• Petition to EPA for Regulation of Air Emissions from Coal Mines
  • July 1, 2010
  • Law Firm: Holland Hart LLP - Denver Office
  • On June 16, 2010, Earthjustice filed a petition with EPA for rulemaking under the Clean Air Act to regulate methane and other emissions from coal mines. The petition was filed on behalf of Wildearth Guardians, the Center for Biological Diversity, the Environmental Integrity Project, and the Sierra Club.

    The petition asks EPA to exercise its authority under section 111 of the Clean Air Act (42 U.S.C. § 7411) to:

    1. list coal mines as a category of stationary sources that emit air pollution which may reasonably be anticipated to endanger public health and welfare;
    2. establish federal standards of performance for new and modified sources within such a newly listed stationary source category for coal mines; and
    3. establish federal standards of performance to address methane emissions from existing sources within the newly listed stationary source category for coal mines.

    Section 111 of the Clean Air Act requires EPA to list a category of stationary sources of air pollution “which in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A). Within one year after EPA identifies such a source category, EPA is required to publish proposed standards of performance for new sources within that category. 42 U.S.C. § 7411(b)(1)(B). A standard of performance is defined as:

    [A] standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

    42 U.S.C. § 7411(a)(1).

    Section 111 also requires EPA to promulgate regulations requiring states to submit to EPA plans which establish standards of performance “for any existing source for any air pollutant (i) for which air quality criteria have not been issued or which is not included on a list [of criteria pollutants] published under section 7408(a) of this title or emitted from a source category which is regulated under section 7412 of this title [hazardous air pollutants] but (ii) to which a standard of performance under this section would apply if such existing source were a new source . . ..” 42 U.S.C. § 7411(d)(1). If a state fails to submit such a plan, EPA has the authority to prescribe a federal plan for the state. 42 U.S.C. § 7411(d)(2).

    It is these provisions on which the petition is based.

    The petition argues that EPA’s Endangerment Finding on Greenhouse Gas Emissions triggers a requirement for EPA to promulgate a new source performance standard for coal mines, particularly with regard to methane emissions. Although the Endangerment Finding was directed at emissions from motor vehicles, thereby triggering regulation of GHGs from mobile sources, the petition argues that its findings also trigger the provisions of section 111 with regard to methane emissions from coal mines.

    The petition suggests that a standard of performance for methane would include existing technologies already in place at 23 underground coal mines in the United States, which include capturing the methane and selling or using it as energy or flaring it.

    The petition also proposes the establishment of standards of performance for other emissions from coal mine operations, including particulate matter, volatile organic compounds, and nitrogen oxides. Unlike methane, these are not emissions from the coal deposit itself, but rather result from use of equipment, blasting at surface mines and disturbance of soils.

    The petition argues not only for establishing standards for new and modified mines, but also asks for standards of performance for methane from existing mines, under the authority of section 111(d)(1). 42 U.S.C. § 7411(d)(1).

    There are important issues to be addressed in response to the petition, including whether standards of performance for methane and other emissions are “achievable . . .taking into account the cost of achieving such reduction” (42 U.S.C. § 7411(a)(1)), the legal sufficiency of the Endangerment Finding as a basis for section 111 standards of performance, and the basis for triggering the process for methane standards for existing mines. If EPA ultimately grants the petition, there will not only be significant impacts on coal operators, but on other sources of GHGs.

    The petition requests a response from EPA within 180 days. EPA will publish a proposed response to the petition in the Federal Register, and there will be opportunity to comment on the proposal before the agency reaches a final decision.