(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:
Amerikohl Mining, Inc.:SMP
No. 33990101
202 Sunset Drive:Rathmel
Mine
Butler, Pennsylvania 16001:Winslow Township,
Jefferson
County
AMENDMENT
OF CONSENT ORDER AND AGREEMENT
This Amendment of a Consent Order
and Agreement is entered into this day of , 2000, by
and between the Commonwealth of Pennsylvania, Department of Environmental
Protection (hereinafter "Department"), and Amerikohl Mining,
Inc.(hereinafter
"Amerikohl").
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, asamended, 52 P.S. § 1396.1 etseq.
("Surface Mining Act"); the Coal Refuse Disposal Control Act, Act of
September 24, 1968, P.L. 1040, asamended, 52 P.S. § 30.51 etseq. ("Coal Refuse Disposal Act"); The Clean Streams Law, Act
of June 22, 1937, P.L. 1987, asamended, 35 P.S. § 691.1 etseq. ("Clean Streams Law"); Section 1917-A of the
Administrative Code of 1929, Act of April 9, 1929, P.L. 177, asamended,
71 P.S. § 510-17 ("Administrative Code") and the rules and
regulations promulgated thereunder.
B.Amerikohl
is a Pennsylvania corporation with a business address of 202Sunset Drive, Butler, Pennsylvania 16001
whose business includes the mining of bituminous coal in the Commonwealth by
the surface mining method.John M.
Stilley is the president of Amerikohl.
C.Amerikohl has permitted the Rathmel mine, SMP No. 33990101 in Winslow
Township, Jefferson County.The permit
(“the Rathmel SMP”) was issued for 127.8 acres on July 22, 1999 to mine the
Lower Freeport coal seam.The permit
includes special authorization under 25 Pa. Code Chapter 87, Subchapter F for
preexisting discharges of acid mine drainage.These preexisting discharges are identified as: D1, D2, D3, D5, SP4,
SP7, and SP9 (combined as hydrologic unit HU-1).The Rathmel mine is located within the Soldier Run watershed.
D.On October 27,
1999, the Department and Amerikohl entered into a Consent Order and Agreement
which allowed the option of evaluating the preexisting discharges based on the
effect on the receiving stream.
E.
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, The Department and
EPA signed a Project XL Final Project Agreement (“XL 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 pollution.
F.The XL Agreement requires revision to the October 22, 1999 Consent Order
and Agreement used to implement BMP.
Order
After full and complete negotiation
of all matters set forth in this Amendment of the Consent Order and Agreement
dated October 27, 1999, 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 Amerikohl as follows:
1.Authority.This Amendment of 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.Amerikohl agrees that the findings in
Paragraphs A through F are true and correct and, in any matter or proceeding
involving Amerikohl and the Department, Amerikohl 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.The Consent Order and Agreement dated October 27,1999 is
hereby amended to replace paragraph 3 with the following:
Effect of Agreement.So long as Amerikohl
complies with thisThisConsent
Order and Agreement, the Department will enforcethe
terms and conditions of supersedesPart A, Section I, Subsection D
(Preexisting Pollutional Discharges), of Surface Mining Permit No.33990101, in
accordance with Paragraphs 3 through 16 of this Agreementexcept
as expressly set forth in this Agreement.If Amerikohl breaches this Consent Order and Agreement and/or fails to
perform its obligations under this Agreement, then
the Department will enforce the terms
and conditions of PPart
A, Section I, Subsection D of Surface Mining Permit No. 33990101 as those
terms and conditions arecurrently set forth in that permitshall automatically be reinstated.
4.All
other terms of the Consent Order and Agreement dated October 27, 1999 shall
remain in effect.
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment of Consent Order and Agreement to be executed
by their duly authorized representatives.The undersigned representatives of Amerikohl certify under penalty of
law, as provided by 18 Pa.C.S. § 4904, that they are authorized to execute this
Amendment of Consent Order and Agreement on behalf of Amerikohl; that Amerikohl
consents to the entry of this Amendment of Consent Order and Agreement as a
final ORDER of the Department; and that Amerikohl hereby knowingly waives its
rights to appeal this Amendment of 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 5Aand 7A; or any other
provision of law.Signature by
Amerikohl’s attorney certifies only that the agreement has been signed after
consulting with counsel.
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