"
Johnston,
A.
Todd"
<
ajohnston@
nma.
org>

07/
26/
2006
06:
07
PM
T
o
Jason
Burnett/
DC/
USEPA/
US@
EPA
c
c
S
u
b
j
e
c
t
PM
Compliance
Concerns
Jason
 
I
attach
the
following
memo
intended
to
dispel
the
notion
that
the
current
status
is
somehow
satisfactory
and
may
continue.
As
we
have
discussed
on
several
occasions,
retaining
PM10
is
not
an
option
from
our
perspective.
Particles
that
have
not
been
shown
to
cause
harm
need
to
be
excluded
from
the
standard.
Trying
to
find
a
technical
way
to
assure
us
that
states
and
citizens
groups
won't
enforce
a
health
NAAQS
is
simply
not
facing
up
to
the
problem.

Todd
Johnston
National
Mining
Association
202­
463­
2668
Fundamental
Concerns
with
Including
Fugitive
Coarse
PM
in
the
PM
NAAQS
At
Concentrations
That
Cannot
Be
Met
by
Well­
Controlled
Sources
And
Do
Not
Present
Substantial
Health
or
Welfare
Concerns
The
Clean
Air
Act
("
CAA"),
Its
Implementing
Regulations,
and
Court
Interpretation
of
Those
Laws,
Require
That
State
Implementation
Plans
("
SIPs")
Providing
for
Compliance
with
the
PM
NAAQS
and
PM
Increments
Be
Adopted
and
Enforced
by
EPA
and
the
States,
and
by
Citizen's
Suits.

 
Section
110
of
the
CAA
Requires
Adoption
of
SIPs
to
Meet
the
PM
NAAQS.
 
Sections
161
and
163
of
the
CAA
Require
Compliance
with
the
PM
Increments
By
Major
Stationary,
Minor
and
Areas
Sources.
 
The
Measures
Required
to
Achieve
Compliance
with
the
PM
NAAQS
and
Increments
Are
Not
Limited
to
Preconstruction
Review,
But
May
Include
"
state
plans
for
the
correction
of
any
violation
of
allowable
increments
or
maximum
allowable
concentrations
[
the
NAAQS],
and
may
even
require,
in
appropriate
instances,
the
relatively
severe
correctives
of
a
rollback
in
operations
or
the
application
of
retrofit
air
pollution
control
technology."
Alabama
Power
Co.
v.
Costle,
636
F.
2d
323,
363
(
D.
C.
Cir.
1979).
 
In
the
Alabama
Power
case
the
Court
rebuffed
the
contention
of
industry
that
the
requirement
to
protect
the
increment
was
limited
to
preconstruction
review
of
major
sources,
and
did
not
include
minor
and
area
sources,
stating
that:

"
The
section
165
permit
process
alone
does
not
ensure
that
maximum
concentrations
[
the
NAAQS]
or
allowable
increments
will
not
be
exceeded.
Significant
deterioration
may
occur
due
to
increased
emissions
from
unregulated
minor
sources
and
major
emitting
facilities
grandfathered
out
of
the
permit
process,
due
to
the
use
of
different
models
to
calculate
increment
consumption,
due
to
the
discovery
through
monitoring
that
limitations
inadvertently
have
been
exceeded,
due
to
redesignation
of
an
area
to
a
more
restrictive
class,
or
due
to
allocation
through
administrative
error
of
too
many
permits.
Nothing
in
the
plain
language
of
the
statute
limits
the
measures
in
the
state
implementation
plan
to
the
preconstruction
permit
process."
Id.
at
362.
 
It
is
clear
that
economically
sized
surface
mines
and
cattle
feedlots
cannot
meet
the
PM10
NAAQS
or
PM
Increments,
according
to
EPA's
own
studies
in
both
the
surface
mining
listing
rulemaking
and
in
the
PM10
increments
promulgation,
despite
the
clear
finding
in
the
surface
coal
mine
rulemaking
that
the
fugitive
coarse
PM
from
such
mines
did
not
present
substantial
health
or
welfare
concerns
at
ambient
concentrations.
 
It
is
likewise
clear
that
economic
hardship
or
prohibition
cannot
be
taken
into
account
in
adopting
NAAQS
or
ultimately
complying
with
especially
the
primary,
health
NAAQS.
 
New
or
expanded
surface
mining,
energy
and
agricultural
operations
necessary
to
meet
the
nation's
needs
cannot
meet
the
PM10
NAAQS
or
increments
even
after
application
of
the
best
available
control
technology
and
management
techniques.
They
must,
in
many
states,
demonstrate
that
prior
to
construction,
usually
by
modeling.
If
they
cannot
they
will
not
be
permitted,
or
appeals
or
their
permits
may
nullify
those
permits.
Citizens
may
require
SIPs
to
achieve
compliance
if
it
is
unreasonably
delayed.
 
Investors
Cannot
Be
Expected
to
Commit
to
the
New
or
Expanded
Energy
Production
Facilities
or
Agricultural
Production
(
some
of
it
intended
to
foster
energy
production)
if
they
know
it
will
exceed
the
PM
NAAQS
and
PM
increments
and
must
be
met.
 
The
Public
Will
Not
Tolerate
Undue
Delay
In
Achieving
Health­
Based
Coarse
PM
NAAQS.
 
As
Dr.
Borak,
Dr.
Ferris
and
numerous
other
health
authorities
have
opined
over
the
years,
fugitive
dust
at
ambient
concentrations
has
never
been
demonstrated
to
have
adverse
health
effects,
and
has
frequently
been
demonstrated
not
to
be
associated
with
health
effects.
That
lack
of
health
effects
has
been
reflected
in
non­
enforcement
based
on
EPA
policies
and
determinations
developed
over
the
years.
 
The
only
solution
to
the
very
real
problem
of
fugitive
coarse
PM
compliance
with
the
PM
NAAQS
and
PM
increments
is
the
exclusion
from
them
of
particles
of
substances
and
sizes
that
present
no
substantial
health
or
welfare
concerns,
as
suggested
by
the
Alabama
Power
case,
Id.
at
369­
70,
fn.
134.
It
is
time
to
resolve
the
precarious
compliance
status
of
wellcontrolled
fugitive
dust
sources
that
do
not
present
substantial
health
or
welfare
concerns.
