2018-04-18_GENERAL DOCUMENTS - C1980007

Home Browse Search

!l, 1980 U.S. Dist. LEXIS 17660, *40-45 (D.D.C. May 16, 1980) ("[I]f Congress wanted the Secretary to develop regulations protecting air quality, it could have done so ...."). Your Complaint, however, does allege that MCC is violating permit conditions that require compliance with applicable clean air laws. Complaint at p. 15. In order to conclude that such emissions are violating any or all of MCC's permit conditions related to compliance with State and Federal clean air laws or even 30 U.S.C. § 1258(a)(9), I would need to determine, based on the evidence known to me, whether I have reason to believe that these emissions constitute a violation of one or more of MCC's permit conditions or the applicable air quality laws and regulations. Although I do not question the factual assertion that you make that the West Elk Mine may be emitting VOCs, for the following reasons, I find that I do not have reason to believe that such emissions constitute a violation of the MCC's permit conditions or 30 U.S.C. § 1258(a)(9). To begin, the allegations you have provided, if true, demonstrate that one inspector within the APCD of the CDPHE determined in 2012 and again in 2015 that MCC was out of compliance with VOCs emissions and recommended enforcement action to address ongoing violations. See Complaint, Exhibits 1 and 3. If this information was the only information available to me, issuance of a TDN might be appropriate. However, the DFB and I are aware of other information that not only contradicts but also outweighs both the conclusion of that inspector that MCC is out of compliance and your statement that "the Colorado agency charged with regulating air quality—has confirmed that West Elk is 'out of compliance' with applicable State and Federal clean air laws and regulations...." Request for Informal Review at 9. As discussed below, this additional information shows that the appropriate Clean Air Act authority has, in fact, not determined that the emissions constitute a violation of the applicable air quality laws and regulations. Because we have no authority to independently interpret the applicable air quality laws and regulations, we must rely on the Clean Air Act authority to determine compliance with existing air quality laws and cannot conclude that certain emissions violate 30 U.S.C. § 1258(a)(9) and/or the permit conditions requiring compliance with applicable federal and state air quality standards. The additional information to which I refer includes the January 11, 2017 letter from CDPHE's Director of Environmental Programs, which oversees the APCD. That letter makes clear it is not the position of the state Clean Air Act authority that MCC is out of compliance with applicable air quality laws— it is only the position of an individual inspector. See January 11, 2017 letter from CDPHE to MCC. In your Request for Informal Review, you discount the informative value of this letter claiming that it does not state that MCC "is in compliance with applicable State and Federal clean air act laws and regulations, but rather asserted that Colorado regulators were choosing not to take enforcement action." Request for Informal Review at 6. 1 disagree with your characterization of the January 11, 2017 letter. The conclusion of the January 11, 2017 letter was as you state— that CDPHE declines to take enforcement action. But the reason CDPHE reached that conclusion was because of questions about the applicability of the standards the inspector was seeking to enforce on MCC (i.e., the standards the inspector applied only apply to point sources, and CDPHE has not determined whether West Elk mine is a point source or a fugitive source). Because of uncertainty regarding the standard, CDPHE in that letter Congress only intended to regulate air pollution related to erosion."). All other air emissions from surface coal mining and operations are regulated by the Clean Air Act and under the jurisdiction of other agencies.