[Federal Register: December 10, 2003 (Volume 68, Number 237)]
[Rules and Regulations]
[Page 68724-68738]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de03-5]
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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 (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving, with one exception, amendments to the West
Virginia surface coal mining regulatory program (the West Virginia
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). The amendments we are approving concern blasting,
and amend the Code of State Regulations (CSR) by adding the Surface
Mining Blasting Rule, and amend the Code of West Virginia (W. Va. Code)
blasting provisions as contained in Enrolled Senate Bill 689. The
amendments are intended to improve the operational efficiency of the
West Virginia program, and to render the West Virginia program
consistent with SMCRA and the Federal regulations.
EFFECTIVE DATE: December 10, 2003.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, 1027 Virginia Street East, Charleston, West
Virginia 25301. Telephone: (304) 347-7158, Internet address: chfo@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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. Submission of the Amendment
By letter dated October 30, 2000, West Virginia sent us an
amendment to its program (Administrative Record Number WV-1187) under
SMCRA (30 U.S.C. 1201 et seq.). The amendment added to the West
Virginia regulations new Title 199, Series 1, entitled Surface Mining
Blasting Rule. These regulations consist of some new blasting
provisions and many blasting provisions that were relocated or derived
from previously-approved West Virginia blasting provisions. The
amendment is intended to revise the State's blasting rules to implement
statutory revisions concerning blasting that we approved, with certain
exceptions, on November 12, 1999 (64 FR 61507) (Administrative Record
Number WV-1143).
We announced receipt of the proposed amendment in the December 5,
2000, Federal Register (65 FR 75889) (Administrative Record Number WV-
1190). In the same document, we opened the public comment and provided
an opportunity for a public hearing or meeting on the amendment's
adequacy. We did not hold a hearing or a meeting because no one
requested one. The public comment period ended on January 4, 2001. We
received comments from one Federal agency and one professional
organization.
By letter dated November 28, 2001 (Administrative Record Number WV-
[[Page 68725]]
1258), West Virginia sent us another proposed amendment to its blasting
provisions. The proposed amendment consists of several changes to
blasting provisions in the W. Va. Code as contained in Enrolled Senate
Bill 689, and changes to the Surface Mining Blasting Rule at CSR 199-1.
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. We note that the State
submitted two versions of CSR 199-1. One version contained underlines
of most of the proposed additions and strikethroughs of most of the
language proposed for deletion. The second version of CSR 199-1
submitted by the State was a ``clean'' version with no underlines or
strikethroughs of the proposed changes. It was this ``clean'' version,
with sixteen additional revisions, that was adopted by the State
Legislature. We announced receipt of the proposed amendment that the
State sent us on November 28, 2001, including both versions of CSR 199-
1, in the January 31, 2002, Federal Register (67 FR 4689)
(Administrative Record Number WV-1267). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period ended on March 4, 2002. We did not hold a hearing
or meeting because no one requested one. We received comments from four
Federal agencies.
The statutory revisions in Senate Bill 689 were also intended to
address the required program amendments codified at 30 CFR 948.16(kkkk)
and (llll) concerning preblast survey requirements, and (mmmm)
concerning blasting requirements. To expedite our review of the State's
responses to those required amendments, we separated those proposed
changes from the submittal and published our approval of those
provisions (W.Va. Code sections 22-3-13a(g) and 13a(j)(2), and 22-3-
30a(a)) in the May 1, 2002, Federal Register (67 FR 21904, 21920)
(Administrative Record Number WV-1300).
III. OSM's Findings
Following are findings we made concerning the amendments under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendments with one exception noted below. Any revisions
that we do not specifically discuss below concern nonsubstantive
wording or editorial changes, or recodification changes resulting from
these amendments and are approved here without discussion.
A. Revisions to the West Virginia Program That Are Substantively
Identical to the Corresponding Provisions of SMCRA and the Federal
Regulations, or That Were Previously Approved by OSM and Merely Copied
to CSR 199-1, and Do Not Require Specific Findings
Code of West Virginia (W. Va. Code)
22-3-13a(a)(3) Preblast survey requirements (30 CFR 817.62(a))
Code of State Regulations (CSR)
199-1-1 General (30 CFR 816/817.61(a) and 850.1)
199-1-2.9 Definition of ``blaster,'' in conjunction with CSR 38-2-3.1
(30 CFR 850.5)
199-1-2.25 Definition of ``explosives,'' previously approved (30 CFR
816/817.61)
199-1-3.1 Blasting; General requirements (30 CFR 816/817.61(a) and
(c)(1))
199-1-3.5 Blast record; previously approved (30 CFR 816/817.68)
199-1-3.6.a Blasting procedures (30 CFR 816/817.64(a),(2),(3); 816/
817.67(a))
199-1-3.6.b Safety precautions (30 CFR 816/817.66(b),(c); 816/
817.61(c)(3))
199-1-3.6.c Airblast limits (30 CFR 816/817.67(b))
199-1-3.6.d Flyrock (30 CFR 816/817.67(c))
199-1-3.6.e Access to blast area (30 CFR 816/817.66(c))
199-1-3.6.f Blast design (30 CFR 816/817.61(d))
199-1-3.6.g Underground mine (30 CFR 780.13(c))
199-1-3.6.h Scaled distance formulas (30 CFR 816/817.67(d)(2)(i),
(d)(3))
199-1-3.6.j Seismograph recording; previously approved (30 CFR 816/
817.67(d)(6))
199-1-3.6.k Maximum allowable ground vibration; previously approved (30
CFR 816/817.67(d)(5))
199-1-3.6.l Maximum airblast and ground vibration standards; previously
approved (30 CFR 816/817.67(e))
199-1-3.7.b Blasting control for other structures; previously approved
(30 CFR 816/817.67(d)(1))
199-1-4.11 Blasting crew; previously approved (30 CFR 850.13(a)(2))
Because these State provisions have been approved previously or
contain language that is substantively identical to the corresponding
Federal requirements, we find that they are no less effective than
those corresponding Federal requirements and can be approved without
further discussion.
B. Revisions to West Virginia's Code and Regulations That Require
Specific Findings
Code of West Virginia (W. Va. Code)
1. 22-3-13a(g) Preblast survey requirements. This provision
provides that pre-blast surveys shall be submitted to the Office of
Explosives and Blasting (Office) at least 15 days prior to the start of
any ``production blasting.'' The provision is amended by adding the
following sentence: ``Provided, That once all required surveys have
been reviewed and accepted by the Office of Explosives and Blasting,
blasting may commence sooner than fifteen days after submittal.'' We
find that the amendment does not render the provision less effective
than the Federal regulations at 30 CFR 816/817.62(d), which require
that such surveys be promptly submitted to the regulatory authority,
and can be approved.
We note that in our November 12, 1999, approval of this provision
(64 FR 61507, 61510-61511) we approved W. Va. Code 22-3-13a(g) with the
understanding that, as explained by the West Virginia Department of
Environmental Protection (WVDEP) at that time, 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.'' The State's
submittal of the Surface Mining Blasting Rule at CSR 199-1-3.8.a,
concerning pre-blast survey, provides that surveys, waivers or
affidavits for each dwelling or structure within the pre-blast survey
area shall be completed and submitted to the Office of Explosives and
Blasting at least 15 days before any blasting may occur. The Federal
regulations at 30 CFR 816/817.62(e) provide that surveys requested more
than 10 days before the planned initiation of blasting shall be
completed by the operator before the initiation of blasting. In Finding
B.10 below, on CSR 199-1-3.8, we conclude that the State's 15-day
requirement does not render the State provision less effective than 30
CFR 816/817.62(e). Likewise, W.Va. Code 22-3-13a(g) does not conflict
with the requirement that surveys requested more than 10 days before
the planned initiation of blasting be completed by the operator before
the initiation of blasting. Therefore, we find that the provisions are
not inconsistent with the Federal preblast survey requirements, and we
are approving the amendments to W. Va. Code 22-3-13a(g).
[[Page 68726]]
2. 22-3-22a(e) Blasting restrictions. This provision concerns
blasting within 1,000 feet of a protected structure. This subsection
was amended by adding the words ``identified,'' and ``notification
area,'' which are intended to clarify the intent of the last sentence
of this provision. These changes were made in response to our
recommendations when we initially approved these blasting provisions on
November 12, 1999 (64 FR 61507, 61511). As amended, the sentence
provides that in the development of a site-specific blasting plan,
consideration shall be given, but not limited to ``* * * the concerns
of the owner or occupant living in the protected structures identified
in the blasting schedule notification area.'' We find that the
amendment does not render the provision inconsistent with SMCRA section
515(b)(15)(C), which concerns the prevention of injury to persons and
damage to property, and can be approved. We note, however, that in our
November 12, 1999, approval of this provision (64 FR at 61511) we
approved W. Va. Code 22-3-22a(e) only to the extent that all blast
designs, site specific and generic, as explained by WVDEP at that time,
comply with the blast design requirements at CSR 38-2-6.5.g.3. These
provisions are now located at CSR 199-1-3.6.f.3. Therefore, W.Va. Code
22-3-22a(e) remains approved with the understanding that all blast
designs, site specific and generic, comply with the blast design
requirements at CSR 199-1-3.6.f.3.
3. 22-3-22a(f) Waiver of the blasting prohibitions. This subsection
was amended by deleting the words ``or the site specific restriction
within one thousand feet in writing'' in two locations. The effect of
this deletion means that a waiver of the site-specific blast design
cannot be obtained within ``one thousand feet'' of a protected
structure. Subsection 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. Deletion of the
words ``or the site specific restriction within one thousand feet in
writing'' from the waiver provisions of subsection 22-3-22a(f) means
that although an owner or occupant may waive the blasting prohibition
within 300 feet of a protected structure, the permittee must still
provide a site-specific blast design to the Office for all blasting
within 1,000 feet of a protected structure. We find that the amendments
to this provision do not render the West Virginia program less
effective than the Federal regulations at 30 CFR 816/817.61(d) and can
be approved.
4. 22-3-30a(b) Blasting requirements. This subsection requires
penalties to be imposed for each permit area or contiguous permit areas
where blasting was not in compliance with the regulations governing
blasting parameters and resulted in property damage to a protected
structure. The subsection was amended by adding language to the first
sentence that establishes the limits to which the penalties at
subsection 22-3-30a(b) will apply. The words ``at a surface coal mine
operation as defined by the provisions of subdivision (2), subsection
(a), section thirteen-a of this article'' were added following the word
``blast'' and before the word ``was.'' In effect, the penalties
identified at subsection 22-3-30a(b) apply to surface coal mining
operations, except those that are 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. This revision is
intended to ensure that coal operators with relatively small mining
operations will not be subject to the penalties authorized by
subsection 22-3-30a(b) (see Administrative Record Number WV-1376).
By its terms, 22-3-30a(b) pertains only to blasting violations that
result in property damage to protected structures. These punitive
penalties are in addition to the civil penalties that will be assessed
for blasting violations resulting in property damage under CSR 199-1-
8.6, 8.7, and 8.8 (Administrative Record Number WV-1376). These
penalties will not apply to blasting violations caused by small surface
mining operations as described in W. Va. Code 22-3-13a(1) or to coal
extraction by underground coal mining methods. Thus, the supplemental
penalties imposed by the State for these blasting violations are not
inconsistent with the Federal penalty requirements at section 518 of
SMCRA. Furthermore, all blasting violations, regardless of whether they
cause damage to protected structures, including damage to water wells,
will be subject to the civil penalty assessment requirements set forth
in W. Va. Code 22-3-17 and CSR 199-1-8.6, 8.7, and 8.8 (see 64 FR at
61513-61514; November 12, 1999). Therefore, we find that the new
language does not render the West Virginia program inconsistent with
SMCRA at section 518, or the Federal regulations at 30 CFR part 845,
and can be approved.
5. 22-3-30a(c) Prohibition against imposing penalties for
violations that are merely administrative in nature. This provision was
amended by adding language to clarify what penalties may not be imposed
on an operator for any violation identified in 22-3-30a(b) that is
merely administrative in nature. As amended, this provision provides as
follows:
(c) Notwithstanding the provisions of subsections (a) and (b) of
this section, the division [Department] of environmental protection
may not impose penalties, as provided for in subsection (b) of this
section, on an operator for the violation of any rule identified in
subsection (b) of this section that is merely administrative in
nature.
We note that W. Va. Code 22-3-30a concerns liability and requires
the imposition of punitive penalties in the event of property damage.
As discussed above, all blasting related violations will be assessed
civil penalties in accordance with W.Va. Code 22-3-17 and CSR 199-1-
8.6, 8.7, and 8.8. This would also include blasting violations
resulting in property damage that are administrative in nature.
Therefore, we find that this provision is not inconsistent with SMCRA
section 518(a) concerning penalties, and can be approved.
6. 22-3-30a(e) Blasting within 300 feet of a protected structure.
This provision has been amended by adding language concerning site-
specific blast designs. As amended, this subsection provides that where
an inspection establishes that production blasting is done within 300
feet of a protected structure, without an approved site-specific blast
design or not in accordance with an approved site-specific blast design
for production blasting within 1,000 feet of a protected structure or
within 100 feet of a cemetery, the monetary penalties and revocation,
as set out in W. Va. Code 22-3-30a(b), apply. This means that
production blasting that is done within 300 feet of a protected
structure, even if it was done in accordance with a waiver or a site-
specific blast design, and causes property damage will be assessed a
supplemental penalty in accordance with W. Va. Code 22-3-30a(b). In
addition, all blasting related violations that cause or do not cause
property damage to protected structures will be subject to the civil
penalty requirements of W. Va. Code 22-3-17 and CSR 199-1-8.6, 8.7, and
8.8. Therefore, we find that subsection 22-3-30a(e), as amended, is no
less stringent than SMCRA section 518 and not inconsistent with 30 CFR
part 845, and can be approved.
7. 22-3-30a(f) Penalties assessed and collected. This provision is
amended by adding a citation to clarify that the penalties and
liabilities that must be assessed are those authorized by subsection
22-3-30a(b). As
[[Page 68727]]
amended, subsection 22-3-30a(f) provides that all penalties and
liabilities as set forth in subsection 22-3-30a(b) shall be assessed by
the Secretary of the WVDEP and deposited with the treasurer of the
State of West Virginia in the ``general school fund.'' In our previous
finding concerning this provision (November 12, 1999; 64 FR at 61514),
we did not approve subsection 22-3-30a(f) because of the requirement
that the fees collected would be deposited in the ``general school
fund,'' rather than the ``special reclamation fund.''
The approved State program at W. Va. Code 22-3-17(d)(2) currently
requires that civil penalties be deposited into the State's alternative
bonding system, known as the ``special reclamation fund.'' Under 22-3-
30a(f), penalties collected from blasting violations that resulted in
property damage to protected structures will be deposited into the
general school fund. We note that W. Va. Code 22-3-30a(f) only concerns
punitive penalty assessments relating to property damage violations due
to blasting that supplement the State's existing civil penalty
assessments at CSR 38-2-20. All blasting related violations will still
be assessed under CSR 199-1-8.6, 8.7, and 8.8 and the monies collected
will be deposited in the Special Reclamation Fund. Therefore, the
Special Reclamation Fund will continue to receive funds from civil
penalty assessments under CSR 199-1-8.6, 8.7, and 8.8, while the
general school fund will receive funds from the supplemental penalties
assessed under 22-3-30a(b) and (f). Given that existing funds will not
be diverted from the Special Reclamation Fund, we find that this
provision does not render the West Virginia program inconsistent with
SMCRA section 518 concerning penalties and section 509(c) concerning
alternative bonding systems, and can be approved.
8. 22-3-30a(h) Applicability. This provision is amended to clarify
that the provisions of section 22-3-30a do not apply to the extraction
of minerals by underground mining methods, provided that nothing
contained in section 22-3-30a may be construed to exempt any coal
mining operation from the general performance standards as contained in
W. Va. Code 22-3-13 and any rules promulgated pursuant thereto.
Blasting associated with surface impacts and surface operations
incidental to underground coal mining would be subject to the State's
blasting requirements, including the supplemental and civil penalty
assessment provisions at 22-3-30a(b), subject to the acreage
limitations of that same subsection, and CSR 199-1-8.6, 8.7, and 8.8.
We find that as amended, this provision is consistent with SMCRA
section 518 and 30 CFR part 845, pertaining to penalty assessments, and
can be approved.
Code of State Regulations (CSR)
9. CSR 199-1-2 Definitions. CSR 199-1-2 contains definitions, which
are discussed next. Except for the definitions at CSR 199-1-2.15, 2.26,
2.30, 2.32, 2.36, and 2.38, the terms that are defined herein have no
specific Federal counterparts.
199-1-2.1 Definition of ``active blasting experience.'' Active
blasting experience means experience gained by a person who has worked
on a blasting crew, or supervised a blasting crew. Two hundred forty
(240) 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 mined,
and the surface areas of underground coal mines. Experience should be
related to surface mine blasting; Provided, that other related blasting
experience (quarrying operations, etc.) may be accepted by the
Secretary on a case-by-case basis as qualifying experience. We find
that this definition is not inconsistent with SMCRA section
515(b)(15)(D) or the Federal regulations at 30 CFR part 850 and can be
approved.
199-1-2.2 defines ``air blast'' to mean an airborne shock wave
resulting from the detonation of explosives. We find that this
definition is not inconsistent with SMCRA section 515(b)(15) or the
Federal regulations at 30 CFR 816/817.67(b) and can be approved.
199-1-2.3 defines ``adjuster'' to mean an outside party that is
assigned to investigate, document, evaluate and make recommendations on
a reported loss. We find that this definition is not inconsistent with
SMCRA or the Federal regulations and can be approved.
199-1-2.4 defines ``arbitrator'' as an impartial individual
appointed by the Office of Explosives and Blasting with the authority
to settle the disputes between property owners and mine operators as
they relate to allegations of blasting damage. We find that this
definition is not inconsistent with SMCRA or the Federal regulations
and can be approved.
199-1-2.5 defines ``arbitration'' as 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. We find
that this definition is not inconsistent with SMCRA or the Federal
regulations and can be approved.
199-1-2.6 Definition of ``blast.'' This provision was previously
approved and was amended by adding the words ``planned or unplanned.''
As amended, ``blast'' is defined to mean any planned or unplanned
detonation(s) of an explosive(s) being initiated simultaneously by a
single source. We find that the definition is not inconsistent with the
Federal regulations at 30 CFR 816/817.61 concerning the use of
explosives and can be approved.
199-1-2.7 defines ``blast area'' to mean the area surrounding a
blast site where flyrock could occur and which should be guarded
against entry during the shot. We find that this definition is not
inconsistent with SMCRA section 515(b)(15) or the Federal regulations
at 30 CFR 816/817.66 and can be approved.
199-1-2.8 defines ``blast site'' to mean the area where explosive
material is handled during loading including the perimeter formed by
the loaded blast holes, and 50 feet in all directions from the collar
of the outermost borehole or protected by a physical barrier to prevent
access to the loaded blast holes. We find that this definition is not
inconsistent with SMCRA section 515(b)(15) or the Federal regulations
at 30 CFR 816/817.61 and can be approved.
199-1-2.10 defines ``blasting complaint'' to mean a communication
to the Office from a member of the general public expressing concern,
aggravation, fear or indications of blasting damage. A blasting
complaint may or may not initially indicate damage. We find that this
definition is not inconsistent with SMCRA or the Federal regulations
and can be approved.
199-1-2.11 defines ``blasting claim'' to mean an allegation by the
property owner of blasting related damage to property. We find that
this definition is not inconsistent with SMCRA or the Federal
regulations and can be approved.
199-1-2.12 defines ``blasting log'' as a written record containing
all pertinent information about a specific blast as may be required by
law or rule. We find that this definition is not inconsistent with
SMCRA section 515(b)(15) or the Federal regulations at 30 CFR 816/
817.68 and can be approved.
199-1-2.13 defines ``blasting vibration'' to mean the temporary
ground movement produced by a blast that can vary in both intensity and
duration. We find that this definition is
[[Page 68728]]
not inconsistent with SMCRA section 515(b)(15) or the Federal
regulations at 30 CFR 816/817.67 and can be approved.
199-1-2.14 defines ``caused by blasting'' to mean 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. We find that this definition is not inconsistent with SMCRA
or the Federal regulations and can be approved.
199-1-2.15 defines ``certified blaster'' to mean a person who has
taken and passed the examination described in CSR 199-1, and has been
issued a certification card by the Office. We find that this definition
is not inconsistent with SMCRA section 515(b)(15) or the Federal
regulations at 30 CFR 816/817.61(c) and 850.5 and can be approved.
199-1-2.16 defines ``certified examiner/inspector'' to mean 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 CSR 199-1. We find
that this definition is not inconsistent with SMCRA section 515(b)(15)
or the Federal regulations and can be approved.
199-1-2.17 defines ``chief'' to mean the Chief of the Office of
Explosives and Blasting. We find that this definition is not
inconsistent with SMCRA or the Federal regulations and can be approved.
199-1-2.18 defines ``claimant'' to mean the property owner who
makes a blasting damage claim. We find that this definition is not
inconsistent with SMCRA or the Federal regulations and can be approved.
199-1-2.19 defines ``claims administrator'' to mean the individual,
firm or organization that manages the blasting damage claims program
for the Office of Explosives and Blasting. We find that this definition
is not inconsistent with SMCRA or the Federal regulations and can be
approved.
199-1-2.20 defines ``construction blasting'' to mean blasting to
develop haulroads, mine access roads, coal preparation plants, drainage
structures, or underground coal mine sites and shall not include
production blasting. We find that this definition is not inconsistent
with SMCRA section 515(b)(15) or the Federal regulations at 30 CFR 816/
817.61 and can be approved.
199-1-2.21 defines ``contiguous or nearly contiguous'' to mean
surface mining operations that share a permit boundary or are within
100 feet of each other at the nearest point. We find that this
definition is not inconsistent with SMCRA or the Federal regulations
and can be approved.
199-1-2.22 defines ``detonation'' to mean a chemical reaction
resulting in a rapid release of energy. We find that this definition is
not inconsistent with SMCRA or the Federal regulations and can be
approved.
199-1-2.23 defines ``Secretary'' to mean the Secretary of the
Department of Environmental Protection or the Secretary's authorized
agent. We find this definition is not inconsistent with SMCRA or the
Federal regulations and can be approved.
199-1-2.24 defines ``Department'' to mean the Department of
Environmental Protection. We find this definition is not inconsistent
with SMCRA or the Federal regulations and can be approved.
199-1-2.26 defines ``fly rock'' to mean rock and/or earth propelled
from the blast site through the air or along the ground by the force of
the detonated explosives. We find that this definition is consistent
with the Federal regulations at 30 CFR 816/817.67(c) regarding flyrock
and can be approved.
199-1-2.27 defines ``loss value'' to mean the amount of money
indicated in a given loss to include costs of repairs or replacement
costs. We find that this definition is not inconsistent with SMCRA or
the Federal regulations and can be approved.
199-1-2.28 defines ``not caused by blasting'' to mean 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. We find that this definition is not
inconsistent with SMCRA or the Federal regulations and can be approved.
199-1-2.29 defines ``office'' to mean the Office of Explosives and
Blasting. We find that this definition is not inconsistent with SMCRA
or the Federal regulations and can be approved.
199-1-2.30 Definition of ``operator.'' Operator means any person
who is granted or who should obtain a permit to engage in any activity
covered by W. Va. Code 22. Under W. Va. Code 22-3-3(o), ``operator'' is
defined as follows:
(o) ``Operator'' means any person who is granted or who should
obtain a permit to engage in any activity covered by this article
and any rule promulgated under this article and includes any person
who engages in surface-mining or surface-mining and reclamation
operations, or both. The term shall also be construed in a manner
consistent with the federal program pursuant to the federal Surface-
Mining Control and Reclamation Act of 1977, as amended.
The Federal definition at 30 CFR 701.5 defines ``operator'' as any
person engaged in coal mining who removes or intends to remove more
than 250 tons of coal from the earth or from coal refuse piles by
mining within 12 consecutive calendar months in any one location. In
accordance with the State's statutory definition of ``operator,'' the
State's regulatory definition of ``operator'' must be construed in a
manner consistent with the Federal definition of ``operator.'' We find,
therefore, that the definition of ``operator'' at CSR 199-1-2.30, like
W. Va. Code 22-3-3(o), is consistent with the Federal definition of
``operator'' at 30 CFR 701.5 and can be approved.
199-1-2.31 defines ``possible caused by blasting'' to mean 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. We find that this definition is not inconsistent with
SMCRA or the Federal regulations and can be approved.
199-1-2.32 defines ``pre-blast survey'' to mean 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. While the proposed definition does not
define near, we note that under W. Va. Code 22-3-13a(a), pre-blast
surveys will be conducted for man-made dwellings or structures within
\1/2\ mile of the permitted area or under specified circumstances \7/
10\ mile of the proposed blasting site. We find that this definition,
when read together with the statute, is consistent with the Federal
regulations at 30 CFR 816/817.62 and can be approved.
199-1-2.33 defines ``probably caused by blasting'' to mean 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).
We find that this definition is not inconsistent with SMCRA or the
Federal regulations and can be approved.
199-1-2.34 defines ``probably not caused by blasting'' to mean that
there is substantial, but not conclusive information that the alleged
damage was caused by something other than blasting. We find that this
definition is not inconsistent with SMCRA or the Federal regulations
and can be approved.
199-1-2.35 defines ``production blasting'' to mean blasting that
removes the overburden to expose underlying
[[Page 68729]]
coal seams and shall not include construction blasting. We find that
this definition is not inconsistent with SMCRA or the Federal
regulations and can be approved.
199-1-2.36 defines ``protected structure'' to mean 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 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 supply. This
definition is used in the provisions at CSR 199-1-3.6 to provide
protection from blasting damage for such protected structures. CSR 199-
1-3.7 provides for the protection of structures in the vicinity of the
blasting area which are not defined as protected structures. We find
that this definition is not inconsistent with SMCRA or the Federal
blasting regulations at 30 CFR 816/817.67 and can be approved.
199-1-2.37 defines ``supervised a blasting crew'' to mean that a
person assumed responsibility for the conduct of a blasting crew(s) and
that the crew(s) reported directly to that person. We find that this
definition is not inconsistent with SMCRA or the Federal regulations
and can be approved.
199-1-2.38 defines ``surface mine and surface area of underground
mines'' to mean:
all areas except underground workings surface mined or being
surfaced 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 22-3-1 et seq., and rules promulgated
under that article.
Although it lacks commas setting apart the phrase, it is our
understanding that this definition intends to exclude ``underground
workings'' from the definition of ``surface mine and surface area of
underground mines.'' Our finding that this definition is not
inconsistent with SMCRA or the Federal definition of ``surface coal
mining operations'' at 30 CFR 700.5 and can be approved is based upon
that understanding of its intended meaning.
199-1-2.39 defines ``worked on a blasting crew'' to mean a person
has first-hand experience in storing, handling, transporting, and using
explosives, and has participated in the loading, connecting, and
preparation of blast holes and has participated in detonating blasts.
We find that this definition is not inconsistent with SMCRA or the
Federal regulations and can be approved.
10. CSR 199-1-3 Blasting.
199-1-3.2.a Blasting plans. This subdivision is nearly identical to
CSR 38-2-6.2 with the following changes. The first sentence was
deleted, which required that each application for a permit, where
blasting is anticipated, shall include a blasting plan. The deleted
sentence was replaced by the following sentence: ``As required by
statute, all surface mining operations that propose blasting shall
include a blasting plan.'' The W. Va. Code 22-3-9(e) provides that each
applicant for a surface-mining permit shall submit to the director as
part of the permit application a blasting plan where explosives are to
be used, which shall outline the procedures and standards by which the
operator will meet the provisions of the blasting performance
standards. We find that this new sentence is substantively identical to
the Federal requirement at 30 CFR 780.13(a) concerning blasting plan,
and that it can be approved.
Proposed 199-1-3.2.a was amended by deleting the phrase ``and the
terms and conditions of the permit.'' We find that the deletion of this
phrase does not render the provision less effective than the
counterpart Federal provision at 30 CFR 780.13(a) and can be approved.
Proposed 199-1-3.2.a was amended to provide that the blasting plan
would include methods to be applied in preventing, rather than
controlling, the adverse effects of blasting. It was also amended by
adding language that requires that blasting plans shall delineate the
type of explosives and detonation equipment, the size, the timing and
frequency of blasts, and the effect of geologic and topographic
conditions on specific blasts. The new language also provides that
blasting plans shall be designed to prevent injury to persons, prevent
damage to public and private property outside the permit area, prevent
adverse impacts on any underground mine, prevent change in the course,
channel or availability of ground or surface water outside the permit
area, and reduce dust outside the permit area. We find that this new
language, which provides for the prevention of the adverse effects of
blasting, is substantively identical to the requirements in SMCRA at
section 515(b)(15)(C) with one exception. There is no Federal
counterpart to the new provision at 199-1-3.2.a.5, which requires that
blasting shall be designed to reduce dust outside the permit area. We
find, however, that the provision is not inconsistent with the Federal
requirements. Therefore, we find that the amendments to CSR 199-1-3.2.a
can be approved.
199-1-3.2.b Review of blasting plans. This provision requires the
Office of Explosives and Blasting to review blasting plans for
administrative and technical completeness. There is no direct Federal
counterpart to this provision. However, we find that the provision is
not inconsistent with SMCRA section 515(b)(15) and the Federal
regulations at 30 CFR 777.15 and 780.13(a) concerning completeness of a
permit application and the blasting plan and can be approved.
199-1-3.2.c Inspection and monitoring procedure. This provision
provides that each blasting plan shall contain an inspection and
monitoring procedure to insure that blasting operations are conducted
to eliminate, to the maximum extent technically feasible, adverse
impacts to the surrounding environment and surrounding occupied
dwellings. In addition, this subdivision provides that for all surface
coal extraction operations that will include production blasting, the
monitoring procedure shall include provisions for monitoring ground
vibrations and air blast. This mandatory monitoring of production
blasting is no less effective than the Federal requirements at 30 CFR
780.13(b), which requires each permit application to include a
description of any system to be used to monitor compliance with
blasting standards. We find that subdivision 3.2.c is consistent with
the Federal requirements at 30 CFR 780.13(b) and can be approved.
199-1-3.2.d Review of blasting plans where a blasting related
notice of violation (NOV) or cessation order (CO) have been issued.
This provision requires that where a blasting related NOV or 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. There is no
direct Federal counterpart to this provision. However, we find that
subdivision 3.2.d. is consistent with the Federal regulations at 30 CFR
816/817.61(d)(5), which states that the regulatory authority may
require changes to the blast design, and can be approved.
199-1-3.3(a) Public notice of blasting operations. This provision
is copied from CSR 38-2-6.3 and amended by adding a requirement that
copies of the blasting schedule must also be distributed by Certified
Mail to residents within seven tenths of a mile of the blasting sites
for all surface coal
[[Page 68730]]
extraction permits larger than those defined in accordance with W. Va.
Code 22-3-13a(a)(1). The State also revised an existing sentence
providing that, unless blasting operations will occur on drainage
structures and roads, [such] structures are exempt from measuring the
notification area. In addition, the State added a requirement that a
list of residents, utilities, and owners of man-made structures within
the notification area shall be made part of the blasting plan, and
shall be updated on an annual basis. Finally, the provision now
requires publication and redistribution of the blasting schedule in a
newspaper of general circulation in all the counties of the proposed
[permit] area, rather than just in the county of the proposed permit
area. We find that as amended, CSR 199-1-3.3(a) is consistent with and
no less effective than the Federal regulations at 30 CFR 816.64(b) and
can be approved.
199-1-3.4 Public notice of surface blasting incident to underground
coal mining. This provision, which is nearly identical to the provision
at CSR 38-2-6.3.b, is amended by adding the words ``and workplaces''
immediately following the word ``residents'' and before the words ``or
owners.'' The effect of this amendment is to require that
``workplaces'' also receive the written notification of the proposed
times and locations of the surface blasting operations incidental to
underground coal mining operations. We find that the addition of the
words ``and workplaces'' does not render the provision less effective
than the Federal regulations at 30 CFR 817.64(a) and 816.79 and can be
approved.
199-1-3.6.i Ground vibration. This provision was copied from CSR
38-2-6.5.j and amended by adding language to provide that seismographs
used to demonstrate compliance with this subdivision must be shake-
table calibrated annually. Also, the annual calibration certificate
shall be kept filed with the blasting logs and seismograph records and
made available for review as required by subdivision CSR 199-1-3.5.a.
While there is no Federal counterpart to the new language, we find that
it is not inconsistent with the Federal regulations concerning ground
vibration at 30 CFR 816/817.67(d) and that CSR 199-1-3.6.i can be
approved.
199-1-3.7.a Blasting control for other structures. This provision
was copied from CSR 38-2-6.6.a, and amended by adding language to
provide that if alternative maximum allowable limits on vibration are
not included in the approved blast plan, the operator shall comply with
the limits specified in paragraph 3.6.c.1, and subdivisions 3.6.h and
3.6.i. While there is no direct Federal counterpart to this provision,
we find that it is consistent with the intent of 30 CFR 816/817.67(b)
and (d) and can be approved.
199-1-3.8 Pre-blast survey. This provision is copied from CSR 38-2-
6.8.a.2, and amended by adding the following language at the end of the
provision:
The pre-blast survey shall include a description of the water
source and water delivery system. When the water supply is a well,
the pre-blast survey shall include written documentation about the
type of well, and where available, the well log and information
about the depth, age, depth and type of casing, the static water
level, flow and recharge data, the pump capacity, the name of the
drilling contractor, and the source or sources of the information.
While the proposed language has no direct Federal counterpart, we
find that it is consistent with and no less effective than the Federal
regulations at 30 CFR 816/817.62(c) and can be approved.
We must note that the State has not included specific procedures in
its rules requiring operators, at least 30 days prior to the beginning
of blasting operations, to notify residents or owners of structures in
writing on how to request a preblast survey. However, this specific
requirement is contained in W.Va. Code 22-3-13a(a), and it is our
understanding that W.Va. Code 22-3-13a(a) continues to apply.
In addition, subsection 3.8 does not specifically require that
copies of the preblast survey be promptly provided the person
requesting the survey and the Secretary, and that the report be signed
by the person conducting the preblast survey. However, W. Va. Code 22-
3-13a(f)(18) specifically requires that the preblast survey include the
signature of the person performing the survey. In addition, W. Va. Code
22-3-13a(g) provides that pre-blast surveys must be submitted to the
Office of Explosives and Blasting, and that the Office shall provide a
copy of the survey to the owner or occupant. It is our understanding
that both W. Va. Code 22-3-13a(f)(18) and 22-3-13a(g) continue to
apply. Our approval of subsection 3.8 is based upon those
understandings.
199-1-3.8.a Pre-blast survey. This provision provides that surveys,
waivers or affidavits for each dwelling or structure within the pre-
blast survey area shall be completed and submitted to the Office of
Explosives and Blasting at least 15 days before any blasting may occur,
provided, that once all pre-blast surveys have been accepted by the
Office, blasting may commence sooner than 15 days from submittal. There
is no direct Federal counterpart to this provision. However, the
Federal regulations at 30 CFR 816/817.62(e) provide that surveys
requested more than 10 days before the planned initiation of blasting
shall be completed by the operator before the initiation of blasting.
While subdivision 199-1-3.8.a does not contain a specific counterpart
to this language at 30 CFR 816/817.62(e), we find that CSR 199-1-3.8.a
does not conflict with the Federal requirement. That is, the State
provision in no way prohibits surveys being requested more than 10 days
before the planned initiation of blasting. Furthermore, the State's
existing regulations at CSR 38-2-6.8.a.4 provide that pre-blast surveys
requested more than 10 days before the planned initiation of blasting
must be completed before blasting begins. This ensures that any
preblast survey that may be requested after the 15-day submission
period will be completed before blasting commences. Therefore, we are
approving this provision because, when read in conjunction with CSR 38-
2-6.8.a.4, it is not inconsistent with 30 CFR 816/817.62(e).
199-1-3.8.a.1 Disagreement with pre-blast survey results. This
provision provides that any person who disagrees with the results of
the survey may submit a detailed description of the specific areas of
disagreement, to the Office of Explosives and Blasting. The description
of the areas of disagreement will be made a part of the pre-blast
survey on file at the Office. We find that this new provision is no
less effective than the Federal regulations at 30 CFR 816/817.62(d) and
can be approved.
199-1-3.8.a.2 Structures/renovations after an initial pre-blast
survey. This provision provides that if a structure is added to or
renovated subsequent to a survey, a survey of such additions and/or
renovations shall be performed upon request of the resident or owner.
If a pre-blast survey was waived by the owner and was within the
requisite area and the property was sold, the new owner may request a
pre-blast survey from the operator. An owner within the requisite area
may request, from the operator, a pre-blast survey on structures
constructed after the original pre-blast survey. We find that this new
provision is no less effective than the Federal regulations at 30 CFR
816/817.62(b) and can be approved.
199-1-3.9 Pre-blast surveyors. These new provisions set forth the
qualifications for individuals and firms performing pre-blast surveys.
There are no Federal counterparts to these provisions. We find,
however, that these
[[Page 68731]]
provisions are not inconsistent with SMCRA section 515(b)(15)
concerning the use of explosives, and the Federal regulations at 30 CFR
816/817.62 concerning pre-blasting surveys and can be approved.
199-1-3.10 Pre-blast survey review. This provision sets forth the
requirements for submittal of pre-blast surveys to the Office of
Explosives and Blasting and review of such surveys by the Office. The
Federal regulations at 30 CFR 816/817.62, concerning pre-blasting
survey, provide for pre-blast surveys, but the Federal regulations do
not contain submittal and review procedures for pre-blast surveys.
SMCRA at section 505(b) provides that any State statutory or regulatory
provision which is in effect or may become effective after the
enactment of SMCRA and that provides for control and regulation of
surface mining and reclamation operations for which no provision is
contained in SMCRA shall not be construed to be inconsistent with
SMCRA. We find that this provision is not inconsistent with the Federal
regulations at 30 CFR 816/817.62 concerning pre-blasting surveys and
can be approved, to the extent described as follows:
Subdivision 3.10.b provides that the operator or his designee shall
correct deficiencies within 30 days from receipt of notice of
deficiencies. The Federal regulations at 30 CFR 816/817.62(e) provide
that any surveys requested more than 10 days before the planned
initiation of blasting shall be completed by the operator before the
initiation of blasting. The approved West Virginia program at CSR 38-2-
6.8.a.4, concerning pre-blast survey, contains a counterpart to the
Federal 10-day requirement at 30 CFR 816/817.62(e). Therefore, we are
approving the provision at subdivision 3.10.b, because when read in
conjunction with CSR 38-2-6.8.a.4, it is not inconsistent with 30 CFR
816/817.62(e).
Subdivision 3.10.d provides that all pre-blast surveys shall be
confidential and only used for evaluating damage claims. This
subdivision also provides that the Office of Explosives and Blasting
shall develop a procedure for assuring surveys shall remain
confidential. The Federal regulations, at 30 CFR 816/817.62, neither
require nor preclude pre-blast surveys being confidential, nor do they
limit their use to the evaluation of blasting damage claims or
expressly specify a broader use of such surveys. While requiring such
surveys to be kept confidential appears to pose no consistency problems
with respect to Federal regulations, limiting the use of the surveys to
damage claims warrants further discussion. The State's amendments at
CSR 38-2-2.11 define blasting claim to mean an allegation by the
property owner of blasting related damage to property. To the extent
issuance of an enforcement action is necessary in resolving a blasting
claim because of an operator's failure to repair, we do not find that
these regulations preclude the use of a preblast survey to support
actions such as the issuance of an NOV. Therefore, we are approving
this provision with the understanding that the phrase ``only used for
evaluating damage claims'' does not preclude the use of preblast
surveys to support the issuance of NOVs, COs, civil penalties or other
forms of alternative enforcement actions under the West Virginia
Surface Coal Mining and Reclamation Act and its implementing
regulations to achieve the repair of blasting damage and thus resolve a
damage claim.
199-1-3.11 Additional protections. This new subsection provides
that the Secretary of the WVDEP may prohibit blasting or may prescribe
alternative distance, vibration and airblast limits on specific areas,
on a case-by-case basis, where research establishes it is necessary,
for the protection of public or private property, or the general
welfare and safety of the public. While this provision has no direct
Federal counterpart, we find that it is consistent with the Federal
blasting provisions at 30 CFR 816/817.67(a), (b)(1)(ii), and (d)(5) and
can be approved.
11. CSR 199-1-4 Certification of Blasters.
199-1-4.1.a Requirements for certification of blasters. This
provision provides that 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 22-3-1 et
seq., and the rules promulgated under that article. This provision also
provides that each person responsible for blasting operations shall be
certified. Each certified blaster shall have proof of certification
either on his/her 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. Where more than one certified blaster is working on a
blast, the blaster who designed the blast shall supervise the loading
operations and sign the blasting log. Furthermore, it provides that
nothing in this rule modifies the statutory regulatory authority of the
State Fire Marshal and the State Commission to regulate blasting and
explosives. Similar provisions regarding certified blasters were
previously approved at former W. Va. Code 22-4-3.01(A). We find that
the revised provision is consistent with SMCRA sections 515(b)(15)(D)
and 719 concerning blasters, and no less effective than the Federal
regulations at 30 CFR 816/817.61(c)(1), (2) and (4)(i) and can be
approved.
199-1-4.1.b Qualifications for certification. This provision
provides that each applicant for certification shall have had at least
one (1) year active blasting experience within the past three (3)
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 CSR 199-1-4.3.b. Similar provisions regarding
qualifications for certification were previously approved at W. Va.
Administrative Regulations, Department of Mines, Chapter 22-4-3.01(A).
Although it has no direct Federal counterpart, we find that the revised
provision is consistent with the Federal regulations at 30 CFR
850.14(a)(2) and can be approved.
199-1-4.1.c Application for certification. This provision requires
that 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
Secretary of the WVDEP. Upon receipt of an application for examination,
the Secretary of the WVDEP shall, after determining that the applicant
meets the experience requirements of subsection 199-1-4.1.b, notify the
applicant of the date, time, and location of the scheduled examination.
Similar provisions regarding application for certification were
previously approved at former Chapter 22-4-6.02, except for the $50.00
fee. Although the revised provision has no direct Federal counterpart,
we find that it is consistent with the Federal regulations at 30 CFR
850.12(b) and can be approved.
199-1-4.2 Training. This provision provides that the Office of
Explosives and Blasting 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
[[Page 68732]]
minimum, those subject areas set forth in subdivisions 199-1-4.3.b.1.A
through 4.3.b.1.K. The Secretary of the WVDEP may establish a fee for
training to cover costs to the Office. In lieu of completing the
training program, the applicant for certification or re-certification
who meets the experience requirements specified in subdivision 199-1-
4.1.b, may complete a self-study course using the study guide and other
materials available from the Office. Prior to certification, all
applicants who choose to self-study will also be required to attend an
Office two-hour training session addressing certified blasters'
responsibilities and the disciplinary procedures contained in
subsections 199-1-4.9 and 4.10. This training will be made available
immediately prior to scheduled examinations when necessary. Similar
training provisions were previously approved at former Chapter 22-4-
3.01(B). In addition, the requirement to allow for completion of a
self-study course in lieu of completing the training program was
previously approved at CSR 38-2C-4 (61 FR 6511, 6528; February 21,
1996). While the revised provision has no direct Federal counterpart,
we find that it is consistent with the requirements of SMCRA at section
515(b)(15)(D) and the Federal regulations at 30 CFR 850.13 and can be
approved.
199-1-4.3.a Examinations for Certified Blaster Examiners/
Inspectors. This provision provides that 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 as an examiner/inspector does not
constitute a surface mine blaster certification; however, a surface
mine blaster certification is sufficient for certification as an
examiner/inspector. The examination for certified examiner/inspector
shall at a minimum test the applicant's knowledge as required by CSR
199-1-4.3.b. Similar provisions requiring certification of blaster
examiners were previously approved at former Chapter 22-4-4. There is
no direct Federal counterpart to this provision. However, we find that
the requirements of this provision do not render the West Virginia
program less effective than the Federal regulations concerning blasting
at 30 CFR part 850 concerning training, examination, and certification
of blasters and can be approved.
199-1-4.3.b and 4.3.b.1 Examination for certified blaster. These
provisions identify the topics that must be covered in the Study Guide
for West Virginia Surface Mine Blasters and by the examination for
certified blasters. Similar provisions were previously approved at
former Chapter 22-4-5.03(A)(1). The requirement providing that the
examination will also test on information contained in the self-study
course was previously approved for both blaster examiners/inspectors
and certified blasters at CSR 38-2C-5.1 and 5.2 (61 FR at 6528;
February 21, 1996). At CSR 199-1-4.3.b, the words ``three (3) parts''
were deleted. This is a nonsubstantive change, relating to parts of the
examination that are no longer applicable, that does not affect the
approved provision. We find that the revised blaster examination
provisions at subdivisions 4.3.b and 4.3.b.1 are consistent with the
Federal requirements at 30 CFR 850.13(b) and 850.14(b) and can be
approved.
199-1-4.3.b.2 This provision provides that the examination for
certified blaster shall also include a simulation examination whereby
the applicant must correctly and properly complete a blasting log. A
similar provision was previously approved at former Chapter 22-4-
5.03(A)(2). While the revised provision has no direct Federal
counterpart, we find that it is consistent with the Federal requirement
concerning blaster training at 30 CFR 850.13(b)(8) and 850.14(b) and
can be approved.
199-1-4.3.b.3 This provision provides that the examination for
certified blaster shall also include other portions or parts developed
to demonstrate an applicant's ability to use explosives products and
equipment properly, as deemed appropriate by the Secretary of the
WVDEP. Provisions requiring hands-on simulation, including wiring,
checking and shooting a blast were previously approved at former
Chapter 22-4-5.03(A)(3). While the revised provision has no direct
Federal counterpart, we find that it is consistent with the Federal
requirements concerning blaster training at 30 CFR 850.13(b) and 850.14
and can be approved.
199-1-4.3.c Standards for Blaster Exam. This provision provides
that a score of 80 percent for the multiple choice examination, and
satisfactory completion of the blasting log portion, and any other
portions that may be included in the examination, which are graded on a
pass/fail basis, are required for successful passage of the examination
for certified blaster. Similar provisions were previously approved at
former Chapter 22-4-5.03(B), except, as proposed, hands-on simulation
may not necessarily be required to pass the examination. We find that
the revised provision is not inconsistent with the Federal requirements
for blaster examination at 30 CFR 850.14 and can be approved.
199-1-4.3.d Notification of scores. This provision provides that
the Office must notify all persons of their scores within 30 days of
completing the examination. A person who fails to achieve a passing
score of any of the parts of the examination, may apply, after 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 at CSR 199-1-4.2 prior
to applying for another examination. Similar provisions regarding
notification of scores were previously approved at former Chapter 22-4-
5.03(C), except the person was required to retake the entire
examination. There is no direct Federal counterpart to this provision.
We find, however, that it is consistent with the Federal requirements
for blaster examination at 30 CFR 850.14 and can be approved.
199-1-4.4 Approval of certification. This provision provides that
upon determination that an applicant for certification has
satisfactorily passed the examination, the Secretary of the WVDEP
shall, within 30 days of the examination date, issue a certification
card to the applicant. Similar provisions regarding approval of
certification were previously approved at former Chapter 22-4-6.03.
While the revised provision has no direct Federal counterpart, we find
that it is consistent with the Federal requirements for blaster
examination at 30 CFR 850.15(a) concerning issuance of certification
and can be approved.
199-1-4.5 Conditions or practices prohibiting certification. This
provision provides that the Secretary of the WVDEP shall not issue a
blaster certification or re-certification to persons who: are currently
addicted to alcohol, narcotics or other dangerous drugs; have exhibited
a pattern of conduct inconsistent with the acceptance of responsibility
for blasting operations; or are convicted felons. Similar requirements
prohibiting blaster certification were previously approved at former
Chapter 22-4-6.01, except for the new provision relating to convicted
felons, which has no direct Federal counterpart. Nevertheless, we find
that the entire provision is consistent with the Federal provisions
concerning issuance of certification at 30 CFR 850.14(a) and 850.15(a)
and (b) and can be approved.
[[Page 68733]]
199-1-4.6.a Refresher training. This provision provides that all
certified blasters must complete a minimum of 12 hours of refresher
training during the three-year period that each blaster's certification
is in effect. This refresher training requirement may be satisfied by
attendance at various professional and technical seminars and meetings
approved by the Office, or by attendance at a refresher training
session conducted by the Office. The Secretary of the WVDEP may
establish a fee for refresher training to cover costs to the Office.
Similar provisions requiring annual refresher training were previously
approved at former Chapter 22-4-3.01(B). While the revised provision
has no direct Federal counterpart, we find that it is consistent with
the Federal provision concerning recertification at 30 CFR 850.15(c)
and can be approved.
199-1-4.6.b Re-certification of blasters. This provision provides
that a certified blaster must be re-certified every three (3) years.
Each applicant for re-certification must be currently certified and
must document that he or she satisfactorily meets the experience
requirements of CSR 199-1-4.1.b and has satisfied the refresher
training requirement at CSR 199-1-4.6.a. The application for re-
certification must be submitted on forms prescribed by the Secretary
with a thirty dollar ($30.00) reapplication fee. Similar provisions
regarding re-certification were previously approved at former Chapter
22-4-7.01, except for the re-application fee. While the revised
provision has no direct Federal counterpart, we find that it is
consistent with the Federal requirement for recertification at 30 CFR
850.15(c) and can be approved.
199-1-4.6.c Re-training. This provision provides that an applicant
for re-certification, who does not meet the experience requirements of
CSR 199-1-4.1.b, must take the training course, and must take and pass
the examination required in CSR 199-1-4.3.b. Similar provisions were
previously approved at former 22-4-7.01(B) and CSR 38-2C-8.2, except
for the modified provision at subsection 8.2 allowing for the
completion of the self-study course as an option to completing the
refresher training course, which is to be deleted. While the revised
provision has no direct Federal counterpart, we find that it is
consistent with the Federal provision regarding training for certified
blasters at 30 CFR 850.13(a), as well as the provision for
recertification of blasters at 30 CFR 850.15(c), and can be approved.
199-1-4.6.d Re-examination. This provision provides that each
certified blaster shall be required to successfully complete the
examination for certified surface coal mine blasters at least once
every sixth year, as required by CSR 199-1-4.3.b. Similar provisions
regarding re-examination were previously approved at former Chapter 22-
4-7.02. While the revised provision has no direct Federal counterpart,
we find that it is consistent with the Federal requirement for
recertification of blasters at 30 CFR 850.15(c) and can be approved.
199-1-4.7 Presentation of certificate; Transfer; and Delegation of
authority. This provision provides that: Upon request by the Secretary
of the WVDEP, a certified blaster shall exhibit his/her blaster
certification card; The certified blaster shall take all reasonable
care to protect his/her certification card from loss or unauthorized
duplication, and shall immediately report any such loss or duplication
to the Office; Blaster's certifications may not be transferred or
assigned; and certified blasters shall not delegate their authority or
responsibility to any individual who is not a certified blaster. A
certified blaster shall not take any instruction or direction on blast
design, explosives loading, handling, transportation and detonation
from a person not holding a blaster's certificate, if such instruction
or direction may result in an unlawful act, or an improper or unlawful
action that may result in unlawful effects of a blast. A person not
holding a blaster's certification who requires a certified blaster to
take such action may be prosecuted under W. Va. Code 22-3-17(c) or (i).
Similar provisions regarding presentation, transfer and delegation of
blaster certification were previously approved at former Chapter 22-4-
8. We find that the revised provision is no less effective than the
Federal requirements for recertification of blasters at 30 CFR
850.15(d) and (e) and can be approved.
199-1-4.8 Violations by a certified blaster. This provision
provides that the Secretary of the WVDEP may issue a temporary
suspension order against a certified blaster who is, based on clear and
convincing evidence, in violation of any of the items listed at CSR
199-1-4.8.a through 4.8.e. The proposed language was copied and amended
from approved language at CSR 38-2C-10.1 concerning violations, and 38-
2-11.1 concerning suspension. Language authorizing the Secretary to
issue a cessation order and/or take other action was removed from
former CSR 38-2C-10.1, but the Secretary retained authority to issue a
notice of violation for violations by a certified blaster as approved
on February 21, 1996 (61 FR 6528-6529). The revised provision is
similar to CSR 38-2C-10.1 with the following changes. At subsection CSR
199-1-4.8, the words ``notice of violation'' were deleted and replaced
with the words ``temporary suspension order.'' With these changes, the
Secretary of WVDEP may issue a temporary suspension order against a
certified blaster who is, based on clear and convincing evidence, in
violation of any of the provisions listed at CSR 199-1-4.8.a through
4.8.e. We find that the proposed State language as revised is
consistent with the Federal regulations at 30 CFR 850.15(b), concerning
suspension and revocation of blaster certification, and can be
approved, except as follows.
199-1-4.8.c. Violations by a certified blaster. The words
``substantial or significant'' were added prior to the word
``violations;'' the words ``or state'' were added after the word
``federal'; and the words ``or the approved blast plan for the permit
where the blaster is working'' were added after the word
``explosives.'' With these changes, violations of Federal or State laws
or regulations related to explosives or the approved blasting plan must
be ``substantial or significant'' violations before a temporary
suspension order can be issued. We find that the proposed State
language is not consistent with the Federal regulations at 30 CFR
850.15(b)(1)(iii) which authorizes suspension or revocation for
violation of any provision of the State or Federal explosives laws or
regulations. The proposed language is narrower than its Federal
counterpart, since it allows for suspension or revocation of blaster
certification based only on ``substantial or significant'' violations.
In contrast, the Federal regulations at 30 CFR 850.15(b) authorize
suspension or revocation of the blaster certification for any type of
violation of State or Federal explosives laws or regulations.
Therefore, we are not approving the phrase ``substantial or
significant'' at CSR 199-1-4.8.c. We are approving the reference to
State laws and regulations, because it is no less effective than the
Federal regulation at 30 CFR 850.15(b)(1)(iii) and can be approved. We
also find that the addition of the words ``or the approved blast plan
for the permit where the blaster is working'' do not render the
provision less effective than 30 CFR 850.15(b)(1)(iii) and can be
approved.
199-1-4.8.d Violations by a certified blaster. This provision
identifies ``false swearing in order to obtain a blaster's
certification card'' as a violation that the Secretary may issue a
temporary suspension order against a certified blaster. The counterpart
Federal
[[Page 68734]]
regulations at 30 CFR 850.15(b)(1)(iv) provide that the regulatory
authority may suspend or revoke a blaster's certification for, among
other reasons, providing false information or a misrepresentation to
obtain certification. The Federal provision encompasses more than
swearing under oath. It is our understanding that the State provision
encompasses swearing under oath, as well as providing false information
or a misrepresentation to obtain blaster certification. Our finding
that this provision is no less effective than the Federal regulations
at 30 CFR 850.15(b)(1)(iv) is based on this understanding. Therefore,
subdivision 4.8.d can be approved.
199-1-4.8.e Illegal or improper actions by a blaster. At
subdivision 4.8.e., the words ``in the use, handling, transportation,
or storage of explosives or in designing and executing a blast,'' were
added after the words ``certified blaster.'' In addition, the words ``a
blast site'' are deleted and replaced with the words ``or near a mine
site.'' As amended, the Secretary of WVDEP may issue a temporary
suspension order against a certified blaster for any illegal or
improper action taken by a certified blaster in the use, handling,
transportation, or storage of explosives or in designing and executing
a blast, which may or has led to injury or death at or near a mine
site. While there is no direct Federal counterpart to this new
language, we find that it is not inconsistent with the Federal
regulations at 30 CFR 850.15(b)(1) and can be approved.
199-1-4.9.a Suspension. This provision provides that upon service
of a temporary suspension order, the certified blaster shall be granted
a hearing before the Secretary of the WVDEP to show cause why his or
her certification should not be suspended or revoked. Similar language
was previously approved at CSR 38-2C-11.1, except the former provision
provided that issuance of the suspension order was based upon the
service of a notice of violation. Prior to the issuance of such an
order, the certified blaster would be granted a hearing regarding the
proposed suspension. We find that the revised provision is no less
effective than the Federal regulations concerning suspension or
revocation of the certification of a blaster at 30 CFR 850.15(b)(1) and
can be approved. CSR 199-1-4.9.a also provides that the period of
suspension will be conditioned on the severity of the violation
committed by the certified blaster, and, if the violation can be
abated, the time period in which the violation is abated. The Secretary
of the WVDEP may require remedial actions and measures and retraining
and reexamination as a condition for reinstatement of certification.
While there is no direct Federal counterpart to this provision, we find
that the State provision is not inconsistent with the Federal
regulations at 30 CFR 850.15(b) and can be approved.
199-1-4.9.b Revocation of blaster certification. This provision
provides that if the remedial action required to abate a suspension
order issued by the Secretary of the WVDEP to a certified blaster, or
any other action required at a hearing on the suspension of a blaster's
certification, is not taken within the specified time period for
abatement, the Secretary of the WVDEP 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. We note that the reference to subsection 12.1 is a typographical
error, and the correct citation is subdivision 4.9.a. We approved the
deletion of the phrase ``or a cessation order'' from this subsection on
February 21, 1996 (61 FR 6529). The State further proposes to amend
this subsection by deleting the words ``notice of violation'' and
adding in their place the words ``suspension order.'' In addition, the
phrase ``or any other action required at a hearing on the suspension of
a blaster's certification'' was added to the first sentence, after the
words ``certified blaster.'' We find that these changes are not
inconsistent with the Federal regulations and can be approved.
While we are approving, with the exception noted above, the State's
proposed rules addressing suspension and revocation, we note that there
is one Federal requirement not covered by these rules. The State lacks
a counterpart to the Federal provision at 30 CFR 850.15(b)(1) that
provides that the regulatory authority must suspend or revoke a
blaster's certification upon a finding of willful conduct that was
previously addressed at West Virginia Administrative Regulations 22-4-
6.01.C. Therefore, the State must further amend CSR 199-1-4.9.a and
4.9.b, or otherwise amend the West Virginia program, to provide that
upon a finding of willful conduct, the Secretary ``shall'' revoke or
suspend a blaster's certification.
199-1-4.9.c Reinstatement. This provision provides that subject to
the discretion of the Secretary of the WVDEP, and based on a petition
for reinstatement, any person whose blaster certification has been
revoked, may, if the Secretary of the WVDEP is satisfied that the
petitioner will comply with all blasting laws and rules, apply to re-
take the blasters certification examination, provided the person meets
all of the requirements for blasters certification specified by this
subsection, and has completed all requirements of the suspension and
revocation orders, including the time period of the suspension. While
there is no direct Federal counterpart to this provision, we find that
the provision is not inconsistent with the Federal regulations
concerning suspension and revocation of blasters certifications at 30
CFR 850.15(b) and can be approved.
199-1-4.9.d Civil and criminal penalties. This provision provides
that any certified blaster is subject to the individual civil and
criminal penalties provided for in W. Va. Code 22-3-17. While there is
no direct Federal counterpart to this provision, we find that it is not
inconsistent with either SMCRA at section 518 concerning penalties, nor
30 CFR part 846 concerning individual civil penalties and can be
approved.
199-1-4.10 Hearings and appeals. This provision provides that any
certified blaster who is served a 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 22-3-16 and 17. We find that
this provision is not inconsistent with the Federal regulations
concerning suspensions and revocations of blasters certifications at 30
CFR 850.15(b) and can be approved.
199-1-4.12 Reciprocity with other states. This provision provides
that the Secretary of the WVDEP 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 Secretary of the WVDEP, be certified without undergoing the
training or examination requirements set forth in this rule. There is
no direct Federal counterpart to this State provision. However, because
all state coal mining regulatory programs are subject to the same
minimum Federal standards under SMCRA at section 719 and the Federal
regulations at 30 CFR part 850, we find that this provision does not
render the West Virginia program less effective than those Federal
requirements concerning the training, examination, and certification of
blasters and can be approved.
[[Page 68735]]
12. CSR 199-1-5 Blasting Damage Claim.
199-1-5 Blasting damage claim. This section is new, and identifies
the characteristics of the types of blasting damage, and provides
requirements concerning filing a claim, responsibilities of claims
administrators, and the responsibilities of claims adjusters. There is
no direct Federal counterpart to the provisions concerning claims for
blasting damage at CSR 199-1-5. We find that these provisions are not
inconsistent with SMCRA section 515(b)(15) concerning blasting, nor
with the Federal blasting regulations at 30 CFR 816/817.61 through 68
and can be approved. However, one specific provision within section 5
requires further explanation, which follows.
199-1-5.2.a.4 Filing a claim. This provision states that if the
property owner declines to submit a claim to the Office of Explosives
and Blasting under part 5.2.a.3.C.4, then the Office's involvement will
be concluded. We understand this to mean that CSR 199-1-5.2.a.4
authorizes the Office to conclude its involvement with the claims
process as identified at CSR 199-1-5, but it does not mean that the
Office or the WVDEP will be precluded from issuing a blasting-related
NOV, CO, or taking other enforcement actions where blasting-related
violations that cause property damage have occurred. Therefore, based
upon that understanding, we find that CSR 199-1-5.2.a.4 is not
inconsistent with SMCRA and the Federal regulations at 30 CFR 816/
817.61-68 and can be approved. If, in future reviews, we should
determine that West Virginia is implementing this provision
inconsistent with this finding, a further amendment may be required.
13. CSR 199-1-6 Arbitration.
199-1-6 Arbitration for blasting damage claims. This section
provides for the listing and selection of arbitrators, preliminary
information to the arbitrator, demand for arbitration and timeframes
for arbitration, place of arbitration, confidentiality of the
arbitration process, presentations to the arbitrator, arbitration
award, fees, costs and expenses, binding nature of the award, and
payment of the award. There are no Federal counterparts to these
provisions concerning arbitration for blasting damage claims. We find,
however, that these provisions are not inconsistent with SMCRA section
515(b)(15) concerning blasting, nor with the Federal blasting
regulations at 30 CFR 816/817.61 through 816/817.68 and can be
approved. However, further explanation of one provision is needed, as
follows.
199-1-6.8 Arbitration award, fees, costs, and expenses. This
subsection limits a claimant's recovery of costs and attorney fees to
$1,000.00 when an operator requests arbitration and the initial claim
determination in favor of the claimant is upheld in whole or in part.
Otherwise, the parties are equally responsible for the cost of the
proceeding and are responsible for their own fees and costs. This
provision can not supersede existing attorney fees provisions
pertaining to citizens who prevail in enforcement actions or appeals
involving blasting violations. Therefore, and with the understanding
that this provision does not affect any claimant's involvement in
proceedings where fees can be claimed under CSR 199-1-8.13 or CSR 38-2-
20.12 regardless of whether or not they enter the arbitration claims
process, we find that CSR 199-1-6.8 is not inconsistent with the
Federal regulations at 43 CFR 4.1290-96 and can be approved.
14. CSR 199-1-7 Explosive Material Fee.
199-1-7 Explosive Material Fee. These provisions provide for the
assessment fee on blasting material, requirements for remittance of the
fee, availability of material delivery records and inventories,
dedication of the fee, expenditures, sufficiency of fees, authorization
of WVDEP to invest accrued earnings, and consequences of noncompliance.
There are no direct Federal counterparts to these provisions concerning
the explosive material fee. We find, however, that these provisions are
not inconsistent with SMCRA section 515(b)(15) concerning blasting, nor
with the Federal blasting regulations at 30 CFR 816/817.61 through 68.
In addition, we find that CSR 199-1-7.2, regarding the submittal and
availability of records concerning the delivery, inventory, and use of
explosives is not inconsistent with 30 CFR 840.12(b) concerning
inspection of documents. Therefore, we find that CSR 199-1-7 can be
approved.
15. CSR 199-1-8 Inspections.
199-1-8 Inspections. These provisions provide for inspections of
blasting operations, compliance conferences, notice of violations,
cessation orders, show cause orders, civil penalty determinations,
procedure for assessing civil penalties, assessment rates, when an
individual civil penalty may be assessed, amount of individual civil
penalty, procedure for assessment for individual civil penalty, payment
of penalty, and fees and costs of administrative proceedings. These
provisions at CSR 199-1-8 can be approved because they are identical to
approved provisions in the West Virginia program at CSR 38-2-20.1.e.
through 20.12 concerning inspection and enforcement, with the following
exceptions.
199-1-8.1 Inspections. This subsection states that ``[i]nspections
shall be made on any prospecting, active surface mining operation, or
inactive surface mining operation as necessary to assure compliance
with the WV Code 22-3 and 3A, this rule, and the terms and conditions
of the blasting plan.'' We understand that this provision only governs
blasting-specific inspections which supplement and do not supersede the
inspection frequency requirements for surface coal mining and
reclamation operations and prospecting operations contained in CSR 38-
2-20.1.a. through 20.1.d. Therefore, and based on our understanding
described above, we find subsection 8.1 to be consistent with the
Federal regulations at 30 CFR 840.11, and it can be approved.
CSR 199-1-8.3 Notice of Violations. The regulations at subsection
8.3, which govern imminent harm cessation orders, lack a counterpart to
CSR 38-2-20.3.a.4, which states that mining without a valid permit or
prospecting approval constitutes imminent harm. However, the approved
provisions at CSR 38-2-20.3.a.4 require the issuance of a cessation
order to an operator conducting mining-related blasting without a valid
permit or prospecting approval. Therefore, we find the proposed
requirements at CSR 199-1-8.3 to be no less effective than the Federal
requirements at 30 CFR 840.13 and 843.11 and can be approved.
CSR 199-1-8.6 Civil Penalty Determinations. The sentence at CSR
199-1-8.6 concerning civil penalty assessments is new, and provides as
follows:
8.6. Civil Penalty Determinations. Except as specified in WV
Code section 22-3-30a(b), civil penalties for any notice of
violation issued by the Office of Explosives and Blasting shall be
determined by the following procedure.
We approved W. Va. Code 22-3-30a(b) on November 12, 1999 (64 FR
61507, 61517). In approving that provision, we stated that our approval
of W. Va. Code 22-3-30a(b) was only upon the condition that any
implementing regulations later promulgated by the State contain the
four criteria for assessing civil penalties found at section 518(a) of
SMCRA. The criteria are history of violations, seriousness of the
violation, negligence, and demonstrated good faith of the permittee. As
discussed above at Finding B.4., the penalties set forth in W. Va. Code
22-
[[Page 68736]]
3-30a(b) are punitive penalties for blasting violations that result in
property damage. Because they are punitive in nature, these penalties
are in addition to the civil penalties that are assessed under CSR 199-
1-8.6, 8.7 and 8.8. The proposed language at CSR 199-1-8.6 reaffirms
this finding by providing that the violations cited under W. Va. Code
22-3-30a(b) are exempt from the civil penalty assessment procedures.
The determination of the supplemental penalty amounts for blasting
violations that result in property damage are limited to the factors
set forth in W. Va. Code 22-3-30a(b). Furthermore, notices of
violation, including those that are issued by the Office of Explosives
and Blasting that relate to property damage, are subject to the civil
penalty assessment procedures set forth in CSR 199-1-8.6, 8.7 and 8.8.
Given this interpretation, we no longer find our original conditional
approval of W. Va. Code 22-3-30a(b) to be applicable. In addition, we
find that the new language at CSR 199-1-8.6, 8.7 and 8.8 is not
inconsistent with section 518 of SMCRA and the Federal regulations at
30 CFR part 845 and can be approved.
There appear to be errors in the civil penalty assessment rates set
forth in subdivisions 8.8.b and 8.8.d concerning seriousness of the
violation and the operator's good faith. In the table regarding
seriousness of the violation under rating 6, the dollar amount should
be $1400, not $1200, and in the good faith table, the percentage under
rating 3 should be 15%, not 20% as shown. These typographical errors
are also in the civil penalty assessment rate tables at CSR 38-2-20.7.b
and 20.7.d. While these errors do not render the tables inconsistent
with the Federal requirements, it is recommended that they be revised.
16. Surface Mine Board.
CSR 199-1-9 Surface Mine Board. This provision provides for open
meetings, appeals to the surface mine board, and prohibits ex parte
communication. CSR 199-1-9 concerning Surface Mine Board is identical
to the approved West Virginia program at CSR 38-2-21 concerning the
Surface Mine Board. Therefore, we find that the addition of CSR 199-1-9
does not render the West Virginia program inconsistent with SMCRA nor
less effective than the Federal regulations and can be approved.
IV. Summary and Disposition of Comments
Public Comments
In response to our request for comments from the public on the
proposed amendments (see Section II of this preamble), we received the
following comments from the American Arbitration Association (AAA). By
letter dated January 3, 2001 (Administrative Record Number WV-1193),
the AAA commented on Section CSR 199-1-17, Arbitration for Blasting
Damage Claims. (This section was subsequently recodified at CSR 199-1-
6.) Specifically, the AAA commented on subsection CSR 199-1-6.1 that
states, ``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.''
The AAA acknowledged that it has had discussions with the West
Virginia Office of Explosives and Blasting concerning AAA involvement
in arbitrating blasting-related disputes. However, the AAA stated that
the proposed blasting rule deviates from the AAA's established rules
and procedures, and does not conform to its discussions with officials
of the West Virginia Office of Explosives and Blasting. The AAA further
stated that, although programs such as this do not need to exactly
match the AAA's existing rules, the AAA will not be bound through
regulation to administer an unfair program.
The AAA stated that it will continue to work with the West Virginia
Office of Explosives and Blasting to develop a fair and expeditious
program to administer and resolve disputes. However, the AAA stated,
the AAA reserves the right to refuse administration of the disputes if
the program, at any time, deviates from the established AAA standards.
By letter dated April 20, 2001 (Administrative Record Number WV-
1208), WVDEP, Office of Explosives and Blasting sent us a letter with
its comments on the AAA's letter. The Office of Explosives and Blasting
stated that it is working with the AAA to compile a list of arbitrators
according to CSR 199-1-6. The Office stated that since it has no
experience with the arbitration process, it fully intends to let the
AAA proceed in its normal operating capacity, as long as the Office
still meets the requirements of the rule. The Office also stated that
in a recent conversation with AAA, the AAA informed the Office that the
AAA's comment concerning CSR 199-1-6 is a general statement, sent as
documentation of AAA established administrative rules. The Office
further stated that it is working with AAA to implement the process.
In response, we acknowledge the AAA's concern and we recognize that
its participation with West Virginia in the arbitration of blasting-
related disputes is voluntary. We encourage the AAA to continue working
with the State Office of Explosives and Blasting to resolve its
concerns. We note that any changes the State makes to its blasting
rules at CSR 199-1 as a result of its discussions with the AAA will
need to be submitted to OSM as a program amendment for approval. In
addition, we note that the sentence quoted above that was the subject
of the AAA's comment was deleted from the regulations when they were
recodified at CSR 199-1-6.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on
December 1, 2000, and February 1, 2002, we requested comments on these
amendments from various Federal agencies with an actual or potential
interest in the West Virginia program (Administrative Record Numbers
WV-1188 and WV-1268, respectively). We received comments from three
Federal agencies. The U.S. Department of Labor, Mine Safety and Health
Administration (MSHA) responded by letter dated March 1, 2002, and
stated that the employee and adjacent landowner safety provisions are
consistent with MSHA blasting standards (Administrative Record Number
WV-1281). MSHA also stated that it found no issues or impact upon coal
miner's health and safety.
The U.S. National Park Service responded by letter dated February
5, 2002, and stated that it had no specific comments (Administrative
Record Number WV-1270).
The Department of the Army, U.S. Army Corps of Engineers responded
on February 26, 2002, and stated that its review found the proposed
amendment to be generally satisfactory to the agency (Administrative
Record Number WV-1279). In addition, the Corps of Engineers stated that
it has a concern with the relationship between the blasting plans
discussed in CSR 199-1-3.2 and the agency's responsibilities in
administering section 404 of the Clean Water Act. To avoid any
confusion that the proposed amendment supersedes the requirements of
section 404 of the Clean Water Act, the agency suggested including a
statement in the amendment indicating that a separate authorization is
required from the U.S. Army Corps of Engineers for all work involving
any discharge of dredged or fill material into the waters of the United
States. In response, there is nothing in the proposed amendments that
supersedes any of the requirements of Section 404 of the Clean Water
Act. Therefore, the
[[Page 68737]]
addition of such a statement in the amendment is not necessary.
Environmental Protection Agency (EPA) Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued 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.). None of these West Virginia amendments pertains
to air or water quality standards. Therefore, we did not ask EPA for
its concurrence on any of the proposed amendments.
By letters dated December 1, 2000, and February 1, 2002, we
requested comments from EPA on these amendments (Administrative Record
Numbers WV-1188 and WV-1268, respectively).
The EPA responded by letters dated January 17, 2001, April 13,
2001, and February 28, 2002 (Administrative Record Numbers WV-1196, WV-
1207, and WV-1282, respectively). EPA stated that it appears that the
amendment is in compliance with the Clean Water Act and other statutes
and regulations under the jurisdiction of the EPA.
V. OSM's Decision
Based on the above findings, and except as noted below, we are
approving the amendments submitted to us on October 30, 2000 and
November 28, 2001.
At CSR 199-1-3.10.d., the phrase ``and only used for evaluating
damage claims'' is approved with the understanding that it does not
preclude the use of pre-blast surveys to support the issuance of NOVs,
COs, civil penalties or other forms of alternative enforcement actions
under the West Virginia Surface Coal Mining and Reclamation Act and its
implementing regulations to achieve the repair of blasting damage and
thus resolve a damage claim. At CSR 199-1-4.8.c., we are not approving
the phrase ``substantial or significant.'' In addition, we are
requiring the State to amend CSR 199-1-4.9.a and 4.9.b, or otherwise
amend the West Virginia program, to provide that upon finding of
willful conduct, the Secretary shall revoke or suspend a blaster's
certification.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 948, which codify decisions concerning the West Virginia
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. 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 regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget 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 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 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, 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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is our decision on a State regulatory
program and does not involve Federal regulations involving Indian
lands.
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 effect 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
This rule does not require an environmental impact statement
because 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 certifies 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
[[Page 68738]]
substantial number of small entities. 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 regulations.
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, Federal, State, or local government agencies, or geographic
regions; 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 analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 17, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 948 is amended as
set forth below:
PART 948--WEST VIRGINIA
0
1. The authority citation for part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 948.12 is amended by adding new paragraph (d) to read as
follows:
Sec. 948.12 State statutory, regulatory, and proposed program
amendment provisions not approved.
* * * * *
(d) We are not approving the following provision of the proposed
blasting-related program amendment that West Virginia submitted on
October 30, 2000, and November 28, 2001: At CSR 199-1-4.8.c, the phrase
``substantial or significant'' is not approved.
* * * * *
0
3. Section 948.15 is amended in the table by adding a new entry in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Citation/
Original amendment submission Date of description of
date publication of approved
final rule provisions
------------------------------------------------------------------------
* * * * * * *
October 30, 2000, November 28, December 10, 2003. W.Va. Code 22-3-
2001. 13a(a)(3), (b),
(c), (f)(14),
(g); 22a(a), (b),
(e), (f), (g);
30a(b), (b)(3),
(b)(3)(C),
(b)(5), (c), (d),
(e), (f), (h).
Code of State
Regulations CSR
199-1, except as
identified at 30
CFR 948.12(d),
and subdivision
3.10.d is a
qualified
approval.
------------------------------------------------------------------------
0
4. Section 948.16 is amended by adding paragraph (a) to read as
follows:
Sec. 948.16 Required regulatory program amendments.
* * * * *
(a) By February 9, 2004, West Virginia must submit either a
proposed amendment or a description of an amendment to be proposed,
together with a timetable for adoption to amend CSR 199-1-4.9.a and
4.9.b, or otherwise amend the West Virginia program, to provide that
upon finding of willful conduct, the Secretary shall revoke or suspend
a blaster's certification.
* * * * *
[FR Doc. 03-30550 Filed 12-9-03; 8:45 am]
BILLING CODE 4310-05-P