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2011-11-10_REVISION - C1981022
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2011-11-10_REVISION - C1981022
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Entry Properties
Last modified
8/24/2016 4:44:56 PM
Creation date
11/14/2011 1:35:46 PM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981022
IBM Index Class Name
Revision
Doc Date
11/10/2011
Doc Name
ARO Response Final (Emailed)
From
Jim Kiger
To
DRMS
Type & Sequence
PR6
Email Name
BFB
SB1
Media Type
D
Archive
No
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Appeal Deciding Officer 15 <br />The EA asserts that "[a]ltematives that address VAM destruction are duplicative of either the No <br />Action or Proposed Action alternatives as these are possible mitigation measures that may be <br />implemented by OMLLC on their existing leases, private land or new BLM lease, but not on the <br />lease modification due to the No Surface Occupancy stipulations." EA at 33. See also EA at 48 <br />( "None of these potential [methane] mitigations would occur on the lease modification .... ").17 <br />The Forest Service is apparently taking the position that the agency can only require measures to <br />reduce the environmental impacts of the Lease Modification if those measures occur on the lease <br />parcel itself. The Forest Service provides no support for this contention. The Forest Service has <br />the authority to "attach[] ... appropriate lease stipulations" to a lease modification. 43 C.F.R. <br />§3432.3(d). The Forest Service fails to explain what provision of law or policy requires that <br />these stipulations preventing harm to the lease modification area must require the lease - holder to <br />implement mitigation measures within the lease parcel. In any event, the EA certainly fails to <br />provide an explanation for why this would be so. <br />The Forest Service argues that because "methane is not regulated," the Forest <br />Service cannot require flaring or other mitigation measures. EA at 47. The Supervisor also states <br />that mitigating methane's impacts via "capture" would be "exceeding my authority by requiring <br />such mitigation under 43 CFR 3432.3(d), other laws, and agency memorandums of <br />understanding which specify that my role is to consent to leasing and prescribe protections for <br />NFS surface resources." DN & FONSI at 6. This ignores the Forest Service's broad authority to <br />"attach[] ... appropriate lease stipulations" to a lease modification. 43 C.F.R. § 3432.3(d) <br />The EA contains a host of erroneous or unsupported rationales for declining to consider in detail <br />the alternative of requiring Oxbow to adopt VAM technologies to reduce methane pollution. <br />Discussion: Also, see above discussion under Appeal Issue II. <br />Mitigation of ventilation air methane (VAM) is discussed in Sections 2.2 and 3.2 of the EA. <br />EA, 3.2, Ventilation Air Methane (VAM) Capture, pages 49 -50: <br />OMLCC's ventilation air flow quantity (960,000 cfs) is much higher than anything that <br />has to date been demonstrated as effective with this technology (World Coal 2010). The <br />agencies involved in this analysis do not know if VAM destroyers on the market are <br />compatible with the specific design of OMLCC's MSHA- approved ventilation system <br />(EPA 2010). If the capacity, design and feasibility of a VAM system were addressed by <br />permitting agencies, there would still be a concern that this technology would require <br />large acres of disturbance for surface facilities including roads and utilities. <br />Further, according to a recent MSHA report, this mine is not potentially attractive for <br />VAM technologies (US EPA 2010). <br />Conclusion and Recommendation: <br />There is no specific authority in the Mineral Leasing Act, the regulations under the Act, or <br />elsewhere, that addresses the mitigation of methane that must be removed from underground coal <br />mines. The USFS analysis shows that the deciding officer understood both the environmental <br />
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