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8/14/2019 Smcra Noi Final
1/23
NOTICE OF VIOLATION AND INTENTION TO SUE
PURSUANT TO 30 U.S.C. 1270(a)(1)
To: Ken Salazar, Secretary of the Interior
United States Department of the Interior
1849 C Street, N.W.Washington, D.C. 20240
Joseph Pizarchik, Director
Office of Surface Mining Reclamation
and Enforcement
1951 Constitution Ave. N. W.
Washington, D. C. 20240
Allen D. Klein, Regional Director
Western Regional Office
Office of Surface Mining Reclamationand Enforcement
P.O. Box 46667
1999 Broadway, Suite 3320
Denver, CO 80201-6667
Bill Brancard, Director
Mining and Minerals Division
Energy, Minerals and Natural ResourcesDepartment
1220 South St. Francis Drive
Santa Fe, NM 87501
San Juan Coal Company
P. O. Box 561
Waterflow, NM 87421
In accordance with 30 U.S.C. 1270(b) and 30 C.F.R. 700.13, Sierra Club notifies each
of you that, on or after the 60th day from the date of this notice, it intends to initiate a citizen suit
against San Juan Coal Company (SJCC) pursuant to Section 520 of the Surface Mining Control
and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1270. Sierra Club intends to base the suit
on SJCCs continuing violation of SMCRA and of rules and regulations issued pursuant to SMCRA
that comprise the approved state regulatory program for New Mexico (the New Mexico program),
30 C.F.R. Part 931.
I. THE PROVISIONS OF SMCRA AND THE NEW MEXICO PROGRAM THAT SJCC
HAS VIOLATED AND CONTINUES TO VIOLATE.
SMCRA requires each permittee to minimize disturbances to (1) the prevailing hydrologic
balance at the mine-site and in associated offsite areas and (2) the quality and quantity of water in
surface and ground water systems both during and after surface coal mining operations and during
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reclamation. 30 U.S.C. 1265(b)(10). SMCRA requires that each permittee achieve these goals by
(i) avoiding acid or other toxic mine drainage, (ii) preventing or removing water from contact with
toxic producing deposits, and (iii) treating drainage to reduce toxic content which adversely affects
downstream water upon being released to water courses. Id.
The New Mexico program implements SMCRAs hydrologic protection requirements
through rules and regulations that require each New Mexico permittee to:
(1) plan and conduct surface coal mining operations to prevent material damage to the
hydrologic balance outside of the permit area, NMAC 19.8.20.2009(A) (emphasis
supplied);
(2) avoid violation of any federal or state water quality statute, regulation, standard, or
effluent limitation, NMAC 19.8.20.2009(C);
(3) minimize water pollution and use treatment facilities where necessary to control
water pollution, NMAC 19.8.20.2009(D);
(4) prevent waters draining off of the regraded area of each mine from (a) exceeding
baseline values of pollutants listed in NMAC 19.8.20.2009(E)(2)(a) or (E)(3)(a),
(b) creating an increase in sediment load into the receiving streams; ( c ) creating any
environmental harm or threat to public health and safety; or (d) degrading, polluting,
or otherwise diminishing the characteristics of existing streams and drainages so as
to cause imminent environmental harm to fish and wildlife habitats, NMAC
19.8.20.2009(E)(2);
(5) ensure that discharges of water from areas disturbed by surface mining activities and
underground mining activities comply with all applicable state and federal
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water-quality laws and regulations and with the effluent limitations for coal mining
promulgated by the U.S. environmental protection agency set forth in 40 CFR Part
434, NMAC 19.8.20.2010(A)(8);
(6) install, operate, and maintain adequate facilities to treat any water discharged from
the disturbed area so that it complies with all federal and state laws and regulations
and the limitations of NMAC 19.8.20, NMAC 19.8.20.2010(C);
(7) design, construct, and maintain all stream diversions to prevent material damage
outside the permit area and to assure the safety of the public, NMAC
19.8.20.2011(A), 19.8.20.2012(A)(1);
(8) place backfilled materials so as to (a) minimize contamination of ground water
systems with toxic or otherwise harmful mine drainage, (b) minimize adverse effects
of mining on ground water systems outside the permit area, and (c) support approved
postmining land uses, NMAC 19.8.20.2018(A); and
(9) utilize pits, cuts, and other mine excavation or disturbances in such manner as to
prevent or control discharge of toxic or otherwise harmful mine drainage waters into
ground water systems and to prevent adverse impacts on such ground water systems
or on approved postmining land uses, NMAC 19.8.20.2018(B) (emphasis
supplied).
SJCC has violated each of the provisions cited above.
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II. THE ACTS OR OMISSIONS WHICH CONSTITUTE THE ALLEGED
VIOLATIONS BY SAN JUAN COAL COMPANY.
A. SJCC Has Placed Coal Combustion Waste in Mined Areas in a Manner That
Has Polluted Ground water and Caused Material Damage to the Hydrologic
Balance Outside SJCCs Permit Area.
SJCC has used unlined mining pits, cuts, or other excavations to store coal combustion waste
(CCW), including precipitator ash, bottom ash, waste water sludge, flue gas desulfurization sludge,
and other power plant wastes, in a manner that has failed to minimize contamination of ground water
systems with toxic or otherwise harmful mine drainage, failed to prevent adverse effects of mining
on ground water systems outside the permit area, and failed to support approved postmining land
uses. For example, but not by way of limitation, SJCC used CCW to fill or backfill disturbed areas
in and adjacent to the historic channel of Shumway Arroyo upgradient of Well L in SJCCs ground
water monitoring scheme. See 2009 SJCC Permit Renewal Application, Exhibit 907. B(4)-1 (Map
of Surface & Ground water Monitoring Locations showing, inter alia, the locations of Well GL
and of CCB Pits on SJCCs permit area). Similarly, SJCC or its predecessor used CCW to fill or
backfill disturbed areas adjacent to the location of current ground water monitoring Well D. Well
D is located upgradient of both the Shumway Diversion channel and the lower portion of Westwater
Arroyo, which extends from its confluence with Shumway Diversion to its confluence with the
historic channel of Shumway Arroyo. Id. (showing the locations of Well GD and adjacent CCB
Pits).
At a minimum, SJCCs failures with respect to the ground water protection requirements of
SMCRA and the New Mexico program are evident in data on the quality of ground water drawn
from Well D and Well L. SJCC has established and maintained Wells D and L to detect mining-
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1 Sierra Club has completed its analysis of pollution to date of ground water at Wells D and
L with respect to selenium, boron, chloride, and sulfate. Sierra Club continues to analyze the
available data on concentrations of other pollutants at those locations, including but not limited to
uranium, radium, manganese, arsenic, cadmium, lead, chromium, iron, magnesium, phenols, and
sodium. Sierra Club asserts the right to demonstrate in its intended civil action that SJCCs
violations of SMCRA and the New Mexico program also occur due to pollution of ground water at
Wells D or L by any other contaminant for which there exists an applicable New Mexico ground
water standard.
-5-
related hydrologic impacts outside the permit area, including impact from placement of CCW in
areas upgradient of either of those wells. See Permit Application, Section 907.B(4)(i) Ground
water Monitoring Plan at 907-12.
The tables and graphs on the following pages present and summarize available data
concerning concentrations of selenium and boron in Well D over the past 36 years and
concentrations of selenium, chloride, and sulfate in Well L over the past 30 years. The applicable
New Mexico ground water quality standards for these pollutants are: selenium 0.05 mg/l; boron
0.75 mg/l, chloride 250.0 mg/l, and sulfate 600.0 mg/l. See 20.6.2.3103 NMAC.1
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Sample Date Selenium NMED/gwb Boron NMED/gwb
9/14/2009 0.105 0.05 2.00 0.75
3/19/09 8:35 AM 0.05 1.80 0.75
9/17/08 1:02 PM 0.178 0.05 1.80 0.75
3/11/08 8:02 AM 0.034 0.05 2.10 0.75
12/3/07 9:29 AM 0.05 0.759/27/07 12:00 PM 0.091 0.05 2.30 0.75
3/28/07 2:28 PM 0.082 0.05 2.50 0.75
9/29/06 2:28 PM 0.117 0.05 2.80 0.75
6/5/06 2:02 PM 0.05 0.75
3/16/06 9:42 AM 0.145 0.05 2.30 0.75
9/30/05 9:56 AM 0.104 0.05 1.70 0.75
3/8/05 9:51 AM 0.117 0.05 1.90 0.75
12/28/04 3:01 PM 0.133 0.05 2.00 0.75
3/19/04 2:15 PM 0.153 0.05 1.30 0.75
12/15/03 2:15 PM 0.066 0.05 1.30 0.75
7/10/03 10:24 AM 0.100 0.05 1.30 0.75
3/12/03 10:48 AM 0.090 0.05 1.40 0.75
12/16/02 12:00 AM 0.008 0.05 1.50 0.75
9/27/02 12:00 AM 0.094 0.05 0.60 0.75
6/18/02 2:00 AM 0.001 0.05 0.10 0.75
3/20/02 12:00 AM 0.160 0.05 1.10 0.75
12/12/01 12:00 AM 0.200 0.05 1.50 0.75
9/25/01 12:00 AM 0.200 0.05 1.60 0.75
6/26/01 12:00 AM 0.060 0.05 1.40 0.75
3/19/01 12:00 AM 0.130 0.05 1.00 0.75
12/18/00 12:00 AM 0.0100.05
1.50 0.759/26/00 12:00 AM 0.200 0.05 10.00 0.75
6/23/00 12:00 AM 0.005 0.05 1.70 0.75
6/21/00 12:00 AM 0.05 1.20 0.75
3/29/00 12:00 AM 1.00 0.05 1.10 0.75
12/15/99 12:00 AM 0.017 0.05 1.20 0.75
9/28/99 12:00 AM 0.108 0.05 1.44 0.75
3/30/99 12:00 AM 0.060 0.05 1.42 0.75
12/16/98 12:00 AM 0.070 0.05 1.56 0.75
7/8/98 12:00 AM 0.068 0.05 1.03 0.75
3/30/98 12:00 AM 0.005 0.05 1.20 0.75
12/18/97 12:00 AM 0.027 0.05 1.67 0.75
6/26/97 12:00 AM 0.050 0.05 0.01 0.75
6/25/97 12:00 AM 0.019 0.05 1.83 0.75
3/20/97 12:00 AM 0.010 0.05 1.13 0.75
12/31/96 12:00 AM 0.018 0.05 1.10 0.75
9/27/96 12:00 AM 0.052 0.05 1.08 0.75
6/13/96 12:00 AM 0.041 0.05 0.91 0.75
3/12/96 12:00 AM 0.067 0.05 1.27 0.75
12/11/95 12:00 AM 0.062 0.05 1.23 0.75
San Juan Coal Mine Well D Sampling Table
6
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Sample Date Selenium NMED/gwb Boron NMED/gwb
San Juan Coal Mine Well D Sampling Table
9/6/95 12:00 AM 0.005 0.05 1.03 0.75
6/20/95 1:00 AM 0.020 0.05 0.96 0.75
6/20/95 12:00 AM 0.05 0.75
3/9/95 12:00 AM 0.080 0.05 1.16 0.75
12/8/94 12:00 AM 0.032 0.05 1.90 0.759/12/94 12:00 AM 0.009 0.05 0.97 0.75
6/16/94 12:00 AM 0.038 0.05 0.97 0.75
3/15/94 12:00 AM 0.057 0.05 1.07 0.75
12/15/93 12:00 AM 0.083 0.05 1.34 0.75
9/9/93 12:00 AM 0.05 1.10 0.75
6/17/93 12:00 AM 0.010 0.05 1.16 0.75
3/17/93 12:00 AM 0.076 0.05 1.22 0.75
12/9/92 12:00 AM 0.004 0.05 0.97 0.75
9/15/92 12:00 AM 0.031 0.05 1.26 0.75
6/8/92 12:00 AM 0.048 0.05 1.08 0.75
3/26/92 12:00 AM 0.051 0.05 1.00 0.75
12/16/91 12:00 AM 0.056 0.05 1.22 0.75
9/4/91 12:00 AM 0.046 0.05 1.28 0.75
6/11/91 1:00 AM 0.060 0.05 0.86 0.75
6/11/91 12:00 AM 0.05 0.75
3/27/91 12:00 AM 0.052 0.05 1.18 0.75
12/20/90 12:00 AM 0.003 0.05 1.15 0.75
10/30/90 12:00 AM 0.05 1.06 0.75
6/7/90 12:00 AM 0.003 0.05 1.00 0.75
3/6/90 12:00 AM 0.001 0.05 0.86 0.75
12/5/89 12:00 AM 0.0050.05
0.79 0.759/6/89 12:00 AM 0.005 0.05 0.93 0.75
5/31/89 12:00 AM 0.005 0.05 0.73 0.75
3/13/89 12:00 AM 0.006 0.05 1.01 0.75
7/5/88 12:00 AM 0.009 0.05 0.95 0.75
12/12/87 12:00 AM 0.004 0.05 1.05 0.75
6/19/87 12:00 AM 0.052 0.05 1.20 0.75
1/14/87 12:00 AM 0.004 0.05 1.15 0.75
10/26/86 12:00 AM 0.001 0.05 1.12 0.75
12/2/81 11:44 AM 0.05 1.00 0.75
9/23/81 10:44 AM 0.05 0.70 0.75
6/24/81 9:44 AM 0.05 1.40 0.75
4/1/81 12:00 AM 0.05 1.00 0.75
12/3/80 2:02 PM 0.05 1.70 0.75
9/17/80 2:01 PM 0.05 0.50 0.75
6/15/80 2:57 PM 0.010 0.05 1.00 0.75
11/28/79 12:43 PM 0.05 1.00 0.75
10/3/79 12:43 PM 0.05 1.00 0.75
8/14/79 11:43 AM 0.05 0.02 0.75
4/5/79 11:39 AM 0.010 0.05 1.10 0.75
7
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Sample Date Selenium NMED/gwb Boron NMED/gwb
San Juan Coal Mine Well D Sampling Table
4/10/75 6:04 PM 0.010 0.05 1.20 0.75
3/10/75 7:04 PM 0.010 0.05 0.80 0.75
1/29/75 8:47 PM 0.010 0.05 0.35 0.75
12/23/74 7:47 PM 0.010 0.05 0.16 0.75
12/10/73 1:47 PM 0.150 0.05 1.50 0.759/6/73 1:47 PM 0.010 0.05 2.30 0.75
7/24/73 1:47 PM 0.010 0.05 0.25 0.75
Selenium value of 1.00 on 3/29/2000 was substituted with a plot value of .5 only to allow the viewer to see the lower concentrations.
The Selenium value of 1.00 is the correct concentration for that date.
The Boron value of 10. on 9/26/2000 was substituted with a plot value of .4 only to allow the viewer to see the lower concentrations.
The Boron value of 10. is the correct concentration for that date.
All data from ENMRD files except 9/14/2009 taken by Four Corners Geosciences
NMED/gwb New Mexico Environment Department Ground Water Bureau
Notes:
8
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0.000.50
1.00
1.50
2.00
2.50
3.00
3.50
4.00
4.50
C
oncentrationinmg/L
Well D Boron
Boron
NMED/gwb
0.0000.0500.100
0.1500.2000.2500.300
0.3500.4000.450
0.500
Concentrationinmg/L
Well D Selenium
Selenium
NMED/gwb
9
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Well L Contaminant Plotting Table
Sample Date Sulfate NMED/gwb Selenium NMED/gwb Chloride NMED/gwb
9/14/2009 53000 600 0.06 0.05 7400 250
3/19/2009 40000 600 0.13 0.05 6000 250
9/17/2008 42000 600 0.039 0.05 6300 250
7/17/2008 39100 600 0.018 0.05 6670 250
3/11/2008 600 0.05 250
3/11/2008 43000 600 0.016 0.05 5200 250
12/3/2007 600 0.05 250
9/27/2007 48000 600 0.05 0.05 6900 250
3/28/2007 39100 600 0.046 0.05 6000 250
3/28/2007 600 0.05 250
9/29/2006 600 0.05 250
9/28/2006 44000 600 0.068 0.05 5600 250
6/5/2006 600 0.05 250
3/15/2006 47000 600 0.15 0.05 6200 250
9/30/2005 44000 600 0.058 0.05 6350 250
9/30/2005 44000 600 0.058 0.05 6350 250
3/8/2005 43000 600 0.029 0.05 6450 250
12/28/2004 52000 600 0.042 0.05 6500 250
3/18/2004 51000 600 0.06 0.05 6400 2509/29/2003 42500 600 0.001 0.05 5100 250
7/11/2003 47000 600 0.001 0.05 5450 250
9/26/2002 42000 600 0.001 0.05 6260 250
6/18/2002 40000 600 0.002 0.05 6200 250
12/12/2001 39800 600 0.4 0.05 6500 250
9/25/2001 41000 600 0.1 0.05 6300 250
6/28/2001 39000 600 0.2 0.05 6300 250
3/19/2001 41000 600 0.5 0.05 6200 250
12/18/2000 39000 600 0.01 0.05 5850 250
9/26/2000 37000 600 0.2 0.05 5600 250
6/21/2000 42000 600 0.1 0.05 5950 250
3/29/2000 40000 600 1 0.05 5700 250
12/15/1999 41000 600 0.5 0.05 6000 250
9/28/1999 37300 600 0.005 0.05 5600 250
6/23/1999 36300 600 0.005 0.05 5690 250
3/29/1999 38800 600 0.005 0.05 5630 250
12/15/1998 42000 600 0.005 0.05 5600 250
9/16/1998 32700 600 0.005 0.05 4700 250
6/25/1998 33800 600 0.005 0.05 5550 250
3/30/1998 29800 600 0.005 0.05 4750 250
12/18/1997 34300 600 0.005 0.05 5300 250
9/25/1997 39000 600 0.005 0.05 5260 250
6/26/1997 36356 600 0.005 0.05 250
3/20/1997 31600 600 0.005 0.05 4636 250
12/31/1996 33216 600 0.005 0.05 5241 2509/27/1996 33500 600 0.005 0.05 4910 250
6/13/1996 33100 600 0.005 0.05 4850 250
3/12/1996 32800 600 0.005 0.05 6200 250
12/11/1995 27800 600 0.005 0.05 4100 250
9/6/1995 28800 600 0.005 0.05 3690 250
6/20/1995 28400 600 0.005 0.05 4000 250
3/9/1995 30200 600 0.005 0.05 4490 250
12/8/1994 27100 600 0.005 0.05 3710 250
9/12/1994 28800 600 0.005 0.05 3940 250
10
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Well L Contaminant Plotting Table
Sample Date Sulfate NMED/gwb Selenium NMED/gwb Chloride NMED/gwb
6/16/1994 26000 600 0.001 0.05 4040 250
3/16/1994 28000 600 0.001 0.05 3520 250
12/15/1993 28500 600 0.001 0.05 3380 250
9/9/1993 21800 600 0.001 0.05 3540 250
6/17/1993 21400 600 0.01 0.05 3460 250
3/17/1993 24600 600 0.001 0.05 3360 250
12/9/1992 22500 600 0.001 0.05 3400 250
9/15/1992 25200 600 0.001 0.05 3340 250
6/8/1992 23800 600 0.001 0.05 2900 250
3/26/1992 21500 600 0.001 0.05 3100 250
12/16/1991 23000 600 0.001 0.05 2900 250
9/4/1991 24500 600 0.001 0.05 2920 250
6/11/1991 18400 600 0.001 0.05 2650 250
6/11/1991 22570 600 0.05 2920 250
3/27/1991 22900 600 0.001 0.05 2860 250
12/20/1990 24370 600 0.05 2920 250
9/13/1990 24460 600 0.05 2440 250
6/7/1990 23327.9 600 0.05 2762 250
3/6/1990 23430.81 600 0.05 2817 25012/5/1989 22340 600 0.005 0.05 2602 250
9/6/1989 23620 600 0.005 0.05 2701 250
5/31/1989 22707 600 0.005 0.05 2754 250
3/13/1989 22447 600 0.005 0.05 2588 250
6/27/1988 22180 600 0.005 0.05 2620 250
12/12/1987 18800 600 0.001 0.05 6320 250
6/19/1987 16700 600 0.002 0.05 6150 250
1/14/1987 20400 600 0.001 0.05 7050 250
12/2/1981 15600 600 0.05 2600 250
9/23/1981 19670 600 0.05 2480 250
6/24/1981 20500 600 0.05 2540 250
4/1/1981 20878 600 0.05 2620 250
12/3/1980 21200 600 0.05 2800 250
9/17/1980 21200 600 0.05 2600 250
6/5/1980 20900 600 0.05 2700 250
3/6/1980 21139 600 0.01 0.05 1874 250
11/29/1979 25000 600 0.05 3060 250
10/3/1979 22500 600 0.05 3280 250
NOTES:
The value of 1.0 for Chloride on 6/26/1997 appears to be a recording error. All other Chloride values for
well L range from 1874 to 7400 mg/L. The value 1. is not plotted for this date.
All data obtained from ENMRD files except for 9/14/09 taken by Four Corners Geosciences
NMED/gwb New Mexico Environment Department Ground Water Bureau
11
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12
0
1000
2000
3000
4000
5000
6000
7000
8000
Concentrationinmg/L
Well L Chloride
Chloride
NMED/gwb
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0
0.1
0.2
0.3
0.4
0.5
0.6
0.7
0.8
0.9
1
Concentrationinmg/L
Selenium
NMED/gwb
Well L Selenium
13
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0
10000
20000
30000
40000
50000
60000
Concentrationinmg/L
Well L Sulfate
Sulfate
NMED/gwb
14
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The only possible cause of the increasing pollutant concentrations in ground water drawn
from Well L is leaching of pollutants from CCW, followed by transport off the permit area either
by ground water movement, diffusion, or both. Although ground water drawn from Well D may also
be affected by mine spoils and runoff from SJCCs coal storage area, placement of CCW in mined
areas upgradient of Well D has contributed to exceedences of applicable ground water protection
standards at that location. Ground water at Well D flows in a southerly direction through the alluvial
aquifer and mine spoils to Shumway Diversion and the historic channel of Westwater Arroyo.
Polluted ground water from Well D then travels through the alluvial aquifer or as surface water to
the point where Westwater/Shumway Arroyo exits the permit area.
Thus, CCW placement has caused or contributed to material damage to the hydrologic
balance outside the permit area and has otherwise violated the applicable hydrologic protection
regulations cited in the previous section of this notice. CCW deposits at SJCCs mine continue to
do so. Despite the existence of this mine-related degradation of the hydrologic regime, SJCC has
failed to establish or use comprehensive treatment facilities to control the water pollution in
question.
B. SJCCs Operations Have Introduced Additional Water to the Hydrologic
Regime and Created Conditions That Allow the Additional Water to Become
Polluted, Discharge to the Shumway/Westwater Arroyo System, and Cause or
Contribute to Material Damage to the Hydrologic Balance Outside SJCCs
Permit Area.
In conducting surface coal mining and reclamation operations, SJCC has added water to lands
abutting a desert arroyo system. SJCC has done so in a variety of ways, including but not limited
to the watering of coal storage areas and haul roads. The adjacent power plant may also have added
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additional water to the system through leaks in evaporation ponds, infiltration of water used in
transporting coal from SJCCs stockpiles to the power plant, or other activities.
Prior to the advent of industrial activity in the area, the surrounding desert arroyo system
transmitted water only in direct, immediate response to precipitation events. Since the
commencement of industrial activity, however, SJCCs mine, the adjacent power plant, or both have
created an elevated water table in the vicinity of SJCCs coal stockpile and the power plants eastern
evaporation ponds.
To facilitate mining coal in the vicinity of the historic channel of Shumway Arroyo, SJCC
has designed, constructed, operated, and maintained a diversion channel for that stream (Shumway
Diversion). The diversion channel intercepts the artificially elevated water table in the area of
SJCCs coal storage facility.
As a direct result, flowing . . . [w]ater exists within the Shumway Diversion for at least six
months of the year. 2009 Permit Application, Section 907.A(1) at 907-3; 2004 Permit Application,
Section 907.A(1) at 907-3. Despite repeatedly acknowledging this fact in permit applications over
at least the past five years, SJCC has failed to minimize the resulting disturbances to the prevailing
hydrologic balance at the mine-site and in associated offsite areas. As a result, Shumway Diversion
has caused and continues to cause significant degradation of the quality and quantity of water
downgradient of SJCCs mine.
Put another way, SJCC has designed, constructed, operated, and maintained Shumway
Diversion and adjacent surface coal mining operations in a manner that adds water to the hydrologic
regime but (a) fails to avoid toxic mine drainage, (b) fails to prevent or remove water from contact
with toxic producing deposits, or (c) fails to treat drainage to reduce toxic content which adversely
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affects downstream water upon being released to water courses. More specifically, SJCC has
designed, constructed, operated, and maintained Shumway Diversion and surface coal mining
operations located adjacent to and downgradient of that diversion in a manner which:
(1) causes or contributes to material damage to the hydrologic balance outside of the
permit area by discharging polluted water from the permit area in Shumway Arroyo
and through the alluvial aquifer at times when, upgradient of the permit area,
Shumway Arroyo and Westwater Arroyo cumulatively either have no flow or have
significantly less flow than they do downgradient of the permit area;
(2) violates applicable federal or state water quality statutes, regulations, standards, or
effluent limitations by discharging polluted water from the permit area through
Shumway Arroyo, Westwater Arroyo, or their alluvial aquifers at times when,
upgradient of the permit area, Shumway Arroyo and Westwater Arroyo cumulatively
either have no flow or have significantly less flow than they do downgradient of the
permit area;
(3) causes or contributes to water pollution by discharging polluted water through
Shumway Arroyo or Westwater Arroyo when, upgradient of the permit area,
Shumway Arroyo and Westwater Arroyo cumulatively either have no flow or have
significantly less flow than they do downgradient of the permit area;
(4) fails to use treatment facilities to control water pollution resulting from the discharge
of polluted water through Shumway Arroyo, Westwater Arroyo, or their alluvial
aquifers when, upgradient of the permit area, Shumway Arroyo and Westwater
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Arroyo cumulatively either have no flow or have significantly less flow than they do
downgradient of the permit area;
(5) allows waters draining off of the regraded area of SJCCs mine (a) to exceed baseline
values of pollutants listed in NMAC 19.8.20.2009(E)(2)(a) or (E)(3)(a), (b) to
create an increase in sediment load into the receiving streams; (c) to cause or
contribute to environmental harm by polluting water in the downgradient portion of
Shumway Arroyo and thus impairing the use of that water or associated ground water
for human consumption, irrigation, or livestock watering; or (d) to degrade, pollute,
or otherwise diminish the characteristics of water in the downgradient portion of
Shumway Arroyo and in adjacent portions of the San Juan River alluvial aquifer, so
as to cause imminent environmental harm to fish and wildlife habitats;
(6) discharges water from areas disturbed by surface mining activities (including but not
limited to coal storage and placement of CCW), which water violates applicable state
and federal water-quality laws and regulations by continuously, regularly, or
intermittently discharging polluted water from the permit area through Shumway
Arroyo, Westwater Arroyo, or their alluvial aquifers at times when Shumway Arroyo
and Westwater Arroyo cumulatively either have no flow or have significantly less
flow than they do downgradient of the permit area;
(7) fails to provide adequate facilities to treat water discharged from the disturbed area
through Shumway Arroyo or Westwater Arroyo at times when Shumway Arroyo and
Westwater Arroyo cumulatively either have no flow or have significantly less flow
than they do downgradient of the permit area, so as to ensure that such water
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2 Additionally, the results of surface water monitoring by the New Mexico regulatory authority,
SJCC, or both, at surface water monitoring station 006, as reported on the regulatory authoritys
website, establish an instance in which concentration of dissolved selenium exceeded the applicablenumeric water quality standard for total selenium. The regulatory authority, SJCC, or both
frequently report a higher concentration of dissolved selenium than the concentration of total
selenium reported in the same sample. Because the concentration of total selenium in any water
sample is axiomatically either equal to or in excess of the concentration of dissolved selenium, the
posted results clearly involve human error of some sort. Taking the higher of the two reported
concentrations as the concentration of total selenium in the sample, the posted results establish
exceedence of the New Mexico water quality standard for total selenium at station 006 on September
9, 2005. On that date the sampling entity did not report selenium concentrations in excess of the
applicable water quality standard at station 005, upgradient of SJCCs permit.
Sierra Club has completed its analysis of pollution to date of surface water at the road culvert
with respect to selenium, sodium, and total dissolved solids. Sierra Club continues to analyze the
available data on concentrations of other pollutants at pertinent locations, including but not limited
to uranium, radium, manganese, arsenic, cadmium, copper, lead, nickel, chromium, iron,
magnesium, and phenols. Sierra Club asserts the right to demonstrate in its intended civil action that
(continued...)
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complies with all federal and state laws and regulations and the limitations of NMAC
19.8.20; and
(8) fails to prevent material damage outside the permit area and assure the safety of the
public, NMAC 19.8.20.2011(A), 19.8.20.2012(A)(1).
At a minimum, SJCCs failure to prevent material damage outside the permit area as the
result of adding water to the hydrologic regime is apparent in the results of water samples that Sierra
Club representatives obtained during their September 14, 2009, site visit at the road culvert
immediately upgradient of the point at which Westwater Arroyo first exits SJCCs permit area.
Those results, which appear on the following page, show that the water sampled at that location
exceeded the applicable New Mexico numeric standard for surface water quality with respect to total
selenium and the applicable narrative standards for odor, taste, and reasonable use with respect to
sodium, chloride, sulfate, and total dissolved solids.2
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Water Quality Exceedances at Culvert 09142009
Sample ID Date Site Name
RGHunt_14 20090914 -10825.812 3647.578min Culvert
Contaminant mg/L Criteria Documentation
Sodium 1070 see Footnotes 20.6.4.13
injure life, property, public welfare and
use (Narrative Standard)
Total Selenium 0.009 0.005 Wildlife habitat
Chloride 318 see Footnotes 20.6.4.13
injure life, property, public welfare and
use (Narrative Standard)
Sulfate 2800 see Footnotes 20.6.4.13
injure life, property, public welfare and
use (Narrative Standard)
TDS 5010 see Footnotes 20.6.4.13K
injure life, property, public welfare and
use (Narrative Standard)
Footnotes:
National Secondary Drinking Water Standards is 250 mg/L for both Chloride and Sulfate
National Secondary Drinking Water Standards is 500 mg/L for Total Dissolved Solids (TDS)
National HealthBased Drinking Water Advisories are 20 mg/L for Sodium and 500 mg/L for Sulfate
2006 Edition,Drinking Water Standards and Health Advisories, Office of Water, US EPA, Washington, DC, August 2006
Location
20
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2(...continued)
SJCCs violations of SMCRA and the New Mexico program also occur due to pollution of surface
water at the culvert or any surface water monitoring station by any other contaminant for which there
exists an applicable New Mexico surface water quality standard.
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Sierra Club representatives observed the stream of water that they sampled at the culvert
continuing to flow from the culvert to and beyond the boundary of SJCCs permit. There were no
observed conditions or structures between the road culvert and the permit boundary which would
have materially reduced the pollutant concentrations observed in water sampled at the culvert before
that water exited SJCCs permit area.
III. INFORMATION ABOUT THE PERSON RESPONSIBLE FOR THE ALLEGED
VIOLATIONS.
The person responsible for the violations alleged above is San Juan Coal Company, a
corporation. SJCCs address is P. O. Box 561, Waterflow, NM 87421. SJCCs telephone number
is (505) 598-2000.
IV. THE DATE, TIME, AND LOCATION OF THE ALLEGED VIOLATIONS.
Each of the violations alleged above is a continuing violation. Each of the ground water
violations occurs at the point where transmission of increased concentrations of each enumerated
pollutant, whether by ground water flow, diffusion, or both, crosses SJCCs permit boundary and
at such upgradient point, if any, at which a pollutant concentration first exceeds an applicable
hydrologic protection standard. Each of the surface water violations occurs at the point on the permit
area of SJCCs mine where Shumway Diversion becomes a perennial or intermittent stream, as the
case may be. The violation continues from that point downgradient to the point at which Shumway
Arroyo or Westwater Arroyo first exits the western boundary of SJCCs permit, and from that point
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at least as far downgradient as the pollution attributable to SJCCs operations causes or contributes
to a violation of applicable water quality standards.
Each violation relating to pollution of ground water by CCW began on the date on which a
pollutant concentration in ground water affected by SJCCs placement of CCW first exceeded an
applicable hydrologic protection standard or caused or contributed to such an exceedence outside
SJCCs permit area. That date or set of dates is unknown to Sierra Club.
Each violation relating to water that SJCCs operations have added to the hydrologic balance
began on the date on which Shumway Arroyo first discharged polluted water from the permit area
after approval and issuance of SJCCs mining permit, other than in direct and immediate response
to a precipitation event. That date is unknown to Sierra Club.
Each violation has recurred constantly, regularly, or intermittently thereafter, whenever
Shumway Arroyo discharges polluted water from the permit area and there either is no flow or
significantly less flow in Shumway Arroyo and Westwater Arroyo upgradient of the permit area.
Sierra Club representatives most recently observed instances of each of the violations alleged above
either on September 14, 2009, during their inspection of SJCCs mine, or during their subsequent
analysis of water quality test results with respect to samples obtained during that inspection.
V. REQUIRED ADDITIONAL INFORMATION.
Sierra Clubs address is 85 Second Street, 2d Floor, San Francisco, California 94105-3441;
its telephone number is (415) 977-5680. The names, addresses, and telephone numbers of Sierra
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Clubs legal counsel are shown below. Sierra Club requests that any person receiving this notice
direct all inquiries to the undersigned legal counsel.
Dated November 19, 2009 SIERRA CLUB
-By Counsel-
Walton D. Morris, Jr.
Morris Law Office, P.C.
1901 Pheasant Lane
Charlottesville, Virginia 22901
Telephone (434) 293-6616
Fax (434) 293-2811
E-mail: [email protected]