[Federal Register Volume 67, Number 21 (Thursday, January 31, 2002)]
[Proposed Rules]
[Pages 4689-4692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2415]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-095-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM) are announcing receipt of an amendment to the West Virginia
surface mining regulatory program (the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
West Virginia proposes revisions to the Code of State Regulations (CSR)
and to the Code of West Virginia (W. Va. Code) as contained in Enrolled
Senate Bill 689. The amendment is intended to revise the State's
Surface Mine Blasting Rule and to amend the W. Va. Code concerning
preblast survey requirements, site specific blasting design
requirements, and liability and civil penalties in the event of
property damage.
This document gives the times and locations that the West Virginia
program and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments until 4:30 p.m. (local time), on
March 4, 2002. If requested, we will hold a public hearing on the
amendment on February 25, 2002. We will accept requests to speak at the
hearing until 4:30 p.m. (local time), on February 15, 2002.
ADDRESSES: You may mail or hand-deliver 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, this amendment,
a listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the 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.
West Virginia Department of Environmental Protection, 10 McJunkin
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510. The
proposed amendment will be posted at the Division of Mining and
Reclamation's Internet web page: http://www.dep.state.wv.us/mr.
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. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 313 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
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the West Virginia Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its program includes, among other things, ``* * * a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915). You can also find later actions
concerning West Virginia's program and program amendments at 30 CFR
948.10, 948.12, 948.13, 948.15, and 948.16.
II. Description of the Proposed Amendment
By letter dated November 28, 2001 (Administrative Record Number WV-
1258), the WVDEP sent us a proposed amendment to its program under
SMCRA (30 U.S.C. 1201 et seq.). The proposed amendment consists of
changes to the W. Va. Code as contained in Enrolled Senate Bill 689
concerning blasting. The amendment also revises the provisions of the
Surface Mine Blasting Rule at CSR 199-1. The full text of the program
amendment is available for you to read at the locations listed above
under ADDRESSES. We are also making available for public review and
comment Engrossed Senate Bill 689 because it clearly shows, via
underline and strikethrough, all the statutory language that has been
added or deleted from the W. Va. Code as a result of Senate Bill 689.
Engrossed Senate Bill
[[Page 4690]]
689 is substantively identical to Enrolled Senate Bill 689. Senate Bill
689 amends preblast survey requirements, site specific blasting design
requirements, and provisions concerning liability and civil penalties
in the event of property damage. The statutory revisions in Senate Bill
689 are also intended to address the required program amendments
codified at 30 CFR 948.16(kkkk), (llll), and (mmmm).
By letter dated October 30, 2000 (Administrative Record Number WV-
1187), the WVDEP submitted an amendment that added to the State
regulations new Title 199, Series 1, entitled Surface Mine Blasting
Rule. The regulations consisted of new blasting provisions and blasting
provisions that were relocated or derived from previously approved West
Virginia blasting provisions. We announced receipt of the amendment on
December 5, 2000 (65 FR 75889) (Administrative Record Number WV-1190),
but we have not yet published our decision on the amendment. The
blasting rule submitted on October 30, 2000, and not yet approved by
us, is the blasting rule that is being modified by the amendments to
CSR 199-1 that we are announcing today. When we render our final
decision on the amendment that we are announcing today, we will combine
that decision with our decision on the blasting rule amendment that was
submitted to us on October 30, 2000.
The amendment that we are announcing today is identified below.
1. W. Va. Code 22-3 Surface Coal Mining and Reclamation Act
22-3-13a Preblast survey requirements
22-3-13a(a)(3) is new, and concerns preblast survey notification
for surface disturbance of underground mines.
22-3-13a(b) concerning operator notification of owners and
occupants of dwellings or structures is amended.
22-3-13a(f)(14) concerning contents of a preblast survey is
amended.
22-3-13a(g) concerning the submittal of preblast surveys to the
office of explosives and blasting is amended.
22-3-13a(j) concerning applicability of the section 22-3-13a is
amended.
22-3-22a Blasting restrictions; site specific blasting design
requirement
22-3-22a(e) concerning blasting within 1000 feet of a protected
structure is amended.
22-3-22a(f) concerning waiver of the blasting prohibition within
300 feet of a protected structure is amended.
22-3-30a Blasting requirements; liability and civil penalties in the
event of property damage
22-3-30a(a) concerning blasting being conducted in accordance with
the rules and laws established to regulate blasting is amended.
22-3-30a(b) concerning penalties where blasting was out of
compliance is amended.
22-3-30a(c) concerning violation of rules that are merely
administrative in nature is amended.
22-3-30a(e) concerning the penalties for production blasting
conducted in violation of 22-3-22a is amended.
22-3-30a(f) concerning assessment of penalties and liabilities by
the director is amended.
22-3-30a(h) concerning the applicability of section 22-3-30a is
amended.
2. CSR 199-1 Surface Mining Blasting Rule
CSR 199-1-2 Definitions
199-1-2.1. The definition of Active Blasting Experience is amended.
199-1-2.4. The definition of Arbitrator is amended.
199-1-2.8. The definition of Blast Site is amended.
199-1-2.21. The definition of Contiguous or Nearly Contiguous is
added.
199-1-2.26. The definition of Fly Rock is amended.
199-1-2.24. The definition of Loss Reserve is deleted.
199-1-2.37. The definition of Worked on a Drilling Crew is deleted.
199-1-2.39. The definition of Worked on a Blasting Crew is deleted.
CSR 199-1-3 Blasting
199-1-3.2. concerning blasting plans is amended at subdivisions
3.2.a., c., and d.
199-1-3.3. concerning public notice of blasting operations is
amended.
199-1-3.4. concerning surface blasting activities incident to
underground coal mining is amended.
199-1-3.5.c.1. concerning blast record, blasting log is amended.
199-1-3.6. concerning blasting procedures is amended.
199-1-3.7. concerning blasting control for other structures is
amended.
199-1-3.8. concerning certified blasting personnel is deleted, and
in its place new 199-1-3.8 concerning pre-blast surveys is added.
199-1-3.9. The title of this subsection is changed from Pre-blast
Survey, to Pre-blast Surveyors. Amendments are also made to this
subsection concerning the qualifications and compliance requirements of
pre-blast surveyors.
199-1-3.10.d. concerning pre-blast survey review, confidentiality,
is amended.
199-1-3.11. is added to provide that the director may prohibit
blasting or prescribe alternative blasting limits, on a case-by-case
basis, for the protection of property or the public.
CSR 199-1-4 Certification of Blasters
199-1-4.1.a., b., and c. concerning requirements, qualifications,
and application for certification are amended.
199-1-4.2. concerning training is amended.
199-1-4.3. concerning the examination for certification of
Examiner/Inspector and Certified Blaster is amended.
199-1-4.5. concerning conditions or practices prohibiting
certification of blasters is amended.
199-1-4.6. concerning re-certification requirements for certified
blasters is amended.
199-1-4.7. concerning presentation of certificate; transfer; and
delegation of authority is amended at subdivision 4.7.d.
199-1-4.8. concerning violations by a certified blaster is amended.
199-1-4.9. concerning penalties is amended.
199-1-4.10. concerning hearings and appeals is amended.
CSR 199-1-5 Blasting Damage Claim
199-1-5.2. concerning filing a claim is amended.
199-1-5.3. concerning the responsibilities of the claims
administrator is amended.
199-1-5.4. concerning the responsibilities of the claims adjuster
is amended.
CSR 199-1-6 Arbitration for Blasting Damage Claims
199-1-6.1. concerning listing of arbitrators is amended.
199-1-6.2. concerning selection of arbitrator is amended.
199-1-6.4. concerning demand for arbitration and timeframes for
arbitration is amended.
199-1-6.7. concerning presentations to the arbitrator is amended.
199-1-6.8. concerning arbitration award, fees, costs and expenses
is amended.
CSR 199-1-7 Explosive Material Fee
199-1-7.2. concerning remittance fee is amended.
199-1-7.3. concerning dedication of the fee is amended.
199-1-7.7. concerning noncompliance is amended.
[[Page 4691]]
CSR 199-1-8 Inspections
199-1-8. This section is new and concerns inspections of any
prospecting, active surface mining operation, or inactive surface
mining operation.
CSR 199-1-9 Surface Mine Board
199-1-9. This section is new and concerns open meetings, appeals,
and ex parte communications.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendation(s). We will not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Charleston Field Office may not be logged
in.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during our normal business
hours. We will not consider anonymous comments. If individual
respondents request confidentiality, we will honor their request to the
extent allowable by law. Individual respondents who wish to withhold
their names or address from public review, except for the city or town,
must state this prominently at the beginning of their 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, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:30 p.m. (local time),
on February 15, 2002. If you are disabled and need special
accommodations to attend a public hearing, contact the person listed
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and
time of the hearing with those persons requesting the hearing. If no
one requests an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of the
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
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 allowable 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 because 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 the Federal regulations at 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.
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. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse affect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
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 OMB under the Paperwork Reduction Act (44
U.S.C. 3507 et seq.).
[[Page 4692]]
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; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, geographic regions or Federal, State, or local government
agencies; and (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: January 9, 2002.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 02-2415 Filed 1-30-02; 8:45 am]
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