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Department of Environmental Quality

Air Pollution Control Board

New and Modified Stationary Sources [9 VAC 5 ‑ 50]

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1/7/10 2:56 pm

Commenter: Gavin M. Bledsoe, Department of Mines, Minerals and Energy/DMLR

DMME response to petition of Southern Appalachia Mountain Stewards & Sierra Club

DMME RESPONSE TO PETITION FOR RULEMAKING

DMME Response submitted: January 8, 2010
Name of petitioner: Southern Appalachia Mountain Stewards and the Sierra Club
Date Petition Submitted : November 30, 2009
Agency Receiving Petition: State Air Pollution Control Board
Chapters affected:
VAC No. (e.g., 4 VAC 20-490):	Chapter Name (e.g., Regulations Pertaining to Sharks):
9 VAC 5-40-90 9 VAC 5-50-90	Existing Stationary Sources - Standard for fugitive dust emissions New and Modified Stationary Sources - Standard for fugitive dust emissions
Statutory Authority: 10.1-1307 and 10.1-1308

Nature of petitioner's request: The Southern Appalachia Mountain Stewards and the Sierra Club have petitioned the State Air Pollution Control Board to amend the fugitive dust emissions standards for existing and new and modified stationary sources.

DMME Comments:

1.) The petition was submitted to address fugitive dust concerns the petitioners attribute to coal haulage activities in the Roda community, near Appalachia, Virginia of Wise County. The Department of Mines, Minerals and Energy is the State agency that regulates land-disturbing, mining, and reclamation activities from coal mining operations under Chapter 19 of Title 45.1 of the Code of Virginia and the regulations promulgated thereunder (4 VAC 25-130-700 et seq.). In addition to the regulatory requirements under the Virginia Coal Surface Mining Reclamation Regulations, the DMME has published Guidance Memorandum No. 29-09 to address additional measures that may be employed to address fugitive dust problems in the coal producing communities. The DMME has worked with DEQ, the Virginia Department of Transportation, the Virginia State Police, permitted coal mine operators, and concerned citizens to address fugitive dust concerns.

2.) DMME and DEQ entered into a Memorandum of Agreement on December 9, 2009, to coordinate their efforts to facilitate efficient and effective administration of applicable State and Federal environmental laws, regulations, and policies for fugitive dust control on and immediately adjacent to active coal mining sites.

3.) The proposed amendments to Sections 9 VAC 5-40-90 and 9 VAC 5-50-90 are duplicative of the regulatory requirements that already exist under the Virginia Coal Surface Mining Reclamation Regulations and the recommendations of DMME Guidance Memorandum No. 29-09. DMME requires each permit applicant to address how it will comply with the Clean Air and Clean Water Acts[1] in the detailed permit application. The DMME may require additional corrective measures if a site situation requires such to protect the environment and the health and safety of the public. The proposed amendments would impose, contrary to the petitioners claim, a substantial and significant financial burden upon the Commonwealth to conduct duplicative enforcement activities.

4.) While the proposed amendments were crafted to specifically address fugitive dust concerns attributed to coal mining activities, they will in fact be applicable to any activity that may result in fugitive dust concerns across the Commonwealth – logging, gas/oil well/pipeline operations, quarry operations, other mining activities, road construction, development projects, farming operations, etc. The DMME also requires mineral mining and gas and oil permittees to meet statutory and regulatory requirements for environmental protection, including fugitive dust. The proposed requirements would duplicate these similar to duplicating requirements on coal mines.

5.) The standards that may be applied should reflect the actual site conditions and proximity of the public who may be affected. This is effectively achieved through establishment of site-specific conditions under DMME permits.

[1] 4VAC25-130-780.18(b)(9 and 10) & 4VAC25-130-784.13(b)(9 and 10). Reclamation plan; general requirements.

CommentID: 11196

1/11/10 9:24 am

Commenter: Phillip C. Mullins, Cumberland Resources Corporation

Petition to Modify Existing Fugitive Dust Regulations

Cumberland Resources Corporation

P.O. Box 2560

Wise, Virginia 24293

(276)679-0804

January 8, 2010

Virginia Division of Environmental Quality

Attn: Karen G. Sabasteanski

P.O. Box 1105

Richmond, Virginia 23218

(Via E-Mail: Karen.sabasteanski@deq.virginia.gov)

RE: Comments on Petition for Rulemaking – Southern Appalachian Mountain Stewards and Sierra Club (Fugitive Dust Emissions)

Dear Ms. Sabasteanski:

This company’s affiliates lease coal-bearing properties and operate mines and coal processing and shipping facilities in Wise County, Virginia. We currently employ over 450 workers at these operations. We have reviewed DEQ’s posting of the Petition for Rulemaking filed by Southern Appalachian Mountain Stewards (“SAMS”) and Sierra Club (together, “petitioners”) proposing changes in the fugitive dust emissions regulations. As you may be aware, we have invested heavily over the past 18 months in implementing meaningful and effective fugitive dust monitoring and control measures in the communities potentially affected by coal trucks hauling coal from our mining operations (Roda and Stonega). These measures have been recently documented in various forums, including presentations to the Air Pollution Control Board (“Board”), and they have been generally well-received by the communities. We oppose the petition on the following grounds.

1. Because DMME has agreed to regulate fugitive dust at mine sites, the proposed regulations are unnecessary. As a result of discussions with DEQ staff, the Virginia Department of Mines, Minerals and Energy (“DMME”) has announced that it will regulate its permittees in regard to fugitive dust both on and off permit sites. A memorandum to this effect was recently released to operators and presented to the Board at its November 2009 meeting.

Petitioners argue that DMME can only regulate fugitive dust “resulting from erosion.” For this reason, petitioners contend that DMME cannot regulate fugitive dust at mine sites. This contention is erroneous. All materials present at a mine site, including the extracted minerals temporarily stockpiled for subsequent transport, soils and sediments from disturbed areas and surfacing materials (such as crushed stone), are exposed to the atmosphere and thus acted upon by the forces of wind and water erosion. Erosional forces work to break down larger particles into increasingly smaller particles. Once the particles are small enough and dry enough to become airborne, they are characterized as “dust.” Therefore, the resulting “dust”, which may ultimately become “fugitive dust”, has in fact “resulted from erosion” and can be regulated by DMME.

Additionally, both SMCRA and its Virginia counterpart specifically require the mining agencies to “insure that the construction, maintenance, and postmining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property. . . .” See § 515(b)(17) of SMCRA (30 V.S.C. § 1265(b)(17)) and Va. Code § 45.1-212A (requiring equivalent state standards). In its Guidance Memorandum of November 1, 2009, DMME cites 4 VAC §§ 25-130-816.150(c) and 25-130-817.150(c) in support of its authority to regulate fugitive dust. These regulations specifically authorize DMME to establish “any necessary design criteria” for haulroads.

In Natural Resources Defense Council, Inc. v. EPA, 937 F.2d 641, 649 (D.C. Cir. 1991), the Court of Appeals found that SMCRA provides ample authority for regulation of fugitive dust associated with haulroads. In their filing, petitioners do not discuss this case or the haulroad regulations under SMCRA and the Virginia Surface Mining Act.

Finally, DEQ is not currently staffed to enforce fugitive dust regulations at mine sites. DMME is already staffed, equipped, and familiar with the facilities and areas of interest. It makes no sense to spend additional taxpayer money to enable DEQ to do a job that DMME is already capable of doing.

2. The proposed regulations must be referred to the General Assembly. Under Va. Code § 13.1-1308A, any proposed regulations that are more restrictive than the corresponding federal regulations must be referred to the General Assembly. Petitioners argue that this provision is not applicable “because the Clean Air Act already places restrictions on the release of particulate matter.” (Petition at 15). While EPA regulates some releases of particulate matter, it does not regulate all releases. In fact, EPA recently declined to regulate the release of fugitive dust from roads at coal preparation plants. See Standards of Performance for Coal Preparation and Processing Plants; Final Rule, 74 Fed. Reg. 51950-51985 (Oct. 8, 2009). In declining to issue these regulations, EPA noted that SMCRA already regulates emissions associated with roads from mines and plants at mines. Id. at 51954, 51968-51969.

In response to EPA’s decision, the Sierra Club has initiated proceedings to compel EPA to regulate fugitive dust from roads at coal preparation plants. Specifically, the Sierra Club has filed a petition for reconsideration with EPA and a petition for review with the Court of Appeals for the District of Columbia Circuit. The Sierra Club contends that EPA acted arbitrarily and capriciously in not requiring control measures such as “paving, sweeping excess coal dust, wetting of the road surface, or tire washes.” See Standards of Performance for Coal Preparation and Processing Plants; Proposed Rule, 74 Fed. Reg. 25304, 25313, 25323 (May 27, 2009) (listing possible control measures that were not adopted in the final rule).

So, the Sierra Club is telling EPA and the Court of Appeals that EPA must adopt regulations like the ones proposed to the Board, and, at the same time, it is telling the Board that equally restrictive federal regulations are already in place. The truth is, the regulations being proposed to the Board are more restrictive than any existing EPA regulations, and, therefore, the proposed regulations must go to the General Assembly.

3. A proposal for statewide rulemaking is not the proper forum to address alleged problems at a specific location. Page 11 of the petition states “the fugitive dust standard should provide additional examples of reasonable precautions specific to the type of activities that contributed to the documented dust problem in Roda.” The proposed rulemaking, if adopted, would apply to all industries statewide. It would be shortsighted to write new regulations with such sweeping implications based on one set of local conditions. If additional regulations are warranted, then research needs to be performed to better define what “reasonable precautions” would mean under a wide range of geographic and topographic settings.

4. The proposal is based on a faulty presumption that the existing conditions rise to the level of a violation of applicable air quality standards. Page 11 of the petition refers to a “documented dust problem” in Roda. Our analysis, based on months of scientific data collection, as well as that of DEQ staff, has shown that applicable fugitive dust standards are not being violated at Roda. In this connection, we adopt and incorporate by reference the reports submitted by Cumberland and DEQ staff at the meetings last year. There is no “documented dust problem” at Roda that necessitates additional regulation by the Board.

5. The proposed additional “reasonable precautions” are not universally applicable and present numerous technical problems. Flexibility is a key component of a successful fugitive dust management program because conditions change from site to site and from day to day. The proposed regulations do not provide for flexibility. For example, proposed item #6 requires “the use of water to wash the wheels, undercarriage and other parts of every vehicle that hauls coal or other materials before or immediately after the vehicle leaves a dusty, dirty or muddy surface.” What “other parts” should be washed? The proposed regulation provides no answer. Also, the use of truck washes and other water-based dust abatement measures are necessarily limited to periods when the temperature is above freezing. There is no allowance for this in the proposed regulations. It is especially noteworthy that while the petitioners propose to modify what is “reasonable” by including consideration of proximity to homes and atmospheric conditions that might affect movement of particulate matter, there is no provision in their proposal for consideration of conditions that affect the “reasonableness” of their proposed measures as applied to specific conditions. The proposed regulations illustrate a basic lack of understanding of the issues.

Another example of this lack of understanding is the proposal to require trucks to be washed “immediately after” leaving a dusty, dirty or muddy surface. This requirement presents serious operational problems. For example, this company washes trucks hauling from several different mine sites at two central washing stations. While located between the mine sites and the public roads, these wash stations are not washing the trucks “immediately after” leaving a dusty, dirty or muddy surface. Our current arrangement is working well, as attested to by the petitioners themselves, so why propose this wording? We can only conclude that this is either (a) another example of petitioners lack of understanding in regard to these issues or (b) an attempt to force installation of expensive truck washing facilities at every individual mine site, even if such sites are served by common roads, which favor the concept of a centralized washing facility.

Another example is proposed item #8, which would require rumble strips or speed bumps “before vehicles enter the public road.” While these measures may help remove material from the trucks, the resulting impacts produce a lot of noise. If occupied dwellings are nearby, this noise may be a source of irritation for residents, as we often haul at night.

The foregoing examples illustrate how a “one size fits all” approach as proposed by the petitioners is not practical for fugitive dust. The existing regulatory requirements provide a strong foundation for protection of the public while maintaining the needed flexibility to address complex and variable conditions in the field.

There are numerous other arguments which could be made against this proposal, including the negative economic impacts on all industries capable of producing fugitive dust (not just the coal industry). Ironically, the proposed regulations would punish the very operators, such as this company, who have initiated sweeping voluntary initiatives to control fugitive dust in and around the communities where they work. In this regard, not only are the proposed regulations impractical and unnecessary, they are patently unfair as well.

We appreciate the opportunity to comment on this petition.

Sincerely yours,

Phillip C. Mullins

Phillip C. Mullins, PE

Director of Permitting and Environmental Affairs

Cumberland Resources Corporation

CommentID: 11207