(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:
Sky Haven Coal, Inc. : SMP No. 17990101 & 17930117
RR 1 Box 180 : Girard and Goshen Townships
Penfield, Pennsylvania 15849 : Clearfield County
CONSENT ORDER AND AGREEMENT
This Consent Order and Agreement is entered into this 7th day of February, 2001, by and between the Commonwealth of Pennsylvania, Department of Environmental Protection (hereinafter “Department”), and Sky Haven Coal, Inc. (hereinafter “Sky Haven”).
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 Mine 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, 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. Sky Haven is a corporation, organized and existing under the laws of the Commonwealth of Pennsylvania, that conducts surface mining of bituminous coal under License No. 101812. Joseph A. Owens is the President of Sky Haven.
C. The Surveyor Run watershed is approximately two miles northeast of Shawville, Pennsylvania, in Girard and Goshen Townships, Clearfield County. The watershed covers 5.8 square miles and consists chiefly of reclaimed and abandoned mine lands and forest land. Surface mining operations conducted in the period from the 1960’s through early 1980’s by Shawville Coal Company left hundreds of acres of abandoned, unreclaimed mine lands in the watershed. Also, underground mines were operated in the 1950’s and 1960’s by Lingle Coal Company and A. W. Bigler Coal Company and later abandoned. Both the surface and the underground mining operations resulted in numerous discharges of acid mine drainage which degraded the quality of Surveyor Run for most of its length, rendering it unsuitable for aquatic life.
D. Surveyor Run does not meet the in-stream water quality requirements for net acidity, and manganese in 25 PA Code Chapter 93 because the numerous discharges of acid mine drainage from abandoned surface and underground mines are uncontrolled and untreated. Surveyor Run at MP 6 does currently met in-stream water quality requirements for iron.
E. Surveyor Run consists of a main stem 1.3 miles in length as measured from the mouth to the confluence with Little Surveyor Run. Little Surveyor Run is 1.9 miles in length and contains 1.45 square miles. Little Surveyor Run does not meet in-stream water quality requirements set by 25 PA Code Chapter 93. The upper stem of Surveyor Run measured from the confluence with Little Surveyor Run to the Surveyor Run headwaters is 3 miles in length and contains 2.97 square miles of watershed. The upper stem of Surveyor Run does not meet the in-stream water quality requirements in 25 PA Code Chapter 93 for aluminum, iron and manganese because of acid mine drainage.
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 (“BMP’s”), can be 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 or 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 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 watershed with significant acid mine drainage (AMD) pollution.
L. Sky Haven was permitted the “Ridge Road” Operation (SMP #17990101) for the surface mining of five (5) separate coal seams on 149 permit acres. The Ridge Road Operation contains two (2) preexisting pollutional discharges (MP 2 and MP 4) occurring on areas located within or hydrologically connected to the surface mining permit area. Sky Haven transferred the “Surveyor Run #1” Operation (SMP #17930117) from Al Hamilton Contracting in September 2000. The “Surveyor Run #1” Operation permits the surface mining of three (3) separate coal seams on 327 permit acres. The “Surveyor Run #1” Operation contains four (4) preexisting pollutional discharges (MP 7, MP 9, MP 17, and MP 30) occurring on areas located within or hydrologically connected to the surface mining permit.
M. Neither Sky Haven 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 Surveyor Run watershed, or has any statutory responsibility or liability for reclaiming the abandoned surface and underground mines there.
N. The water quality of Surveyor Run is monitored at a point referred to as MP 6, located approximately 0.1 miles upstream of the confluence of Surveyor Run and the West Branch Susquehanna River (see Exhibit 6.1 of Sky Haven’s Surface Mining Permit No. 17990101 application package). Water quality samples collected from January 1998 through October 2000 represent baseline water quality conditions. The baseline water quality and statistical summary for MP 6 is provided in the table attached as Exhibit 1.
O. The Department and Sky Haven have had several discussions regarding the use of Subchapter F to encourage remining and to abate acid mine drainage in Surveyor Run. Both parties agree that it is in the public interest to encourage abatement-oriented remining in the Surveyor 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 6 is the most effective way to measure the performance of AMD remediation activities within the Surveyor 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 Surveyor 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 “Ridge Road” Operation (SMP #17990101), preexisting pollutional discharges MP 2 and MP 4 meet BAT limits for iron. On the “Surveyor Run #1” Operation (SMP #17930117), preexisting pollutional discharges MP 9, MP17, and MP 30 meet BAT limits for iron; discharges MP 17 and MP30 meet BAT for manganese.
S. The quality of Surveyor Run at MP 6 meets Chapter 93 in-stream iron standards of 1.5 mg/l.
Order
After full and complete negotiation of all matters set forth in this Consent Order and Agreement and upon mutual exchange of the 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 Sky Haven 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. Sky Haven agrees that the findings in Paragraphs A through S are true and correct and, in any matter or proceeding involving Sky Haven and the Department, Sky Haven 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 Sky Haven 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. 17990101 and No. 17930117, in accordance with Paragraphs 3 through 19 of this Agreement. If Sky Haven breaches this Consent Order and Agreement and/or fails to implement the approved pollutional abatement plan (Module26), then the Department will enforce the terms and conditions of Part A, Section I, Subsection D of Surface Mining Permits No. 17990101 and No. 17930117 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 2, MP 4, MP 7, MP 9, MP 17, and MP 30 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. Sky Haven will conduct bimonthly (twice per month) water quality sampling of Surveyor Run at MP 6 for pH, specific conductance, iron, manganese, sulfate, acidity, alkalinity, and total suspended solids. Water quality analyses for MP 6 shall be submitted quarterly, no later than 30 days after the end of the applicable quarter.
6. Determination of Significant Water Quality Degradation in Surveyor Run. Significant degradation of median stream water quality will have occurred if any of the three following conditions has been met:
a. If six or more consecutive bimonthly (twice per month) samples at MP 6 exceed the 95% tolerance limit for net acidity or manganese (Item No. 4 of the Baseline Concentration Statistical Summary in the table attached as Exhibit 1); or
b. If statistical analysis of the MP 6 data from any water year defined as October 1 through September 30 reveals that the difference between the median concentration for net acidity, 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 1); or
c. If median in-stream iron concentration for twelve consecutive months at MP 6 exceeds 1.5 mg/l.
7. Degradation of preexisting discharge quality. If significant degradation of the water quality at MP 6 occurs following the execution of this Agreement, as defined by Paragraphs 6 above, then within 30 days of receiving notice by the Department, Sky Haven 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. 17990101 and No. 17930117. 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 Permits No.17990101 and/or No.17930117, 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, Sky Haven 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. 17990101and/or No. 17930117 within 30 days, unless Sky Haven 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 Sky Haven’s mining operation;
(ii) Cause other measures to be taken within the watershed which improve water quality at MP 6 sufficient to restore stream water quality to the baseline level as shown on Exhibit 1, statistical summary for MP 6. If these measures will take longer than 90 days to implement, Sky Haven shall provide interim treatment under Subparagraph7.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 6 has been caused by Sky Haven’s mining operations. The Department reserves the right, in addition to its other remedies, to require Sky Haven to comply with paragraph 7.c.i or 7.c.ii.
8. Additional Remedies.
a. In the event Sky Haven 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. Sky Haven reserves the right to challenge any action which the Department may take to require those measures.
10. Liability of Operator. Sky Haven 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. Sky Haven 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 Ridge Road mine (SMP #17990101) and/or Surveyor Run #1 mine (SMP #17930117) or any part thereof.
b. If Sky Haven intends to transfer any legal or equitable interest in the Ridge Road mine (SMP #17990101) and/or Surveyor Run #1 mine (SMP #17930117) or any part thereof which is affected by this Consent Order and Agreement, Sky Haven 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 Sky Haven’s duties and obligations under this Consent Order and Agreement upon transfer of the Ridge Road mine (SMP #17990101) and/or the Surveyor Run #1 mine (SMP #17930117). Sky Haven 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 PA
Phone (814) 342-8200 and Fax (814) 342-8216
13. Correspondence with Sky Haven. All correspondence with Sky Haven concerning this Consent Order and Agreement shall be addressed to:
Mr. Joseph A. Owens
President
Sky Haven Coal, Inc.
R. D. #1 Box 180
Penfield, PA 15849
Sky Haven 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 Sky Haven 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 Sky Haven 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 Sky Haven; that Sky Haven consents to the entry of this Consent Order and Agreement as a final ORDER of the Department; and that Sky Haven 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 Sky Haven’s attorney certifies only that the agreement has been signed after consulting with counsel.
FOR SKY HAVEN COAL , INC. FOR THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION
_______________________________ _______________________________
Joseph A. Owens Michael W. Smith
President District Mining Manager
_______________________________ ________________________________
Attorney for Sky Haven Coal, Inc. Martin H. Sokolow, Jr.
Regional Counsel
EXHIBIT #1:
BASELINE POLLUTIONAL CONCENTRATIONS: MP 6
Mine ID: 17990101 Mine Name: SKY HAVEN COAL, INC.
Baseline
Concentration Statistical Summary
CONCENTRATIONS (mg/L)
|
PARAMETER: |
|
NET ACIDITY |
IRON |
MANGANESE |
|
NUMBER OF SAMPLES
(N): |
|
33 |
33 |
33 |
|
1. RANGE |
LOW: |
22.00 |
0.37 |
3.05 |
|
: |
HIGH |
81.00 |
2.65 |
6.86 |
|
2. MEDIAN: |
|
34.00 |
0.79 |
5.12 |
|
3. QUARTILES |
LOW: |
28.00 |
0.54 |
4.25 |
|
|
HIGH: |
37.00 |
1.02 |
5.84 |
|
4. APPROXIMATE 95% |
LOW: |
25.00 |
0.40 |
3.11 |
|
TOLERANCE LIMITS |
HIGH: |
77.00 |
2.32 |
6.64 |
|
5. 95% CONFIDENCE INT. |
LOW: |
30.19 |
0.58 |
4.44 |
|
ABOUT MEDIAN |
HIGH: |
37.80 |
0.99 |
5.79 |
*NOTE: Confidence intervals about median = M +/- 1.58[1.25R/(1.35(SQR(N))]where
SQR(N)=the square root of the number of samples. From McGill, R., J-W
Statistician, Vol.32, No. 1,p.16.
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