Dineh Alliance vs. Office of Surface Mining Reclamation and Enforcement
(OSM) and statutory party Peabody Western Coal Company (PWCC), U.S.
District Court House, Flagstaff, AZ.
Administrative Law Court Hearing, Appeal of Peabody's Kayenta mine
permit renewal.
Many of your e-mailed and mailed public comments on Peabody's Kayenta
mine permit review are part of OSM's decision document, having been
received prior to June 10, 1995 Informal Conference, Forest Lake Chapter
House, Navajo Nation. They are also part of the record before the
Administrative Law Court. We received comments from around the world.
Many thanks.
LEGAL VICTORY AT HAND
Black Mesa residents were impressed by Administrative Law Judge Ramon M.
Child, who presided in the hearing on Peabody Coal Company's Kayenta
mine permit. The Dineh feel the judge really listened to them as they
took the witness stand and presented their testimonies. The hearing
lasted for five days, going each day to 8 or 9 pm, with an unusual
Saturday session to conclude the proceedings. The judge on numerous
occasions lent his own firepower to Dineh lay counsel Marsha Monestersky
and lay co-counsel and translator Louise Benally to ask questions and
continue investigation of particular issues.
When the Peabody attorney, Mr. Bird, asked the judge to throw out our
case alleging a lack of prima facie evidence, Judge Child replied "No,
Mr. Bird, I feel that there is evidence. But Mr. Bird, you'd better
prepare your case, as I just might shut Peabody down". The judge heard
testimonies by Black Mesa residents about how the Navajo Nation has
ignored and neglected them. And this was confirmed by Marvin J. Smith,
Director, Division of Natural Resources, Navajo Nation, who under oath
stated he had not conducted any site visits to homes or investigated any
environmental concerns in the five years he served as director. The
judge opened the court on Saturday by asking for Marvin J. Smith to
appear from the day before. When the Peabody attorney stated that Smith
was no longer there, Judge Child stated "I never excused Marvin J.
Smith. That's too bad. I did not sleep last night, thinking about
Marvin J. Smith and the Navajo Nation. And I want to tell Marvin J.
Smith and the Navajo Nation what I think of them. I think the Navajo
Nation is making profits while the residents of Black Mesa are
suffering".
At the close of the hearing, the residents declared victory, as they
spoke in Dineh, with translation by community members. "More has
happened in the last five days than has happened in the last twenty
years". It was because a judge had finally listened to them.
Dine Alliance requests: that by law the OSM decision to issue Peabody's
Kayenta mining permit be set aside, and that a temporary restraining
order be immediately issued against Peabody Coal Company in any further
mining operations on Black Mesa.
WHY THE KAYENTA MINING PERMIT SHOULD BE REVOKED
Lawyers representing Peabody, a subsidiary of Hanson Holding Company,
London, England, relying on teams of lawyers from Washington, D.C., and
with considerable assistance by OSM, must not be allowed to keep the
mine operating, as it causes imminent harm to the people, land, air, and
water resources on Black Mesa, Navajo Nation, Arizona.
OSM legally erred in renewing the Kayenta Mine permit. Issuance of this
permit violates all applicable statutes, and unless the Kayenta Mine
permit is rescinded, it constitutes criminal activity by OSM and a
violation of residents civil, human and constitutional rights, as well
as unethical behavior. We demand equal enforcement and applicability of
all state and federal laws regarding adequate hearing notice and
enforcement practices on native lands.
No permit can be issued without proper and legally valid reclamation
bonds, including, but not limited to slurry pipelines and railroads. It
must also be demonstrated that OSM inspectors are given the freedom to
perform their job and enforce mining regulations before permit issuance,
until proper air quality monitoring is done for
dust/particulates/selenium occurs, and until all allegations set forth
by the Dineh Alliance have been adequately investigated, and all
concerns adequately resolved.
OUR STRUGGLE - WHERE WE ARE NOW
The court has heard the voice of Black Mesa region of the Navajo Nation.
For five days traditional elders and residents, with no change of
clothes, eating one meal a day, and without legal representation,
presented their case. Some residents slept in their cars and camped out
in the cold and rain.
Peabody Coal Company is desperate. The Kayenta mine permit renewal is
illegal. Twelve (12) outstanding violations are still unresolved. A
new, highly controversial coal mining method (Highwall Side Overburden
Mining) is being considered without the required Environmental Impact
Statement (EIS). The unpermitted railroad continues to operate in
violation of applicable federal regulations, with no reclamation bond
money posted for it or the Kayenta mine site. The unpermitted and
illegal slurry pipeline continues to pump over 1.3 billion gallons of
pristine water annually. The unpermitted and illegal slurry pipeline
continues to operate under Administrative Block, pending no continued
use of the Navajo aquifer by the Hopi Tribal Council, past their permit
expiration. Hopi Tribal Council Studies documents have determined that
at the present rate of usage, water sources in Tuba City and surrounding
communities will run dry in fifteen years. The Navajo aquifer is a sole
source aquifer for the Hopi and Navajo. Burial sites of the Dineh
people continue to be desecrated and human remains bulldozed by Peabody.
The U.S. Office of Surface Mining Reclamation and Enforcement continues
to get awards for doing nothing to resolve Citizens Complaints yet it
could not determine the status of current violations, (all are under
appeal),under oath answering, "I don't know" to specific questions. It
seems OSMRE exists to keep non-compliant coal companies afloat with the
creation of it's "Green File", a dual filing system. Trust
Responsibility does not apply to the Dineh people on Black Mesa, AZ.
Environmental injustice is a reality.
At the close of day three, while still in the courtroom, Jon Johnson,
senior attorney for the Solicitor's Office, Denver, stated "I believe
it's appropriate at this time for C-4's and automatic weapons". It had
a chilling effect on the Black Mesa residents who brought the matter to
the judge immediately. A police report was filed and a U.S. Marshall
was posted in the courtroom for the remainder of the hearing.
In reference to testimony of illnesses in livestock and human health,
Administrative Law Judge Ramon Child asked OSMRE "Do you mean that you
have allowed mining to go on in face of it?" OSMRE replied "Yes".
A Hopi elder told Judge Child "There is no land dispute between
traditional Hopi and Dineh people." John S. Boyden, who was an Attorney
for PWCC and the Hopi Trial Council concurrently, negotiated the
original leases between both parties illegally. The traditional Dineh
vow to never surrender to the rape and desecration of Mother Earth
caused by PWCC on their ancestral lands.
We believe we have a chance to win in this court and in any other court.
We have accumulated an impressive amount of evidence against both
Peabody Coal Company and Office of Surface Mining (OSM), filed over 300
Citizens Complaints since October, 1993, and have Notice of Violations
(NOV's) cited against Peabody for these complaints. OSM test results
show toxic contamination in springs and wells.
Excerpts from the Denver OSM Hydrology report, dated April 17, 1995,
submitted to the court states: "OSM Water Quality Reports identify the
likely source of recharge to the Benally spring as the Black Mesa
Pipeline Facility". Yet no monitoring wells are located in close
proximity to the Black Mesa pipeline operations. "Infiltration of
process water at the Black Mesa pipeline facilities area has been
suggested as a source of the recharge to the Benally spring". This
facility pumps over 1.3 billion gallons of pristine Navajo aquifer each
year, with over 26 billion gallons already pumped, travels over 275
miles, is illegal, unpermitted, leaking, and no environmental impact was
ever done. Two unlined coal stockpiles at this location since about
1970, are identified as a source of high sulfate and acidity to
infiltration in the area, with high concentrations of dissolved
manganese and boron noted in water quality data". Yet the Benally
Springs not identified during the permitting process and therefore, no
baseline information is available. "OSM water test results confirm
several chemical parameters that are high and exceed Arizona water
quality standards including excesses in magnesium, sodium, nitrate,
manganese, boron". The Benally Spring was used as a livestock watering
source for 25 years until OSM notified complainants not to have the
livestock drink the water". It is recommended that certain areas be
checked, yet no field monitoring was done. Peabody's Black Mesa/Kayenta
mining operations are joined and covers 103 square miles.
During the EIS process the EPA voiced class III objections (the
strongest) against the use of a slurry pipeline, noting hydrological
concerns, including drawdown effects on the Navajo aquifer. Yet, no
action was taken. The EPA wrote weak permits for Peabody's Black
Mesa/Kayenta mine. WE DEMAND the EPA write enforceable permits on
Peabody's Black Mesa/Kayenta mine.
WE NEED ENFORCEABLE LIMITS SET FOR TOXIC CHEMICALS in NPDES permits,
including, but not limited to arsenic, magnesium, manganese, nitrates,
sulfates, selenium and boron. These standards need to be promulgated,
whether the Navajo Nation EPA promulgates them not or not. These
standards have never been set in the past by the U.S. EPA, which has by
their action/lack of action demonstrated an egregious selling out of
native lands. WE NEED PERMITS WITH ENFORCEABLE STANDARDS set so that
monitoring can take place. Without monitoring enforcement is
impossible.
WE NEED WELL AND SPRING MONITORING at specific locations to monitor
aquifer diminution and contamination. WE NEED MONITORING BY THE BLACK
MESA PIPELINE FACILITIES and by the coal stockpiles to ensure no
leachades. WE NEED TESTING to occur where citizens have complained
about contaminated water.
Recently we were awarded an environmental justice grant from U.S. EPA
to conduct an Environmental Health Assessment Survey in the mine permit
area, and establish a cellular/radio phone communications system. We
hope to establish Internet access in Big Mountain.
HOW YOU CAN HELP
An Administrative Law Court is a difficult court to win in. Issues that
we don't win in this court, we hope to bring to Federal District Court,
which gives us a wider latitude to conduct discovery, obtain
depositions, supeona witnesses, etc.
WE NEED YOUR SUPPORT with prayers, by sending e-mail, faxes, letters to
the U.S. EPA, who together with OSM has jurisdiction and trust
responsibility for Native lands. EPA must exercise their jurisdiction,
investigate our concerns, and address the inadequacies in the extremely
weak permits they issued for Peabody's Black Mesa/Kayenta mine. We need
enforceable limits for toxins written into the permit.
WE NEED FUNDS to pay for legal expenses, court transcripts, xeroxing,
and faxes. To obtain phone/fax/e-mail access in a remote area, we need
an IBM compatible 486 computer or laptop computer, high speed modem,
satellite dish, and technical help to advise us get the right equipment.
We have an office, and need word processing software for donated IBM
compatible 386 and 286, so local residents can become trained in the use
of computers.
Because residents live a traditional subsistence lifestyle, sheep
herding and weaving, WE NEED MONEY for travel for the elders and
residents to attend court hearings, gas and food while on travel.
Tax deductible contributions can be sent to Dineh Alliance's fiscal
agent, Don't Waste Arizona, Inc. Please address checks: Don't Waste
Arizona Inc., on memo portion of check note: for Black Mesa Legal Fund.
Don't Waste Arizona, Inc., 6205 S. 12th Street, Phoenix, AZ 85040.
Please write Dineh Alliance, Box 810, Pinon, AZ 86510 for more
information, newspaper articles, and if you want to help.
Thank you for your support, please spread the word,
for peace and environmental justice,
DINE ALLIANCE
chose one:
cc: e-mail: Dine' Alliance c/o dineh@primenet.com (new address!)
cc: fax: ECCOSKY 520-749-0587
cc: mail: Louise Benally, President
Dineh Alliance
Box 810
Pinon, AZ 86510
P.S. Day 2 Judge Child told the court that he had several faxes
awaiting for him at the hotel prior to the start of the hearing. The
judge then asked the court how people in London knew. Jon Johnson,
Senior Attorney, Solicitor's Office, Denver, CO, replied in a low somber
voice: "Internet, your Honor," after which Dineh Alliance replied "It
was smoke signals, your Honor." The court erupted in laughter.
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SAMPLE SUPPORT LETTER, Please send e-mail, fax, mail to:
[The only e-mail address we have for certain is that of Elizabeth Bell;
however, the same format may be applicable to the others. We haven't
had time to make sure, though. Please e-mail the correct addresses to
us if you know they work!]
Ms. Carol Browner, Administrator
United States Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Ms. Carolyn Douglas, Project Manager
U.S. Environmental Protection Agency
Region IX (E-4)
75 Hawthorne Street
San Francisco, CA 94105-3901
Ms. Elizabeth Bell
Office of Environmental Justice
U.S. Environmental Protection Agency
401 M Street S.W. (3103)
Washington, DC 20460
e-mail: Bell.Elizabeth@EPAMAIL.EPA.GOV
Ms. Lori Lewis
Office of Environmental Justice
U.S. Environmental Protection Agency
Region IX (E-4)
75 Hawthorne Street
San Francisco, CA 94105-3901
Dear Administrator Browner, Ms. Douglas, Ms. Bell, Ms. Lewis,
The Black Mesa issue is the first case of environmental justice brought
by Native American people to the executive branch of the United States
government since President Clinton issued Executive Order 12898 on
Environmental Justice, February 11, 1994. This Executive Order directs
all federal agencies to focus on protecting environmental and human
health in low-income and minority communities and to give the residents
access to public information and the chance to take part in decisions
about their environment and health. And while Executive Order 12898 is
not legally binding and is not enforceable, it indicates a recognition
and intent by the U.S. government to resolve problems with
disproportionate contamination on lands belonging to people of color.
The United States Environmental Protection Agency (EPA), every federal
agency and the federal government must fulfill their environmental and
trust responsibility to the residents of Black Mesa. These people are
under siege. Protection of the environment is a fundamental human
right, not a civil right.
The United States Environmental Protection Agency (EPA), during the
Environmental Impact Statement (EIS) process, voiced Class III
objections (the strongest), against use of a slurry pipeline, noting
hydrological concerns, including drawdown effects on the Navajo aquifer.
Yet, no action was taken.
The U.S. EPA wrote weak permits for Peabody's Black Mesa/Kayenta mine.
We demand that the U.S. EPA write enforceable permits on Peabody Coal
Company's Black mesa/Kayenta mine.
We need enforceable limits set for toxic chemicals in NPDES permits,
including, but not limited to, arsenic, magnesium, manganese, nitrates,
sulfates, selenium, and boron.
These standards need to be promulgated, whether Navajo Nation EPA
promulgates them or not. These standards have never been set in the
past by the EPA. The U.S. EPA has by their action/lack of action
demonstrated a egregious selling out of Native lands. We need permits
with enforceable standards set so that monitoring can take place.
Without monitoring, enforcement is impossible.
We also need well and spring monitoring at specified locations to
monitor aquifer diminution and contamination. We need monitoring by the
Black Mesa pipeline facilities and by the coal stockpiles to ensure no
leachades. We need testing to occur where Citizens have complained
about contaminated water.
EPA's Multi-Media/Multi-Agency Task Force, while a historic precedent by
which federal and tribal agencies came together to investigate
environmental concerns, produced a report, with many of the serious
issues still under investigation, and no follow-up conducted. EPA has
tested only the deep N-aquifer water, not the surrounding surface or
near surface water that are impacting livestock. This Task Force was
specifically asked by Black Mesa residents to test this water. To date
nothing has happened, and many Citizens Complaints remain unresolved
years later.
We understand that a Superfund investigation has begun of Peabody,
called by U.S. EPA, Region IX. We hope that all chemical parameters
identified and available are included in Superfund investigation
parameters. Local residents must be able to effectively participate in
all investigations conducted to ensure the proper sites and specific
concerns of Black Mesa area residents are adequately addressed.
During the Administrative hearing the Judge invited Dineh Alliance to
Intervene on a case before his court. The issue is excessive stripping
distances. Peabody has been stripping the land 8-10 years in advance of
mining activities.
Due to substantial air quality concerns resulting from mining operations
and excessive stripping distances, it is imperative that air quality
monitoring stations at both the Black Mesa and Kayenta mines be
relocated to the valleys, near residents' homes and by the coal stock
piles. Air quality monitoring stations must be upgraded to monitor for
particulates in addition to coal dust, and when possible continuous
monitoring should take place. Monitors should be well maintained and
checked frequently for effectiveness, considering air current patterns,
seasonal variations, and should be down-wind and not up-wind from mining
operations. Please ensure that Black Mesa residents are allowed the
right to participate in locations, sites chosen. They are directly
affected.
Please exercise your trust responsibility for the residents of Black
Mesa living in the coal fields.
Many prayers, for peace and environmental justice,
[please include name and snail-mail address]