Guardians v. United States Forest Serv.
| Decision Date | 31 October 2011 |
| Docket Number | Civil Action No. 08-cv-02167-MSK |
| Parties | WILDEARTH GUARDIANS, a not-for-profit corporation, Plaintiff, v. UNITED STATES FOREST SERVICE, a federal agency within the U.S. Department of Agriculture; CHARLES S. RICHMOND, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, Gunnison National Forest; UNITED STATES DEPARTMENT OF THE INTERIOR, a federal agency; WILMA LEWIS, in her official capacity as Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Defendants, and MOUNTAIN COAL COMPANY, Intervenor-Defendant. |
| Court | U.S. District Court — District of Colorado |
Honorable Marcia S. Krieger
THIS MATTER comes before the Court for resolution of the merits of this administrative agency appeal. The Court has reviewed the record including the parties' briefs (# 84, 92, 97, 94) and Mountain Coal Company's ("MCC") submission of supplemental authority (# 99).
Exercising jurisdiction pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331, the Court AFFIRMS the decisions of the Defendants.
This case concerns MCC's operation of a coal mine pursuant to a federal lease of United States Forest Service ("Forest Service") lands. The mine, known as the West Elk Mine, is located within the Paonia Ranger District of the Grand Mesa, Uncompahgre and Gunnison Ntional Forests. It has operated continuously since approximately 1981 under the regulatory and environment oversight of the State of Colorado, the Forest Service, the Department of the Interior, the Mine Safety and Health Administration ("MSHA") and other federal agencies.1 Coal is mined using excavated underground workings. From 2002 to 2007, MCC extracted coal from a portion of the mine known as the "B Seam." As the B Seam approached exhaustion, MCC expanded its operations to recover coal from another area of the mine known as "E Seam" pursuant to additional leased reserves incorporated into its mining permit. It presented a mine plan modification to the Forest Service in 2006 to permit the expansion.
Underground coal mining at the West Elk Mine, like most coal mines, releases methane gas, which can be a serious safety hazard to miners. The MSHA, which regulates working conditions in coal mines, requires mines to maintain levels of methane of one percent or less. To comply with the MSHA's safety requirements, MCC proposed to construct approximately 168methane drainage wells drilled from the land surface to the mine workings. This would require approximately 22 miles of associated road construction in order to drill and maintain the wells. In addition, MCC proposed construction of a ventilation shaft and escapeway (the "Deer Creek shaft") to support the mine ventilation system and to provide for worker safety. Methane, which is a recognized greenhouse gas, would then be vented directly into the atmosphere. Methane drainage wells are approved by MSHA as a reliable method for venting methane from coal mines; they are already in use in parts of the West Elk Mine.
Pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Forest Service, in cooperation with BLM and other agencies, prepared an Environmental Impact Statement ("EIS") to assess the effect of the drainage wells and ventilation shaft on the area. In September 2006, the agency issued a "scoping" notice, soliciting comments on issues that should be addressed in a potential draft. In response, the local office of the United States Environment Protection Agency ("EPA") provided comments regarding alternative designs and a suggestion that methane be captured rather than vented. The letter noted the EPA's voluntary Coalbed Methane Outreach Program ("CMOP"), which assists coal mine operators in finding alternatives to releasing methane directly into the atmosphere, and the agency's previous work with MCC on the West Elk Mine over the previous decade.
In March 2007, the Forest Service issued a draft EIS, which contained little discussion of methane capture. The EPA submitted comments in a letter dated June 1, 2007. The EPA acknowledged the safety concerns relating to venting of methane but recommended that the final EIS "identify the magnitude of the emissions and discuss alternatives," specifically capture of the gas. The letter emphasized the significance of methane as a potent greenhouse gas and thesuccess of the CMOP effort in adding capture technology to a number of active coal mines. In the letter, the EPA recognized that a gas lease would need to be in place to permit the methane to be put to beneficial use but suggested that the Forest Service analyze capture as an alternative to venting even in the absence of such a lease. Thereafter, the EPA, Forest Service, MCC, and the BLM exchanged information and explore the issues, including how to estimate the projected volume of methane emissions, safety questions, and means of putting the methane to beneficial use.
Following these exchanges and upon review of a preliminary draft of the Final EIS ("FEIS"), the EPA submitted additional comments, reflected in another letter dated August 7, 2007. Administrative Record, USFS00656-662.2 The EPA again recommended that the Final EIS include a discussion of the viability of methane capture, including a discussion of the "many economic and environmental benefits that might be realized by offering these lands for a new gas lease." The letter notes that MCC does not own a gas lease on the lands and that there are hurdles to leasing. EPA offered several suggestions to overcome the barriers to leasing. The letter also notes that the preliminary Final EIS includes a discussion of "flaring," or burning of the methane after removal from the mine (a technique that reduces greenhouse gas emissions). The letter states that "there appears to be no specific MSHA policy barring properly designed flaring or combustion processes" and that the West Elk Mine already employs a combustion process using a portion of captured mine drainage methane to warm incoming ventilation air. The EPA also provided specific comments regarding language used in the preliminary draft EIS.
The Final EIS was issued in August 2007. USFS01826-2053. The purpose of the proposed action (the methane venting wells and ventilation shaft) was identified: "to protect public health and safety, to prevent loss of leased federal coal resources, and to facilitate safe and efficient production of compliant and supercompliant coal reserves" as well as to allow MCC to exercise its lease rights. USFS001830. Three alternatives were provided: (1) no action; (2) the proposed action; and (3) a modification of the proposed action that would lessen the impact of the methane drainage wells and road construction on roadless area lands. Flaring and capture were noted as alternatives considered but eliminated from detailed study. Because these are the issues challenged by the Plaintiff, the agency's reasons for eliminating these as alternatives are examined in detail.
In the FEIS, flaring was excluded as an alternative on the grounds that flaring could cause mine explosions and "is not approved by MSHA." USFS0139. Moreover, "MSHA indicates that additional research and development on this technology would have to occur before MSHA would consider flaring as a reasonable option."3 Id.
The EPA, in its August 7, 2007 letter, disagreed that flaring was precluded on safety grounds and noted that the practice was used in many industries. USFS00649. The EPA acknowledged that the "coal mining industry in the United States has not adopted flaring as a standard safety practice" but attributed this to a lack of interest by the industry in pursuing thisoption. Id. The EPA recommended that the Forest Service confirm with the MSHA that flaring would not be approved. The EPA noted that its CMOP had a conceptual design of a flare system for burning coal mine methane incorporating applicable petroleum industry codes and guidelines that should be safe; it observed also that flaring is used outside of the United States in underground coal mines and is approved as a safe practice in the United Kingdom and Australia.
The Forest Service stated in its response to the EPA that it would consult with the MSHA on this issue. An email dated October 26, 2007 shows that a mining engineer with the MSHA informed the Forest Service that "MSHA would approve flaring of methane drainage if appropriate protections are incorporated into the flaring system." USFS04944.
Similarly, capture of the methane was not analyzed in detail in the FEIS "because of complexities and legal limitations stemming from the leasing processes and regulations of two separate mineral resources, uncertainty with relation to quality and quantity of gas resource, and economic concerns related to additional facilities." USFS01839. Specifically, capture was ruled out because (1) it "would not satisfy the specific purpose and need for the project which is to ensure health and safety of the underground mine and facilitate efficient recovery of leased federal coal reserves;" (2) capture without a gas lease would not be legal; and (3) capture was not forwarded as part of the proposal made to meet mine ventilation needs to satisfy MSHA requirements. Id. It was also noted that some components of a capture/use of methane concept would be outside of the Forest Service's control.
The FEIS explains that coal is managed under a separate program by the BLM than oil and gas; a coal lease does not grant the right to the lessee to capture gas released incident tomining. The right to lease other mineral deposits on lands leased for coal is reserved to the BLM. The FEIS explains that the Forest Service and BLM "have discussed placing the gas under lease, and have explored the...
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