AIR POLLUTION:

Companies, regulators struggle to understand EPA requirements on mines

Coal mining companies and state regulators are struggling to figure out the impact of U.S. EPA's new greenhouse gas emission rules on mines.

While much of the policy debate has centered on power plants and large industrial emitters, the mining industry has been trying to understand how new regulatory systems apply to them. After all, some mines release more methane than large conventional emitters.

"There's a lot of confusion right now," Alex Bond, air quality director at the National Mining Association, said in an interview. "We're trying to work through these issues to get to a point where everyone is on the same page."

EPA has acknowledged that states are not having the easiest time interpreting the regulatory standards associated with the agency's tailoring rule, meant to limit greenhouse gas emissions. The agency said it is consulting with states and industry to determine how the requirements would apply to mines.

Under the new guidelines, regulators believe, mines have to obtain a "Title V" permit if they emit more than 100,000 tons per year of carbon dioxide equivalent. The permit requires them to disclose their air pollutants.

EPA's greenhouse gas inventory showed at least 69 mines emitting more than 100,000 tons of carbon dioxide equivalent in 2009. And a recent agency presentation prepared with Ruby Canyon Engineering Inc. said coal mines accounted for 6 percent of greenhouse gas emissions the same year.

"They know they got gassy mines," Earthjustice attorney Ted Zukoski said about the coal industry. He's been looking to see whether mines are complying with the new requirements, including Oxbow Mining LLC's Elk Creek Mine, Bowie Resources LLC's Bowie No. 2 Mine and Arch Coal Inc.'s West Elk Mine, all in Colorado.

"West Elk's latest figures show the mine was emitting the equivalent of 1.23 million tons of CO2 per year, in terms of just methane," said Zukoski. "So West Elk, like the Bowie and Elk Creek mines, was way over EPA's limit."

Company resistance

Zukoski found that while all three mines have submitted the required permitting documents, there is some resistance and conflict over interpreting the tailoring rule.

West Elk, for example, said it was submitting a permit application as a "protective measure" but that its methane releases are so-called fugitive emissions and not the type of releases covered by the rule.

"[Arch subsidiary] Mountain Coal does not believe that it has a legal obligation to apply for or obtain a Title V permit for the mine," executive Gene DiClaudio wrote to Colorado regulators last month, "but we understand that regulators in some states have expressed the view that owners or operators of underground coal mines may need to apply for such permits."

"In fact, although EPA recently issued a rule to require a variety of industries, including coal mining operations, to monitor and report their greenhouse gas emissions, the support documents for the rule acknowledge that methane emissions from underground coal mines are fugitive emissions," DiClaudio wrote.

Last month, a group of state regulators, led by Ohio air pollution control chief Bob Hodanbosi, sent EPA a letter supporting the industry's claims regarding fugitive emissions and questioning the need to apply Title V permits to coal mines.

The states, including Kentucky and West Virginia, wrote that "the issuance of a Title V permit to active coal mines would simply be a paperwork exercise since there are no applicable requirements to include in the permit."

Another part of the tailoring rule is creating even more uncertainty among regulators, mining companies and environmental watchdogs.

The rule says that new pollution sources must obtain a "Prevention of Significant Deterioration," or PSD, permit if they will surpass the same 100,000 tons of carbon dioxide threshold or if they already had to get the permit because of other pollutants.

The permit, which requires companies to seek pollution reductions, would also apply to existing operations that emit 100,000 tons per year of carbon dioxide equivalent and expand to increase their emissions by at least 75,000 tons per year.

Zukoski said, "I think the rubber will really meet the road for PSD when someone tries to get a permit to build a new mine."

EPA acknowledged the difficulties in determining what operations are covered under the tailoring rule and other air regulations in a statement to Greenwire.

"The states have raised some legitimate questions regarding underground coal mines and the tailoring rule," said the statement.

"There may be some mines with emissions sufficiently large to be subject to the program and EPA is working with the states and the industry to determine how permitting requirements would apply to those mines," the agency added.

Permit-by-permit battle

The debate is the latest front in a fight among environmentalists, the mining industry and government officials over how to properly oversee and control air pollution from mines.

Conservation groups have been demanding stricter requirements for the capture of mine methane. EPA has described the pollutant as a greenhouse gas 20 times more potent than carbon dioxide.

Many companies boast about their efforts at trapping and selling their methane releases. And EPA's voluntary outreach program helped remove the equivalent of 263 million metric tons of carbon dioxide and avoided emissions equivalent to 654 billion cubic feet of methane between 1994 and 2009.

But the mining industry in general has resisted efforts at stronger regulation requiring methane capture technologies, including pleas by environmentalists to insert strict control requirements into mine permits.

"What we're worried about is there is the potential for a safety concern," said NMA's Bond, noting that the federal government requires companies to vent their methane to keep workers safe.

Bond also said that capturing technologies are costly and selling the methane is not always profitable. "It's a mine-by-mine issue," he said.

And in their letter the states wrote, "The lack of a national standard, the inherent safety risk, and the current exorbitant cost of collection at the majority of coal mines in the U.S. all tip the scale toward considering active underground coal mine emissions as fugitive emissions."

But in comments about the proposed controversial expansion of Arch's West Elk Mine, Earthjustice faulted permitting officials for failing to conduct sufficient study of options like methane flaring or reuse.

EPA appeared to agree in a July comment letter of its own, in which it said, "We believe several of the technologies may warrant further evaluation as mitigation measures for a portion of the methane from the mine."

Amid the debate, the Bureau of Land Management is considering potential rules to address methane releases from mines using federal coal leased by the agency (Greenwire, May 23).

While the rulemaking process on the issue is in its infancy, it may mandate that permits take into account waste methane's contribution to climate change and economically feasible capturing requirements. The rule may also include royalty relief to encourage operators to reduce emissions.

Court battle

Just yesterday, environmental groups lost a key case in U.S. District Court over the federal government's review of coal leases. Judge Colleen Kollar-Kotelly for the District of Columbia dismissed allegations that BLM failed to conduct adequate reviews for certain Powder River Basin leases, including reviews concerning air pollution and greenhouse gases (E&ENews PM, July 30).

But in a separate case also pending in U.S. District Court, environmental groups, including WildEarth Guardians and the Sierra Club, are suing to force EPA to at least respond to a petition asking the agency to list coal mines as pollution sources under the Clean Air Act.

The groups' petition also asked EPA to establish "performance standards" and address methane emissions. In a filing earlier this year, the Obama administration suggested "resolving the matter without litigation" next year.

Even though the administration's filing did not directly reference the November elections, it said EPA was not in a position to address the issue until after them.

NMA and Peabody Energy Corp., in a filing of their own, blasted what they saw as politically expedient deal-making between EPA and environmentalists. "It disserves this public concern to have the parties use the aegis of the Court's docket to engage in unspecified private discussions," NMA and Peabody wrote.

Another relevant lawsuit involved a subsidiary of mining giant Rio Tinto PLC. Last year, environmental groups accused Kennecott Utah Copper LLC of violating production limits designed to prevent dust and other particle pollution at the Bingham Canyon Copper Mine, the world's largest open-pit copper mine (Greenwire, Dec. 20, 2011).

The debate, proposed rule and litigation showcase the increased focus on mining pollution affecting the air and not just water and soil.

And while environmental advocates say stronger standards for a host of air pollutants from mines are long overdue, the mining industry says it wants regulators to keep in mind that their operations are different from those of big plants or factories.

"Every mine is different," said Bond, calling some of the discussions surrounding air rules for mines "concerning."

But in one of their cases, environmentalists said, "Coal mines throughout the country are a significant source of air pollution, spewing methane, volatile organic compounds and particulate matter into the atmosphere. These pollutants endanger human health."

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