(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
CONSENT
ORDER AND AGREEMENT
This Consent Order and Agreement is entered into this
_______ day of _______________________, 1999, 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, as amended, 52 P.S. § 1396.1-1396.31
("Surface Mining Act"); the Coal Refuse Disposal Control Act, Act of
September 24, 1968, P.L. 1040, as amended, 52 P.S.
§ 30.51-30.66 ("Coal Refuse Disposal Act"); The Clean Streams
Law, Act of June 22, 1937, P.L. 1987, as amended, 35
P.S. § 691.1-691.1001 ("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. Amerikohl
is a Pennsylvania corporation with a business address of 202 Sunset 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. The Soldier Run watershed is
approximately 8000 feet southwest of Dubois, Pennsylvania, in Winslow Township,
Jefferson County. The watershed covers
2.8 square miles and consists chiefly of reclaimed and abandoned mine land and
forestland. Underground mining of the
Lower Freeport coal seam in the Peterson and Nimo mines has resulted in
numerous acid mine drainage discharges which have degraded an unnamed
tributary to Soldier Run and Soldier
Run. The unnamed tributary has been identified as # 1.
D. Soldier
Run and unnamed tributary #1 do not meet the instream 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.
E. Remining
is the reaffecting 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.
F. 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, known
as Subchapter F, was added in 1984.
G. 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.
H. 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.
I. “Reclaim
PA” is a program established by Governor Tom Ridge to encourage reclamation of
abandoned mine 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.
J. 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.
K. Neither
Amerikohl 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 from or on the Rathmel mine, or has any statutory responsibility or
liability for reclaiming the Rathmel mine.
L. The water
quality of Soldier Run is monitored at a point referred to as S-4, located where Pennsylvania Route 322 crosses
Soldier Run.[the 6.2 shows S-4 about 700 feet downstream of 322] The water
quality of unnamed tributary #1 is monitored at a point referred to as S-2,
located at its confluence with Soldier Run (See map attached as Exhibit 1).
Water quality samples collected from December 1996 through March 1999 represent
baseline water quality conditions. A
statistical summary of the baseline water quality is summarized in the tables
attached as Exhibit 2 and Exhibit 3.
M. The
Department and Amerikohl have had several discussions regarding the use of
Subchapter F to encourage remining and to abate acid mine drainage in the
Soldier Run watershed. Both parties
agree that it is in the public interest to encourage abatement-oriented
remining in the Soldier 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.
N. Water
quality monitoring at S-2 and S-4 is the most effective way to measure the
performance of AMD remediation activities within the watershed as the water
quality impact of all remining, reclamation, and abatement activities are
manifest at these points. 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.
O. The Soldier
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; 5)
there are numerous sources of mine drainage entering the watershed,
making monitoring at each individual discharge point less practical than
in-stream performance monitoring; and 6)
there are multiple mining and reclamation activities proposed or ongoing
in the watershed, making it more practical to monitor the combined effect of
these projects rather than focusing on the performance of individual projects.
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 Amerikohl 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; Section 4.3 of the Surface Mining Act, 52 P.S.
§1396.4c; and Section 1917-A of the Administrative Code, supra.
2. Findings.
a. Amerikohl
agrees that the findings in Paragraphs
A through O 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. This
Consent Order and Agreement supersedes Part A, Section I, subsection D,
paragraphs 3 through 9(on pages 3 through 9) of Surface Mine Permit No.
33990101, except as expressly set forth in this Agreement. Should this agreement be terminated or
should Amerikohl breach this Consent Order and Agreement, Part A, Section I,
subsection D, paragraphs 3 through 9 of Surface Mining Permit No. 33990101
shall automatically be reinstated.
4. At the
initiation of mining activities, the sample points identified in paragraph J
(the original Subchapter F points) shall be sampled quarterly. Sample results shall be submitted to the
Knox District Office within 30 days of the end of the applicable quarter.
5. Amerikohl
will conduct bi-monthly water quality sampling of unnamed tributary #1 at S-2 and Soldier Run at S-4 for pH, specific conductance, iron,
manganese, aluminum, sulfate, acidity,
alkalinity, and total suspended solids.
Water quality analyses for S-2 and S-4 shall be submitted quarterly, no
later than 30 days after the end of the applicable quarter. If the median water quality[for what
parameters?] at S-2 and S-4 becomes
degraded following the execution of this agreement, as defined by Paragraphs 6a
or 6b below, then within 30 days of receiving notice by the Department,
Amerikohl shall:
a.
Determine the pollution load emanating from the preexisting pollutional
discharges identified in Paragraphs 4 and J above. The current pollution 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 pollution load with the baseline pollution load
established in the applicable permit or permits. 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 Coal Surface Mine Permit No. 33990101, 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.
c.
If the determination in Paragraph 5b above, indicates increased
pollution load from one or more preexisting discharges in HU-1, Amerikohl shall implement either of
the options described in Subparagraphs 1 and 2 below, or a combination of these
two options.
1. Commence treatment of the discharges or hydrologic units
identified in Paragraph 5a above within 30 days in accordance with permit
conditions 5 through 7 and the treatment limits established in Table D3 of Coal
Surface Mine Permit No. 33990101, unless it is able to affirmatively demonstrate
to the satisfaction of the Department within 30 days that the increase in
pollution load has been caused by factors not attributable to Amerikohl’s
mining operation;
2. Cause other measures to be taken within the watershed which
improve water quality at S-2 and S-4,
sufficient to restore instream water quality to the baseline level as
determined in Paragraph L, above. If
these measures will take longer than 90 days to implement, Amerikohl shall
provide interim treatment under Subparagraph 1 above until such time as the
remedial measures under this Subparagraph 2 can be implemented.
6. Comparison of Current
Water Quality With Baseline Conditions - Determination of Significant Water Quality
Degradation in Soldier Run
Significant degradation of instream water quality will
have occurred if either of the two following conditions has been met:
a. If
six or more consecutive bi-weekly samples at S-2 and S-4 exceed the 95% tolerance limit for net acidity, iron,
manganese or aluminum identified in the table attached as Exhibit 2; or
b. If
statistical analysis of data from any water year defined as October 1 through
September 30 reveals that the difference between the median concentration for
acidity, iron, manganese or aluminum as compared to the premining baseline (set
forth in Paragraph L and Exhibit 2), is statistically significant as determined
by a comparison of the approximate 95% confidence levels above the median
listed in the table attached as Exhibit 2.
. 7. Additional Remedies.
c. In
the event Amerikohl 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.
d. 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.
8. Reservation of Rights. The Department reserves the right to require
additional measures to achieve compliance with applicable law. Amerikohl reserves the right to challenge
any action which the Department may take to require those measures.
9. Liability of Operator. Amerikohl 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. Amerikohl
also shall be liable for any violation of this Consent Order and Agreement
caused by, contributed to, or allowed by its successors and assigns.
10. 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 Rathmel mine.
b. If
Amerikohl intends to transfer any legal or equitable interest in the Rathmel
mine or any part thereof which is
affected by this Consent Order and Agreement, Amerikohl 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.
e. The
Department in its sole discretion may agree to modify or terminate Amerikohl's
duties and obligations under this Consent Order and Agreement upon transfer of
the Rathmel mine. Amerikohl waives any right that it may have to challenge the
Department's decision in this regard.
11. Correspondence with Department. All correspondence with the Department
concerning this Consent Order and Agreement shall be addressed to:
Department of
Environmental Protection
P.O. Box 669, White
Memorial Building
Knox, PA 16232
Phone ( 814)
797-1191and Fax (814) 797-2706
12. Correspondence with Amerikohl. All correspondence with Amerikohl concerning
this Consent Order and Agreement shall be addressed to:
John
M. Stilley
Amerikohl
Mining, Inc.
202
Sunset Drive
Butler,
PA 16001
Phone
(724) 282-2339
Amerikohl 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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 Amerikohl 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 Amerikohl 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 Amerikohl; that Amerikohl consents to the entry of this
Consent Order and Agreement as a final ORDER of the Department; and that
Amerikohl 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 Amerikohl’s attorney certifies only that the
agreement has been signed after consulting with counsel.
FOR AMERIKOHL MINING, INC.: FOR THE COMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
ENVIRONMENTAL
PROTECTION:
_______________________________ ________________________________
John M. Stilley Javed I. Mirza
President District
Mining Manager
_______________________________ ________________________________
Name Michael
J. Heilman
Attorney for Amerikohl
Mining, Inc.
Assistant Counsel
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