As a result of a resolution passed in the West Virginia Legislature during the 1998 session, the Joint Standing Committee on Government Organization is currently studying the effects of blasting upon the citizens of West Virginia. It has heard from experts and has toured a blast site. Although the blast site the committee toured was a coal mine, the committee is studying the effects of all types of blasting, both on coal mines and elsewhere.

In addition to its intended purpose (breaking up rock) blasting produces four effects: noise, ground vibration, dust, and flyrock.

Noise (known in the jargon as "airblast") is measured in decibels. The regulations make some distinctions between frequencies but generally speaking, an airblast of more than 129 decibels is prohibited. In addition to being annoying, air blast can break windows.

Ground vibration is measured in inches per second. That is how fast the ground is moving at the point of measurement. Ground vibration breaks plaster, sinks wells, etc. There is some dispute over what level of ground vibration is acceptable. When the Office of Surface Mining did regulations in the late 1970's, it commissioned studies, hired experts, etc. The conclusion was that if ground vibration were limited to 1 inch per second then 95% of the damage to houses, etc. would be prevented. The Office of Surface Mining made a policy decision that 95% was an acceptable level of public protection and made 1 inch per second the standard.

More recent research indicates that structures respond differently to vibration depending upon their construction and upon the frequency of the blast vibration. If the goal were to protect each structure, then the blast design would be site specific depending upon the construction of the structures in the vicinity.

In one wanted to avoid doing site specific design, then one could limit vibration to .5 inch per second. David Siskind has stated publicly and to the Office of Surface Mining that he could not say with certainty what the safe level was but if he wanted to avoid all off site damage, then he would set the level at .5 inch per second. He did much of the original research for the Office of Surface Mining and is a well respected researcher.

It is important to remember that (so far as ground vibration is concerned) both the law and the science consider blasts as separate events if the explosions are more than 8 milliseconds apart. Although a typical blast might involve dozens of drill holes and hundreds of pounds of explosives, all do not explode at the same instant. Typically, they are designed so that different holes and different parts of the blast go off at slightly different times. Typically, all parts of the blast are designed to go off at lease 25 milliseconds apart. If all the explosives went off at the same time, there would be massive damage to homes in all directions. The only thing that keeps that from happening is that the blasts go off at slightly different times.

In addition to its value in preventing damage, timing the blast so that parts of the shot goes off at different times also makes it possible to control where the rubble ends up. The technique is often called "cast blasting." It involves controlling the blast so that the holes on one side go off first with the others following in close succession. The result is that the overburden is not only broken up but moved in a particular direction.

Because what the mining industry does is move rock and dirt, it would prefer to move as much through blasting and as little through loading and trucking as possible. This makes cast blasting attractive. It also makes it more destructive since the temptation is to use more explosives so as to move the overburden more.

The major tool for controlling ground vibration is the scale distance formula. By plugging the distance to the nearest structure into the formula, it is possible to determine how much explosives are allowed.

The formula is: W = (D/55)²

Weight is the weight of explosives in pounds. Distance is the distance in feet. For example, at a distance of 550 feet, the allowed weight would be 100 pounds (550 divided by 55 equals 10. 10 X 10 = 100).

It is also reasonably common practice to use a seismograph for blasts that are in the vicinity of homes.

Dust is one of the least studied aspects of blasting. Coalfield citizens experience it in the clouds of dust that rise up from any blast. It is somewhat site specific; different geology has greater or lesser tendencies to produce dust. Because it is largely unregulated, there is not any great body of literature on its causes and prevention. There is no control technology. Unlike in ground vibration, where timing of the parts of the blast to go off at different times makes a difference, in controlling dust the time intervals are so small that they make no difference.

Flyrock is, as one would expect, rock flying through the air. It is generally a result of sloppy practices.

Standard procedure in blasting is to drill a hole and then fill it mostly full of explosives. The blaster then fills it the rest of the way with "stemming" which is either gravel or "drill cuttings" (whatever came out of the hole when they drilled it). The purpose of stemming is to keep the force in the hole or directed horizontally. If the force is directed vertically or up out of the hole, flyrock results.

Usually flyrock comes from inadequate stemming. If it can’t be controlled with adequate stemming or if the blaster wants to be cautious, it can be prevented by the use of "blasting mats". These are nets made out of chains that a company can drag over the blast site to prevent the possibility of flyrock. Some companies make mats by connecting old tires into a mat and dragging that over the blast. Coal companies hate to do this because of the extra time and labor it requires; as a result, it is extremely rare. It would probably only occur on a coal mine if there had been some highly publicized incidents and the company felt it had to respond. Highway construction companies working in populated areas are more likely to use them

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There are two sources of law on blasting, common law and regulatory law.

At common law, blasting is considered an ultrahazardous activity. As such, there was no need to show negligence. If the blasting was the cause of the damage, then the blasting company was liable.

This is different from most common law litigation. In most cases, the formula is: Negligence + Damage caused by the negligence = Liability. [Driver was negligent (too fast, drunk, etc.), negligence caused damage (hit another car, ran over somebody), driver is liable.]

Because there is no need to show negligence, blasting litigation turns on causation. Homeowners say the blasting caused the damage; blasting companies say something else caused it. At common law, resolution of this question determines who prevails in the litigation.

So far as regulatory law is concerned, there is almost no regulation outside of the coal industry. All blasting must be conducted by a certified blaster. Except for that, there is no regulation on blasting outside of the coal mining industry. There are no standards, no inspectors, no limits on ground vibration. Except for the protection that comes from a having a certified blaster, there is no regulatory control.

In coal mining, blasters are required to meet four standards of performance:

1. Not cause damage outside the permit area

2. Not cast flyrock more than half the distance from the blast to a home

3. Not cause ground vibration of more than 1 inch per second at a protected structure

4. Not cause airblast of more than (generally speaking) 129 decibels

There is general language in the regulations about creating hazards to human health, etc. that could be interpreted to include dust from blasting. The Division of Environmental Protection has historically interpreted this regulation as not covering dust due to blasting. The result has been that there is no enforcement of this provision in a way to limit dust due to blasting.

In addition to these there are procedures that coal companies must follow. They must publish a blasting schedule (in practice these are so general that they are useless), offer each home owner within one half mile of the blast site a pre-blast survey, and sound warning/all clear sirens before and after the blast.

Companies routinely describe the pre-blast survey as for the homeowner’s protection. It is supposed to document any imperfections in the home before blasting. The companies who do such surveys imply that this will make it easier to get compensation for damage which appears during the blasting. As explained by representatives from blasting survey companies, the survey will provide baseline data. Any damage not appearing on the pre-blast survey will presumably be caused by the blasting and compensated.

In spite of what pre-blast survey companies imply, the enforcement policy of the Division of Environmental Protection is otherwise. The fact that damage does not appear on a pre-blast survey is not used to create a presumption that the damage was caused by the blasting. There is a recent ruling by the Reclamation Board of Review to this effect. As a general rule, the Division of Environmental Protection does not take enforcement action on blasting complaints unless there is evidence that the airblast or ground vibration limit has been exceeded.

There are various ways to address this problem. One way is to create a presumption that damage within a set distance of the blasting was caused by that blasting. In any legal action, the blasting company would have an opportunity to show that the damage was caused by something else. This was the approach of the bill that was introduced in the 1998 legislative session. It created a presumption that any damage which appeared within one mile of the blasting was caused by the blasting. In any litigation, the company could show that the damage was not caused by the blasting but unless the company could carry this burden of proof, it would be liable.

There is a similar statutory presumption in oil and gas drilling. The presumption is that any damage to water wells within 1000 feet of the oil and gas well was caused by the oil and gas well. In litigation, companies could try to carry the burden of showing that they did not cause the damage.

We have some experiences with this provision. As a practical matter, companies routinely drill new wells or make settlements for people who have water wells within 1,000 feet of the gas well and whose wells are damaged. The presumption provides a quick and relatively painless way to get compensation for damage.

Under the current law, there is no efficient way for citizens who have damage to recover. If the damages are substantial, then there are often lawyers who will sue. For relatively minor damages (less than $5,000), there is no practical means of recovery.

This approach does indirectly what could be done directly. By making it more likely that companies would have to pay for damage, it encourages companies to improve blasting practices. One could do the same thing directly. One could simply lower the ground vibration limit from 1 inch per second to .5 inch per second.

Another difficulty is that current law does not address dust from blasting adequately. This is more difficult to deal with since the technical solutions (ground vibrations of .5 inch per second or less, blasting mats in populated areas) are not as apparent.

A third problem is that current regulatory law ignores damage that is more than one half mile from the blasting. It has been the experience of several coal field residents that damage occurs more than one half mile away.

Because of the importance of this issue to all West Virginians, it is important that anyone who is concerned about blasting contact the committee or its members to express concern. The Committee will take up the matter again at its September 13-15 meeting in Morgantown. It is important that citizens contact the committee to express their concern.