2008-03-04_REVISION - C1981022 (2)

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)~ OORSEY Mr. Ron Cattany February 28, 2008 Page 2 Permit Procedures Regarding permit processing, RMCAA itself acknowledges that it is standard practice for DRMS to address the type of revisions to an underground coal mine set forth in PR12 and TRs111/112 in exactly the manner DRMS is currently processing them, that is, MDWs are evaluated as permit technical revisions and apart from other revisions that may be submitted related to underground operations (such as PR12, which adds Dry Fork leases to the current reserve base). RMCAA argues that these revisions should not be considered "piecemeal,"' but there are sound policy and programmatic reasons for handling MDWs in a different process from underground operations. In particular, proposed construction of the MDWs triggers significant federal permitting actions not applicable to the underground operations, such as the FS permitting currently under way. RMCAA attempts to brush this aside, and claims that unified state permit review is necessary here because "the scope of this project far exceeds the scope of any previously-reviewed venting projects,"2 but this assertion is manifestly incorrect. Indeed, the proposed MDWs will drain only one half of the methane volume presently drained by existing operations at the West Elk Mine.3 As with other RMCAA comments, the request to change the permitting process mid-stream has less to do with appropriate procedures than an attempt to throw up as many obstacles as possible to continued operations at a mine RMCAA does not like.4 Methane is Not a Regulated Pollutant It is instructive that RMCAA leads its discussion of the environmental effects of methane emissions with a quotation from Massachusetts v. EPA, 127 S.Ct. 1438 (2007).5 As you know, the question at issue in Massachusetts was "whether § 202(a)(1) of the CAA authorizes EPA to regulate greenhouse gas emissions from new motor vehicles ...i6 The Supreme Court held that EPA was so authorized, and remanded for the EPA Administrator to determine an RMCAA Letter at 3. z Id. s Deer Creek Shaft and E Seam Methane Drainage Wells Project FEIS at 60 (August, 2007). a RMCAA's unexplained delay of several months in submitting comments to the permitting process makes the allegations even more difficult to assess and puts DRMS and MCC at a disadvantage to timely prosecute the revisions. 5 RMCAA Letter 4. s 127 S.Ct. at 1459 (emphasis supplied). Section 202(a)(1) of the CAA requires that "[t]he Administrator shall by regulation prescribe ...standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare...." 42 U.S.C. § 7521(a)(1). DORSEY 8 WHITNEY LLP