(Please note: Some formatting from the original Consent Order and Agreement
may have been lost in preparing this document for the web)

 

 

                                        COMMONWEALTH  OF  PENNSYLVANIA

                            DEPARTMENT  OF  ENVIRONMENTAL  PROTECTION

 

In the Matter of:

 

King Coal Sales, Inc.                                              :      SMP No. 17010115

P. O.  Box 712                                                      :      Morris and Boggs Townships,

Philipsburg, Pennsylvania 16866                             :      Clearfield County                     

 

                                           CONSENT ORDER AND AGREEMENT

 

This Consent Order and Agreement is entered into this _______ day of _______________________, 2002, by and between the Commonwealth of Pennsylvania, Department of Environmental Protection (hereinafter "Department"), and King Coal Sales, Inc.  (hereinafter "King Coal").

 

The Department has found and determined the following:

 

A.        The Department is the agency with the duty and authority to administer and enforce the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.1 et seq. ("Surface Mining Act"); the Coal Refuse Disposal Control Act, Act of September 24, 1968, P.L. 1040, as amended, 52 P.S. § 30.51 et seq. ("Coal Refuse Disposal Act"); The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq. ("Clean Streams Law"); Section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17 ("Administrative Code") and the rules and regulations promulgated thereunder.

 

B.         King Coal is a Pennsylvania corporation with a business address of P. O. Box 712, Philipsburg, Pennsylvania 16866 whose business includes the mining of bituminous coal in the Commonwealth by the surface mining method.  John A. Decker is the president of King Coal. King Coal was permitted a surface mining operation known as the “Royal” Operation (SMP #17010115) in Morris & Boggs Townships, Clearfield County for the surface mining of three (3) separate coal seams on 190 permit acres.  The permit’s issuance is concurrent with the execution of this agreement.

 

C.        The Emigh Run watershed is approximately two miles northwest of Philipsburg, Pennsylvania, in Morris and Boggs Townships, Clearfield County.  The watershed covers 4.8 square miles and consists chiefly of reclaimed and abandoned mine lands, forest land and residential area.  Surface mining operations conducted in the period from the 1950s through the early 1980s by Avery Coal Company, Graham Brothers Lumber, Inc. and others left abandoned, unreclaimed mine lands in the watershed.  Also, underground mines were operated in the watershed and were later abandoned.  Both the surface and underground mining operations resulted in numerous discharges of acid mine drainage which degrade the quality of Emigh Run for most of its length, rendering it unsuitable for aquatic life. (See map attached as Exhibit A.)

 

D.        Emigh Run does not meet the in-stream water quality requirements in 25 Pa. Code Chapter 93 because numerous discharges of acid mine drainage from abandoned surface and underground mines originating as discrete discharge points and as baseflow recharge to the stream are uncontrolled and untreated.

 

E.         The headwaters section of Emigh Run as measured upstream from the confluence with an unnamed tributary to Emigh Run (Elevation: 1495 feet MSL) is 1.6 miles in length and contains 1.15 square miles of watershed.  The headwaters section does not meet the in-stream water quality requirements in 25 PA Code Chapter 93 for net acidity, iron and manganese because of acid mine drainage.  The King Coal “Royal” Operation (SMP #17010115) lies in this headwaters section of Emigh Run. (See Exhibit #A.)

 

F.         Remining is the re-affecting of previously mined areas by surface mining methods to extract remaining coal reserves.  Remining, when implemented with the appropriate best management practices (“BMPs”), can be an effective way of abating or reducing acid mine drainage and improving water quality. 

 

G.        Section 1396.4f of the Surface Mining Act, 52 P.S. §139.4f, contains the substance of the Department’s existing program for the remining of previously affected areas.  This section of the act was added in 1984.  This section of the Act, along with the implementing regulations of 25 PA Code  §§87.201-209, are known as Subchapter F.

 

H.        Prior to the formal statutory adoption of Subchapter F and the approval by the Office of Surface Mining of its incorporation into Pennsylvania’s primacy program, the Department entered into a number of Consent Order and Agreements which contained Subchapter F provisions. 

 

I.          The existing Subchapter F program has been successful in providing incentives for remining and improving water quality throughout Pennsylvania.  Since its inception, 260 Subchapter F permits have been issued.  Of these 260 permits, only 5 or less than 2% have incurred long-term treatment liability or ended in bond forfeiture, a rate which is lower than conventional mining permits.  As time has passed, the Department has decided that there are additional ways of providing remining incentives and creating possibilities for abating or reducing acid mine drainage and improving water quality.

 

J.      “Remine PA” is a program established by Governor Tom Ridge to encourage reclamation of abandoned mined lands in Pennsylvania.  The program consists of a series of incentives to encourage remining of abandoned mine lands as one of the most effective means of achieving reclamation.  One of these incentives was to add flexibility to Pennsylvania’s Subchapter F permitting program, to further encourage remining in areas which may result in improved water quality.

            K.          Project XL is a U. S. Environmental Protection Agency (“EPA”) initiative to test the extent to which regulatory flexibility, and other innovative environmental approaches, can be implemented to achieve both superior environmental performance and reduced economic and administrative burdens.  On September 22, 2000, PADEP and EPA signed a Project XL Final Project Agreement to explore a new approach to encourage remining and reclamation of abandoned coal mine sites.  The approach would be based on compliance with in-stream pollutant concentration limits and implementation of Best Management Practices BMPs, instead of National Pollutant Discharge Elimination System (“NPDES”) numeric effluent limitations measured at individual discharge points.  This XL Project will provide for a test of this approach in up to eight watersheds with significant acid mine drainage (AMD) pollution.

 

L.                  The Royal Operation contains ten preexisting pollutional discharges (#36, 39, 41, 44, 45, 53, 54, 57, 81, 83) occurring on areas located within or hydrologically connected to the surface mining permit area.

 

M.              Prior to the issuance of the “Royal” permit and the entry of this Consent Order and Agreement, neither King Coal nor any officer, principal shareholder, agent, partner, associate, parent corporation, contractor or subcontractor, or any related party has any legal responsibility or liability as an operator for treating the pollutional discharges within the Emigh Run watershed or has any statutory responsibility or liability for reclaiming the abandoned surface mines there.

 

N.                The water quality of Emigh Run is monitored at a point referred as MP 37, located approximately 3.0 miles upstream of the confluence of Emigh Run and Moshannon Creek, where an unimproved road crosses Emigh Run (See map attached as Exhibit A).  Water quality samples collected from February 2001 through June 2002 represent baseline water quality conditions.  The baseline water quality and statistical summary for MP 37 is provided in the table attached as Exhibit 2.   In addition, King Coal will monitor the in-stream quality at the following stream monitoring stations every calendar quarter: # 40, 56, 58, 90, and 91.

 

O.                The Department and King Coal have had several discussions regarding the use of Subchapter F to encourage remining and to abate acid mine drainage in Emigh Run.  Both parties agree that it is in the public interest to encourage abatement-oriented remining in the Emigh Run watershed and that additional remining can best be accomplished through the application of Subchapter F-like conditions to the entire watershed, rather than to individual permits and discharges.

 

P.         Water quality monitoring at MP-37 is the most effective way to measure the performance of AMD remediation activities within the Emigh Run watershed as the water quality impact of all remining, reclamation, and abatement activities are manifest at this point.  The water quality baseline uses concentration, rather than loading data because:  1)  In-stream concentration data are more stable than load data, rendering a higher quality statistical summary;  2)  concentration data are much easier and less costly to collect than load data;  3)  pollution loads from individual discharges are manifested in the in-stream concentration; and  4)  loading data in large streams tend to be dominated by flow, which makes it difficult and impractical to monitor actual changes in in-stream quality which is the actual principal goal of AMD-abatement oriented remining.

 

Q.          The Emigh Run Watershed is well-suited for the application of an alternative remining authorization for the following reasons:  1) It is currently not meeting in-stream water quality standards; 2) remining, employing the appropriate best management practices, is likely to result in an overall improvement to in-stream water quality and reduce the total maximum daily load of mine drainage pollutants; 3) significant reminable coal reserves are present in the watershed; 4) there is significant acreage in the watershed in need of surface reclamation; and 5) there are numerous sources of mine drainage entering the watershed, making monitoring at each discharge point less practical than in-stream performance monitoring.

 

R.                        Preexisting pollutional discharges meet Best Available Technology (BAT) effluent limits for some parameters as set forth in 25 PA Code Chapter 87.102.  On the “Royal” Operation (SMP #17010115), preexisting pollutional discharges MP# 36, 39, 41& 57 meet BAT limits for iron and manganese, but not for net acidity.

           

                                                                         Order

After full and complete negotiation of all matters set forth in this Consent Order and Agreement and upon mutual exchange of covenants contained herein, the parties desiring to avoid litigation and intending to be legally bound, it is hereby ORDERED by the Department and AGREED to by King Coal as follows:

  

1.         Authority.  This Consent Order and Agreement is an Order of the Department authorized and issued pursuant to Section 5 of the Clean Streams Law, 35 P.S. § 691.5; and Section 1917-A of the Administrative Code, supra.

 

2.         Findings.

 

a. King Coal agrees that the findings in Paragraphs A through R are true and correct and, in any matter or proceeding involving King Coal and the Department, King Coal shall not challenge the accuracy or validity of these findings.

 

b. The parties do not authorize any other persons to use the findings in this Consent Order and Agreement in any matter or proceeding.

 

3.            Effect of Agreement.  So long as King Coal complies with this Consent Order and Agreement, the Department will enforce the terms and conditions of Part A, Section I, Subsection D (Preexisting Pollutional Discharges), of Surface Mining Permits No. 17010115, in accordance with Paragraphs 3 through 19 of this Agreement.  If King Coal breaches this Consent Order and Agreement and/or fails to implement the approved pollutional abatement plan (Module 26), then the Department will enforce the terms and conditions of Part A, Section I, Subsection D of Surface Mining Permits No. 17010115 as those terms and conditions are currently set forth in that permit.

 

4.         Monitoring of Preexisting Pollutional Discharges.  At the initiation of mining activities, the individual preexisting pollutional discharges:  MP #36, 39, 41, 44, 45, 53, 54, 57, 81, and 83 shall be sampled every calendar quarter.  Sample results shall be submitted to the Moshannon District Office within 30 days of the end of the applicable quarter.

 

5.         Monitoring of in-stream point.  King Coal will conduct bimonthly (twice per month) water quality sampling of Emigh Run at MP 37 for pH, specific conductance, iron, manganese, sulfate, acidity, alkalinity, and total suspended solids.  Water quality analyses for MP 37 shall be submitted quarterly, no later than 30 days after the end of the applicable quarter.

 

6.         Determination of Significant Water Quality Degradation in Emigh Run.  Significant degradation of median stream water quality will have occurred if any of the two following conditions has been met:

 

            a.         If six or more consecutive bimonthly (twice per month) samples at MP 37 exceed the 95% tolerance limit for net acidity, iron or manganese (Item No. 4 of the Baseline Concentration Statistical Summary in the table attached as Exhibit 2); or

 

            b.         If statistical analysis of the MP 37 data from any water year defined as October 1 through September 30 reveals that the difference between the median concentration for net acidity, iron or manganese as compared to the premining baseline, is statistically significant as determined by a comparison of the approximate 95% confidence levels above the median (Item No. 5 of the Baseline Concentration Statistical Summary in the table attached as Exhibit 2); or

                       

7.         Degradation of preexisting discharge quality.  If significant degradation of the water quality at MP 37 occurs following the execution of this Agreement, as defined by Paragraphs 6 above, then within 30 days of receiving notice by the Department, King Coal shall:

 

            a.         Determine the pollutional load emanating from the preexisting pollutional discharges identified in Paragraph 4 above.  The current pollutional load for each discharge or hydrologic unit shall be determined using loading rates from the four most recent quarters.  This determination will be made using an n-value equal to the baseline n-value, regardless of the number of samples used.

 

            b.         Compare the current pollutional load with the baseline pollutional load established in Surface Mining Permits No. 17010115.    If statistical analysis of data from the four most recent quarters reveals that the difference between the median load for any of the parameters listed in Table D2 of Part A, Section I, Subsection D.6 of Surface Mining Permit No.17010115, as compared to the premining baseline, is statistically significant as determined by a comparison of approximate 95% confidence levels above the median listed in Table D2 (from Module 26.5(c), Item Number 5), then the pollution load has significantly increased. Where a preexisting discharge met BAT limits for iron and/or manganese as described in paragraph R above, the current parameter concentration will be compared with BAT limits as set forth in 25 PA Code Chapter 87.102.

 

            c.         If the determination in Paragraph 7b above, indicates increased pollutional load from one or more of the preexisting discharges, King Coal shall implement either of the options described in Subparagraphs 7.c.i and 7.c.ii below, or a combination of these two options.

 

                        (i)         Commence treatment of the affected discharges necessary to meet the effluent limitations established in Table D3 of Part A, Section I, Subsection D.6 of Surface Mining Permits No. 17010115 within 30 days, unless King Coal is able to affirmatively demonstrate to the satisfaction of the Department within 30 days that the increase in pollutional load has been caused by factors not attributable to King Coal’s mining operation;

 

                        (ii)        Cause other measures to be taken within the watershed which improve water quality at MP 37 sufficient to restore stream water quality to the baseline level as shown on Exhibit 2, statistical summary for MP 37.  If these measures will take longer than 90 days to implement, King Coal shall provide interim treatment under Subparagraph 7.c.i above until such time as the remedial measures under this Subparagraph 7.c.ii can be implemented.

 

            d.         If the determination in Paragraph 7b above, does not indicate increased pollutional load from one or more of the preexisting discharges and if the Department determines that significant degradation of MP 37 has been caused by King Coal’s mining operations. The Department reserves the right, in addition to its other remedies, to require King Coal to comply with paragraph 7.c.i or 7.c.ii.

 

8.         Additional Remedies. 

 

            a.         In the event King Coal fails to comply with any provision of this Consent Order and Agreement, the Department may, in addition to the remedies prescribed herein, pursue any remedy available for a violation of an order of the Department, including an action to enforce this Consent Order and Agreement.

 

            b.         The remedies provided by this Paragraph are cumulative and the exercise of one does not preclude the exercise of any other.  The failure of the Department to pursue any remedy shall not be deemed to be a waiver of that remedy.  The payment of a stipulated civil penalty, however, shall preclude any further assessment of civil penalties for the violation for which the stipulated civil penalty is paid.

 

9.                    Reservation of Rights.  The Department reserves the right to require additional measures to achieve compliance with applicable law.  King Coal reserves the right to challenge any action which the Department may take to require those measures.

 

10.       Liability of Operator.  King Coal shall be liable for any violations of the Consent Order and Agreement, including those caused by, contributed to, or allowed by its officers, agents, employees, or contractors.  King Coal also shall be liable for any violation of this Consent Order and Agreement caused by, contributed to, or allowed by its successors and assigns.

 

11.       Transfer of Site.

 

            a.         The duties and obligations under this Consent Order and Agreement shall not be modified, diminished, terminated or otherwise altered by the transfer of any legal or equitable interest in the Royal mine (SMP #17010115) or any part thereof.

 

            b.         If King Coal intends to transfer any legal or equitable interest in the Royal mine (SMP #17010115) or any part thereof which is affected by this Consent Order and Agreement, King Coal shall serve a copy of this Consent Order and Agreement upon the prospective transferee of the legal and equitable interest at least thirty (30) days prior to the contemplated transfer and shall simultaneously inform the District Office of the Department of such intent.

 

            c.         The Department in its sole discretion may agree to modify or terminate King Coal’s duties and obligations under this Consent Order and Agreement upon transfer of the Royal mine (SMP #17010115).  King Coal waives any right that it may have to challenge the Department's decision in this regard.

 

            12.       Correspondence with Department.  All correspondence with the Department concerning this Consent Order and Agreement shall be addressed to:

 

Department of Environmental Protection

Moshannon District Office

186 Enterprise Drive

Phillipsburg, PA16866

Phone (814) 342-8200 and Fax (814) 342-8216

 

13.              Correspondence with King Coal.  All correspondence with King Coal concerning this Consent Order and Agreement shall be addressed to:

 

Mr. John A. Decker, President

King Coal Sales, Inc.

P. O. 712

Philipsburg, PA  16866

 

            King Coal shall notify the Department whenever there is a change in the contact person's name, title, or address.  Service of any notice or any legal process for any purpose under this Consent Order and Agreement, including its enforcement, may be made by mailing a copy by first class mail to the above address.

 

            14.       Severability.  The paragraphs of this Consent Order and Agreement shall be severable and should any part hereof be declared invalid or unenforceable, the remainder shall continue in full force and effect between the parties.

 

            15.       Entire Agreement.  This Consent Order and Agreement shall constitute the entire integrated agreement of the parties.  No prior or contemporaneous communications or prior drafts shall be relevant or admissible for purposes of determining the meaning or extent of any provisions herein in any litigation or any other proceeding.

 

            16.       Attorney Fees.  The parties shall bear their respective attorney fees, expenses and other costs in the prosecution or defense of this matter or any related matters, arising prior to execution of this Consent Order and Agreement. 

 

            17.       Modifications.  No changes, additions, modifications, or amendments of this Consent Order and Agreement shall be effective unless they are set out in writing and signed by the parties hereto.

 

            18.       Titles.  A title used at the beginning of any paragraph of this Consent Order and Agreement may be used to aid in the construction of that paragraph, but shall not be treated as controlling.

 

            19.       Decisions under Consent Order.  Any decision which the Department makes under the provisions of this Consent Order and Agreement is intended to be neither a final action under 25 Pa. Code §1021.2, nor an adjudication under 2 Pa. C.S. §101.  Any objection that King Coal may have to the decision will be preserved until the Department enforces this Consent Order and Agreement.

 

IN WITNESS WHEREOF, the parties hereto have caused this Consent Order and Agreement to be executed by their duly authorized representatives.  The undersigned representatives of King Coal certify under penalty of law, as provided by 18 PA C.S. § 4904, that they are authorized to execute this Consent Order and Agreement on behalf of King Coal; that King Coal consents to the entry of this Consent Order and Agreement as a final ORDER of the Department; and that King Coal hereby knowingly waives its rights to appeal this Consent Order and Agreement and to challenge its content or validity, which rights may be available under Section 4 of the Environmental Hearing Board Act, the Act of July 13, 1988, P.L. 530, No. 1988-94, 35 P.S. § 7514; the Administrative Agency Law, 2 PA C.S. § 103(a) and Chapters 5A and 7A; or any other provision of law.  Signature by King Coal's attorney certifies only that the agreement has been signed after consulting with counsel.

FOR KING COAL                                          FOR THE COMMONWEALTH OF

COMPANY:                                                   PENNSYLVANIA, DEPARTMENT OF

ENVIRONMENTAL PROTECTION:

 

 

_______________________________          ________________________________

John A. Decker                                                Michael W. Smith

President                                                          District Mining Manager

 

 

_______________________________          ________________________________

James A. Naddeo                                             Martin H. Sokolow, Jr.

Attorney for King Coal Sales, Inc.                    Regional Counsel