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July 11, 2008

Act now against a NM coal-fired power plant

Action is needed by COB today for the air quality consent decree regarding the proposed Desert Rock coal-fired power plant in New Mexico.

The comment deadline is today to tell the Environmental Protection Agency that the plant will pollute the air, among other reasons to oppose the air quality permit.

The Sierra Club is working with several tribal coalition partners to prevent this coal-fired power plant from being built, including the Navajo's Dooda Desert Rock Coalition. Click here to learn more background on the issue.

You can help stop this dirty plant from being built! Click through to the next page for a comments letter you can cut and paste to send in, and directions on how to submit comments.

Alright, here comes lots of text, but stick with us - this is important! Below are instructions from our friends at the Dooda Desert Rock Coalition (DDR) about how to submit comments - and at the bottom there's even their comments letter, which you can use for your comments. Thanks for taking action!

DDR's Directions
Please feel free to take all/any of the DDR & attorney's version of the letter (find text below) and send it in to the contact information below. It is very important that the comments be technical, and should be on the air quality CONSENT DECREE. Do not comment on the Desert Rock power plant project itself, just on the air quality CONSENT DECREE

Here are instructions from the EPA for sending comments: 
Comments on the proposed consent decree may be submitted electronically through http://www.regulations.gov

The following address goes directly to the docket for the consent decree. To submit your comments through this system, follow the link below and scroll about half way down the page. You will see an entry in the docket for the notice we published in the Federal Register.  To the right of that notice will be a little comment bubble. Click on that and fill out the screen that follows.  You may attach files with your comments if you wish.

Click here to go directly to the docket.   

People who do not have Internet access or who do not wish to use regulations.gov can mail their comments to:

EPA Docket Center
Environmental Protection Agency
Mail code: 2822T
1200 Pennsylvania Ave., NW.,
Washington, DC 20460–0001

To submit your comments using our all or part of our attorney's letter, here it is.

Re: Docket No. EPA-HQ-OGC-2008-048 8
Desert Rock Energy Co. & Dine Power Authority v. EPA

Dear Environmental Protection Agency:

This letter is written in response to the notice published at 73(113) Federal Register 33087 (Wednesday, June 11, 2008) on the "Proposed Consent Decree, Clean Air Act Citizen Suit." We believe, quoting from the notice, that the EPA and the Department of Justice should "withdraw or withhold consent to the proposed consent decree" because there are "facts or considerations that indicate that such consent is inappropriate."

This letter will (1) identify the organizations that object to the proposed consent decree, (2) support the position of the State of New Mexico on further consideration of the Desert Rock Energy Company air permit application, (3) discuss the application of Executive Order No . 12898 to this issue, (4) state specific grounds of objection to the issuance of a permit at this time, and (5) state a conclusion.

1. Identity of Objecting Organizations
Two Navajo grassroots organizations make these objections. The first is Dooda Desert Rock. It is an unincorporated association that opposes the construction and operation of the proposed Desert Rock mine-mouth power plant because its destructive impacts on residents of northwest New Mexico and the Four Corners. More specifically, this organization represents the interests of Navajos who live on the area where the proposed activities would be undertaken, who live in the immediate area, and who will be adversely affected by the proposed operation .

The second is The Forgotten People. It is an unincorporated association of individuals who were relocated from their traditional lands within the Hopi Reservations; individuals who continue to live in the Hopi Partition Area; individuals who were relocated from the Hopi Partition Area; and individuals of the "Bennett Freeze" area, who were deprived of essentials of life by a construction ban for a period of forty years. More specifically, The Forgotten People join in these comments in support of Dooda Desert Rock because grassroots Navajos are resisting the severe impacts of corporate energy development in all parts of the Navajo Nation.

2. Support for the Position of the State of New Mexico
We agree that the Environmental Protection Agency must ensure that the proposed power plant has the best technology to deal with hazardous pollutants before construction begins. More specifically, the EPA should review the project's maximum achievable control technology (MACT) before any work can start. That review must be done as part of the air permitting process. The reason for that will be discussed in greater detail below, but we note that even before a third large coal-fired power plant is placed in the Four Corners Area, "San Juan County's air quality monitors registered ozone readings Wednesday [June 11, 2008] right at the 75 parts per billion mark, which is the new federal standard for maximum ozone levels." Cornelia de Bruin, County reaches legal ozone limit: Officials concerned about air quality, Desert Rock. The Farmington New Mexico Daily Times, June 14, 2008.

3. Executive Order No. 12898 Requires Further Study of the Application
Executive Order 12898 was issued on February 11, 1994, and it deals with "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations," 59(32) Federal Register (Wednesday, February 16, 1994) . Section 1-101 of the Order states the requirement to "make achieving environmental justice" part of each agency's mission "by identifying and addressing…disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low income populations."

Officials of the EPA advise us that the standards set in the Council on Environmental Quality's document, Environmental Justice: Guidance Under the National Environmental Policy Act (December 10, 1997) apply. The document states six general principles for environmental justice, and three are relevant to this situation:

• Agencies should consider the composition of the affected area, to determine whether minority populations, low-income populations, or Indian tribes are present in the area affected by the proposed action, and if so whether there may be disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, or Indian tribes.
• Agencies should consider relevant public health data and industry data concerning the potential for multiple or cumulative exposure to human health or environmental hazards, to the extent such information is reasonably available [remainder of the bullet point omitted].
• Agencies should recognize the interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed agency action. These factors should include the physical sensitivity of the community or population to particular impacts; the effect of any disruption of the community structure associated with the proposed action; and the nature and degree of impact on the physical and social structure of the community.

We combine the first and second principles to address the fact that there has been no consideration of "relevant public health data" for this area, so the EPA cannot assess the impact of degraded air quality on the relevant population. That population consists primarily of Navajos who live in the area, but given evidence of existing pollution from the two major existing power plants in the area, and others in the region, there are non-Navajos who are affected. The news report above of San Juan County, New Mexico, reaching the maximum permissible level of ozone emissions is an example of that. Poverty also drives ill health, and the area has a high poverty rate.

4. Grounds for Objection to the Consent Decree
The Shiprock-Northern Navajo Medical Center of the Indian Health Service at Shiprock has an extensive health data base that has been utilized by scientists for studies of other issues. The draft environmental impact statement done by the URS Corporation did not utilize the data at the Medical Center, although it was available. There have been emergent developments since the application for the permit, and we agree with the State of New Mexico that the information provided in the application is incomplete. We now know, for example, from testimony presented to the House Committee on Oversight and Government on October 23, 2007 that radioactive dust is part of the mix of air pollution in the area, and radon gas may contribute to that pollution.

We know from the hearing on EPA approval of new power plants, held on November 8, 2007, that there are sufficient facts to support a bill, H .R. 5575, the "Moratorium on Uncontrolled Power Plants Act of 2008," that will stop new plants. Section 2(a) of the bill would prohibit the issuance of a permit under the Clean Air Act "unless the permit requires the unit to use state-of-the-art control technology to capture and permanently sequester carbon dioxide emissions from such unit." While the Dine Power Authority (for the Desert Rock Energy Corporation) presented testimony to the Senate Committee on Indian Affairs recently that left the impression that the mine would utilize that technology, the Desert Rock Energy Company's web page has a section, "Energy Facts," that says that such technology does not yet exist, and it links to a Massachusetts Institute of Technology report on the subject.

The URS Corporation's draft environmental impact statement completely misstated the intent of the third consideration quoted above with regard to economic impacts. It accepts the Desert Rock Energy Company's party line, endorsed by the Secretary of the Interior in giving notice of the draft EIS, that Navajos who live in the area will benefit from the plant. There is insufficient discussion of the tradeoffs between the traditional economy and a wage economy that supposedly will be fueled by new construction and plant jobs, and there is a gross misstatement of economic benefits to the area.

That is to say, large dollar figures are thrown out that give the impression that when the central bureaucracy receives revenues from the operation they will be returned to the area. That is not the case. History shows that the Navajo Nation Council spends general fund revenues on many things other than local communities. There are no profit-sharing arrangements between the central government and localities (called "chapters" in the Navajo Nation) ; there is little likelihood that the chapters will get tax revenues (given the nature of taxation in the Navajo Nation and the fact that must of the suppliers of goods, materials and services will be in the Farmington, New Mexico area or larger regional areas); and there are no plans for monies to localities to deal with the adverse impacts of development. There are no arrangements for infrastructure needs - housing, consumer goods and services (e .g. shopping in Shiprock), streets and roads, services, and local government.

Navajo Nation fiscal policy does not provide adequate funding for such needs. While the Desert Rock Energy Corporation entered into payment in lieu of taxes (PILOT) arrangements with San Juan County State school districts and San Juan Community College, it provided none for Shiprock Alternative School, Inc. or Dine College.

An examination of documents attached to the lease approved by the Navajo Nation Council shows that land users were not properly compensated for the taking of their land, as required by Navajo Nation law, and that certain incentives were offered to one chapter that were deceptive. While the developers boast of many meetings with individuals who live in the area, they were orchestrated for the most part and they did not show that grassroots Navajos will get much by way of economic benefit. The only economic benefits promised were vague promises of "trickle-down" monies from the central government or benefitting from jobs.

An example of who benefits from jobs can be seen at the Raytheon Plant at Navajo Agricultural Products Industry. While about 90% of the employees there are Navajo, and many are women, most of the workers live off the Navajo Reservation in bedroom suburbs of Farmington, New Mexico. Any economic benefit from wages goes to Farmington merchants, San Juan County, and the State of New Mexico.

The draft EIS did not adequately address historical, social and cultural factors, and there is an inadequate record of them for the EPA to consider the issuance or denial of the air permit by July 31, 2008 and be in compliance with principles of environmental justice.

Accordingly, since there is an inadequate record of the cumulative impact of the proposed plant on the health of Navajos, and since the record on other environmental health impacts is skewed, inaccurate and inadequate, the permit should be withheld pending the preparation of an adequate record and public commentary upon it. The portion of the draft EIS on environmental justice must be supplemented with the true facts, including the lack of revenue sharing with chapters and the failure to provide for infrastructure needs that accompany development .

5. Conclusion
The Agency tells us that it follows Environmental Justice in carrying out its duties under the National Environmental Policy Act. Those principles also apply to permits under the Clean Air Act. As Governor Bill Richardson and Attorney General Gary King of New Mexico argue, issuance of a permit would be premature because of a lack of the proper technological approach to hazardous pollutants. We also argue that the issuance of a permit is premature, because the requirements of environmental justice have not been met, and the record is inadequate to determine compliance with them.

The United States and the EPA should not execute the consent decree because the record is inadequate to support issuance of a permit.

Respectfully submitted,


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