Tri-State pursues various options over legal ruling against Colowyo coal mine

Tri-State Generation and Transmission Assn. said in a May 19 statement that it is extremely disappointed in a May 8 U.S. District Court decision in a case brought by WildEarth Guardians against the U.S. Office of Surface Mining (OSM) over an environmental review for a new mining area at the Colowyo surface mine.

Tri-State said the issues in the suit are based on a federal review process that occurred eight years ago, before Tri-State purchased the Colowyo mine. The mine had formerly been owned by international miner Rio Tinto.

“The lawsuit and the decision were not based on a violation of any air or water quality laws or regulations,” Trii-State said. “The Colowyo Mine has responsibly operated its mining and reclamation activities since the mine plan was approved under the federal review process, and the mine remains in compliance with all state and federal requirements. The issues raised in the lawsuit are related to whether OSM completed appropriate public notification and analysis required during a review of the mine plan issued in 2007. At no time during the case did the plaintiffs argue that the mine should be designed or operated any differently than it operates today. The decision has the potential to severely impact the communities of Craig and Meeker, putting over 200 mine employees and their families at risk and threatening the mine’s more than $200 million impact to the regional economy.”

Tri-State said it is looking at all options to allow production to continue at Colowyo, including working with OSM to respond to the judge’s order within the 120 days given, reviewing legal options, including appeal, and asking elected officials at all levels to encourage the federal government to use every available resource in pursuing all legal and operational options.

Colowyo Coal is a subsidiary of Tri-State, which purchased the mine in 2011. Located in northwest Colorado, Colowyo produces over two million tons of low-sulfur, subbituminous coal annually and is currently one of two primary fuel sources for the Craig Station Power Plant near Craig, Colo. In 2013, the mine contributed an estimated $206.7 million direct and indirect economic impact to the region and generated public revenues in an estimated amount of $12.0 million (federal and state royalties, severance tax, sales tax, property tax, etc.).

In February 2013,  WildEarth Guardians (WEG) sued the Office of Surface Mining in the U.S. District Court for the District of Colorado, claiming that the agency failed to adequately provide public notice and address environmental impacts prior to mine plan approvals for seven coal mines in the Western U.S., including Colowyo and Trapper, another supplier to the Craig plant. Specifically, WEG claims the Environmental Assessment (EA) that OSM prepared to comply with the National Environmental Policy Act (NEPA) for the Colowyo mine plan in 2006 was inadequate and asked the court strike down the current mine plan. Tri-State joined the lawsuit to assist the defense.

Judge R. Brooke Jackson heard oral arguments on April 24 and on May 8 ruled in favor of WEG. In his ruling, Judge Jackson agreed with WEG’s claims that OSM did not involve the public or take a “hard look” at the environmental impacts of mining operations when they approved the Colowyo mining plan. The judge delayed vacating Colowyo’s mining permit for 120 days to allow the OSM to address the deficiencies in the permitting process that he discussed in the order. During this time, Colowyo will continue to operate, Tri-State noted.

The judge wrote that “the Court is aware that, according to the Declaration of Juan Garcia, Technical Services Manager for the Colowyo mine, the mine employs nearly 250 people at full production. He represents that invalidation of the 2007 mine plan revision would likely cause layoffs if the operations were halted for any significant period, as well as ‘serious economic losses’ to Colowyo. It might also pose a hardship to the power plant which depends on Colowyo as a principal source of coal. This is not to say that the Court would not order vacatur despite the individual hardships that would follow in an appropriate case. However, given the fact that mining in this area has occurred since the mid-1970’s; that the environmental impacts have been studied over the years; that the state agency considered the environmental impacts from these mining plan revisions; and that government counsel noted during the hearing that OSM has changed its notice practices and procedures, I find that the benefits of immediate vacatur do not outweigh the potential harms.

“Instead, the Court will defer entering a vacatur order for a period of 120 days from the date of this order. During that period the Court expects OSM to take a hard look at the direct and indirect environmental effects of the Colowyo mining plan revision, and to provide public notice and an opportunity for public involvement before reaching its decisions. If this process has not been completed within the 120-day window, then an order of vacatur will be immediately effective absent further court order based upon very good cause shown.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.