A friend of mine in Colorado started out earlier this year with a simple question. Where, he asked the U.S. Office of Surface Mining Reclamation and Enforcement, is the operating permit for the 40,000 acre Kayenta coal strip mine on Navajo Nation and Hopi tribal lands in northeastern Arizona near Monument Valley? He couldn’t find any permit so, being a lawyer (actually, being Brad Bartlett of Energy Minerals Law Center in Durango), he filed a Freedom of Information Act request on April 9 with the agency asking for records related to renewal of the Kayenta operating permit. The request was for:
(1) A full and complete copy of Peabody’s permit renewal application for Kayenta
Mine Permit Renewal Permit No. AZ-0001D;
(2) A full and complete copy of Peabody’s current operating permit issued under the
requirements of Surface Mining Control and Reclamation Act;
(3) A full and complete copy of all permit revision authorizations and applications for
the Kayenta mine from 2005 to the present;
(4) Any and all cumulative hydrologic impact assessments for the Kayenta mine;
(5) Any and all National Environmental Policy Act documents for the Kayenta mine (excluding the “Black Mesa Project Draft and Final Environmental Impact Statement, OSM-EIS-33”);
(6) Any and all notices of violation from 2005 to the present;
(7) Any and all communication between OSM and Peabody Western Coal Company
from December 2008 to the present.
(8) Any and all communications between OSM and other Federal agencies regarding
Peabody’s permit application for Kayenta Mine Permit Renewal Permit No. AZ-
0001D including, but not limited to, U.S. Environmental Protection Agency, U.S.
Fish and Wildlife Service and Army Corps of Engineers;
(9) Any and all communications between the Navajo Nation and Hopi Tribe
regarding Peabody’s permit application for Kayenta Mine Permit Renewal Permit
(10) Any and all communications between the Office of the Solicitor and
attorneys for Peabody Western Coal Company from December 2008 to the
That’s when things got a little weird. In response to this FOIA request about a permit currently in force, OSM claimed that it had nothing to disclose about (2), (3), (7) and (10) – the permitting documents and communications with Peabody Coal about them. Incredulous, Bartlett appealed OSM’s response to the Department of the Interior on June 14, 2010. On August 3, the FOIA Appeals Office denied release of documents responsive to items 2 and 3; denied release of documents responsive to items 2 and 3 in electronic format; denied Plaintiffs’ challenge to OSM’s staggered released of documents responsive to item 7; and denied Plaintiffs’ request for an explanation of the agency’s search methodology. On September 30, a coalition including Black Mesa Water Coalition, Center for Biological Diversity, Center for Biological Diversity, Diné Citizens Against Ruining Our Environment (Diné CARE), Sierra Club and To’ Nizhoni Ani filed their complaint seeking judicial review of this outcome.
All this was noticed by a Plains Justice volunteer who was following OSM news. He googled the Kayenta mine and the first hit was a dead OSM link to the Kayenta Environmental Impact Statement on the OSM Western Region site. On the site, the EIS no longer had a live link. Then he googled the nearby Black Mesa mine. The same link for an EIS came up, and like Kayenta, the EIS seemed to have disappeared from the OSM site. Our volunteer, not to be deterred, emailed the webmaster at OSM to ask where to find both documents. A staffer emailed back with a link that worked for the Black Mesa EIS (not Kayenta) … but has since ceased to work, and there are no longer live links for either EIS on the OSM site. The staffer emailed again to report that the Black Mesa EIS is the only one available electronically, but that doesn’t explain the expiring link or OSM’s resistance to producing copies of its own permits. Fortunately, Plains Justice’s Coal Diver website quickly posted cached copies of the Black Mesa EIS, but the Kayenta EIS (like the Kayenta operating permit) appears to have vanished into the ether.
Curiouser and curiouser. Will anyone who can prove that Peabody Coal does or doesn’t have an operating permit for Kayenta Mine please step forward?