Trapper coal mine faces shutdown without federal reprieve

A second Craig-area coal mine apparently also will have to undergo a remedial federal environmental review process if it hopes to avoid a shutdown based on a recent court order.

The Trapper Mine near Craig is now looking at going through the same kind of review currently underway in the case of the Colowyo Mine between Craig and Meeker following a federal judge’s ruling in May.

U.S. District Court Judge R. Brooke Jackson, in a suit brought by WildEarth Guardians, found that the federal Office of Surface Mining Reclamation and Enforcement illegally approved expansions of the two mines because it failed to provide public notice of the decisions and account for the environmental impacts.

Jackson ordered the agency to address the shortfalls within 120 days or the 2007 Colowyo Mine approval would be vacated and the affected mining shut down. He decided against imposing the same order in the case of the Trapper Mine after its attorneys had contended such an action would be moot because 96 percent of the coal at issue in the 2009 expansion approval at that mine already had been removed.

Attorneys for the mine since have realized that information is incorrect and that more coal still to be mined is covered by the ruling.

“There was a misunderstanding about the scope of the mine plan approval that WildEarth Guardians challenged the federal government on,” said Paul Seby, an attorney representing Trapper Mining Inc.

Said Jeremy Nichols of 
WildEarth Guardians, “This is a big deal, what they’re acknowledging. We appreciate the honesty, but now we’ve got to figure out what we do about this.”

Seby said Trapper attorneys will be talking to WildEarth Guardians and OSMRE about whether there needs to be additional environmental review done, and if so, when.

In a notice filed last week to alert the court about the new information, the Trapper attorneys said they support doing remedial environmental analysis involving the Trapper Mine after the Colowyo review is done.

Bob Postle, manager of the program support division for the OSMRE’s western region, said the notice has “just been filed, and we’re now working through how we’re going to address it.”

Nichols said he thinks it would make sense for the OSMRE to do both reviews at the same time because both mines supply the same power plant near Craig, and a joint analysis would provide for a more comprehensive look at the issues involved, which include the emissions from that plant.

Postle said he has no immediate thought on the possible timing of a Trapper environmental review.

“My only thought right now is that I’m working on the Colowyo (environmental assessment) that I have to complete in 120 days,” he said.

Jackson’s ruling, in which he said OSMRE relied on outdated environmental analysis and failed to consider the environmental impacts of coal combustion, sent shockwaves from the Craig area all the way to Washington, D.C. The Colowyo Mine, which employs 220 people, has said it would have to shut down at least temporarily if Jackson vacated the expansion approval because it is mining in the expansion area now and has no other area where it could immediately mine.

Gov. John Hickenlooper, U.S. Rep. Scott Tipton and U.S. Sens. Michael Bennet and Cory Gardner, all of Colorado, had urged quick action by the Interior Department, of which OSMRE is a part, to respond to the ruling.

Hickenlooper and Tipton also encouraged Interior Secretary Sally Jewell to consider an appeal of the ruling, while Gardner called on her to appeal. On Tuesday the Interior Department said it won’t appeal, but is on track to address the deficiencies in the Colowyo approval within the 120-day period.

Colowyo Mine is owned by the Tri-State Generation and Transmission Association, which also operates and is a partner in the coal-fired Craig Station power plant. It is one of several partners in the Trapper Mine but doesn’t operate it. The mines supply all of the plant’s coal.

Tri-State several weeks ago appealed Jackson’s ruling. Tri-State spokesman Lee Boughey on Wednesday voiced disappointment that the government didn’t appeal. But he said Colowyo Mine remains confident the government is “making every effort” to complete the required environmental review on time.

In the case of the Trapper Mine, its attorneys wrote in their filing that their misunderstanding stemmed from their mistaken belief that the scope of a state Division of Reclamation Mining and Safety permit revision at the mine and of OSMRE’s 2009 approval “were one and the same, covering identical geographic locations and federal coal.”

While it’s true that 96 percent of the coal under the state permit revision had been removed, from 312 acres on two federal coal leases, it turned out the federal approval that Jackson found to be defective applied to the entire acreage of those leases, which covers a larger area, the attorneys wrote.

The mine is awaiting approval of another state permit revision that would involve mining elsewhere in the two affected leases. If Jackson were to vacate the federal approval, it would “cause a shutdown of operations at the Trapper Mine,” the attorneys wrote in suggesting OSMRE undertaking a remedial review of the approval in hopes of avoiding such an outcome.

State DRMS data as of April showed the mine employed more than 150 miners.

Seby said the mine never tried to hide anything from Jackson, and once it discovered the error there was no question of the need to be candid with the court.

“Trapper is a transparent company and it follows the law,” he said.

That said, Trapper, like Tri-State, disagrees with Jackson’s ruling and this week said it was appealing it. Seby said the things that Jackson found OSMRE failed to do are new requirements the judge retroactively imposed, and his ruling is to the detriment of companies that got the approvals and have done nothing improper.

The companies’ appeals are facing an initial hurdle from the 10th Circuit Court of Appeals itself. The court clerk notified Tri-State last week that the court’s jurisdiction usually is limited to review of final judgments. While Jackson’s ruling was characterized at the district court level as a final judgment, the appeals court noted that he chose to withhold vacating the Colowyo approval to give OSMRE the chance to meet its obligations under the law within 120 days.

The appeals court asked Tri-State and WildEarth Guardians to file responses addressing the question of jurisdiction. Boughey said Tri-State is doing so.

As to Jackson’s ruling itself, “We believe the court made several significant errors, including misreading the Surface Mining Control and Reclamation Act. This prejudices not only Colowyo but other mining operations, and sets a precedent that should raise concerns for the U.S. energy industry and other activities on federal land.

“Fundamentally, the Office of Surface Mining should not be in the business of regulating power plants, and the court’s requirement that the agency analyze emissions from power plants inappropriately expands National Environmental Policy Act analyses for mining plans beyond what is prescribed under the law,” Boughey said.


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