Pennsylvania Regulatory Program, 72717-72725 [E8-28445]

Agencies

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

[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Rules and Regulations]
[Pages 72717-72725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28445]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-148-FOR; OSM-2008-0014]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of Amendment.

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SUMMARY: We are approving an amendment to the Pennsylvania regulatory 
program (the Pennsylvania program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The revisions relate to 
blasting for the development of shafts for underground mines and to 
blasting regulations in 25 Pa. Code Chapters 87, 88, 89, and 210.

DATES: Effective Date: December 1, 2008.

[[Page 72718]]


FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh 
Field Division, Telephone: (717) 782-4036, e-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 State 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 in the July 30, 1982, Federal Register (47 FR 33050). You 
can also find later actions concerning Pennsylvania's program and 
program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 
938.16.

II. Submission of the Amendment

    By letter dated June 8, 2006 (Administrative Record No. PA 887.00), 
the Pennsylvania Department of Environmental Protection (PADEP) sent 
OSM a program amendment to address blasting for the development of 
shafts for underground mines and to make administrative changes to 
regulations relating to blasting in 25 Pa. Code Chapters 77, 87, 88, 89 
and 210. However, by letter dated July 5, 2006 (Administrative Record 
No. PA 887.02), PADEP withdrew the provisions pertaining to industrial 
mineral underground mining provisions at Chapter 77 because they are 
not coal related. Therefore, only those changes in 25 Pa. Code 87, 
Surface Mining of Coal; 25 Pa. Code 88, Anthracite Coal; 25 Pa. Code 
89, Underground Mining of Coal and Coal Preparation Facilities; and 25 
Pa. Code 210, Blasters license will be addressed in this rule.
    We announced receipt of the State's letters and the proposed 
regulatory changes in the July 31, 2006 Federal Register (71 FR 43087). 
In the same notice, we opened the public comment period and provided an 
opportunity for a public hearing or meeting on the amendments. We 
received a request from the public to hold a public hearing and 
subsequently we re-opened the public comment period and announced the 
public hearing in the September 11, 2006, Federal Register (71 FR 
53351). We held a public hearing on September 21, 2006. The public 
comment period ended on September 28, 2006.
    PADEP sent us a revised version of the amendment on April 4, 2008. 
The revisions are minor and non-substantive in nature, but some warrant 
noting because they involve wording changes. These changes are as 
follows: Definitions of the terms ``blast'' and ``blasting'' are added 
to sections 87.1 and 88.1; ``vibrations'' are further clarified to mean 
``ground or airblast'' vibrations in sections 87.127(a) and (b), and in 
sections 88.135(a) and (b); ``noise'' is changed to ``airblast'' in 
section 87.127(e) (1); the term ``sound pressure'' is changed to 
``airblast'' in sections 88.135(h) and (i); and the words 
``identification of and the'' are added to section 88.137(4). We did 
not reopen the comment period when we received these revisions because, 
as noted above, we believe they do not change the substance of any of 
the amended provisions.
    We received comments from the Mountain Watershed Association, 
Citizens Coal Council, Tri-State Citizens Mining Network's Center for 
Coalfield Justice, Ten Mile Protection Network, Concerned Citizens of 
Ligonier, Youghiogheny Riverkeeper, and the Kentucky Resources Council, 
Inc. dated September 21, 2006, (Administrative Record No. PA 887.08 and 
887.09).

III. OSM's Findings

    Following are the findings we made concerning the Amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. In some 
cases, Pennsylvania made the same modifications to regulations in 
several different chapters. In those cases, we discussed all the 
similar regulations together. Any revisions we do not specifically 
discuss below concern non-substantive wording or editorial changes and 
are approved herein without discussion. Our discussion of the amendment 
appears below by the applicable sections of the Pennsylvania Code.

1. 25 Pa. Code 87.1, 88.1, 89.5, and 210.11. Definitions

    PADEP added a definition for the term ``mine opening blasting'' to 
25 Pa. Code 87.1, 88.1, 89.5, and 210.11 as follows:

    ``Mine opening blasting--Blasting conducted for the purpose of 
constructing a shaft, slope, drift, or tunnel mine opening for an 
underground mine, either operating or under development, from the 
surface down to the point where the mine opening connects with the 
mineral strata to be or being extracted.''

    While this provision has no direct Federal counterpart, its meaning 
is consistent with current mining practices; it is also consistent with 
SMCRA and the Federal regulations. Therefore, we are approving it.

2. 25 Pa. Code 87.1 and 88.1. Definitions

    PADEP added definitions for the following words: ``Blast'' and 
``Blasting.'' While these provisions have no direct Federal 
counterparts, their meanings are consistent with current mining 
practices and are also consistent with SMCRA and the Federal 
regulations. Therefore, we are approving them. They read as follows:

    ``Blast--A detonation of explosives.''
    ``Blasting--The detonation of explosives.''

3. 25 Pa. Code 87.124. Use of Explosives: General Requirements

    PADEP is changing subsection (b) to correct a reference error from 
``87.125'' to ``87.126 (relating to use of explosives: preblasting 
survey).''
    As revised, subsection (b) provides as follows:

    ``Blasts that use more than 5 pounds of explosive or blasting 
agents shall be conducted according to the schedule required by 
section 87.126 (relating to use of explosives: public notice of 
blasting schedules).''

    This provision corrects a reference error. We find that the 
provision does not render the Pennsylvania program less stringent than 
SMCRA or less effective than the Federal regulations, and are approving 
it.

4. 25 Pa. Code 87.126. Use of Explosives: Public Notice of Blasting 
Schedule

    PADEP is changing ``shall'' to ``must'' in (b)(2) after 
``schedule'' and deleting the phrase ``Each period may not exceed 4 
hours'' at subsection (b)(2)(ii).
    As amended, subsection (b)(2)(ii) provides as follows:
    (b)(2) The blasting schedule must contain at a minimum the 
following:
* * * * *
    (b)(2)(ii) Dates and time periods when explosives are to be 
detonated.

[[Page 72719]]

    The changes made in this provision render 25 Pa. Code 87.126(b)(2) 
and (b)(2)(ii) substantively identical to and therefore no less 
effective than the Federal regulations at 30 CFR 816.64(c) and (c)(3) 
and are therefore approved.

5. 25 Pa. Code 87.127. Use of Explosives: Surface Blasting Requirements

    PADEP is changing subsection (a) by adding the following after 
``schedule'':

    * * * except that mine opening blasting conducted after the 
second blast, for that mine opening, may be conducted at any time of 
day or night as necessary to maintain stability of the mine opening 
to protect the health and safety of mineworkers. For mine opening 
blasting conducted after the second blast, for that mine opening, 
the Department may approve ground or airblast vibration limits at a 
dwelling, public building, school, church or commercial or 
institutional structure, that are less stringent than those 
specified in subsection (e) or (m) if consented to, in writing, by 
the structure owner and lessee, if leased to another party.

    As amended, subsection (a) provides as follows:

    Blasting shall be conducted between sunrise and sunset, at times 
announced in the blasting schedule, except that mine opening 
blasting conducted after the second blast, for that mine opening, 
may be conducted at any time of day or night as necessary to 
maintain stability of the mine opening to protect the health and 
safety of mineworkers. For mine opening blasting conducted after the 
second blast, for that mine opening, the Department may approve 
ground or airblast vibration limits at a dwelling, public building, 
school, church or commercial or institutional structure, that are 
less stringent than those specified in Subsections (e) or (m) if 
consented to, in writing, by the structure owner and lessee, if 
leased to another party.

    The Federal regulations at 30 CFR 817.61 require that ``[s]ections 
817.61-68 apply to surface blasting activities incident to underground 
coal mining, including, but not limited to, initial rounds of slopes 
and shafts.'' Since the Federal regulations do not define the terms 
``incident to underground coal mining'' or ``initial rounds of slopes 
and shafts'', PADEP has the discretion to apply a reasonable cut-off 
point with respect to underground blasting, beyond which the 
regulations need not be applied. PADEP has determined that mine opening 
blasting conducted after the second blast is not subject to all of 
Pennsylvania's blasting regulations, because it is not blasting 
conducted pursuant to a surface coal mining operation, but rather is 
underground mine blasting; as such, any exceptions to regulatory 
applicability, including those exceptions set forth in section 
87.127(a), are permissible, according to PADEP. We find that mine 
opening blasting after the second blast is indeed a reasonable point to 
terminate full regulatory coverage pursuant to 30 CFR 817.61-68. 
Therefore, the exceptions proposed in section 87.127(a) are no less 
effective than the Federal regulations at 30 CFR 817.61, and are 
approved.
    PADEP is revising subsection (b) by adding new language `` airblast 
or ground vibration limits,'' after ``or'' and by deleting the term 
``excessive noise'' at the end of the sentence and replacing existing 
language with ``the adverse affects of ground vibration, airblast, or 
safety hazards.''
    As amended, subsection (b) provides as follows:

    The Department may specify more restrictive time periods, 
airblast or ground vibration limits, based on public requests or 
other relevant information, according to the need to adequately 
protect the public from the adverse affects of ground vibration, 
airblast, or safety hazards.

    We find that the provision as provided does not render the 
Pennsylvania program less stringent than SMCRA or less effective than 
the Federal regulations at 30 CFR 816.67(b)(1)(ii) and 816.67(d)(5), 
which allow the regulatory authority to set more stringent airblast 
limits or ground vibration limits if necessary to prevent damage due to 
blasting. Therefore, we are approving it.
    PADEP is revising subsection (e) by deleting the following 
language, ``unless the structure is owned by the person who conducts 
the surface mining activities and is not leased to another person. The 
lessee may sign a waiver'', and replacing that language with the 
following language ``unless the structure is located on the permit area 
when the structure owner and lessee, if leased to another party, have 
each signed a* * *''
    As amended, subsection (e) provides as follows:

    Airblast shall be controlled so that it does not exceed the 
noise level specified in this subsection at a dwelling, public 
building, school, church or commercial or institutional structure, 
unless the structure is located on the permit area when the 
structure owner and lessee, if leased to another party, have each 
signed a waiver relieving the operator from meeting the airblast 
limitations of this subsection.

    The Federal regulations at 30 CFR 816.67(b) set airblast limits 
only at structures outside the permit area, whereas Pennsylvania has 
chosen to also set airblast limits at structures inside the permit 
area. Since there is no Federal requirement to set airblast limits at 
structures within the permit area, any waiver Pennsylvania proposes to 
its airblast limits for such structures cannot be less effective than 
the Federal regulations at 30 CFR 816.67(b). Therefore, we are 
approving it.
    PADEP is deleting existing language in section 87.127(e)(1) and 
revising the maximum allowable noise level to 133 dBL.
    As amended, subsection (e)(1) provides as follows:
    The maximum allowable airblast level is 133 dBL.
    While the current Federal regulations at 30 CFR 816.67(b)(1)(i) 
provide for a range of the maximum allowable airblast depending on the 
lower frequency limit of the measuring system used, a maximum airblast 
vibration of 133 dBL is appropriate when the lower frequency limit of 
the measuring system is 2 hertz (Hz) or lower.
    All blasting seismographs manufactured today have 2 hertz 
microphones based on a standard developed with the International 
Society of Explosives Engineers Standards Committee. In addition, the 
Pennsylvania regulations, at 25 Pa. Code 87.54, require submission of a 
blasting plan, ``explaining how the applicant intends to comply with 
sections 87.124-129. * * *'' With respect to the 133 dBL maximum 
airblast level, the applicant must describe the type of monitoring 
system that will ensure compliance with that level. Since the measuring 
system (i.e., seismograph microphone) with the lower frequency response 
of 2 hertz or lower is the only one for which the 133 dBL limit is 
appropriate, we expect that the PADEP will only approve the use of this 
system. Based upon this, OSM finds that this revision is no less 
effective than the Federal regulations at 30 CFR 816.67(b)(1)(i) since 
all operators who measure airblasts with blasting seismo-graphs will be 
required to use a measuring system with a lower frequency response of 2 
hertz or lower, (+/-3dB). Therefore, we are approving this revised 
maximum decibel level.
    PADEP is revising subsection (f)(1) to lower the distance from a 
blasting area where an operator must barricade and guard public 
highways and entrances to the operation from 1,000 feet to 800 feet. 
PADEP is also adding new language concerning alternative measures 
following the existing language.
    As amended, subsection (f)(1) provides as follows:

    The operator may use an alternative measure to this requirement 
if the operator demonstrates, to the Department's satisfaction, that 
the alternative measure is at least as effective at protecting 
persons and property from the adverse affects of a blast. 
Alternative measures are measures such as:

[[Page 72720]]

    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.
    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The diameter of holes.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    While this provision has no direct Federal counterpart, we find 
that it is consistent with the Federal regulations at 30 CFR 816.66(c), 
pertaining to access control, since any alternative measure chosen must 
be shown to be at least as effective at protecting persons and property 
as are barricades. Therefore, we are approving it.
    PADEP is revising subsection (j) by deleting the cross-reference to 
subsection (n) and changing it to (m). This change was proposed because 
the proposed deletion of subsection (l), which is discussed below, will 
result in the relettering of the subsequent subsections of section 
87.127. Thus, subsection (n) will become subsection (m) if the deletion 
of subsection (l) is approved. Since we are approving the deletion of 
subsection (l), we are also approving this cross-referencing change.
    PADEP is deleting subsection (l) in its entirety. Subsection (l) 
previously provided as follows:

    The use of a formula to determine maximum weight of explosives 
per delay for blasting operations at a particular site may be 
approved by the Department if the peak particle velocity of 1 inch 
per second required in 87.126 (relating to use of explosives: Public 
notice of blasting schedule) would not be exceeded.

    While the Federal regulations at 30 CFR 816.67(d)(3) allow an 
operator to use a scale distance equation to determine the maximum 
weight of explosives allowable to be detonated in any 8-millisecond 
period without seismic monitoring, regulatory authorities are not 
required to provide the operators with this option. Therefore, we find 
that the deletion of the option to use a formula to determine maximum 
weight of explosives is no less effective than the Federal regulations 
at 30 CFR 816.67(d), and we are approving it.

6. 25 Pa. Code 87.129. Use of Explosives: Records of Blasting 
Operations

    PADEP is changing subdivision (4) by adding the phrase: 
``identification of and the'' after ``The'' at the beginning of the 
paragraph.
    As amended subdivision (4) provides as follows:

    The identification of and the direction and distance, in feet, 
to the nearest dwelling, public building, school, church, commercial 
or institutional building or other structure.

    We find that the provision as provided does not render the 
Pennsylvania program less effective than the Federal regulations at 30 
CFR 816.68(d). Therefore, we are approving it.

7. 25 Pa. Code 88.135. Blasting: Surface Blasting Requirements

    Before discussing the several changes PADEP has proposed to this 
section of its anthracite mining regulations, it is appropriate to 
offer a summary of our standards for the review of proposed revisions 
to Pennsylvania's anthracite mining performance standards.
    The Federal regulations at 30 CFR 820.11, pertaining to performance 
standards for anthracite mining in Pennsylvania, provide as follows:

    Anthracite mines in Pennsylvania, as specified in section 529 of 
the Act, shall comply with its approved State program, including 
Commonwealth of Pennsylvania statutes and regulations, and revisions 
thereto that are approved by OSM pursuant to part 732 of this 
chapter.

    In 1979, we explained in the preamble to the previous version of 30 
CFR 820.11 how we would decide, pursuant to 30 CFR part 732, whether 
changes to Pennsylvania's anthracite mining performance standards could 
be approved:

    If the [anthracite performance standard] regulations existing as 
of August 3, 1977 are made less stringent in any manner, the 
Secretary must elect to develop specific Federal performance 
standards to supplement the amended State regulation or, of [sic] 
considered desirable, the Secretary may apply the performance 
standards for surface mining and underground coal mining of Parts 
816 and 817.

44 FR 14902, 15281 (March 13, 1979)

    We interpret the standard above to mean that if we find a proposed 
anthracite performance standard provision to be no less stringent than 
the performance standard existing as of August 3, 1977, we will approve 
it under Section 529(a) of SMCRA, which required that the Federal 
regulations adopt the original (August 3, 1977) Pennsylvania anthracite 
regulations, and apply them to anthracite mining in lieu of SMCRA's own 
performance standards. If, however, we find the provision to be less 
stringent than its August 3, 1977 predecessor, we may still approve it, 
if we determine that it is no less effective than its Federal 
regulatory counterpart in 30 CFR part 816 or part 817. We will not 
approve any provision that is less stringent than its August 3, 1977, 
predecessor, and that is also less effective than its Federal 
regulatory counterpart.
    PADEP added the following language to subsection (a) after 
``sunset'':

    * * * except that mine opening blasting conducted after the 
second blast for that mine opening may be conducted at any time of 
day or night as necessary to maintain stability of the mine opening 
to protect the health and safety of mineworkers. For mine opening 
blasting conducted after the second blast, for that mine opening, 
the Department may approve ground or airblast vibration limits at a 
dwelling, public building, school, church or commercial or 
institutional structure, that are less stringent than those 
specified in Subsection (h) if consented to, in writing, by the 
structure owner and lessee, if leased to another party.

    As amended, subsection (a) provides as follows:

    Blasting shall be conducted between sunrise and sunset, except 
that mine opening blasting conducted after the second blast for that 
mine opening may be conducted at any time of day or night as 
necessary to maintain stability of the mine opening to protect the 
health and safety of mineworkers. For mine opening blasting 
conducted after the second blast, for that mine opening, the 
Department may approve ground or airblast vibration limits at a 
dwelling, public building, school, church or commercial or 
institutional structure, that are less stringent than those 
specified in Subsection (h) if consented to, in writing, by the 
structure owner and lessee, if leased to another party.

    While the allowance of exceptions to the requirement that blasting 
be conducted in daylight would render Pennsylvania's regulation less 
stringent than the current Pennsylvania provision, the proposed changes 
are no less effective than the Federal regulations at 30 CFR 817.61, 
for the reasons more fully discussed above in the finding for section 
87.127(a). Therefore, in accordance with Section 529(a) of SMCRA and 
the Federal regulations at 30 CFR 820.11, we are approving this 
revision to the special permanent program performance standards for 
anthracite mines in Pennsylvania.
    PADEP changed subsection (b) by adding the following phrases: 
``airblast or ground vibration limits,'' after ``periods'' and ``from 
the adverse affects

[[Page 72721]]

of ground vibration, airblast, or safety hazards'' after ``public.''
    As amended, subsection (b) provides as follows:

    The Department may specify more restrictive time periods, 
airblast or ground vibration limits, based on other relevant 
information, according to the need to adequately protect the public 
from the adverse affects of ground vibration, airblast, or safety 
hazards.

    Pennsylvania's proposal to allow the PADEP to specify more 
restrictive airblast or ground vibration limits adds potential 
protections from blasting that are not in the current version of this 
provision. In addition, Pennsylvania has proposed to make clear what it 
is protecting the public from: The adverse effects of ground vibration, 
airblast, or safety hazards. These proposed changes would not render 
section 88.135(b) less effective than the current Pennsylvania 
provision. Therefore, in accordance with Section 529(a) of SMCRA and 
the Federal regulations at 30 CFR 820.11, we are approving this 
revision to the special permanent program performance standards for 
anthracite mines in Pennsylvania.
    PADEP amended subsection (f)(1) by adding new language concerning 
alternative measures following the existing language.
    As amended, subsection (f)(1) provides as follows:

    Public highways and entrances to the operation shall be 
barricaded and guarded by the operator if the highways and entrances 
to the operations are located within 800 feet of a point where a 
blast is about to be fired. The operator may use an alternative 
measure to this requirement if the operator demonstrates, to the 
Department's satisfaction, that the alternative measure is at least 
as effective at protecting persons and property from the adverse 
affects of a blast. Alternative measures are measures such as:
    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.
    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The diameter of holes.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (V) The burden and spacing.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    Since any alternative measure chosen must be shown to be at least 
as effective at protecting persons and property as are barricades, the 
proposed changes would not render section 87.127(f)(1) less stringent 
than the current Pennsylvania provision. Therefore, in accordance with 
Section 529(a) of SMCRA and the Federal regulations at 30 CFR 820.11, 
we are approving this revision to the special permanent program 
performance standards for anthracite mines in Pennsylvania.
    PADEP is revising subsection (h) to delete the existing language, 
``the maximum peak particle velocity may not exceed 2 inches per 
second'' and adding the following new language after ``operations,'', 
``* * * the blasts shall be designed and conducted in a manner that 
achieves either a scaled distance of 90 or meets the maximum allowable 
peak particle velocity as indicated by Figure 1 * * *'' PADEP further 
changed the last sentence of this subsection by replacing ``sound 
pressure'' with ``airblast'' and by removing the phrase, ``130 DB 
linear at a frequency 6Hz or lower'' and replacing it with ``133 dBL.''
    As amended, subsection (h) provides as follows:

    In all blasting operations, the blasts shall be designed and 
conducted in a manner that achieves either a scaled distance of 90 
or meets the maximum allowable peak particle velocity as indicated 
by Figure 1 at the location of any dwelling, public building, 
school, church or commercial or institutional building. Peak 
particle velocities shall be recorded in three mutually 
perpendicular directions; longitudinal, transverse and vertical. The 
maximum peak particle velocity shall be the largest of any of three 
measurements. The Department may reduce the maximum peak particle 
velocity allowed, if it determines that a lower standard is required 
because of density of population or land use, age or type of 
structure, geology or hydrology of the area, frequency of blasts, or 
other factors. The airblast level may not exceed 133 dBL.

    These proposed changes to section 88.135(h) would not render the 
provision less stringent than the current Pennsylvania regulation. More 
specifically, we conclude that the proposed uniform maximum airblast 
level of 133 dBL is no less stringent than the current Pennsylvania 
regulation, for the same reasons that we concluded that the same 
revision to 25 Pa. Code 87.127 (e)(1) did not render that provision 
less effective than the corresponding Federal regulation. Therefore, in 
accordance with Section 529(a) of SMCRA and the Federal regulations at 
30 CFR 820.11, we are approving these changes to the special permanent 
program performance standards for anthracite mines in Pennsylvania.
    PADEP is revising subsection (i) by deleting the word 
``limitation'' and by adding the phrase ``and airblast limitations.''
    As amended subsection (i) provides as follows:

    The maximum peak particle velocity and airblast limitations of 
this section do not apply at the following locations:
    (1) At structures owned by the person conducting the mining 
activity, and not leased to another party.
    (2) At structures owned by the person conducting the mining 
activity, and leased to another party, if a written waiver by the 
lessee is submitted to the Department prior to the blasting.

    While the proposed change exempts certain structures from airblast 
limitations as well as peak particle velocity limitations, and is less 
stringent than the current Pennsylvania regulation, it is substantively 
identical to the Federal regulations at 30 CFR 816.67(e).
    Therefore, in accordance with Section 529(a) of SMCRA and the 
Federal regulations at 30 CFR 820.11, we are approving this revision to 
the special permanent program performance standards for anthracite 
mines in Pennsylvania.
    PADEP is removing subsection (l) in its entirety. This subsection 
previously provided as follows:

    The use of a formula to determine maximum weight of explosives 
per delay for blasting operations at a particular site may be 
approved by the Department if the peak particle velocity of 2 inches 
per second would not be exceeded.

    This proposed deletion would not render section 88.135 less 
stringent than the current Pennsylvania regulation. Therefore, in 
accordance with Section 529(a) of SMCRA and the Federal regulations at 
30 CFR 820.11, we are approving this revision to the special permanent 
program performance standards for anthracite mines in Pennsylvania.

8. 25 Pa. Code 88.137. Use of Explosives: Records of Blasting 
Operations

    PADEP is revising subdivision (4) by adding the phrase: 
``identification of and the'' after ``The'' at the beginning of the 
paragraph.
    As amended subdivision (4) provides as follows:

    The identification of and the direction and distance, in feet, 
to the nearest dwelling, public building, school, church, commercial 
or institutional building or other structure.

    Since the proposed change requires that additional data be provided 
in the records of blasting regulations, it would not render section 
88.137 less stringent than the current Pennsylvania

[[Page 72722]]

regulation. Therefore, in accordance with Section 529(a) of SMCRA and 
the Federal regulations at 30 CFR 820.11, we are approving this 
revision to the special permanent program performance standards for 
anthracite mines in Pennsylvania.

9. 25 Pa. Code 88.493. Minimum Environmental Protection Performance 
Standards

    PADEP is revising subdivision (7)(i) by replacing the existing 
language ``initial rounds of slopes, shafts and tunnels'' with new 
language ``mine opening blasting.''
    As amended, subdivision (7)(i) provides as follows:

    A person who conducts surface blasting activities incident to 
underground mining activities, including, but not limited to, mine 
opening blasting shall conduct the activities in compliance with 
sections 88.45 and 88.134-88.137.

    Since the proposed change adds mine opening blasting to the list of 
activities to be subject to the referenced permitting requirement 
(88.45) and performance standards (88.134-137), and since mine opening 
blasting includes initial rounds of slope, shafts, and tunnels, it 
would not render section 88.493 less stringent than the current version 
of the regulation. Therefore, in accordance with Section 529(a) of 
SMCRA and the Federal regulations at 30 CFR 820.11, we are approving 
this revision to the special permanent program performance standards 
for anthracite mines in Pennsylvania.

10. 25 Pa. Code 89.62. Use of Explosives

    PADEP is revising this section to replace the existing language 
``initial rounds of slopes, shafts and tunnels'' with ``mine opening 
blasting.''
    As amended, 25 Pa. Code 89.62 provides as follows:

    Each person who conducts surface blasting activities incident to 
underground mining activities, including, but not limited to, mine 
opening blasting, shall conduct the activities in compliance with 
Chapter 87 (relating to surface mining of coal).

    As noted above in finding no. 5, the Federal regulations do not 
define the term ``initial rounds of slopes and shafts''. However, the 
PADEP's definition of mine opening blasting includes ``blasting for the 
purpose of constructing a shaft, slope, drift or tunnel mine opening'', 
which naturally would include blasting for the initial rounds of slopes 
and shafts. Therefore, this revision is no less effective than the 
Federal regulations at 30 CFR 817.61(a) and (c)(1) and is hereby 
approved.

11. 25 Pa. Code 210.12. Scope

    PADEP is revising this section to add new language after 
``Commonwealth'', ``Except for persons engaging in mine opening 
blasting.''
    As amended, 25 Pa. Code 210.12 provides as follows:

    This chapter applies to persons engaging in the detonation of 
explosives within this Commonwealth. Except for persons engaging in 
mine opening blasting, this chapter does not apply to persons 
authorized to detonate explosives or to supervise blasting 
activities under: * * *

    The provisions that follow, but that are omitted from the 
provision, are references to the Pennsylvania Anthracite Coal Mine Act 
(52 P.S. 70.101-70.1405) and the Pennsylvania Bituminous Coal Mine Act 
(52 P.S. 701-101-701-706). These statutes regulate underground 
anthracite and bituminous mining, respectively, and include separate 
requirements for blasters and blasting activities. However, PADEP 
regulates mine opening blasting as surface blasting incident to 
underground mining, in accordance with the Federal regulations. This 
provision clarifies that distinction, in that it requires blasters to 
obtain licenses to conduct surface blasting. While the provision has no 
direct Federal requirement, we find it to be no less effective than the 
Federal regulations at 30 CFR part 850, and hereby approve it.

12. 25 Pa. Code 210.17. Issuance and Renewal of Licenses

    PADEP is revising subsection (a) to add the following new language 
``mine opening blasting'' after ``demolition,'' and after ``mining,''.
    As amended, section 210.17 provides as follows:

    A blaster's license is issued for a specific classification of 
blasting activities. The classifications will be determined by the 
Department and may include general blasting (which includes all 
classifications except demolition, mine opening blasting and 
underground noncoal mining), trenching and construction, seismic and 
pole line work, well perforation, surface mining, underground 
noncoal mining, mine opening blasting, industrial, limited and 
demolition.

    The proposed change makes clear that mine opening blasting is not 
general blasting, but rather is a specific classification of blasting 
to which all requirements of Chapter 210 apply. While the provision has 
no direct Federal counterpart, we are approving it because it is 
consistent with the Federal regulations at 30 CFR part 850, which 
require certification of blasters engaged in the use of explosives in 
surface coal mining operations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in the July 31, 2006 
Federal Register (71 FR 43087) and then extended the comment in the 
September 11, 2006, Federal Register (71 FR 53351).
    We held a public hearing on the rulemaking on September 21, 2006 
(Administrative Record No. 887.11) and received responses from three 
different commenters representing Mountain Watershed Association.
    1. Commenters expressed concern regarding 25 Pa. Code 87.127(a), 
which would allow mine opening blasting after the second blast to be 
conducted at any time, rather than from just sunrise to sunset. The 
commenters assert that the criteria for exempting mine opening blasting 
after the second blast from the sunrise to sunset period appear to be 
inconsistent with exemption criteria in the Federal regulations at 30 
CFR 816.64(a). While the Federal regulations allow an exemption where 
the operator can demonstrate that the public will be protected from 
adverse noise and other impacts, the proposed State revision allows 
exemptions to protect the health and safety of mineworkers. The 
regulation also fails to consider the health of adjacent landowners, 
according to the commenters. In addition, the commenters contend that 
the regulation is less effective than the Federal regulations at 30 CFR 
816.67(e), in that it would allow Pennsylvania to approve lower 
vibration limits for mine opening blasting after the second blast at a 
structure owned by a person other than the permittee. One commenter 
asked how a homeowner could possess the knowledge to execute an 
informed waiver of the airblast or ground vibration limits.
    Response: We are approving the changes applicable to mine opening 
blasting after the second blast, in section 87.127(a), because, as 
explained in finding no. 5, such blasting is not regulated under 30 CFR 
817.61-68.
    2. Commenters objected to the change in language to ``the adverse 
effect of vibration or safety hazards'' in section 87.127(b) when the 
Federal rules require protection of the public from ``adverse noise and 
other impacts.''
    Response: The Federal counterpart regulations at 30 CFR 
816.67(b)(1)(ii) and 816.67(d)(5) allow the regulatory authority to 
establish lower airblast or ground vibration limits where necessary to 
prevent damage. The commenters' reference to protecting the public from 
``adverse noise and other impacts'' is

[[Page 72723]]

found in 30 CFR 816.64(a)(2), which pertains to exceptions to the 
requirement to conduct blasting between sunrise and sunset, but does 
not pertain to the establishment of lower airblast or ground vibration 
limits. By requiring stricter limits to protect the public from ``the 
adverse effects of ground vibration, airblast, or safety hazards, 
Pennsylvania's revised regulation will provide at least the same, if 
not greater, protection than its Federal counterparts.
    3. Commenters expressed concern regarding the allowance of weaker 
vibration limits and air blast limits in section 87.127(e). This 
amendment, according to the commenters, is less effective than the 
Federal regulations at 30 CFR 816.67(e), in that it would allow 
Pennsylvania to approve lower vibration limits at a structure owned by 
a person other than the permittee.
    Response: We disagree with the commenters. As noted in finding no. 
5, above, we are approving this revision to 25 Pa. Code 87.127(e) 
because Federal regulations include no airblast limits for structures 
located within the permit area.
    4. A commenter expressed concern that the proposed maximum airblast 
as proposed in section 87.127(e)(1) exceeds the Federal counterpart in 
30 CFR 816.67(b)(1).
    Response: We acknowledge the commenter's concern; however, as noted 
in finding no. 5, above, we are approving this revision to 25 Pa. Code 
87.127(e)(1). Our approval is based on the fact all blasting 
seismographs manufactured today have 2 hertz microphones based on a 
standard developed with the International Society of Explosives 
Engineers Standards Committee, and based on our conclusion that the 
State's blasting plan regulation, in concert with revised subdivision 
(e)(1), will preclude the PADEP from approving the use of any blasting 
seismograph that uses a different type of microphone. Therefore only 
the 133 dBL limit is applicable.
    5. Commenters express concern about the 1000' to 800' change for 
blocking roads and the option of alternative access control in section 
88.135(f)(1). Commenters are concerned that OSM is allowing the 
Pennsylvania State Program to eliminate access control in lieu of 
alternative measures.
    Response: The Federal regulations at 30 CFR 816.66 merely require 
access control to the blast area. They do not specifically require that 
public highways and entrances to the operation be barricaded and 
guarded by the operator.
    6. A commenter asserted that the distance measured should be 
clarified to include an object for measurement (from the blast hole) 
and outside the permit area in section 87.129.
    Response: We disagree with the commenter. The introductory 
paragraph of 25 Pa. Code 87.129 requires a record to be kept for each 
``blast,'' and should, therefore, be interpreted to mean that the 
object of measurement is the nearest blast hole. We also note that the 
Pennsylvania regulations are more effective because it requires 
maintaining information for the regulating of blasts that occur near 
buildings located both inside the permit area as well as outside the 
permit area.
    7. In reference to the proposed deletion of section 87.127(l), one 
commenter questioned the validity of the Siskind theory of peak 
particle velocity of one inch per second, when, according to the 
commenter, this theory ``was condemned back in 1980 by [Siskind's] 
peers * * *, [is] based on data and a methodology that has never been 
fully tested, and * * * violates common sense.''
    Response: Since subsection (l) is being deleted in its entirety, 
and since the one inch per second peak particle velocity standard is 
not otherwise at issue in this revision, the comment is beyond the 
scope of this rulemaking.
    8. A commenter opposed the use of the peak particle velocity 
measure as a measure of safety or blasting damage, but rather advocated 
consideration of the actual damage caused by blasting. This same 
commenter stated that the pre-blast survey should be used by the PADEP 
for comparing the condition of the structure before and after blasting; 
if the structure is more damaged after blasting, the burden should be 
on the operator to prove that the damage was not caused by blasting.
    Response: The use of peak particle velocity as a blasting threshold 
is authorized by the Federal regulations, at 30 CFR 816.67 and 817.67. 
Pre-blast surveys and presumptions of liability are not subjects of 
this revision.
    9. Commenters expressed numerous concerns about the amendments to 
section 88.135 (25 Pa. Code 88.135 is in the Pennsylvania Code for 
Anthracite Coal Mining), namely that of the peak particle velocity and 
maximum allowable noise levels.
    Response: As discussed in the findings above, where proposed 
revisions to anthracite performance standards are no less effective 
than those currently in the Pennsylvania program, we are approving them 
pursuant to the Federal regulations at 30 CFR 820.11. We are approving 
the changes to 88.135(b), (f)(1), and (l) and one change to 88.135(h). 
Where proposed changes would be less effective than the current 
versions of the Pennsylvania regulations, but are no less effective 
than their Federal counterparts, we are also approving them pursuant to 
the Federal regulations at 30 CFR 820.11. We are approving the 
revisions to 88.135(a) and (i). Finally, we are approving the proposed 
change to 88.135(h), which would allow a higher maximum airblast level 
of 133 dBL. Our approval is based on the fact all blasting seismographs 
manufactured today have 2 hertz microphones based on a standard 
developed with the International Society of Explosives Engineers 
Standards Committee, and based on our conclusion that the State's 
blasting plan regulation, in concert with revised subdivision (e)(1), 
will preclude the PADEP from approving the use of any blasting 
seismograph that uses a different type of microphone. Therefore only 
the 133 dBL limit is applicable.
    10. A commenter stated that OSM's summary of the amendment should 
be written in plain language, and include portions of the regulations 
immediately preceding and following the amended provisions, so that 
people may more readily understand the changes.
    Response: OSM will take this comment under consideration when 
writing subsequent Federal Register notices announcing receipt of 
program amendments.
    11. A commenter disputed OSM's statement in the proposed rule that 
the amendment ``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.'' To the contrary, the commenter stated, 
``[b]lasting damages have a significant economic effect on private 
homeowners.''
    Response: Under the Regulatory Flexibility Act, the term ``small 
entity'' means the same thing as the terms ``small business'', ``small 
organization'' and ``small governmental jurisdiction''. 5 U.S.C. Sec.  
601(6) Thus, the provision cited does not apply to individuals, 
including private homeowners.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Pennsylvania program 
(Administrative Record No. PA 887.01). No comments were received.

[[Page 72724]]

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) we requested comments on the 
amendment from EPA (Administrative Record No. PA 887.00). The EPA 
reviewed the amendment and did not identify any inconsistencies with 
the Clean Water Act or other statutes or regulations under EPA's 
jurisdiction (Administrative Record Number PA 887.04). Pursuant to 30 
CFR 732.17(h)(11)(ii), OSM is required to obtain the written 
concurrence of the EPA with respect to those provisions of the proposed 
program amendment that relate to air or water quality standards 
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). Because the 
provisions of this amendment do not relate to air or water quality 
standards, we did not request EPA's concurrence.

V. OSM's Decision

    Based on the above findings, we are approving the Pennsylvania 
program amendment sent to us on June 8, 2006, as revised on July 5, 
2006, and on April 4, 2008 (Administrative Record No. PA 887.00, 
887.02, and 887.12, respectively). To implement this decision, we are 
amending the Federal regulations at 30 CFR 938 which codify decisions 
concerning the Pennsylvania program. We find that good cause exists 
under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. 
Section 503(a) of SMCRA requires that the State's program demonstrate 
that the State has the capability of carrying out the provisions of the 
Act and meeting its purposes. Making this regulation effective 
immediately will expedite that process. SMCRA requires consistency of 
State and Federal standards.

VI. 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, and Section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Government

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The basis for this determination is that our decision is on a State 
Regulatory program and does not involve a Federal Regulation Involving 
Indian Lands.

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 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 government 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 
Pennsylvania submittal, which is the subject of this rule, is based 
upon

[[Page 72725]]

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 
Pennsylvania 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: October 29, 2008.
Thomas D. Shope,
Regional Director, Appalachian Region.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

PART 938--PENNSYLVANIA

0
1. The authority citation for part 938 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 938.15 is amended by adding a new entry to the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
June 8, 2006..................  December 1, 2008.  25 Pa. Code 210.11,
                                                    87.1, 88.1, and 89.5
                                                    added definition for
                                                    mine opening
                                                    blasting; 87.124(b)
                                                    correction of
                                                    reference error;
                                                    87.126(b)(2)(ii)
                                                    phrase deletion;
                                                    87.127(b),
                                                    87.127(e),
                                                    87.127(e)(1)
                                                    ,87.127(f)(1);
                                                    87.129(4);88.135(a),
                                                    88.135(b),
                                                    88.135(f)(1),
                                                    88.135(h) ,
                                                    88.135(i);
                                                    88.493(7)(i); 89.62
                                                    (adding new
                                                    language); 87.127(l)
                                                    and 88.135(l)
                                                    (deleted in their
                                                    entirety).
------------------------------------------------------------------------

 [FR Doc. E8-28445 Filed 11-28-08; 8:45 am]
BILLING CODE 4310-05-P