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(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:
River Hill Coal Company, Inc. : SMP
No. 17990107
P.O. Box 141
: Bigler Townships,
Kylertown, Pennsylvania 16847 :
Clearfield County
:
CONSENT
ORDER AND AGREEMENT
This
Consent Order and Agreement is entered into this ______ day of
________, 2001, by and between the Commonwealth of Pennsylvania, Department of
Environmental Protection (hereinafter "Department"), and River Hill
Coal Company, Inc. (hereinafter "River Hill").
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. River Hill is a Pennsylvania
corporation with a business address of P.O. Box 141, Kylertown, Pennsylvania
16847, whose business includes the mining of bituminous coal in the
Commonwealth by the surface mining method.
Harry Hanchar is the president of River Hill.
C. The Pine Run watershed is west of
Belsena, Pennsylvania, in Bigler Township, Clearfield County, and drains to
Clearfield Creek. The entire Pine Run
watershed covers approximately 3.9 square miles and consists chiefly of active,
reclaimed, and abandoned mine lands, forestland, and wetlands. The entire length of Pine Run from its
confluence with Clearfield Creek to the headwaters is about 4.3 miles. Within the lower portion of the Pine Run
watershed, from the confluence of Pine Run and Clearfield Creek to
approximately 2.5 miles upstream of the confluence, previous coal mining activities
on the Clarion coal seam have impacted the quality of the stream. This portion of the watershed covers about
1.7 square miles. Beginning about 1.2
miles above its confluence with Clearfield Creek, Pine Run is impacted more
severely by acid mine drainage to the extent that aquatic life is no longer
present. This severely degraded portion
of the watershed covers about 0.6 square miles. It is the lower 1.2 mile segment of Pine Run that is subject to
the provisions of this Consent Order and Agreement.
D. Within the
affected lower portion of the Pine Run watershed, there is over one hundred
acres of abandoned surface and underground mines on the Clarion coal seam. These past surface and underground mining
operations have resulted in numerous surface discharges and baseflow
groundwater runoff of acid mine drainage that have significantly degraded the
quality of Pine Run. Precipitation and
snowmelt that percolate through surface mine pits, high-sulfur spoils, and coal
refuse eventually discharge into Pine Run as acidic and mineralized
drainage. Also, abandoned underground
mines on the Clarion coal seam left freely draining voids, primarily on the
northwest side of Pine Run, where groundwaters are intercepted and transmitted
to the surface as acid mine drainage.
E. The lower section of Pine Run from its
confluence with Clearfield Creek to approximately 1.2 miles above Clearfield
Creek does not meet the in-stream water quality requirements in 25 Pa. Code
Chapter 93 because the numerous discharges of acid mine drainage from abandoned
surface and underground mines are uncontrolled and untreated.
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. §1396.4f, 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, 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-type
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. “Reclaim 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 the 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. River Hill applied for a surface coal
mining permit for a site within the Pine Run watershed in Bigler Township,
Clearfield County, Surface Mining Permit #17990107, Mid Penn #1
Operation. The Mid Penn #1 permit was
issued for 234.5 acres on July 5, 2001, to mine the Clarion and Lower
Kittanning coal seams. The Mid Penn #1
permit includes seven (7) preexisting pollutional discharges that are emanating
from areas within the permit boundary or from areas that are hydrologically
connected to the proposed mining on the permit. These discharges are identified as MP11, MP13, MP14, MP15, MP18,
MP23, and MP30. Discharges MP15, MP18,
and MP23 have been arithmetically combined into one hydrologic unit, designated
as Hydro Unit 1.
M. Prior to the issuance of the Mid Penn #1
permit and the entry of this Consent Order and Agreement, neither River Hill
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 lower Pine Run watershed, or has any statutory
responsibility or liability for reclaiming the abandoned surface and
underground mines there.
N. The water quality of Pine Run is
monitored at a point referred to as MP24, located approximately 0.58 miles
upstream of the confluence of Pine Run and Clearfield Creek (see Exhibit 6.2 of
River Hill’s Surface Mining Permit #17990107 application package). Water quality samples collected from May
1998 through December 2000 represent baseline water quality conditions. The baseline water quality and statistical
summary for MP24 are provided in the table attached as Exhibit 1.
O. The Department and River Hill have had
several discussions regarding the use of Subchapter F to encourage remining and
to abate acid mine drainage in Pine Run.
Both parties agree that it is in the public interest to encourage
abatement-oriented remining in the Pine 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. In-stream water quality monitoring at MP24 is the most effective way to measure the performance of AMD remediation activities within the Pine Run watershed as the water quality impacts 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 changes in in-stream quality which is the principal goal of AMD-abatement oriented remining.
Q. The Pine 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.
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 River Hill 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. River Hill agrees that the findings in
Paragraphs A through Q are true and correct and, in any matter or proceeding
involving River Hill and the Department, River Hill 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 River Hill complies with this ThisConsent Order and Agreement, the Department will enforce
the terms and conditions of supersedes Part A,
Section I, Subsection D (Preexisting Pollutional Discharges), of Surface Mining
Permit #17990107, in
accordance with Paragraphs 3 through 20 of this Agreement.except as expressly set forth in
this Agreement If River
Hill breaches this Consent Order and Agreement and/or fails to implement the
approved pollution abatement plan (Module 26), thenthen the Department will enforce the terms and conditions of PPart A, Section I, Subsection D of Surface
Mining Permit No. 17990107 as
those terms and conditions are currently set forth in that permit. shall
automatically be reinstated.
4. Monitoring
of Preexisting Pollutional Discharges.
At the initiation of mining activities, the individual preexisting
pollutional discharges at monitoring points MP11, MP13, MP14, Hydro Unit 1
(MP15, MP18, MP23), and MP30 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. River Hill will
conduct bimonthly (twice per month) water quality sampling of Pine Run at MP24
for pH, specific conductance, iron, manganese, aluminum, sulfate, acidity,
alkalinity, and total suspended solids.
Monitoring Point MP24 is located on Pine Run approximately 5.7 tenths of
a mile above the confluence with Clearfield Creek. Water quality analyses for MP24 shall be submitted quarterly, no
later than 30 days after the end of the applicable quarter.
6. Determination
of Significant Water Quality Degradation in Pine Run
Significant
degradation of median in-stream water quality will have occurred if either of
the two following conditions has been met:
a. If six or more consecutive bimonthly
(twice per month) samples at MP24 exceed the 95% tolerance limit for net
acidity and/or iron concentrations (Item No. 4 of the Baseline Concentration
Statistical Summary in the table attached as Exhibit 1); or
b. If statistical analysis of the MP24
data from any water year defined as October 1 through September 30 reveals that
the difference between the median concentration for net acidity and/or iron 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 1).
7.
Degradation of Preexisting Pollutional Discharge Quality
If
significant degradation of the median in-stream water quality at MP24 occurs
following the execution of this Agreement, as defined by Paragraph 6 above,
then within 30 days of receiving notice by the Department, River Hill shall
examine the degraded parameter(s) of the individual preexisting pollutional
discharges as specified below:
a. Determine the current pollutional load
emanating from the preexisting pollutional discharges Hydro Unit 1 (MP15, MP18,
and MP23) and MP30. The current
pollutional load of the degraded parameter(s) defined by Paragraph 6 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 of
the degraded parameter(s) defined by Paragraph 6 with the baseline pollutional
load established in Modules 26.5(B) and 26.5(C) of Surface Mining
Permit #17990107. If statistical
analysis of the data from the four most recent quarters reveals that any
increase in the median load for the degraded parameter(s), as compared to the
premining baseline, is statistically significant, as determined by a comparison
of the approximate 95% confidence intervals about the median (Item No. 5 of
Module 26.5(C) and listed in Table D2 of Surface Mining Permit #17990107, Part
A, Section I, Subsection D.5), then the pollutional load has been significantly
increased. Where any preexisting
pollutional discharge, prior to remining, met Best Available Treatment (BAT)
limits for iron and/or manganese, the current parameter concentration will be
compared to the BAT limits as set forth in 25 PA Code Chapter 87.102. Exceedence of BAT limits will then
constitute a significant degradation.
c. If the determination in Paragraph 7b
above, indicates increased pollutional load or degradation of the parameter(s)
defined by Paragraph 6 from one or more of the preexisting discharges, River
Hill 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 of the applicable
parameter(s) established in Table D3 of Part A, Section I, Subsection D.6
of Surface Mining Permit #17990107 within 30 days, unless River Hill 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 River Hill’s mining operation;
(ii) Cause other measures to be taken within
the watershed that improve water quality at MP24 sufficient to restore stream
water quality to the baseline level as shown on Exhibit 1, statistical summary
for MP24. If these measures will take
longer than 90 days to implement, River Hill 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 or degradation of one or
more of the preexisting discharges, and if the Department determines that
significant degradation of MP24 has been caused by River Hill’s mining
operations, the Department reserves the right, in addition to its other
remedies, to require River Hill to comply with paragraph 7.c.i or 7.c.ii.
8. Applicability. The provisions of Paragraph 6 and 7
apply to discharges MP15, MP18, MP23, and MP30 only. Part A, Section I, Subsection D of Surface Mining Permit
#17990107 shall apply to discharges MP11, MP13, and MP14. Discharges MP11, MP13, and MP14 drain to a
segment of Pine Run that, although it has been affected by past mining, has not
been degraded to the extent that aquatic life, including fish, is no longer
sustainable. Benthic macroinvertebrates
and fish are currently present in Pine Run down to the confluence of that
stream with the drainage from MP15.
Beyond its confluence with MP15, the stream is devoid of aquatic
life. MP15, MP18, MP23, and MP30 all
discharge directly to the degraded segment of Pine Run.
9. Additional
Remedies.
a. In the event River Hill 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.
10. Reservation
of Rights. The Department reserves
the right to require additional measures to achieve compliance with applicable
law. River Hill reserves the right to
challenge any action which the Department may take to require those measures.
11. Liability
of Operator. River Hill 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. River Hill also shall be
liable for any violation of this Consent Order and Agreement caused by,
contributed to, or allowed by its successors and assigns.
12. 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 Mid
Penn #1 mine (SMP #17990107) or any part thereof.
b. If River Hill intends to transfer any
legal or equitable interest in the Mid Penn #1 mine (SMP #17990107) or any part
thereof which is affected by this Consent Order and Agreement, River Hill 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 River Hill’s duties and obligations under this
Consent Order and Agreement upon transfer of the Mid Penn #1 mine (SMP
#17990107). River Hill waives any right
that it may have to challenge the Department's decision in this regard.
13. 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 PA 16866
Phone (814) 342-8200 and Fax (814) 342-8216
14. Correspondence
with River Hill. All correspondence
with River Hill concerning this Consent Order and Agreement shall be addressed
to:
Harry
Hanchar, President
River Hill
Coal Company, Inc.
P.O. Box
141
Kylertown,
PA 16847
Phone
(814) 345-5642 and Fax (814) 345-6765
River Hill
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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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 which River Hill 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 River Hill 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 River Hill; that River
Hill consents to the entry of this Consent Order and Agreement as a final ORDER
of the Department; and that River Hill 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 River Hill’s attorney certifies only that the agreement has
been signed after consulting with counsel.
FOR RIVER HILL COAL COMPANY, INC. FOR THE COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
ENVIRONMENTAL
PROTECTION
_______________________________ _______________________________
Harry Hanchar Michael
W. Smith
President District
Mining Manager
_______________________________ ________________________________
Attorney for River Hill Coal Co., Inc. Martin H.
Sokolow, Jr.
Regional
Counsel
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