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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC and Mountain Watershed Ass'n. Oppose Pennsylvania Coal Mine Blasting Rule Changes  Posted: September 22, 2006


September 21, 2006

George Rieger, Director
Pittsburgh Field Division
Office of Surface Mining Reclamation and Enforcement
415 Market Street, Room 304
Harrisburg, PA 17101

Re: PA-148-FOR
Comments on Proposed Rule,
Pennsylvania Regulatory Program
30 CFR Part 938 Blasting

These comments are submitted by the Mountain Watershed Association and the Kentucky Resources Council, Inc. in response to the publication of a proposed amendment to the Pennsylvania Regulatory Program purporting to “clarify the requirements for shaft and slope development and other issues relating to blasting at a mine site.”

After review of the proposed rule, we have these comments and concerns, referenced by proposed rule or by topic as appropriate:

25 Pa. Code 87.127

a. Federal regulations do not distinguish between blasting conducted for “mine opening” and blasting otherwise conducted as part of a surface coal mining operation or as a surface activity associated with an underground mining operation.

Commenters are concerned that the categorical waiving of the obligation to conduct blasting between sunrise and sunset and at times in the blasting schedule, by allowing blasting at any time of night or day after a second blast “as necessary to maintain stability of the mine opening to protect the health and safety of mineworkers” is overbroad, and lacks a reasoned basis.

Initially, the proposed rule fails to explain why the development of a mine shaft or opening necessitates a broad waiver of otherwise applicable rules. Presumably, as part of the blasting plan, sufficient geological analysis has been conducted to determine the pattern and amount of explosives necessary to develop the mine opening. It is unclear why a blasting plan could not be developed that would schedule the initial blast sufficiently early in a day in order to allow for subsequent blasting to occur within schedule. Similarly, it is unclear why the first two blasts would be required to conform to the schedule but that the third and any further blasts would be allowed to be conducted at any time. Federal regulations allow unscheduled blasting only in emergency situations. The proposed rule appears to invite poor blasting planning by allowing the operator to engage in unscheduled blasting in order to “maintain stability” rather than requiring the development of a blasting plan that would account for and plan for the possibility of unanticipated stability conditions.

Absent documentation that stability is a sufficiently unpredictable concern to justify a blanket exemption from time-of-day and scheduled blast constraints, the proposal should be rejected. b. The proposed revision to 87.127(b) is inadequate, since it proposes to protect the public only from “the adverse effects of vibration or safety hazards” when federal rules require protection of the public from “adverse noise and other impacts” when nighttime blasting is conducted, and additionally require that limitations be placed on blasting to “protect the public health and safety or welfare,” which encompasses noise, dust, vibration (as opposed to the “adverse effects of vibration) and other adverse effects in addition to “the effects of vibration or safety hazards.”

c. The proposal to allow weaker vibration limits and airblast limits in 87.127(a) and 87.127(e), respectively, must be rejected as being overbroad. Federal rules limit the opportunity to provide for less-protective airblast and vibrational limits to those properties owned by the permittee including those leased to a third party who has given a waiver. There is no justification and no legal basis for allowing waivers of maximum airblast and vibrational standards for structures not owned by the permittee, and such provisions are less protective than their federal counterpart since they extend to third-party structures off the permit area and implicate the public’s long-term interest in minimizing off-site structural damage to private and particularly to public structures irrespective of the intent of a current owner of the structure.

d. PADEP proposes to replace the maximum limits for airblasts found at 30 CFR 816.67(b)(1)(i) with a single limit of 133 dB. This proposed change must be rejected as less effective than the federal counterpart absent a demonstration that under all response conditions the proposed standard is as or more protective than the federal counterpart, which limits the maximum dB level to a peak of 129 dB in 6 HZ or lower flat-response conditions.

e. The PADEP proposal to amend subsection (f)(1) of 25 Pas. Code 87.127 should be rejected unless the state demonstrates that lessening the distance from the blast at which public highways and entrances to the operation must be barricaded and guarded is as protective as the former standard. The proposal to allow “alternative measures” to be substituted for barricading and guarding such entrances should likewise be rejected as ill-advised, since even where blast design parameters and the blast is “designed” to prevent damage to persons and property on the highways (one questions whether all blasts aren’t required to be so designed), there is an absolute obligation to control public access to the blasting area to prevent the presence of livestock and unauthorized persons during blasting, which cannot be waived. Under no circumstance can OSM lawfully approve a state program amendment that proposes to eliminate access control in lieu of “alternative measures,” particularly when those design elements of the proposed measures should be part of the blasting plan in the first instance.

25 Pa. Code 87.129

30 CFR 816.68(d) requires that the operator retain records of all blasts for a three year period, and that among other items, such records include the “[I]dentification, direction, and distance, in feet from the nearest blast hole to the nearest dwelling, public building, school, church, community or institutional building outside the permit area, except those described in 816.87(e).” The state counterpart is less effective in requiring maintenance of records, for failing to specify that the records must identify the structures from the nearest blast hole to the structure, and also that the structures to be identified relative to the blast hole are the nearest outside the permit area.

25 Pa. Code 88.135

For the reasons stated above, commenters oppose the proposed revisions to 25 Pa. Code 88.135(a), (b) and (f)(1), and assert that to the extent that these changes relate to surface coal mining operations regulated under SMCRA and the approved State program, they are less effective than their federal counterparts and cannot lawfully be approved.

Concerning the proposed revision to subsection (h) to delete the maximum peak particle velocity and to replace it with an obligation to achieve either a scaled distance of 90 or to meet Figure 1 limits, and to replace the 130 dbL with 133, commenters request that both changes be rejected as less effective than their federal counterparts in achieving the objective of the federal regulation, which is prevention of injury to persons, damage to property outside the permit area, and protection of public health and safety and welfare. The state regulatory authority should be required to reduce the maximum peak particle velocity allowed to conform to 30 CFR 816.87(d), and must establish an upper-bound limit on velocity consistent with the federal regulation and with protection of adverse off-site impacts, and additionally, must establish maximum dB limits sufficient to be as or more effective than the federal regulations rather than allowing peak dB levels that exceed permissible federal limits.

In sum, the proposed state program amendments represent a significant retreat in protection of off-site persons and property from the adverse effects of mine blasting, and should be rejected, as indicated above, as being “less effective than” their federal counterparts in protecting against avoidable damage, annoyance, and interference with the reasonable expectations of off-site property owners that their rights to peaceful use and enjoyment of their lands and structures will not be adversely affected by coal-related blasting.

Thank you for your consideration of these comments.



Cordially,

Beverly Braverman
Mountain Watershed Association

Tom FitzGerald, Esq., Director
Kentucky Resources Council, Inc.
P.O. Box 1070
Frankfort, Ky. 40602


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