[Federal Register Volume 79, Number 143 (Friday, July 25, 2014)]
[Proposed Rules]
[Pages 43326-43327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17592]



Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 816 and 817

[Docket ID: OSM-2014-0003; S1D1S SS08011000 SX066A00067F 134S180110; 
S2D2S SS08011000 SX066A00 33F 13XS501520]

Petition To Initiate Rulemaking; Use of Explosives on Surface 
Coal Mining Operations

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

ACTION: Notice; availability of petition to initiate rulemaking and 
request for comments on the petition.


SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), seek comments concerning a petition, submitted pursuant to the 
Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq. 
(SMCRA or the Act), requesting that we amend our regulations governing 
the use of explosives to prohibit visible nitrogen oxide clouds. We are 
requesting comments on the merits of the petition and the rule changes 
suggested in the petition. Comments received will assist the Director 
of OSMRE in making the decision whether to grant or deny the petition.

DATES: Electronic or written comments: We will accept written comments 
on the proposed rule on or before August 25, 2014.

ADDRESSES: You may submit comments by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
petition has been assigned Docket ID: OSM-2014-0003. Please follow the 
online instructions for submitting comments.
    Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation 
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution 
Avenue NW., Washington, DC 20240. Please include the Docket ID: OSM-

FOR FURTHER INFORMATION CONTACT: Joshua Rockwell, Division of 
Regulatory Support, 1951 Constitution Ave. NW., Washington, DC 20240; 
Telephone: 202-208-2633; Email: [email protected].


Table of Contents

I. How does the petition process operate?
II. What action does the petition request that we take?
III. How may I view the petition and exhibits?
IV. How do I submit comments on the petition?
V. Procedural Matters and Required Determinations

I. How does the petition process operate?

    Section 201(g) of SMCRA, 30 U.S.C. 1201(g), 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. It also specifies that ``the Director shall either grant or deny 
the petition'' within 90 days after receipt. On March 13, 1979, OSMRE 
adopted regulations at 30 CFR 700.12 to further implement this 
statutory provision.
    Under 30 CFR 700.12(c), we will accept a petition for rulemaking 
only if the Director determines that it sets forth ``facts, technical 
justification and law which may provide a reasonable basis for 
issuance, amendment or repeal of a regulation.'' The rule also states 
that facts, technical justification or law previously considered in a 
different petition or rulemaking on the same issue do not qualify as a 
reasonable basis. Any petition that does not meet this threshold will 
be rejected without prejudice.
    If we accept the petition, we will publish a notice in the Federal 
Register seeking comments on whether we should grant or deny the 
petition. At the close of the comment period, the Director will decide 
to either grant or deny the petition, in whole or in part. We will 
publish notice of that decision in the Federal Register. If the 
Director grants the petition, we will initiate rulemaking proceedings 
in which we again will seek public comment before adopting a final 
rule. If the Director denies the petition, we will notify the 
petitioner of the reasons for the decision not to initiate any 
rulemaking action pursuant to the petition.
    In accordance with 30 CFR 700.12(d), the Director's decision on a 
petition is a final decision for the Department, which means that the 
petitioner is not entitled to administrative review of the decision. 
The Director's decision on a petition constitutes the final decision of 
the Department of the Interior. Accordingly, it is not subject to 
review by the Office of Hearings and Appeals. However, the petitioner 
may seek judicial review of a decision to reject or deny the petition.

II. What action does the petition request that we take?

    On April 18, 2014, we received from WildEarth Guardians a petition 
for rulemaking requesting that OSMRE promulgate rules to prohibit the 
production of visible nitrogen oxides (NOX) emissions during 
blasting at surface coal mining operations in order to protect the 
health, welfare, and safety of the public and of mine workers, and to 
prevent injury to persons. The petition requests that we amend our 
regulations at 30 CFR 816.67 and 817.67 to prohibit visible 
NOX emissions during blasting and to require that the 
operator visually monitor all blasting activities and report all 
instances of visible emissions of NOX to the regulatory 

III. How may I view the petition and exhibits?

    You may view and download the complete text of the petition and 
accompanying exhibits on our home page at http://www.osmre.gov/programs/rcm/petitions/WEGPetition041414.pdf and http://www.osmre.gov/programs/rcm/petitions/WEGPetitionExhibits.pdf respectively. The 
petition and exhibits also are available for inspection at the location 
listed under ADDRESSES.

IV. How may I comment on the petition?

General Guidance

    We are seeking comment on the merits of the petition and the 
requested rule changes. In addition, we seek comment on the extent to 
which the decision in In re Permanent Surface Min. Regulation Litig. I, 
Round II, 1980 U.S. Dist. LEXIS 17660 at *43-44 (D.D.C., May 16, 1980), 
19 Env't Rep. Cas. (BNA) 1477, 1491-1492, regarding OSMRE's authority 
to regulate air quality, should guide the Director in making the 
decision to grant or deny the

[[Page 43327]]

petition. In that decision, the court remanded the 1979 version of 30 
CFR 816.95 and 817.95, which contained extensive provisions regulating 
fugitive dust (including fugitive dust from blasting \1\), because the 
court found that ``the Secretary's authority to regulate [air] 
pollution is limited to activities related to erosion.'' Id. at 1491.

    \1\ 30 CFR 816.95(b)(15) (1979).

    We will review and consider all comments submitted to the addresses 
listed above (see ADDRESSES) by the close of the comment period (see 
    Please include the Docket ID ``OSM-2014-0003'' at the beginning of 
all written comments. We cannot ensure that comments received after the 
close of the comment period (see DATES) or at locations other than 
those listed above (see ADDRESSES) will be included in the docket or 
considered in the development of a proposed rule.

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

Public Hearing

    We will not hold a public hearing on the petition. The petitioner 
did not request a hearing and we have determined under 30 CFR 700.12(c) 
that no hearing is necessary. However, OSMRE personnel will be 
available to meet with the public during business hours (8 a.m. to 4 
p.m.) during the comment period. Contact the person listed under FOR 
FURTHER INFORMATION CONTACT if you wish to arrange a meeting.

V. Procedural Matters and Required Determinations

    This notice is not a proposed or final rule, policy, or guidance. 
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, or Executive Orders 
12866, 13563, 12630, 13132, 12988, 13175, and 13211. We will conduct 
the analyses required by these laws and executive orders only if we 
decide to grant the petition and develop a proposed rule.
    In developing this notice, we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554, section 15).
    This notice is not subject to the requirement to prepare an 
Environmental Assessment or Environmental Impact Statement under the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), because 
no proposed action, as described in 40 CFR 1508.18(a) and (b), yet 
exists. This notice only seeks public comment on whether the Director 
should grant the petition and initiate rulemaking. If the Director 
ultimately grants the petition, we will prepare the appropriate NEPA 
compliance documents as part of the rulemaking process.

List of Subjects

30 CFR Part 816

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 817

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: July 15, 2014.
Joseph G. Pizarchik,
Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2014-17592 Filed 7-24-14; 8:45 am]