[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February 20, 2015, Federal Register notice (80 FR 9256), is withdrawn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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