2019-16125. 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.

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.

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OSMRE's decision to initiate rulemaking, as reflected in a February 20, 2015, Federal Register notice (80 FR 9256), is withdrawn as of July 30, 2019.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 [phone]. Email: [e-mail].

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, § 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 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. § 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. § 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. § 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. § 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. § 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. § 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 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 NO_X 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 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.