OSM Announces Plans To Regulate Gases Released During Surface Mine Blasting
The Department of the Interior's Office of Surface Mining Reclamation and Enforcement (OSM) has granted a petition for rulemaking from WildEarth Guardians (WEG) to revise OSM's blasting rules for surface coal mining operations to control emissions from blasting. 80 Fed. Reg. 9256 (Feb. 20, 2015). Use of explosives is a method often used to move earth and rock during surface mining. Typically, gasses like visible nitrogen oxide are released if explosive charges are not properly detonated.
On April 18, 2014, WEG petitioned OSM to initiate rulemaking pursuant to Section 201(g) of the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. § 1201(g), which permits any person to petition the Director of OSM to begin a proceeding for the issuance, amendment, or repeal of any SMCRA regulation.1 WEG asserted that blasting at coal mines leads to dangerous levels of visible nitrogen oxide (NOX) emissions, visible as orange-red clouds and irritating to the eyes, nose, throat, and lungs. At higher levels, the group claimed NOX emissions can cause more severe reactions and even death. WEG argued that SMCRA requires OSM to control NOX emissions because the statute was enacted to protect society and the environment from the adverse effects of surface coal mining operations. SMCRA Section 102(a), 30 U.S.C. § 1202(a). WEG also contended that SMCRA Section 515(b)(15)(C)(i)-(ii) requires that blasting activities must be controlled so as to prevent injury to persons and damage to public and private property outside the mine permit area, which WEG believes should extend to regulating NOX. 30 U.S.C. § 1265(b)(15)(C)(i)-(ii).
OSM will grant a petition for rulemaking if the agency determines it sets forth facts, technical justification, and law establishing a "reasonable basis" for amending OSM's regulations. 30 C.F.R. § 700.12(c). After taking public comment on whether it should grant or deny the petition,2 OSM Director Joseph Pizarchik decided to grant the petition on February 20, 2015. He opined that state regulatory authorities have taken inconsistent permitting and enforcement actions in response to fumes released during blasting. Accordingly, Director Pizarchik "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." 80 Fed. Reg. at 9258.
The agency will now work to develop a proposed rule for publication in the Federal Register, after which time it will provide a further opportunity for public comment before finalizing the rule. The entire process could take several years. In crafting the rule, OSM will not adopt the precise regulatory changes suggested by WEG, but will independently determine what regulatory changes are necessary to prevent injury to people and damage to property from any harm that could result from all gases generated by mine-related blasting. OSM also plans to propose a definition of "blasting area" to help ensure that the areas affected by blasting are properly secured and the public protected. The agency further will propose amendments to the training and testing requirements for certified blasters in 30 C.F.R. § 850.13 to ensure that blasters can identify and mitigate impacts of blast fumes.
Surface coal mine operators should monitor OSM's rulemaking process and actively participate in public comment opportunities to protect their business interests. Revised blasting regulations will affect companies operating surface coal mining operations nationwide and have the potential to impose a substantial compliance burden on those operations.
1 Click here for copy of the petition from wildwarthguardians.com.
2 See 79 Fed. Reg. 43326 (Fed. Reg. July 25, 2014). OSM received 119 comments on the petition. Environmental and public health groups were generally in favor of granting the petition, but it was opposed by state regulatory authorities and affected industry. Opponents argued that, inter alia: (1) SMCRA only gives OSM the authority to control air pollution attendant to erosion under 30 U.S.C. § 1265(b)(4), (2) the petition failed to account for existing regulatory and operational controls which adequately protect the public from NOX emissions and other blasting effects, and (3) the petition proposed an unattainable and unnecessary standard. For example, see comments by the State of Wyoming Department of Environmental Quality (available here) and comments from the National Mining Association (available here).
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