2011-11-14_REVISION - C1981022 - Laserfiche WebLink

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Appeal Deciding Officer 29 Appeal Issue IV -C: THE EA FAILS TO ADEQUATELY ANALYZE IMPACTS TO VISIBILITY IN CLASS I AREAS The Forest Service has an a ffirmative duty under the Clean Air Act to protect visibility in Class I areas, which include national parks and wilderness areas. 42 U.S.C. § 7475(d)(2)(B). In the EA, the Forest Service “tiers” to the 2000 Iron Point FEIS’s visibility analysis – without conducting any further analysis – to support its conclusion that the Lease Modification’s air quality impacts will not be significant. EA at 43 -44. While the 2000 Iron Point FEIS concluded that the Mine’s overall impacts on visibility would not be signifi cant, it also stated that impacts to visibility at portions of the West Elk Wilderness Area would potentially be significant and exceed the threshold for significant impacts on the worst visibility days. Even if the Forest Service’s conclusion in 2000 tha t the Mine’s overall visibility impacts were insignificant was reasonable then, that is not a reasonable conclusion in 2011 without further analysis. When the underlying environmental conditions and air quality baselines have changed since an earlier NEPA analysis, the Forest Service cannot “tier” to that earlier EIS to avoid conducting up -to -date analysis that accurately gauges the environmental impacts of the current project. Discussion: See also the discussion above in Appeal Issue IV. Air pollutants such as particulate matter (PM), sulfur oxides (SOx ), and nitrogen oxides (NOx ), can reduce visibility across large regional areas, including national parks and wilderness areas. The area surrounding the lease modification is designated a Class II area, as defined by the Federal Prevention of Significant Deterioration (PSD) provision of the Clean Air Act. Federal/State Mandatory Class I Areas located in the analysis area include West Elk Wilderness at approximately 10 miles south -southeast and Black Can yon of the Gunnison National Park approximately 25 miles southwest of Somerset, Colorado. D ue to the nature of the project no specific permit requirements apply to gaseous emissions. C onstruction will be required to comply with fugitive dust provisions u nder Regulation 1 (5CCR 1001 -3) which requires that precautions be taken to control fugitive emissions (e.g., airborne particulate matter) to levels below opacity (EA, page 42). See discussion under Appeal Issue IV. The Elk Creek Mine currently operates u nder air emission discharge permits obtained from Colorado Department of Public Health and Environment (CDPHE), Air Pollution Control Division on July 29, 2009. The permit is valid for a period of 5 years (until July 29, 2014). This time period covers the time period in which the Proposed Action Alternative would be implemented. See Air Quality Impacts under Appeal Issue IV.