West Virginia Regulatory Program, 38941-38951 [E8-15438]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 73, Number 131 (Tuesday, July 8, 2008)]
[Proposed Rules]
[Pages 38941-38951]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15438]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-113-FOR; OSM-2008-0009]


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 on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia regulatory program (the West Virginia program) under the 
Federal Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). West Virginia is submitting a proposed amendment to revise 
its Code of State Regulations (CSR) and the West Virginia Code, as 
contained in Committee Substitutes for Senate Bills 373 and 751. The 
proposed amendment covers a variety of issues including, but not 
limited to, statutory changes involving the special reclamation tax, 
the creation of alternative programs for the purpose of paying for the 
reclamation of forfeited sites including water treatment where 
required, and incremental bonding.
    Other provisions include regulatory revisions relating to public 
notice of permit applications, incidental boundary revisions, permit 
issuance findings, inspection of certain impoundments, reclamation of 
natural drainways subsequent to sediment pond removal, storm water 
runoff analysis,

[[Page 38942]]

contemporaneous reclamation standards regarding excess spoil fills and 
bonding of certain types of excess spoil fills, and effluent limits and 
bond releases on remining operations.
    In addition, most blasting provisions have been removed from the 
State's Surface Mining Reclamation Regulations at Title 38 CSR 2 and 
will now only be found in the State's Surface Mining Blasting Rule at 
Title 199 CSR 1.
    On June 16, 2008, OSM published in a separate Federal Register 
notice, an interim approval of the State's alternative bonding 
provisions at section 22-3-11 of the West Virginia Surface Coal Mining 
and Reclamation Act (WVSCMRA) that specifically relates to the special 
reclamation tax and the creation of the Special Reclamation Water Trust 
Fund. OSM will accept comments on all other provisions of the program 
amendment pursuant to this proposed rule notice.

DATES: We will accept written comments until 4 p.m., EDT August 7, 
2008. If requested, we will hold a public hearing on August 4, 2008. We 
will accept requests to speak until 4 p.m., EDT on July 23, 2008.

ADDRESSES: You may submit comments by any of the following two methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
The proposed rule has been assigned Docket ID OSM-2008-0009. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to https://www.regulations.gov and do the following. Click on the 
``Advanced Docket Search'' button on the right side of the screen. Type 
in the Docket ID OSM-2008-0009 and click the ``Submit'' button at the 
bottom of the page. The next screen will display the Docket Search 
Results for the rulemaking. If you click on OSM-2008-0009, you can view 
the proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.
     Mail/Hand Delivery: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 
25301. Please include the rule identifier (WV-113-FOR) with your 
written comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2008-0009) for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``Public Comment Procedures'' in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by contacting the individual 
listed under FOR FURTHER INFORMATION CONTACT .
    Docket: The proposed rule and any comments that are submitted may 
be viewed over the internet at https://www.regulations.gov. Look for 
Docket ID OSM-2008-0009. In addition, you may review copies of the West 
Virginia program, this amendment, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document at the addresses listed below during normal business hours, 
Monday through Friday, excluding holidays. You may also receive one 
free copy of this amendment by contacting OSM's Charleston Field Office 
listed below.
    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 Department of Environmental Protection, 601 57th 
Street, SE., Charleston, WV 25304, Telephone: (304) 926-0490.
    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:
    Office of Surface Mining Reclamation and Enforcement, Morgantown 
Area Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 
26508, Telephone: (304) 291-4004 (By Appointment Only).
    Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Telephone: (304) 347-7158. E-mail: 
chfo@osmre.gov.

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Description of the Proposed Amendment

    By letter dated April 8, 2008, and received electronically on April 
17, 2008 (Administrative Record Number WV-1503), the West Virginia 
Department of Environmental Protection (WVDEP) submitted an amendment 
to its program under SMCRA (30 U.S.C. 1201 et seq.). The amendment 
consists of changes to the West Virginia Code of State Regulations 
(CSR) and the West Virginia Code, as contained in Committee Substitutes 
for Senate Bills 373 and 751.
    Committee Substitute for Senate Bill 373 authorizes revisions to 
the State's Surface Mining Reclamation Regulations at 38 CSR 2 and its 
Surface Mining Blasting Regulations at 199 CSR 1. Committee Substitute 
for Senate Bill 373 was adopted by the Legislature on March 6, 2008, 
and signed into law by the Governor on March 28, 2008. West Virginia 
Code at paragraphs 64-3-1 (o) and (p) authorize WVDEP to promulgate the 
revisions to its rules as legislative rules. This amendment contains a 
variety of topics, including new language for technical completeness, 
sediment control, storm water runoff, blasting, excess spoil fills, 
bonding programs, water quality, seismograph records, and definitions. 
In addition, the amendment contains Committee Substitute for Senate 
Bill 751, which was adopted by the Legislature on March 8, 2008, and 
approved by the Governor on March 27, 2008. Committee Substitute for 
Senate Bill 751 amended and reenacted section 22-3-11 of the WVSCMRA. 
As mentioned above, OSM has approved, on an interim basis, under a 
separate Federal Register (73 FR 33884) notice a portion of the bill 
relating to the special reclamation tax and the Special Reclamation 
Water Trust Fund. Through this notice, we are requesting public comment 
on the remaining revisions to the State's

[[Page 38943]]

alternative bonding system that are authorized by Committee Substitute 
for Senate Bill 751.
    The amendment is intended to improve the effectiveness of the West 
Virginia program and to render the West Virginia program no less 
effective than the Federal regulations. Throughout this proposed 
amendment, nonsubstantive changes from ``Office'' to ``Secretary'', 
``Office'' to ``office'', ``Office of Explosives and Blasting'' to 
``Secretary'' are made but not listed in this Proposed Rule Notice.
    Pursuant to Committee Substitute for Senate Bill 373, West Virginia 
proposes the following amendments to its Surface Mining Reclamation 
Regulations at Title 38 CSR 2:
1. CSR 38-2-3.2.g Notice of Technical Completeness
    Notice of technical completeness is new language that is to be 
added to the State's regulations. It is to provide the public an 
opportunity to review and comment on a permit application once 
technical review is completed by the State and the application has been 
supplemented by the applicant after the close of the public comment 
period.
    As amended, subparagraph 3.2.g is new and reads as follows:

    3.2.g. Notice of Technical Completeness. After the Secretary 
deems a Surface Mine Application technically complete, the Secretary 
shall cause the applicant to advertise that the application is 
technically complete. The one time notice shall state that the 
application has been deemed technically complete by the Secretary 
and include a fifteen (15) day public review period: Provided, that, 
Notice of Technical Completeness is not necessary if the application 
was technically complete prior to the end of the comment period of 
the original advertisement or a decision is made within ninety (90) 
days of the end of the comment period or informal conference.

    These proposed revisions fall under the provisions of Section 513 
of SMCRA and 30 CFR 773.6.
2. CSR 38-2-3.29.a Incidental Boundary Revisions (IBRs)
    This amendment proposes to delete language regarding incidental 
boundary revisions that provides ``or where it has been demonstrated to 
the satisfaction of the Secretary that limited coal removal on areas 
immediately adjacent to the existing permit''. This proposal is in 
response to earlier OSM concerns about the State's incidental boundary 
revision requirements. See the March 2, 2006, Federal Register for 
further explanation (71 FR 10768).
    As amended, subparagraph 3.29.a reads as follows:

    3.29.a. Incidental Boundary Revisions (IBRs) shall be limited to 
minor shifts or extensions of the permit boundary into non-coal 
areas or areas where any coal extraction is incidental to or of only 
secondary consideration to the intended purpose of the IBR. IBRs 
shall also include the deletion of bonded acreage which is 
overbonded by another valid permit and for which full liability is 
assumed in writing by the successive permittee. Incidental Boundary 
Revisions shall not be granted for any prospecting operations, or to 
abate a violation where encroachment beyond the permit boundary is 
involved, unless an equal amount of acreage covered under the IBR 
for encroachment is deleted from the permitted area and transferred 
to the encroachment area.

    These proposed revisions fall under the provisions of 30 CFR 
774.13(d).
3. CSR 38-2-3.32.b Findings--Permit Issuance
    This amendment proposes to delete the following language at 
subparagraph 3.32.b relating to required written findings for permit 
issuance:

    The Secretary will systematically prioritize the data collection 
and data compilation effort required by this paragraph on the 
ownership and control of violators in the following order: bond 
forfeitures, outstanding unabated cessation orders, delinquent civil 
penalties, and delinquent reclamation fees.
    To accomplish this objective, the Secretary will utilize the 
data in the Federal Applicant Violator System, the Environmental 
Resources Information Network, the Mine Safety and Health 
Administration R.31 Data Base, and the Energy Information 
Administration Data Base together with such other information as may 
be readily available. In addition, the Secretary will make 
reasonable efforts to identify and include the Mine Safety and 
Health Administration identification number for sites on the 
violation listing.

    As amended, subparagraph 3.32.b reads as follows:

    3.32.b. Based on the information provided by applicants for 
surface mining permits pursuant to subdivisions 3.1.a, 3.1.b, 3.1.c, 
3.1.d, 3.1.i, 3.1.j, and 3.1.k of this rule and any other reasonably 
available information, the Secretary will compile and maintain an 
accurate and up-to-date computerized listing of all persons who own 
or control surface mining operations with outstanding unabated 
cessation orders, delinquent civil penalties, delinquent reclamation 
fees, and bond forfeitures of record in the state since May 3, 1978. 
The listing will include, to the extent reasonably possible, all 
owners and controllers of the violator(s), described in subdivision 
3.1.c of this rule. The Secretary will make reasonable efforts to 
determine the owners and controllers of the permittee, the operator 
if different from the permittee, and the lessor or mineral owner, 
where a contract mining situation exists. The procedures and 
listings described in this subsection do not apply to notices of 
violations and are subject to rights of rebuttable presumption. The 
Secretary is not obligated to use this information to conduct a 
systematic review of all existing permits for the purpose of 
identifying and subsequently suspending those, if any, which may 
have been improvidently issued.
    The Secretary will, using the computerized data bases, review 
prior to permit issuance all applications received after the 
effective date of this rule and make all reasonable efforts to 
determine at a minimum in each case whether outstanding violations 
(except for notices of violations), unabated cessation orders, 
delinquent civil penalties, and/or bond forfeitures exist on the 
part of the applicant, the owners or controllers of the operator, 
and the lessor and entities controlled by the lessor, (if the lessor 
retains rights to the coal after extraction) and, if so, withhold 
approval of the application until all violations are abated or 
otherwise resolved in accordance with the requirements of the Act 
and this rule.
    Where the information in the subject data bases is incomplete 
and where the information is not available or has not been made 
available to the Secretary prior to issuance of the permit, the 
Secretary shall not be held in violation of any of the requirements 
of the Act and this rule. However, where it is later determined that 
permits were improvidently issued as a result of inadequate 
information in the subject data bases or other sources available at 
the time the permit is issued, the Secretary shall initiate the 
procedures set forth in subsection 3.34 of this section.

    These proposed revisions delete unnecessary language and fall under 
the provisions of section 510 of SMCRA and 30 CFR 773.8 and 773.11.
4. CSR 38-2-5.4.e.1 Sediment Control: Inspections
    This amendment proposes to remove the words ``Impoundments 
meeting'' after ``30 CFR 77.216(a).'' This revision is to delete 
language that OSM previously disapproved relating to impoundments. See 
the March 2, 2006, Federal Register for further explanation (71 FR 
10771).
    As amended, subparagraph 5.4.e.1 reads as follows:

    5.4.e.1. A qualified registered professional engineer or other 
qualified professional specialist, under the direction of the 
professional engineer, shall inspect each impoundment or sediment 
control structure provided, that a licensed land surveyor may 
inspect those impoundments or sediment control or other water 
retention structures which do not meet the size or other criteria of 
30 CFR 77.216(a); the Class B or C criteria for dams in Earth Dams 
and Reservoirs, TR-60 or W. Va. Code Sec.  22-14 et seq., and which 
are not constructed of coal processing waste or coal refuse. The 
professional engineer, licensed land surveyor, or specialist shall 
be experienced in the construction of impoundments and sediment 
control structures.


[[Page 38944]]


    These proposed revisions fall under the provisions of 30 CFR 816/
817.49(a)(1).
5. CSR 38-2-5.4.h.2 Abandonment Procedures
    This amendment proposes to delete language and add new language 
regarding the construction of natural drainways subsequent to sediment 
pond removal. WVDEP proposes to delete the following:
    ``The natural drainway shall be returned as nearly as practicable 
to its original profile and cross section with the channel sides and 
bottom rock riprapped up to the top of the channels banks. The riprap 
requirement may be waived where the bottom and sides of the channel 
consist of bedrock,'' and proposes to add the following:
    The natural drainway shall be returned as nearly as practicable to 
its original pattern, profile, and dimensions and stabilized to control 
erosion and be in accordance with the reclamation plan. The reclamation 
plan should also take into consideration channel and bank stability and 
habitat enhancement.
    As amended, subparagraph 5.4.h.2 reads as follows:

    5.4.h.2. Embankment type sediment dams, embankment type 
excavated sediment dams and crib and gabion dams, and all 
accumulated sediment behind the dam shall be removed from the 
natural drainway. The natural drainway shall be returned as nearly 
as practicable to its original pattern, profile, and dimensions and 
stabilized to control erosion and be in accordance with the 
reclamation plan. The reclamation plan should also take into 
consideration channel and bank stability and habitat enhancement.

    These proposed revisions fall under the provisions of 30 CFR 816/
817.56.
6. CSR 38-2-5.6.a Storm Water Runoff
    This amendment proposes to clarify what operations may be exempt 
from conducting a ``Storm Water Runoff Analysis'' by adding the 
following language:

    ``Provided, however, an exemption may be considered on a case by 
case basis for mining operations with permitted acreage less than 50 
acres. Furthermore, haulroads, loadouts, and ventilation facilities 
are excluded from this requirement. The storm water runoff analysis 
shall include''

    As amended, subparagraph 5.6.a reads as follows:

    5.6.a. Each application for a permit shall contain a storm water 
runoff analysis. Provided, however, an exemption may be considered 
on a case by case basis for mining operations with permitted acreage 
less than 50 acres. Furthermore, haulroads, loadouts, and 
ventilation facilities are excluded from this requirement. The storm 
water runoff analysis shall include the following:

    These proposed revisions fall under the provisions of 30 CFR 780.21 
and 784.14.
7. CSR 38-2-5.6.b Storm Water Runoff Plan
    This amendment proposes to change the time period from twenty-four 
(24) to forty-eight (48) hours in which the monitoring results of a one 
(1) year, twenty-four (24) hour storm event or greater must be reported 
to the Secretary by the permittee.
    As amended, subparagraph 5.6.b reads as follows:

    5.6.b. Each application for a permit shall contain a runoff-
monitoring plan which shall include, but is not limited to, the 
installation and maintenance of rain gauges. The plan shall be 
specific to local conditions. All operations must record daily 
precipitation and report monitoring results on a monthly basis and 
any one (1) year, twenty-four (24) storm event or greater must be 
reported to the Secretary within forty eight (48) and shall include 
the results of a permit wide drainage system inspection.

    These proposed revisions fall under the provisions of 30 CFR 780.21 
and 784.14.
8. CSR 38-2-5.6.d Phase-in Compliance Schedule
    This amendment proposes to delete language regarding the phase-in 
compliance schedule for the submission of the storm water runoff 
analysis that expired in June 2006. Because the deadline for the 
submission of storm water runoff analysis has expired, the State is 
proposing to delete subparagraphs 5.6.d, d.1, d.1.a, d.1.b, d.1.c, 
d.1.d, and d.1.e.
    There is no Federal counterpart for this proposed revision.
9. CSR 38-2-6 Blasting
    This amendment proposes to remove duplication of rules for blasting 
at Section 6.
    At Subsections 6.1 and 6.2, this amendment proposes to add, ``and 
be in accordance with the requirements with Surface Mining Blasting 
Rule, Title 199 Series 1.'' at the end of the subsections.
    Subsections 6.3, 6.4, 6.5, 6.6, 6.7, and 6.8 are proposed to be 
deleted entirely. As amended, Subsections 6.1 and 6.2 read as follows:

    6.1. General Requirements. Each operator shall comply with all 
applicable state and federal laws in the use of explosives. A 
blaster certified by the Department of Environmental Protection 
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 and be in accordance with the 
requirements with Surface Mining Blasting Rule, Title 199 Series 1.
    6.2. Blasting Plan. Each application for a permit, where 
blasting is anticipated, shall include a blasting plan. The blasting 
plan shall explain how the applicant will comply with the blasting 
requirements of the Act, this rule, and the terms and conditions of 
the permit. 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, the 
methods to be applied in controlling the adverse effects of blasting 
operations and be in accordance with the requirements with Surface 
Mining Blasting Rule, Title 199 Series 1.

    These proposed cross references to the State's blasting rules at 
Title 199, Series 1 fall under the provisions of the Federal blasting 
regulations at 30 CFR 816/817.61-68.
10. CSR 38-2-7.4.b.1.J.1.(c) Front Faces of Valley Fills
    This amendment proposes to add language that was previously removed 
and not approved by OSM in the March 2, 2006, Federal Register (71 FR 
10776). This proposed revision falls under the provisions of 30 CFR 
816.22(d)(1) and 816.71(e)(2).
    West Virginia is proposing to reinstate the language as follows:

    7.4.b.1.J.1.(c) Surface material shall be composed of soil and 
the materials described in subparagraph 7.4.b.1.D.

11. CSR 38-2-14.15.c.2 Reclaimed Areas: Calculation of Disturbed Areas
    This amendment proposes to clarify contemporaneous reclamation 
rules and bonding of excess spoil disposal fills by deleting ``area is 
available to do so;'' and adding ``first two lifts are in and are 
seeded'' at the end of the subparagraph.
    As amended, subparagraph 14.15.c.2 reads as follows:

    14.15.c.2. Areas within the confines of excess spoil disposal 
fills which are under construction provided the fill is being 
constructed in the ``conventional'' method, i.e. , completed from 
the toe up, or those fills which are being constructed progressively 
in lifts from the toe up or are being progressively completed from 
the toe up by constructing benches and appropriate drainage control 
structures (ditches, flumes, channels, etc.) from the toe up as soon 
as the first two lifts are in and are seeded.

    These proposed revisions fall under the provisions of 30 CFR 816.71 
and 816.100.
12. CSR 38-2-14.15.d.3 Excess Spoil Disposal Fills: Bonding Proposed 
Fill Areas
    This amendment proposes to clarify the contemporaneous reclamation 
and bonding requirements of certain excess spoil disposal fills by 
deleting the phrase ``to use single lift top down

[[Page 38945]]

construction'' and adding ``with erosion protection zones'' after the 
word ``designed''.
    As amended, subparagraph 14.15.d.3 reads as follows:

    14.15.d.3. Operations that propose fills that are designed with 
erosion protection zones shall bond the proposed fill areas based 
upon the maximum amount per acre specified in WV Code Sec.  22-3-
12(b)(1).

    These proposed revisions are to further clarify the requirements 
pursuant to the provisions of 30 CFR 800.14 and 816.71.
13. CSR 38-2-14.15.e Applicability
    This amendment proposes to remove the applicability schedule that 
expired in 2004. The applicability schedule regarding the 
implementation of contemporaneous reclamation plans at subparagraphs 
14.15.e, 14.15.e.1 and 14.15.e.2 are removed completely and 14.15.e.3 
is renumbered as 14.15.e.
    There are no Federal counterparts to the subparagraphs that the 
State proposes to delete.
14. CSR 38-2-23.3 Water Quality--Coal Remining Operations
    This amendment proposes to make the State's remining rule 
consistent with the proposed changes in the State's National Pollutant 
Discharge Elimination System (NPDES) rules by deleting the phrase 
``which began after February 4, 1987, and on a site which was mined 
prior to August 3, 1977,'' after ``operation''; deleting ``water 
quality exemptions'' and adding ``effluent limitations'' after ``the''; 
adding ``Title 47 Series 30 subdivision'' and deleting ``Subsection'' 
and adding ``6.2.d.'' after ``in''; and finally, deleting ``subsection 
(p), section 301 of the Federal Clean Water Act, as amended or a coal 
remining operation as defined in 40 CFR Part 434 as amended may qualify 
for the water quality exemptions set forth in 40 CFR Part 434 as 
amended.''
    As amended, Subsection 23.3 reads as follows:

23.3 Water Quality

    A coal remining operation may qualify for the effluent 
limitations set forth in Title 47 Series 30 subdivision 6.2.d.

    These proposed revisions fall under the provisions of the U.S. 
Environmental Protection Agency (EPA) coal remining requirements at 40 
CFR 434.70-75.
15. CSR 38-2-23.4 Requirements to Release Bonds
    This amendment, which relates to bond release, proposes to delete 
the following language: ``and the terms and conditions set forth in the 
NPDES Permit in accordance with subsection (p), section 301 of the 
Federal Clean Water Act, as amended or 40 CFR Part 434 as amended.''
    This proposed revision is to eliminate language in its rules that 
the State finds is no longer essential due to changes in EPA's coal 
remining requirements (72 FR 68000-68031).
    Pursuant to Committee Substitute for Senate Bill 373, West Virginia 
proposes the following amendments to its Surface Mining Blasting 
Regulations at Title 199 CSR 1:
16. Title 199 Surface Mining Blasting Rule CSR 199-1-2-2.39
Definitions
    Various definitions relating to blasting at CSR 199-1-2-2.39 are 
amended by nonsubstantive grammatical changes, such as putting all 
definition terms in quotation marks; changing the term ``Office of 
Explosives and Blasting'' to ``Secretary''; and renumbering due to 
additions and/or deletions of terms. Because they are nonsubstantive in 
nature, these proposed changes are not addressed herein.
    The following definitions at CSR 199-1-2 are revised as follows:
    At Subsection 2.8, ``Blast Site'' is amended and means the area 
where explosive material is handled during loading into boreholes. This 
includes the perimeter area formed by the loaded blast holes as 
measured, 50 feet in all directions from the collar of the outermost 
loaded borehole; or that area protected from access by a physical 
barrier to prevent entry to the loaded blast holes.
    At Subsection 2.27, ``Other Structure'' is amended and means any 
man made structure excluding ``protected structures'' within or outside 
the permit areas which includes but is not limited to, gas wells, gas 
lines, water lines, towers, airports, underground mines, tunnels, 
bridges, and dams. The term does not include structures owned, 
operated, or built by the permittee for the purpose of carrying out 
surface mining operations.
    At Subsection 2.35, ``Secretary'' is substantively identical to 
former Subsection 2.23 and means the Secretary of the Department of 
Environmental Protection or the Secretary's authorized agent.
    At Subsection 2.36, ``Structure'' is amended and means ``a 
protected structure'' or ``other structure'' which is any manmade 
structures within or outside the permit areas which include, but is not 
limited to, dwellings, outbuildings, commercial buildings, public 
buildings, community buildings, institutional buildings, gas lines, 
water lines, towers, airports, underground mines, tunnels and dams. The 
term does not include structures built and/or utilized for the purpose 
of carrying out the surface mining operation.
    At Subsection 2.37, ``Supervised a Blasting Crew'' is amended and 
means a person that is responsible for the conduct of a blasting 
crew(s) and/or that the crew(s) is directed by that person.
    At Subsection 2.38, ``Surface Mine Operations'' is amended and 
means all areas of surface mines, and surface area of underground mines 
(including shafts and slopes), areas ancillary to these operations, and 
the reclamation of these areas, 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 Sec.  22-3-1 et seq., and rules promulgated 
under that article.
    At Subsection 2.39, ``Worked on a Blasting Crew'' is amended and 
means that a person has first-hand experience in storing, handling, 
transporting, and using explosives, and has participated in the 
loading, connecting, and initiation processes of blast, and has 
experience in blasting procedures, and preparation of blast holes.
    These proposed revisions fall under the provisions of section 
515(b)(15) of SMCRA and 30 CFR 816/817.61-68 and Part 850.
17. CSR 199-1-3.2. Blasting Plans
    Subparagraph 3.2.a.5, regarding blasting plans, is amended by 
adding language to minimize, not reduce, dust outside the permit area.
    Subparagraph 3.2.b, regarding blasting plans, is amended by 
requiring that the person conducting the review shall be experienced in 
common blasting practices utilized on surface mining operations and 
shall be a certified inspector. In addition, the reviewer will take 
into consideration the proximity of individual dwellings, structures, 
or communities to the blasting operations.
    Subparagraph 3.2.c is amended to provide that the blasting plan 
shall also contain an inspection and monitoring procedure to insure 
that all blasting operations are conducted to minimize, not eliminate, 
to the maximum extent technically feasible, adverse impacts to the 
surrounding environment and surrounding occupied dwellings. In 
addition, this subsection is amended to provide that all seismographs 
used to monitor airblast or ground vibrations or both shall comply with 
the ISEE Performance Specifications for Blasting Seismographs.

[[Page 38946]]

    Subparagraph 3.2.d is amended to provide that for operations where 
a blasting related notice of violation (NOV) or cessation order (CO) 
has been issued; the Secretary shall review the blasting plan as soon 
as possible, but within thirty (30) days of final disposition of the 
NOV or CO.
    Subparagraph 3.2.e relating to the review of a blasting plan where 
an enforcement action has been taken by the State is deleted in its 
entirety.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.61.
18. CSR 199-1-3.3 Public Notice of Blasting Operations
    Subparagraph 3.3.a, relating to public notice of blasting 
operations, is amended by requiring that at least ten (10) days but not 
more than thirty (30) days prior to commencing any blasting operations 
which detonate five (5) pounds or more of explosives at any given time, 
the operator must publish a blasting schedule in a newspaper of general 
circulation in all the counties of the proposed permit area. The 
operator must republish and redistribute the schedule at least every 
twelve months in the same manner above. In addition, new language 
provides that the permittee must retain proof of publication.
    At subparagraph 3.3.b.1, new language is added that states, 
``Conspicuously place signs reading `Blasting Area' along the edge of 
any blasting area that comes within 100 feet of any public road right-
of-way, and at the point where any other road provides access to the 
blasting area; and'' and the existing language as follows is deleted 
``Warning signs shall be conspicuously displayed at all approaches to 
the blasting site, along haulageways and access roads to the mining 
operation and at all entrances to the permit area. The sign shall at a 
minimum be two feet by three feet (2' x 3') reading `WARNING! 
Explosives in Use' and explaining the blasting warning and the all 
clear signals.''
    At subparagraph 3.3.b.2, new language is added that states, ``At 
all entrances to the permit area from public roads or highways, place 
conspicuous signs which state `Warning! Explosives in Use,' which 
clearly list and describe the meaning of the audible blast warning and 
all-clear signals that are in use,' and which explain the marking of 
blasting areas and charged holes awaiting firing within the permit 
area. The signs shall at a minimum be two feet by three feet (2' x 
3')'' and the existing language as follows is being deleted ``Where 
blasting operations will be conducted within one hundred (100) feet of 
the outside right-of-way of a public road, signs reading ``Blasting 
Area'', shall be conspicuously placed along the perimeter of the 
blasting area''.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.44 and 816/817.66.
19. CSR 199-1-3.4 Surface Blasting at Underground Mines
    This amendment proposes to add a new subparagraph, 3.4.b, regarding 
the regulation of surface blasting at underground mines.
    Subparagraph 3.4.b is amended by adding new language that provides 
that blasting activities for the development of slopes and shafts will 
be subject to this rule and regulated as surface blasting. The operator 
will submit a blast plan for the initial developmental blast of shafts 
and slopes, which will consider all aspects of surface coal mine 
blasting contained in 199 CSR 1. The Secretary will then only regulate 
and monitor for surface effects from ground vibration and airblast for 
the remainder of the shaft or slope until it intersects the coal seam 
to be mined.
    These proposed revisions fall under the provisions of 30 CFR 
817.64.
20. CSR 199-1-3.5 Blast Record
    Subparagraph 3.5.a is amended to require that a blasting log book 
be on forms formatted in a manner prescribed by the Secretary.
    Subparagraph 3.5.c is amended to provide that the blasting log 
shall contain, at a minimum, but not limited to, the following 
information:
    Subparagraph 3.5.c.1 is amended to require the name of the company 
conducting blasting;
    Subparagraph 3.5.c.2 is amended to require the Article 3 permit 
number and shot number;
    Subparagraph 3.5.c.4 is amended to require the identification of 
nearest other structure not owned or leased by the operator, and 
indicate the direction and distance, in feet, to both such structures;
    Subparagraph 3.5.c.5 is amended to require estimated wind direction 
and speed;
    Subparagraph 3.5.c.6 is amended by adding a proviso to identify 
material blasted, including rock type and description of conditions;
    Subparagraph 3.5.c.9 is amended to require a description of 
different quantities of explosives used;
    Subparagraph 3.5.c.14 is amended to require type and length of 
decking;
    Subparagraph 3.5.c.15 is amended to require a description of use of 
blasting mats or other protective measures used;
    Subparagraph 3.5.c.16 is amended to require the quantities of delay 
detonators used;
    Subparagraph 3.5.c.17 is amended by adding the words ``when 
required'' in relation to seismograph records and air blast records;
    Subparagraph 3.5.c.17.A is amended to require that seismograph and 
air blast readings include trigger levels, frequency in Hz, and full 
waveform readings shall be attached to the blast log;
    Subparagraph 3.5.c.17.B is amended to require the name of the 
person who installed the seismograph, also the name of the person 
taking the readings;
    Subparagraph 3.5.c.17.D is amended to require certification of 
annual calibration;
    Subparagraph 3.5.c.18 is amended to require that the shot location 
be identified with use of blasting grids as found on the blast map, 
GPS, or other methods as defined by the approved blast plan;
    Subparagraph 3.5.c.19 is amended by deleting the requirement for a 
sketch of the delay pattern for all decks and to require a detailed 
sketch of delay pattern, including the detonation timing for each hole 
or deck in the entire blast pattern, borehole loading configuration, 
north arrow, distance and directions to structures; and
    Subparagraph 3.5.c.20 is amended to require the reasons and 
conditions to be noted in the blasting log for misfires, any unusual 
event, or violation of the blast plan.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.68.
21. CSR 199-1-3.6. Blasting Procedures
    Subparagraph 3.6.b.2 is amended to require that all approaches to 
the blast area remain guarded until the blaster signals the ``all 
clear''.
    Subparagraph 3.6.c.1 regarding airblast limits is amended to 
provide that the maximum level in Hz be no more than -3dB. In addition, 
Footnote 1 was added to clarify that airblast is a flat response from 4 
to 125 Hz range; at 2 Hz airblast, the microphone can have an error of 
no more than -3dB. Footnote 2 was added to clarify that the use of the 
frequency limits of 0.1 Hz or lower--flat response or C-weighted--slow 
response requires the Secretary's approval.
    Subparagraph 3.6.c.3 is amended to require that all seismic 
monitoring follow the International Society of Explosives Engineers 
(ISEE) Field Practice Guidelines for Blasting Seismographs, unless 
otherwise approved in the blasting plan.

[[Page 38947]]

    Subparagraph 3.6.g is amended to provide that blasting within five 
hundred (500) feet of an underground mine not totally abandoned 
requires the concurrence of the Secretary, and the West Virginia Office 
of Miners Health Safety and Training.
    Subparagraph 3.6.i is amended to require that all seismic 
monitoring follow the ISEE Field Practice Guidelines for Blasting 
Seismographs, unless otherwise approved in the blasting plan.
    Subparagraph 3.6.l is amended by adding a reference to 3.6.i in 
relation to the maximum airblast and ground vibration standards that do 
not apply to structures owned by the permittee and leased or not leased 
to another person.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.66, 816/817.67 and 816.79.
22. CSR 199-1-3.7 Blasting Control for ``Other Structures''
    Subparagraph 3.7.a is amended by adding language to require that 
all ``other structures'' in the vicinity of the blasting area be 
protected from damage by the limits specified in paragraph 3.6.c.1 
subdivisions 3.6.h. and 3.6.i. of this rule, unless waived in total or 
in part by the owner of the structure.
    In addition, the waiver of the protective [limits] may be 
accomplished by the establishment of a maximum allowable limit on air 
blast limits for the structure in the written waiver agreement between 
the operator and the structure owner. The waiver may be presented at 
the time of application in the blasting plan or provided at a later 
date and made available for review and approval by the Secretary.
    All waivers must be acquired before any blasts may be conducted 
[as] designed on that waiver. Language requiring that the operator 
specify the waiver in the blasting plan and that the Secretary approve 
all waivers is being deleted. In addition, language providing for 
alternative maximum allowable limits is being deleted.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.67.
23. CSR 199-1-3.8 Pre-Blast Surveys
    Subparagraph 3.8.a is amended by adding language to provide that at 
least thirty days prior to commencing blasting, an operator's designee 
shall notify in writing all owners and occupants of man made dwellings 
or structures that the operator or operator's designee will perform 
preblast surveys.
    In addition, language is added to require that attention be given 
to documenting and establishing the pre-blasting condition of wells and 
other water systems.
    Subparagraph 3.8.b is amended by adding language to require that 
surveys requested more than ten (10) days before the planned initiation 
of the blasting shall be completed and submitted to the Secretary by 
the operator before the initiation of blasting.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.62.
24. CSR 199-1-3.9 Pre-blast Surveyors
    Subparagraph 3.9.a is amended to require that, at a minimum, 
individuals applying as a pre-blast surveyor must have a combination of 
at least two (2) of the following;
    3.9.a.1 experience in conducting pre-blast surveys, or
    3.9.a.2 technical training in a construction, or engineering 
related field, or
    3.9.a.3 other related training deemed equivalent by the Secretary.
    In addition, language was added to clarify that all applicants must 
complete the pre-blast surveyor training provided by the Secretary 
prior to approval to conduct pre-blast surveys. The Secretary may 
establish a fee for approval of pre-blast surveyors. Language is being 
deleted which provides that experience working as a pre-blast surveyor 
may be acceptable in lieu of the education requirement.
    Subparagraph 3.9.c is amended to clarify that every three (3) years 
after meeting initial qualifications for performing pre-blast surveys, 
those individuals that have met the requirements of subparagraph 3.9.a. 
of this rule must submit a written demonstration of qualifications of 
and ongoing experience performing pre-blast surveys.
    In addition, language was added to provide that those individuals 
who have no ongoing experience must attend the training required in 
3.9.a. and all applicants for re-approval must attend a minimum of 4 
hours continuing education training in a subject area relative to 
knowledge required for conducting pre-blast surveys. Furthermore, the 
Secretary must approve these training programs.
    Subparagraph 3.9.d is amended by adding language to require that 
individuals who assist in the collection of information for pre-blast 
surveys must complete, or be registered for, the pre-blast surveyor 
training provided by the Secretary in 3.9.a. Those registered to attend 
the next available training on the pre-blast survey requirements may 
assist in the collection of information for a period of no more than 
three (3) months, and only under the direct supervision of an approved 
Pre-blast Surveyor. The Secretary shall maintain a list of all those 
individuals who have completed the pre-blast survey requirement 
training.
    Subparagraph 3.9.d is also amended by deleting language which 
provides that an individual who is not an approved pre-blast surveyor 
may conduct pre-blast surveys, working as a pre-blast surveyor-in-
training, only if he or she has registered to attend pre-blast surveyor 
training at the next available opportunity. Pre-blast surveyors-in-
training may conduct pre-blast surveys, only if he or she is conducting 
the survey under the direct supervision of an approved pre-blast 
surveyor. The approved pre-blast surveyor must co-sign any survey 
conducted by a pre-blast surveyor-in-training. Individuals may work as 
pre-blast surveyors-in-training for a period of no more than three 
months, prior to becoming approved pre-blast surveyors.
    Subparagraph 3.9.e is amended to provide that the Secretary may 
disqualify an approved pre-blast surveyor and remove the person from 
the list of approved pre-blast surveyors, if the person allows surveys 
to be submitted that do not meet the requirements of W. Va. Code 22-3-
13a and subsection 3.8 of this rule. In addition, language was added to 
provide that any person who is disqualified may appeal to the 
Secretary, and if not resolved to the Surface Mine Board.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.62.
25. CSR 199-1-3.10 Pre-Blast Survey Review
    Subparagraph 3.10.f is amended by adding language to provide that 
all persons employed by the Secretary, whose duties include review of 
pre-blast surveys and training of pre-blast surveyors, shall meet the 
requirements for pre-blast surveyors as set forth in section 3.9.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.62.
26. CSR 199-1-4.1 Blaster Certification Requirements
    Subparagraph 4.1.a is amended to require each person acting in the 
capacity of a blaster and responsible for the blasting operation be 
certified by the Secretary.
    Subparagraph 4.1.b is amended to require that each applicant for 
certification be a minimum of twenty one (21) years old. In addition, 
new language was added to provide that applicants who have blasting 
experience prior to the last three years, with documentation, may be 
considered by

[[Page 38948]]

the Secretary on a case-by-case basis as qualifying experience for 
initial certification and re-certification; provided the requirements 
of 4.6.c. apply.
    Subparagraph 4.1.c is amended to clarify that the application for 
certification be on forms prescribed by the Secretary.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.61 and 850.14.
27. CSR 199-1-4.2 Training
    Subsection 4.2 is amended by adding language to provide that the 
training program will consist of the West Virginia Surface Mine 
Blasters Self-Study Guide Course and a classroom review of the self-
study guide course.
    In addition, language was added to provide that completion of the 
classroom review part of the training program may not be required for 
first time applicants.
    Furthermore, applicants for certification or applicants for re-
certification, who cannot document the experience requirements 
specified in subdivision 4.1.b. of this rule, must complete the West 
Virginia Surface Mine Blasters Self-Study Guide.
    Subparagraph 4.2.a is amended to provide that, prior to 
certification, all applicants, not just those who choose self study, 
attend a two (2) hour Blaster's Responsibilities training session 
addressing certified blasters' responsibilities and the disciplinary 
procedures contained in subsections 4.9 and 4.10 of this rule.
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 850.13.
28. CSR 199-1-4.3 Examination
    Subparagraph 4.3.b is amended to clarify that the examination for 
certified blaster consists of three parts.
    Subparagraph 4.3.d is amended to clarify that any person who fails 
to pass any part of the exam on the second attempt or every other 
subsequent attempt must certify that he/she has taken or retaken the 
classroom review training program described in subsection 4.2 of this 
rule prior to applying for another examination.
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 850.14.
29. CSR 199-1-4.5 Blaster Certification Prohibitions
    Subparagraph 4.5.d is amended by adding language to provide that 
persons who have had their blasters certification suspended or revoked 
in any other state may be required to show cause as to why they should 
be considered for certification.
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 850.15.
30. CSR 199-1-4.6 Retraining
    Subparagraph 4.6.c is amended to clarify that an applicant for 
recertification who does not meet the experience requirements of 
subdivision 4.1.b of this rule must take the training course defined in 
section 4.2.
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 850.15.
31. CSR 199-1-4.7 Blaster's Certificate
    Subparagraph 4.7.d is amended by adding language to clarify that a 
certified blaster shall not take any instruction or direction on blast 
design, explosives loading, handling, transportation and detonation 
from a person not holding a West Virginia blasters certificate, if such 
instruction or direction may result in an unlawful act, or an improper 
or unlawful action that may result in unlawful effects of a blast.
    In addition, a person not holding a West Virginia blasters 
certification who requires a certified blaster to take such action may 
be prosecuted under W. Va. Code 22-3-17(c) or (i).
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 850.15.
32. CSR 199-1-4.9.a Suspension and Revocation
    Subparagraph 4.9.a.2 is amended by adding language relating to 
Imminent Harm Suspension. The new language is as follows:
    A certified inspector has the authority to issue a temporary 
suspension order to a certified blaster when an imminent danger to 
the health or safety of the public exists, or can reasonably be 
expected to cause significant, imminent environmental harm to land, 
air or water resource by any condition, practice, or violation of 
this rule or any permit condition. The temporary suspension order 
shall take effect immediately.
    4.9.a.2.A. The Secretary shall formally investigate the 
incident(s) and provide written findings to the blaster within 
fifteen days following the effective date of the temporary 
suspension.
    4.9.a.2.B. Informal Conference--Unless waived in writing by the 
certified blaster, an informal conference shall be held at or near 
the site relevant to the violation. This informal conference shall 
be held within twenty-four hours after the temporary suspension 
order becomes effective. The conference shall be held before the 
Secretary, who shall evaluate the blasters' performance and upon 
conclusion of the hearing shall; determine if the temporary 
suspension of the blaster shall remain in force, withdraw the 
suspension, or uphold in part.
    4.9.a.2.C. Appeal to the Secretary--If a blaster chooses to 
appeal the results of the informal conference or the written 
findings of the initial investigation; they may appeal the results 
within in five days to the Secretary. The appeal shall include 
written reasons for the appeal. The Secretary shall conduct a 
hearing within ten days of receipt of the appeal.
    4.9.a.2.D. Any blaster receiving a temporary suspension may 
appeal the decision of the Secretary to the Surface Mine Board.
    4.9.a.5 is amended by adding language to provide that any 
blaster receiving a suspension or revocation may appeal the decision 
to the Secretary and to the Surface Mine Board.
    These proposed revisions fall under the provisions of the 
Federal blaster certification requirements at 30 CFR 850.15.
33. CSR 199-1-4.13 Blasting Crew
    Subsection 4.13 is amended to provide that 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 
the certified blaster in the technical aspects of blasting operations, 
including applicable state and federal laws governing the storage, 
transportation, and proper use of explosives.
    These proposed revisions fall under the provisions of the Federal 
blaster certification requirements at 30 CFR 816/817.61 and 850.13.
34. CSR 199-1-4.14 Reciprocity With Other States
    Subsection 4.14 is amended by adding language to clarify that 
reciprocity is a one time only process. Any blaster who has been issued 
a certification through reciprocity and fails to meet the 
recertification requirements will be required to reexamine and may be 
required to provide refresher training documentation, as per section 
4.6.a of this rule.
    These proposed revisions fall under the provisions of Section 719 
of SMCRA and 30 CFR Part 850.
35. CSR 199-1-5.2 Filing a Blasting Damage Claim
    Subparagraph 5.2.a is amended to clarify that only a certified 
inspector will be assigned to conduct a field investigation to 
determine the initial merit of the damage claim and what such an 
investigation by a certified inspector is to include.
    Subparagraph 5.2.a.3 is amended to require that the inspector will 
make a

[[Page 38949]]

written report on the investigation that describes the nature and 
extent of the alleged damage, taking into consideration the condition 
of the structure, observed defects, or pre-existing damage that is 
accurately indicated on a pre-blast survey, conditions of the structure 
that existed where there has been no blasting conducted by the 
operator, or other reliable indicators that the alleged damage actually 
pre-dated the blasting by the operator.
    In addition, the language was revised to clarify that the inspector 
will make one of the initial determinations in 5.2.a.3.A. through 
5.2.a.3.C., notify the claims administrator, make a recommendation on 
the merit of the claim, and supply information that the claims 
administrator needs to sufficiently document the claim.
    The possible determinations are:
    5.2.a.3.A. There is merit that blasting caused the alleged damage; 
or
    5.2.a.3.B. There is no merit that blasting caused the alleged 
damage.
    5.2.a.3.C. The determination of merit as to whether blasting caused 
or did not cause the alleged damage cannot be made.
    Subparagraph 5.2.a.4 is amended by deleting former 5.2.a.3.C and 
adding similar language to clarify that the inspector will inform the 
property owner of the following four resolution options available for 
the alleged blasting damage:
    5.2.a.4.A. Withdraw the claim, with no further action required by 
the Secretary;
    5.2.a.4.B. File a claim with the operator or the operator's general 
liability insurance carrier;
    5.2.a.4.C. File a claim with the homeowner's insurance carrier; or
    5.2.a.4.D. Submit to the Secretary's claims process.
    Subparagraph 5.2.a.5 is amended by deleting and adding language to 
provide that if the property owner declines part 5.2.a.4.D of this 
rule, the Secretary's involvement will be concluded.
    Subparagraph 5.2.a.6 is amended to clarify that the determination 
as to the merit of a claim is to be made by the inspector.
    These proposed revisions fall under the provisions of 30 CFR 816/
817.62.
36. CSR 199-1-6 Arbitration for Blasting Damage Claims
    Subsection 6.1, relating to the listing of arbitrators, is amended 
by adding language to provide that once a year the Environmental 
Advocate, and industry representatives (selected by the West Virginia 
Coal Association, Inc.) may move to strike up to twenty-five percent 
(25%) of the list, with cause.
    Subsection 6.4 is amended by adding language to require the parties 
for arbitration shall choose an arbitrator within fifteen (15) days of 
receipt of the notice.
    These proposed revisions fall under the provisions of Section 
515(b)(15) of SMCRA and 30 CFR 816/817.62.
37. CSR 199-1-7 Explosive Material Fees
    Subsection 7.2 is amended by adding language to require copies of 
blast logs to verify the accuracy of the report and fee calculation 
made by operators.
    Subsection 7.3 is amended by adding language that for the purpose 
of this section; detonators, caps, detonating cords, and initiation 
systems are exempt from the calculation for explosive material fees. 
However, the Secretary may require reporting on the use of these 
products.
    These proposed revisions fall under the provisions of sections 
515(b)(15) and 719 of SMCRA.
    Pursuant to Committee Substitute for Senate Bill 751, West Virginia 
proposes the following amendments to section 22-3-11 of the WVSMCRA:
38. WVSCMRA 22-3-11 Bonds; Amount and Method of Bonding; Bonding 
Requirements; Special Reclamation Tax and Funds; Prohibited Acts; 
Period of Bond Liability.
    This amendment revises section 22-3-11 of the WVSCMRA relating to 
the State's alternative bonding system. As stated in the WVDEP's April 
8, 2008, letter transmitting the program amendment, the revisions 
contained in Committee Substitute for Senate Bill 751 related ``* * * 
generally to the special reclamation tax by establishing the Special 
Reclamation Water Trust Fund; continuing and reimposing a tax on clean 
coal mined for deposit into both funds; requiring the secretary to look 
at alternative programs; and authorizing secretary to promulgate 
legislative rules implementing the alternative programs.'' Only 
substantive statutory revisions are addressed herein. Nonsubstantive 
editorial, formatting or recodification changes are not addressed in 
this rule.
    The provisions relating to the creation of the Special Reclamation 
Water Trust Fund and the reinstatement and increase in the special 
reclamation tax to seven and four-tenths cents per ton as contained in 
section 22-3-11 (g) and (h)(1), respectively, have been approved by OSM 
on an interim basis in a separate Federal Register notice (June 16, 
2008; 73 FR 33884). These provisions, while summarized in this 
amendment, are subject to public notice and comment in that separate 
Federal Register notice. OSM will render a final decision either 
separately or jointly on those provisions and all other provisions 
identified herein relating to the State's alternative bonding system 
after the close of both public comment periods.
    Subsection 22-3-11(a) of the WVSCMRA is amended by adding language 
to provide that the penal amount of the bond shall be for each acre or 
fraction of an acre.
    Subsection 22-3-11(g) of the WVSCMRA is amended by adding language 
to provide that the Special Reclamation Fund previously created is 
continued. In addition, the Special Reclamation Water Trust Fund is 
created within the State Treasury into and from which moneys shall be 
paid for the purpose of assuring a reliable source of capital to 
reclaim and restore water treatment systems on forfeited sites. The 
moneys accrued in both funds, any interest earned thereon and yield 
from investments by the State Treasurer or West Virginia Investment 
Management Board are reserved solely and exclusively for the purposes 
set forth in this section and section seventeen, article one of this 
chapter.
    The funds shall be administered by the secretary who is authorized 
to expend the moneys in both funds for the reclamation and 
rehabilitation of lands which were subjected to permitted surface 
mining operations and abandoned after the third day of August, one 
thousand nine hundred seventy-seven, where the amount of the bond 
posted and forfeited on the land is less than the actual cost of 
reclamation, and where the land is not eligible for abandoned mine land 
reclamation funds under article two of this chapter. The secretary 
shall develop a long-range planning process for selection and 
prioritization of sites to be reclaimed so as to avoid inordinate 
short-term obligations of the assets in both funds of such magnitude 
that the solvency of either is jeopardized. The secretary may use both 
funds for the purpose of designing, constructing and maintaining water 
treatment systems when they are required for a complete reclamation of 
the affected lands described in this subsection. The secretary may also 
expend an amount not to exceed ten percent of the total annual assets 
in both funds to implement and administer the provisions of this 
article and, as they apply to the Surface Mine Board, articles one and 
four, chapter twenty-two-b of this code.

[[Page 38950]]

    Subsection 22-3-11(h)(1) of the WVSCMRA is amended by adding 
language to provide that for tax periods commencing on and after the 
first day of July, two thousand eight, every person conducting coal 
surface mining shall remit a special reclamation tax as follows:
    (A) For the initial period of twelve months, ending the thirtieth 
day of June, two thousand nine, seven and four-tenths cents per ton of 
clean coal mined, the proceeds of which shall be allocated by the 
secretary for deposit in the Special Reclamation Fund and the Special 
Reclamation Water Trust Fund;
    (B) An additional seven cents per ton of clean coal mined, the 
proceeds of which shall be deposited in the Special Reclamation Fund. 
The tax shall be levied upon each ton of clean coal severed or clean 
coal obtained from refuse pile and slurry pond recovery or clean coal 
from other mining methods extracting a combination of coal and waste 
material as part of a fuel supply. The additional seven-cent tax shall 
be reviewed and, if necessary, adjusted annually by the Legislature 
upon recommendation of the council pursuant to the provisions of 
section seventeen, article one of this chapter: Provided, That the tax 
may not be reduced until the Special Reclamation Fund and Special 
Reclamation Water Trust Fund have sufficient moneys to meet the 
reclamation responsibilities of the state established in this section.
    Subsection 22-3-11(h)(2) of the WVSCMRA is amended to clarify that 
in managing the Special Reclamation Program, the secretary shall:

    (A) Pursue cost-effective alternative water treatment 
strategies; and
    (B) Conduct formal actuarial studies every two years and conduct 
informal reviews annually on both the Special Reclamation Fund and 
Special Reclamation Water Trust Fund.

    Subsection 22-3-11(h)(3) of the WVSCMRA is amended to delete 
obsolete language relating to tasks that were to be completed by the 
secretary by December 31, 2005, and adding language to provide that 
prior to the thirty-first day of December, two thousand eight, the 
secretary shall:

    (A) Determine the feasibility of creating an alternate program, 
on a voluntary basis, for financially sound operators by which those 
operators pay an increased tax into the Special Reclamation Fund in 
exchange for a maximum per acre bond that is less than the maximum 
established in subsection (a) of this section;
    (B) Determine the feasibility of creating an incremental bonding 
program by which operators can post a reclamation bond for those 
areas actually disturbed within a permit area, but for less than all 
of the proposed disturbance and obtain incremental release of 
portions of that bond as reclamation advances so that the released 
bond can be applied to approved future disturbance; and
    (C) Determine the feasibility for sites requiring water 
reclamation by creating a separate water reclamation security 
account or bond for the costs so that the existing reclamation bond 
in place may be released to the extent it exceeds the costs of water 
reclamation.

    Subsection 22-3-11(h)(4) of the WVSCMRA is amended to provide that 
if the secretary determines that the alternative program, the 
incremental bonding program or the water reclamation account or bonding 
programs reasonably assure that sufficient funds will be available to 
complete the reclamation of a forfeited site and that the Special 
Reclamation Fund will remain fiscally stable, the secretary is 
authorized to propose legislative rules in accordance with article 
three, chapter twenty-nine-a of this code to implement an alternate 
program, a water reclamation account or bonding program or other 
funding mechanisms or a combination thereof.
    Subsection 22-3-11(l) of the WVSCMRA is amended by adding language 
to clarify that the Tax Commissioner shall deposit the moneys collected 
with the Treasurer of the State of West Virginia to the credit of the 
Special Reclamation Fund a