Federal Regulations

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Overview

Federal law plays a powerful role in how coal dust pollution is and is not regulated and monitored and how rules are enforced. Federal rules and agencies are a potential pathway to push for accountability on coal dust when local or state tools are limited.

At the federal level, coal dust is regulated primarily through laws and agencies concerned with environmental pollution, rail transportation, and civil rights.

Clean Air Act

While there are no federal regulations focused specifically on coal dust, airborne dust particles are regulated as part of the U.S. Clean Air Act. The Clean Air Act is the cornerstone of federal air pollution regulation. The Act authorizes the U.S. Environmental Protection Agency (EPA) to identify and regulate key air pollutants, with the strongest protections for so-called "criteria pollutants."[1] These criteria pollutants must not exceed concentration thresholds known as the National Ambient Air Quality Standards (NAAQS), pronounced "nacks." This is relevant for coal dust because it is a type of particulate matter, and the criteria pollutants include fine particulate matter (PM2.5) and coarse particulate matter (PM10), also known as dust. The number is the subscript indicates the maximum size (diameter) of the particles in micrometers.

The NAAQS are federal standards that are health-based, although there is no safe level of exposure to PM2.5,[2] and legally enforceable. If coal dust contributes to particulate matter concentrations that exceed the NAAQS, that constitutes a violation of the Clean Air Act.[3] The NAAQS are periodically reviewed based on scientific research and expert advice, and, if it is determined that the evidence supports it, they can be revised downward.

To test NAAQS compliance, atmospheric concentrations of criteria pollutants must be measured using designated regulatory air monitors by an agency with the authority to do so. In Virginia is the Virginia Department of Environmental Quality (VA DEQ). These data are made public through the EPA Air Quality System (AQS).

While official decisions depend on results from regulatory-grade air monitors, community-generated evidence and research from governmental scientists remains important. Complaints, photographs, and community air local monitoring can compel regulatory monitoring from the VA DEQ. Research can also inform expert advice when the NAAQS are up for their next review, potentially causing them to be lowered.

While the Clean Air Act is a federal regulation, states have the primary responsibility of implementing and enforcing the NAAQS through State Implementation Plans, commonly referred to as SIPs, pronounced "sips." Each state develops their SIP, explaining how they will achieve and maintain NAAQS compliance, which are then reviewed and approved by the EPA.[4] Once approved, a SIP becomes federally enforceable. If a state fails to enforce their SIP, allowing repeated violations or failing to correct known problems, the EPA has the authority to intervene. This intervention may take the form of disapproving the SIP, imposing a Federal Implementation Plan (FIP), or initiating federal enforcement actions against polluters or the state itself.[4]

The EPA has broad enforcement authority under the Clean Air Act, including the power to conduct inspections, issue administrative compliance orders, assess civil penalties, and bring enforcement actions in federal court.[5][6] EPA enforcement may be triggered by regulatory air monitoring, complaints, investigative journalism, or whistleblower report.

Clean Water Act

A major aspect of the U.S. Clean Water Act was the establishment of the National Pollutant Discharge Elimination System (NPDES) program. NPDES protects water quality by limiting the release of pollutants into waterways like streams, rivers and bays. As part of the NPDES program, polluting facilities typically require water discharge permits. Virginia is authorized by the EPA to issues its own water discharge permits, which the VA DEQ does through its Virginia Pollutant Discharge Elimination System (VPDES) program. VPDES permits for surface coal mines are issued by the Virginia Department of Energy rather than the VA DEQ under the Code of Virginia. The EPA maintains the authority to review permits and permit applications for "major" dischargers in all states.

Coal dust is not a regulated pollutant under the NPDES program, but the Dominion Terminal Associates and Kinder Morgan Bulk Terminals both have VPDES permits for the large volumes of water they discharge into the Jame River that is used for wet dust suppression.

In 2023, the Sierra Club, with support from the Sierra Club Virginia Chapter, and New Virginia Majority joined a petition to the EPA requesting new federal rulemaking to establish a U.S.-wide NPDES permit "regulating the discharge of coal and other coal-related pollutants to navigable waters from uncovered railcars."[7] The petition followed a decision by the U.S. Surface Transportation Board in 2020 that uncovered railcars, including those carrying coal, could not be regulated on a state-by-state basis under the NPDES program, as railroads cross state lines. The argument was that coal dust deposited into waters and reduced water quality.

Railroads

Railroads are primarily regulated at the federal level because trains cross state lines. The Interstate Commerce Commission Termination Act grants exclusive jurisdiction over rail transportation to the federal government and preempts most state and local regulations.[8] However, this preemption is not absolute. Courts have recognized that state and local governments may exercise their traditional police powers to protect public health and safety, so long as their actions do not unreasonably interfere with interstate commerce or railroad operations.[9][10]

Two important federal agencies with authority over railroads are the U.S. Surface Transportation Board (STB) and Federal Railroad Administration (FRA). The STB oversees the economic aspects of freight rail such as rates, service obligations, and access, and the FRA regulates rail safety, including track conditions, equipment standards, and operational practices.

The EPA regulates the air emissions of new locomotives and engines, and states regulate emissions from existing and older locomotives and engines. This applies specifically to engine emissions and does not cover non-engine emissions like fugitive dust from train cars, including coal-carrying railcars.

The FRA has recognized that coal dust from uncovered railcars can compromise track stability and weaken and prevent water from draining from the ballast, which is the material that composes the trackbed on which the railroad ties are positioned. This can destabilize the tracks[11] and cause train derailments.[12][13] The STB investigated the effects of coal dust on railroad tracks, concluding that coal dust poses a serious problem for railroad safety and operations.[14]

At least one legal scholar has argued the FRA could put a law into effect regarding the safety risks of fugitive coal dust emissions, that coal dust is known to weaken the ballast and destabilize the tracks, and that this law would be with the agency's statutory authority and regulatory history.[15] The argument is that the FRA has been given broad authority under the Federal Rail Safety Act (FRSA) to make rules for "every area of railroad safety," which includes derailments, track safety standards, and the structural integrity of the ballast. The FRA already has regulations for coal dust, requiring the removal from service and repair of plain bearing journal boxes containing coal dust "that can reasonably be expected to damage the bearing; or have a detrimental effect on the lubrication of the journal and bearing." The FRA also prohibits the operation of train cars with a plain bearing box that has been damaged by coal dust. Therefore, the FRA is aware of the safety hazards associated with coal dust.

Civil Right Laws

Under Title VI of the Civil Rights Act of 1964, recipients of federal funding, including state environmental agencies like the VA DEQ, may not administer programs in a way that discriminates on the basis of race, color, or national origin.[16] If the VA DEQ's permitting or enforcement decisions result in disproportionate impacts to racially marginalized communities, affected residents can file a civil rights complaint with the EPA's Office of Civil Rights. Such complaints can prompt federal investigations and, in some cases, lead to changes in permitting decisions or enforcement practices.

Environmental Justice

The are no federal environmental justice regulations. Most federal-level environmental justice activities have come from executive orders (EOs), which mean they are more easily changed than Congressional legislation.

Clinton Administration (1993–2001): In 1994, President Bill Clinton signed EO 12898, "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations," which directed federal agencies, including the EPA, to identify and address disproportionate adverse health or environmental impacts of their policies or programs on communities of color and low-income communities.
Biden Administration (2021–2025): In 2023, President Joesph Biden issued EO 14096, "Executive Order on Revitalizing Our Nation's Commitment to Environmental Justice for All," which facilitated proactive and collaborative approaches and mechanisms for federal agencies, including the EPA, to work toward environmental justice. Additionally, the Biden Administration made substantial grant funds available to communities with environmental justice concerns, including through federal programs such as the Inflation Reduction Act Community Change Grants Program and Thriving Communities Grantmaking Program.
Second Trump Administration (2025–present): The Trump Administration and EPA Administrator Lee Zeldin have acted aggressively and illegally to undo progress toward environmental justice. Key to their efforts has been to wield Title VI of the Civil Rights Act against racial and ethnic minorities in favor of whites, claiming programs aimed at redressing racism are racist. Zeldin has canceled EPA-issued environmental justice grants, including those from major funding initiatives of the Biden Administration. Trump has rescinded both Clinton's EO 12898 and Biden's EO 14096.

Relevance

Federal laws, agencies, and processes form a layered system that communities can potentially activate for a multi-pronged activism approach, especially when local and state responses prove insufficient. However, federal action will be influenced by the politics and policies of the president. Additionally, federal action is often slow and resource-intensive, even when politically viable during a sympathetic administration. That said, federal regulations and processes are one of the most powerful ways to compel accountability, especially in cases involving large industrial operators, transportation infrastructure, entrenched patterns of environmental inequality, in states where regulators are captured or otherwise co-opted by the industries they regulate, and when local issues are examples of broader struggles across the U.S.

Documents

References

  1. ↑ Clean Air Act, 42 U.S.C. §§ 7401–7671q.
  2. ↑ Makar et al., Estimating the Causal Effect of Low Levels of Fine Particulate Matter on Hospitalization, Epidemiology, 28, 5, 627–634, 2017.
  3. ↑ Whitman v. American Trucking Ass’n, 531 U.S. 457, 2001.
  4. ↑ 4.0 4.1 State Implementation Plans for National Primary and Secondary Ambient Air Quality Standards, 42 U.S.C. § 7410.
  5. ↑ Citizen Suits, 42 U.S.C. § 7604.
  6. ↑ Federal Enforcement, 42 U.S.C. §§ 7413.
  7. ↑ Petition For Rulemaking: To Establish Nationwide National Pollutant Discharge Elimination System Permit for Uncovered Railcars Transporting Coal Pursuant to 33 U.S.C. § 1342(A), 2023.
  8. ↑ Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b).
  9. ↑ Duluth, Winnipeg and Pacific Railway Company, Plaintiff, v. City of Orr, U.S. District Court, Minnesota, May 31, 2007.
  10. ↑ Federal Railroad Safety Act, 49 U.S.C. § 20106.
  11. ↑ Infrastructure Security & Energy Restoration, Office Of Electricity Delivery & Energy Reliability, U.S. Department Of Energy, Deliveries Of Coal From The Powder River Basin: Events & Trends 2005–2007, 14, 2007.
  12. ↑ de Place, Coal Goes off the Rails, Sightline Daily, July 19, 2012.
  13. ↑ Vorhees, Railroads, Utilities Clash Over Dust From Coal Trains, The New York Times, January 25, 2010.
  14. ↑ Arkansas Electric Cooperative Corporation—Petition for Declaratory Order, Surface Transportation Board, Decision, Docket No. Fd 35305, March 2, 2011.
  15. ↑ Trimming, Derailing Powder River Basin Coal Exports: Legal Mechanisms to Regulate Fugitive Coal Dust From Rail Transportation, Golden Gate University Environmental Law Journal, 6, 2, Pacific Region Edition, 7, June 2013.
  16. ↑ Prohibiting Discrimination under Federally Assisted Programs, Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d.
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