Smcra Noi Final

NOTICE OF VIOLATION AND INTENTION TO SUEPURSUANT TO 30 U.S.C. § 1270(a)(1)

To:Ken Salazar, Secretary of the InteriorUnited States Department of the Interior1849 C Street, N.W.Washington, D.C. 20240Joseph Pizarchik, DirectorOffice of Surface Mining Reclamationand Enforcement1951 Constitution Ave. N. W.Washington, D. C. 20240Allen D. Klein, Regional DirectorWestern Regional OfficeOffice of Surface Mining Reclamationand EnforcementP.O. Box 466671999 Broadway, Suite 3320Denver, CO 80201-6667Bill Brancard, DirectorMining and Minerals DivisionEnergy, Minerals and Natural ResourcesDepartment1220 South St. Francis DriveSanta Fe, NM 87501San Juan Coal CompanyP. O. Box 561Waterflow, NM 87421In accordance with 30 U.S.C. § 1270(b) and 30 C.F.R. § 700.13, Sierra Club notifies eachof you that, on or after the 60

th

day from the date of this notice, it intends to initiate a citizen suitagainst San Juan Coal Company (“SJCC”) pursuant to Section 520 of the Surface Mining Controland Reclamation Act of 1977 (“SMCRA”), 30 U.S.C. § 1270. Sierra Club intends to base the suiton SJCC’s continuing violation of SMCRA and of rules and regulations issued pursuant to SMCRAthat 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 SJCCHAS VIOLATED AND CONTINUES TO VIOLATE.

SMCRA requires each permittee to minimize disturbances to (1) the prevailing hydrologicbalance at the mine-site and in associated offsite areas and (2) the quality and quantity of water insurface and ground water systems both during and after surface coal mining operations and during

-2-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 withtoxic producing deposits, and (iii) treating drainage to reduce toxic content which adversely affectsdownstream water upon being released to water courses.

Id

.The New Mexico program implements SMCRA’s hydrologic protection requirementsthrough rules and regulations that require each New Mexico permittee to:(1)plan and conduct surface coal mining operations to

prevent

material damage to thehydrologic balance outside of the permit area, NMAC § 19.8.20.2009(A) (emphasissupplied);(2)avoid violation of any federal or state water quality statute, regulation, standard, oreffluent limitation, NMAC § 19.8.20.2009(C);(3)minimize water pollution and use treatment facilities where necessary to controlwater pollution, NMAC § 19.8.20.2009(D);(4)prevent waters draining off of the regraded area of each mine from (a) exceedingbaseline 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 anyenvironmental harm or threat to public health and safety; or (d) degrading, polluting,or otherwise diminishing the characteristics of existing streams and drainages so asto 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 andunderground mining activities comply with all applicable state and federal

-3-water-quality laws and regulations and with the effluent limitations for coal miningpromulgated by the U.S. environmental protection agency set forth in 40 CFR Part434, NMAC § 19.8.20.2010(A)(8);(6)install, operate, and maintain adequate facilities to treat any water discharged fromthe disturbed area so that it complies with all federal and state laws and regulationsand the limitations of NMAC § 19.8.20, NMAC § 19.8.20.2010(C);(7)design, construct, and maintain all stream diversions to prevent material damageoutside 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 watersystems with toxic or otherwise harmful mine drainage, (b) minimize adverse effectsof mining on ground water systems outside the permit area, and (c) support approvedpostmining land uses,

NMAC § 19.8.20.2018(A); and(9)utilize pits, cuts, and other mine excavation or disturbances in such manner as toprevent or control discharge of toxic or otherwise harmful mine drainage waters intoground water systems and to

prevent

adverse impacts on such ground water systemsor on approved postmining land uses, NMAC § 19.8.20.2018(B) (emphasissupplied).SJCC has violated each of the provisions cited above.