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(2) Without adhering to correct procedures; <br />(3) Inconsistent with applicable law; or <br />(4) Without a rational basis after proper evaluation of relevant criteria. <br />FINDINGS and DETERMINATION <br />WildEarth Guardians' citizen's complaint alleged that West Elk Mine was failing to control <br />fugitive dust emissions from coal piles during windy conditions. In Colorado, the Air Pollution <br />Control Division (APCD) has primary authority for implementing State and Federal air quality <br />control programs. Colorado's coal regulatory program at Rule 4.17, Air Resource Protection, <br />requires coal mine operators to effectively control erosion and attendant air pollution so as to <br />comply with applicable State and Federal air quality statute and regulations. <br />In your response, you explain: the air quality requirements and control measures associated with <br />controlling fugitive dust from coal piles under APCD permit # 09GU1382 and Division of <br />Reclamation Mining and Safety (DRMS) permit #C-1980-007; your May 23, 2018, inspection <br />and meeting with mine staff to discuss and evaluate compliance with the approved dust control <br />plans, policies, and practices; approved methods for determining opacity of emissions; opacity <br />observer certification requirements and staffing practices (two on shift at all times); that opacity <br />observations are calibrated against a standard; ideal moisture content ranges and spontaneous <br />combustion concerns related to applying water to coal, and the commercial product Soil Sement <br />which is used instead of water to stabilize coal piles. You also provide opacity observer records, <br />receipts for dust control products purchased by the mine, and a list of certified opacity observers. <br />You indicated that opacity observers demonstrated their practice for DRMS inspectors in the <br />field. Observations during the May 23`d inspection and recently -completed emission observation <br />forms did not exceed 5%, which is well below the >20% threshold set under West Elk's APCD <br />permit. <br />Your response states, and provides supporting documentation to substantiate, that the West Elk <br />Mine is in full compliance with fugitive dust control requirements contained in its air quality <br />permit issued by APCD under the Clean Air Act and its permit issued by DRMS under the <br />Surface Mining Control and Reclamation Act. <br />Your response demonstrates a rational basis for concluding that West Elk is in compliance with <br />dust control plans, policies, and practices. You have evaluated requirements imposed both under <br />your jurisdiction and that of APCD, verified practices and procedures for implementing those <br />requirements, and ensured that fugitive dust emissions are monitored and controlled as required. <br />West Elk is not required to prevent all dust emissions, but rather is required to control dust <br />emissions to within acceptable parameters as set by the APCD. Your conclusion that West Elk is <br />not in violation of air quality requirements is consistent with applicable law. <br />