Interior's OSM Sued For Withholding Peabody Coal Records
By Kathy Helms
WINDOW ROCK – Several Native American and conservation groups have filed suit in federal court in Denver under the Freedom of Information Act against the Office of Surface Mining, Reclamation and Enforcement for withholding records related to renewal of Peabody Energy Co.’s permit for the Kayenta Mine.
To date, the U.S. Department of the Interior's Office of Surface Mining has refused to publicly release records relating to Peabody’s coal-mining operations, including a copy of a current, valid operating permit, according to Brad Bartlett, managing attorney for the Energy Minerals Law Center in Durango.
Bartlett and Travis Stills of the law center are representing plaintiffs Black Mesa Water Coalition, the Center for Biological Diversity, Dine Citizens Against Ruining Our Environment (Dine CARE), Sierra Club and To’ Nizhoni Ani.
“OSM is going through a permit renewal process for the Kayenta Mine, which serves the Navajo Generating Station. As part of that process, what citizens with the organizations did was request a copy of the complete renewal permit that was under consideration. That would make sense. OSM is about to renew this operating permit, they should at least be making it public,” Bartlett said.
The request was submitted April 4 under the Freedom of Information Act, however, the agency at first denied the request and the groups appealed administratively. The public comment period ended June 4 without OSM releasing the requested records, including a copy of Peabody's operating permit.
“We got a favorable decision from the appeals office, but then the agency proceeded to not release the permit. In fact, the agency said it would take them about 18 months before they could actually release the permit, he said. “So, it's not clear to me what the hold-up is and why the agency appears to be playing a shell game with permitting documents that should be readily available.” The group filed suit Sept. 30 in U.S. District Court.
There was no immediate response from the Solicitor's Office.
“For decades, OSM has quietly issued permits to Peabody in a way that has thwarted meaningful public involvement and community understanding of Peabody’s mine operations,” said Nikke Alex, executive director of Black Mesa Water Coalition. “OSM’s permitting actions have a direct and irreparable impact on our community. These records must be released to the public.”
Peabody runs the 40,000-acre Kayenta Mine and adjacent 18,000-acre Black Mesa Mine on Navajo Nation and Hopi tribal lands. Using Navajo aquifer water, coal from Black Mesa Mine was slurried via a 273-mile pipeline to the Mohave Generating Station from 1970 to 2005, when Mohave closed. The Kayenta mine has supplied coal to Navajo Generating Station since 1973.
Despite the lack of documentation, the groups submitted comments June 4, stating that the main question raised by a permit renewal application is whether terms and conditions of the existing permit are being met, yet due to OSM's failure to make the existing Kayenta Mine permit available, there is no way the public can reach such a determination.
“The records requested under FOIA are integral to public understanding of OSM’s renewal of Peabody’s operating permit,” Bartlett said. According to the June filing which cites water permit information from the U.S. Environmental Protection Agency, 21 of Peabody's existing 158 impoundments are not in compliance with water quality standards.
According to the proposed Northeastern Arizona Indian Water Rights Settlement, the Navajo Nation and the Hopi Tribe would release claims for injury to water quality, and Peabody would retain existing permanent mining structures and impoundments within the company's leaseholds after mining is completed. The tribes would not be allowed to challenge this, and Peabody would be allowed to relocate the impoundments as long as overall storage capacity is not increased, and build new temporary impoundments.
“By denying and delaying public release of the operating permit, OSM protects Peabody and unjustly shuts out impacted communities and the public in Peabody’s permitting process,” said Cynthia Pardo of the Sierra Club’s Plateau Group. “By filing this lawsuit with our tribal partners, we are seeking greater transparency and accountability by the Obama administration for Navajo and Hopi communities impacted by Peabody’s coal mining on Black Mesa.”
Taylor McKinnon of the Center for Biological Diversity, said, “OSM’s inability to produce a valid operating permit for Peabody raises a whole host of questions. This lawsuit will force full disclosure.”
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