By letter dated April 30, 2013, EPA Acting Administrator Bob Perciasepe denied a petition filed by the Sierra Club and other groups, seeking to have the agency issue a determination pursuant to section 111 of the federal Clean Air Act, 42 U.S.C. §7411(b), finding that air pollution emissions from coal mines “may reasonably be anticipated to endanger public health and welfare.” Had the EPA made such a finding, it would have then been obligated to issue New Source Performance Standards (“NSPS”) for the pollutants addressed in the determination, initially applicable to new or modified coal mines, and potentially applicable to existing mines after further rulemaking. 42 U.S.C. §§7411(b)(1)(B), (d).

The primary pollutant of concern is methane generated from underground mining operations, although the petition addressed mines of all types, and also sought regulation of nitrogen oxides and volatile organic compounds (both ozone precursors). Methane is classified by EPA as a greenhouse gas (GHG) with heat-trapping capability that is 20 times more potent than carbon dioxide. Thus, the petitioners claimed that it would not be difficult for EPA to make an “endangerment” finding, leading the way to an entirely new, comprehensive regulatory program applicable to the coal mining industry.

In addition to the need for development and implementation of technology to achieve the NSPS, such a determination could eventually lead to other significant restrictions on permitting of new mines. For example, if methane emissions from underground coal mines were not considered to be “fugitive,” it is quite likely that virtually any new proposed mine (as well as modifications to existing mines) would trigger permitting under the Clean Air Act’s Title I New Source Review Program, implicating a host of regulatory requirements pertaining to achievement and maintenance of the National Ambient Air Quality Standards in the area in which the mine (or proposed mine) is located. Likewise, if such emissions are not considered to be fugitive, many such mines would exceed the threshold for Title V Operating Permits (100,000 tons/year CO2 equivalent). That would entail the issuance of Title V permits by EPA (or delegated state agencies), and payment of per-ton emission fees, among other requirements.

In denying the petition, Acting Administrator Perciasepe noted that according to EPA’s Draft Inventory the coal mines category only represents approximately 1% of total 2011 U.S. GHG emissions. However, the chief reason that EPA denied the petition was because it is already engaged in rulemaking efforts with respect to 45 nationally applicable stationary source rules that are to be issued by September 2014, 25 of which are already subject to court-supervised consent decrees – many the result of lawsuits filed by these same petitioners. The EPA letter noted that the budget for its Office of Air Quality Planning and Standards has been reduced by 12% since 2006, and sequestration has further reduced EPA’s 2013 budget, causing agency-wide furloughs that further reduce available staff time. Mr. Perciasepe stated that “a decision to list and then promulgate standards for the coal-mines category would divert resources from other higher-priority activities that the EPA is currently undertaking ...” These include, for example, the agency’s ongoing effort to develop standards for GHG emissions from new electricity generating units, pursuant to a Consent Decree with some of these same petitioners.

In short, EPA’s April 30, 2013 denial does not negate the possibility of making an endangerment finding in the future with respect to methane and other emissions from coal mines. Rather, it denies the petition only “in light of limited resources and ongoing budget uncertainties.”

On May 7, 2013, Rep. Henry Waxman and Senator Sheldon Whitehouse, both members of the Bicameral Task Force on Climate Change, wrote to Acting Administrator Perciasepe objecting to his decision and asking that he reconsider. In particular, these members of Congress expressed their views that failing to assess such a “public health risk” because of inadequate funding constitutes “terrible precedent and a dereliction of duty.” Predictably, representatives of at least one of the petitioning entities (Wild Earth Guardians) have recently stated that they plan to challenge EPA’s denial by filing a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit. Hence, the diversion of resources that Acting Administrator Perciasepe sought to avoid will only grow larger.