persons requesting the hearing. If no one
requests an opportunity to speak at the public hearing, the hearing
will not be held.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who testifies at a public
hearing provide us with a written copy of his or her testimony. The
public hearing will continue on the specified date until all persons
scheduled to speak have been heard. If you are in the audience and have
not been scheduled to speak and wish to do so, you will be allowed to
speak after those who have been scheduled. We will end the hearing
after all persons scheduled to speak and persons present in the
audience who wish to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. If you wish
to meet with OSM representatives to discuss the proposed amendment, you
may request a meeting by contacting the person listed under FOR FURTHER
INFORMATION CONTACT. All such meetings will be open to the public and,
if possible, notices of meetings will be posted at the locations listed
under ADDRESSES. A written summary of each meeting will be made a part
of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart federal regulation.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the federal and state governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that state
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 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
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed state regulatory program provision does not
constitute a major federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget 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
counterpart 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 counterpart federal regulation.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
[[Page 75897]]
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the state submittal
which is the subject of this rule is based upon counterpart federal
regulations for which an analysis was prepared and a determination made
that the federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 24, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-30870 Filed 12-4-00; 8:45 am]
BILLING CODE 4310-05-P