[Federal Register Volume 65, Number 234 (Tuesday, December 5, 2000)]
[Proposed Rules]
[Pages 75889-75897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30870]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-087-FOR]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the West 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The program amendment adds new West 
Virginia regulations at 199 CSR 1 concerning Surface Mine Blasting 
Rule. The amendments are intended to improve the operational 
effectiveness of the West Virginia program.

DATES: If you submit written comments, they must be received on or 
before 4:00 p.m. (local time), on January 4, 2001. If requested, a 
public hearing on the proposed amendments will be held at 1:00 p.m. 
(local time), on January 2, 2001. Requests to speak at the hearing must 
be received by 4:00 p.m. (local time), on December 20, 2000.

ADDRESSES: Mail or hand-deliver your written comments and requests to 
speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston 
Field Office at the address listed below.
    You may review copies of the West Virginia program, the proposed 
amendment, a listing of any scheduled hearings, and all written 
comments received in response to this document at the addresses below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the proposed amendment by 
contacting OSM's Charleston Field Office.

Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301 Telephone: (304) 347-7158. E-mail: 
<a href="/cdn-cgi/l/email-protection#492a212f2609263a243b2c672e263f"><span class="__cf_email__" data-cfemail="65060d030a250a160817004b020a13">[email protected]</span></a>
West Virginia Division of Environmental Protection, 10 McJunkin Road, 
Nitro, West Virginia 25143, Telephone: (304) 759-0515. The proposed 
amendment will be posted at the Division's Internet page: http://www.dep.state.wv.us

    In addition, you may review copies of the proposed amendment during 
regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West 
Virginia 26507, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office; Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the West Virginia program. You can find background information 
on the West Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the January 
21, 1981, Federal Register (46 FR 5915-5956). You can find later 
actions concerning the conditions of approval and program amendments at 
30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

II. Discussion of the Proposed Amendment

    By letter dated October 30, 2000 (Administrative Record Number WV-
1187), the WVDEP submitted an amendment to its program. The amendment 
concerns the addition to the West Virginia regulations of new Title 
199, Series 1, entitled Surface Mine Blasting Rule. These regulations 
consist of new blasting provisions and blasting provisions that have 
been relocated or derived from previously approved West Virginia 
blasting provisions. We have identified in brackets in the proposed 
amendment below, those instances where the State has indicated that 
specific provisions have been relocated or derived from previously 
approved blasting provisions. On November 12, 1999 (Administrative 
Record Number WV-1143), we approved, with certain exceptions, revisions 
to the West Virginia Code (W. Va. Code) concerning blasting (64 FR 
61507-61518). The current amendment is intended to revise the States 
blasting rules to implement the approved blasting statutes.
    The new blasting regulations are presented below.

199 CSR 1

Title 199

Legislative Rule

Division of Environmental Protection

Series 1

Surface Mining Blasting Rule

Section 199-1-1. General

    1.1. Scope.--This rule establishes general and specific rules 
for overseeing and regulating blasting on all surface mining 
operations; implementing and overseeing the pre-blast survey 
process; inspection and monitoring of blasting operations; 
seismograph use; warning methods; site specific limitations for 
type, size, timing and frequency of blasts; public notice 
requirements; maintaining and operating a system to receive and 
address questions, concerns and complaints relating to mining 
operations; setting the qualifications for individuals and firms 
performing pre-blast surveys; establishing the education, training, 
examination and certification of blasters; disciplinary procedures 
for blasters; and administering a claims process, including 
arbitration, for property damage caused by blasting.
    1.2. Applicability.--This rule applies to all surface mining 
operations and surface disturbances associated with underground 
mining operations in the State of West Virginia.
    1.3. Authority.--W. Va. Code Sections 22-1-3, 22-3A-4, 22-1-5. 
et seq.
    1.4. Filing Date.
    1.5. Effective Date.
    1.6. Incorporation by Reference.--Federal Counterpart 
Regulations--30 CFR 850.
    1.7. Repeal of Former Rule.--This rule repeals and replaces 
38CSR2C--Standards for Certification of Blasters--Surface Coal 
Mines, effective May 1, 1995, filed April 26, 1995.

Section 199-1-2

    Definitions.--As used in this rule unless used in a context that 
clearly requires a different meaning the term:
    2.1. Active Blasting Experience means experience gained by a 
person who has worked on a blasting crew, supervised a blasting 
crew, or worked on a drilling crew which performed blasting 
operations. Two hundred forty working days constitutes one year of 
experience. Experience may only be gained by ``first-hand'' 
participation in activities associated with the storing, handling, 
transportation and use of explosives or the immediate supervision of 
those activities within surface coal mines, and the surface areas of 
underground coal mines. Experience should be related to surface mine 
blasting; Provided, that other related blasting experience 
(quarrying

[[Page 75890]]

operations, etc.) may be accepted by the director on a case-by-case 
basis as qualifying experience. [This provision was relocated from 
CSR 38-2C-2.1]
    2.2. Air Blast means an airborne shock wave resulting from the 
detonation of explosives.
    2.3. Adjuster means an outside party that is assigned to 
investigate, document, evaluate and make recommendations on a 
reported loss.
    2.4. Arbitrator means an impartial individual appointed by the 
Office of Environmental Protection with the authority to settle the 
disputes between property owners and mine operators as they relate 
to allegations of blasting damage.
    2.5. Arbitration means the referral of a dispute to a neutral or 
impartial person for total or partial determination. It is intended 
to be inexpensive, prompt and fair to the parties.
    2.6. Blast means any planned or unplanned detonation(s) of an 
explosive(s) being initiated simultaneously by a single energy 
source. [This provision was relocated from CSR 38-2C-2.2.]
    2.7. Blast Site means the area where explosive materials is 
handled during loading including the perimeter formed by the loaded 
blast holes and 50 feet in all directions from loaded holes.
    2.8. Blaster means a qualified person in charge of and 
responsible for the design, loading and firing of a blast. This must 
be an individual who is certified by the Office of Explosives and 
Blasting.
    2.9. Blasting Complaint means a communication to the Office of 
Explosives and Blasting from a member of the public expressing 
concern, aggravation, fear or indications of blasting damage. A 
blasting complaint may or may not initially indicate damage.
    2.10. Blasting Claim means an allegation by the property owner 
of blasting related damage to property.
    2.11. Blasting Log means a written record containing all 
pertinent information about a specific blast as may be required by 
law or rule.
    2.12. Blasting Vibration means the temporary ground movement 
produced by a blast that can vary in both intensity and duration.
    2.13. Caused By Blasting means that there is direct, consistent 
and conclusive evidence or information that the alleged damage was 
definitely caused by blasting from the mine site in question.
    2.14. Certified Blaster means a person who has taken and passed 
the examination described in this rule, and has been issued a 
certification card by the Office of Explosives and Blasting. [This 
provision was relocated from CSR 38-2C-2.3.]
    2.15. Certified Examiner/Inspector means a person employed by 
the Office of Explosives and Blasting who administers training or 
examinations to applicants for certification as certified blasters, 
or who inspects surface mining operations and who has taken and 
passed the examination described in of this rule. [This provision 
was relocated from CSR 38-2C-2.4.]
    2.16. Claimant means the property owner who makes a blasting 
damage claim.
    2.17. Claims Administrator means the individual, firm or 
organization that manages the blasting damage claims program for the 
Office of Explosives and Blasting.
    2.18. Construction Blasting means blasting to develop haulroads, 
mine access roads, coal preparation plants, drainage structures, or 
underground coal mine sites and shall not include production 
blasting.
    2.19. Detonation means a chemical reaction resulting in a rapid 
release of energy. [This provision was relocated from CSR 38-2C-2.5]
    2.20. Director means the director of the Division of 
Environmental Protection or the director's authorized agent.
    2.21. Division means the Division of Environmental Protection.
    2.22. Explosives means any chemical compound, mixture or device, 
the primary or common purpose of which is to function by explosion; 
including, but not limited to, water gel, slurries, emulsion, 
dynamites, permissibles, pellet powder, blasting caps, cast primers 
and boosters, detonating cord, detonating cord delay connectors, and 
blasting agents. [This provision was relocated from CSR 38-2C-2.6]
    2.23. Fly Rock means rock and/or earth propelled from the blast 
area through the air or along the ground by the force of the 
detonated explosives.
    2.24. Loss Reserve means the total amount of money indicated in 
a given loss to include the estimated value (repairs or replacement 
costs), and the costs to administer and adjust that loss.
    2.25. Loss Value means the amount of money indicated in a given 
loss to include costs of repairs or replacement costs.
    2.26. Not Caused By Blasting means that there is direct, 
consistent, and conclusive evidence or information that blasting 
from the mine site in question was definitely not at fault for the 
alleged property damage.
    2.27. Office means the Office of Explosives and Blasting.
    2.28. Operator means any person who is granted or who should 
obtain a permit to engage in any activity covered by W. Va. Code 
Section 22.
    2.29. Possible Caused By Blasting means the physical damage in 
question is not entirely consistent with blasting induced property 
damage, but that blasting cannot be ruled out as a casual factor.
    2.30. Pre-Blast Survey means the written documentation of the 
existing condition of a given structure near an area where blasting 
is to be conducted. The purpose of the survey is to note the pre-
blasting condition of the structure and note any observable defects 
or damage.
    2.31. Probably Caused By Blasting means that there is physical 
damage present at the site in question that is entirely consistent 
with blasting induced property damage, and said damage can be 
attributed to a specific mine site and/or blast event(s).
    2.32. Probably Not Caused By Blasting means that there is 
substantial, but not conclusive information that the alleged damage 
was caused by something other than blasting.
    2.33. Production Blasting means blasting that removes the 
overburden to expose underlying coal seams and shall not include 
construction blasting.
    2.34. Protected Structure means any of the following structures 
that are situated outside the permit area: an occupied dwelling, a 
temporarily unoccupied dwelling which has been occupied within the 
past ninety (90) days, a public building, a habitable building for 
commercial purposes, a school, a church, a community or 
institutional building, a public park or a water well. [This 
provision was relocated and modified from CSR 38-2-2.98.]
    2.35. Supervised a Blasting Crew means that a person assumed 
responsibility for the conduct of a blasting crew(s) and that the 
crew(s) reported directly to that person. [This provision was 
relocated from CSR 38-2C-2.7.]
    2.36. Surface Mine and Surface Area of Underground Mines means 
all areas except underground workings surface mined or being surface 
mined, including adjacent areas ancillary to the operations, i.e., 
preparation and processing plants, storage areas, shops, 
haulageways, roads, and trails, which are covered by the provisions 
of W. Va. Code Section 22-3-1 et seq., and rules promulgated under 
that article. [This provision was relocated from CSR 38-2C-2.8.]
    2.37. Worked on a Drilling Crew means that a person has directly 
participated in the loading, connecting, and preparation of blast 
holes and has detonated blasts. [This provision was relocated from 
CSR 38-2C-2.9.]
    2.38. Worked on a Blasting Crew means that a person has first-
hand experience in storing, handling, transporting, and using 
explosives. [This provision was relocated from CSR 38-2C.2.10.]

Section 199-1-3. Blasting

    3.1. General Requirements. Each operator shall comply with all 
applicable state and federal laws in the use of explosives. A 
blaster certified by the office shall be responsible for all 
blasting operations including the transportation, storage and use of 
explosives within the permit area in accordance with the blasting 
plan. [This provision was relocated from CSR 38-2-6.1.]
    3.2. Blasting Plans.
    3.2.a. As required by statute, all surface mining operations 
that propose blasting shall include a blasting plan. The blasting 
plan shall explain how the applicant will comply with the blasting 
requirements of W. Va. Code Section 22-3-1 et seq., and this rule. 
This plan shall include, at a minimum, information setting forth the 
limitations the operator will meet with regard to ground vibration 
and airblast, the basis for those limitations, and the methods to be 
applied in preventing the adverse effects of blasting operations. 
[This provision was relocated and modified from CSR 38-2-6.2.]
    3.2.b. The blasting plans referred to in paragraph 3.2.a. of 
this rule will be reviewed for administrative and technical 
completeness by the office. The person conducting the review shall 
be experienced in common blasting practices utilized on surface 
mining operations. The reviewer will take into consideration past 
operational history of the applicant, the geological

[[Page 75891]]

formation the blasting operations will take place in, and the 
proximity of individual dwellings or communities to the blasting 
operations.
    3.2.c. The blasting plan shall also contain an inspection and 
monitoring procedure to insure that all blasting operations are 
conducted to eliminate, to the maximum extent technically feasible, 
adverse impacts to the surrounding environment and surrounding 
occupied dwellings.
    3.2.d. For operations where a notice of violation (NOV) or 
cessation order (CO) has been issued; the office shall review the 
blasting plan within thirty (30) days of final disposition of the 
NOV or CO. This review will focus on the specific circumstances that 
led to the enforcement action. If necessary the blasting plan will 
be modified to insure all precautions are being taken to safely 
conduct blasting operations.
    3.3. Public Notice of Blasting Operations. [Subsection CSR 199-
1-3.3 was relocated and modified from CSR 38-2.6.3.a.]
    3.3.a. At least ten (10) days but not more than thirty (30) days 
prior to any blasting operations which detonate five (5) pounds or 
more of explosives at any given time, the operator shall publish a 
blasting schedule in a newspaper of general circulation in all the 
counties of the proposed area. Copies of the schedule described in 
subdivision 3.6.a. of this rule shall be distributed by Certified 
Mail to local governments, public utilities and each resident within 
seven tenths (0.7 mi.) of a mile of the blasting site in accordance 
with W. Va. Code Section 22-3-13a(a)(1 and 2). The operator shall 
republish and redistribute the schedule at least every twelve (12) 
months and revise, republish and redistribute the schedule at least 
ten (10) days but not more than thirty (30) days prior to blasting 
whenever the area covered by the schedule changes or actual time 
periods for blasting significantly differ from that set forth in the 
prior schedule. The blasting schedule described in subdivision 
3.6.a. shall contain at a minimum the following:
    3.3.a.1. Name, address and phone number of the operator;
    3.3.a.2. Identification of the specific areas in which blasting 
will take place;
    3.3.a.3. Dates and times when explosives will be detonated;
    3.3.a.4. Methods to be used to control access to the blasting 
area; and
    3.3.a.5. Types and patterns of audible warning and all clear 
signals to be used before and after blasting.
    3.4. Surface blasting activities incident to underground coal 
mining are not subject to the requirements of subdivision 3.3.a of 
this rule so long as all local governments and residents or owners 
of dwellings or structures located within one-half (\1/2\) mile of 
the blast site are notified in writing by the operator of proposed 
times and locations of the blasting operation. Such notice of times 
that blasting is to be conducted may be announced weekly, but in no 
case less than twenty-four (24) hours before the blasting will 
occur. [This provision was relocated from CSR 38-2-6.3.b.]
    3.5. Blast Record. [Subsection CSR 199-1-3.5 was relocated from 
CSR 38-2-6.4.]
    3.5.a. A blasting log book formatted in a manner prescribed by 
the director shall be kept current daily and made available for 
inspection at the site by the director and upon written request by 
the public.
    3.5.b. The blasting log shall be retained by the operator for 
three (3) years.
    3.5.c. The blasting log shall, at a minimum, contain the 
following information:
    3.5.c.1. Name of permittee, operator or other person conducting 
the blast;
    3.5.c.2. Location, date and time of blast;
    3.5.c.3. Name, signature and certification number of blaster-in-
charge;
    3.5.c.4. Identification of nearest structure not owned or leased 
by the operator and direction and distance, in feet, to such 
structure;
    3.5.c.5. Weather conditions;
    3.5.c.6. Type of material blasted;
    3.5.c.7. Number of holes, burden, and spacing;
    3.5.c.8. Diameter and depth of holes;
    3.5.c.9. Types of explosives used;
    3.5.c.10. Weight of explosives used per hole;
    3.5.c.11. Total weight of explosives used;
    3.5.c.12. Maximum weight of explosives detonated within any 
eight (8) millisecond period;
    3.5.c.13. Method of firing and type of circuit;
    3.5.c.14. Type and length of stemming;
    3.5.c.15. If mats or other protections were used;
    3.5.c.16. Type of delay detonator used and delay periods used;
    3.5.c.17. Seismograph records and air blast records shall 
include but not be limited to:
    3.5.c.17.A. Seismograph and air blast reading, including exact 
location, date, and time of reading and its distance from the blast;
    3.5.c.17.B. Name of person and firm taking the readings;
    3.5.c.17.C. Name of person and firm analyzing the record, where 
analysis is necessary; and
    3.5.c.17.D. Type of instrument, sensitivity and calibration 
signal or certification of annual calibration.
    3.5.c.18. Shot location;
    3.5.c.19. Sketch of delay pattern to include the entire blast 
pattern and all decks; and
    3.5.c.20. Reasons and conditions for unscheduled blasts.
    3.6. Blasting Procedures. [Subsection 199-1-3.6. was relocated 
and modified from CSR 38-2-6.5.]
    3.6.a. All blasting shall be conducted during daytime hours, 
between sunrise and sunset; provided, that the director may specify 
more restrictive time periods based on public requests or other 
consideration, including the proximity to residential areas. No 
blasting shall be conducted on Sunday. Provided, however, the 
director may grant approval of a request for Sunday blasting if the 
operator demonstrates to the satisfaction of the director that the 
blasting is necessary and there has been an opportunity for a public 
hearing. Blasting shall not be conducted at times different from 
those announced in the blasting schedule except in emergency 
situations where rain, lightning, or other atmospheric conditions, 
or operator or public safety requires unscheduled detonations. 
Blasting shall be conducted in such a way so as to prevent injury to 
persons, damage to public or private property outside the permit 
area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of surface or groundwater outside 
the permit area.
    3.6.b. Safety Precautions:
    3.6.b.1. Three (3) minutes prior to blasting, a warning signal 
audible to a range of one-half (1/2) mile from the blast site will 
be given. This preblast warning shall consist of three (3) short 
warning signals of five (5) seconds duration with five (5) seconds 
between each signal. One (1) long warning signal of twenty (20) 
seconds duration shall be the ``all clear'' signal. Each person in 
the permit area, and each person who resides or regularly works 
within one-half (1/2) mile of the permit area shall be notified of 
the meaning of these signals;
    3.6.b.2. All approaches to the blast area shall be guarded 
against unauthorized entry prior to and immediately after blasting;
    3.6.b.3. All charged holes shall be guarded and posted against 
unauthorized entry; and
    3.6.b.4. The certified blaster shall be accompanied by at least 
one other person at the time of firing of the blast.
    3.6.c. Airblast Limits.
    3.6.c.1. Airblast shall not exceed the maximum limits listed 
below at the location of any dwelling, public buildings, school, 
church, or community or institutional building outside the permit 
area.

Lower Frequency Limit of Measuring System in Hz (+ 3 dB)--Maximum 
Level, in db

0.1 Hz or lower--flat response (Only when approved by the 
Director)--134 peak.
2 Hz or lower--flat response133 peak.
6 Hz or lower--flat response 129 peak.
C-weighted--slow response (Only when approved by the Director)--105 
peak dBC.

    3.6.c.2. If necessary to prevent damage, the director may 
specify lower maximum allowable airblast levels for use in the 
vicinity of a specific blasting operation.
    3.6.c.3. Monitoring. The operator shall conduct periodic 
monitoring to ensure compliance with the airblast standards. The 
director may require airblast measurement of any or all blasts and 
may specify the locations at which such measurements are taken. The 
air blast measuring systems used shall have an upper-end flat-
frequency response of at least 200 Hz.
    3.6.d. Flyrock, including blasted material, shall not be cast 
from the blasting site more than half way to the nearest dwelling or 
other occupied structure, beyond the area of control specified in 
subdivision 3.6.e of this rule, or in no case beyond the bounds of 
the permit area.
    3.6.e. Access to the blast area shall be controlled against the 
entrance of livestock or unauthorized personnel during blasting and 
for a period thereafter until an authorized person has reasonably 
determined:
    3.6.e.1. That no unusual circumstances exist such as imminent 
slides or undetonated charges, etc.; and
    3.6.e.2. That access to and travel in or through the area can be 
safely resumed. from 38-2-6.5
    3.6.f. At the request of the director, the operator shall 
monitor air blast levels using

[[Page 75892]]

an instrument with an upper-end flat-frequency response of at least 
200 Hz.
    3.6.g. Blast Design.
    3.6.g.1. An anticipated blast design shall be submitted if 
blasting operations will be conducted within:
    3.6.g.1.A. 1,000 feet of any building used as a dwelling, public 
building, school, church, or community or institutional building 
outside the permit area; or
    3.6.g.1.B. 500 feet of an active or abandoned underground mine.
    3.6.g.2. The blast design may be presented as part of a permit 
application or at a time, before the blast as approved by the 
director.
    3.6.g.3. The blast design shall contain sketches of the drill 
patterns, delay periods, and decking and shall indicate the type and 
amount of explosives to be used, critical dimensions, and the 
location and general description of structures, including protected 
structures, to be protected, as well as a discussion of design 
factors to be used, which protect the public and meet the applicable 
airblast, flyrock, and ground-vibration standards.
    3.6.g.4. The blast design shall be prepared and signed by a 
certified blaster.
    3.6.g.5. The director may require changes to the design 
submitted. [This provision was relocated from CSR 38-2-6.5.g.]
    3.6.h. No blasting within five hundred (500) feet of an 
underground mine not totally abandoned shall be permitted except 
with the concurrence of the office, the operator of the underground 
mine and the Mine Safety and Health Administration. The director may 
prohibit blasting on specific areas where it is deemed necessary for 
the protection of public or private property, or the general welfare 
and safety of the public. [This provision was relocated from CSR 38-
2-6.5.h.]
    3.6.i. The operator may use the following scaled distance 
formulas to determine the allowable maximum weight of explosives 
(lbs.) to be detonated in any eight millisecond period without 
seismic monitoring:

Formula and Distance in Feet From the Blasting Site to the Nearest 
Protected Structure

W = (D/50)2--0--300 feet
W = (D/55)2--301--5,000 feet
W = (D/65)2--5,001 feet or greater

W = Weight of explosives in pounds
D = Distance to the nearest structure
    [This provision was relocated from CSR 38-2-6.5.i.]

    3.6.j. The scaled distance formulas need not be used if a 
seismograph measurement at the nearest protected structure is 
recorded and maintained for every blast. The peak particle velocity 
in inches per second in any one of the three mutually perpendicular 
directions shall not exceed the following values at any protected 
structure:

Seismograph Measurement and Distance to the Nearest Protected 
Structure

1.25--0--300 feet
1.0--301--5,000 feet
0.75--5,001 feet or greater
    [This provision was relocated from CSR 38-2-6.5.j.]

    3.6.k. The director may require a seismograph recording of any 
or all blasts based on the physical conditions of the site in order 
to prevent injury to persons or damage to property. [This provision 
was relocated from CSR 38-2-6.5.k.]
    3.6.l. The maximum allowable ground vibration as provided in 
subdivisions 3.6.i and 3.6.j of this subsection shall be reduced by 
the director, if determined necessary to provide damage protection. 
[This provision was relocated from CSR 38-2-6.5.l.]
    3.6.m. The maximum airblast and ground-vibration standards of 
subdivisions 3.6.c and 3.6.j of this subsection shall not apply at 
the following locations:
    3.6.m.1. Structures owned by the permittee and not leased to 
another person; and
    3.6.m.2. Structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the 
director before blasting. [This provision was relocated from CSR 38-
2-6.5.m.]
    3.7. Blasting Control for Other Structures. [Subsection CSR 199-
1-3.7. was relocated from CSR 38-2-6.6.]
    3.7.a. All other structures in the vicinity of the blasting area 
which are not defined as protected structures in subsection 2.24 of 
this rule shall be protected from damage by establishment of a 
maximum allowable limit on ground vibration, specified by the 
operator in the blasting plan and approved by the director.
    3.7.b. The plan submitted under this subsection shall not reduce 
the level of protection for other structures otherwise provided for 
in this rule.
    3.8. Certified Blasting Personnel.--Each person responsible for 
blasting operations shall be certified. Each certified blaster shall 
have proof of certification either on his person or on file at the 
permit area during blasting operations. Certified blasters shall be 
familiar with the blasting plan and blasting related performance 
standards for the operation at which they are working. [This 
provision was relocated from CSR 38-2-6.7.]
    3.9. Pre-blast Surveys. [This provision is new. Many of the 
previously approved pre-blast survey requirements and specifications 
are now included in statute at W. Va. Code 22-3-13a.]
    3.9.a. Qualifications for Individuals and Firms Performing Pre-
blast Surveys.--Individuals must comply with the following:
    3.9.a.1. Individuals must be approved by the office to 
administer pre-blast surveys.
    3.9.a.2. The office shall develop a list of individuals who have 
exhibited ability by past experience to perform pre-blast surveys. 
Provided, however, attending a training course administered by the 
office on pre-blast surveys shall meet the previous experience 
requirements.
    3.9.a.3. Every three (3) years after meeting initial 
qualifications for performing pre-blast surveys, individuals must 
meet the requirements of subparagraphs 3.9.a.1. (or submit written 
qualifications of previous experience performing pre-blast surveys) 
of this rule.
    3.9.b. Pre-blast Survey Review.
    3.9.b.1. Pre-blast surveys shall be submitted to the office on 
forms prescribed by the director in accordance with W. Va. Code 
Section 22-3-13a.
    3.9.b.2. The office shall review each pre-blast survey as to 
form and completeness only, and notify the operator of any 
deficiencies within 15 days.
    3.9.b.3. At the time the pre-blast survey is accepted by the 
DEP, the DEP shall forward a copy to the homeowner or resident.
    3.9.b.4. The Office of Explosives and Blasting shall develop a 
procedure for assuring surveys shall remain confidential.
    3.9.b.5. The DEP shall make available informational materials 
educating citizens about pre-blast surveys and blasting.

Section 199-1-4. Certification of Blasters.

    4.1. Requirements for Certification.--In every surface mine and 
surface area of an underground mine when blasting operations are 
being conducted, a certified blaster shall be responsible for the 
storage, handling, transportation, and use of explosives for each 
and every blast, and for conducting the blasting operations in 
accordance with the blasting plans approved in a permit issued 
pursuant to W. Va. Code Section 22-3-1 et seq., and the rules 
promulgated under that article. [This provision is relocated and 
modified from CSR 38-2-6-1 and 38-2C-3.1.]
    4.2. Qualifications for Certification.--Each applicant for 
certification shall have had at least one (1) year active blasting 
experience within the past five (5) years, and have demonstrated a 
working knowledge of and skills of the storage, handling, 
transportation, and use of explosives, and a knowledge of all state 
and federal laws pertaining thereto, by successfully taking and 
passing the examination for certification required by subsection 6.2 
of this rule. [This provision is derived from W. Va. Code 22-3C-
3.2.]
    4.3. Application for Certification.--Prior to taking the 
examination for certification, a person must submit an application 
along with a fifty dollar ($50.00) application fee to the office to 
take the examination on forms prescribed by the director. Upon 
receipt of an application for examination, the director shall, after 
determining that the applicant meets the experience requirements of 
subsection 4.2 of this rule, notify the applicant of the date, time, 
and location of the scheduled examination. [This provision was 
derived from W. Va. Code 22-3C-3.3.]

Section 199-1-5. Training.--

    The office will administer a training program to assist 
applicants for blaster certification or re-certification in 
acquiring the knowledge and skills required for certification. The 
training requirements shall include, at a minimum, those subject 
areas set forth in subdivisions 6.1.a through 6.1.k of subsection 
6.1 of this rule, and paragraphs 6.2.a.1 through 6.2.a.11 of 
subsection 6.2 of this rule.
    In lieu of completing the training program, the applicant for 
certification or re-certification may complete a self-study course 
using the study guide and other materials available from the office. 
[CSR 199-1-5 was relocated and modified from CSR 38-2C-4.]

Section 199-1-6.

    Examination for Certification of Examiner/Inspector and 
Certified Blaster. [This entire

[[Page 75893]]

section was relocated and modified from CSR 38-2C-5.1.]
    6.1. Examinations for Certified Blaster Examiners/Inspectors.--
All persons employed by the office, whose duties include training, 
examining, and certification of blasters and/or inspecting blasting 
operations shall be a certified examiner/inspector. Certification 
under the provisions of this subsection does not constitute 
certification under the provisions of subsection 6.2 of this rule; 
however, certification under subsection 6.2 of this rule is 
sufficient for certification under this subsection. The examination 
for certified examiner/inspector shall at a minimum tests the 
applicant's knowledge of the information presented in the Study 
guide for West Virginia Surface Mine Blasters, and shall consist of 
three parts;
    6.1.a. Part 1.--A written multiple choice examination covering:
    6.1.a.1. Types of explosives and their properties, to include 
selection of appropriate explosives;
    6.1.a.2. Blasting equipment and accessories, to include blasting 
machines;
    6.1.a.3. Blast dimensions and calculations, to include geologic 
and topographic considerations, blast hole design, flyrock control, 
secondary blasting, and blast plans;
    6.1.a.4. Delay systems, to include pattern design, field layout, 
and initiation systems;
    6.1.a.5. Timing;
    6.1.a.6. Blast vibration and vibration control, to include 
airblast, monitoring techniques, and use of preblast surveys;
    6.1.a.7. Loading and detonating, to include priming, scheduling, 
site control warning signals, and unpredictable hazards;
    6.1.a.8. Storage and transportation of explosives;
    6.1.a.9. Record keeping and reporting;
    6.1.a.10. Current state and federal laws and regulations 
relating to the storage, handling, transportation, and use of 
explosives; the training and certification of blasting personnel, 
and blasting signs; and
    6.1.a.11. Responsibilities of a certified blaster.
    6.1.b. Part 2.--A written simulation whereby the applicant must 
correctly and properly complete a blasting log.
    6.1.c. Part 3.--A hands-on simulation whereby the applicant must 
demonstrate the ability to properly connect a blast, simulate a 
selected initiation system, and simulate detonating a blast.
    6.1.d. A score of 70 percent (70%) for part 1, and 
satisfactorily completion of parts 2 and 3 are required for 
successful passage of the examination. An individual who fails to 
achieve a passing score may retake the examination subject to the 
discretion of the director.
    6.2. Examination for Certified Blaster. [This provision was 
relocated from CSR 38-2C-5.2.]--The examination for certified 
blaster shall include information presented in the study Guide for 
West Virginia Surface Mine Blasters, and shall consist of three (3) 
parts:
    6.2.a. Part 1.--A written multiple choice examination covering:
    6.2.a.1. Types of explosives and their properties, to include 
selection of appropriate explosive(s);
    6.2.a.2. Blasting equipment and accessories, to include blasting 
machines;
    6.2.a3. Blast dimensions and calculations, to include geologic 
and topographic considerations, blast hole design, flyrock control, 
secondary blasting, and blast plans;
    6.2.a.4. Delay systems, to include pattern design, field layout, 
and initiation systems;
    6.2.a.5. Timing;
    6.2.a.6. Blast vibration and vibration control, to include 
airblast, monitoring techniques, and use of preblast surveys;
    6.2.a.7. Loading and detonating, to include priming, scheduling, 
site control, warning signals, and unpredictable hazards;
    6.2.a.8. Storage and transportation of explosives;
    6.2.a.9. Record keeping and reporting;
    6.2.a.10. Current state and federal laws and regulations 
relating to the handling, storage, transportation, and use of 
explosives; the training and certification of blasting personnel, 
and blasting signs; and
    6.2.a.11. Responsibilities of a certified blaster.
    6.2.a.b. Part 2.--A simulation examination whereby the applicant 
must correctly and properly complete a blasting log.
    6.2.c. Part 3--A hands-on simulation whereby the applicant must 
demonstrate the ability to properly connect a blast, simulate a 
selected initiation system, and simulate detonating a blast.
    6.2.d. A score of 80 percent (80%) for a part 1, and a ``passing 
grade'' on parts 2 and 3, which are graded on a pass/fail basis, are 
required for successful passage of the examination.
    6.3. Notification of Score.--The office will notify all persons 
of their scores within thirty (30) days of completing the 
examination. A person who fails to achieve a passing score of any of 
the three (3) parts of the examination, may apply, after thirty (30) 
days of receipt of his or her examination results, to retake the 
entire examination or any portions that the individual failed to 
pass.
    Any person who fails to pass the exam on the second attempt must 
certify that he/she has taken or retaken the training course 
described in section 4 of this rule prior to applying for another 
examination. [This provision is relocated from CSR 38-2C-5.3]

Section 199-1-7

    Approval of Certification.
    Upon determination that an applicant for certification has 
satisfactorily passed the examination, the director shall, within 
thirty (30) days of the examination date, issue a certification card 
to the applicant. [This provision was relocated from CSR 38-2C-6.]

Section 199-1-8

    Conditions or Practice Prohibiting Certification.
    [This provision was relocated from CSR 38-2C-7.]--The Director 
shall not issue a blaster certification to persons who:
    8.1. Are currently addicted to alcohol, narcotics or other 
dangerous drugs;
    8.2. Have exhibited a pattern of conduct inconsistent with the 
acceptance of responsibility for blasting operations; or
    8.3. Are convicted felons. [This provision was relocated from 
CSR 38-2C-7.]

Section 199-1-9

    Re-certification Requirements for Certified Blaster.
    9.1. Re-certification of Blasters.--A certified blaster must be 
re-certified every three (3) years. Each applicant for re-
certification must be currently and must document that he or she 
satisfactorily meets the experience requirements of subsection 4.2 
of this rule and has retaken the training course described in 
section 4 of this rule within the past twelve (12) months prior to 
application. The application for re-certification must be submitted 
on forms prescribed by the director along with a thirty dollar 
(30.00) reapplication fee. [This provision was relocated and 
modified from CSR 38-2C-8.1.]
    9.2. Refresher Training Course/Self-Study Course.--An applicant 
who does not meet the experience requirements of subsection 3.8 of 
this rule must take the refresher training course, or complete the 
self-study course described in section 5 of this rule, and must take 
and pass the examination required in subsection 6.2 of this rule. 
[This provision was relocated form CSR 38-2C-8.2.]

Section 199-1-10

    Presentation of Certificate; Transfer; and Delegation of 
Authority
    10.1. Upon request by the director, a certified blaster shall 
exhibit his or her blaster certification card. [This provision was 
derived from W. Va. Code 22-3C-9.1.]
    10.2. The certified blaster shall take all reasonable care to 
protect his or her certification card from loss or unauthorized 
duplication, and shall immediately report any such loss or 
duplication to the office. [This provision was derived from W. Va. 
Code 22-3C-9.2.]
    10.3. Blaster's certifications may not be transferred or 
assigned. [This provision was derived from W. Va. Code 22-3C-9.3.]
    10.4. Certified blasters shall not delegate their authority or 
responsibility to any individual who is not a certified blaster. 
[This provision was derived form W. Va. Code 22-3C-9.4.].

Section 199-1-11

    Violations by a Certified Blaster.
    The director may issue a notice of violation against a certified 
blaster who is in violation of any of the following:
    11.1. Failure to comply with any order issued by the director;
    11.2. Illegal use of drugs or narcotics, or any use of alcohol 
in the work place;
    11.3. Violations of federal laws or regulations governing the 
purchase, use, handling, transportation, storage, or detonation of 
explosives;
    11.4. False swearing in order to obtain a blaster's 
certification card; or
    11.5. Any illegal or improper action taken by a certified 
blaster which may or has led to injury or death at a blast site. 
[Relocated from CSR 38-2C-10.1.]

Section 199-1-12

    Penalties.
    [Section 199-1-12 was relocated from CSR 38-2C-11.]
    12.1. Suspension.--Upon service of a written notice of violation 
by the director to a certified blaster, the director may also, based 
on clear and convincing evidence of a violation, issue an order 
suspending his or

[[Page 75894]]

her certification. Prior to the issuance of such an order, the 
certified blaster shall be granted a hearing before the director to 
show cause why his or her certification should not be suspended.
    The period of suspension will be conditioned upon the time 
period for completion of remedial measures to abate the violation as 
specified in the notice of violation. The director may also require 
retraining or reexamination as a condition for reinstatement of 
certification.
    12.2. Revocation.--If the remedial action required to abate a 
notice of violation issued by the director to a certified blaster is 
not taken within the specified time period for abatement, the 
director may revoke the blaster's certification and require the 
blaster to relinquish his or her certification card. Revocation will 
occur if the certified blaster fails to retrain or fails to take and 
pass reexamination as a requirement for remedial action as described 
in subsection 12.1 of this rule.
    12.3. Civil and Criminal Penalties--Any certified blaster is 
subject to the individual civil and criminal penalties provided for 
in W. Va. Code Section 22-3-17.

Section 199-1-13

    Hearings and Appeals.--Any certified blaster who is served a 
notice of violation, suspension order, revocation order, or civil 
and criminal sanctions is entitled to the rights of hearings and 
appeals as provided for in W. Va. Code section 22-3-16 and 17. [This 
section was relocated from CSR 38-2C-12.]

Section 199-1-14. Blasting Crew

    Persons who are not certified and who are assigned to a blasting 
crew, or assist in the use of explosives, shall receive directions 
and on-the-job training from a certified blaster. [This section was 
relocated from CSR 38-2C-13.]

Section 199-1-15

    Reciprocity With Other States.
    The director may enter into a reciprocal agreement with other 
states wherein persons holding a valid certification in that state 
may apply for certification in West Virginia, and upon approval by 
the director, be certified without undergoing the training or 
examination requirements set forth in this rule. [This section was 
relocated from CSR 38-2C-14.]

Section 199-1-16

    Blasting Damage Claim [This section is new.]
    16.1. Damage to Surface Structures.--A claim of damage to 
surface structures from blasting will be the result of one or more 
of the following:
    16.1.a. Fly Rock.--Fly rock damage is based on the presence of 
debris from the blast site and the presence of impact damage;
    16.1.b. Air Blast.--Air blast damage is characterized by broken 
or cracked window glass; and
    16.1.c. Blasting Vibration Damage.--Blasting vibration damage is 
investigated by experienced and specially trained personnel to 
accurately determine the presence of such damage. Examples are 
explained in, but not limited to, the American Insurance Association 
publication, Blasting Damage, A Guide for Adjusters and Engineers.
    16.2. Filing a Claim.
    16.2.a. It is the responsibility of the property owner to notify 
the office of the alleged blasting damage. An inspector will be 
assigned to conduct a field investigation to determine the initial 
merit of the damage. An investigation will include the following:
    16.2.a.1. Inspector will contact property owner within one (1) 
business day of receiving the complaint to schedule a visit to the 
property where the alleged blasting damage occurred and interview 
the property owner;
    16.2.a.2. Inspector will visit the blasting site to determine if 
the operator and blaster are in compliance with state blasting 
requirements; and
    16.2.a.3. Inspector will make written documentation on the 
investigation that describes the nature and extent of alleged 
damage, taking into consideration the damage that is accurately 
indicated on a pre-blast survey, damage where there has been no 
blasting conducted by the operator or other reliable indicators that 
the alleged damage actually pre-dated the blasting. Inspector will 
make one of the following determinations:
    16.2.a.3.A. A definite determination that the merit of the 
alleged blasting damage can be made. Inspector will notify the 
claims administrator and supply such information that the claims 
administrator needs to sufficiently document the claim;
    16.2.a.3.B. A definite determination that the merit of the 
alleged blasting damage cannot be made. Inspector will notify the 
claims administrator and supply such information that the claims 
administrator needs to sufficiently document the claim;
    16.2.a.3.C. Inspector will inform the property owner of the 
following four resolution options available for the alleged blasting 
damage:
    16.2.a.3.C.1. Withdraw the claim, with no further action 
required by the office;
    16.2.a.3.C.2. File a claim with the operator or the operator's 
general liability insurance carrier;
    16.2.a.3.C.3. File a claim with the homeowner's insurance 
carrier; or 16.2.a.3.C.4. Submit to the office's claims process.
    16.2.a.3.D. If the property owner declines Part 16.2.a.3.C.4. of 
this rule, the office's involvement will be concluded.
    16.2.a.4. Once a determination is made as to the merit of a 
claim, the office shall offer a chance to meet between the claimant 
and the permittee to attempt to resolve the issue.
    16.3. The claims administrator will be responsible for the 
following:
    16.3.a. Sending notice to the respective operator of the damage 
claim;
    16.3.b. Making an initial assignment of the damage claim to a 
qualified claims adjuster within one business day;
    16.3.c. Making an initial monetary determination of loss reserve 
of the respective claim; and
    16.3.d. Providing the relevant claims information to the 
arbitrator assigned to that claim.
    16.4. The adjuster will be responsible for the following:
    16.4.a. Contacting the property owner and physically visiting 
the blasting damage site within three (3) business days of the 
initial assignment;
    16.4.b. Documenting the alleged blasting damage through accepted 
methods such as photographs, video tapes, written descriptions, and 
diagrams;
    16.4.c. Reviewing such available supporting information such as 
blasting logs, seismograph records and pre-blasting surveys;
    16.4.d. Making a determination for the need for additional 
assistance from structural engineers, building contractors, and 
blasting consultants. The claims administrator will be the approving 
authority for the assignment of such specialists;
    16.4.e. Making a determination as to the merit of the alleged 
blasting damage claim.
    16.4.f. Making an initial monetary determination of the loss 
value of the respective claim.
    16.4.f.1. The adjuster will use the following ratings in the 
determination of the merit of the alleged blasting damage claim:
    16.4.f.1.A. Caused by blasting;
    16.4.f.1.B. Probably caused by blasting;
    16.4.f.1.C. Possibly caused by blasting;
    16.4.f.1.D. Probably not caused by blasting; or
    16.4.f.1.E. Not caused by blasting.
    16.4.f.2. The merit-rating factors include, but are not limited 
to the following:
    16.4.f.2.A. The claimant is the property owner;
    16.4.f.2.B. Correlation of alleged damage event to a specific 
blast and mine;
    16.4.f.2.C. Correlation of alleged damage event to a large, 
unusual, or problem shot;
    16.4.f.2.D. Proximity to the blast site;
    16.4.f.2.E. Timeliness of first notice of loss;
    16.4.f.2.F. Damage that is not indicated on the pre-blast 
survey;
    16.4.f.2.G. Lack of any other issues or grievances besides 
blasting;
    16.4.f.2.H. Age and physical condition of the structure in 
question;
    16.4.f.2.I. Presence of seismographic records close to the 
structure in question;
    16.4.f.2.J. History of previous blasting in the immediate area;
    16.4.f.2.K. Property that has been undermined; and
    16.4.f.2.L. An area with a history of geological abnormalities.
    16.4.g. Recommendations as to the equitable resolution of the 
claim; and
    16.4.h. Completing report and sending to the claims 
administrator.

Section 199-1-17

    Arbitration for Blasting Damage Claims. [This section is new.]
    17.1. Listing of Arbitrators.--The office shall maintain and 
make available to the claimant and the operator a listing of persons 
willing and qualified to serve as arbitrators. The listing shall 
identify those persons who are qualified and willing to serve, 
included but not limited to, those willing to serve on a volunteer 
(i.e., without compensation) basis. The office shall establish a 
pool of arbitrators sufficient to handle the claims process. Once a 
year the Environmental Advocate, and industry representatives 
(selected by the West Virginia Mining and

[[Page 75895]]

Reclamation Association and the West Virginia Coal Association) may 
move to strike up to twenty-five percent (25%) of the list. The 
Environmental Advocate is required to seek citizen input. It is 
anticipated that the office will recommend the roster be maintained 
by the American Arbitration Association from which the parties will 
choose the arbitrator.
    17.2. Selection of Arbitrator.--The parties may choose their own 
arbitrator by agreement, who may or may not be a person on the 
listing of arbitrators as defined in subsection 17.1 of this rule. 
In the absence of such agreement, the director will provide the 
parties with a listing of arbitrators and permit each of the parties 
to eliminate, in rotation, names from the list until one name 
remains. That person shall serve as the arbitrator.
    17.3. Provision for Preliminary Information to the Arbitrator.--
The arbitrator may require the parties to provide pertinent 
information to the arbitrator and to the other parties prior to the 
arbitration session. Such information may include, but is not 
limited to:
    17.3.a. The pre-blast survey, shot logs, and other documents 
deemed necessary by the arbitrator to determine the merits and 
value, if any, of the blasting damage claim; and
    17.3.b. A confidential statement summarizing a party's position 
on the issues and what relief, if any, should be awarded.
    17.4. Demand for Arbitration and Timeframes for Arbitration.--On 
forms to be provided by the office when notifying the parties of its 
initial claim determination and the right to demand arbitration, a 
party seeking arbitration shall serve the other party by certified 
mail a written demand for arbitration within fifteen (15) days of 
receipt of the initial claim determination. An arbitrator shall be 
chosen within fifteen (15) days of receipt. Unless otherwise agreed 
by the parties and the arbitrator, the arbitration shall be 
conducted within thirty (30) days after the appointment of the 
arbitrator. Arbitration shall be completed within thirty (30) days 
after the first arbitration session, unless changed by agreement of 
the parties and the arbitrator. The arbitrator is empowered to set 
the date and time of all arbitration sessions.
    17.5. Place of Arbitration.--The parties may by agreement select 
the place of arbitration and arrange for paying any associated 
costs. If the place of arbitration is determined by agreement, the 
place must be identified to the arbitrator upon the arbitrator's 
appointment. The office shall upon reasonable request by the parties 
make available its state office for the arbitration. In the event 
the parties cannot agree on the place of arbitration, the arbitrator 
is empowered to do so.
    17.6. Confidentiality of the Arbitration Process.--Arbitration 
shall be regarded as confidential. The arbitrator shall maintain and 
preserve the confidentiality of all arbitration proceedings and 
records. An arbitrator may not be subpoenaed or called to testify, 
or otherwise be subject to process requiring disclosure of 
confidential information in any proceeding relating to or arising 
out of the dispute arbitrated.
    17.7. Presentations to the Arbitrator.--Unless otherwise 
directed by the arbitrator:
    17.7.a. Witnesses for the claimant will be the claimant, any one 
other person designated by the claimant, and the claimant's 
representative; and witnesses for the operator will be a company 
officer, its engineer or blaster, and its representative. If the 
claimant does not have a representative and requests representation, 
the Office of Explosives and Blasting, through the Office of the 
Environmental Advocate, shall provide a representative throughout 
the arbitration process, which representative shall not necessarily 
be an attorney-at-law.
    17.8. Arbitration Award, Fees, Costs and Expenses.--If parties 
agree on settlement after entering into arbitration, parties may 
request their settlement be declared the official award by the 
arbitrator. Within thirty (30) days after the arbitration process is 
closed or terminated, the arbitrator shall issue a decision 
upholding, upholding in part, or overruling the initial claim 
determination made by the representatives of the Office of 
Explosives and Blasting. If the initial claim determination was in 
favor of the claimant, the operator requests arbitration and the 
claim determination is upheld or upheld in part, the operator shall 
pay the costs of the proceeding, as well as reasonable 
representation fees and costs of the claimant not to exceed one 
thousand dollars ($1,000.00). Otherwise, the parties are equally 
responsible for the cost of the proceeding and are responsible for 
their own fees and costs.
    17.9. Binding Nature of the Award.--By requesting arbitration, 
the results of such arbitration are intended to be final and 
binding. As such they are not appealable to the West Virginia 
Supreme Court of Appeals, the circuit courts, or any other tribunal. 
The office shall provide written notice to the claimant of the 
binding nature of the arbitration award and shall secure from the 
claimant a written acknowledgement that the claimant understands the 
final nature of the award and agrees to be bound by it.
    17.10. Payment of the Award.--Should an award be made against 
the operator on an arbitrated claim, the operator shall pay the full 
amount of the award within thirty (30) days of the final 
determination and award. If the operator fails to pay the award 
within thirty (30) days, the director may issue a cessation order 
pursuant to W. Va. Code Section 22-3-16 for all sites operated by 
the operator.

Section 199-1-18

    Explosive Material Fee [This section is new.]
    18.1. Assessment Fee on Blasting Material.--Pursuant to W. Va. 
Code Section 22-3A-7 and Section 22-5B-2a-2, there is hereby 
assessed a fee of one-quarter cent ($.0025) per pound on explosive 
material used for any purpose on surface mining operations. 
Provided, That the operators exempted from the application of 
Chapter 5B, Article 2A shall pay one-eighth ($.00125) cent per pound 
on explosive material.
    18.2. Remittance of Fee.--Within thirty (30) days of the end of 
each previous quarter after the effective date of this rule, the 
operator shall remit to the office the amount of the fee calculated 
by multiplying one-quarter cent ($.0025) or one-eighth cent 
($.00125) for operators exempt from the application of Chapter 5B, 
Article 2A, times the number of pounds of explosive material used 
during the preceding quarter for any purpose on the surface mining 
operations: Provided, That, the materials are measured by the pound. 
Copies of the delivery records and inventories shall be submitted 
with the fee to verify the accuracy of the fee calculation.
    18.3. Dedication of the Fee.--The office shall deposit all 
moneys received from the explosive material fees into a special 
revenue fund to be known as the ``mountaintop removal fund'' within 
the state treasury. These moneys shall be expended by the Office of 
Explosives and Blasting and the Office of Coalfield Community 
Development, created by W. Va. Code Section 5B-2A-1, in the 
performance of their respective duties: Provided, However, that no 
explosive material fees collected from underground or surface mining 
operations specifically exempted from application of Chapter 5B, 
Article 2A, may be expended to fund the Office of Coalfield 
Community Development. All such fees shall be reserved and expended 
exclusively to fund the Office of Explosives and Blasting.
    18.4. Expenditures.--Direct expenditures from the fees collected 
are not authorized, but shall be appropriated by the legislature.
    18.5. Sufficiency of Fees.--After one year of collection of the 
explosive material fees and expenditure of the appropriations 
therefrom, the office shall report to the legislature whether the 
fees have provided sufficient revenue to fund the operation of both 
the Office of Explosives and Blasting and the Office of Coalfield 
Community Development.
    18.6 The director is authorized, through the Treasurer's Office 
to invest the mountaintop removal fund with all interest earnings 
accrued to be returned to and be made part of the fund.

Section 199-1-19

    Noncompliance. [This section is new.]
    Failure to timely comply with the fee requirements of W. Va. 
Code Section 22-3A and this rule may result in permit suspension or 
revocation in accordance with W. Va. Code Section 22-3-17.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments, on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the West Virginia program.

Written Comments

    If you submit written or electronic comments on the proposed 
amendment during the 30-day comment period, they should be specific, 
should be confined to issues pertinent to the notice, and should 
explain the reason for your recommendation(s). We may not be able to 
consider or include in the Administrative Record comments

[[Page 75896]]

delivered to an address other than the one listed above (see 
ADDRESSES).

Electronic Comments

    Please submit Internet comments as an ASCII, Word Perfect, or Word 
file avoiding the use of special characters and any form of encryption. 
Please also include ``Attn: SPATS NO. WV-087-FOR'' and your name and 
return address in your Internet message. If you do not receive a 
confirmation that we have received your Internet message, contact the 
Charleston Field office at (304) 347-7158.

Availability of Comments

    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during our 
regular business hours at the OSM Administrative Record Room (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the rulemaking record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the rulemaking record a respondent's identity, as 
allowable by law. If you wish us to withhold your name and/or address, 
you must state this prominently at the beginning of your comment. 
However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

Public Hearing

    If you wish to speak at the public hearing, you should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m. (local 
time), on December 20, 2000. The location and time of the hearing will 
be arranged with those persons requesting the hearing. If no one 
requests an opportunity to speak at the public hearing, the hearing 
will not be held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who testifies at a public 
hearing provide us with a written copy of his or her testimony. The 
public hearing will continue on the specified date until all persons 
scheduled to speak have been heard. If you are in the audience and have 
not been scheduled to speak and wish to do so, you will be allowed to 
speak after those who have been scheduled. We will end the hearing 
after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. If you wish 
to meet with OSM representatives to discuss the proposed amendment, you 
may request a meeting by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT. All such meetings will be open to the public and, 
if possible, notices of meetings will be posted at the locations listed 
under ADDRESSES. A written summary of each meeting will be made a part 
of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific state, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed state regulatory programs and program amendments 
submitted by the states must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The state submittal which is the subject of this rule is based upon 
counterpart federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the state. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart federal regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.

[[Page 75897]]

    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 24, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 00-30870 Filed 12-4-00; 8:45 am]
BILLING CODE 4310-05-P


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