JUNE 10, 1995
To: native-l@gnosys.svle.ma.us
Federal and Indian Permitting Branch
Office of Surface Mining
1999 Broadway, Suite 3320
Denver, CO 80202-5733
e-mail: <rlwillia@osmre.gov>
Bob Uram, Director
Office of Surface Mining
1951 Constitution Ave NW
Washington, DC 20240
e-mail: <ruram@hdqgw.osmre.gov>
Bob Armstrong, Assistant Secretary of the Interior
U.S. Dept. of the Interior
Dept. of the Interior Building
1800 C street NW
Washington, DC 20240
e-mail: <batkinson@ios.doi.gov>
RE: Kayenta Mine Renewal Application For Federal Permit AZ0001C (by PWCC)
Dear Sir:
As a concerned and informed citizen, I am making this formal statement, and
complaint about the extremely-destructive mining operations of Peabody Western
Coal Company's (PWCC's) Kayenta mine, as part of the public comment process
[public comment period extended] on the renewal application of Federal Permit
AZ0001C (current permit term expiring 7/7/95) for continued operation of the
Kayenta mine in northeast Arizona.
I submit that the Kayenta Mine Permit Renewal (AZ0001C) Application (of PWCC)
SHOULD NOT BE APPROVED, BECAUSE:
(1.) There has been and continues to be great DANGER to, as well as ongoing
and imminent irreparable DAMAGE to, the entire area and ecosystem--including
but not limited to the water, the air, the land, and the people and their
livestock--which results directly and indirectly from the operation of said
Kayenta mine. [This is IN VIOLATION of the SURFACE MINING CONTROL AND
RECLAMATION ACT of 1977 (SMCRA) {30 CFR $ 774.15 (c) (1) (i), (ii), and (iii)}
AND of numerous FEDERAL ENVIRONMENTAL LAWS AND REGULATIONS--including but not
limited to the Clean Water Act, the Safe Drinking Water Act, the Clean Air
Act, and the National Environmental Policy Act.]
(2.) The operator (PWCC) is guilty of gross and substantial NONCOMPLIANCE
with "the terms and conditions of the existing permit" [as per 30 CFR $ 774.15
(c)(1)(i)] and with SMCRA, including "the environmental protection standards
of the Act and the regulatory program." [as per 30CFR $ 774.15 (c)(1)(ii)]
(3.) The requested permit renwal DOES NOTHING TO ADDRESS OR ASSUAGE the grave
imminent DANGER of the Kayenta mine's ILLEGAL AND ENVIRONMENTALLY-HAZARDOUS
OPERATIONS and the effects thereof, OR the INADEQUATE RECLAMATION effort and
plans, and thus "substantially jeopardizes the operator's continuing ability
to comply with the Act and the regulatory program on existing permit areas."
[as per 30 CFR $ 774.15 (c)(1)(iii)]
(4.) The operator (PWCC) has NOT provided EVIDENCE of the posting of the
REQUIRED PERFORMANCE BOND for RECLAMATION operations NOR any evidence that
such a bond "will continue in full force and effect for the proposed period
of renewal." [as per 30 CFR $ 774.15 (c)(1)(v)] AND
(5.) In fact, the operator, Peabody Western Coal Company (PWCC), has NEVER
POSTED RECLAMATION BOND money for the Kayenta mine AS STIPULATED BY SMCRA,
and therefore, NO assurance exists that adequate reclamation and remediation
activities will be either properly conducted OR satisfactorily completed.
[as per 30 CFR $ 774.15 (c)(1): (i), (ii), (iii), and (v)]
The DANGERS and DAMAGES to the environmental viability of the ecosystem and of
the area as a whole, and to the health and safety of the residents and their
livestock (as well as indigenous and other animals), come from many avenues,
all of which stem directly or indirectly from the severely-destructive and
often illegal operations and associated activities of the Kayenta mine.
These include, but are not limited to, the following:
* POLLUTION and CONTAMINATION of the AIR, WATER, GROUND, GROUND WATER,
PLANTS, and ANIMALS by HAZARDOUS and TOXIC SUBSTANCES and
materials: KNOWN POLLUTANTS include SELENIUM (widespread, due to
the Se-rich nature of the indigenous coal, and VERY TOXIC), and
Lead, Copper, and Arsenic (found in the "Benally" spring by an
OSM-CONDUCTED WATER TEST, all highly poisonous!), and Uranium
(highly radioactive and found throughout the region, especially
under and/or near coal deposits, which leads to `unsafe ambient
levels' when the coal is mined); VERY-HIGHLY-PROBABLE CONTAMINANTS
include Germanium and Tin (related to Lead in the Periodic Table
of the Elements), Antimony and Bismuth (related to Arsenic), Zinc,
Cadmium, and Mercury (common heavy-metal pollutants), and also
probably Thorium (often found with Uranium; also radioactive). In
addition, I would estimate--scientifically speaking--that there is
a "substantial probability" that some or all of the following are
present: Aluminum, Gallium, Indium, Thallium, Strontium, Chromium,
Cobalt, Nickel, Silver, Gold, Platinum, AND Magnesium (from the
magnesium chloride used as a dust suppressant on Route 41, Forest
Lake Road, and on other local haul roads and public roads). A
comprehensive investigation of these heavy metals and other toxic
and toxic-forming substances--especially Se, which case studies
have shown can destroy an entire ecosystem--must be done for land,
air-borne, and ground-water contamination and for the accumulative
toxicological effects on vegetation, livestock, and public health,
as well as interactive toxicological effects.
* Often-BAD AIR QUALITY and UNSATISFACTORY AIR MONITORING: Excessive
COAL DUST in the air has caused serious respiratory problems and
illnesses in many residents and livestock. The air is often full
of smoke from fires burning in the spoil piles and coal outcrops,
from blasting, and from the nearby coal-fired power plant--the
largest power plant in the U.S.--whose air pollution is so great
that it was one of only 2 man-made effects visible to astronauts.
There are also deleterious effects from radioactive emissions from
coal-fired power plants (due to inherent radioactive elements,
mostly Uranium, and some Thorium). In addition, the AIR-QUALITY
MONITORING STATIONS are IMPROPERLY LOCATED (i.e., NOT downwind of
mine operations and in proximity to affected residents and their
livestock), and many units are NOT IN WORKING CONDITION, often with
paper and stylus missing; air-quality monitoring stations must be
brought up to standards and relocated as supported by the EPA's
Multi-Media/Multi-Agency Task Force. NO EFFECTIVE AIR MITIGATION
procedures exist in the Permit Application Package (PAP).
* WATER DEPLETION AND CONTAMINATION: Surface and ground water are
drying up and being polluted as a result of mining operations,
including, but not limited to: unlined water impoundments and
sedimentation ponds, topsoil removal and stockpiling, coal removal,
toxic runoff from unlined coal stock piles, inadequate and
inappropriate contouring of restored areas, contaminated ponds and
soil in the reclaimed areas (and generally throughout and around
the Kayenta mine area), and the pumping out of the ground of over
one billion gallons a year of clean fresh water in order to run
the coal-slurry line, thus seriously depleting the aquifier and
in turn causing many of the local springs and wells to run dry.
* Residents in the area report SICKNESS IN many SHEEP, with unusual
symptoms often leading to eventual death, indicating the DISEASE
commonly called "blind staggers," which is caused by SELENIUM
POISONING. Lambs are often born deformed or dead. Selenium, which
accumulates in living tissues, has been extablished as a volatile
poison and is extremely toxic at high levels. The local sheep
ingest Se-accumulating forage plants; concentration levels are
increasing over time, and more sheep are becoming ill and dying.
Peer-reviewed scientific studies have demonstrated the onset of
"blind staggers" in animals (horses, sheep, etc.) that eat only a
limited number of Se-accumulator plants over a period of weeks or
months. Selenium is highly enriched in coal of the Western US,
and it is extremely probable that PWCC and the Kayenta mine are
the source of this DEADLY SELENIUM CONTAMINATION; yet OSM (when
approached with this information) has declined to investigate,
citing budgetary constraints. Selenium contamination THREATENS
the very LIVES of the `traditional people' in the area of the
Kayenta mine, since they rely on sheep for their diet and their
livelihood; failure to investigate and/or stop this violation of
the Law clearly amounts to CULTURAL DISCRIMINATION (which is a
violation of MORE laws) leading to eventual government-sponsored
genocide!
* Because of the operations of the PWCC and the Kayenta mine, certain
MEDICINAL PLANTS found ONLY on Black Mesa are being ERADICATED,
thereby destroying and ENDANGERING residents' ability to conduct
SPIRITUAL and healing CEREMONIES. Besides violating environmental
laws (including the intent and SPIRIT of the Endangered Species
Act), this denies the personal and collective civil rights of the
people AND interferes with their right to freely practice their
religion, also a form of cultural and RELIGIOUS DISCRIMINATION!
* Native grasslands have been weakened and eroded, due to the Kayenta
mine operations [reasons cited above, and more], and the entire
native ECOSYSTEM has already been stressed and SEVERELY DAMAGED.
Due to the ongoing physical changes of the landscape into bare and
shadeless, shelterless rolling grasslands (as per the `reclamation
plan' stated in the original 1990 Black Mesa-Kayenta Mine Permit
Application), traditional land-use patterns have been disrupted and
inhospitable and lifeless lands created. Since THE LAND ITSELF IS
SACRED to the traditional people living thereon, this is ALSO a
denial of religious liberties and another form of CULTURAL AND
RELIGIOUS REPRESSION.
* Peabody Western Coal Company was given a special exemption to dig up
the GRAVES of Native People in the area! This is another violation
of the civil rights and religious liberties of the people (both the
living and the dead); the DESTRUCTION OF OFFERING PLACES AND OF
SACRED SITES is a violation of the Navajo Grave Protection Act and
the American Grave Protection Act, and the mining itself `in
fragile lands with important cultural systems' is prohibited under
SMCRA. Furthermore, bodies of the people's ancestors are removed
and shipped off to a college administering a program established
by PWCC, violating the Native American Graves Protection and
Repatriation Act (November, 1990), which provides the legal means
to return ancestral remains and burial objects.
The TERMS AND CONDITIONS of the existing PERMIT and of all applicable FEDERAL
LAWS--including SMCRA, Clean Water Act, Safe Drinking Water Act, Clean Air
Act, National Environmental Policy Act, Executive Order 12898 (February, 1994:
`Environmental Justice'), and more--are NOT BEING SATISFACTORILY MET. Thus, a
multitude of ILLEGAL and/or IMPROPER PRACTICES by PWCC at and near its Kayenta
mine places PWCC and the Kayenta mine in `MASSIVE NONCOMPLIANCE'; according to
Law, that is SUFFICIENT GROUNDS not only for NONRENEWAL of the Permit but also
for IMMEDIATE CESSATION OF ALL MINING ACTIVITIES by PWCC at the Kayenta mine
and/or on Black Mesa at least until such time as ALL legal compliance(s)
(including ALL necessary PERMITS) might be achieved. These violations of
Permit terms and conditions, of SMCRA, and of other applicable Federal laws
and regulations include, but are not limited to, the following:
* DANGEROUS and often ILLEGAL BLASTING, including FORBIDDEN NIGHT
BLASTING (of which I have direct experience), compounded by the
FAILURE TO ISSUE BLASTING ALERTS (to all citizens who live within
1/2 mile of the permit area, the legal boundarites of the mine) as
required by 30 CFR $ 816.62, and thus the COMPLETE LACK OF ADVANCE
NOTICE OF BLASTS and of warning of pending blasts, AND the total
ABSENCE of any preblast SURVEYS and of relief and/or MITIGATION for
BLASTING DAMAGE TO residents' HOMES and property [required by law,
incl. Executive Order 12898, and more; AND by the mining lease!].
PEABODY (PWCC) MUST COMPENSATE ADVERSELY-AFFECTED LOCAL RESIDENTS.
[According to the terms of its mining lease, PWCC must compensate
adversely-affected residents of the area in which its mining
operations occur.]
* UNPERMITTED and thus ILLEGAL TRANSPORTATION SYSTEMS, including access
roads, RAILROADS, and COAL-SLURRY PIPELINES [NO regular PERMITS
(deemed necessary in November 1993 by an OSM inspector from the
Albuquerque Field Office) have EVER been issued]. Specifically,
the coal-slurry line, operating without a valid permit as a trans-
portation system, as required by law [or ANY required permit], is
in GROSS VIOLATION of Federal Law, including (but not necessarily
limited to) SMCRA, Clean Water Act, Safe Drinking Water Act, and
numerous Federal transportation and transportation-system laws, as
well as the original permit terms and conditions.
* Improper, ILLEGAL, and abusive STRIP-MINING PRACTICES resulting from
NONENFORCEMENT [by OSM and the Federal government (Dept. of the
Interior, Dept. of Justice, EPA, Bureau of Indian Affairs, etc.)]
of 25 CFR and 30 CFR STRIP-MINING REGULATIONS. This includes, but
is not limited to: IMPROPER surface-land STRIPPING, 8-10 years
beyond where current mining activities are taking place--outside
the scope of the existing permit, and even of the proposed renewed
and extended permit--thereby destroying plants and animals, sacred
sites, and the livelihood of nearby residents; IMPROPER TOPSOIL
removal and storage, including the STOCKPILING of topsoil for
lengthy periods, which has caused deterioration and erosion and
air pollution [as acknowledged in SMCRA, Section 515 (b)(5) & (6),
which states that "stockpiling of topsoil materials for lengthy
periods creates deterioration"]; improper coal removal and UNLINED
COAL STOCK PILES, including the old coal-storage piles BY THE
ENGINEERING BUILDINGS at the Kayenta mine which hold water from
rain and thereby CAUSE TOXIC RUNOFF; UNLINED water impoundments
and SEDIMENTATION PONDS, which contribute hazardous wastes to the
already-contaminated local water table [as detailed above]; the
IMPROPERLY-LOCATED and often NONFUNCTIONING AIR-MONITORING STATIONS
[as detailed above]; failure to address possible Mg contamination
resulting from the use of MgCl as a dust suppressant [See above.
There is no data on the long-term effects on the health of people
and animals from the use of MgCl.]; AND discrimination, repression,
and REPRISALS against persons exercising their free-speech rights
concerning the Kayenta mine and/or PWCC, and the HARASSMENT AND
INTIMIDATION of the RESIDENTS by PWCC and mine officials and agents
thereof, especially BY WACKENHUT SECURITY hired by PWCC.
* FAILURE TO CONTAIN, CONTROL, OR ADDRESS the pollution, hazardous
materials, and TOXIC CONTAMINATION produced by the Kayenta mine,
including the prevalent coal-dust particulate pollution which is
smothering the vegetation and making the sheep and people sick,
and especially the massive and widespread dangerous and deadly
SELENIUM POISONING and heavy-metal contamination of the land, the
water, the vegetation, and the livestock, which has created an
imminent health hazard to local residents and the livestock upon
which they depend [see above]. [SMCRA clearly states that a mine
operator may NOT conduct operations in a manner that would pose an
imminent hazard to public health.]
If the illegal and environmentally-hazardous operations at PWCC's Kayenta mine
continue, the situation at Black Mesa will only get worse, for the People and
their livestock as well as for the entire ecosystem. Further mining at the
Kayenta mine by PWCC would use up and/or contaminate all the remaining lands
and waters of the Black Mesa area, creating a "National Sacrifice Area" that
the U.S. government admits would be permanently uninhabitable. Furthermore,
reclamation plans are disgracefully insufficient and inadequate. Since the
operator (PWCC) IS IN GROSS NONCOMPLIANCE with SMCRA and the regulatory
program on the existing permit area (as well as in violation of Federal Law),
AND the TOXIC CONTAMINATION and environmental degradation WILL WORSEN WITH
TIME unless/until the illegal and abusive strip-mining practices are halted
by strict enforcement of 25 CFR and 30 CFR strip-mining regulations, it can
be fairly stated that "the OPERATOR'S continuing ABILITY TO COMPLY with the
Act and the regulatory program on existing permit areas" [30 CFR $ 774.15 (c)
(1)(iii)]--ALREADY SUBSTANTIALLY JEOPARDIZED--would be further exacerbated
by permit renewal. Thus, the REQUESTED PERMIT RENEWAL--by omission (of any
rectification or correction of known dangers and/or demonstrated damages that
ensue from the operation of the Kayenta mine by PWCC)--WOULD even further
"SUBSTANTIALLY JEOPARDIZE" PWCC'S "CONTINUING ABILITY TO COMPLY." [Ibid.]
Since the operator has NOT provided evidence of the posting of a required
RECLAMATION PERFORMANCE BOND, nor is there any evidence that such bond will
"continue in full force and effect" [op. cit., (c)(1)(v)], the REGULATORY
PROGRAM (already being totally thwarted) would be completely and illegally
subverted by approval of PWCC's Kayenta mine Permit Renewal Application.
THAT would be totally UNACCEPTABLE! Whereas, since PWCC has a record of
operating WITHOUT necessary PERMITS and IN VIOLATION of Federal regulations
and of the terms and conditions of the existing Permit (AZ0001C), I hereby
SUBMIT AND DEMAND that PWCC be REQUIRED to post ADDITIONAL cash performance
bonds for EACH previously-unlicensed `transportation facility' AND for the
extensive renovation/renewal which will ultimately undoubtedly be necessary
for large areas of LANDS AND WATERS POLLUTED AND/OR CONTAMINATED by hazardous
wastes and/or toxic materials produced by the Kayenta mine--AS WELL AS THE
STILL-NOT-POSTED required PERFORMANCE BOND FOR RECLAMATION--BEFORE ANY PERMIT
BE APPROVED OR RENEWED, and furthermore, that a CESSATION ORDER and ALL of the
appropriate CITATIONS for existing uncorrected violations be issued by OSM to
PWCC and the Kayenta mine, EFFECTIVE IMMEDIATELY AND UNTIL SUCH TIME AS PWCC
and THE KAYENTA MINE be brought into FULL COMPLIANCE with SMCRA and ALL Permit
terms and conditions AND ALL applicable FEDERAL LAWS. {SMCRA clearly states
that a cessation order MUST BE ISSUED by the OSM: 1) when a condition or
practice presents IMMINENT DANGER TO THE HEALTH AND SAFETY OF THE PUBLIC; or
2) when a condition or practice CAUSES OR HAS THE POTENTIAL TO CAUSE [which
is, I believe, the obvious case!] SIGNIFICANT IMMINENT ENVIRONMENTAL HARM.}
Given that PWCC has NOT posted the required performance bond for reclamation
NOR obtained required transportation-system permits but has INSTEAD operated
WITHOUT those permits AND in fact in an unsafe and reckless manner, there is
NO assurance that appropriate and satisfactory required RECLAMATION will EVER
be completed. [30 CFR $ 774.15 (c)(1): (i), (ii), (iii), and (v)] The plan
for reclamation existent in the present and proposed Permit (Federal Permit
AZ0001C) is WOEFULLY INADEQUATE, amounting to cultural and Spiritual genocide,
since there will be NO PLACE FOR PEOPLE on the land, designed exclusively for
wildlife [See p. IV-69 in: Proposed Permit Application, Black Mesa-Kayenta
Mine, Navajo and Hopi Indian Reservations, Arizona. Volumes I & 2. Final
Environmental Impact Statement OSM-EIS-25. U.S. Dept. of the Interior. Office
of Surface Mining Reclamation and Enforcement. May, 1990.], AND since
furthermore there will be NO `LAND' LEFT--as the People have known it--in
effect destroying the religion, the culture, and the very lives of the Dine'
People living there (and, to some extent, of ALL the Dine'/Navajo, since THEY
ALL HOLD THAT LAND SACRED!). [For example, see the text of "Natural Law and
Navajo Religion/Way of Life" (by Roman Bitsuie, at the request of the Dine'
families residing on the HPL of the JUA; dated 4/21/95), part of the document
"Navajo-Hopi `Land Dispute' Update: April 21, 1995" that is available as "RE:
Holy Wind and Natural Law" from: Navajo Nation <navajonation@igc.apc.org>
(Subj: HOLY WIND & NATURAL LAW/DINE').] After PWCC `reclamation' the unique
desert landscape will be changed from "abrupt landforms" to "gently rolling
hills and swales," [Op. cit., p. IV-63] and the beautiful and mysterious
terrain of 2/3 pinyon-juniper and 1/3 sagebrush (with > 2% saltbrush) [Op.
cit., p. III-25] will become reclaimed grassland with `artificial raptor
perches' [Op. cit., p. IV-63] and reconstructed rock and brush piles [op.
cit., p. IV-65]; carefully constructed wildlife corridors including special
plantings of pinyon and juniper trees will NOT be FOR USE BY HUMANS because
"harvesting of the trees or pinyon nuts could be detrimental to the wildlife
for which the habitat was designed." [Op. cit., p. IV-69] I hereby demand,
for the Dine' People living in the JUA, a REAL adequate and SATISFACTORY
RECLAMATION AND RESTORATION of the Land to its Natural State--FREE OF TOXIC
CONNTAMINATION and other adverse mining-operation effects--for the use of
traditional Peoples and their long-established traditional uses.
In summary, PWCC has been conducting extremely-destructive mining operations
in the Black Mesa region of the Navajo and Hopi reservation in northern
Arizona, specifically at the Kayenta mine whose permit-renewal application is
to be considered. Illegal blasting, unlicensed transportation systems (incl.
railroads, pipelines, & access roads], depletion and contamination of ground
water by the unlicensed/illegal coal-slurry line, and other ILLEGAL abusive
STRIP-MINING PRACTICES, including the failure to contain, control, or address
the toxic pollution and widespread selenium and heavy-metal contamination of
the land, air and water, HAVE CREATED AN IMMINENT HEALTH HAZARD TO THE LOCAL
RESIDENTS AND THE LIVESTOCK UPON WHICH THEY DEPEND. Because of this GROSS
NEGLIGENCE AND MASSIVE NONCOMPLIANCE by PWCC and the Kayenta mine, PWCC's
existing Permit (Federal Permit AZ0001C) and "the RIGHT OF SUCCESSIVE RENEWAL"
which obtains from it ARE THUS INVALIDATED.
OSM has refused to enforce the environmental laws that regulate strip-mining
operations. IT IS IMPERATIVE THAT PEABODY ADHERE TO THE SURFACE MINING COAL
RECLAMATION ACT (SMCRA) AND THAT ALL APPLICABLE REGULATORY LAWS BE ENFORCED.
In all fairness to the People involved and to `environmental justice' AND in
required COMPLIANCE with SMCRA and ALL existing FEDERAL LAWS AND REGULATIONS,
as well as the `Law of the Land' AND the higher "NATURAL LAW" OF GOD (from
which all human laws and societies derive), the OFFICE OF SURFACE MINING (OSM)
MUST DENY APPROVAL OF--or at least BLOCK and TABLE any decision on--Peabody
Western Coal Company's KAYENTA MINE PERMIT-RENEWAL APPLICATION (FEDERAL PERMIT
AZ0001C). Furthermore, because of the flagrant and OVERWHELMING NONCOMPLIANCE
by PWCC and the Kayenta mine WITH "THE TERMS AND CONDITIONS OF THE EXISTING
PERMIT" and WITH the SURFACE MINING CONTROL AND RECLAMATION ACT (SMCRA) OF
1977 and WITH OTHER RELEVANT FEDERAL LAWS (including the Clean Water Act, the
Safe Drinking Water Act, the Clean Air Act, the National Environmental Policy
Act, and Executive Order 12898 on `Environmental Justice'), there is adequate
and more-than-SUFFICIENT GROUNDS not only for NONRENEWAL OF THE PERMIT, but
also for the ISSUANCE by OSM of a `CESSATION ORDER' REQUIRING the Kayenta mine
and its OPERATOR PWCC to immediately "CEASE AND DESIST" ALL MINING ACTIVITIES
by Kayenta mine and/or by Peabody Western Coal Company AT THE KAYENTA MINE
AND/OR ON BLACK MESA.
Thank you for your attention and prudent action.
Sincerely,
Julian W. James = <jjames@athena.mit.edu>
35 Litchfield St., Apt. # 2
Brighton, MA 02135
cc: Dine' Alliance, POB 810, Pinon, AZ 86510
`hard copy'; AND e-mail: c/o <piersen@PrimeNet.com>
cc: Navajo Nation President Albert Hale, Box 9000, Window Rock, AZ 86515
e-mail: c/o Navajo Nation <navajonation@igc.apc.org>
cc: President of the United States William Jefferson Clinton, the White House
e-mail: <president@whitehouse.gov>
cc: Vice-President Albert Gore, Jr., % the White House
e-mail: <vice-president@whitehouse>
cc: Senators Kennedy, Bingaman, Daschle, Boxer, Simon, and Harkin
(all by e-mail)
cc: Big Mountain Selenium Project, c/o SEAC Southwest, PO Box 1891, Tucson,
AZ 85702-1891
e-mail: <seac-sw@indirect.com> and <seac-sw@bud.indirect.com>