[Federal Register Volume 80, Number 34 (Friday, February 20, 2015)]
[Proposed Rules]
[Pages 9256-9258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03407]


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DEPARTMENT OF THE INTERIOR

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: Decision on petition for rulemaking.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE or OSM), are announcing our final decision on a petition for 
rulemaking that was submitted by WildEarth Guardians. The petition 
requested that we revise our current regulations to prohibit visible 
nitrogen oxide clouds during blasting. The Director has decided to 
grant the petition in principle, and although we do not intend to 
propose the specific rule changes requested in the petition, will 
instead initiate a rulemaking to address this issue as discussed more 
fully below.

DATES: February 20, 2015.

ADDRESSES: Copies of the petition and other relevant materials 
comprising the administrative record of this petition are available for 
public review and copying at the Office of Surface Mining Reclamation 
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution 
Avenue NW., Washington, DC 20240.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. How does the petition process operate?
II. What is the substance of the petition?
III. What do our current regulations regarding the use of explosives 
require?
IV. What comments did we receive and how did we address them?
V. What is the Director's decision?
VI. Procedural Matters and Determinations

I. How does the petition process operate?

    On April 18, 2014, we received a petition from WildEarth Guardians 
(petitioner) requesting that OSMRE promulgate rules to prohibit the 
production of visible nitrogen oxides (NOX) emissions 
(including nitric oxide and nitrogen dioxide) 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. WildEarth Guardians submitted this petition pursuant to 
section 201(g) of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA), 30 U.S.C. 1201(g), which 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. 
OSMRE adopted regulations at 30 CFR 700.12 to implement this statutory 
provision.
    In accordance with our regulation at 30 CFR 700.12(c), we 
determined that WildEarth Guardians' petition set forth ``facts, 
technical justification and law'' establishing a ``reasonable basis'' 
for amending our regulations. Therefore, on

[[Page 9257]]

July 25, 2014, we published a notice in the Federal Register (79 FR 
43326) seeking comments on whether we should grant or deny the 
petition. The comment period closed on September 25, 2014. One hundred 
nineteen persons submitted comments during the public comment period.
    After reviewing the petition and public comments, the Director has 
decided to grant WildEarth Guardians' petition. Pursuant to 5 U.S.C. 
553(e) and section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), we plan to 
initiate rulemaking and publish a notice of proposed rulemaking with an 
appropriate public comment period. Although we are still considering 
the content of the proposed rule, we expect that it will contain 
clarifications to our regulations to ensure that operators and surface 
coal mining regulatory authorities protect people and property from 
toxic gases and fumes generated by blasting at surface mine sites. 
However, OSMRE does not intend to propose the petitioner's suggested 
rule language because the petitioner's language focused solely on 
nitrogen oxide emissions, instead of all blast-generated fumes and 
toxic gases.

II. What is the substance of the petition?

    WildEarth Guardians' petition states: ``Too often, blasting at coal 
mines leads to the production of dangerous levels of nitrogen dioxide 
emissions, which are seen as orange to red clouds. These clouds of 
toxic gas represent significant threats to public health and welfare 
and must be curtailed to prevent injuries to persons as required by 
SMCRA.'' The petition requests that OSMRE amend our regulations at 30 
CFR 816.67 (surface mining) and 817.67 (underground mining) 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 
authority. The petitioner asserts that exposure to low levels of 
NOX gases may cause ``irritation of eyes, nose, throat, and 
lungs.'' According to the petitioner, exposure to high levels of 
NOX gases may cause ``rapid burning, spasms, and swelling of 
the throat and upper respiratory tract issues, as well as death.''
    In support of its petition, petitioner cites SMCRA section 102(a), 
30 U.S.C. 1202(a), which lists one of SMCRA's goals as ``protect[ing] 
society and the environment from the adverse effects of surface coal 
mining operations,'' as well as SMCRA section 515(b)(15)(C)(i)-(ii), 30 
U.S.C. 1265(b)(15)(C)(i)-(ii), which states that blasting activities 
should be limited in order to ``prevent injury to persons. . . and 
damage to public and private property outside the permit area.''
    The petitioner asserts that revisions to our existing regulations 
are necessary to close a gap with regard to regulation of 
NOX emissions. The petitioner requested that we ``remedy 
this regulatory gap and promulgate explicit and enforceable standards 
to ensure that when explosives are used at coal mining operations, 
emissions of nitrogen oxides are controlled to prevent injury to 
persons and to protect the general health, welfare, and safety of the 
public and mine workers.''
    The petitioner suggested that we revise 30 CFR 816.67 and 817.67 by 
adding a new paragraph (f) to read:

(1) Blasting shall be conducted so as to prevent visible emissions 
of nitrogen oxides, including nitrogen dioxide, and (2) The operator 
shall visually monitor all blasting activities (through the use of 
remote surveillance or other acceptable methods for detecting 
visible emissions) and within 24-hours report in writing any 
instances of visible emissions of nitrogen oxides to the regulatory 
authority.

III. What do our current regulations regarding the use of explosives 
require?

    Our current regulations at 30 CFR 816.67 and 817.67 establish a 
framework for addressing the adverse effects associated with the use of 
explosives. Paragraph (a) of both sections mirrors the language in 
SMCRA section 515(b)(15)(C)(i)-(ii), 30 U.S.C. 1265(b)(15)(C)(i)-(ii). 
It states that blasting shall be conducted to prevent injury to 
persons, damage to public or private property outside the permit area. 
The remaining paragraphs in 30 CFR 816.67 and 817.67 contain specific 
performance standards for airblast, flyrock, and ground vibration.
    In addition, our regulation 30 CFR 843.11(a)(1)(i) requires that an 
inspector order the cessation of any surface coal mining and 
reclamation operations if an imminent danger to the health or safety of 
the public exists.

IV. What comments did we receive and how did we address them?

    We received 119 comments on the petition for rulemaking. These 
comments can be divided into two major groups: Those in favor of the 
rulemaking (over two-thirds) and those opposed (less than one-third). 
The comments in favor of the petition generally came from citizens and 
groups that seek to protect the public and environment. In contrast, 
those comments opposed generally came from citizens, state regulatory 
authorities, and organizations related to the explosives, 
manufacturing, and mining industries.
    Those in support of the petition were primarily concerned that our 
current regulations do not provide for adequate protection from fumes 
generated by blasting, including, but not limited to, NOX 
fumes. Additionally, some of these commenters alleged that not all of 
the state regulatory authorities are willing to regulate toxic gases 
produced during blasting. These commenters contend that the lack of 
regulation by some state regulatory authorities is due to OSMRE's 
regulatory silence on the specific issue of NOX emissions.
    The comments received from those opposed to the rulemaking 
expressed concern that the petitioner's suggested rule language would 
create, ``an unlawful, unnecessary, and unattainable emissions standard 
under OSMRE's federal regulatory program'' that would effectively 
prevent operators from coal mining altogether. Several of the comments 
opposing the petition referred to 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), which held that we could not regulate fugitive 
dust from blasting. These commenters contend that this precedent 
prevents OSMRE from regulating visible NOX clouds produced 
by blasting. In addition, the commenters opposing the petition noted 
that SMCRA and the implementing regulations already contain adequate 
protection from the effects of blasting; as support for this position, 
they cite primarily to section 515 of SMCRA, 30 CFR 780.13, 816.61-
816.68, 817.61-817.68, part 842, and part 850, as well as the 
equivalent provisions in the state regulatory programs.

V. What is the Director's decision?

    After reviewing the petition and supporting materials, and after 
careful consideration of all comments received, the Director has 
decided to grant the petition. However, we do not plan to propose 
adoption of the specific regulatory changes suggested by the 
petitioner. Instead, we intend to propose regulatory changes to ensure 
that operators and regulatory authorities prevent injury to people and 
damage to property from any harm that could result from all toxic gases 
generated by blasting at coal mines, including NOX and 
carbon monoxide (CO).
    It is undisputed that when blasting is not properly conducted, it 
can cause damage to property and injury to people. Despite this fact, 
during our evaluation of the petition and the comments, we discovered 
that there is a difference in how the state regulatory

[[Page 9258]]

authorities are addressing toxic fumes generated by blasting. Some, but 
not all, state regulatory authorities have taken permitting or 
enforcement actions in response to toxic fumes released during 
blasting. Others, however, are hesitant to act because they believe our 
regulations, as currently written, are ambiguous as to whether and how 
toxic gases should be controlled. Likewise, while a number of mine 
operators and blasters recognize the dangers posed by toxic gases from 
blasting and take precautions to manage the risks, many do not. We have 
concluded that the current silence in our regulations on toxic gases 
released during blasting is no longer acceptable and only perpetuates 
the disparities between the various practices of the state regulatory 
authorities. In light of these findings, OSMRE intends to propose a 
number of changes to our regulations. We plan to propose a definition 
of ``blasting area'' to help ensure that the areas affected by blasting 
are properly secured and that the public is adequately protected. We 
also intend to specify that toxic gases are one of the dangers posed by 
blasting. We anticipate clarifying that 30 CFR 816.67(a) and 817.67(a) 
require the proper management of toxic blasting gases in order to 
protect people and property from the adverse effects of coal mining. 
Lastly, we expect to propose amendments to the training and testing 
requirements for certified blasters at 30 CFR 850.13 to ensure that 
blasters can identify and mitigate the impacts of blast fumes.
    We believe that revisions to our regulations, such as those 
described above, will better (1) ensure a level playing field as 
described in section 101(g) of SMCRA, 30 U.S.C. 1201(g), which 
specifies that national standards are essential in order to ensure 
``that competition in interstate commerce among sellers of coal 
produced in different States will not be used to undermine the ability 
of the several States to improve and maintain adequate standards on 
coal mining operations within their borders;'' and, most importantly, 
(2) prevent harm to people and property from blasting associated with 
surface coal mining operations.

VI. 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 when we 
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 announces the Director's decision to grant the 
petition and initiate rulemaking. We will prepare the appropriate NEPA 
compliance documents as part of the rulemaking process.

    Dated: February 3, 2015.
Joseph G. Pizarchik,
Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2015-03407 Filed 2-19-15; 8:45 am]
BILLING CODE 4310-05-P