The Environmental Quality Board (EQB or Board) hereby amends Chapter 211

pertaining to the storage of explosives as set forth in Annex A.

These amendments establish standards to ensure that explosive magazines are secure

from unauthorized intrusion and theft.

Notice of proposed rulemaking is omitted under section 204 (2) and (3) of the act of July

31, 1968, P.L. 769, No. 240, (45 P.S. §1204 (2) and (3). Subsection (2) provides that an agency

may omit the notice of proposed rulemaking if all persons subject to the regulation are named

therein and are either served with the proposed regulation or have actual notice of the proposed

regulation. There are approximately 350 persons that will be directly affected by these

regulations. They include licensees of outdoor magazines and those persons who currently store

in Pennsylvania explosives in the form of fireworks, blasting agents, high explosives, and

detonators. All these persons were sent a copy of this Final Order and Annex A at least two

weeks prior to the EQB’s January 18 meeting. Subsection (3) provides that an agency may omit

the notice of proposed rulemaking if the agency finds for good cause that notice of proposed

rulemaking is impracticable, unnecessary or contrary to the public interest. In this case using the

Notice of Proposed Rulemaking procedure is contrary to the pub lic's interest. As more fully

explained in the background section, the existing magazine standards are inadequate to prevent

the theft of explosives. These amendments will provide additional significant deterrence to

thefts of explosives from magazines and subsequent accidental or deliberate injury to persons

and damage to property.

These amendments were adopted by order of the EQB at its meeting of _________, 2005.

These amendments are effective upon publication in the Pennsylvania Bulletin.

For further information contact Joseph G. Pizarchik, Director, Bureau of Mining and

Reclamation, Rachel Carson State Office Building, 5th floor, 400 Market Street, P.O. Box 8461

Harrisburg, PA 17105-8461 (717) 783-9892, or Marc A. Roda, Assistant Counsel, Bureau of

Regulatory Counsel, Rachel Carson State Office Building, 9th floor, P.O. Box 8464, Harrisburg,

PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by

calling 1-800-654-5984 (TDD users) or 1-800-654-5988 (voice users). This regulation is

available electronically through the DEP Web site (http://www.dep.state.pa.us).

The final rulemaking is being made under the authority of:

Section 11 of the Explosives Act of 1937 (73 P.S. § 161), and Reorganization Plan No. 8 of 1981

(71 P.S. § 751-35), which authorizes the Department to promulgate implementing regulations for

the licensing of blasters and the use, storage and handling of explosives in most contexts other

than mining;

Section 4.2 of the Surface Mining Conservation and Reclamation Act and Section 11(e) of the

Noncoal Surface Mining Conservation and Reclamation Act (52 P.S. §§ 1396.4b and 3311(e)),

which direct the Department to promulgate regulations concerning the handling and use of

explosives at coal and noncoal surface mine sites as well as the licensing of blasters; and

Sections 1917-A and 1920-A of the Administrative Code of 1929, 71 P.S. § 510-20. Sections

1917-A and 1920-A of the Administrative Code of 1929 authorize the Board to adopt regulations

to prevent the occurrence of a nuisance and to promulgate such rules and regulations as are

necessary for the proper work of the Department.

The Department's regulations addressing the storage of explosives are found in Chapter

211, Subchapter B (relating to the storage and classification of explosives). Subchapter B

incorporates by reference the performance and design requirements established by the United

States Department of Justice, Bureau of Alcohol, Tobacco, and Firearms ("ATF"), found at 27

C.F.R. Part 555 Subpart K (relating to Storage). See § 211.115(a) (relating to standards for

classifying and storing explosives and constructing, maintaining and siting magazines). The

current ATF regulations focus on safety concerns related to location of magazines to reduce

threat from accidental explosions. The magazine security requirements are minimal and only

address design requirements for magazine construction, doors and locks on the doors. There are

no effective perimeter security requirements and magazines are too readily accessible to those

who want to steal explosives. See e.g. § 555.207 (relating to Construction of type 1 magazines).

As a result of inadequate security requirements, explosives have been stolen from

magazines in Pennsylvania. From March 2003 to December 2003, the last period for which data

from ATF is available, Pennsylvania led the nation with 9 explosives thefts. In these 9 thefts

1,859 pounds of explosives and 375 detonators, necessary to detonate the explosives, were

stolen. Not all of this material has been recovered. These thefts of explosives pose a significant

risk to the public's safety and the threat of future thefts may present an even greater risk to the

public safety.

A recent theft of explosives investigated by the Pennsylvania State Police (PSP) resulted

in the Pennsylvania Office of Homeland Security, the PSP and the Department working to

develop regulatory standards for additional magazine security measures. These amendments

establish specific performance standards and include examples that meet the performance

standards. The amendments specifically provide magazine licensees the flexibility to propose

and use other methods and technologies that meet the performance standards and which may be

more cost effective.

These amendments also add a duty that magazine licensees must report thefts of

explosives and attempted break- ins to the Department, the PSP and any local police with

jurisdiction. The information will be used to assess the effectiveness of these security standards

and for possible necessary enhancements.

The Department's regulations are being amended because neither the Pennsylvania Office

of Homeland Security nor the PSP have regulatory authority over the construction or operation

of explosive magazines. These agencies have assisted in the development of these amendments

and concur that their implementation will significantly enhance security of the Commonwealth

and reduce the risk of theft of explosives and the resulting risk of injury to persons and damage

to property.

This final rulemaking amends Chapter 211 (relating to storage, handling and use of

explosives) to establish effective security standards for the storage of explosives. The

amendments are summarized below.

This section is amended to include definitions for the following terms: access point,

concertina razor wire, indoor magazines, inner perimeter security, outdoor magazine site, outer

perimeter security and wheeled vehicle. These are critical terms used in the new subsections (c)

and (d) added to § 211.115 (relating to standards for classifying and storing explosives and

constructing, maintaining and siting magazines). Defining these terms should minimize the risk

of confusion in applying these new security standards.

This section is amended to clarify that Subchapter B of Chapter 211 does not apply to

explosives which are stored underground in permitted underground mines.

Subsection (b) is amended to include two new requirements for the license application.

To enable risk assessment and prompt emergency response, the application is to include a plan

showing the security measures being undertaken, as well as, the longitude and latitude of the

magazine.

Subsection (a)

This subsection incorporates by reference the ATF regulations for classifying and storing

explosives. The citation to the ATF regulations is corrected to reflect that the ATF regulations

have been recodified from 27 C.F.R. Part 55 to part 555 as a result of moving ATF to the

Department of Justice. For the first time the Department's regulations will contain standards for

magazines in addition to those required by ATF. If the ATF establishes, at some time in the

future, magazine security standards that conflict with the Department's regulations, the more

stringent standards will apply.

Subsection (c)

This subsection requires indoor magazines storing detonators to be in a different secure

room from other indoor magazines. Storing detonators in a separate magazine in a separate

secure room will reduce the possibility that a thief can obtain all the materials needed to make a

bomb.

Subsection (d)

This subsection contains most of the new security standards established by this final

order.

Subparagraph (d)(1)

This subparagraph establishes, for the first time, the requirement that the magazine be

inspected by the licensee or his agent. Inspections of magazines containing explosives shall

occur at least once every 24 hours. A record of the inspection and any problems encountered is

to be maintained for at least three years.

Subparagraph (d)(2,3,7 and 9)

Subparagraphs 2, 3, 7 and 9 establish the standards addressing access to magazines.

Magazine licensees are to establish outer perimeter security to prevent, to the greatest extent

possible, unauthorized wheeled vehicles from entering the site. Subparagraph 3 identifies

various measures or combinations which can be used to prevent, to the greatest extent possible,

unauthorized vehicular access. Access through the outer perimeter security is limited to one

point unless otherwise approved by the Department. Subparagraph 9 addresses the signs to be

placed on the outer perimeter system. The signs are to warn first responders and the public of

the hazards on the site.

These amendments provide the licensee with the flexibility to propose alternative security

measures that meet the performance standards.

Subparagraphs (d)(4,6, 8 and 10)

These subparagraphs require additional measures to prevent, to the greatest extent

possible, unauthorized personnel access to the magazine.

Subparagraph 4 provides an additional security performance standard for magazines used

to store high explosives or detonators. In addition to the outer perimeter security to prevent

unauthorized wheeled vehicle access to all magazines, inner perimeter security to prohibit access

by unauthorized persons must be provided for magazines containing high explosives or

detonators. Licensees can use chain link fence as specified in the regulation or another measure

approved by the Department that is at least as effective as the chain link fence.

Subparagraph 6 contains the standards for the gate that secures the access point to the site.

These amendments provide the licensee with the flexibility to propose alternative security

measures that meet the performance standards.

Subparagraph (d)(5 and10)

These subparagraphs require that all mobile and easily moveable magazines being used as

stationary magazines must be immobilized.

These amendments provide the licensee with the flexibility to propose alternative security

measures that meet the performance standards.

Subparagraph (d)(11 and 12)

Subparagraph 11 requires the licensee to notify the state police and local law enforcement

personnel of the establishment of an explosives magazine. The police will be better informed of

the magazine location and may be able to patrol the area and more timely respond to attempted

thefts. Subparagraph 12 requires the licensee to immediately report to the state police, local law

enforcement officials and the Department all thefts, break- ins, attempted break- ins and

unaccounted for explosives. Timely investigation should allow for greater recovery of stolen

explosives and apprehension of perpetrators. This information will also be useful in evaluating

the effectiveness of these regulations.

Subsection (e) and (f)

These subsections establish a compliance schedule for magazines licensed on the

effective date of this rulemaking. The inspection and notification requirements contained in

this rulemaking take effect immediately. The rulemaking provides 60 days for licensees to

submit to the Department plans and schedules for the implementation of inner and outer

perimeter security measures. This rulemaking provides each licensee with the flexibility to

choose the sequence in which they implement the inner and outer perimeter security measures.

All security measures must be implemented within 360 days of this rulemaking's effective date

unless the licensee requests and justifies and the Department approves a longer time period.

Finally, magazine licensees will immediately have to begin the daily inspections, maintain

inspection logs and notify police of storage magazines and report any thefts or break- ins. These

requirements will improve security immediately at explosive magazines.

Subsections (g) and (h)

These subsections provide the licensee with the flexibility to propose to the Department

alternatives to the security requirements specified in section 211.115. This rulemaking also

provides the timeframes for the Department’s review and action on such proposals.

The benefits of this rulemaking are difficult to quantify. By greatly reducing the

potential for the theft of explosives, this rulemaking makes significantly less likely that

individuals will have to bear the costs associated with injuries to persons and property damage

resulting from the inept or malicious use of explosives. Reducing access to magazine sites

should also reduce the number of thefts and the costs of related investigations.

Small magazine sites, where a few hundred pounds of explosives or less are stored, may

cost less than $10,000 to secure. Larger sites may cost $150,000 or more to secure. The savings

to the regulated community would be in the form of prevention of possible lawsuits stemming

from explosives stolen from an inadequately secured site, resulting in harm to people or property.

The cost to insure secured facilities may be less than the costs to insure unsecured facilities. The

licensees’ loss due to stolen explosives should also be reduced.

Compliance assistance will be in the form of allowing adequate time to implement these

regulations and providing outreach and meetings to discuss the regulatory changes proposed with

the affected industry community. The Pennsylvania Office of Homeland Security, the PSP and

the Department also met with industry trade associations to discuss the amendments.

Plans showing the specifications of all security measures required by this regulation will

have to be prepared and submitted to the Department. Additional reporting requirements will not

significantly change existing reporting, record keeping, or other paperwork requirements.

Additional record-keeping requirements will be required to document inspection activities.

The final regulation directly affects a class of persons who hold explosive storage

licenses issued by the Department and operate in Pennsylvania outdoor magazines and

magazines for the storage of blasting agents, high explosives or detonators. This class of

licensees consists of approximately 350 magazine site operators. The Department maintains a

database that identifies the explosive storage license holders/magazine site operators who will

receive direct notice from the Department concerning the new requirements.

This rulemaking addresses security measures to be taken to prevent unauthorized access

to magazines and to prevent the theft of explosives from the magazines. As a result, the issue of

pollution prevention is not applicable to this rulemaking except as the additional security will

reduce the criminal use of stolen explosives that may cause environmental pollution through the

release of regulated substances.

These regulations will be reviewed in accordance with the sunset review schedule

published by the Department to determine whether the regulation effectively fulfills the goals for

which it was intended.

Under section 5(f) of the Regulatory Review Act (71 P. S. § 745.5(f)), on

__________________, the Department submitted a copy of this final rulemaking with notice of

proposed rulemaking omitted to the Independent Regulatory Review Commission (IRRC) and

the Chairpersons of the House and Senate Environmental Resources and Energy Committees.

On the same date, the Department also submitted this rulemaking to the Office of Attorney

General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732-101-

732-506). In addition to the final rulemaking, IRRC and the Committees were provided with a

copy of a detailed regulatory analysis form prepared by the Department.

The Board finds that:

(1) The amendments as set forth in Annex A are appropriate to implement the

requirements of the Explosives Act of 1937, as well as, the Surface Mining Conservation and

Reclamation Act and the Non-Coal Surface Mining Conservation and Reclamation Act.

(2) Use of the omission of notice of proposed rulemaking procedure is appropriate

because the notice of proposed rulemaking procedure specified in sections 201 and 202 of the

CDL (45 P.S. §§1201 and 1202) is, in this instance, contrary to the public interest.

(3) The use of the notice of proposed rulemaking procedures is, in this instance,

impracticable, unnecessary and contrary to the public interest in light of the current threat to the

public safety from explosive magazines in Pennsylvania that have inadequate security measures.

There have been numerous thefts of explosives in recent years in Pennsylvania from explosive

magazines. These regulations are needed immediately to impose additional security

requirements that are designed to prevent future thefts of explosives from licensed magazines in

Pennsylvania.

(4) All persons directly affected by this Final Order were sent a copy of the proposed

amendments at least two weeks prior to the adoption of the proposed amendments.

(5) These amendments are necessary and appropriate for administration and

enforcement of the authorizing acts identified in section C of this preamble and in the public

interest.

The Environmental Quality Board, acting under the authorizing statutes, orders that:

(a) The regulations of the Department of Environmental Protection, 25 Pa. Code

Chapter 211 are amended as set forth in Annex A.

(b) The Chairperson shall submit this order and Annex A to the Office of General

Counsel and the Office of Attorney General for approval and review as to legality and form as

required by law.

(c) The Chairperson shall submit this Order and Annex A to the Independent

Regulatory Review Commission and the Senate and House Environmental Resources and

Energy committees as required by the Regulatory Review Act.

(d) The Chairperson of the Board shall certify this order and Annex A and deposit

them with the Legislative Reference Bureau, as required by law.

(e) This order shall take effect immediately.

BY:

___________________________________

Kathleen A. McGinty

Chairperson

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The following words and terms, when used in this chapter, have the following meanings,

unless the context clearly indicates otherwise:

Airblast--An airborne shock wave resulting from an explosion, also known as air

overpressure, which may or may not be audible.

Blast area--The area around the blast site that should be cleared to prevent injury to

persons and damage to property.

Blast site--The specific location where the explosives charges are loaded into the blast

holes.

Blaster--An individual who is licensed by the Department under Chapter 210 (relating to

blasters' licenses) to detonate explosives and supervise blasting activities.

Blaster--in--charge--The blaster designated to have supervision and control over all

blasting activities related to a blast.

Blasting activity--The actions associated with the use of explosives from the time of

delivery of explosives to a worksite until all postblast measures are taken, including priming,

loading, stemming, wiring or connecting, detonating, and all necessary safety, notification and

monitoring measures.

Building--A structure that is designed for human habitation, employment or assembly.

Concertina razor wire--razor wire that is extended in a spiral for use as a barrier,

Delay interval--The designed time interval, usually in milliseconds, between successive

detonations.

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Detonator--A device containing an initiating or primary explosive that is used for

initiating detonation of explosives. The term includes electric blasting caps of instantaneous and

delay types, blasting caps for use with safety fuses, detonating cord, delay connectors and

nonelectric instantaneous and delay blasting caps.

Explosive--A chemical compound, mixture or device that contains oxidizing and

combustible materials or other ingredients in such proportions or quantities that an ignition by

fire, friction, concussion, percussion or detonation may result in an explosion.

(i) The term includes safety fuse, squibs, detonating cord and igniters.

(ii) The term does not include the following:

(A) Commercially manufactured black powder, percussion caps, safety and pyrotechnic

fuses, matches and friction primers, intended to be used solely for sporting, recreational or

cultural purposes in antique firearms or antique devices, as defined in 18 U.S.C.A. § 921

(relating to definitions).

(B) Smokeless powder, primers used for reloading rifle or pistol cartridges, shot shells,

percussion caps and smokeless propellants intended for personal use.

Flyrock--Overburden, stone, clay or other material ejected from the blast area by the

force of a blast.

Magazine--A structure used for the storage of explosives.

Misfire--Incomplete detonation of explosives.

Particle velocity--A measure of the intensity of ground vibration, specifically the

time rate of change of the amplitude of ground vibration.

Peak particle velocity--The maximum intensity of particle velocity.

Person--A natural person, partnership, association, or corporation or an agency,

instrumentality or entity of state government.

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Primer--A cartridge or package of high explosives into which a detonator has

been inserted or attached.

Purchase--To obtain ownership of explosives from another person.

Outer perimeter security--measures taken to increase the intrusion resistance

Sale or sell--To transfer ownership of explosives to another person.

Scaled distance (Ds)--A value calculated by using the actual distance (D) in feet,

measured in a horizontal line from the blast site to the nearest building or structure,

neither owned nor leased by the blasting activity permittee or its customer, divided by the

square root of the maximum weight of explosives (W) in pounds, that is detonated per

delay period of less than 8 milliseconds.

Ds = D / (square root) W

Stemming--Inert material placed in a blast hole after an explosive charge for the

purpose of confining the explosion gases to the blast hole, and inert material used to

separate explosive charges in decked holes.

Structure--A combination of materials or pieces of work built or composed of

parts joined together in some definite manner for occupancy, use or orna mentation. The

term includes everything that is built or constructed, including bridges, offices, water

towers, silos and dwellings.

Utility line--An electric cable, fiber optic line, pipeline or other type of conduit

used to transport or transmit electricity, gases, liquids and other media including

information.

Wheeled vehicle-- a vehicle that moves about on three or more wheels and has

§ 211.111. Scope

This subchapter applies to the classification and storage of explosives. It

establishes the requirements, procedures and standards for licensing, constructing, and

siting and maintaining magazines. Persons storing explosives underground in

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(a) An application to obtain, renew, modify or transfer a magazine license shall be on

forms approved by the Department. Before the Department issues, renews, transfers or modifies

a license, the application must demonstrate that the applicant has complied with the applicable

requirements of this chapter.

(b) A completed license application shall include:

* * *

(6) A plan showing the design, specifications, dimensions and locations of all

(7) The latitude and longitude of outdoor magazines except for Type 3

(8) The latitude and longitude of indoor magazines containing high

* * *

(a) The provisions of 27 CFR Part 555, Subpart K (relating to storage), are

incorporated herein by reference. If any provision of 27 CFR Part 555, Subpart K addresses

an issue addressed in this section then the more stringent provision shall apply. These

provisions shall be used to:

(1) Classify explosives.

(2) Determine which class of explosives may be stored in each type of magazine.

(3) Determine the quantity of explosives that may be stored.

(4) Determine the applicable construction standards for each type of magazine.

(5) Site the magazine.

(6) Specify maintenance and housekeeping standards for a magazine.

(7) Grant Variances.

(b) For purposes of incorporation by reference of 27 CFR Part 555, Subpart K, the

term "Department" is substituted for the term "director" and the term "representatives of

the Department" is substituted for the term "ATF Official"

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(2) There shall be no more than one access point to each magazine site. The

(3) Each magazine shall have outer perimeter security that shall prevent, to the

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(4) In addition to the requirements contained in subsection (d)(3) of this section, a

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(5) In addition to outer perimeter security, all portable magazines being used as

(6) Inner perimeter security gates shall be constructed at all access points. Gates

(7) Outer perimeter security gates shall be constructed at all access points. Gates

(8) Outer perimeter security gates shall be padlocked whenever the site is

8

(9) No trespassing signs shall be placed around the outer perime ter of the site.

(A) Mobile type 5 magazines being used as stationary magazines for

(B) Systems of pumps and/or tanks used to store, mix or dispense bulk

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(12) Any person who stores explosive materials shall immediately notify the

(A) The partial breach was due to equipment failure or accidental or

(B) An account of the partial breach was recorded pursuant to

(C) Immediate measures are being taken to repair or replace the partial

(e) Licensees of magazines licensed prior to ___, 2005, (the effective date of this

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