02-10516. Pennsylvania Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing on proposed amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of a proposed amendment to the Pennsylvania regulatory program (the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposes revisions to rules for the licensing of blasters and for the use and handling of explosives. Pennsylvania intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA, clarify ambiguities, and provide additional safeguards.

This document gives the times and locations that the Pennsylvania program and proposed amendments to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4:00 p.m., e.d.t., May 30, 2002. If requested, we will hold a public hearing on the amendment on May 27, 2002. We will accept requests to speak at a hearing until 4:00 p.m., e.s.t. on May 15, 2002.

ADDRESSES:

You should mail or hand deliver written comments and requests to speak at the hearing to Robert McKenzie, Acting Director, Harrisburg Field Office at the address listed below.

You may review copies of the Pennsylvania 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 receive one free copy of the amendment by contacting OSM's Harrisburg Field Office.

Robert McKenzie, Acting Director, Harrisburg Field Office, Office of Surface Mining Reclamation and Enforcement, Harrisburg Transportation Center, Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania 17101, Telephone: [phone], Email: [e-mail].

J. Scott Roberts, Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection, Rachel Carson State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: [phone].

FOR FURTHER INFORMATION CONTACT:

Robert McKenzie, Telephone: [phone]. Email: [e-mail]

SUPPLEMENTARY INFORMATION:

 

I.Background on the Pennsylvania Program

II.Description of the Proposed Amendment

III.Public Comment Procedures

IV.Procedural Determinations

I. Background on the Pennsylvania 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 Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning Pennsylvania program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.

II. Description of the Proposed Amendment

By letter dated March 1, 2002, Pennsylvania sent us a proposed amendment to its program (administrative record No. PA 878.02) under SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania sent the amendment to include the changes made at its own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

The provisions of State rules that Pennsylvania proposes to revise and/or add are:

Title 25, Part I, Subpart D, Article IV, Chapter 210, Blasters' License

Sections 210.1-210.6 are reserved. These sections have either been eliminated or their content moved to other sections.

Section 210.11, Definitions. This is a new section that contains definitions of the terms, “Blaster,” “Blaster learner,” “Blaster's license,” “Demolition and demolition blasting,” and “Person.” The definition of “blaster learner,” was formerly at section 210.6.

Section 210.13, General. This section consolidates requirements for possessing and exhibiting a blaster's license that were formerly found in sections 210.5(a), 210.2(e), and 210.4.

Section 210.14, Eligibility requirements. This section provides the requirements a person must possess to be eligible for a blaster's license. It also provides circumstances under which Pennsylvania will not issue or renew a license. This section consolidates requirements formerly found under sections 210.2(a), 210.2(d), and 210.3(a).

Section 210.15, License application. This section describes the forms for the license application and the specific information to be supplied with the application. This section consolidates information formerly found in sections 210.1(d) and 210.1(e).

Section 210.16, Examinations. This section provides that Pennsylvania will conduct examinations for specific types of blasting, and also provides information concerning the application fee. This section consolidates information formerly found in sections 210.1(a), 210.1(b), and 210.2(g).

Section 210.17, Issuance and renewal of licenses. This section provides the circumstances under which a blaster's license is issued, when a blaster's license may be amended, the duration of the license, circumstances under which a license may be renewed, and information regarding a demolition blaster's license. This section consolidates information formerly found in sections 210.2(b), 210.2(c), 210.2(d), and 210.3(a). Section 210.17(d) is a new section that adds a continuing education requirement to renew a blaster's license. Section 210.17(g) is also a new requirement that provides for obtaining a demolition blasting license. In section 210.17(e) the term of the blaster's license has been changed from one year to three years and the fee for a license renewal changed from $3.50 to $30.00.

Section 210.18, Recognition of out-of-State blaster's license. This is a new section that provides the conditions under which Pennsylvania may license a blaster holding a license from another State and the procedures for out-of-State blasters to secure a license in Pennsylvania.

Section 210.19, Suspension, modification and revocation. This section provides the circumstances and procedures under which Pennsylvania may suspend, modify, or revoke a blaster's license. This section provides requirements formerly found in section 210.2(f).

Sections Proposed To Be Eliminated

The following sections were proposed to be eliminated from Chapter 210: Sections 210.1(c); 210.1(f); 210.2(h); and 210.5(d) and (e).

Title 25, Part I, Subpart D, Article IV, Chapter 211, Storage, Handling and Use of Explosives

Subchapter A. General Provisions

Sections 211.1, 211.2, 211.31-211.44, 211.51-211.56, 211.61, 211.62, 211.71- 211.76, and 211.81-211.88 have been reserved.

Section 211.101, Definitions. This is a new section that contains definitions for the terms, “Airblast,” “Blast area,” “Blast site,” “Blaster,” “Blaster-in-charge,” “Blasting activity,” “Building,” “Charge weight,” “Delay interval,” “Detonator,” “Explosive,” “Flyrock,” “Magazine,” “Misfire,” “Particle velocity,” “Peak particle velocity,” “Person,” “Primer,” “Purchase,” “Sale or sell,” “Scaled distance (Ds),” “Stemming,” “Structure,” and “Utility lines.” These definitions were formerly found in section 211.2 except for the definition of “Blaster-in-charge” which was formerly in section 210.6.

Pennsylvania is proposing to eliminate the following terms and their definitions that were formerly located in section 211.2: “Establishment,” “Explosive Plant,” “Factory Building,” “Railroad,” “Highway,” “Barricade,” “Department,” “Board,” “Secretary,” “Approved,” “Vehicle,” and “Actual Distance.”

Section 211.102, Scope. This section defines who and what activities the chapter applies to. Subsection (a) was formerly found in section 210.5(c).

Section 211.103, Enforcement. This section defines the circumstances under which Pennsylvania may issue orders to either implement this chapter or to suspend, modify or revoke a license or permit. This section was formerly found in section 211.36.

Subchapter B. Storage and Classification of Explosives

Section 211.111, Scope. This section indicates that the subchapter applies to the classification and storage of explosives and establishes the requirements for licensing, constructing, siting and maintaining magazines.

Section 211.112, Magazine license and fees. This section defines the procedures for licensing magazines for storage of explosives and also includes the applicable fees. This section is a compilation of requirements formerly found in sections 211.31 and 211.32.

Section 211.113, Application contents. This section describes the information to be included on an application to obtain, renew, modify or transfer a magazine license. These requirements were formerly found in section 211.34.

Section 211.114, Displaying the license. This section requires a license to be conspicuously displayed inside the magazine, if possible, or at the site and adjacent to the magazine for which it applies. This requirement was formerly found in section 211.114.

Section 211.115, Standards for classifying and storing explosives and constructing, maintaining and siting magazines. This section provides that the provisions of 27 CFR part 55, subpart K (relating to storage) are incorporated in this section by reference. These provisions are used to locate magazines on a site and to determine the type of explosives that can be stored there. This section is a compilation of requirements formerly found in sections 211.32, 211.33, 211.35, 211.43, and 211.61.

Subchapter C. Permits

Section 211.121, General Requirements. This section lists the requirements for obtaining a permit for blasting and the purchase or sale of explosives. This section is a compilation of requirements formerly found in section 211.36.

Section 211.122, Permits to sell explosives. This section identifies the requirements to be met when applying for a permit to sell explosives. This section is a compilation of requirements formerly found in section 211.36.

Section 211.123, Permits to purchase explosives. This section identifies the requirements to be met when applying for a permit to purchase explosives. This section is a compilation of requirements formerly found in section 211.36.

Section 211.124, Blasting activity permits. This section identifies the requirements to be met when applying for a permit to conduct blasting activities.

Section 211.125, Blasting activity permit-by-rule. This section defines the conditions under which a person shall be deemed to have a permit for a blasting activity.

Subchapter D. Records of Disposition of Explosives

Section 211.131, Sales Records. This section provides that sellers shall keep accurate records of every sale of explosives for three years. It also specifies the information needed to be kept during that three year period. The requirements of this section were formerly found at section 211.36.

Section 211.132, Purchase Records. This section provides that purchasers shall keep accurate records of every purchase of explosives for three years. It also specifies the information needed to be kept during that three year period. The requirements of this section were formerly found at section 211.36.

Section 211.133, Blast reports. This section specifies the information that a blaster-in-charge is to provide Pennsylvania in a blast report. It also requires that blast reports be kept a minimum of three years. The requirements of this section were formerly found at section 211.46.

Subchapter E. Transportation of Explosives

Section 211.141, General requirements. This section provides the requirements a blasting activity, purchase or sale permittee must comply with when transporting explosives including unloading and loading of explosives. The requirements of this section were formerly found at sections 211.38 and 211.42.

Subchapter F. Blasting Activities

Section 211.151, Prevention of damage. This is a new section that identifies the types of prohibited blasting damage and requires notification of damage to the Department of Environmental Protection. It also provides technical specifications for designing blasts.

Section 211.152, Control of noxious gases. This is a new section that requires blasts to be conducted so that the gases generated by the blast do not affect the health and safety of individuals. It also provides guidelines for preventing the effects from gases.

Section 211.153, General requirements for handling explosives. This section provides a list of rules necessary for safely handling explosives. The requirements of this section were formerly found at section 211.51.

Section 211.154, Preparing the blast. This section provides a listing of the duties of the blaster-in-charge when preparing a blast. The requirements of this section were formerly found at sections 210.5, 210.6, 211.51, and 211.65.

Section 211.155, Preblast measures. This section provides the duties a blaster-in-charge must complete prior to detonating a blast. The requirements of this section were formerly found at section 211.51.

Section 211.156, Detonating the blast. This section provides that only a blaster-in-charge may detonate a blast and that a blast may be detonated only between sunrise and sunset unless the Department of Environmental Protection authorizes a blast at another time of day. The requirements of this section were formerly found at section 211.51.

Section 211.157, Postblast measures. This section provides the procedures the blaster-in-charge must follow after a blast has been detonated. The requirements of this section were formerly found at sections 211.51 and 211.65.

Section 211.158, Mudcapping. This section provides that mudcapping is allowed only if the blaster-in-charge determines that drilling the material to be blasted would endanger the safety of the workers. If mudcapping is necessary, no more than 10 pounds of explosives shall be used for a blast. The requirements of this section were formerly found at section 211.51.

Section 211.159, Electric detonation. This section describes the measures to be taken to test electric blasting caps and the safety precautions to be taken when using these blasting caps. The requirements of this section were formerly found at section 211.51.

Section 211.160, Nonelectric detonation. This section provides that nonelectric initiation systems must be checked and tested for secure connections in accordance with recommendations of the manufacturer of the system in use.

Section 211.161, Detonating cords. This section provides safety precautions to be followed when using detonating cords. The requirements of this section were formerly found at section 211.51.

Section 211.162, Safety fuse. This section provides safety precautions to be followed when using a safety fuse in blasting. The requirements of this section were formerly found at section 211.51.

Subchapter G. Requirements for Monitoring

Section 211.171, General provisions for monitoring. This section provides conditions for when and under what circumstances airblast and ground monitoring are to be employed. The requirements of this section were formerly found at section 211.45.

Section 211.172, Monitoring instruments. This section provides the specifications monitoring equipment for recording ground vibration must possess. It also provides for calibration standards for such equipment. The requirements of this section were formerly found at section 211.44.

Section 211.173, Monitoring records. This section provides that anyone using a monitoring instrument must be trained in its use. A record of the training is to be maintained and available for review by the Department of Environmental Protection. This section further provides the information that monitoring records must contain.

Subchapter H. Blasting Activities Near Utility Lines

Section 211.181, Scope. This section provides that this subchapter applies to buried or underground utility lines and utility lines making contact with the surface of the ground. The requirements of this section were formerly found at section 211.52.

Section 211.182, General provisions. This section provides the specifications on the design of blasts near utility lines and specifications on how blasts in the vicinity of a utility line are to be conducted. The requirements of this section were formerly found at section 211.52

Sections Proposed To Be Eliminated

The following sections were proposed to be eliminated from Chapter 211: Section 211.1; 211.36(10); 211.37; 211.51(5), (8), (12), (18), (21), (27), (32), (33), (39), and (40); 211.61(3) and (5); 211.62-211.64; 211.71-211.78; and Appendix A.

III. Public Comment Procedures

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

Written Comments

Send your written comments or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Harrisburg Field Office may not be logged in.

Electronic Comments

Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS No. PA-137-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Harrisburg Field Office at [phone].

Availability of Comments

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

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 May 15, 2002. If you are disabled and need special 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. Procedural Determinations

Executive Order 12630—Takings

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

Executive Order 12866—Regulatory Planning and Review

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

Executive Order 12988—Civil Justice Reform

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

Executive Order 13132—Federalism

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

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

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

Regulatory Flexibility Act

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C.804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local governmental agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 938

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: March 8, 2002.

Vann Weaver,

Acting Regional Director, Appalachian Regional Coordinating Center.