Regulating Drilling and Blasting Activities: Municipal Issues

By Paul G. Sanderson, Esq.

According to the United States Geological Survey, a significant portion of the commercial explosives produced annually is used in the construction trades or to mine rock as a valuable product. In New Hampshire, this amounted to over 11,500 tons of explosive detonated in 2003. Many examples of these events are evident in New Hampshire's granite quarries and gravel pits, but increasingly explosives are used to remove rock during the construction of water and sewer lines, widening of highways and installation of new subdivision roads. According to the Boston Globe, the practice has more than tripled during the last decade as a combination of scarce land, expanding population and improvements in technology that have made removal of rock during construction an economically viable building practice. How are explosives regulated, and is there a role for local regulation in this area?

Q. What is the federal role in explosives regulation?

A. Federal agencies have a primary role in every aspect of the creation, manufacture, storage, transport, sale, use and post blast clean up of explosives in the United States. This authority derives from federal statutes and regulations adopted by federal agencies.

The Department of Labor, Occupational Health and Safety Administration (OSHA) and Mine Safety Health Administration (MSHA) assure the safety of workers who manufacture and use the material in commercial activities. The Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives licenses manufacturers, sellers and users of these materials. The Bureau also performs security clearances for workers in the industry and sets standards for the storage of explosives once manufactured.

The Department of Homeland Security has the overall duty to act to prevent terrorist attack and assumes primary jurisdiction over chemical plants as part of the nation's critical infrastructure. The Environmental Protection Agency regulates the hazardous materials and wastes involved in the manufacture and use of explosives. As the materials are transported from their place of manufacture or storage to the place of use, the different modal administrations of the Department of Transportation including the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, or the Federal Rail Administration regulate the personnel and practices of the carriers. In the event of an accident or incident, the National Transportation Safety Board and U.S. Chemical Safety and Hazard Investigation Board investigate and make recommendations for changes in safety practices and procedures.

The Safe Explosives Act of 2002 renamed the Bureau of Alcohol, Tobacco and Firearms and moved it from the Department of the Treasury to the Department of Justice. Instead of focusing on issues of taxation, the new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE) focuses on the people involved in the industry. The law added new categories of persons prohibited from receiving or possessing explosives. In addition to regulating the interstate movement of these materials, the law now requires even intrastate users to obtain a federal permit before receiving or using an explosive. Background checks are now required of all responsible persons at any site where materials are handled, stored or used, and ATFE agents must physically inspect each facility at least once every three years.

Q. What about the state role in regulation?

A. The State of New Hampshire has assigned the State Police to regulate the purchase, storage, transportation and use of explosives within the state pursuant to RSA Chapter 158. The Department of Safety commissioner has issued administrative rules, listed as the Saf-C 1600 series, for this function. These are available on the state's Web site at The rules are limited in scope to “The handling, storage, sale, transportation and use of explosive materials; and State and municipal supervision of the transportation of explosive materials as to compliance with federal regulations within the jurisdiction of the state or municipality." Saf-C 1601.01.

Pursuant to Saf-C 1604.03, a person may not be issued a license to use explosives unless the person has obtained a “certificate of competency" from the Department of Safety. To be issued a certificate without severe restrictions, the applicant must show successful completion of a knowledge based test, plus a recommendation from two persons who hold certificates of competency showing that the person has assisted in the loading and firing of explosives on at least 25 occasions, with a combined charge amount of at least 10,000 pounds. If the person has less experience, restricted certificates are available, but restricted certificates limit the user to either 50 or 100 pounds of explosive per detonation.

Licensees are subject to stringent record keeping requirements, and must have their explosive materials and storage magazines available for inspection by the department at any time. Detailed rules govern how and where a magazine may be constructed and how it shall be maintained. Additional detailed rules regulate the use of explosive materials and required safety precautions. In the event of an accident, the State Police must be notified, and they will conduct an investigation of the incident together with responsible local and federal officials. The transport of explosives is highly regulated by the rules, which describes in detail how various types of explosives are to be safely handled between the storage location and the location of the blast.

Q. Since the federal and state governments are the primary regulators of this activity, is there any role left for municipal officials?

A. Yes. For site improvements, subdivisions and utility installations, local government has a major role in the review and approval of the underlying work or project to be constructed pursuant to the powers granted to local planning boards by RSA Chapter 674. Therefore, local government has an important role in planning and project approval, inspectional services, local permitting of public works and in the provision of public safety services during construction operations.

The presence or absence of rock may influence decisions regarding the location of improvements such as foundations or septic systems. It certainly will influence the location of subsurface utilities. If there are sensitive areas such as aquifer recharge zones, foundations, wells, or building foundations that might be affected by blasting, a planning board could require additional engineering data on construction methods in a subdivision or site review case. With care, it may be possible to design improvements so as to remove the need to use blasting as a construction practice.

Local building inspectors are closely involved in any construction activity where blasting is involved. They need to verify that the “blaster" possesses a current and valid license to use explosives. They need not only assure that during the operation the rock is removed in accordance with approved plans, they need to assure that the blasting has not created unsafe conditions in surrounding properties. They inspect new foundation work and on-site utility installations to assure rock has been removed as required.

Local public works officials are involved to assure that subsurface utility lines that are trenched in areas of ledge are properly installed at the correct depth and pitch and in materials that will not cause failure of the lines in cold weather. They also determine whether road and highway construction is in accordance with approved plans and that rock has been removed as required in both the road and the adjoining right of way.

The state administrative rules at Saf-C 1607.04 require that both the local police and fire chief be notified of all proposed uses of explosives prior to commencement of blasting. Nothing in the federal or state regulatory scheme changes the role of these public safety agencies as first responders to incidents, or as the primary guardians of public safety in the municipality. These officials work closely with the local inspectional officials, local public works officials and the licensed drilling and blasting company to assure that the actual detonation and its aftermath are conducted safely and in accordance with local approvals and any additional conditions that may have been added by state or federal regulators.

Q. What about gravel pits and rock quarries?

A. Different statutes are involved in these operations. RSA Chapter 155-E, Local Regulation Excavations, provides local control of the relatively common sand and gravel extraction operations in the state. As determined by the local legislative body, either the planning board, the zoning board of adjustment or the selectmen serve as the regulator of the activity. Pursuant to RSA 155-E:8, conditions may be placed upon the operation of this activity. Such conditions could include the time of blasting, additional local safety concerns or notifications of local officials, or special protections for adjacent properties.

Granite or rock quarries are regulated pursuant to RSA Chapter 12-E by the state through the Department of Resources and Economic Development (DRED). A permit is required before mining operations commence, and one of the conditions specifically authorized by RSA 12-E:4 is the provision of a blasting plan.