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Appeal Deciding Officer <br /> <br />15 <br />The EA asserts that “[a]lternatives 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 n ew 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 mus t 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 /> <br />The Forest Service argues that because “methane is not regulated,” the Forest <br />Se rvice 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 mem orandums 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 leas e modification. 43 C.F.R. § 3432.3(d) <br /> <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 /> <br />Discussion: Also , s ee above discussion under Appeal Issue II. <br /> <br />Mitigation of ventilation air methane (VAM) is discussed in Sections 2.2 and 3.2 of the EA. <br /> <br />EA, 3.2, Ventilation Air Methane (VAM) Capture, pages 49 -50: <br />OMLCC’s ventilation air flow quantity (~960,000 cfs) is much highe r 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 vent ilation 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 an d utilities. <br /> <br />Further, according to a recent MSHA report, this mine is not potentially attractive for <br />VAM technologies (US EPA 2010). <br /> <br />Conclusion and Recommendation: <br /> <br />There is no specific authority in the Mineral Leasing Act, the regulations under the Act, or <br />elsewhere, that address es 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