Closure of Petition for Rulemaking; Use of Explosives on Surface Coal Mining Operations, 36844-36848 [2019-16125]

Agencies

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

[Federal Register Volume 84, Number 146 (Tuesday, July 30, 2019)]
[Proposed Rules]
[Pages 36844-36848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16125]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 816, 817, 850

[Docket ID: OSM-2014-0003; S1D1S SS08011000 SX064A000 190S180110 S2D2S 
SS08011000 SX064A00 19XS501520]


Closure of Petition for Rulemaking; Use of Explosives on Surface 
Coal Mining Operations

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

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), withdraw our decision to initiate rulemaking related to the 
release of emissions generated by blasting on surface coal mining 
operations. After granting a petition to initiate rulemaking in 2015 
without stating the content of the rule we planned to propose, OSMRE 
has since determined that it lacks statutory authority to establish an 
air quality standard as urged by petitioners, and that in the rare 
instances where injury might occur, the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA), provides adequate mechanisms for 
enforcement.

[[Page 36845]]


DATES: OSMRE's decision to initiate rulemaking, as reflected in a 
February 20, 2015, Federal Register notice (80 FR 9256), is withdrawn 
as of July 30, 2019.

FOR FURTHER INFORMATION CONTACT: Kathleen Vello, Office of Surface 
Mining Reclamation and Enforcement, 1849 C Street NW, Mail Stop 4550, 
Washington, DC 20240; Telephone (202) 208-1908. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. 2014 Petition To Initiate Rulemaking
    B. OSMRE Response to Petitioner's Request Following Public 
Comment
II. OSMRE's Decision To Withdraw the Contemplated Rulemaking and 
Close the Petition for Rulemaking
    A. OSMRE Lacks Authority To Regulate Air Quality
    B. The Current Federal Regulations Are Adequate To Protect 
Property and Public Health
    1. Existing Federal Regulations Adequately Prevent Injury to 
Persons and Damage to Property From Blasting
    2. Existing Federal and State Regulatory Authorities Are 
Adequately Addressing Any Incidents That Occur
III. Procedural Matters and Required Determinations

I. Background

A. 2014 Petition To Initiate Rulemaking

    On April 14, 2014, WildEarth Guardians, pursuant to section 201(g) 
of SMCRA, 30 U.S.C. 1211(g), petitioned OSMRE to promulgate regulations 
prohibiting the production of visible nitrogen oxide emissions during 
blasting at surface coal mining operations. The petitioners alleged 
that blasting done in conjunction with surface coal mining operations 
often produces visible nitrogen oxide emissions, which are observed as 
orange to red clouds. Petitioners also asserted that whenever visible 
clouds are formed, nitrogen dioxide concentrations exceed Federal 
health standards, including national ambient air quality standards, 
which are within the purview of the U.S. Environmental Protection 
Agency.
    Section 201(g) of SMCRA provides that any person may petition the 
Director of OSMRE to initiate a proceeding for the issuance, amendment, 
or repeal of any regulation adopted under SMCRA. After initial review 
of the petition and in accordance with the requirements of SMCRA and 
OSMRE's implementing regulations at 30 CFR 700.12(c), OSMRE published a 
notice on July 25, 2014, seeking comments on whether the petition 
should be granted or denied (79 FR 43326).

B. OSMRE's Response to Petitioner's Request Following Public Comment

    In response to OSMRE's July 25, 2014, notice, OSMRE received 119 
comments. The majority of comments supported the petition and asserted 
that the current regulations do not adequately protect the public and 
the environment from emissions generated by blasting. Some commenters 
asserted that not all State regulatory authorities were appropriately 
regulating the use of explosives, specifically emissions generated from 
blasting, because nitrogen oxides emissions are not explicitly limited 
by every State regulatory authority. In contrast, some commenters urged 
OSMRE to deny the petition. These commenters expressed concern that 
OSMRE lacked legal authority to regulate air quality under SMCRA and 
that OSMRE's regulation of blasting emissions would be inappropriate 
because the U.S. Environmental Protection Agency is the Federal agency 
charged with implementing the Clean Air Act. These commenters stated 
that the petitioner's suggested rule language would create ``an 
unlawful, unnecessary, and unattainable emissions standard under 
OSMRE's Federal regulatory program.'' Other commenters concluded that 
additional rulemaking is unnecessary because OSMRE's existing 
regulations at 30 CFR 816.67 and 817.67 already contain adequate 
protection from the effects of blasting. Finally, some commenters 
claimed that the petitioner's suggested rule language would, in effect, 
prevent all coal mining operations.
    After reviewing the comments received, OSMRE granted the petition 
on February 20, 2015. However, OSMRE expressly declined to propose the 
specific regulatory changes suggested by the petitioner. See (80 FR 
9256). Instead, OSMRE stated that it was ``still considering the 
content of the proposed rule[,]'' but that it anticipated it would 
define ``blasting area,'' amend 30 CFR 816.67(a) and 30 CFR 817.67(a) 
to clearly require the proper management of toxic blasting emissions, 
and revise 30 CFR 850.13 to ensure certified blasters are trained to 
identify and mitigate the impacts of blast-related fumes.

II. OSMRE's Decision To Withdraw the Contemplated Rulemaking and Close 
the Petition for Rulemaking

    Since the OSMRE Director granted the rulemaking petition in 2015, 
OSMRE has further evaluated the scope of its authority to regulate 
blasting under SMCRA. To the extent the petitioner proposed that OSMRE 
establish an air quality standard for blasting emissions, we lack that 
authority under SMCRA. Moreover, OSMRE has further evaluated the 
existing regulations and enforcement regime regarding the use of 
explosives. Based on the information gathered during this evaluation, 
OSMRE has determined that existing Federal and State regulations and 
enforcement regimes are adequate to protect public safety, and thus a 
new rulemaking is unnecessary even if authorized. In light of the 
substantial legal considerations associated with implementing a rule in 
this space, as well as in consideration of OSMRE's limited resources 
and other priorities, OSMRE has concluded that a new Federal regulation 
is not warranted. Therefore, for the reasons described more fully 
below, OSMRE is withdrawing its anticipated rulemaking and terminating 
its prior decision to grant a rulemaking petition on this matter, as 
was explained in the February 20, 2015 Federal Register notice. (80 FR 
9256).

A. OSMRE Lacks Authority To Regulate Air Quality

    OSMRE's review of the statute and relevant case law indicates that 
SMCRA is not an independent grant of authority to develop and 
promulgate air quality standards. At no point does SMCRA explicitly 
grant OSMRE substantive authority to regulate air quality. Rather, it 
refers to conditional authority to promulgate regulations under SMCRA 
that ``relate to air or water quality standards promulgated under the 
authority of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1151-1175), and the Clean Air Act, as amended (42 U.S.C. 1857 et 
seq.)'' only after obtaining written concurrence of the Administrator 
of the Environmental Protection Agency. SMCRA, Sec.  501(a)(B), 30 
U.S.C. 1251(a)(B). Thus, in general, SMCRA recognizes that the 
authority to regulate air quality is derived from the Clean Air Act, 
not SMCRA itself. The courts have interpreted this provision as 
limiting OSMRE, when otherwise exercising its lawful authority under 
SMCRA, to filling regulatory gaps in the coverage of the Clean Air Act. 
National Wildlife Federation v. Hodel, 839 F.2d 694, 765 (D.C. Cir. 
1988).
    As Federal courts have recognized, SMCRA limits OSMRE's conditional 
authority to promulgate regulations impacting air quality to a few 
discrete cases expressed in the statute. Most prominently, section 515 
of SMCRA provides general performance standards applicable to all 
surface coal mining operations, including a standard that requires 
operations to ``stabilize and

[[Page 36846]]

protect all surface areas including spoil piles affected by the surface 
coal mining and reclamation operation to effectively control erosion 
and attendant air and water pollution.'' 30 U.S.C. 1265(b)(4).
    OSMRE initially interpreted this section as a general grant of 
authority to regulate air quality, and cited to it in defense of 
regulations addressing ``air resources protection,'' primarily issues 
related to fugitive dust. See 30 CFR 816.95, 817.95 (1979). These 
regulations were successfully challenged in Federal Court. In In Re: 
Permanent Surface Mining Regulation Litigation, 1980 U.S. Dist. LEXIS 
17660 *43, 19 ERC (BNA) 1477 (D.D.C. 1980), the court acknowledged that 
``the passing reference to air and water pollution with respect to 
protection of surface areas is an ambiguous statement,'' but 
nevertheless held that section 515 of SMCRA was limited to air quality 
effects associated with erosion, and did not provide authority to 
regulate air quality more generally. Consequently, the court remanded 
the regulations to the Department. In reaching its conclusion, the 
court noted ``if Congress wanted the Secretary to develop regulations 
protecting air quality, it could have done so in a straightforward 
manner.'' The court also looked to the legislative history surrounding 
SMCRA and determined that ``the Senate Committee Report lists 22 
environmental protection performance standards under the Act, but fails 
to mention air quality.'' Id. at *43 (quoting S. Rep. No. 95-128, 95th 
Cong., 1st Sess. 82 (1977)).
    In the absence of any express authority to promulgate air quality 
standards, authority would have to be implied from some other provision 
or performance standard under SMCRA. However, we are not aware of any 
other case law or agency precedent interpreting any other provision or 
performance standard under SMCRA as providing the authority to regulate 
air quality. One of the general performance standards in section 515 of 
SMCRA provides that operations must insure that explosives are used 
only in accordance with existing State and Federal law, and the 
regulations promulgated by the regulatory authority, including 
provisions to ``limit the type of explosives and detonating equipment, 
the size, the timing and frequency of blasts based upon the physical 
conditions of the site as to prevent (i) injury to person, (ii) damage 
to public private property outside the permit area, (iii) adverse 
impacts on any underground mine, and (iv) change in the course, 
channel, or availability of ground or surface water outside the permit 
area.'' 30 U.S.C. 1265(b)(15)(C) (hereinafter ``blasting standard''). 
The question becomes whether this performance standard, which 
authorizes OSMRE to regulate enumerated aspects of operations to 
prevent injury to persons or damage to off-permit property from 
blasting, inherently includes authority to promulgate air quality 
standards to regulate blasting emissions. The blasting standard's 
express terms define a narrow grant of regulatory authority. Although 
Congress intended OSMRE to exercise this authority for the broad 
purpose of preventing injury and off-permit property damage, this 
purpose does not represent a grant of regulatory authority beyond the 
cabined authority outlined in the operative portion of the blasting 
standard.
    The narrow nature of the authority contained in the blasting 
standard is confirmed by SMCRA's text and basic structure. First, the 
text of SMCRA repeatedly distinguishes between injury or harm to public 
health and safety and adverse impacts on the environment, such as air 
quality, suggesting that for SMCRA purposes, they are distinct 
concepts. See 30 U.S.C. 1258(a)(9) (referring to ``the steps to be 
taken to comply with applicable air and water quality laws and 
regulations and any applicable health and safety standards.''); id. 
Sec.  1264(d) (allowing the Secretary to grant temporary relief if 
``such relief will not adversely affect the public health or safety or 
cause significant imminent environmental harm to land, air, or water 
resources.''); id. Sec.  1271(a)(2) (referring to the violation of any 
permit condition that ``creates an imminent danger to the health or 
safety of the public, or is causing, or can reasonably be expected to 
cause significant imminent environmental harm to land, air, or water 
resources . . .''); id. Sec.  1271(a)(3) (a reasonable time may be 
granted to correct a violation where such violation ``does not create 
an imminent danger to the health or safety of the public, or cannot be 
reasonably expected to cause significant, imminent environmental harm 
to land, air, or water resources . . . .''); id. Sec.  1275(c)(3) 
(referring to a grant of temporary relief where ``such relief will not 
adversely affect the health or safety of the public or cause 
significant, imminent environmental harm to land, air, or water 
resources.''); id. Sec.  1276(c)(3) (courts may grant temporary relief 
where ``such relief will not adversely affect the health or safety of 
the public or cause significant, imminent environmental harm to land, 
air, or water resources.''). Treating air quality solely as a subset of 
health and safety would in effect render the statute's repeated 
reference to both health and safety and air quality surplusage, and 
negate the separate standards for evaluating each form of harm. See, 
e.g. id. Sec.  1275(c)(3) (referring to ``adverse affects'' on health 
or safety and ``significant, imminent environmental harm'' to air 
quality). Consistent with the whole-text canon of statutory 
construction, the distinction between harm to health and safety and air 
quality in the enforcement provisions inform the proper interpretation 
of the reference to injury to persons in the blasting standard. Since 
interpreting air quality concerns to be a subset of health and safety 
concerns for purposes of the blasting standard could create internal 
inconsistencies in the statute, we decline to develop air quality 
standards based on the blasting standard.
    Second, structurally, SMCRA created a cooperative federal-state 
framework that increases regulatory flexibility by delegating the 
authority to implement SMCRA to primacy states with approved programs 
that meet minimum federal standards while also addressing issues unique 
to their geographical areas of responsibility. Where there is such a 
framework, it stands to reason that Congress intends its discrete, 
enumerated grants of authority to be interpreted as such, even where 
they are for a preventive purpose. OSMRE is thus not inclined to 
interpret the blasting standard's language relating to the prevention 
of injury and off-site property damage as an all-encompassing grant of 
regulatory authority, or to infer authority to establish air quality 
standards that the blasting standard does not expressly grant.

B. The Current Federal Regulations Are Adequate To Protect Property and 
Public Health

1. Existing Federal Regulations Adequately Prevent Injury to Persons 
and Damage to Property From Blasting
    OSMRE has promulgated a series of regulations to protect the public 
from injury from common hazards associated with blasting consistent 
with its authority under SMCRA. Specifically, 30 CFR 780.13 requires 
that permit applicants submit a blasting plan for the permit area. This 
blasting plan must explain how the permit applicant will comply with 30 
CFR 816.61 through 816.68, which require, among other things, that the 
operator publish the blasting schedule in a local newspaper at least 10 
days prior to conducting blasting activities, that regulatory

[[Page 36847]]

authorities approve the timing of the blasting operation, and that the 
operator comply with all applicable State and Federal laws and 
regulations related to blasting. Furthermore, 30 CFR 816.67(a) and 
817.67(a) require that blasting must be ``conducted to prevent injury 
to persons [and] damage to public or private property outside the 
permit area. . . .'' Existing regulations limit the frequent and well-
known dangers, such as airblast, flyrock, and ground vibration. 
Additionally, should blasting at surface coal mining operations create 
hazardous or potentially injurious conditions, such as the release of 
toxic blasting emissions, regulatory authorities are empowered to take 
appropriate enforcement action to prevent injury to persons and 
property. In addition to these measures, OSMRE requires blasting 
professionals to ensure they are adequately trained in the Federal and 
State laws related to explosives, including SMCRA, before blasting 
occurs. 30 CFR 850.13(a)(1). In particular, the person directly 
responsible for the use of explosives on each mine site must receive 
the necessary training, take an examination, and become certified. Id. 
Such training includes selecting the type of explosive with properties 
that will produce the desired results at an appropriate level of risk, 
controlling adverse effects, and managing unpredictable hazards. 30 CFR 
850.13(b). The consequences of violating any provision of State or 
Federal explosives law, including 30 CFR 816.67(a) or 817.67(a), are 
severe; blasters may have their certification suspended or revoked. 30 
CFR 850.15(b).
    Furthermore, OSMRE actively collaborates with State regulatory 
authorities to address issues related to the use of explosives, 
including adverse impacts caused by blasting. OSMRE administers a 
Federal Blasting Workgroup, Blasting Helpdesk, and offers instructional 
courses on blasting through its National Technical Training Program. As 
a result, OSMRE provides constant feedback, technology transfer, and 
expert assistance to State regulatory authorities regarding the use of 
explosives. If specific issues arise regarding potential blasting-
related violations of 30 CFR 816.67(a) and 817.67(a), such as blasting 
emissions, OSMRE is well-positioned to use these resources.
2. Existing Federal and State Regulatory Authorities Are Adequately 
Addressing Any Incidents That Occur
    Additional Federal regulations specific to blasting are not 
warranted because in the rare instance that persons or property are 
adversely impacted by blasting emissions, OSMRE and the State 
regulatory authorities are empowered to take appropriate enforcement 
action, and our review of documented instances indicates that State 
regulatory authorities appropriately exercise that authority. Notably, 
States have additional tools beyond SMCRA, including under their 
respective police powers and the Clean Air Act (CAA), which is the 
primary federal framework for regulating air quality. Under the CAA, 
once the EPA establishes National Ambient Air Quality Control Standards 
(NAAQS), States have the primary responsibility for achieving and 
maintaining the NAAQs within the State. The manner in which the NAAQS 
would then be achieved, maintained, and enforced would be outlined in a 
State implementation plan for each given pollutant, including those 
associated with blasting.
    Incidents of persons or property being adversely affected by toxic 
blasting emissions are rare. In 2014, which is the year in which the 
original petition for rulemaking was received, 4,142 active surface 
coal mining permits were regulated under SMCRA and the approved State 
programs. Yet, the original petition for rulemaking and the public 
comments submitted in response to our July 25, 2014, Federal Register 
notice appear to mention only five adverse incidents resulting from the 
release of toxic blasting emissions at surface coal mining operation 
since the 1990s. OSMRE also searched a commercial database of 
scientific news articles and found references to only four additional 
toxic air events that might have been attributable to blasting at coal 
mining operations since 2015. Each of these events was being 
investigated by State regulatory authorities. Data from Wyoming, the 
largest coal-producing state and the largest user of explosives in 
surface coal mining operations, also shows that tangible instances of 
toxic gas releases during blasting have been rare. The Wyoming SMCRA 
regulatory authority has indicated that approximately one blast hole 
out of 100 may generate fumes.
    In areas where OSMRE is the regulatory authority, OSMRE takes 
direct enforcement action if there is a violation of SMCRA or the 
implementing Federal regulations, including 30 CFR 816.67(a) and 
817.67(a). In addition to Federal action, State regulatory authorities 
can and have used the enforcement tools afforded by their State 
programs to adequately protect the public and the environment from 
toxic gases released during blasting at surface coal mining operations. 
For example, in response to an incident where fumes from blasting 
affected a person near the mine, the Wyoming regulatory authority 
issued a cessation order to the operator citing a violation of the 
Wyoming counterpart to 30 U.S.C. 1265(b)(15)(C). In order to resume 
operations, the mine was required to submit a revised blasting plan to 
``minimize the emission of NOX and eliminate the potential 
for blasting fumes to be carried toward [a nearby subdivision].'' 
Wyoming Department of Environmental Quality, Notice of Violation 100118 
(issued August 18, 1995). Since 2003, Wyoming has initiated three 
additional enforcement actions related to toxic blasting emissions. 
These actions illustrate that existing regulatory requirements 
adequately address these circumstances.
    In addition, if State regulatory authorities wish to impose more 
stringent standards to further ensure blasting-related emissions are 
adequately addressed by their regulatory program, it would not be 
inconsistent with SMCRA. 30 U.S.C. 1255. For instance, Pennsylvania 
recently amended its approved regulatory program to specifically 
encompass all gases generated by the use of explosives, not merely 
``toxic'' or ``noxious'' gases. Pennsylvania now prohibits gases 
generated by the use of explosives from affecting the health or safety 
of any individual.
    In addition, Ohio promulgated revisions to its regulations to 
better address the issue of emissions related to the use of explosives. 
Specifically, Ohio amended Ohio Administrative Code (OAC) 1501:1309-06, 
Use of Explosives in Coal Mining and Coal Exploration Operations, to 
expand the definition of ``blasting area'' to ensure areas where 
emissions from the use of explosives may pass is secured. Ohio's 
revised code also provides for an expanded list of factors to be 
considered by the certified blaster when determining the blast area. 
Ohio also amended OAC 1501: 13-9-10, Training, Examination, and 
Certification of Blasters, to expand the requirements for initial 
blaster certification training by adding the requirement of training 
related to fumes, including monitoring techniques and methods to 
control adverse effects.
    For these reasons, OSMRE concludes that additional rulemaking under 
SMCRA that would prohibit the creation of emissions from the use of 
explosives on surface coal mining sites is unnecessary at this time.
    In light of the substantial legal considerations associated with

[[Page 36848]]

implementing a rule in this space, as well as in consideration of 
OSMRE's limited resources and competing priorities, OSMRE has concluded 
that a new Federal regulation is not warranted. OSMRE is therefore 
withdrawing its decision granting the petition to initiate rulemaking 
first announced on February 20, 2015, at 80 FR 9256, and is closing the 
associated petition for rulemaking.

III. Procedural Matters and Required Determinations

    OSMRE's action withdraws a decision to initiate rulemaking that 
neither specifically defined regulatory requirements nor placed them 
into effect. Furthermore, this withdrawal does not contain any new or 
amended requirements. As such, today's action leaves OSMRE's 
regulations unchanged. OSMRE has determined that this action will not 
have any adverse impacts, economic, environmental, or otherwise. 
Therefore, it is not subject to the Regulatory Flexibility Act, the 
Small Business Regulatory Enforcement Fairness Act, the Paperwork 
Reduction Act, the Unfunded Mandates Reform Act, the National 
Environmental Policy Act, or Executive Orders 12866, 13563, 12630, 
13132, 12988, 13175, and 13211. Additionally, this withdrawal is 
consistent with Executive Order 13777, Enforcing the Regulatory Reform 
Agenda, which states that ``[i]t is the policy of the United States to 
alleviate unnecessary regulatory burdens placed on the American 
people.'' Because this withdrawal of a decision to initiate rulemaking 
does not propose a new regulation, the mandates of Executive Order 
13771, Reducing Regulation and Controlling Regulatory Costs, are not 
applicable.

    Dated: July 10, 2019.
Glenda H. Owens,
Deputy Director, Exercising the authority of the Director, Office of 
Surface Mining Reclamation and Enforcement.
[FR Doc. 2019-16125 Filed 7-29-19; 8:45 am]
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