West Virginia Regulatory Program, 7475-7480 [2020-02570]

Agencies

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

[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Proposed Rules]
[Pages 7475-7480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02570]


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DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-123-FOR; Docket ID: OSM-2016-0010 S1D1S SS08011000 SX064A000 
201S180110; S2D2S SS08011000 SX064A000 20XS501520]


West Virginia Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of proposed amendments to the West 
Virginia regulatory program (hereinafter, the West Virginia program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Through these proposed amendments, West Virginia seeks to 
revise its program to amend its statutory and regulatory provisions 
that involve blasting and make organizational changes within the West 
Virginia Department of Environmental Protection (WVDEP).

DATES: We will accept written comments on these amendments until 4:00 
p.m., Eastern Standard Time (e.s.t.), March 11, 2020. If requested, we 
will hold a public hearing on the amendments on March 6, 2020. We will 
accept requests to speak at a hearing until 4:00 p.m., e.s.t. on 
February 25, 2020.

ADDRESSES: You may submit comments, identified as SATS No. WV-123-FOR, 
by any of the following methods:

[[Page 7476]]

     Mail/Hand Delivery: Mr. Ben Owens, Field Office Director, 
Pittsburgh Field Office, Office of Surface Mining Reclamation and 
Enforcement, 3 Parkway Center South, 2nd Floor, Pittsburgh, 
Pennsylvania 15220.
     Fax: (412) 937-2177.
     Federal eRulemaking Portal: The amendment has been 
assigned Docket ID: OSM-2016-0010. If you would like to submit comments 
go to https://www.regulations.gov. Follow the instructions for 
submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' below under the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the West 
Virginia program, these amendments, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendments by contacting OSMRE's 
Charleston Field Office or the full text of the program amendments are 
available for you to read at www.regulations.gov.

Mr. Ben Owens, Pittsburgh Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 3 Parkway Center South, 2nd Floor, 
Pittsburgh, PA 15220, Telephone: (412) 937-2827, Email: [email protected]

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

West Virginia Department of Environmental Protection, 601 57th Street 
SE, Charleston, West Virginia 25304, Telephone: (304) 926-0490
Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 604 Cheat Road, Suite 150, Morgantown, WV 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, WV 25801, Telephone: 
(304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Pittsburgh Field Office 
Director. Telephone: (412) 937-2827. Email: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description of the Proposed Amendments
III. Public Comment Procedures
IV. Statutory and Executive Order Reviews

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 State program includes, among other things, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
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 additional background 
information on the West Virginia program, including the Secretary's 
findings, the disposition of comments, and conditions of approval in 
the January 21, 1981, Federal Register (46 FR 5915-5956). 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 Amendments

    On three occasions, April 4, 2016, (Administrative Record No. 
1607), May 3, 2017, (Administrative Record No. 1608), and May 2, 2018, 
(Administrative Record No. 1613), West Virginia sent us proposed 
revisions to its approved program. These first two submissions 
included, among other things, blasting regulations and provisions that 
OSMRE decided to incorporate with the third submission so as not to 
cause confusion. In the first submission, the State proposes to 
eliminate the Office of Explosives and Blasting and consolidate the 
remaining duties and responsibilities related to blasting under the 
Division of Mining and Reclamation. This submission also authorizes 
WVDEP to promulgate its own blasting regulations. The second submission 
modifies the State's pre-blast survey statutory provisions. In the 
third submission, the Division of Mining and Reclamation (DMR) 
submitted its own blasting regulations which relate to blasting plans, 
public notices, blasting procedures, blast records, pre-blast surveys, 
certification of blasters, blasting claims and arbitration, and 
explosive material fee. By combining these, the public will have an 
opportunity to evaluate and comment on both the State's revised 
blasting law and the newly promulgated blasting regulations as set 
forth in these submissions.
    First Submission: House Bill (HB) 4726: By letter dated April 4, 
2016, WVDEP sent us an amendment to its program under SMCRA (30 
U.S.C.1201 et seq.) that included provisions enacted by HB 4726. The 
bill was passed by the West Virginia Legislature on March 11, 2016, and 
approved by the Governor on April 1, 2016. HB 4726 terminated the 
Office of Explosives and Blasting (OEB) with the passage of W.Va. Code 
22-3-34 and transferred the duties and responsibilities relating to 
blasting to the Division of Mining and Reclamation (DMR). The bill also 
provides that the regulatory provisions of the State's Surface Mining 
Blasting Rule set forth in the Code of State Regulations (CSR) 199-1 
remain in effect until DMR develops its own blasting rules. The bill 
involves changes to West Virginia's statutory provisions relating to 
blasting, pre-blast surveys, and the authority to promulgate 
regulations. In addition, the bill added new sections 22-3-35 through 
22-3-38 to reflect organizational changes; transfer of functions; 
disciplinary procedures for certified blasters; blasting damage claims; 
rules, orders and permits to remain in effect regarding blasting; and 
the transfer of personnel and assets.
    Second Submission: Senate Bill (SB) 687: By letter dated May 3, 
2017, WVDEP sent us an amendment to its program under SMCRA (30 
U.S.C.1201 et seq.). SB 687 was passed by the West Virginia Legislature 
on April 8, 2017, and approved by the Governor on April 9, 2017. SB 687 
modified the State's pre-blast survey statutory requirements for 
notifications to owners and occupants regarding blasting associated 
with construction and requests for new pre-blast surveys.
    Third Submission: Senate Bill 163: By letter dated May 2, 2018, 
WVDEP sent us an amendment to its program under SMCRA (30 U.S. C. 1201 
et seq.) to amend its regulations at CSR 38-2-1. SB 163 was passed by 
the West Virginia Legislature on February 16, 2018, and signed by the 
Governor on February 27, 2018. SB 163 authorized WVDEP to promulgate 
legislative rules filed in the State Register on July 27, 2017. SB 163 
consolidated all State blasting requirements under WVDEP's Surface 
Mining Reclamation Regulations. This amendment modifies Section 6 
relating to blasting and creates new Sections 25 through 27 relating to 
certification of blasters, blasting damage claim and arbitration for 
blasting damage claims, and the explosive material fee. It also 
modifies the notification requirements for pre-blast surveys to be 
consistent

[[Page 7477]]

with changes made at W.Va. Code 22-3-13a.

A. Proposed Statutory Revisions Authorized by HB 4726 to W.Va. Code 22-
1-7, 22-3-2, 4, 13a, 22a, 34, 35, 36, 37, and 38--Abolish Office of 
Explosives and Blasting; Legislative Findings and Purpose; Duties of 
Secretary; Pre-Blast Survey Requirements; Site-Specific Blasting 
Design; Office of Explosives and Blasting Terminated; Legislative 
Blasting Rules; Disciplinary Procedures for Certified Blasters; Claims 
Processing for Blasting; Blasting Rules, Orders and Permits to Remain 
in Effect; Proceedings not Affected; and Transfer of Personnel and 
Assets

    HB 4726, which was passed by the West Virginia Legislature, 
repealed section 22-3A of the W.Va. Code and added new sections 
designated 22-3-34 through 38 as a result of the elimination of the 
OEB. This bill consolidates the remaining duties and responsibilities 
related to blasting into the DMR. It also provides that the Blasting 
Rule, CSR 199-1, remains in effect until the DMR develops its own rules 
for blasting. Some changes, within the bill and subsequent bills, are 
non-substantive (i.e., changes in organizational structure, prior 
effective dates, and designated authorities) and will not be further 
elaborated on within this proposed rule.
1. W.Va. Code 22-1-7--Offices Within the Department of Environmental 
Protection
    West Virginia seeks to revise its statutory provisions by deleting 
subsection 6. That subsection created the OEB and charged it with 
administering and enforcing the provisions of article 3 of this 
chapter.
2. W.Va. Code 22-3-2--Legislative Findings and Purpose
    West Virginia seeks to revise its statutory provisions by adding 
subdivisions (a)(3) and (b)(9). Section 22-3-2(a)(3) provides that the 
West Virginia Legislature finds that the reasonable control of blasting 
associated with surface mining within the State is in the public 
interest and will promote the protection of the citizens and their 
property without sacrificing economic development. In addition, it is 
the policy of the State . . . to use reasonable means and measures to 
prevent harm from the effects of blasting to its property and citizens. 
Section 22-3-2(b)(9) provides in part that it is the purpose of the 
article to vest in the Secretary the authority to enforce all of the 
laws, regulations, and rules established to regulate blasting 
consistent with the authority granted in sections 34 through 39 of this 
article.
3. W.Va. Code 22-3-4--Duties and Functions of Secretary
    West Virginia seeks to revise its statutory provisions by adding 
subdivision (b)(6). Section 22-3-4(b)(6) provides that the Secretary 
may, in relation to blasting on all surface mining operations and all 
surface blasting activities related to underground mining operations, 
regulate blasting on all surface mining operations; implement and 
oversee the pre-blast survey process, as set forth in section 22-3-13a; 
maintain and operate a system to receive and address questions, 
concerns and complaints relating to mining operations; set the 
qualifications for individuals and firms performing pre-blast surveys; 
educate, train, examine, and certify blasters; and propose rules for 
legislative approvals pursuant to section 29a-3-15 for the 
implementation of sections 34 through 39 of this article.
4. W.Va. Code 22-3-13a--Pre-Blast Survey Requirements
    West Virginia seeks to revise its statutory provisions by modifying 
subsection (c), subdivision (f)(7), subsection (g), subsection (h), and 
subsection (i). Section 22-3-13a(c) provides that the DMR may not 
determine the pre-blast survey to be incomplete because it indicates 
that access to a particular structure, underground water supply or well 
was refused, impossible or impractical. In addition, the operator must 
send copies of all written waivers and affidavits executed pursuant to 
this subsection to the DMR. Section 22-3-13a(f)(7) provides that pre-
blast survey must include the date of the pre-blast survey and the date 
it was mailed or delivered to the DMR. Section 22-3-13a(g) provides 
that the pre-blast survey must be submitted to the DMR at least 15 days 
prior to the commencement of any production blasting. The DMR must 
review each pre-blast survey as to form and completeness only and 
notify the operator of any deficiencies: Provided, that once all 
required surveys have been reviewed and accepted by the DMR, blasting 
may commence sooner than 15 days after submittal. In addition, the DMR 
must provide a copy of the pre-blast survey to the owner or occupant. 
Section 22-3-13a(h) provides that the pre-blast survey notice must be 
on a form prescribed by the DMR. Finally, section 22-3-13a(i) provides 
that all authority to promulgate blasting rules is transferred from the 
OEB to the DMR. Other statutory provisions relating to pre-blast 
surveys are included in this section of the State's submittal.
5. W.Va. Code 22-3-22a--Site-Specific Blasting Design Requirement
    West Virginia seeks to revise its statutory provisions at 
subsections (e) and (f). Section 22-3-22a(e) provides that blasting 
within 1,000 feet of a protected structure must have a site-specific 
blast design approved by the DMR. In addition, section 22-3-22a(f) 
provides that the operator must send copies of all written waivers 
executed pursuant to this subsection the DMR. Written waivers executed 
and filed with the DMR are valid during the life of the permit or any 
renewal of the permit and are enforceable against any subsequent owners 
or occupants of the protected structure.
6. W.Va. Code 22-3-34--Office of Explosives and Blasting Terminated; 
Transfer of Functions; Responsibilities
    West Virginia seeks to revise its statutory provisions by adding 
section 22-3-34, which states that the OEB will be terminated.
7. W.Va. Code 22-3-35--Legislative Rules on Surface Mining Blasting; 
Disciplinary Procedures for Certified Blasters
    West Virginia seeks to revise its statutory provisions by adding 
section 22-3-35, which provides that the DMR will apply and enforce 
OEB's rules at 199 CSR 1 until it adopts rules of its own. DMR must 
promulgate rules for legislative approval in accordance with the 
provisions of section 29(a)-3-15 as necessary to reflect the repeal of 
section 22-3a-7, as amended. This section includes statutory provisions 
relating to blasting and blaster certification as submitted by West 
Virginia.
8. W.Va. Code 22-3-36--Claims Process for Blasting
    West Virginia seeks to revise its statutory provisions by adding 
section 22-3-36, which establishes a blasting claims process. WVDEP 
must establish and manage the process for filing, administering, and 
resolving claims related to blasting. Other State statutory provisions 
relating to the claims process are presented in this section of the 
submittal.
9. W.Va. Code 22-3-37--Rules, Orders, and Permits To Remain in Effect 
Regarding Blasting; Proceedings not Affected
    West Virginia seeks to revise its statutory provisions by adding 
section 22-3-37. This section provides that all orders, determinations, 
rules, permits,

[[Page 7478]]

grants, contracts, certificates, licenses, waivers, bonds, 
authorizations and privileges that have been issued, made, granted or 
allowed to become effective prior to the enactment of this article will 
remain in effect according to their terms until modified, terminated, 
superseded, set aside or revoked pursuant to this article, by a court 
of competent jurisdiction, or by operation of law. Any proceedings, 
including notices of proposed rulemaking, or any application for any 
license, permit, or certificate pending before the DMR are not affected 
by the enactment of this statute.
10. W.Va. Code 22-3-38--Transfer of Personnel and Assets
    West Virginia seeks to revise its statutory provisions by adding 
section 22-3-38, which provides that the Secretary must transfer to the 
DMR any personnel and assets presently used to perform or used in the 
performance of the duties and functions required by sections 34 through 
39.

B. Proposed Statutory Revisions Authorized by SB 687 to W.Va. Code 22-
3-13a--Pre-Blast Survey Requirements

1. W.Va. Code 22-3-13a(a)(1), (2), (b) and (f)--Pre-Blast Survey 
Requirements
    West Virginia seeks to revise its statutory provisions at section 
22-3-13a(1) for all surface mining operations to send notifications of 
pre-blast surveys to all owners and occupants of man-made dwellings or 
structures within one half mile of the permitted area or areas. Section 
22-3-13a(2) provides that for blasting associated with permitted 
surface disturbance of underground mines and blasting associated with 
specified construction, including but not limited to, haul roads, 
shafts, and/or drainage structures, the operator may send written 
request to the Secretary asking that the required notifications be 
limited to all owner and occupants of man-made dwellings or structures 
within one-half mile of the proposed blasting area. Other pre-blast 
survey requirements are included within this section as submitted by 
the State.

C. Proposed Regulatory Changes Authorized by SB 163 to CSR 38-2-6 
Regarding Blasting; and CSR 38-2-25 Through 27 Relating to 
Certification of Blasters; Blasting Damage Claim and Arbitration for 
Blasting Damage Claims; Explosive Material Fee

    West Virginia seeks to add new language to its regulatory 
provisions relating to blasting in general; certification of blasters; 
blasting damage claims; arbitration for blasting damage claims; and 
explosive material fee by consolidating all blasting requirements into 
its Surface Mining Reclamation Regulations at CSR 38-2-6, 25, 26 and 
27. Most of these requirements are being transferred from the State's 
Surface Mining Blasting Rule at 199 CSR 1 due to the proposed 
elimination of the OEB. With the consolidation of its rules and 
approval of these requirements by OSMRE, 199 CSR 1 will be rescinded by 
the State.
1. CSR 38-2-6.1--General Requirements
    West Virginia seeks to revise its blasting regulations by deleting 
existing language at subsection 6.1 and adding new language which 
provides that each blaster will comply with all applicable State and 
Federal laws in the use of explosives, and each blaster that is 
certified by the Secretary will be responsible for all blasting 
operations in accordance with the blasting plan.
2. CSR 38-2-6.2--Blasting Plans
    West Virginia seeks to revise its blasting regulations by deleting 
existing language at subsection 6.2 and adding new language which 
provides that all surface mining operations that propose blasting must 
include a blasting plan that will include, at a minimum, information 
setting forth the limitation the operator will meet with regard to 
ground vibration and air blast, the basis for those limitation, and the 
methods to be applied in preventing the adverse effects of blasting 
operations. The blasting plan will delineate the type of explosives and 
detonation equipment, the size, the timing and frequency of blasts, and 
the effect of geologic and topographic conditions on specific blasts. 
Other regulatory provisions relating to blasting plans are included 
within this section.
3. CSR 38-2-6.3--Public Notice of Blasting Operations
    West Virginia seeks to add new language to its blasting regulations 
which provides 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. Copies of the schedule 
shall be distributed by certified mail to local governments, public 
utilities, and each resident within one half mile of the blasting 
sites. Unless blasting will occur on drainage structures and roads, 
these structures will be exempt for the purpose of measuring the 
notification area. A list of residents, utilities and owners of man-
made structures within the notification area will be made a part of the 
blasting plan, and will be updated on an annual basis. The operator 
must republish and redistribute the schedule at least every twelve (12) 
months in the same manner above. The operator will 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. Proof of notification 
must be retained by the permittee. Other specific requirements relating 
to notifying the public of all blasting operations are included within 
this section.
4. CSR 38-2-6.4--Surface Blasting on Underground Mines (Face-up Area, 
Slopes and Shafts) and Construction Blasting
    West Virginia seeks to add new language to its blasting regulations 
which provides that construction blasting means incidental blasting to 
develop haul roads, mine access roads, coal preparation plants and 
drainage structures, and cannot include blasting that removes the 
overburden to expose underlying coal seams for the surface extraction. 
Surface blasting activities related to underground coal mining and 
construction blasting are not subject to the requirements of 
subdivision 6.3.a. of this rule so long as all local governments and 
residents and workplaces 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.
    Blasting activities for underground coal mining and construction 
blasting will be subject to this rule and regulated as surface blasting 
and the operator must submit a blast plan that considers all aspects of 
blasting contained in this section. For shafts and slopes related to 
underground mining, 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 this section. 
The Secretary will then only regulate and monitor for surface effects 
from ground vibration and air blast for the remainder of the shaft or 
slope until it intersects the coal seam to be mined.

[[Page 7479]]

5. CSR 38-2-6.5--Blast Record
    West Virginia seeks to add new language to its blasting regulations 
which provides that a blasting log book on forms formatted in a manner 
prescribed by the Secretary will be kept current daily and made 
available for inspection at the site by the Secretary and upon written 
request by the public. Other provisions relating to what information 
blasting records should contain are included within this section.
6. CSR 38-2-6.6--Blasting Procedures
    West Virginia seeks to add new language to its blasting regulations 
which provides that all blasting will be conducted during daytime 
hours, between sunrise and sunset; provided, that the Secretary may 
specify more restrictive time periods based on public requests or other 
consideration, including the proximity to residential areas. No 
blasting will be conducted on Sunday. Provided, however, the Secretary 
may grant approval of a request for Sunday blasting if the operator 
demonstrates to the satisfaction of the Secretary that the blasting is 
necessary and there has been an opportunity for a public hearing. 
Blasting cannot 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 will 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. Other specific blasting and safety 
provisions relating to air blast and ground vibration limits are set 
forth within this section.
7. CSR 38-2-6.7--Blasting Control for ``Other Structures''
    West Virginia seeks to add new language to its blasting regulations 
which provides that all ``other structures'' in the vicinity of the 
blasting area which are not defined as protected structures must be 
protected from damage by the limits specified in paragraph 6.6.c.1 
subdivisions 6.6.h., 6.6.i. and 6.6j of this rule, unless waived in 
total or in part by the owner of the structure. The waiver of the 
protective structures may be accomplished by the establishment of a 
maximum allowable limit on ground vibration or air blast limits or both 
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 based on that 
waiver. The plan submitted under this subsection cannot reduce the 
level of protection for other structures otherwise provided for in this 
rule.
8. CSR 38-2-6.8--Pre-Blast Surveys
    West Virginia seeks to add new language to its blasting regulations 
which provides that at least thirty days prior to commencing blasting, 
an operator's designee must notify in writing all owners and occupants 
of manmade dwellings or structures with a \1/2\ mile of the permit area 
or for those that the meet the requirements of 6.4 of this subsection 
within \1/2\ mile of the blast site that the operator or operator's 
designee will perform pre-blast surveys. The operator must conduct the 
pre-blast survey in a manner that will determine the condition of the 
dwelling or structure, to document any pre-blasting damage and to 
document other physical factors that could reasonably be affected by 
the blasting. Assessments of the pre-blasting condition of structures 
such as pipes, cables, transmission lines, wells, and water systems 
must be based on the exterior or ground surface conditions and other 
available data. Attention must be given to documenting and establishing 
the pre-blasting condition of wells and other water systems. The pre-
blast survey must include a description of the water source and water 
delivery system. When the water supply is a well, the pre-blast survey 
must include written documentation about the type of well, and where 
available, the well log and information about the depth, age, depth and 
type of casing, the static water level, flow and data, the pump the 
name of the drilling contractor and the source or sources of the 
information. Other specific pre-blast survey requirements are included 
within this section.
9. CSR 38-2-25--Certification of Blasters
    West Virginia seeks to add new language to its blasting regulations 
which provides that in every surface mine and surface area of an 
underground mine when blasting operations are being conducted, a 
certified blaster must be responsible for the storage, handling, 
transportation, and use of explosives for each and every blast, and for 
conducting the blasting operations in accordance with the blasting 
plans approved in a permit issued pursuant to W. Va. Code 22-3-1 et 
seq., and the rules promulgated under that article. Each person acting 
in the capacity of a blaster and responsible for the blasting 
operations must be certified by the Secretary. Each certified blaster 
must have proof of certification either on his or her person or on file 
at the permit area during blasting operations. Other specific 
provisions relating to the testing and certification of blasters are 
included within this section.
10. CSR 38-2-26--Blasting Damage Claim and Arbitration for Blasting 
Damage Claims
    West Virginia seeks to add new language to its blasting regulations 
which provides that a claim of damage to surface structures from 
blasting will be the result of one or more of the following:
     Fly rock damage is based on the presence of debris from 
the blast site and the presence of impact damage;
     Air blast damage is characterized by broken or cracked 
window glass; and
     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.
    It is the responsibility of the property owner to notify the 
Secretary of the alleged blasting damage. An investigation will be 
conducted to determine the initial merit of the damage claim. Other 
specific provisions pertaining to filing claims for blaster damage and 
requests for arbitration involving those claims are included within 
this section.
11. CSR 38-2-27--Explosive Material Fee
    West Virginia seeks to add new language to its blasting regulations 
which provides that pursuant to W.Va. Code 22-3A-7 and 5B-2a-2, there 
is hereby assessed a fee of one-quarter cent ($.0025) per pound on 
explosive material used for any purpose on surface mining operations. 
Provided, that the operators exempted from the application of W. Va. 
Code 5B-B1-2A et seq. must pay one-eighth ($.00125) cent per pound on 
explosive material. Other requirements regarding the payment, 
collection and use of the material handling fee are more fully 
described within this section.

[[Page 7480]]

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether these amendments satisfy the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendments, they 
will become part of the State program.

Electronic or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., e.s.t. on 
February 25, 2020. If you are disabled and need reasonable 
accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and 
time of the hearing with those persons requesting the hearing. If no 
one requests an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak, and others present 
in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Statutory and Executive Order Reviews

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB Guidance dated October 
12, 1993, the approval of State program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 30, 2019.
Thomas D. Shope,
 Regional Director, North Atlantic--Appalachian Region.

    Editorial Note: This document was received at the Office of the 
Federal Register on February 5, 2020.

[FR Doc. 2020-02570 Filed 2-7-20; 8:45 am]
BILLING CODE 4310-05-P