Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75889

significance that interested parties

should be given additional time to

determine and present their views.

Montie R. Deer,

Chairman, National Indian Gaming

Commission.

[FR Doc. 00–30851 Filed 12–4–00; 8:45 am]

BILLING CODE 7565–01–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–087–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment

period and opportunity for public

hearing.

SUMMARY: OSM is announcing receipt of

a proposed amendment to the West

Virginia regulatory program under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

program amendment adds new West

Virginia regulations at 199 CSR 1

concerning Surface Mine Blasting Rule.

The amendments are intended to

improve the operational effectiveness of

the West Virginia program.

DATES: If you submit written comments,

they must be received on or before 4:00

p.m. (local time), on January 4, 2001. If

requested, a public hearing on the

proposed amendments will be held at

1:00 p.m. (local time), on January 2,

2001. Requests to speak at the hearing

must be received by 4:00 p.m. (local

time), on December 20, 2000.

ADDRESSES: Mail or hand-deliver your

written comments and requests to speak

at the hearing to Mr. Roger W. Calhoun,

Director, Charleston Field Office at the

address listed below.

You may review copies of the West

Virginia program, the proposed

amendment, a listing of any scheduled

hearings, and all written comments

received in response to this document at

the addresses below during normal

business hours, Monday through Friday,

excluding holidays. You may receive

one free copy of the proposed

amendment by contacting OSM’s

Charleston Field Office.

Mr. Roger W. Calhoun, Director,

Charleston Field Office, Office of

Surface Mining Reclamation and

Enforcement, 1027 Virginia Street,

East, Charleston, West Virginia 25301

Telephone: (304) 347–7158. E-mail:

chfo@osmre.gov

West Virginia Division of

Environmental Protection, 10

McJunkin Road, Nitro, West Virginia

25143, Telephone: (304) 759–0515.

The proposed amendment will be

posted at the Division’s Internet page:

http://www.dep.state.wv.us

In addition, you may review copies of

the proposed amendment during regular

business hours at the following

locations:

Office of Surface Mining Reclamation

and Enforcement, Morgantown Area

Office, 75 High Street, Room 229, P.O.

Box 886, Morgantown, West Virginia

26507, Telephone: (304) 291–4004

Office of Surface Mining Reclamation

and Enforcement, Beckley Area

Office, 323 Harper Park Drive, Suite 3,

Beckley, West Virginia 25801,

Telephone: (304) 255–5265.

FOR FURTHER INFORMATION CONTACT: Mr.

Roger W. Calhoun, Director, Charleston

Field Office; Telephone: (304) 347–

7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia

Program

On January 21, 1981, the Secretary of

the Interior conditionally approved the

West Virginia program. You can find

background information on the West

Virginia program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval in the January 21, 1981,

Federal Register (46 FR 5915–5956).

You can find later actions concerning

the conditions of approval and program

amendments at 30 CFR 948.10, 948.12,

948.13, 948.15, and 948.16.

II. Discussion of the Proposed

Amendment

By letter dated October 30, 2000

(Administrative Record Number WV–

1187), the WVDEP submitted an

amendment to its program. The

amendment concerns the addition to the

West Virginia regulations of new Title

199, Series 1, entitled Surface Mine

Blasting Rule. These regulations consist

of new blasting provisions and blasting

provisions that have been relocated or

derived from previously approved West

Virginia blasting provisions. We have

identified in brackets in the proposed

amendment below, those instances

where the State has indicated that

specific provisions have been relocated

or derived from previously approved

blasting provisions. On November 12,

1999 (Administrative Record Number

WV–1143), we approved, with certain

exceptions, revisions to the West

Virginia Code (W. Va. Code) concerning

blasting (64 FR 61507–61518). The

current amendment is intended to revise

the States blasting rules to implement

the approved blasting statutes.

The new blasting regulations are

presented below.

199 CSR 1

Title 199

Legislative Rule

Division of Environmental Protection

Series 1

Surface Mining Blasting Rule

Section 199–1–1. General

1.1. Scope.—This rule establishes general

and specific rules for overseeing and

regulating blasting on all surface mining

operations; implementing and overseeing the

pre-blast survey process; inspection and

monitoring of blasting operations;

seismograph use; warning methods; site

specific limitations for type, size, timing and

frequency of blasts; public notice

requirements; maintaining and operating a

system to receive and address questions,

concerns and complaints relating to mining

operations; setting the qualifications for

individuals and firms performing pre-blast

surveys; establishing the education, training,

examination and certification of blasters;

disciplinary procedures for blasters; and

administering a claims process, including

arbitration, for property damage caused by

blasting.

1.2. Applicability.—This rule applies to all

surface mining operations and surface

disturbances associated with underground

mining operations in the State of West

Virginia.

1.3. Authority.—W. Va. Code Sections 22–

1–3, 22–3A–4, 22–1–5. et seq.

1.4. Filing Date.

1.5. Effective Date.

1.6. Incorporation by Reference.—Federal

Counterpart Regulations—30 CFR 850.

1.7. Repeal of Former Rule.—This rule

repeals and replaces 38CSR2C—Standards

for Certification of Blasters—Surface Coal

Mines, effective May 1, 1995, filed April 26,

1995.

Section 199–1–2

Definitions.—As used in this rule unless

used in a context that clearly requires a

different meaning the term:

2.1. Active Blasting Experience means

experience gained by a person who has

worked on a blasting crew, supervised a

blasting crew, or worked on a drilling crew

which performed blasting operations. Two

hundred forty working days constitutes one

year of experience. Experience may only be

gained by ‘‘first-hand’’ participation in

activities associated with the storing,

handling, transportation and use of

explosives or the immediate supervision of

those activities within surface coal mines,

and the surface areas of underground coal

mines. Experience should be related to

surface mine blasting; Provided, that other

related blasting experience (quarrying

75890 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

operations, etc.) may be accepted by the

director on a case-by-case basis as qualifying

experience. [This provision was relocated

from CSR 38–2C–2.1]

2.2. Air Blast means an airborne shock

wave resulting from the detonation of

explosives.

2.3. Adjuster means an outside party that

is assigned to investigate, document, evaluate

and make recommendations on a reported

loss.

2.4. Arbitrator means an impartial

individual appointed by the Office of

Environmental Protection with the authority

to settle the disputes between property

owners and mine operators as they relate to

allegations of blasting damage.

2.5. Arbitration means the referral of a

dispute to a neutral or impartial person for

total or partial determination. It is intended

to be inexpensive, prompt and fair to the

parties.

2.6. Blast means any planned or unplanned

detonation(s) of an explosive(s) being

initiated simultaneously by a single energy

source. [This provision was relocated from

CSR 38–2C–2.2.]

2.7. Blast Site means the area where

explosive materials is handled during

loading including the perimeter formed by

the loaded blast holes and 50 feet in all

directions from loaded holes.

2.8. Blaster means a qualified person in

charge of and responsible for the design,

loading and firing of a blast. This must be an

individual who is certified by the Office of

Explosives and Blasting.

2.9. Blasting Complaint means a

communication to the Office of Explosives

and Blasting from a member of the public

expressing concern, aggravation, fear or

indications of blasting damage. A blasting

complaint may or may not initially indicate

damage.

2.10. Blasting Claim means an allegation by

the property owner of blasting related

damage to property.

2.11. Blasting Log means a written record

containing all pertinent information about a

specific blast as may be required by law or

rule.

2.12. Blasting Vibration means the

temporary ground movement produced by a

blast that can vary in both intensity and

duration.

2.13. Caused By Blasting means that there

is direct, consistent and conclusive evidence

or information that the alleged damage was

definitely caused by blasting from the mine

site in question.

2.14. Certified Blaster means a person who

has taken and passed the examination

described in this rule, and has been issued

a certification card by the Office of

Explosives and Blasting. [This provision was

relocated from CSR 38–2C–2.3.]

2.15. Certified Examiner/Inspector means a

person employed by the Office of Explosives

and Blasting who administers training or

examinations to applicants for certification as

certified blasters, or who inspects surface

mining operations and who has taken and

passed the examination described in of this

rule. [This provision was relocated from CSR

38–2C–2.4.]

2.16. Claimant means the property owner

who makes a blasting damage claim.

2.17. Claims Administrator means the

individual, firm or organization that manages

the blasting damage claims program for the

Office of Explosives and Blasting.

2.18. Construction Blasting means blasting

to develop haulroads, mine access roads, coal

preparation plants, drainage structures, or

underground coal mine sites and shall not

include production blasting.

2.19. Detonation means a chemical reaction

resulting in a rapid release of energy. [This

provision was relocated from CSR 38–2C–

2.5]

2.20. Director means the director of the

Division of Environmental Protection or the

director’s authorized agent.

2.21. Division means the Division of

Environmental Protection.

2.22. Explosives means any chemical

compound, mixture or device, the primary or

common purpose of which is to function by

explosion; including, but not limited to,

water gel, slurries, emulsion, dynamites,

permissibles, pellet powder, blasting caps,

cast primers and boosters, detonating cord,

detonating cord delay connectors, and

blasting agents. [This provision was relocated

from CSR 38–2C–2.6]

2.23. Fly Rock means rock and/or earth

propelled from the blast area through the air

or along the ground by the force of the

detonated explosives.

2.24. Loss Reserve means the total amount

of money indicated in a given loss to include

the estimated value (repairs or replacement

costs), and the costs to administer and adjust

that loss.

2.25. Loss Value means the amount of

money indicated in a given loss to include

costs of repairs or replacement costs.

2.26. Not Caused By Blasting means that

there is direct, consistent, and conclusive

evidence or information that blasting from

the mine site in question was definitely not

at fault for the alleged property damage.

2.27. Office means the Office of Explosives

and Blasting.

2.28. Operator means any person who is

granted or who should obtain a permit to

engage in any activity covered by W. Va.

Code Section 22.

2.29. Possible Caused By Blasting means

the physical damage in question is not

entirely consistent with blasting induced

property damage, but that blasting cannot be

ruled out as a casual factor.

2.30. Pre-Blast Survey means the written

documentation of the existing condition of a

given structure near an area where blasting

is to be conducted. The purpose of the survey

is to note the pre-blasting condition of the

structure and note any observable defects or

damage.

2.31. Probably Caused By Blasting means

that there is physical damage present at the

site in question that is entirely consistent

with blasting induced property damage, and

said damage can be attributed to a specific

mine site and/or blast event(s).

2.32. Probably Not Caused By Blasting

means that there is substantial, but not

conclusive information that the alleged

damage was caused by something other than

blasting.

2.33. Production Blasting means blasting

that removes the overburden to expose

underlying coal seams and shall not include

construction blasting.

2.34. Protected Structure means any of the

following structures that are situated outside

the permit area: an occupied dwelling, a

temporarily unoccupied dwelling which has

been occupied within the past ninety (90)

days, a public building, a habitable building

for commercial purposes, a school, a church,

a community or institutional building, a

public park or a water well. [This provision

was relocated and modified from CSR 38–2–

2.98.]

2.35. Supervised a Blasting Crew means

that a person assumed responsibility for the

conduct of a blasting crew(s) and that the

crew(s) reported directly to that person. [This

provision was relocated from CSR 38–2C–

2.7.]

2.36. Surface Mine and Surface Area of

Underground Mines means all areas except

underground workings surface mined or

being surface mined, including adjacent areas

ancillary to the operations, i.e., preparation

and processing plants, storage areas, shops,

haulageways, roads, and trails, which are

covered by the provisions of W. Va. Code

Section 22–3–1 et seq., and rules

promulgated under that article. [This

provision was relocated from CSR 38–2C–

2.8.]

2.37. Worked on a Drilling Crew means

that a person has directly participated in the

loading, connecting, and preparation of blast

holes and has detonated blasts. [This

provision was relocated from CSR 38–2C–

2.9.]

2.38. Worked on a Blasting Crew means

that a person has first-hand experience in

storing, handling, transporting, and using

explosives. [This provision was relocated

from CSR 38–2C.2.10.]

Section 199–1–3. Blasting

3.1. General Requirements. Each operator

shall comply with all applicable state and

federal laws in the use of explosives. A

blaster certified by the office shall be

responsible for all blasting operations

including the transportation, storage and use

of explosives within the permit area in

accordance with the blasting plan. [This

provision was relocated from CSR 38–2–6.1.]

3.2. Blasting Plans.

3.2.a. As required by statute, all surface

mining operations that propose blasting shall

include a blasting plan. The blasting plan

shall explain how the applicant will comply

with the blasting requirements of W. Va.

Code Section 22–3–1 et seq., and this rule.

This plan shall include, at a minimum,

information setting forth the limitations the

operator will meet with regard to ground

vibration and airblast, the basis for those

limitations, and the methods to be applied in

preventing the adverse effects of blasting

operations. [This provision was relocated and

modified from CSR 38–2–6.2.]

3.2.b. The blasting plans referred to in

paragraph 3.2.a. of this rule will be reviewed

for administrative and technical

completeness by the office. The person

conducting the review shall be experienced

in common blasting practices utilized on

surface mining operations. The reviewer will

take into consideration past operational

history of the applicant, the geological

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75891

formation the blasting operations will take

place in, and the proximity of individual

dwellings or communities to the blasting

operations.

3.2.c. The blasting plan shall also contain

an inspection and monitoring procedure to

insure that all blasting operations are

conducted to eliminate, to the maximum

extent technically feasible, adverse impacts

to the surrounding environment and

surrounding occupied dwellings.

3.2.d. For operations where a notice of

violation (NOV) or cessation order (CO) has

been issued; the office shall review the

blasting plan within thirty (30) days of final

disposition of the NOV or CO. This review

will focus on the specific circumstances that

led to the enforcement action. If necessary

the blasting plan will be modified to insure

all precautions are being taken to safely

conduct blasting operations.

3.3. Public Notice of Blasting Operations.

[Subsection CSR 199–1–3.3 was relocated

and modified from CSR 38–2.6.3.a.]

3.3.a. At least ten (10) days but not more

than thirty (30) days prior to any blasting

operations which detonate five (5) pounds or

more of explosives at any given time, the

operator shall publish a blasting schedule in

a newspaper of general circulation in all the

counties of the proposed area. Copies of the

schedule described in subdivision 3.6.a. of

this rule shall be distributed by Certified

Mail to local governments, public utilities

and each resident within seven tenths (0.7

mi.) of a mile of the blasting site in

accordance with W. Va. Code Section 22–3–

13a(a)(1 and 2). The operator shall republish

and redistribute the schedule at least every

twelve (12) months and revise, republish and

redistribute the schedule at least ten (10)

days but not more than thirty (30) days prior

to blasting whenever the area covered by the

schedule changes or actual time periods for

blasting significantly differ from that set forth

in the prior schedule. The blasting schedule

described in subdivision 3.6.a. shall contain

at a minimum the following:

3.3.a.1. Name, address and phone number

of the operator;

3.3.a.2. Identification of the specific areas

in which blasting will take place;

3.3.a.3. Dates and times when explosives

will be detonated;

3.3.a.4. Methods to be used to control

access to the blasting area; and

3.3.a.5. Types and patterns of audible

warning and all clear signals to be used

before and after blasting.

3.4. Surface blasting activities incident to

underground coal mining are not subject to

the requirements of subdivision 3.3.a of this

rule so long as all local governments and

residents or owners of dwellings or structures

located within one-half (1⁄2) mile of the blast

site are notified in writing by the operator of

proposed times and locations of the blasting

operation. Such notice of times that blasting

is to be conducted may be announced

weekly, but in no case less than twenty-four

(24) hours before the blasting will occur.

[This provision was relocated from CSR 38–

2–6.3.b.]

3.5. Blast Record. [Subsection CSR 199–1–

3.5 was relocated from CSR 38–2–6.4.]

3.5.a. A blasting log book formatted in a

manner prescribed by the director shall be

kept current daily and made available for

inspection at the site by the director and

upon written request by the public.

3.5.b. The blasting log shall be retained by

the operator for three (3) years.

3.5.c. The blasting log shall, at a minimum,

contain the following information:

3.5.c.1. Name of permittee, operator or

other person conducting the blast;

3.5.c.2. Location, date and time of blast;

3.5.c.3. Name, signature and certification

number of blaster-in-charge;

3.5.c.4. Identification of nearest structure

not owned or leased by the operator and

direction and distance, in feet, to such

structure;

3.5.c.5. Weather conditions;

3.5.c.6. Type of material blasted;

3.5.c.7. Number of holes, burden, and

spacing;

3.5.c.8. Diameter and depth of holes;

3.5.c.9. Types of explosives used;

3.5.c.10. Weight of explosives used per

hole;

3.5.c.11. Total weight of explosives used;

3.5.c.12. Maximum weight of explosives

detonated within any eight (8) millisecond

period;

3.5.c.13. Method of firing and type of

circuit;

3.5.c.14. Type and length of stemming;

3.5.c.15. If mats or other protections were

used;

3.5.c.16. Type of delay detonator used and

delay periods used;

3.5.c.17. Seismograph records and air blast

records shall include but not be limited to:

3.5.c.17.A. Seismograph and air blast

reading, including exact location, date, and

time of reading and its distance from the

blast;

3.5.c.17.B. Name of person and firm taking

the readings;

3.5.c.17.C. Name of person and firm

analyzing the record, where analysis is

necessary; and

3.5.c.17.D. Type of instrument, sensitivity

and calibration signal or certification of

annual calibration.

3.5.c.18. Shot location;

3.5.c.19. Sketch of delay pattern to include

the entire blast pattern and all decks; and

3.5.c.20. Reasons and conditions for

unscheduled blasts.

3.6. Blasting Procedures. [Subsection 199–

1–3.6. was relocated and modified from CSR

38–2–6.5.]

3.6.a. All blasting shall be conducted

during daytime hours, between sunrise and

sunset; provided, that the director may

specify more restrictive time periods based

on public requests or other consideration,

including the proximity to residential areas.

No blasting shall be conducted on Sunday.

Provided, however, the director may grant

approval of a request for Sunday blasting if

the operator demonstrates to the satisfaction

of the director that the blasting is necessary

and there has been an opportunity for a

public hearing. Blasting shall not be

conducted at times different from those

announced in the blasting schedule except in

emergency situations where rain, lightning,

or other atmospheric conditions, or operator

or public safety requires unscheduled

detonations. Blasting shall be conducted in

such a way so as to prevent injury to persons,

damage to public or private property outside

the permit area, adverse impacts on any

underground mine, and change in the course,

channel, or availability of surface or

groundwater outside the permit area.

3.6.b. Safety Precautions:

3.6.b.1. Three (3) minutes prior to blasting,

a warning signal audible to a range of onehalf (1/2) mile from the blast site will be

given. This preblast warning shall consist of

three (3) short warning signals of five (5)

seconds duration with five (5) seconds

between each signal. One (1) long warning

signal of twenty (20) seconds duration shall

be the ‘‘all clear’’ signal. Each person in the

permit area, and each person who resides or

regularly works within one-half (1/2) mile of

the permit area shall be notified of the

meaning of these signals;

3.6.b.2. All approaches to the blast area

shall be guarded against unauthorized entry

prior to and immediately after blasting;

3.6.b.3. All charged holes shall be guarded

and posted against unauthorized entry; and

3.6.b.4. The certified blaster shall be

accompanied by at least one other person at

the time of firing of the blast.

3.6.c. Airblast Limits.

3.6.c.1. Airblast shall not exceed the

maximum limits listed below at the location

of any dwelling, public buildings, school,

church, or community or institutional

building outside the permit area.

Lower Frequency Limit of Measuring System

in Hz (+ 3 dB)—Maximum Level, in db

0.1 Hz or lower—flat response (Only when

approved by the Director)—134 peak.

2 Hz or lower—flat response133 peak.

6 Hz or lower—flat response 129 peak.

C-weighted—slow response (Only when

approved by the Director)—105 peak dBC.

3.6.c.2. If necessary to prevent damage, the

director may specify lower maximum

allowable airblast levels for use in the

vicinity of a specific blasting operation.

3.6.c.3. Monitoring. The operator shall

conduct periodic monitoring to ensure

compliance with the airblast standards. The

director may require airblast measurement of

any or all blasts and may specify the

locations at which such measurements are

taken. The air blast measuring systems used

shall have an upper-end flat-frequency

response of at least 200 Hz.

3.6.d. Flyrock, including blasted material,

shall not be cast from the blasting site more

than half way to the nearest dwelling or other

occupied structure, beyond the area of

control specified in subdivision 3.6.e of this

rule, or in no case beyond the bounds of the

permit area.

3.6.e. Access to the blast area shall be

controlled against the entrance of livestock or

unauthorized personnel during blasting and

for a period thereafter until an authorized

person has reasonably determined:

3.6.e.1. That no unusual circumstances

exist such as imminent slides or undetonated

charges, etc.; and

3.6.e.2. That access to and travel in or

through the area can be safely resumed. from

38–2–6.5

3.6.f. At the request of the director, the

operator shall monitor air blast levels using

75892 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

an instrument with an upper-end flatfrequency response of at least 200 Hz.

3.6.g. Blast Design.

3.6.g.1. An anticipated blast design shall be

submitted if blasting operations will be

conducted within:

3.6.g.1.A. 1,000 feet of any building used

as a dwelling, public building, school,

church, or community or institutional

building outside the permit area; or

3.6.g.1.B. 500 feet of an active or

abandoned underground mine.

3.6.g.2. The blast design may be presented

as part of a permit application or at a time,

before the blast as approved by the director.

3.6.g.3. The blast design shall contain

sketches of the drill patterns, delay periods,

and decking and shall indicate the type and

amount of explosives to be used, critical

dimensions, and the location and general

description of structures, including protected

structures, to be protected, as well as a

discussion of design factors to be used,

which protect the public and meet the

applicable airblast, flyrock, and groundvibration standards.

3.6.g.4. The blast design shall be prepared

and signed by a certified blaster.

3.6.g.5. The director may require changes

to the design submitted. [This provision was

relocated from CSR 38–2–6.5.g.]

3.6.h. No blasting within five hundred

(500) feet of an underground mine not totally

abandoned shall be permitted except with

the concurrence of the office, the operator of

the underground mine and the Mine Safety

and Health Administration. The director may

prohibit blasting on specific areas where it is

deemed necessary for the protection of public

or private property, or the general welfare

and safety of the public. [This provision was

relocated from CSR 38–2–6.5.h.]

3.6.i. The operator may use the following

scaled distance formulas to determine the

allowable maximum weight of explosives

(lbs.) to be detonated in any eight

millisecond period without seismic

monitoring:

Formula and Distance in Feet From the

Blasting Site to the Nearest Protected

Structure

W = (D/50)2—0—300 feet

W = (D/55)2—301—5,000 feet

W = (D/65)2—5,001 feet or greater

W = Weight of explosives in pounds

D = Distance to the nearest structure

[This provision was relocated from CSR

38–2–6.5.i.]

3.6.j. The scaled distance formulas need

not be used if a seismograph measurement at

the nearest protected structure is recorded

and maintained for every blast. The peak

particle velocity in inches per second in any

one of the three mutually perpendicular

directions shall not exceed the following

values at any protected structure:

Seismograph Measurement and Distance to

the Nearest Protected Structure

1.25—0—300 feet

1.0—301—5,000 feet

0.75—5,001 feet or greater

[This provision was relocated from CSR

38–2–6.5.j.]

3.6.k. The director may require a

seismograph recording of any or all blasts

based on the physical conditions of the site

in order to prevent injury to persons or

damage to property. [This provision was

relocated from CSR 38–2–6.5.k.]

3.6.l. The maximum allowable ground

vibration as provided in subdivisions 3.6.i

and 3.6.j of this subsection shall be reduced

by the director, if determined necessary to

provide damage protection. [This provision

was relocated from CSR 38–2–6.5.l.]

3.6.m. The maximum airblast and groundvibration standards of subdivisions 3.6.c and

3.6.j of this subsection shall not apply at the

following locations:

3.6.m.1. Structures owned by the permittee

and not leased to another person; and

3.6.m.2. Structures owned by the permittee

and leased to another person, if a written

waiver by the lessee is submitted to the

director before blasting. [This provision was

relocated from CSR 38–2–6.5.m.]

3.7. Blasting Control for Other Structures.

[Subsection CSR 199–1–3.7. was relocated

from CSR 38–2–6.6.]

3.7.a. All other structures in the vicinity of

the blasting area which are not defined as

protected structures in subsection 2.24 of this

rule shall be protected from damage by

establishment of a maximum allowable limit

on ground vibration, specified by the

operator in the blasting plan and approved by

the director.

3.7.b. The plan submitted under this

subsection shall not reduce the level of

protection for other structures otherwise

provided for in this rule.

3.8. Certified Blasting Personnel.—Each

person responsible for blasting operations

shall be certified. Each certified blaster shall

have proof of certification either on his

person or on file at the permit area during

blasting operations. Certified blasters shall be

familiar with the blasting plan and blasting

related performance standards for the

operation at which they are working. [This

provision was relocated from CSR 38–2–6.7.]

3.9. Pre-blast Surveys. [This provision is

new. Many of the previously approved preblast survey requirements and specifications

are now included in statute at W. Va. Code

22–3–13a.]

3.9.a. Qualifications for Individuals and

Firms Performing Pre-blast Surveys.—

Individuals must comply with the following:

3.9.a.1. Individuals must be approved by

the office to administer pre-blast surveys.

3.9.a.2. The office shall develop a list of

individuals who have exhibited ability by

past experience to perform pre-blast surveys.

Provided, however, attending a training

course administered by the office on pre-blast

surveys shall meet the previous experience

requirements.

3.9.a.3. Every three (3) years after meeting

initial qualifications for performing pre-blast

surveys, individuals must meet the

requirements of subparagraphs 3.9.a.1. (or

submit written qualifications of previous

experience performing pre-blast surveys) of

this rule.

3.9.b. Pre-blast Survey Review.

3.9.b.1. Pre-blast surveys shall be

submitted to the office on forms prescribed

by the director in accordance with W. Va.

Code Section 22–3–13a.

3.9.b.2. The office shall review each preblast survey as to form and completeness

only, and notify the operator of any

deficiencies within 15 days.

3.9.b.3. At the time the pre-blast survey is

accepted by the DEP, the DEP shall forward

a copy to the homeowner or resident.

3.9.b.4. The Office of Explosives and

Blasting shall develop a procedure for

assuring surveys shall remain confidential.

3.9.b.5. The DEP shall make available

informational materials educating citizens

about pre-blast surveys and blasting.

Section 199–1–4. Certification of Blasters.

4.1. Requirements for Certification.—In

every surface mine and surface area of an

underground mine when blasting operations

are being conducted, a certified blaster shall

be responsible for the storage, handling,

transportation, and use of explosives for each

and every blast, and for conducting the

blasting operations in accordance with the

blasting plans approved in a permit issued

pursuant to W. Va. Code Section 22–3–1 et

seq., and the rules promulgated under that

article. [This provision is relocated and

modified from CSR 38–2–6–1 and 38–2C–

3.1.]

4.2. Qualifications for Certification.—Each

applicant for certification shall have had at

least one (1) year active blasting experience

within the past five (5) years, and have

demonstrated a working knowledge of and

skills of the storage, handling, transportation,

and use of explosives, and a knowledge of all

state and federal laws pertaining thereto, by

successfully taking and passing the

examination for certification required by

subsection 6.2 of this rule. [This provision is

derived from W. Va. Code 22–3C–3.2.]

4.3. Application for Certification.—Prior to

taking the examination for certification, a

person must submit an application along

with a fifty dollar ($50.00) application fee to

the office to take the examination on forms

prescribed by the director. Upon receipt of an

application for examination, the director

shall, after determining that the applicant

meets the experience requirements of

subsection 4.2 of this rule, notify the

applicant of the date, time, and location of

the scheduled examination. [This provision

was derived from W. Va. Code 22–3C–3.3.]

Section 199–1–5. Training.—

The office will administer a training

program to assist applicants for blaster

certification or re-certification in acquiring

the knowledge and skills required for

certification. The training requirements shall

include, at a minimum, those subject areas

set forth in subdivisions 6.1.a through 6.1.k

of subsection 6.1 of this rule, and paragraphs

6.2.a.1 through 6.2.a.11 of subsection 6.2 of

this rule.

In lieu of completing the training program,

the applicant for certification or recertification may complete a self-study

course using the study guide and other

materials available from the office. [CSR 199–

1–5 was relocated and modified from CSR

38–2C–4.]

Section 199–1–6.

Examination for Certification of Examiner/

Inspector and Certified Blaster. [This entire

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75893

section was relocated and modified from CSR

38–2C–5.1.]

6.1. Examinations for Certified Blaster

Examiners/Inspectors.—All persons

employed by the office, whose duties include

training, examining, and certification of

blasters and/or inspecting blasting operations

shall be a certified examiner/inspector.

Certification under the provisions of this

subsection does not constitute certification

under the provisions of subsection 6.2 of this

rule; however, certification under subsection

6.2 of this rule is sufficient for certification

under this subsection. The examination for

certified examiner/inspector shall at a

minimum tests the applicant’s knowledge of

the information presented in the Study guide

for West Virginia Surface Mine Blasters, and

shall consist of three parts;

6.1.a. Part 1.—A written multiple choice

examination covering:

6.1.a.1. Types of explosives and their

properties, to include selection of

appropriate explosives;

6.1.a.2. Blasting equipment and

accessories, to include blasting machines;

6.1.a.3. Blast dimensions and calculations,

to include geologic and topographic

considerations, blast hole design, flyrock

control, secondary blasting, and blast plans;

6.1.a.4. Delay systems, to include pattern

design, field layout, and initiation systems;

6.1.a.5. Timing;

6.1.a.6. Blast vibration and vibration

control, to include airblast, monitoring

techniques, and use of preblast surveys;

6.1.a.7. Loading and detonating, to include

priming, scheduling, site control warning

signals, and unpredictable hazards;

6.1.a.8. Storage and transportation of

explosives;

6.1.a.9. Record keeping and reporting;

6.1.a.10. Current state and federal laws and

regulations relating to the storage, handling,

transportation, and use of explosives; the

training and certification of blasting

personnel, and blasting signs; and

6.1.a.11. Responsibilities of a certified

blaster.

6.1.b. Part 2.—A written simulation

whereby the applicant must correctly and

properly complete a blasting log.

6.1.c. Part 3.—A hands-on simulation

whereby the applicant must demonstrate the

ability to properly connect a blast, simulate

a selected initiation system, and simulate

detonating a blast.

6.1.d. A score of 70 percent (70%) for part

1, and satisfactorily completion of parts 2

and 3 are required for successful passage of

the examination. An individual who fails to

achieve a passing score may retake the

examination subject to the discretion of the

director.

6.2. Examination for Certified Blaster. [This

provision was relocated from CSR 38–2C–

5.2.]—The examination for certified blaster

shall include information presented in the

study Guide for West Virginia Surface Mine

Blasters, and shall consist of three (3) parts:

6.2.a. Part 1.—A written multiple choice

examination covering:

6.2.a.1. Types of explosives and their

properties, to include selection of

appropriate explosive(s);

6.2.a.2. Blasting equipment and

accessories, to include blasting machines;

6.2.a3. Blast dimensions and calculations,

to include geologic and topographic

considerations, blast hole design, flyrock

control, secondary blasting, and blast plans;

6.2.a.4. Delay systems, to include pattern

design, field layout, and initiation systems;

6.2.a.5. Timing;

6.2.a.6. Blast vibration and vibration

control, to include airblast, monitoring

techniques, and use of preblast surveys;

6.2.a.7. Loading and detonating, to include

priming, scheduling, site control, warning

signals, and unpredictable hazards;

6.2.a.8. Storage and transportation of

explosives;

6.2.a.9. Record keeping and reporting;

6.2.a.10. Current state and federal laws and

regulations relating to the handling, storage,

transportation, and use of explosives; the

training and certification of blasting

personnel, and blasting signs; and

6.2.a.11. Responsibilities of a certified

blaster.

6.2.a.b. Part 2.—A simulation examination

whereby the applicant must correctly and

properly complete a blasting log.

6.2.c. Part 3—A hands-on simulation

whereby the applicant must demonstrate the

ability to properly connect a blast, simulate

a selected initiation system, and simulate

detonating a blast.

6.2.d. A score of 80 percent (80%) for a

part 1, and a ‘‘passing grade’’ on parts 2 and

3, which are graded on a pass/fail basis, are

required for successful passage of the

examination.

6.3. Notification of Score.—The office will

notify all persons of their scores within thirty

(30) days of completing the examination. A

person who fails to achieve a passing score

of any of the three (3) parts of the

examination, may apply, after thirty (30) days

of receipt of his or her examination results,

to retake the entire examination or any

portions that the individual failed to pass.

Any person who fails to pass the exam on

the second attempt must certify that he/she

has taken or retaken the training course

described in section 4 of this rule prior to

applying for another examination. [This

provision is relocated from CSR 38–2C–5.3]

Section 199–1–7

Approval of Certification.

Upon determination that an applicant for

certification has satisfactorily passed the

examination, the director shall, within thirty

(30) days of the examination date, issue a

certification card to the applicant. [This

provision was relocated from CSR 38–2C–6.]

Section 199–1–8

Conditions or Practice Prohibiting

Certification.

[This provision was relocated from CSR

38–2C–7.]—The Director shall not issue a

blaster certification to persons who:

8.1. Are currently addicted to alcohol,

narcotics or other dangerous drugs;

8.2. Have exhibited a pattern of conduct

inconsistent with the acceptance of

responsibility for blasting operations; or

8.3. Are convicted felons. [This provision

was relocated from CSR 38–2C–7.]

Section 199–1–9

Re-certification Requirements for Certified

Blaster.

9.1. Re-certification of Blasters.—A

certified blaster must be re-certified every

three (3) years. Each applicant for recertification must be currently and must

document that he or she satisfactorily meets

the experience requirements of subsection

4.2 of this rule and has retaken the training

course described in section 4 of this rule

within the past twelve (12) months prior to

application. The application for recertification must be submitted on forms

prescribed by the director along with a thirty

dollar (30.00) reapplication fee. [This

provision was relocated and modified from

CSR 38–2C–8.1.]

9.2. Refresher Training Course/Self-Study

Course.—An applicant who does not meet

the experience requirements of subsection

3.8 of this rule must take the refresher

training course, or complete the self-study

course described in section 5 of this rule, and

must take and pass the examination required

in subsection 6.2 of this rule. [This provision

was relocated form CSR 38–2C–8.2.]

Section 199–1–10

Presentation of Certificate; Transfer; and

Delegation of Authority

10.1. Upon request by the director, a

certified blaster shall exhibit his or her

blaster certification card. [This provision was

derived from W. Va. Code 22–3C–9.1.]

10.2. The certified blaster shall take all

reasonable care to protect his or her

certification card from loss or unauthorized

duplication, and shall immediately report

any such loss or duplication to the office.

[This provision was derived from W. Va.

Code 22–3C–9.2.]

10.3. Blaster’s certifications may not be

transferred or assigned. [This provision was

derived from W. Va. Code 22–3C–9.3.]

10.4. Certified blasters shall not delegate

their authority or responsibility to any

individual who is not a certified blaster.

[This provision was derived form W. Va.

Code 22–3C–9.4.].

Section 199–1–11

Violations by a Certified Blaster.

The director may issue a notice of violation

against a certified blaster who is in violation

of any of the following:

11.1. Failure to comply with any order

issued by the director;

11.2. Illegal use of drugs or narcotics, or

any use of alcohol in the work place;

11.3. Violations of federal laws or

regulations governing the purchase, use,

handling, transportation, storage, or

detonation of explosives;

11.4. False swearing in order to obtain a

blaster’s certification card; or

11.5. Any illegal or improper action taken

by a certified blaster which may or has led

to injury or death at a blast site. [Relocated

from CSR 38–2C–10.1.]

Section 199–1–12

Penalties.

[Section 199–1–12 was relocated from CSR

38–2C–11.]

12.1. Suspension.—Upon service of a

written notice of violation by the director to

a certified blaster, the director may also,

based on clear and convincing evidence of a

violation, issue an order suspending his or

75894 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

her certification. Prior to the issuance of such

an order, the certified blaster shall be granted

a hearing before the director to show cause

why his or her certification should not be

suspended.

The period of suspension will be

conditioned upon the time period for

completion of remedial measures to abate the

violation as specified in the notice of

violation. The director may also require

retraining or reexamination as a condition for

reinstatement of certification.

12.2. Revocation.—If the remedial action

required to abate a notice of violation issued

by the director to a certified blaster is not

taken within the specified time period for

abatement, the director may revoke the

blaster’s certification and require the blaster

to relinquish his or her certification card.

Revocation will occur if the certified blaster

fails to retrain or fails to take and pass

reexamination as a requirement for remedial

action as described in subsection 12.1 of this

rule.

12.3. Civil and Criminal Penalties—Any

certified blaster is subject to the individual

civil and criminal penalties provided for in

W. Va. Code Section 22–3–17.

Section 199–1–13

Hearings and Appeals.—Any certified

blaster who is served a notice of violation,

suspension order, revocation order, or civil

and criminal sanctions is entitled to the

rights of hearings and appeals as provided for

in W. Va. Code section 22–3–16 and 17. [This

section was relocated from CSR 38–2C–12.]

Section 199–1–14. Blasting Crew

Persons who are not certified and who are

assigned to a blasting crew, or assist in the

use of explosives, shall receive directions

and on-the-job training from a certified

blaster. [This section was relocated from CSR

38–2C–13.]

Section 199–1–15

Reciprocity With Other States.

The director may enter into a reciprocal

agreement with other states wherein persons

holding a valid certification in that state may

apply for certification in West Virginia, and

upon approval by the director, be certified

without undergoing the training or

examination requirements set forth in this

rule. [This section was relocated from CSR

38–2C–14.]

Section 199–1–16

Blasting Damage Claim [This section is

new.]

16.1. Damage to Surface Structures.—A

claim of damage to surface structures from

blasting will be the result of one or more of

the following:

16.1.a. Fly Rock.—Fly rock damage is

based on the presence of debris from the blast

site and the presence of impact damage;

16.1.b. Air Blast.—Air blast damage is

characterized by broken or cracked window

glass; and

16.1.c. Blasting Vibration Damage.—

Blasting vibration damage is investigated by

experienced and specially trained personnel

to accurately determine the presence of such

damage. Examples are explained in, but not

limited to, the American Insurance

Association publication, Blasting Damage, A

Guide for Adjusters and Engineers.

16.2. Filing a Claim.

16.2.a. It is the responsibility of the

property owner to notify the office of the

alleged blasting damage. An inspector will be

assigned to conduct a field investigation to

determine the initial merit of the damage. An

investigation will include the following:

16.2.a.1. Inspector will contact property

owner within one (1) business day of

receiving the complaint to schedule a visit to

the property where the alleged blasting

damage occurred and interview the property

owner;

16.2.a.2. Inspector will visit the blasting

site to determine if the operator and blaster

are in compliance with state blasting

requirements; and

16.2.a.3. Inspector will make written

documentation on the investigation that

describes the nature and extent of alleged

damage, taking into consideration the

damage that is accurately indicated on a preblast survey, damage where there has been no

blasting conducted by the operator or other

reliable indicators that the alleged damage

actually pre-dated the blasting. Inspector will

make one of the following determinations:

16.2.a.3.A. A definite determination that

the merit of the alleged blasting damage can

be made. Inspector will notify the claims

administrator and supply such information

that the claims administrator needs to

sufficiently document the claim;

16.2.a.3.B. A definite determination that

the merit of the alleged blasting damage

cannot be made. Inspector will notify the

claims administrator and supply such

information that the claims administrator

needs to sufficiently document the claim;

16.2.a.3.C. Inspector will inform the

property owner of the following four

resolution options available for the alleged

blasting damage:

16.2.a.3.C.1. Withdraw the claim, with no

further action required by the office;

16.2.a.3.C.2. File a claim with the operator

or the operator’s general liability insurance

carrier;

16.2.a.3.C.3. File a claim with the

homeowner’s insurance carrier; or

16.2.a.3.C.4. Submit to the office’s claims

process.

16.2.a.3.D. If the property owner declines

Part 16.2.a.3.C.4. of this rule, the office’s

involvement will be concluded.

16.2.a.4. Once a determination is made as

to the merit of a claim, the office shall offer

a chance to meet between the claimant and

the permittee to attempt to resolve the issue.

16.3. The claims administrator will be

responsible for the following:

16.3.a. Sending notice to the respective

operator of the damage claim;

16.3.b. Making an initial assignment of the

damage claim to a qualified claims adjuster

within one business day;

16.3.c. Making an initial monetary

determination of loss reserve of the

respective claim; and

16.3.d. Providing the relevant claims

information to the arbitrator assigned to that

claim.

16.4. The adjuster will be responsible for

the following:

16.4.a. Contacting the property owner and

physically visiting the blasting damage site

within three (3) business days of the initial

assignment;

16.4.b. Documenting the alleged blasting

damage through accepted methods such as

photographs, video tapes, written

descriptions, and diagrams;

16.4.c. Reviewing such available

supporting information such as blasting logs,

seismograph records and pre-blasting

surveys;

16.4.d. Making a determination for the

need for additional assistance from structural

engineers, building contractors, and blasting

consultants. The claims administrator will be

the approving authority for the assignment of

such specialists;

16.4.e. Making a determination as to the

merit of the alleged blasting damage claim.

16.4.f. Making an initial monetary

determination of the loss value of the

respective claim.

16.4.f.1. The adjuster will use the following

ratings in the determination of the merit of

the alleged blasting damage claim:

16.4.f.1.A. Caused by blasting;

16.4.f.1.B. Probably caused by blasting;

16.4.f.1.C. Possibly caused by blasting;

16.4.f.1.D. Probably not caused by blasting;

or

16.4.f.1.E. Not caused by blasting.

16.4.f.2. The merit-rating factors include,

but are not limited to the following:

16.4.f.2.A. The claimant is the property

owner;

16.4.f.2.B. Correlation of alleged damage

event to a specific blast and mine;

16.4.f.2.C. Correlation of alleged damage

event to a large, unusual, or problem shot;

16.4.f.2.D. Proximity to the blast site;

16.4.f.2.E. Timeliness of first notice of loss;

16.4.f.2.F. Damage that is not indicated on

the pre-blast survey;

16.4.f.2.G. Lack of any other issues or

grievances besides blasting;

16.4.f.2.H. Age and physical condition of

the structure in question;

16.4.f.2.I. Presence of seismographic

records close to the structure in question;

16.4.f.2.J. History of previous blasting in

the immediate area;

16.4.f.2.K. Property that has been

undermined; and

16.4.f.2.L. An area with a history of

geological abnormalities.

16.4.g. Recommendations as to the

equitable resolution of the claim; and

16.4.h. Completing report and sending to

the claims administrator.

Section 199–1–17

Arbitration for Blasting Damage Claims.

[This section is new.]

17.1. Listing of Arbitrators.—The office

shall maintain and make available to the

claimant and the operator a listing of persons

willing and qualified to serve as arbitrators.

The listing shall identify those persons who

are qualified and willing to serve, included

but not limited to, those willing to serve on

a volunteer (i.e., without compensation)

basis. The office shall establish a pool of

arbitrators sufficient to handle the claims

process. Once a year the Environmental

Advocate, and industry representatives

(selected by the West Virginia Mining and

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75895

Reclamation Association and the West

Virginia Coal Association) may move to

strike up to twenty-five percent (25%) of the

list. The Environmental Advocate is required

to seek citizen input. It is anticipated that the

office will recommend the roster be

maintained by the American Arbitration

Association from which the parties will

choose the arbitrator.

17.2. Selection of Arbitrator.—The parties

may choose their own arbitrator by

agreement, who may or may not be a person

on the listing of arbitrators as defined in

subsection 17.1 of this rule. In the absence

of such agreement, the director will provide

the parties with a listing of arbitrators and

permit each of the parties to eliminate, in

rotation, names from the list until one name

remains. That person shall serve as the

arbitrator.

17.3. Provision for Preliminary Information

to the Arbitrator.—The arbitrator may require

the parties to provide pertinent information

to the arbitrator and to the other parties prior

to the arbitration session. Such information

may include, but is not limited to:

17.3.a. The pre-blast survey, shot logs, and

other documents deemed necessary by the

arbitrator to determine the merits and value,

if any, of the blasting damage claim; and

17.3.b. A confidential statement

summarizing a party’s position on the issues

and what relief, if any, should be awarded.

17.4. Demand for Arbitration and

Timeframes for Arbitration.—On forms to be

provided by the office when notifying the

parties of its initial claim determination and

the right to demand arbitration, a party

seeking arbitration shall serve the other party

by certified mail a written demand for

arbitration within fifteen (15) days of receipt

of the initial claim determination. An

arbitrator shall be chosen within fifteen (15)

days of receipt. Unless otherwise agreed by

the parties and the arbitrator, the arbitration

shall be conducted within thirty (30) days

after the appointment of the arbitrator.

Arbitration shall be completed within thirty

(30) days after the first arbitration session,

unless changed by agreement of the parties

and the arbitrator. The arbitrator is

empowered to set the date and time of all

arbitration sessions.

17.5. Place of Arbitration.—The parties

may by agreement select the place of

arbitration and arrange for paying any

associated costs. If the place of arbitration is

determined by agreement, the place must be

identified to the arbitrator upon the

arbitrator’s appointment. The office shall

upon reasonable request by the parties make

available its state office for the arbitration. In

the event the parties cannot agree on the

place of arbitration, the arbitrator is

empowered to do so.

17.6. Confidentiality of the Arbitration

Process.—Arbitration shall be regarded as

confidential. The arbitrator shall maintain

and preserve the confidentiality of all

arbitration proceedings and records. An

arbitrator may not be subpoenaed or called to

testify, or otherwise be subject to process

requiring disclosure of confidential

information in any proceeding relating to or

arising out of the dispute arbitrated.

17.7. Presentations to the Arbitrator.—

Unless otherwise directed by the arbitrator:

17.7.a. Witnesses for the claimant will be

the claimant, any one other person

designated by the claimant, and the

claimant’s representative; and witnesses for

the operator will be a company officer, its

engineer or blaster, and its representative. If

the claimant does not have a representative

and requests representation, the Office of

Explosives and Blasting, through the Office

of the Environmental Advocate, shall provide

a representative throughout the arbitration

process, which representative shall not

necessarily be an attorney-at-law.

17.8. Arbitration Award, Fees, Costs and

Expenses.—If parties agree on settlement

after entering into arbitration, parties may

request their settlement be declared the

official award by the arbitrator. Within thirty

(30) days after the arbitration process is

closed or terminated, the arbitrator shall

issue a decision upholding, upholding in

part, or overruling the initial claim

determination made by the representatives of

the Office of Explosives and Blasting. If the

initial claim determination was in favor of

the claimant, the operator requests arbitration

and the claim determination is upheld or

upheld in part, the operator shall pay the

costs of the proceeding, as well as reasonable

representation fees and costs of the claimant

not to exceed one thousand dollars

($1,000.00). Otherwise, the parties are

equally responsible for the cost of the

proceeding and are responsible for their own

fees and costs.

17.9. Binding Nature of the Award.—By

requesting arbitration, the results of such

arbitration are intended to be final and

binding. As such they are not appealable to

the West Virginia Supreme Court of Appeals,

the circuit courts, or any other tribunal. The

office shall provide written notice to the

claimant of the binding nature of the

arbitration award and shall secure from the

claimant a written acknowledgement that the

claimant understands the final nature of the

award and agrees to be bound by it.

17.10. Payment of the Award.—Should an

award be made against the operator on an

arbitrated claim, the operator shall pay the

full amount of the award within thirty (30)

days of the final determination and award. If

the operator fails to pay the award within

thirty (30) days, the director may issue a

cessation order pursuant to W. Va. Code

Section 22–3–16 for all sites operated by the

operator.

Section 199–1–18

Explosive Material Fee [This section is

new.]

18.1. Assessment Fee on Blasting

Material.—Pursuant to W. Va. Code Section

22–3A–7 and Section 22–5B–2a–2, there is

hereby assessed a fee of one-quarter cent

($.0025) per pound on explosive material

used for any purpose on surface mining

operations. Provided, That the operators

exempted from the application of Chapter 5B,

Article 2A shall pay one-eighth ($.00125)

cent per pound on explosive material.

18.2. Remittance of Fee.—Within thirty

(30) days of the end of each previous quarter

after the effective date of this rule, the

operator shall remit to the office the amount

of the fee calculated by multiplying onequarter cent ($.0025) or one-eighth cent

($.00125) for operators exempt from the

application of Chapter 5B, Article 2A, times

the number of pounds of explosive material

used during the preceding quarter for any

purpose on the surface mining operations:

Provided, That, the materials are measured

by the pound. Copies of the delivery records

and inventories shall be submitted with the

fee to verify the accuracy of the fee

calculation.

18.3. Dedication of the Fee.—The office

shall deposit all moneys received from the

explosive material fees into a special revenue

fund to be known as the ‘‘mountaintop

removal fund’’ within the state treasury.

These moneys shall be expended by the

Office of Explosives and Blasting and the

Office of Coalfield Community Development,

created by W. Va. Code Section 5B–2A–1, in

the performance of their respective duties:

Provided, However, that no explosive

material fees collected from underground or

surface mining operations specifically

exempted from application of Chapter 5B,

Article 2A, may be expended to fund the

Office of Coalfield Community Development.

All such fees shall be reserved and expended

exclusively to fund the Office of Explosives

and Blasting.

18.4. Expenditures.—Direct expenditures

from the fees collected are not authorized,

but shall be appropriated by the legislature.

18.5. Sufficiency of Fees.—After one year

of collection of the explosive material fees

and expenditure of the appropriations

therefrom, the office shall report to the

legislature whether the fees have provided

sufficient revenue to fund the operation of

both the Office of Explosives and Blasting

and the Office of Coalfield Community

Development.

18.6 The director is authorized, through

the Treasurer’s Office to invest the

mountaintop removal fund with all interest

earnings accrued to be returned to and be

made part of the fund.

Section 199–1–19

Noncompliance. [This section is new.]

Failure to timely comply with the fee

requirements of W. Va. Code Section 22–3A

and this rule may result in permit suspension

or revocation in accordance with W. Va.

Code Section 22–3–17.

III. Public Comment Procedures

In accordance with the provisions of

30 CFR 732.17(h), OSM is seeking

comments, on whether the proposed

amendment satisfies the applicable

program approval criteria of 30 CFR

732.15. If the amendment is deemed

adequate, it will become part of the

West Virginia program.

Written Comments

If you submit written or electronic

comments on the proposed amendment

during the 30-day comment period, they

should be specific, should be confined

to issues pertinent to the notice, and

should explain the reason for your

recommendation(s). We may not be able

to consider or include in the

Administrative Record comments

75896 Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules

delivered to an address other than the

one listed above (see ADDRESSES).

Electronic Comments

Please submit Internet comments as

an ASCII, Word Perfect, or Word file

avoiding the use of special characters

and any form of encryption. Please also

include ‘‘Attn: SPATS NO. WV–087–

FOR’’ and your name and return address

in your Internet message. If you do not

receive a confirmation that we have

received your Internet message, contact

the Charleston Field office at (304) 347–

7158.

Availability of Comments

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during our regular business hours at the

OSM Administrative Record Room (see

ADDRESSES). Individual respondents

may request that we withhold their

home address from the rulemaking

record, which we will honor to the

extent allowable by law. There also may

be circumstances in which we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish us to withhold your

name and/or address, you must state

this prominently at the beginning of

your comment. However, we will not

consider anonymous comments. We

will make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Public Hearing

If you wish to speak at the public

hearing, you should contact the person

listed under FOR FURTHER INFORMATION

CONTACT by 4:00 p.m. (local time), on

December 20, 2000. The location and

time of the hearing will be arranged

with those persons requesting the

hearing. If no one requests an

opportunity to speak at the public

hearing, the hearing will not be held.

To assist the transcriber and ensure an

accurate record, we request, if possible,

that each person who testifies at a

public hearing provide us with a written

copy of his or her testimony. The public

hearing will continue on the specified

date until all persons scheduled to

speak have been heard. If you are in the

audience and have not been scheduled

to speak and wish to do so, you will be

allowed to speak after those who have

been scheduled. We will end the

hearing after all persons scheduled to

speak and persons present in the

audience who wish to speak have been

heard.

Any disabled individual who has

need for a special accommodation to

attend a public hearing should contact

the individual listed under FOR FURTHER

INFORMATION CONTACT.

Public Meeting

If only one person requests an

opportunity to speak at a hearing, a

public meeting, rather than a public

hearing, may be held. If you wish to

meet with OSM representatives to

discuss the proposed amendment, you

may request a meeting by contacting the

person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings

will be open to the public and, if

possible, notices of meetings will be

posted at the locations listed under

ADDRESSES. A written summary of each

meeting will be made a part of the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 and

has determined that, to the extent

allowed by law, this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of state regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific state, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

30 CFR 730.11, 732.15, and

732.17(h)(10), decisions on proposed

state regulatory programs and program

amendments submitted by the states

must be based solely on a determination

of whether the submittal is consistent

with SMCRA and its implementing

federal regulations and whether the

other requirements of 30 CFR Parts 730,

731, and 732 have been met.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed state regulatory program

provision does not constitute a major

federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The state submittal

which is the subject of this rule is based

upon counterpart federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the state. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart federal regulation.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million.

Federal Register / Vol. 65, No. 234 / Tuesday, December 5, 2000 / Proposed Rules 75897

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S. based enterprises to

compete with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface

mining, Underground mining.

Dated: November 24, 2000.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

[FR Doc. 00–30870 Filed 12–4–00; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[OSD Administrative Instruction 81]

Privacy Act; Implementation

AGENCY: Office of the Secretary.

ACTION: Proposed rule.

SUMMARY: The Office of the Secretary is

proposing to add an exemption rule for

a Privacy Act system of records. The

exemption is intended to increase the

value of the system of records and to

protect the privacy of individuals

identified in the system of records.

DATES: Comments must be received on

or before February 5, 2001 to be

considered by this agency.

ADDRESSES: Send comments to the OSD

Privacy Act Officer, Washington

Headquarter Services, Correspondence

and Directives Division, Records

Management Division, 1155 Defense

Pentagon, Washington, DC 20301–1155.

FOR FURTHER INFORMATION CONTACT: Mr.

David Bosworth at (703) 601–4725.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

It has been determined that this

Privacy Act rule for the Department of

Defense does not constitute ‘significant

regulatory action’. Analysis of the rule

indicates that it does not have an annual

effect on the economy of $100 million

or more; does not create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; does not materially alter

the budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; does not raise novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in Executive

Order 12866 (1993).

Regulatory Flexibility Act

It has been determined that this

Privacy Act rule for the Department of

Defense does not have significant

economic impact on a substantial

number of small entities because it is

concerned only with the administration

of Privacy Act systems of records within

the Department of Defense.

Paperwork Reduction Act

It has been determined that this

Privacy Act rule for the Department of

Defense imposes no information

requirements beyond the Department of

Defense and that the information

collected within the Department of

Defense is necessary and consistent

with 5 U.S.C. 552a, known as the

Privacy Act of 1974.

List of Subjects in 32 CFR Part 311

Privacy.

1. The authority citation for 32 CFR

part 311 continues to read as follows:

Authority: Pub. L. 93–579, 88 Stat. 1896 (5

U.S.C. 552a).

2. Section 311.8 is amended by

adding paragraph (c)(7) to read as

follows:

§ 311.8 Procedures for exemptions.

* * * * *

(c) * * *

(7) System identifier and name: DGC

20, DoD Presidential Appointee Vetting

File.

(i) Exemption: Investigatory material

compiled solely for the purpose of

determining suitability, eligibility, or

qualifications for federal civilian

employment, military service, federal

contracts, or access to classified

information may be exempt pursuant to

5 U.S.C. 552a(k)(5), but only to the

extent that such material would reveal

the identity of a confidential source.

Portions of this system of records that

may be exempt pursuant to 5 U.S.C.

552a(k)(5) are subsections (d)(1) through

(d)(5).

(ii) Authority: 5 U.S.C. 552a(k)(5).

(iii) Reason: From (d)(1) through (d)(5)

because the agency is required to protect

the confidentiality of sources who

furnished information to the

government under an expressed promise

of confidentiality or, prior to September

27, 1975, under an implied promise that

the identity of the source would be held

in confidence. This confidentiality is

needed to maintain the Government’s

continued access to information from

persons who otherwise might refuse to

give it.

* * * * *

Dated: November 22, 2000.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense .

[FR Doc. 00–30472 Filed 12–4–00; 8:45 am]

BILLING CODE 5001–10–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW–FRL–6904–3]

Hazardous Waste Management

System; Proposed Exclusion for

Identification and Listing Hazardous

Waste

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule and request for

comment.

SUMMARY: The EPA (also, ‘‘the Agency’’

or ‘‘we’’ in this preamble) is proposing

to grant a petition submitted by Heritage

Environmental Services, LLC (Heritage)

to exclude (or ‘‘delist’’) treated Electric

Arc Furnace Dust (EAFD) produced at

Nucor Steel, Division of Nucor

Corporation (Nucor) located in

Crawfordsville, Indiana from the lists of

hazardous wastes contained in Subpart

D of Part 261.

The Agency has tentatively decided to

grant the exclusion based on an

evaluation of waste-specific information

provided by Heritage. This proposed

decision, if finalized, conditionally

excludes the petitioned waste from the

requirements of hazardous waste

regulations under the Resource

Conservation and Recovery Act (RCRA).

We conclude that Heritage’s

petitioned waste is nonhazardous with

respect to the original listing criteria.

DATES: Comments. We will accept

public comments on this proposed

decision until January 19, 2000. We will