1102 2010 16 58 FAX 3103126088 MP ampPLLPlt2 ~001008

Fax Transmission

Maoatt Phelps amp Phillips LLP 11355 West Olympic Boulevard Los Angeles California 90064-1614

201 0 DV - 3 A~1 8 33 Telephone 310-3124000 Fax 3103124224

~1 V I middot APPEALS BO AR D ClientMatter 40813-060 Time in

Fax Number Confirmation Number

To

From

D~te ) 1 (

Pages includin~ cover

Clerk of the Board Environmental Appeals Board us Environmental Protection Agency Washington DC

Peter Duchesneau

November 22010

8 pages

(202) 233-0121 (202) 233-0122

Senders Copments

]0017085] J

Oporator Ul Only

If you do not receive all of the pages please call (310) 312-4203 as soon as possible Thank you_

In re Peabody Western Coal Company Black Mesa Complex NPDES Permit No NN 0022179 NPDES Appeal Nos 10-15 and 10-16

ThIs message is intended only for the use of the indivIdual or entity to which it Is addressed and may contain information that is privileged confidential and exempt from disclosure under applicable luw If the reader of thIs message Is not the Intended recipient you are hereby notified that any dis5emination distributlon or copyIng of this communication is strictly prohibited If you have received thi mmunlcallon In error please notify us immediately by telephone and retum the original mas a e to us at the above address via the US postal service Thank yOU

Operators Name comments

Total Pages Time transmission completed am bull~___ ____ ___ ________----____--ED__bullbullbull________ ___________ ___ _ shy

Received 11-0Z-Z010 1859 Frcm-31031Z6089 Tc-USEPA ENVIRONMENTAL Paie 001

Igj 00200811022010 1858 FAX 3103128088 MPampPLLP2

Pater DuchBsneau manatt Manatt Philips amp Phillips LLP manatt IphJps Iphillips Direct Dial (310) 312-4200

E-mail pduchesneaumanattcom

Client-Matter lOg 13middot060Novemb~r 2 2010

VIA FA~SIMILE AND FEDEX

us Protection Agency Clerk of 1-Ae Board Environmental Appeals Board 1341 GStreet NW 600 Washmgil)n DC 20005

R In 1e Peabody Wester Coal CClmptmY1 Black Me~ Complex NPDBS Permit No NN 0022179 NPDES Appeal Nos 10-15 and 10-16

Sir Cf Madame

-L for in the of Peabody Vestem Coal Companys Motion Leave to and Request fur to Respond 1~) Petition Enclosed is also a copy to be d1te stamped and returned the selfshyaddressechtprepaid envelope

do not hesitate to contact me ifyou ha e

Enclosure

cc Counsi~l ofRecord

3001708181

11355 WE) Olympic Boulevard ~ Angeles California 9006+1614 Telephone 3103124000 Fax 3103124224

Albany I Los I NeW York I COunty r Palo Alto I sacramento I San FranciSCO I Washington DC

To-USEPA ENVIRONMENTAL Pale OOZ

Igj 00200811022010 1858 FAX 3103128088 MPampPLLP2

Pater DuchBsneau manatt Manatt Philips amp Phillips LLP manatt IphJps Iphillips Direct Dial (310) 312-4200

E-mail pduchesneaumanattcom

Client-Matter lOg 13middot060Novemb~r 2 2010

VIA FA~SIMILE AND FEDEX

us Protection Agency Clerk of 1-Ae Board Environmental Appeals Board 1341 GStreet NW 600 Washmgil)n DC 20005

R In 1e Peabody Wester Coal CClmptmY1 Black Me~ Complex NPDBS Permit No NN 0022179 NPDES Appeal Nos 10-15 and 10-16

Sir Cf Madame

-L for in the of Peabody Vestem Coal Companys Motion Leave to and Request fur to Respond 1~) Petition Enclosed is also a copy to be d1te stamped and returned the selfshyaddressechtprepaid envelope

do not hesitate to contact me ifyou ha e

Enclosure

cc Counsi~l ofRecord

3001708181

11355 WE) Olympic Boulevard ~ Angeles California 9006+1614 Telephone 3103124000 Fax 3103124224

Albany I Los I NeW York I COunty r Palo Alto I sacramento I San FranciSCO I Washington DC

To-USEPA ENVIRONMENTAL Pale OOZ

11022010 1659 FAX 3103126089 MPampPLLPtt2 ~ 003008

ENVIRONMENTAL APPEALS BOARD UNITED

BEFORE E~ONMENTALPROTEC1l0N

WASHINGTON DC

re Appeal lO-IS and 10-16

NPnH~enTli1 No NN

j--------shy_________-J

EAJJ~)JJty WESTERN COAL COMPANYS MOTION FOR LEAVE TO INTERVENE AND REQUEST FOR LEAVE TO RESPOND TO PETmON

Peabody Western Coal Company (Peabody) hereby moves for to

IItIV~ as a party in the above-captioned matter and T leave to respond to the petitions

ofBlacl4Msa Water Coalition CARE To 1I1~hnn1 Ani Center for tnlt~lglilcaJ Diverdty

and Club (NPDES lUIUWiU No 10-15) Imd tAIito1nill11Ul for Renewablo rncrgy(CARE

and IIJLlL~~1i1 Nuvamsa nT3rti~C 10-16) (collectively the Petitionsn)

Pursuant to 40 sect 12419(8raquo) letlt10Ilers filed appeals with re2alCl to the

SepmiddottemL~ 16 2010 renewal by

1 The counsel for has conferred Qver the telephone and via with re5lJcc1ti~e counsel for EPA and Pctftioners with to whether they intend to the subject ~otion Samuel Brow~ Assistant Regional Counsel Region lX indicated that EPA dicnwt iutend to oppose the Brad Bartlett Minemls Law Center coungel f01 Black Mesa Water Coalition t aI he would not take a tlosliticln without ilaving had an opportunity to review the motion but was unlike]y to file an opposition

(BPAn) su J gf

David Law Office ofDavid Abney counsel for Fonner Hopi Nuvamsa et al be needed to matter and confer

time counsel fOr had not yet heard Abney

Received 11-02-2010 1859 From-Sl03126099 To-USEPA ENVIRONMENTAL 003

11022010 16 58 FAX 3103126088 MPampPLLP2 f4l 004008

the Pollutant Discharge Elimination System (NPDES) Permit (No NN 0022179) for

Pcabodi1sBlack Mesa Complex The Black Mesa Complex consists of the Kayenta and Black

Mesa ~a1 mining operations which date back to tilt) early 19708 is located on Navajo

NationUld Hopj Tribe Re$ervations southwest ofKayenta bull Arizona See Sheet Peabody

WesterJi Coal Company-Black Mesa Compte Pamit No NN0022179 US EPA

(2010) middotThe Kayenta mining operation supplies coal to the Navajo Generation Stationlooated

near PateI Arizona Id

1 ~ The original NPDES permit was issued 1983 and most recently re-issued on

De~ 292000 The mine coal

prepararon plant areas and reclamation areas On August 3 2005 Peabody filed a timely

renewa)of its NPDES permit Pending renewal EPA administratively continued the penni

Id

On February 19 2009 EPA proposed a permit renewal and issued the final permit

On S2009 Thereafter certain appeals were with the Appeals Board

(EAB~ by essentially the same petitioners in the above-captioned case See In re Peabody

WesternmiddotCoal Company Black Mesa Complex Pennit No NN0022179 NPDES Appeal No 09shy

10 In nsponse on December 1) 2009 EPA filed a notice withdrawing the August 2009

permit snd opted to the public comment period prepare a new sheet hold publio

hearin~on NaV8jo and Hopi lands As 8 result BAB dismissed the petitions with prejudice but

without l dctcnnination on the merits of lUly arguments In 7e Peabody Western Coal

Campmt BlackMasQ Complex Permit No NN0022179 NPDES Appeal No 09-10 (Dec

2009) laquo(-nicr Dimnil3Sing for Review with Prejudico)

2

Received 11-02-2010 1859 From-310312S089 To-USEPA ENVIRONMENTAL Pall 004

11022010 1659 FA X 3103126089 MPampPLLP2 141 005008

The Petitions in this matter raise substantial1y the same unfounded arguments

ma(fe ~i the previous appeal including the need to establish Total Maximum Daily Loads a

failure 1i) require monitoring at all outfalls inadequate effiuent limits under the permit violations

ofpreVpoundgtus Water Quality ~tandards a failure to bave a Clean Water Act Section 404 permit a

failure 1Q ~omply with the National Environmental Policy Act the EndlJllgend Species Act and

other re~uirements and a failure to hold adequate public bearings Yet again certain petitioners

have reMlested an extension of time to file a supplemental brief

() 1 rD - (jOOO CAUSE EXISTS FOR PEABODY TO INTERVENE AND FILE A ~SPONSE TO THE PETmON CONCERNING ITS NPDES PERMIT

Good cause exists for Peabody Lo intervene ilIld filc 0 response to the Petitions

As the J~ttee Peabody has a direct and substantial interest in the renewed NPDES permit and

matters ltlaised by the Petitions Peabodys interests are not adequately represented by the

existinglparties to the subject appeaL

1 The EAB Has Discretion to Allow the Permittee to Participate In Permit Appeals

The EAB has (]iscretion to allow intervention and fur Ii party to r~spOIld to a

petition [T]he EAB will ordinarily grant Ii timely request by the permittee to participate in

the procteding and respond to the petition for review US EPA Environmental Appeals

Board UBctice Manual at 45-47 (Sept 2010)2 See J re USGuJ New Eng Inc NPDES Appeal

~o 03- 2 at 7 amp n13 (Feb 20 2004) (Orda- Granting Review) perm remanded ~b nom

(Citing ~ the BAB typicalJy allows pennittees not already a party to the proceeding to

participtcente as intervenors) Sec a~() In re District aColumbia Water and Sewer Authority

NPDESAppeal No 07-121 slip op at 2 (EAB June 152001) (Order Granting Motion For

2 See e~ In re Lo3 Alamos National Laboratory NPDBS Pennit No NM0030759 NPDES Appeal middotlo 09-05 slip op (April 21 2009) (granting leave fot permittees to file a response 10 the peti~n and otherwise participate in proceeding)

3

Received 11-02-2010 1859 From-3103126089 To-LISEPA ENV IRONtpoundNTAL PaiS 005

110220 0 1659 FAX 3103126089 MP8PLLP2 ItJ 006008

Leave t futmvene as Party Respondent and Request to Respond to Third Party PetitioIlCIs t

PedtioP- for Review) -tIlnf~ iT~tIrP-lI1i~lf for permtttoo based upon a timely motion indicaiing

that p~ttee would substlUltiallb and specificallyatIected out~omie that its intc~retrts

were net ilia same as EPAs it would bear the burden liabilities and costs to IUllly

with th~ permit if the Pe1ltuners were successful and thBt it was uniquely situated to provide tho

wtb insight and perspective as to the issues raised in petition)3

I As the Permittee Peabody bas a Direct _sectI bbstautiai Interest that Could be Impaired DI D Result of the Proceedmp

Peabody bas a and substantial interest in case the Petitions

NPDBS DeIllmt ofbeing the permiUee it ~ with due process to

grant Pmbody an oppommity to pmicipate in the proceedings

impair~ by the outcome of the proceedings were new or changed obligations to be

rescinded altogether Peabody a significant financial

obligat1oIlS to opl~a1tiorLS iruluding to Supply to the Navajo Gcncranon

StatiOI1~ Moreover while and mue some Gammon respect to the

DerJtnlt heir interests also I1n Unlike EPA Peabody is respoIJunbJe the continued

viabiH~fof its Black Mesa Complex operations and win ultimately burden of

compli~ce with thCi permit as the pennittce Peabody has _ __ familiarity with and

knowlesge ofits operations and implications ofthe permit terms and woUld Therefore offer an

as to the issues at hand

(RE~dmgiEitervfltion under the Rules ofPractice AdlImllislrative Assessment of Civil Proceedings and the RevccationlTennination

LIe5JUmg Officer shaH grant leave to intervene in all or part of the proo~eding if the movant an interest relating to the cause ofaction a final order may as a praHical matter impair the movants ability to protect that the movants interest is not ~quately represented by parties) see also Civ Psect 24(a)(2)

4

11-02-Z010 1859 From-31031260B9 To-USEPA ENVI Pale DOS

11022010 16 58 FAX 3103126088 MPampPLLP2 f4l 004008

the Pollutant Discharge Elimination System (NPDES) Permit (No NN 0022179) for

Pcabodi1sBlack Mesa Complex The Black Mesa Complex consists of the Kayenta and Black

Mesa ~a1 mining operations which date back to tilt) early 19708 is located on Navajo

NationUld Hopj Tribe Re$ervations southwest ofKayenta bull Arizona See Sheet Peabody

WesterJi Coal Company-Black Mesa Compte Pamit No NN0022179 US EPA

(2010) middotThe Kayenta mining operation supplies coal to the Navajo Generation Stationlooated

near PateI Arizona Id

1 ~ The original NPDES permit was issued 1983 and most recently re-issued on

De~ 292000 The mine coal

prepararon plant areas and reclamation areas On August 3 2005 Peabody filed a timely

renewa)of its NPDES permit Pending renewal EPA administratively continued the penni

Id

On February 19 2009 EPA proposed a permit renewal and issued the final permit

On S2009 Thereafter certain appeals were with the Appeals Board

(EAB~ by essentially the same petitioners in the above-captioned case See In re Peabody

WesternmiddotCoal Company Black Mesa Complex Pennit No NN0022179 NPDES Appeal No 09shy

10 In nsponse on December 1) 2009 EPA filed a notice withdrawing the August 2009

permit snd opted to the public comment period prepare a new sheet hold publio

hearin~on NaV8jo and Hopi lands As 8 result BAB dismissed the petitions with prejudice but

without l dctcnnination on the merits of lUly arguments In 7e Peabody Western Coal

Campmt BlackMasQ Complex Permit No NN0022179 NPDES Appeal No 09-10 (Dec

2009) laquo(-nicr Dimnil3Sing for Review with Prejudico)

2

Received 11-02-2010 1859 From-310312S089 To-USEPA ENVIRONMENTAL Pall 004

11022010 1659 FA X 3103126089 MPampPLLP2 141 005008

The Petitions in this matter raise substantial1y the same unfounded arguments

ma(fe ~i the previous appeal including the need to establish Total Maximum Daily Loads a

failure 1i) require monitoring at all outfalls inadequate effiuent limits under the permit violations

ofpreVpoundgtus Water Quality ~tandards a failure to bave a Clean Water Act Section 404 permit a

failure 1Q ~omply with the National Environmental Policy Act the EndlJllgend Species Act and

other re~uirements and a failure to hold adequate public bearings Yet again certain petitioners

have reMlested an extension of time to file a supplemental brief

() 1 rD - (jOOO CAUSE EXISTS FOR PEABODY TO INTERVENE AND FILE A ~SPONSE TO THE PETmON CONCERNING ITS NPDES PERMIT

Good cause exists for Peabody Lo intervene ilIld filc 0 response to the Petitions

As the J~ttee Peabody has a direct and substantial interest in the renewed NPDES permit and

matters ltlaised by the Petitions Peabodys interests are not adequately represented by the

existinglparties to the subject appeaL

1 The EAB Has Discretion to Allow the Permittee to Participate In Permit Appeals

The EAB has (]iscretion to allow intervention and fur Ii party to r~spOIld to a

petition [T]he EAB will ordinarily grant Ii timely request by the permittee to participate in

the procteding and respond to the petition for review US EPA Environmental Appeals

Board UBctice Manual at 45-47 (Sept 2010)2 See J re USGuJ New Eng Inc NPDES Appeal

~o 03- 2 at 7 amp n13 (Feb 20 2004) (Orda- Granting Review) perm remanded ~b nom

(Citing ~ the BAB typicalJy allows pennittees not already a party to the proceeding to

participtcente as intervenors) Sec a~() In re District aColumbia Water and Sewer Authority

NPDESAppeal No 07-121 slip op at 2 (EAB June 152001) (Order Granting Motion For

2 See e~ In re Lo3 Alamos National Laboratory NPDBS Pennit No NM0030759 NPDES Appeal middotlo 09-05 slip op (April 21 2009) (granting leave fot permittees to file a response 10 the peti~n and otherwise participate in proceeding)

3

Received 11-02-2010 1859 From-3103126089 To-LISEPA ENV IRONtpoundNTAL PaiS 005

110220 0 1659 FAX 3103126089 MP8PLLP2 ItJ 006008

Leave t futmvene as Party Respondent and Request to Respond to Third Party PetitioIlCIs t

PedtioP- for Review) -tIlnf~ iT~tIrP-lI1i~lf for permtttoo based upon a timely motion indicaiing

that p~ttee would substlUltiallb and specificallyatIected out~omie that its intc~retrts

were net ilia same as EPAs it would bear the burden liabilities and costs to IUllly

with th~ permit if the Pe1ltuners were successful and thBt it was uniquely situated to provide tho

wtb insight and perspective as to the issues raised in petition)3

I As the Permittee Peabody bas a Direct _sectI bbstautiai Interest that Could be Impaired DI D Result of the Proceedmp

Peabody bas a and substantial interest in case the Petitions

NPDBS DeIllmt ofbeing the permiUee it ~ with due process to

grant Pmbody an oppommity to pmicipate in the proceedings

impair~ by the outcome of the proceedings were new or changed obligations to be

rescinded altogether Peabody a significant financial

obligat1oIlS to opl~a1tiorLS iruluding to Supply to the Navajo Gcncranon

StatiOI1~ Moreover while and mue some Gammon respect to the

DerJtnlt heir interests also I1n Unlike EPA Peabody is respoIJunbJe the continued

viabiH~fof its Black Mesa Complex operations and win ultimately burden of

compli~ce with thCi permit as the pennittce Peabody has _ __ familiarity with and

knowlesge ofits operations and implications ofthe permit terms and woUld Therefore offer an

as to the issues at hand

(RE~dmgiEitervfltion under the Rules ofPractice AdlImllislrative Assessment of Civil Proceedings and the RevccationlTennination

LIe5JUmg Officer shaH grant leave to intervene in all or part of the proo~eding if the movant an interest relating to the cause ofaction a final order may as a praHical matter impair the movants ability to protect that the movants interest is not ~quately represented by parties) see also Civ Psect 24(a)(2)

4

11-02-Z010 1859 From-31031260B9 To-USEPA ENVI Pale DOS

11022010 1659 FA X 3103126089 MPampPLLP2 141 005008

The Petitions in this matter raise substantial1y the same unfounded arguments

ma(fe ~i the previous appeal including the need to establish Total Maximum Daily Loads a

failure 1i) require monitoring at all outfalls inadequate effiuent limits under the permit violations

ofpreVpoundgtus Water Quality ~tandards a failure to bave a Clean Water Act Section 404 permit a

failure 1Q ~omply with the National Environmental Policy Act the EndlJllgend Species Act and

other re~uirements and a failure to hold adequate public bearings Yet again certain petitioners

have reMlested an extension of time to file a supplemental brief

() 1 rD - (jOOO CAUSE EXISTS FOR PEABODY TO INTERVENE AND FILE A ~SPONSE TO THE PETmON CONCERNING ITS NPDES PERMIT

Good cause exists for Peabody Lo intervene ilIld filc 0 response to the Petitions

As the J~ttee Peabody has a direct and substantial interest in the renewed NPDES permit and

matters ltlaised by the Petitions Peabodys interests are not adequately represented by the

existinglparties to the subject appeaL

1 The EAB Has Discretion to Allow the Permittee to Participate In Permit Appeals

The EAB has (]iscretion to allow intervention and fur Ii party to r~spOIld to a

petition [T]he EAB will ordinarily grant Ii timely request by the permittee to participate in

the procteding and respond to the petition for review US EPA Environmental Appeals

Board UBctice Manual at 45-47 (Sept 2010)2 See J re USGuJ New Eng Inc NPDES Appeal

~o 03- 2 at 7 amp n13 (Feb 20 2004) (Orda- Granting Review) perm remanded ~b nom

(Citing ~ the BAB typicalJy allows pennittees not already a party to the proceeding to

participtcente as intervenors) Sec a~() In re District aColumbia Water and Sewer Authority

NPDESAppeal No 07-121 slip op at 2 (EAB June 152001) (Order Granting Motion For

2 See e~ In re Lo3 Alamos National Laboratory NPDBS Pennit No NM0030759 NPDES Appeal middotlo 09-05 slip op (April 21 2009) (granting leave fot permittees to file a response 10 the peti~n and otherwise participate in proceeding)

3

Received 11-02-2010 1859 From-3103126089 To-LISEPA ENV IRONtpoundNTAL PaiS 005

110220 0 1659 FAX 3103126089 MP8PLLP2 ItJ 006008

Leave t futmvene as Party Respondent and Request to Respond to Third Party PetitioIlCIs t

PedtioP- for Review) -tIlnf~ iT~tIrP-lI1i~lf for permtttoo based upon a timely motion indicaiing

that p~ttee would substlUltiallb and specificallyatIected out~omie that its intc~retrts

were net ilia same as EPAs it would bear the burden liabilities and costs to IUllly

with th~ permit if the Pe1ltuners were successful and thBt it was uniquely situated to provide tho

wtb insight and perspective as to the issues raised in petition)3

I As the Permittee Peabody bas a Direct _sectI bbstautiai Interest that Could be Impaired DI D Result of the Proceedmp

Peabody bas a and substantial interest in case the Petitions

NPDBS DeIllmt ofbeing the permiUee it ~ with due process to

grant Pmbody an oppommity to pmicipate in the proceedings

impair~ by the outcome of the proceedings were new or changed obligations to be

rescinded altogether Peabody a significant financial

obligat1oIlS to opl~a1tiorLS iruluding to Supply to the Navajo Gcncranon

StatiOI1~ Moreover while and mue some Gammon respect to the

DerJtnlt heir interests also I1n Unlike EPA Peabody is respoIJunbJe the continued

viabiH~fof its Black Mesa Complex operations and win ultimately burden of

compli~ce with thCi permit as the pennittce Peabody has _ __ familiarity with and

knowlesge ofits operations and implications ofthe permit terms and woUld Therefore offer an

as to the issues at hand

(RE~dmgiEitervfltion under the Rules ofPractice AdlImllislrative Assessment of Civil Proceedings and the RevccationlTennination

LIe5JUmg Officer shaH grant leave to intervene in all or part of the proo~eding if the movant an interest relating to the cause ofaction a final order may as a praHical matter impair the movants ability to protect that the movants interest is not ~quately represented by parties) see also Civ Psect 24(a)(2)

4

11-02-Z010 1859 From-31031260B9 To-USEPA ENVI Pale DOS

110220 0 1659 FAX 3103126089 MP8PLLP2 ItJ 006008

Leave t futmvene as Party Respondent and Request to Respond to Third Party PetitioIlCIs t

PedtioP- for Review) -tIlnf~ iT~tIrP-lI1i~lf for permtttoo based upon a timely motion indicaiing

that p~ttee would substlUltiallb and specificallyatIected out~omie that its intc~retrts

were net ilia same as EPAs it would bear the burden liabilities and costs to IUllly

with th~ permit if the Pe1ltuners were successful and thBt it was uniquely situated to provide tho

wtb insight and perspective as to the issues raised in petition)3

I As the Permittee Peabody bas a Direct _sectI bbstautiai Interest that Could be Impaired DI D Result of the Proceedmp

Peabody bas a and substantial interest in case the Petitions

NPDBS DeIllmt ofbeing the permiUee it ~ with due process to

grant Pmbody an oppommity to pmicipate in the proceedings

impair~ by the outcome of the proceedings were new or changed obligations to be

rescinded altogether Peabody a significant financial

obligat1oIlS to opl~a1tiorLS iruluding to Supply to the Navajo Gcncranon

StatiOI1~ Moreover while and mue some Gammon respect to the

DerJtnlt heir interests also I1n Unlike EPA Peabody is respoIJunbJe the continued

viabiH~fof its Black Mesa Complex operations and win ultimately burden of

compli~ce with thCi permit as the pennittce Peabody has _ __ familiarity with and

knowlesge ofits operations and implications ofthe permit terms and woUld Therefore offer an

as to the issues at hand

(RE~dmgiEitervfltion under the Rules ofPractice AdlImllislrative Assessment of Civil Proceedings and the RevccationlTennination

LIe5JUmg Officer shaH grant leave to intervene in all or part of the proo~eding if the movant an interest relating to the cause ofaction a final order may as a praHical matter impair the movants ability to protect that the movants interest is not ~quately represented by parties) see also Civ Psect 24(a)(2)

4

11-02-Z010 1859 From-31031260B9 To-USEPA ENVI Pale DOS

11022010 1858 FAX 3103128088 MPampPLLP2 ~ 007008

m For reasons set above fe9nOClLY respectfully requests that it be given

tcdntervene this matter and file a TPoIlnTlJ~A

~ovember 22010 Pet No CA 168917 Crai A Moyer CA No CA 094187 Manatt Phelps Phillips LLP 11355 W=st Boulevard Los Angeles CA 90064-1614 Telephone (310) 312-4209 Fax (310) 312-4224 pduchesneaUmanattcom

nn11JjO) for Peabody Western Coal Company

300166173

5

Received 11-02-2010 1859 From-31031Z60B9 To-USEPA ENVIRONMENTAL Paie 007

I 11022010 1859 FAX 3103128088 MPampPLLP2 I4l 008008

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I the UllQersigned hereby certified trult on November tregoiIlg to served by facsimile and Federal Express on

1 Environmental Protection Agency (~erk of the Board Enviromnental Appeals Board 1)~41 Gn Street NW Suite 600 ~j~on 20005 ~ne(202)233-0122

(202) 233-0121

by electronic mail to

Stills CO 21509 ~Minera1s Law Center 1)11 Main Suite 238 DeJrango CO 81301 P-lone (910) 247middot9334

(970) 382-0316 cInail i1lllammi~a

David Abney AZ Atty 009001 L-lW Office ofDavid L Abney 4i25 Bast Chandler Blvd bull No 70-AS P~oenix 85048 P~one (480) 734-8652 ~l aoneymaturinao1com

SlttDJuel L Brown Acsistant Regional Counsel

Ke~ponIX 7~ Hawthorne Street S~~ Francisco 94105

972-3923

2010 I causelt) a copy oftbe

CEaTIPtCATI Ol SEIWICE

008Received 11-02-2010 1859 Frcm-310312608S Tc-USEPA ENVIRONMENTAL