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• Operating permitting: Under Colorado AQCC regulations, as well as Title V of the <br />U.S. Clean Air Act, "no person shall operate [a major source of air pollution] without <br />first obtaining an operating permit[.]" AQCC Regulation No. 3, 5 CCR 1001-5, Part <br />C § II.A.1; see also 42 U.S.C. § 7661a and 40 C.F.R. § 70.1. A "major source" is <br />defined as any stationary source of air pollution that, "[d]irectly emits , or has the <br />potential to emit, one hundred tons per year or more of any pollutant subject to <br />regulation." AQCC Regulation No. 3, 5 CCR 1001-5, Part A § I.B.25.b. <br />Based on available data regarding the composition of gas released from the West Elk mine, as <br />well as the neighboring Elk Creek mine, the APCD calculated that VOC emissions resulting <br />from methane venting at the West Elk mine exceed the two ton per year reporting threshold, the <br />five ton per year construction permitting threshold, and the 100 ton per year operating permit <br />threshold, and appear to exceed the 250 ton per year PSD permitting threshold. <br />In reliance on this data, the APCD again conducted an inspection and again confirmed <br />the West Elk mine was not complying with applicable emission reporting and permitting <br />requirements. In a report prepared in 2016 based on further inspections at the West Elk mine, <br />the APCD again reported the West Elk mine was "out of compliance," finding as follows: <br />Pursuant to Permit 09GU1382 Condition 8 and AQCC Regulation 3, Part A, Section II.C, a <br />revised APEN shall be submitted to report a significant increase in emissions above the level <br />reported on the last APEN submitted. MCC was informed in 2012 that there may be <br />significant VOC emissions associated with the methane released from mining operations. <br />Since that time, the Division has collected and reviewed additional information verifying <br />that VOC emissions from MCC are above permitting thresholds. MCC has been aware of <br />the Division's work on this issue, has information available which they could use to quantify <br />VOC emissions, and reported not pursuing testing or gathering additional information to <br />submit a permit modification request. Because the source has not submitted an APEN <br />reporting VOC emissions from ventilation shafts or requesting permit modifications to <br />reflect VOC emissions, the source is in violation of Permit 09GU1382 Condition 8 and <br />AQCC Regulation 3, Part A, Section H.C. <br />Pursuant to Permit 09GU1382 Condition 14, Permit 10GU1130 Condition 11, and AQCC <br />Regulation 3, Part C, operating permit requirements shall apply to this source at any such <br />time that they become major, and the source is required to submit an application for, and <br />obtain, an operating permit. The Division has obtained sufficient information to determine <br />MCC has been operating with VOC emissions from ventilation shafts above the 100 tpy <br />major source threshold since at least 2011 (the start date of when methane data was <br />available). MCC has been aware of the Division's review of this information, and has not <br />provided credible information to repudiate this determination. MCC has not submitted a <br />Title V application which included reporting VOC emissions or requested an operating <br />permit for these emissions, violating Permit 09GUI382 Condition 14 and AQCC Regulation <br />3, Part C. <br />Exhibit 3, APCD Inspection Report (April 19, 2016, revised July 1, 2016) at 35-36 (emphasis in <br />original). Based on these findings, the APCD again found the West Elk mine to be "out of <br />compliance" and recommended that an enforcement action be taken. <br />13 <br />