May 2006

Coal-mine proposal meets resistance

By Gail Binkly

For more than three decades the Peabody Western Coal Company has been mining coal from Black Mesa, Ariz., transporting it as slurry to a power plant 273 miles away in Laughlin, Nev. Anyone who’s traveled to the Grand Canyon via U.S. Highway 160 has driven under the coal chute that crosses the highway near Kayenta.

The coal-mine brought millions of dollars in revenue to the Navajo and Hopi reservations where it operated. But it also sparked concerns about the enormous amount of water it was drawing from a pristine aquifer on Black Mesa to supply the slurry operation.

BLACK MESA COAL MINE PROTESTSo when the mine shut down on Dec. 31, 2005, it was a relief to some and a disaster to others.

But the story is far from over. Peabody still hopes to resume its coalmining operation, and many tribal members would welcome the revenue and jobs. But Peabody’s proposal faces fierce opposition from environmentalists from both tribes.

A coalition of Navajo and Hopi citizens has come up with a bold plan to provide new tribal revenue sources without sucking more water from the aquifer. They want to see solar and wind power developed on their reservations.

And they want traditional energy to pay for it.

“About 60 percent of America’s energy needs are met by coal,” said Wahleah Johns, field organizer for the grassroots Black Mesa Water Coalition. “We want a transition to something healthier.”

BLACK MESA COAL MINE PROTESTSo she and others have formed the Just Transition Coalition, which is working to provide exactly what its name implies — a fair and just transition for the tribes from dependence on coal to cleaner, alternative forms of energy. They hope this will mitigate the loss of jobs and money caused by the closure of the Black Mesa Mine.

Dirtiest power plant

The mine’s closure came not because of its own occasionally spotty environmental record, which included a dozen failures of the Black Mesa pipeline between 1994 and 1999, at least eight of which caused discharges of coal or coal slurry into local washes, and eight more spills along the 273- mile route since 2001.

Instead, the mine shut down because of repeated Clean Air Act violations by the 1580-megawatt Mohave Generating Station that burned the Black Mesa coal. Mohave, the dirtiest power plant in the West, pumped some 19,000 tons of nitrous oxide and 40,000 tons of sulfur dioxide into the air, according to the Natural Resources Defense Council.

In 1997, the Grand Canyon Trust, Sierra Club and National Parks Conservation Association sued under the Clean Air Act and forced an agreement by the power plant’s owners to either retrofit the plant and reduce emissions, or to close by the end of 2005. No retrofitting was done, so the plant closed, and with it, the Black Mesa Mine.

But in 2004, Peabody Western — which is a subsidiary of Peabody Energy, the world’s largest coal company — submitted a permit application to the Office of Surface Mining in Denver, seeking permission to mine Black Mesa for the “life of the mine,” expected to be until 2026 or 2032.

The owners of the Mohave power plant are waiting to see whether Peabody can continue to supply them coal before they decide whether to spend the $1 billion it might take to retrofit the plant and cut its emissions. Mohave could reopen by 2010 or so under the best-case scenario.

In its application with the OSM, Peabody says it hopes to obtain access to another aquifer, the Coconino, some 100 miles away, which provides water for Flagstaff and other northern Arizona cities. But Peabody does not know if it can obtain rights to use that water, so it is also seeking continued access to the Navajo Aquifer, called the N-aquifer, and wants the right to increase its withdrawals by more than 50 percent — from 4,000 acre-feet a year to more than 6,000 acre-feet. An acre-foot equals 325,851 gallons.

The OSM is expected to release its draft Environmental Impact Statement for Peabody's application this month.

Secret deals

The notion of further withdrawals raises the hackles of many Navajos and Hopis, who say the slurry operation has been drying up springs used for drinking water by both humans and livestock, and sometimes for religious rites such as the Blessing Way.

“There are several springs that my ancestors used to use and we used to use for different purposes, and the water is really low,” 18-year-old Kristopher Barney of Rough Rock, Ariz., told the Free Press. “We are concerned that we won’t have any more water here some day.”

On April 17, Barney was among supporters of the Black Mesa Water Coalition, Just Transition, Diné CARE (Citizens Against Ruining the Environment), C Aquifer for Diné, and other groups who marched on Navajo council chambers in Window Rock, Ariz., to protest the tribal administration’s private negotiations with Peabody to reopen the mine. The Hopi government is also negotiating with Peabody.

“We don’t want any more secret deals,” Barney said. “We want the tribes to come out to the communities and spread what they’re doing.”

On April 19, a handful of concerned citizens met with representatives of the Sierra Club and the NRDC in Window Rock to hear about damage to the N-aquifer allegedly caused by Peabody’s slurry operation. The prevailing sentiments there were definitely against resumption of coal-mining.

Barney said there is deep division within the Navajo Nation over the issue. People who lost jobs are angered, but others worry about the environment if the mine reopens.

“There’s a lot of opposition (to mining) from the grassroots, from elders and people who live on the land, who need water for their livestock and crops and stuff,” he said.

1.3 billion gallons

The scarcity of water on the Navajo and Hopi reservations, and the purity of the N-aquifer, isolated by barriers of mudstone and sandstone, make any industry that uses 1.3 billion gallons of water a year inherently controversial.

“The N-aquifer is one of the most pristine aquifers we know of in the world,” Tim Grabiel, project attorney with the NRDC, told the citizens on April 19. “It naturally meets the EPA’s standards for drinking water.”

It’s precisely because the water is so pure that Peabody wants it for its slurry, he said. That way, contaminants aren’t added to the coal.

When Peabody originally negotiated lease agreements with the two tribes — the mine lies on a former “joint use” area where subsurface rights are split between both sovereign nations — back in the 1960s, Grabiel explained, the Office of Surface Mining delineated four criteria by which to judge whether the N-aquifer was being over-depleted.

In 2000, prompted by concerns of local activists, the NRDC examined monitoring data that had been collected by the U.S. Geological Survey for the OSM and prepared a report called “Drawdown” that disputed Peabody’s and OSM’s sunny claims that no harm was occurring to the aquifer.

“No one had looked at the actual monitoring data and compared it to the criteria,” Grabiel said. “We reviewed the data and we found, much to our surprise, that there were actual violations of the criteria.” This year, the NRDC reviewed new data and again found indications that damage to the aquifer is occurring, he said.

The criteria address groundwater level, water quality (there can’t be too much leakage from the relatively dirty Dakota aquifer that lies on top of the N-aquifer), discharge to springs, and discharge to washes. Each of the four showed troubling evidence of overdepletion.

Both the 2000 and the 2006 studies strongly indicated that the aquifer is declining faster than allowed under the criteria and faster than a computer model had predicted, Grabiel said.

For instance, the simulation said if Naquifer stream washes showed a (mining- related) reduction in flow of 10 percent or more, damage was occurring. Data to assess this are limited, Grabiel said, but there are four streamflow- gauging stations where the USFS has collected data since the 1970s. They show that, since 1995, flows have generally decreased. At three of the four stations, reductions ranged from 50 percent to a startling 94 percent.

Computer models

In addition, people living on the land report anecdotal evidence of damage: drying springs and deep cracks in the earth. Marshall Johnson of To’ Nizhoni Ani, another grassroots group opposing the slurry operation, said cracks run from the tops of Black Mesa to down along the washes. He said subsidence and sinkholes are occurring.

“One of the telltale signs of overwithdrawals is sinkholes,” Grabiel said.

More than 44 billion gallons of water have been sucked from the N-aquifer since Peabody began mining, according to the NRDC. However, the OSM maintains that the aquifer is not being over-used, relying on computer models that Grabiel said have not been updated since 1994 and do not correlate with actual evidence.

“What we’ve seen is an over-reliance on modeling,” he said. “If you created a model that said you were going to be 6 feet tall, would you walk around claiming you were 6 feet tall if you only grew to 5 feet?”

In its original projections, the USGS predicted the N-aquifer would be recharged at about 13,000 acre-feet per year. According to the NRDC, the USGS later revised that estimate, downgrading it to 2,500 to 3,500 acrefeet per year, which would make the original model seriously flawed.

“But despite all the evidence, Peabody continues to claim that material damage is not occurring,” Grabiel said. “I don’t know how they can continue to claim that.”

$2 million a week

A Peabody spokesperson did not return phone calls for this article. However, according to the Peabody Energy web site, the Black Mesa Mine shipped some 5 million tons of coal every year to the Mohave Generating Station and “injected more than $2 million weekly into area communities in direct economic benefits in 2005,” the site states. Such benefits include payroll, benefits, taxes, royalties, and fees.

Peabody is the largest private-sector employer on the Navajo Nation, and the vast majority of its employees are Native American. The mine shut-down chopped one-third, about $7 million, out of the Hopi government’s annual budget and about 15 percent from the Navajo budget. Some 200 people reportedly have lost their jobs.

“Any time there’s a huge loss of revenue, peole get scared and start panicking,” said Barney. “(Navajo Nation) President (Joe) Shirley is pushing whatever he can to reopen the mine.”

Never been tried

Replacing those lost jobs and revenues through clean energy is the goal of Just Transition, which has come up with a startling idea for obtaining money to jump-start renewable energy on the reservation.

Johns, of Black Mesa Trust, said that while the Mohave power plant is closed, it can sell its sulfur-dioxide allowances to other power plants. In other words, it can sell the right to emit a certain amount of sulfur dioxide.

Mohave has allowances for 53,000 tons of sulfur-dioxide emissions annually, Johns said. Southern California Edison owns 56 percent of the station. SCE’s share of the allowances could be worth $20 million, she said.

“This Just Transition initiative is really a visionary thing,” she said.

Just Transition — which includes the NRDC, Sierra Club, Black Mesa Trust, Indigenous Environmental Network, To’ Nizhoni Ani and others — is asking that this money be set aside for the tribes. On Jan. 11 of this year, it submitted a motion to the California Public Utilities Commission to that effect.

In response, an administrative law judge has made a preliminary decision requiring that SCE put that money into a special account starting in May, according to Andy Bessler, Southwest representative for the Sierra Club.

On May 11, the California PUC will vote on whether to continue keeping the money set aside until a final determination is made. The PUC has asked SCE to submit an application by Jan. 1, 2007, stating what it wants to do with that money, Bessler said.

NAVAJO NATION PRESIDENT JOE SHIRLEY, JR.If SCE says it wants to distribute it to ratepayers or shareholders, the legal battle will begin, Bessler said. The PUC will hold hearings on the proposal and Just Transition proponents will work to garner grassroots support.

“Nothing like this has ever been tried before,” Bessler said.

A penny a gallon

Just Transition members say the money is justified because the tribes have been exploited by Peabody and the utility companies.

“For over 30 years Black Mesa has subsidized cheap electricity for southern California and Nevada and Arizona,” said Johns. “We have had unjust coal leases, unpaid penalties for air pollution, and damage to a solesource drinking-water supply.”

If the tribes do obtain the money, Johns said, she would like it go toward retraining mine workers, developing renewable-energy sources such as wind and solar, and helping local communities.

“This is the only way we can be sovereign,” agreed Johnson of To’ Nizhoni Ani, “to go with this new idea, producing electricity from the sun and the wind. It uses 6 acre-feet of water a year. That old man (power plant) uses 21,000 acre-feet a year, plus the water for slurry. Anybody can see that’s wrong.”

Johnson noted that Peabody used one 55-gallon barrel of water per second for its slurry operation. “My family of five, we haul three 55-gallon barrels when we make a trip for water, and it lasts us a week,” he said. “We pay a penny a gallon from the tribe, and Peabody pays one penny every four gallons. We need some elected leaders that can do math.”

Liability relief

The Just Transition proposal has garnered resolutions of support from about eight Navajo chapters and has sparked interest among both tribes’ councils. However, tribal administrators are continuing to pursue negotiations with Peabody.

Some citizens were outraged when word leaked out of a March 7 confidential draft agreement being proposed with the coal company and Mohave that would grant them immunity from liability for any environmental damage done to the N-aquifer and would also dismiss complaints brought under a racketeering lawsuit filed by the Navajos against Peabody in 1999. The complaint alleges that Peabody and others acted unlawfully to obtain favorable coal-lease amendments. Damages sought are at least $1.6 billion. The Hopi tribe filed a motion to join the lawsuit in 2000.

The agreement, however, would reportedly drop those claims in return for a $250,000 payment and the resumption of the mining operation.

“They’re seeking liability relief in the confidential agreement,” said Grabiel. “Those claims could be worth billions. To pay $250,000 and say you don’t have to pay, that’s atrocious. It’s astonishing that was even under consideration.”

“I’m appalled that Peabody and lawyers are negotiating our future, our land, our water away without allowing the people to have a say,” said Johns.

A Navajo administration spokesman could not be reached for this article.

Bessler said the Black Mesa Mine issue exemplifies environmental conflicts worldwide.

“These are the front lines of how human beings are impacting the environment,” he said.

Bessler said coal-fired power plants are the No. 1 contributor to global warming. In addition, they use a great deal of water for cooling purposes. In contrast, solar power uses hardly any water, he said.

At best, the Mohave plant could operate only till 2026, when Colorado River water will no longer be available to it, Besseter said. “There would be only 10 or 12 years of profit to the tribes. We could be using that time to look at alternatives” to conventional energy, he said.

And water is a resource worth conserving, the advocates agreed.

“Fresh water is quickly becoming the scarcest resource on earth,” Grabiel said.