2008-03-04_REVISION - C1981022 (2)

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C ~~ HORSEY Mr. Ron Cattany February 28, 2008 Page 3 appropriate regulatory response.' As a matter of law, nothing in Massachusetts required or authorized state agencies such as DRMS to regulate coal mine methane emissions, and the EPA and State of Colorado have not as yet promulgated any regulations. Any attempt to short circuit that process risks violating federal law and imperils the lives of miners. RMCAA's blithe disregard for the safety of miners and the requirements of federal law is demonstrated in their urging that DRMS "consider" requiring the West Elk Mine to flare or capture methane. Methane Flaring is Not Mature Control Technology for Coal Mine Methane No active underground coal mine in the United States flares coal mine methane. Moreover, "[f]laring of methane gas may cause mine explosions due to fluctuations in the levels of methane."8 Consequently, RMCAA is being deeply misleading when it selectively quotes passages from a-mails sent by a mining engineer at the federal Mine Safety and Health Administration ("MSHA") to the FS as part of inter-agency consultation during development of the environmental impact statement for the West Elk Mine MDWs.9 In that process, the FS asked MSHA whether methane flaring was conceptually feasible, in trying to determine whether flaring could be considered as a project alternative in the EIS. MSHA responded that flaring is theoretically approvable with extensive customized site design and engineering.10 Because of the hazards to mine safety, the FS rejected methane flaring as a viable alternative," and while the FS is giving flaring further consideration in the EIS process, there is simply no developed system that DRMS could require or the West Elk Mine could presently implement. At best, a mining company could design and install asystem -most likely at an inactive mine - to explore the feasibility of flaring as a pilot project. Years later, the technology might be sufficiently mature that it could be installed at an active mine like West Elk. This also presumes that the FS would allow a series of flares in a national forest adjacent to roadless areas. Ultimately, RMCAA is not urging DRMS to require installation of a control technology, but rather to indefinitely shut down the West Elk Mine while a control technology is developed. Methane Capture is Not Presently Permitted or Feasible RMCAA's proposed alternative of methane capture is equally problematic. As a threshold matter, coal mine methane is a federal natural resource subject to leasing; it is illegal ' Id. at 1462. s FEIS at 44. s See RMCAA Letter at 5. 10 Since the date of Mr. Nichols' letter, MSHA has issued a formal response letter to the FS expressly rejecting a flaring system for the West Elk Mine. See Letter dated February 25, 2008, from Allyn Davis, MSHA District Manager, to Mr. Charles Richmond, Forest Supervisor, a copy of which is attached. FEIS at 44. DORSEY 8 WHITNEY LLP