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OAR Box 1837 

Prepped by Keeia Richards 

Document Number: 

168) IV-C-8 

Docket Number: 

A-84-33 

Printed 11/14/2008 3:48:11 PM Sheet 168 of 238 
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IjSJg? I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

\ / Zd? WASHINGTON. D.C. 20460 

*ia*e«-

JUN I 8 1987 

THE ADMINISTRATOR 

Honorable Edwin (Jake) Gam 

United States Senate 

Washington, D.C. 20510 

Dear Senator Garn: 

This in in response to your May 8, 1987 letter on the 

Environmental Protection Agency's (EPA's) consideration of 

the surface coal mine rulemaking proposal. We are giving 

serious attention to the concerns you expressed. 

In 1983 EPA was directed by the Court of Appeals for the 

D.C. Circuit to begin a rulemaking process to determine 

whether or not to regulate fugitive dust from surface coal 

mines (Sierra Club v. Gorsuch, 715 F.2d 653 (D.C. Cir.)). 

The court ruled that In interpreting Section 302(j) of the 

Clean Air Act, under which the Agency regulated many other 

categories of fugitive emissions, EPA had not adequately 

explained its failure to also regulate surface coal mines. 

We are nearing the end of our deliberations and have advised 

the court that we currently expect to take final action by 

the end of this year. 

We fully recognize and agree with you that the Secretary 

of the Interior has wide and diverse statutory authority to 

protect national parks and wilderness areas under his 

jurisdiction. Similarly, the Clean Air Act gives EPA a strong 

role in protecting air quality. In particular, that statute 

singles out certain parklands and wilderness areas (so-called 

"Class I" areas) for special protection, including procedures 

for the Federal Land Managers (the Secretaries of Agriculture 

and Interior) to review major new sources of air emissions 

for their potential impacts on the air quality related values 

(including visibility) of such areas. We appreciate the need 

to work closely with DOI and with the Department of Agriculture in 

exercising our mutual responsibilities. 

In an effort to address concerns expressed by DOI, Craig 

Potter, Assistant Administrator for Air and Radiation, recently 

met with Interior officials, including Assistant Secretaries 

Horn and Griles. EPA staff are reviewing materials submitted 
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to us at that meeting and other information, and we wil l 

continue to discuss with our counterparts at that Department 

how our respective authoritie s should best be exercised 

to assure that ai r quality and visibilit y in national parks 

and wilderness areas are adequately protected from surface 

mine emissions. 

In closing , le t me assure you that we are giving ful l 

consideration to al l comments and are making every effor t t o 

work cooperatively with our siste r agencies. Thank you for 

sharing your views with me on this important topic . 

fNSincerl 

Lee M. Thomas 

Enclosure: 

cc : Rulemaking Docket 

cc: Rulemaking Docket 

bcc: B. Brown 

G. Foote 

Docket No. A-84-33 

AL (A-101) 

AX (A-101) 

Jjc/OAOPS - retyped 5/27/87 

PHWyckoff:bjf/LE-132A/501-WT/382-7610/6-16-87/Disc f1 

1DENT.CAI LETTERS TO <* „ G. „ATCH> JAMES v . HANSEN_ ^ ^ ^ ^ 
't, 

MEMORANDUM 

SUBJECT: Discussion of Potential Final Action for 

Strip Mines Rulemaking 

FROM: ^Kfrt cox," Project Officer h 

TO: Central Docket Section (LE-131) 

Docket No. A-84-33 

Addressees (See Below) 

The surface coal mine (SCM) rulemaking proposal, -48 Fed. Reg. 43211 

(October 26, 1984) and 50 Fed. Reg. 7090 (February 28, 1986), set forth four 

regulatory alternativest 

- Alternative I: Status quo (no regulation) 

- Alternative II: Regulate new SGM's 

- Alternative III: Regulate new and certain 

existing SCM's 

• Alternative IV: Regulate only new SCM's 

affecting certain parka 

and other public lands 

(Class I and mandatory 

Class II areas) 

Although industry cost estimates are higher than ours and benefits nay 

be underestimated, based on the Regulatory Impact Analysis and the comments 

thereon, it appears that the adverse socioeconomic impacts of Alternatives 

II and III greatly exceed benefits. As the rulemaking process nears completion, however, considerable disagreement remains regarding the Inpaeta 

of alternative IV. The cownents reflect that part of the dispute centers on 

the extent to which alternative IV as originally proposed would achieve Its 

stated purpose of targeting regulation on national parka and other natural 

areas of specie! concern. 

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I X*mj ) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ^//^ 

\*mfc* WASHINGTON. D.C. 20460 /£«> t 

MAY 4«WT ^ 

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(See 48 Fed. Reg. 43212.) Accordingly, as It moves towards final action EPA 

Is now considering certain modified versions of Alternative IV (see discussion 

below) which might be more effective in achieving the purpose of that regulatory 

alternative. By seeking to answer unresolved questions regarding Alternative 

IV, EPA does not imply that other outcomes have been precluded. All of the 

alternatives will be considered in reaching a final decision. 

. The modifications to Alternative IV have been fashioned by EPA in response 

to comments in the docket, and are a logical outgrowth of the original proposal. 

Thus, EPA does not believe it is necessary under applicable rulemaking procedures 

to undertake another full round of notice and comment before final action. 

That course would also be undesirable in view of EPA's desire to take final 

action as soon aa possible. However, EPA does feel that it is appropriate 

to offer interested parties a brief opportunity to examine, and present 

their views on, prospective modifications to Alternative IV* While this 

opportunity is afforded to all interested parties generally through this 

docket notice, individual notice is also being given to the parties listed 

below, who have demonstrated a keen .interest In these proceedings. To avoid 

delaying this rulemaking, any written responses should be submitted by May 

18, be as concise as possible, and should avoid detailed technical analyses. 

Responses should be submitted to Ms. Barbara Brown, Office of Air and Radiation 

(ANR-443), EPA, 401 M Street, S.W., Washington, D.C. 20460. Subject to the 

other time commitments of Agencv staff, EPA also offers to meet with representatives of any interested party during this period to discuss this matter. 

Arrangements may be made by contacting Barbara Brown at (202) 382-7403, FTS 

382-7403. Any written submissions will be placed In the docket. Additionally, 

EPA will prepare a brief memorandum concerning the subject matter of any 

oral discussions, which will also be placed in the docket. 

The balance of this memoraridum summarizes the portions of industry and 

envlroT-TOTiral groups, and discusses In some detail prospective modifications 

to alternative IV. 

I) Industry Caments 

Thil rulemaking has had two eoroaent partods (Uu first opened on 

October 28, 1984, and the second on February 28. 1986), each with corresponding public hearingsi lhe mining industry haa actively participated in 

all of these proceedings. Their broad-ranging comments oppose all aspects 

of the proposal. KCfEM noil generally, they allege: 

-The SCM's are not a significant source of particulate matter 

when considered nationally (addressing the basic teat for 

proposing regulation). 

-The proposed regulation would prohibit all but the smallest 

new or expanded SCM's. 

-The regulation would provide no significant environmental 

benefit. 

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-Albernatlve IV would affect more coal reserves than EPA 

indicated. Industry submitted «n ICF study predicting that 

8.6 billion tons of reserves would be effected. [Note however, 

that over half of this (4.6 B5 tons) was premised upon the 

effects of Montana Indian reservations on the Powder River 

Basin. Those non-mandatory Class I areaa would be excluded 

from coverage under alternatives TV' and IV". Other Industry 

comments Indicate an even higher impact. [Note that these are 

based on very conservative modeling assumptions showing Impacts 

of 1 ug/m3 at distances of over 100 miles for acne regions.} 

-Other authorities, notably the Surface Mining Control and 

Reclamation Act, could address any environmental problems. 

II) Environmental Group Comments 

-The EPA's Interpretation of the standard of rulemaking required 

by section 302(j) is much too broad. 

-Mines can be a significant environmental concern, violating 

both national ambient air Quality standards as well aa the 

prevention of significant deterioration (PSD) increment. 

-Industry overstates the impact of the regulation by not factoring 

In control techniques that are available and by not considering 

redesignation to Class III. 

-Sierra Club sought regulation of all mines and, therefore, 

was not supportive of protecting only Class I and mandatory 

Class II areas. 

-Environmental groups did conclude that Class I and mandatory 

Class II areas need protection because other Federal regulatory 

authorities are not adequate and the Department of the Interior 

ls not using the authority that it does have. 

-Benefit! of the regulation are understated because of difficulty 

In quantifying them. 

III) Altematlvee IV, IV\ and TV'' 

Alternative IV in the SCM proposal would provide for PSD review of all 

mines which would have a 1 ug/m3 impact on any Class I or mandatory Claas II 

area. We have considerable flexibility, however, in modifying thia 

approach to respond to needs presented by the commenters, ao long aa the 

final rule is a "logical outgrowth" of the proposal. 

It may be most convenient to think of modifications to our approach 

in terms of two varlsbles: the lands protected by the regulation and the 

Criteria used to trigger thl* protection. Industry commenters brought up 

concerns worth serious consideration with reepect to both categories. 

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Regarding lands protected, they noted that redesignation of a tract to Class 

I might significantly limit mining in a region, even though the redesignated 

area, in their view, is of no partlculsr natural significance. Three Indian 

reservations in Montana near the Powder River Basin were noted as examples. 

Regarding the criteria for triggering review, industry observed that some 

mines, even at a considerable distance, and having an' insignificant effect 

on the protected area, might nonetheless meet the 1 ug/m3 threshold 

and be subject to PSD permitting. 

Under one possible modification, (referred to aa "Alternative IV'" or 

"4 prime"), PSD review of a mine would be triggered not by a fixed ambient 

concentration but, rather, by a prediction of adverse impact* A projected 

concentration of 1 ug/m3 would trigger an ambient Impact aasessment, rather 

than automatic PSD review. The mine would be subject to PSD only if the 

ambient impact aasessment revealed a potential adverse Impact, as determined 

by the Federal land Manager (FLM). In addition, regulatory coverage would be 

extended to only mandatory Class I and Class II areas, 

This approach presents significant potential advantages: 

-In addresssing mandatory'Class I areas, it focuses on those 

areas of special natural significance for which the Clean Air 

Act (Act) demonstrates particular concern, 

-It focuses only on mines that would have an adverse impact 

through the use of a case-by-case approach. 

-It maintains the role of the public in the process. These 

determinations would be subject to public notice end opportunity 

for comment. This procedural step is a vital part of the PSD 

process, pursuant to.which a decision to permit ls made "only 

after a careful evaluation of all the consequences of such a 

decision and after adequate procedural opportunities for informed 

?

ubllc participation in the decision-making process" 

section 160(a)(5)]. 

-It provides on opportunity for participation by the Federal 

land managers (FLM). 

-It is based on established procedures. An adverse Impact teat 

la already used by the FLM, 

There are of course a variety of ways In which regulatory coverage 

can be structured. Coverage could be limited to only mandatory Class I 

areas or to mandatory Class 1 and existing mandatory Class II areas. 

Other thresholds for triggering review could also be selected. 

A slightly modified approach ("Alternative IV" or "4 double prime") 

is also worth exploring. This would incorporate the same adverse impact teat 

as IV but differ in two respects from the way that XV is configured above. 

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First, it would only protect mandatory Class I areas. Second, it would delete 

the 1 ug/ro3 ambient impact trigger for analysis. Instead, the adverse impact 

analysis would be applied to all mines proposed within 50 kilometers of a 

mandatory Class I area. This would remove uncertainties as to application of 

the adverse impact analysis test. It would also limit the number of sources 

subject to modeling exercises. Because this ls an applicability test rather 

than a prohibition of any particular activity, the 50 kilometer criterion 

would not constitute a prohibited "automatic or uniform buffer tone" within 

the meaning of section 165(e)(3)(A) of the Act* 

It ls likely that some parties will be concerned abut the lack of 

protection for mandatory Class II areas under Alternative IV". While it is 

true that the mandatory Class I areas occupy a special place as "national 

jewels" and receive enhanced protection under the Act, there are numerous 

mandatory Class II areas of exceptional scenic and ecological value. To be 

responsive to these concerns, we suggest a process for notification of the 

FLM with respect to SCM's proposed for location within 50 kilometers of a 

mandatory Class II area. 

The FLM could then consider potential environmental impacts aa appropriate 

and consult with the State regarding these findings. This process would not 

trigger PSD review or create an obligation on the part of the State. We 

believe, however, that such a procedure can nevertheless offer real benefits. 

The review and public consideration of the potential environmental impacts of 

proposed sources ls a fundamental theme of the Act, The fact that such a 

review is made is likely co influence the general regulatory effort with 

respect to SCM's and be factored into permitting decisions. Section 121 of 

the Act provides for consultation between States and the FLM on matters 

Involving new source review. We suggest that thia mechanism be used to implement the consultation procedure described above. 

We should also consider the role of the FLM. Under the original 

alternative IV, we anticipated that the FLM would be given the opportunity 

to comment. This participation would be optional, since we do not have the 

authority to Impose any mandatory participation upon the FLM. The State 

would generally be the PSD permitting authority and would work with the 

FLM. What happens in cases in which the .FLM finds an adverse impact but 

the State PSD permitting authority does not? We suggest that the FLM's role 

might be more meaningful if PSD review were triggered on the basis of the 

FLM's finding of adverse Impact. The State could always trigger 

PSD review in this way, regardless of the FLM's recommendation or 

participation, through its general regulatory authority embodied in section 

116 of the Act. 

The regulatory Impact analysis (RIA) examines the potential impacts of 

Alternative IV through the use of two case studies. It did not address the 

two variations discussed above. We feel, however, that the RIA can be 

extrapolated to these modified approaches. Because of use of the adverse 

Impact test, both Alternatives I V and IV" would be expected to present 

much lower costs. Benefits however, would not change much for any given 

area of coverage. With Alternative IV , coats would be lower because fewer 

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mines would be sublect to review, but benefits should not appreciably change. 

The reason for this is that we would be maintaining PSD coverage of mines 

for which there would have been an adverse impact. The same result obtains 

for Alternative IV", but one should note that, since It does not address 

mandatory Class II areas, in the configuration discussed sbove, there would 

be a real drop in benefits. For the areas covered, benefits are still 

expected to be greater than costs, however. 

Addressees: 

Joseph J. Brecher 

Attorney at Lav 

506 - 15th Street 

Suite 500 

Oakland, CA 94612 

Howard I. Fox 

Sierra Club Legal 

Defense Fund, Inc. 

1516 P Street, N.W. 

Washington, D.C. 20005 

(Sierra Club) 

Michael B. Barr 

Hunton & Williams 

P.O. Box 19230 

Washington, D.C. 20036 

(National Coal Association) 

Roberta L. Kalladay 

Holland & Hart 

1875 I Street, N.W. 

Washington, D.C. 20006 

(American Mining Congress) 

Robert T. Connery 

.Holland & Hart 

555 - 17th Street 

Suite 2900 

Denver, Colorado 80201 

(American Mining Congress) 

David G. Unger, Director 

Watershed and Air Management 

U.S. Department of Agriculture 

Forest Service 

12th & Independence Avenue, S.W. 

P.O. Box 2417 

Washington, D.C. 20013 

Michael Poling 

Deputy Assistant Secretary for Land 

and Minerals Management 

Department of the Interior 

Washington, D.C. 20240 

Ted Williams, Director 

Office of Environmental Analysis, 

Policy, Safety, and Environment 

U.S. Department of Energy 

Washington, D.C. 

Joe Mullan 

Senior Vice President 

for Environmental Affaire 

•National Coal Association 

1130 - 17th Street, N.W. 

Washington, D.C. 20036 

Larry Bogga 

Senior Counsel 

American Mining Congress 

1920 N Street, N.W.' 

Suite 300 

Washington, D.C, 20036 

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Air Division Directorsi 

Lloyd F. Novick, M.D. 

Director, Office of Air Quality 

2005 North Central Avenue 

Phoenix, AZ 85004 

Bradley J, Beckham, Director 

Air Pollution Control Division 

4210 East 11th Avenue 

Denver, CO 26220 

Michael J. Kayee 

Division Manager 

Air Pollution Control Division 

Illinois EPA 

2200 Churchill Road 

Springfield, Illinois 62706 

Roger B. McCann, Director 

Division of Air Pollution Control 

Fort Boone Plaza 

16 Reilly Road 

Frankfort, Kentucky 40601 

Harold ftobbine 

Chief, Air Quality Bureau 

Cogswell Building 

Helena, Montana 59C20 

Randolph Wood 

Director, Department of 

Environmental Quality 

122 West 25th Street 

Cheyenne, W¥ 82002 

Michael J. Burkhart 

Chief, Air Quality Bureau 

1190 St. Francis Drive 

P.O. Box 966 

Santa Fe, New Mexico 67504-0968 

Dana K. Mount 

Director, Division of Environmental 

Engineering 

North Dakota State Department of Health 

1200 Missouri Avenue 

Biamark, North Dakota 58502-5520 

Allen Eli Bell 

Executive Director 

Texas Air Pollution Board 

6330 Highway 290 East 

Austin, Texas 76723 

F. Burnell Coroner 

Director, Bureau of Air Quality 

Utah Department of Health 

2ee North 1460 west 

P.O. Box 16690 

Salt Lake City, Utah 84116-0690 

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