The United States Office of Surface Mining Reclamation and Enforcement (OSM) is moving forward with a rulemaking to address emissions from blasting operations at surface coal mines. On February 20, 2015, OSM announced it was granting a petition for rulemaking filed by WildEarth Guardians. See 80 Fed. Reg. 9,256 (Feb. 20, 2015). WildEarth Guardians’ petition, filed on April 14, 2014, requested OSM adopt new regulations under the Surface Mining Control and Reclamation Act (SMCRA) that would prohibit the production of visible NOX emissions during blasting at surface coal mining operations. On July 25, 2014, OSM requested public comment on the petition. OSM received numerous comments on the petition, including some from state permitting agencies and industry asserting OSM’s authority to regulate emissions under SMCRA was limited to emissions related to erosion of the surface, existing standards are adequate, and the standard proposed by WildEarth Guardians was infeasible and unnecessary. In its February 20 notice, OSM stated that existing state-level regulation of air emissions from blasting was often inconsistent and, therefore national regulation was appropriate. The notice also stated that OSM’s proposed rule would not adopt the regulatory language proposed by WildEarth Guardians that would have set specific limits on NOX emissions. The rulemaking is also expected to adopt a definition of “blasting area” under the federal regulations that implement SMCRA.
Once published, OSM’s proposed regulation will again be subject to public notice and comment. If adopted, the regulation would initially only be part of OSM’s federal regulatory program. Under SMCRA, most states with significant coal mining activity have “primacy” to administer their own state regulatory programs. However, those state programs must generally be consistent with minimum federal standards. As such, any proposed federal changes concerning blasting emissions would ultimately have some impact in primacy states and could impose a significant additional burden on the mining industry. Mine operators should continue to closely follow the development of OSM’s proposed standards.