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Kentucky and Indiana Seek Confirmation that Greenhouse Gas Title V Permit Requirements Do Not Apply to Coal Mining Operations


By Kelly Bartley, Attorney, Bingham Greenebaum Doll LLP

As reported in recent issues including the second quarter 2011 Bingham Greenebaum Air Quality Letter, on July 1, 2011 Phase II of GHG permitting requirements under EPA’s 2010 GHG “tailoring rule” took effect.  Under that rule, facilities that emit at least 100,000 tons per year of GHG emissions as measured on a CO2e basis and 100 tons per year of GHG emissions as measured on a mass basis are subject to Title V operating permit requirements.  For an existing facility, applications for such permits were due no later than July 1, 2012.

On June 5, 2012 the Ohio Environmental Protection Agency sent a letter to EPA headquarters on behalf of multiple states including Indiana and Kentucky requesting confirmation that active underground coal mining operations do not have a duty to apply for Title V permits as a result of methane GHG emissions vented through ductwork to prevent safety hazards.  Reportedly, in a May 22, 2012 e-mail from EPA’s Office of Air Quality Planning and Standards to the National Association of Clean Air Administrators, EPA expressed an initial conclusion that active coal mining operations may be subject to Title V permit requirements where “emissions . . . are captured and vented through ductwork out of the mine.”

In addition to pointing out the difficulties with calculating methane emissions from the subject ventilation systems, the states advised EPA that they have determined that methane emissions from active mining operations are appropriately characterized as fugitive for purposes of Title V permitting requirements.  Although certain source categories are required to consider fugitive emissions in determining if they are subject to Title V permit requirements, coal mining operations are not included in any of those categories.  Accordingly, the states have determined that coal mining operations should not be required to obtain a Title V permit due to methane emissions.  The states further noted that the issuance of a Title V permit to active coal mining operations would simply be a paperwork exercise since there are no applicable requirements to include in the permit for such operations.

To view a complete PDF of the Second Quarter 2012 issue of the Air Quality Letter, click HERE.


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