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United States Department of the Interior
Office of Hearing and Appeals
Departmental Hearings Division
405 South Main Street, Suite 400
Salt Lake City, Utah 84111
Telephone: (801) 524-5344
Facsimile: (801) 524-5539
January 5, 2010
In Re Black Mesa Complex Permit Revision.
DV 2009-1-PR thru DV 2009-8-PR
Significant Permit Revision
Permit No. AZ-001D
NUTUMYA'S NEPA MOTION GRANTED
(Docket No. DV 2009-4-PRJ)
OSM DECISION VACATED
OTHER PENDING MOTIONS DENIED AS MOOT
OTHER REQUESTS FOR REVIEW DISMISSED AS MOOT
(Docket Nos. DV 2009-1-PR, DV ... DV 2009-8-PR)
OSM violated NEPA by not preparing a supplemental draft EIS when Peabody changed the proposed action. As a result the Final EIS did not consider a reasonable range of alternatives to the new proposed action, described the wrong environmental baseline, and did not achieve the informed decision-making and meaningful public comment required by NEPA. Because of the defective Final EIS, OSM's decision to issue a revised permit to Peabody must be vacated and remanded to OSM for further action.
Having considered the motion, the other papers on file, and for good cause, it is ordered that:
1. The Motino by Petitioners, Kendall Nutumy, et.all, in Docket No. DV 2009-4-PR, for Summary Disposition Based on OSM's Violation of the National Environmental Policy Act (NEPA), is granted.
2. The Decision, dated December 22, 2008, of the Office of Surface Mining Reclamation and Enforcement, approving the Application for Significant Permit Revision (Project AZ-001-E-P-01)(Permit AZ-001D) filed by Peabody Western coal Company for the Black Mesa Complex, is vacated.
3. The other pending motions in this consolidated preceding are denied as moot or not ripe for review.
4. The request for review filed by the following applicants are dismissed as moot.
Californians for Renewable Energy
Victor Masayesva, Jr.
Black Mesa Water Coalition
The Forgotten People
Coal Mine Canyon Chapter
5. The prehearing conference scheduled for March 9, 2010, and the hearing scheduled for March 16, 2010, are cancelled.
Any party aggrieved by this decision may file a petition for discretionary review with the Interior Board of Land Appeal, or seek judicial review pursuant to the provisions in 43 CFR Section 4.1369.
Robert G. Holt
Administrative Law Judge