Navajo Nation Resources Committee

Comments for the Record

Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010

FORGOTTEN PEOPLE

Dine' Be' Iina' na' hi! naa (Dine' Rebuilding Communities)

Don Yellowman Joe Klain

President Vice-President
Lucy Knorr
See 'y/Treasurer
CDC
P.O. Box 1661
Tuba City, AZ 86045
(928) 401-1777
forgottenpeoplecdc@gmail.com
http://www .forgottennavajopeople.org

Via Hand Delivery

To: Navajo Nation Resources Committee

Copy: President Joe Shirley, Jr., Vice President Ben Shelly and Honorable Navajo Nation
Council Members

Re: Navajo Nation Resource Committee Hearing on coal lease re-openers with
Peabody Western Coal Co., No. 14-20-060308580 and No. 14-20-0603-9910

Comments for the Official Record

From: Don Yellowman, Joe K.lain, John Benally, Leonard Benally, Glenna Begay, Rena
Babbitt Lane, Caroline Tohannie, Marsha Monestersky on behalf of Forgotten
People and their families living on or near the areas to be mined, and use the areas
to be mined for religious, aesthetic and recreational purposes

Dated: August 30, 2010

Forgotten People is herewith submitting these comments as an entity composed of persons that
are adversely affected by the Navajo Nation's plan to approve Peabody Coal Company's Black
Mesa and Kayenta mine lease re-opener in Navajo County, Arizona. Forgotten People is
summarizing the issues to be raised herein stating the opposition of Forgotten People and people
living in the locality of Peabody Western Coal Company permit area to Navajo Nation Resource
Committee approval of a lease re-opener for the Black Mesa and Kayenta mines.

1. The Forgotten People is a community-based organization that has been in existence

since 1990 under its predecessor Dine Alliance with a long history on the record of
 Navajo Nation Resources Committee
Comments for the Record
Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010
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working on policy advocacy issues for the benefit of Dine' (traditional Navajo)
communities in Arizona.

2. The Forgotten People has historically opposed Peabody Western Coal Company
mining activities because of the observed adverse impacts of those mining activities
on air quality, water quality, animal and human health, sacred sites, burial sites, and
I

cultural and historic sites. The people are suffering effects from Peabody Coal
Company's Kayenta mining
operations.

3. Surface water sources have been

poisoned or destroyed, people do
not have adequate water to drink,
are hauling their water over great
distances, and in some areas are
drinking arsenic contaminated
water.

4. Dine religion forbids strip mining

which violates basic teachings in
which the Earth is a living entity
that is being harmed. Sites that
were the sole source of sacred and
medicinal plants have been destroyed by the mine.
Black Mesa mine coal shot covering Milton Lake
and other residences in mining area I

5. Energy policies in the region are flawed because they do not take into account
historically proven techniques of land management and stewardship and exclude
directly affected peoples' (property owners) from decision-making processes and
legislation that constitutes a taking of their land and water resources.

6. The destruction of the land, air and water that accompanies the mining operations by
Peabody Coal Company's Kayenta mine is offensive to the people's religious beliefs
and directly interferes with their ability to use these lands for religious, recreational
and aesthetic purposes.

7. In considering the proposed lease re-openers, the Navajo Nation must adhere to the
minimum standards for a lease re-opener required by federal agencies for permits and
permit renewals. According to OSM Regulations for Permit Renewals, 30 CFR
774.15 states: The regulatory authority shall approve a complete and accurate
application for permit renewal, unless it fmds, in writing that-The terms and
conditions of the existing permit are not being satisfactorily met and in light of
Forgotten People's administrative lawsuit against Peabody's Kayenta mine in the
likely event Office of Surface Mining Reclamation & Enforcement will renew the
permit.

1 Statement of Peabody Coal Company employee dated May 18,2010.

 Navajo Nation Resources Committee 5

Comments for the Record

Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010

LOCAL RESIDENTS HEALTH EFFECTS AND LACK OF ACCESS TO WATER

21. Norris Nez, Hathalie, Medicine Man: In Big Mountain, Black Mesa there are many
sacred plants, sacred types of soil on the surface and these are scarce and difficult to
gather and search for because of Peabody and these places have been disturbed and
the landscape has been destroyed, lost forever. In Black Mesa area there were many
key sites where offerings were given and Peabody has destroyed these sites. As Dine
we are connected close to the land and our spiritual connection and ties to the land are
spiritually tied to where the sacred sites are located and where we are surrounded.
That is why the prayers or ceremonies that were conducted are lost. It is because the
land is destroyed. Peabody's desecration of the land has devastated our ability to heal
through ceremony and relocation has denied us new generations of Medicine Men
that would have continued to practice traditional ways, and give us a way to share our
knowledge with younger people so we can carry on the traditional Dine ways. This
knowledge and continuation has been severely impacted. We have lost those healers
and we have lost our solid foundation with the Holy People. 2

22. John Benally: I am seeing green on the ground underneath trees from acid snow and
dry snow that has no moisture in it. Sometimes I smell the blasts. I use snow melt
for drinking water and have observed red dust from coal mining operations, felt the
earth shake from Peabody blasting and growing frequency of underground fires in
Shonto and other locations due to drawdown of our sole source drinking water
aquifer. Sinkholes are forming in Black Mesa and we are seeing cracked foundations
in Relocation and Navajo Housing Authority homes and Coal Mine Canyon Chapter
House. 3

23. Leonard Benally and Marlene Horseherder: Last winter on 2 occasions we

experienced acid snow. The snow on the ground under trees turned green.

24. John Benally, Leonard Benally, Marlene Horseherder, Rena Babbitt Lane, Jerry
Lane, Zen a Lane, Caroline Tohannie: Last winter we experienced dry snow that
has no moisture in it.

25. Rena Babbitt Lane, Jerry Lane, Zen a Lane, Caroline Tohannie: We are
experiencing illnesses in our old and young sheep-asthma and a shaking disease.

26. Kee Russell and Kee Russell, Sr.: We are all concerned about water quality. We get
water by N-14 and the Peabody Coal Company public water supply by the former
public coal pile but we do not trust the water. Most of us haul drinking water from the
store to use. My father hauls water everyday for 8 children, 21 grandchildren. He is
buying water at the store for drinking. Jimmy Little doesn't trust the water and filters
2Declaration of Norris Nez, Hathalie Stating Facts on Information and Belief, Answer to Interrogatory to OSM,
12/9/09

3 Declaration of John Benally, Big Mountain, Black Mesa resident to OSM, 5/7110.
 Navajo Nation Resources Committee 6

Comments for the Record

Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010
<~

his water on the faucet. He has fainted and we are concerned because some of our
children, even our baby has respiratory problems.

27. Jimmy Manson: I was diagnosed at the hospital with Black Lung. I need a visiting
nurse and transport to the medical clinic. I need running water and electricity so I can
have an indoor bathroom and electricity to run breathing equipment that I need. We
are living here near the mine but have no electricity. Sometimes I cannot get someone
to haul water for me and this is especially hard in the winter when the dirt roads are
impassable. My wife and I live here alone and are scared that we cannot even get out
to the hospital because of the bad roads. Forgotten People learned recently, Jimmy
died.

28. Alice Tso: My husband Roy Tso died of Black Lung. When my husband, Roy Tso
was alive even though he had health problems he hauled water for drinking. I cannot
even do this. I have to haul drinking water from the public water stand. That is too far
away. I am helpless.

29. Simon Crank: I have Black Lung and I am told I will be using oxygen tanks soon.

30. Milton Lake: Peabody destroyed Sagebrush and 3 other drinking water sources we
used. They never even replaced the water supplies we lost.

31. Calvin Etsitty: There is water in a well near here, within our family residence. We
asked Peabody if they could turn it on for our livestock every day. Almost all of our
grazing area was taken by the mine, but they won't even give us water. Our pond was
destroyed. We want water by our house for our livestock and our own use. A drinking
water source for 12 extended families was destroyed and needs to be replaced. The
windmill by the Lakes was destroyed by Peabody and needs to be replaced. The
public water stand is not good for us. We want our own windmill back like we had.
The public water stand does not help our animals. We never got electricity or water as
Peabody promised. We are denied even as we see Peabody using our water to water
down the roads and we and our livestock cannot use it. Forgotten People learned
recently, Calvin died.

32. Glenna Begay: In my customary use area, Peabody destroyed sacred Sagebrush and
Sweetwater, drinking water sources planted by Medicine people. The desecration is
marked by Archeologists stakes. In the summer of 1998, Peabody installed a
sediment pond on my land for contaminated runoff a few yards away from sacred
Sagebrush Spring planted there by Medicine people. This spring contains a year-
round drinking water resource. Bitter Spring in the area, containing a source of water
for our animals was bulldozed and Peabody installed a water pump there for the
slurry line and a dam to flush the water pipeline. Living here, watching the mining, I
am observing them. Anything in their way they will destroy. I am concerned because
they are coming towards me and they will do what they did across from here. I don't
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Navajo Nation Resources Committee
Comments for the Record
Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010

want this. We have made many offerings throughout this area; a lot of Medicine Men
did ceremonials. 4

33. Alice and Kee Z. Begay: We live close to the mine but we have no running water or
electricity. Peabody took away our spring and built a water impoundment dam where
we used to get water for our livestock. It is not fenced in and is contaminated from
flushing out the coal slurry pipeline. Our other main source of water, a windmill
needed repair then was dismantled. We have not even a drop of water to drink for
ourselves and our livestock.

34. Mazzie K. Begay: For over 20 years I have lived a few yards away from a water well
that was capped off by the BIA in Cactus Valley. It was under Navajo authority until
it became the Joint Use Area. Then in 1980's the Bureau of Indian Affairs started
dismantling, bulldozing, fencing off water resources. We have to drive 30 miles each
way just to haul water. I have a lot of headaches, tummy ache, stress related
confusion. I worry because I don't know what will happen. 5

PEABODY LEADS THE US IN VIOLATIONS

35. In light of the history of violations and the fact Peabody leads the US in violations,
Forgotten People urges the Navajo Nation to impose stringent regulations and
standards to protect our land and water resources and work with US EPA to establish
water quality standards for mining water releases into rivers, steams and washes.

36. Peabody Energy Corp. and Consol Energy Corp. operate the two coal mines that lead
the U.S. in violations, with more than double the total of Massey Energy Co.'s
operation where 29 people were killed this month. The mines controlled by Peabody,
the largest U.S. coal producer, and Consol have collected more than 1,300 citations
since January 2009, according to the U.S. Labor Department's Mine Safety and
Health Administration. Massey's Upper Big Branch mine, site of the worst mine
disaster in 40 years, had 639 violations. Peabody's Air Quality No.1 coal mine in
Knox County, Indiana, tops the U.S. in citations, with 1,419. The company's
operation in Saline County, Illinois, has accumulated 1,217 citations, according to
MSHAdata.

37. Consol's McElroy mine in Marshall County, West Virginia, has collected 1,380
citations. In October MSHA notified Peabody of "a potential pattern of violations" at
the mine, a step that can lead to more scrutiny. The company reduced the number of
significant and substantial violations and was notified that a pattern of violations no
longer exists, according to a March 15 letter from MSHA. 6
4 Re: Stakeholders views for the Study on Human Rights Obligations related to Equitable Access to Safe
Drinking Water and Sanitation, www.ohchr.org, April 15, 2007
5 Personal declarations made to Marsha Monestersky, 5/15/10
6 Peabody, Consol Coal Mines Lead u.s. in Violations (Update2 ...
Apr 16,2010 ... Peabody, Consol Coal Mines Lead U.S. in Violations (Update2) ... Drummond Co., a closely
held coal company, leads the nation in the amount ...
www.businessweek.coml .../peabody-consol-coal-mines-Iead-u-s-in-violations-updatel-.html
 Navajo Nation Resources Committee
Comments for the Record
Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010

38. President Barack Obama ordered the crackdown on safety violations nationwide after
saying the explosion at Massey's Upper Big Branch Mine in West Virginia was
triggered by failures of management and government oversight. Massey operates
nine mines on the government list, the most of any operator. Peabody Energy Corp.,
which operates with Consol Energy Corp. has two coal mines that lead the U.S. in
violations and operates three mines on the government's list. 7

39. Helen Dunn's appeal of the district court's dismissal of her amended complaint
alleging wrongful death of her husband Darrell Dunn was dismissed because it was
determined she received benefits from Darrell's employer under the Illinois workers'
compensation statute. What is of great importance, is the wrongful death occurred as
a result of his work in an unsafe underground coal mine under a roof that Peabody
Coal Company knew to be dangerous as a result of its being inadequately supported.
At the time Darrell Dunn was working in the mine, the roof collapsed causing rocks
and debris to fall upon him and causing his fatal injuries and death two days later. 8

40. House Dems Call on Coal Industry to Quit Opposing Safety Reforms. Spot
inspections just completed by the Mine Safety and Health Administration at 57 coal
mines found 1436 violations and resulted in a staggering 105 closure ... 9

41. On Thursday, after a year-long investigation by the Mine Safety and Health
Administration, Peabody Coal Company pleaded guilty in Federal District Court in
Charleston, W.Va. for tampering with dust samples taken to protect miner's health.
Peabody Coal Company agreed to pay a $500,000 fine, the largest ever assessed for a
nonfatal violation ofthe Federal Mine Safety and Health Act of 1977. 10 11

42. The federal government should take steps to ensure that underground coal operators
do not cheat on dust samples, a miners' safety advocate said yesterday. Davitt
McAteer, director of the Occupational Safety and Health Law Center, made his

7 Massey, Peabody Coal Mines Targeted in Stepped-Up U.S. Probe ...

Apr 21,2010 ... Peabody Energy Corp., which operates with Consol Energy Corp. two coal mines that lead the
U.S. in violations, operates three mines on the ...
www.businessweek.coml .../massey-peabody-coal-mines-targeted-in-stepped-up-u-s-probe.htmI
8 855 F2d 426 Dunn v. Peabody Coal Company I Open Jurist
Two years after the arbitrator's award, Peabody Coal Company was indicted for violations of the Federal Mine,
Health and Safety Act arising out ofthe ...
openjurist.org/855/£2d/426/dunn-v-peabody-coal-company
9 House Dems Call on Coal Industry to Quit Opposing Safety Reforms
The Washington Independent
Spot inspections just completed by the Mine Safety and Health Administration at 57 coal mines found 1436
violations and resulted in a staggering 105 closure
10 Peabody Coal Co. Pleads Guilty To Dust Sample Violations.
Peabody Coal Co. pleads guilty to dust sample violations. The Associated Press. CHARLESTON, The world's
largest private- coal company was fined 500000 by ...
news.google.comlnewspapers?nid= 1817 &dat= 19910 120&id ...
11 Peabody Coal Fined for Tampering; Firm Interfered With Dust...
The Washington Post (pre-1997 Full text) - Jan 18, 1991
 Navajo Nation Resources Committee 9

Comments for the Record

Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010
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comments one day after Peabody Coal Co. pleaded guilty to three charges of
improperly obtaining or reporting dust samples. Peabody, the largest coal operator in
Kentucky and the United States as a whole, was fmed the maximum of $500,000.00.
12 13

43. Federal law requires coal companies to periodically measure concentrations of dust in
underground mines by issuing portable plastic devices containing a paper filter that
miners wear on their belts for an eight-hour shift. The devices, connected to a small
pump, mimic the action of a miner's lungs and are intended to be first line of defense
against pneumoconiosis (pronounced new-MO-conee-osis), or black lung disease, a
debilitating pulmonary injury. Some 260,000 former miners suffer from the disease,
according to the Department of Labor, and receive Federal medical and income
benefits that cost the Government $1.43 billion in the fiscal year that ended Sept. 30.

44. Coal companies are responsible for issuing and collecting the filtering devices. A
Federal laboratory in Pittsburgh conducts the scientific tests to determine whether
concentrations of coal dust in a mine exceeds two milligrams per cubic meter of air,
the level the Government considers hazardous. The Department of Labor has the
authority to penalize or close mines that routinely violate the law. Officials of the
United Mine Workers of America said the guilty plea by Peabody was "gratifying,"
but came as no surprise. In the late 1970's Congress investigated and conducted a
series of public hearings on fraud in the mine safety tests.

45. The union issued a step by step guide to teach its members how to check on the dust
sampling techniques of their employers. Some of the previous investigations by the
mine safety agency originated from tips made by union members, the Government
said today. We've been trying to do something about this for years," said Dr. James
L. Weeks, an industrial hygienist who is deputy administrator of the department of
occupational health and safety at the mine workers' union in Washington. "We have
been told by the Government that 400 to 600 other mines are being investigated for
committing the same practices." 14 Sources say a probe also includes possible
bribery of employees of MSHA, the federal agency that inspects coal and other
mines. 15

12 Dust-Sample Faking in Mines Must End. Says Safety, Lexington Herald Leader - Jan 19, 1991
13 Coal Company Admits Safety Test FrauQ, New York Times - Jan 19, 1991
14 Coal Company admits Safety Test Fraud, NY Times http://www.nytimes.comlI991101l19/us/coal-company-
admits-safety-test -fraud.html
15 Massey, Federal Officials Investigated In Mine Blast, NPR. The sources also say the probe also includes
possible bribery of employees ofMSHA, the federal agency that inspects coal and other mines and enforced ...
 10
Navajo Nation Resources Committee
Comments for the Record
Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/28/2010
=

NO PERMIT FOR THE RAILROAD, COAL FIRES IN THE BLACK MESA BASIN

46. The railroad used to transport coal from the Peabody mining operations in Arizona
should be permitted under SMCRA. 16

47. Peabody's Kayenta mine coal stockpiles should be lined to protect run-off of
contaminated water into washes and stockpiles. They should conform with MSHA
guidelines with regard to the steepness of grade to protect miner's safety. Coal fires
in the coal seams that last for years and underground coal fires should be controlled.

48. Within the Black Mesa basin in Shonto, Arizona about 10 acres of the mountain side
was affected by underground coal fires. Chemical emission of sulfur and other
hazardous fumes were being released into the atmosphere causing possible health
risks and threatening the customary land use and the coal reserves. Although OSM's
efforts did cool down the coal fire temporarily, 10 years later the fire was again active
and further subsidence was once again evident. There were more than 1,000 ft. linear
feet of fire line, ranging from 40 to 60 feet. During the reclamation, the contractor
discovered four to six coal seams burning at extremely high temperatures. It required
40,000 to 50,000 gallons daily to cool down the coal seams.

49. Underground coal fires are becoming more frequent and are believed to be a result of
water drawdown. These fires may be responsible for some cracks in the foundation
of the Navajo Housing Authority, Joint Use Area homes and the Coal Mine Canyon
Chapter House. Such impacts must be adequately considered.

ENVIRONMENTAL JUSTICE AND THE RIGHT TO PARTICIPATE

50. Forgotten People's predecessor, Dine Alliance filed the first case of environmental
justice subsequent to passage of Executive Order (EO) 12898 on February 11, 1994.
The Executive Order requires a particularized examination of the impact of mining in
or near Indian Country to prevent the harm identified in the order and to assure
maximum participation by the individuals who will be affected with traditional
property rights that are often ignored, and seldom without a voice to protect their
traditional lifestyles, and people's physical, psychological, mental health and well
being.

51. The Navajo Nation should recognize the people's right to participate in decision-
making as affirmed by the Order of the Administrative Law Judge vacating OSM's
decision to grant a life-of-mine permit stating: The Navajo Nation should consider
the health and environmental impacts of a given initiative, and inclusion of people
affected by it to consider impacts on indigenous lifestyles and economies, and other
disruptions of existing indigenous property and cultural practices.

16 Declaration of Marsha Monestersky, 12/09/09 Answers to Interrogatories, Forgotten People vs. Office of
Surface Mining.
 11
Navajo Nation Resources Committee
Comments for the Record
Peabody Coal Company's Black Mesa and Kayenta Mine Lease Re-Opener 8/27/20lO

THEREFORE BE IT RESOLVED: Forgotten People respectfully requests the Navajo

Nation Resources Committee delay any decision on a lease-reopener for Peabody's Black Mesa
and Kayenta mine until the new administration takes office to conduct a thorough investigation
to protect the environment and people's health against adverse impacts. It is untimely for the
Navajo Nation to rush to issue a lease re-opener for the Black Mesa and Kayenta mine in light of
the fatal flaws in the leases, illegal mining on the Black Mesa mine, lack of a permit for the
railroad hauling coal from the Kayenta mine to the Navajo Generating Station and lack of waste
water discharge permits. The Black Mesa mine does not have a permit to operate and the Navajo
Nation cannot grant under a lease re-opener what a federal judge vacated by denying the Black
Mesa mine a permit to operate. The Black Mesa mine needs to be treated as an abandoned mine
and Peabody should dismantle the infrastructure facilities, warehouses,co-nduct reclamation and
have a reclamation plan with bonds with regard to water impacts.

Under Navajo fundamental and traditional law there is no "lease or permit condition" that would
avoid significant adverse impacts on the environment and people's health. Under Navajo
fun.damentalan.d traditional law, the .destruction or disturbance of the people's sacred lan.d and
life is not allowed.

The Navajo Nation must meet the minimum standard required under federal law. Under federal
law when permit or lease conditions cannot be identified such that the proposed activities can be
made protective of the environment and public health and compliant with applicable law, then
the only legal alternative is to decide not to make any decision.

Forgotten People believes in the participation of directly affected people in decision-making

processes and the people's right to say Peabody lease re-opener Dooda 'No' to protect our sacred
land, water resources and iina. (life). Especially in light of recent coal mining tragedies, the fact
Peabody is the worst violator in the US, and BP's oil spill in the Gulf. The only tragedy worse
than what's happening would be if our Nation fails to learn anything constructive from these
disasters. Please confirm receipt of Forgotten People's comments for the record opposing
Peabody's Black Mesa and Kayenta mine lease re-opener.

Yours sincerely,

(Vh~ ;
~~~ ~:mBenany
President Board of Director

Carl s Deal
~£1t~
Marsha Monestersky
Public Relations Coordinator Program Director

On behalf of Forgotten People