3. Coal ash, milling, and mining waste materials. The December 2008 collapse of a TVA coal ash pond has already cost more than $100 million in cleanup costs. EPA is moving toward stricter regulation for coal ash wastes under the Resource Conservation and Recovery Act (RCRA); it will probably also become harder to use wet storage for other bulky dusty wastes from mining, coal cleaning, and ore beneficiation. That may be an expensive and unanticipated compliance problem that neither EPA nor many in the industry have yet considered.

4. Haul roads. Mine roads are often unpaved and very dusty; they can be a significant contributor to particulate problems. The old solution of oiling roads is now highly disfavored because of water pollution concerns. Thus, haul roads may become a large compliance headache, especially if the standard does not adequately distinguish between large and small particulate.

Because of the high costs and operating restrictions which may result from the new NAAQS for particulates, the mining industry needs to provide EPA well-grounded studies, statistical analyses, and peer reviews of the studies on which EPA is relying. This effort may include data supporting health distinctions between urban and rural sources of particulate, a distinction generally favoring mining.

At the local level, individual operators should focus on easily controlled sources of fugitive dust and help to obtain data to show upwind and out-of-state contributions to the problem. It will also be important to document the environmental trade-offs involved with economical dust control practices such as road oiling and wet storage of ash and milling waste. Those data may support continued use of some old-fashioned practices where the alternative is much more costly — and possibly less effective.

Given the amounts at stake, it will be very important for mining companies to follow the development of this proposal closely and to pay attention to the local implications. It would also be quite reasonable for the industry to argue for additional time for EPA to gather more data distinguishing between different size particulates and their health effects. The industry’s involvement needs to be well-organized and fleshed out with specific comments and defensible data. Without such data and thoughtful input from people who will bear the burden of compliance, EPA cannot do its job properly or focus on true health risks without sweeping in much more of the mining industry than likely to be necessary for health protection. Because the financial and operating stakes are so high for continued mine viability, it is critical that operators participate not only through trade associations, but individually through counsel with carefully crafted comments. AM

Russ Randle is a partner in the Washington, D.C. office of Patton Boggs LLP. He can be reached at rrandle@pattonboggs.com or 202-457-5282.