H. B. 2641
(By Delegates Douglas, Collins, Kuhn,
Davis, Capito, Flanigan and Thompson)
[Introduced February 4, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section seven, article one, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend said chapter by
adding thereto a new article, designated article four-a, all
relating to blasting; creating the office of explosives and
blasting within the division of environmental protection;
defining terms; duties and responsibilities of the office of
explosives and blasting; administration of blaster's
certification program; enforcement of blasting laws;
requiring proposal of rules for legislative approval; review
of blasting plans; preblasting survey requirements;
requiring use of seismographs; requiring public meetings; providing for investigation of complaints; providing for
pilot project for the mediation of water well disputes;
rules, orders and permits to remain in effect; and providing
for termination of office.
Be it enacted by the Legislature of West Virginia:
That section seven, article one, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said chapter be
amended by adding thereto a new article, designated article
four-a, all to read as follows:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-7. Offices within division.
Consistent with the provisions of this article the director
shall, at a minimum, maintain the following offices within the
division:
(1) The office of abandoned mine lands and reclamation,
which is charged, at a minimum, with administering and enforcing,
under the supervision of the director, the provisions of article
two of this chapter;
(2) The office of mining and reclamation, which is charged,
at a minimum, with administering and enforcing, under the supervision of the director, the provisions of articles three and
four of this chapter;
(3) The office of air quality, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of article five of this chapter;
(4) The office of oil and gas, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles six, seven, eight,
nine and ten of this chapter;
(5) The office of water resources, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles eleven, twelve,
thirteen and fourteen of this chapter; and
(6) The office of waste management, which is charged, at a
minimum, with administering and enforcing, under the supervision
of the director, the provisions of articles fifteen, sixteen,
seventeen, eighteen, nineteen and twenty of this chapter; and
(7) The office of explosives and blasting, which is charged,
at a minimum, with administering and enforcing, under the
supervision of the director, the provisions of article four-a of this chapter.
Pursuant to the provisions of article ten, chapter four of
this code, the office of water resources within the division of
environmental protection shall continue to exist until the first
day of July, one thousand nine hundred ninety-nine.
ARTICLE 4A. OFFICE OF EXPLOSIVES AND BLASTING.
§22-4A-1. Legislative findings; policy and purposes.
(a) The Legislature declares that the establishment of an
office within the division of environmental protection to enforce
blasting laws within the state of West Virginia is in the public
interest and will promote the protection of the property and
citizens of the state of West Virginia without sacrificing
economic development. It is the policy of the state of West
Virginia, in cooperation with other governmental agencies, public
and private organizations, and the citizens of this state, to use
all practicable means and measures to prevent harm from the
effects of blasting to its property and citizens.
(b) It is the purpose of this article to create the office
of explosives and blasting within the division of environmental
protection, and to vest in the office the authority to enforce
the blasting laws and rules of this state consistent with the authority granted in this article.
§22-4A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Shot" means a single blasting event composed of one or
multiple detonations of explosive material, or the assembly of
explosive materials for this purpose. One "shot" may be composed
of numerous explosive charges detonated at intervals measured in
milliseconds; and
(2) "Protected structure" means a dwelling, school, church,
cemetery, water well or water system, or a community or
institutional building: Provided, That this definition is not
intended as a limitation prohibiting requirements established by
rule that other manmade structures, including, but not limited
to, pipes, cables, tunnels, dams or transmission lines, be
protected from adverse impact, or that economic, recreational,
aesthetic or environmental values be considered when conducting
blasting operations.
§22-4A-3. Office created; transfer of functions; duties and
responsibilities of the office of explosives and
blasting.
(a) There is hereby created the office of explosives and
blasting within the division of environmental protection. The
director shall appoint a competent and qualified person to be
chief of the office in accordance with the provisions of section
eight, article one of this chapter.
(b) As of the effective date of the legislative rules
required to be proposed as set forth in subsections (a) and (b),
section four of this article, the office of explosives and
blasting shall assume responsibility for the enforcement of all
state laws and rules relating to blasting on surface mining and
reclamation operations, and responsibility for the education,
training, examination and certification of blasters.
(c) As of the effective date of the legislative rules
required to be proposed as set forth in subsection (c), section
four of this article, the office of explosives and blasting shall
assume responsibility for the enforcement of all state laws and
rules relating to all blasting operations, including blasting
conducted for purposes other than surface mining and reclamation
operations, conducted within this state which involve the use of
more than ten thousand pounds of explosives per shot or more than one hundred thousand pounds of explosives per week, when the
nearest protected structure is within seven tenths of a mile of
the blast site.
§22-4A-4. Legislative rules; review of blasting plans;
preblasting surveys; requiring seismographs; requiring public meetings; establishing a complaint procedure; providing for disciplinary review of blaster's certification.
(a) On or before the first day of July, one thousand nine
hundred ninety-nine, the office of explosives and blasting shall
propose rules, relating to blasting on surface mining and
reclamation operations, for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of
this code, which rules shall provide at a minimum:
(1) A procedure for the review, modification and approval,
prior to the issuance of any permit, of any blasting plan
required to be submitted with any application for a permit to be
issued by the director pursuant to articles three and four of
this chapter, and which set forth procedures for the inspection
and monitoring of blasting operations for compliance with
blasting laws and rules, and for the review and modification of the blasting plan of any permittee against whom an enforcement
action is taken by the division of environmental protection;
(2) Specific minimum requirements for preblasting surveys,
including the identification of owners or tenants, permittees and
their general liability insurance carriers, and persons or firms
performing the surveys, requirements for photographs sufficient
to indicate preblasting damage, required information for water
supply or wells, including recharge rates and water quality,
required notations of any unusual or substandard construction,
and qualifications for persons or firms performing preblasting
surveys, and which require that all preblasting surveys be
received, reviewed and approved as complete by the office of
explosives and blasting before the commencement of any blasting
operations;
(3) A requirement for the use of seismographs for blasting
operations which detonate more than ten thousand pounds of
explosives per shot or more than one hundred thousand pounds of
explosives per week, when the nearest protected structure is
within seven tenths of a mile of the blast site, a record of
which shall be made part of the blasting log;
(4) Requirements for permittees to hold public meetings
within affected communities, prior to commencing blasting
operations, for the purpose of informing the public of its
proposed operations, with sufficient notice to allow interested
members of the public to attend the meetings without undue
hardship; and
(5) A procedure for the investigation and mediation of
blasting complaints, which shall include provisions for informing
the public of how and where complaints may be made.
(b) On or before the first day of July, one thousand nine
hundred ninety-nine, the office of explosives and blasting shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
which rules shall establish disciplinary procedures for certified
blasters responsible for any blasting operations conducted in
violation of any standard established by this code or rule. The
disciplinary procedures may include provisions for the suspension
or revocation of certification, following notice and hearing, of
a blaster responsible for a blasting operation conducted in a
manner that causes or may cause injury or death, and may provide for a hearing process to be implemented by agreement by the
office of miners' health, safety and training.
(c) On or before the first day of July, two thousand one,
the office of explosives and blasting shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code, relating to all
blasting operations conducted within this state which involve the
use of more than ten thousand pounds of explosives per shot or
more than one hundred thousand pounds of explosives per week,
when the nearest protected structure is within seven tenths of a
mile of the blast site, other than blasting on surface mining and
reclamation operations, which rules shall provide at a minimum:
(1) Specific minimum requirements for preblasting surveys,
including the identification of owners or tenants, permittees and
their general liability insurance carriers, and persons or firms
performing the surveys, requirements for photographs sufficient
to indicate preblasting damage, required information for water
supply or wells, including recharge rates and water quality,
required notations of any unusual or substandard construction,
and qualifications for persons or firms performing preblasting surveys, and which require that all preblasting surveys be
received, reviewed and approved as complete by the office of
explosives and blasting before the commencement of any blasting
operations;
(2) A requirement for the use of seismographs for blasting
operations which detonate more than ten thousand pounds of
explosives per shot or more than one hundred thousand pounds of
explosives per week, when the nearest protected structure is
within seven tenths of a mile of the blast site, a record of
which shall be made part of the blasting log; and
(3) A procedure for the investigation and mediation of
blasting complaints, which shall include provisions for informing
the public of how and where complaints may be made.
§22-4A-5. Pilot project for mediation of water well disputes.
(a) On or before the first day of September, one thousand
nine hundred ninety-nine, the office of explosives and blasting
shall, by procedural rule, develop and implement a procedure for
voluntary mediation of water well disputes. The office may
provide for a mediation process developed by agreement with the
consumer protection division of the state attorney general's office. Water well disputes may not be submitted to the
mediation process when: (1) The shot alleged to have
contaminated, diminished or damaged an underground water supply
used less than ten thousand pounds of explosive; (2) the water
well alleged to have been damaged is more than seven tenths of a
mile from the blast site; or (3) the owner of the property on
which the water well is located did not grant permission for a
preblast survey.
(b) The office may require any party to a voluntary
mediation to submit information which is available or which may
reasonably be made available regarding water quality or supply or
other damages alleged to have occurred as a result of the blast.
When a comparison with information in the preblast survey
discloses that water quality or supply were adversely changed or
an underground water supply was otherwise damaged following
blasting, the landowner may not be required to prove that the
blast caused the adverse result, but the permittee shall be
entitled to offer proof that other factors caused the adverse
result.
(c) On or before the first day of December, two thousand, the legislative auditor shall perform a preliminary performance
review, as described in section eleven, article ten, chapter four
of this code, of the pilot project for the mediation of water
well disputes, at which time it may make recommendations that the
Legislature continue or extend the pilot project to the mediation
of other types of blasting damage.
§22-4A-6. Rules, orders and permits to remain in effect;
proceedings not affected.
(a) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed
to become effective prior to the enactment of this article shall
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.
(b) Any proceedings, including notices of proposed rule- making, or any application for any license, permit or certificate
pending before the division are not affected by this enactment.
§22-4A-7. Termination of office.
The office of explosives and blasting is continued until the first day of July, two thousand two, pursuant to the provisions
of article ten, chapter four of this code, unless sooner
terminated, continued or reestablished pursuant to the provisions
of that article.
NOTE: The purpose of this bill is to create the Office of
Explosives and Blasting within the DEP which will review and
approve blasting plans, inspect blasting operations and monitor
for compliance with blasting laws.
This bill has been recommended for passage by the Joint
Standing Committee on Government Organization.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
Article four-a is new; therefore, strike-throughs and
underscoring have been omitted.