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Mountain Watershed Association asks federal board to step in on mining pollution issue

By Susy Kelly skelly@heraldstandard.Com 5 min read

A federal appeals board is weighing arguments from both sides of a debate over which Pennsylvania regulatory agency should handle pollution caused by tree-clearing activity at a permitted coal mining site near Ohiopyle State Park.

With the assistance of attorney Odam Salim of Fair Shake Environmental Legal Services, the Mountain Watershed Association (MWA) filed a brief last month in the appeal of Amerikohl Mining against violation notices from the federal Office of Surface Mining Reclamation and Reinforcement (OSM).

“Right now Pennsylvanians are stuck in a state of limbo due to the DEP’s inability to form a position on this crucial issue,” the MWA’s brief states. “This appeal presents an opportunity for the board to provide a clear precedent for Pennsylvania and prevent further degradation of Pennsylvania’s environment caused as a result of regulatory inconsistency.”

The MWA has accused the DEP of being internally inconsistent when it comes to timbering on a permitted mine site. Association members began reporting pollution coming from a Dunbar Township site in 2011, but the DEP was unable to determine which agency within the department had authority to regulate the activity.

The case in point involves Amerikohl’s Curry mine site situated in a remote area near Camp Carmel, a Christian summer camp. According to court documents, Amerikohl obtained a permit from the DEP to mine for coal in 2011, and MWA members noted runoff flowing from timbering activity that began that year. The MWA filed complaints with the DEP’s Bureau of Mining (BOM), which indicated the timbering was not a mining activity because coal removal had not begun.

Two years later, more logging activity occurred, and with it, more sediment flow into the Yough. MWA complained to the DEP again. The BOM again claimed it had no oversight, and that the DEP’s Bureau of Waterways Engineering and Wetlands should handle it.

Because the logging took place on a permitted mine site, the Bureau of Waterways Engineering and Wetlands indicated the issue fell under the purview of the BOM.

“As a result, neither the timbering company nor Amerikohl was required to install erosion and sedimentation controls,” said Krissy Kasserman, in a July blog post. Kasserman is the MWA’s Youghiogheny Riverkeeper, and her responsibility is to advocate for the river’s watershed.

The MWA took its complaint to the OSM, which found the DEP should have taken measures to regulate the activity at the site. DEP disagreed, again arguing that the activity did not fall under mining regulations. Amerikohl received two notices of violation and a cessation order from the OSM, prompting the coal company to appeal to the federal Interior Board of Land Appeals.

John Poister, spokesman for the DEP, said he could not comment on the department’s position on open litigation.

According to a September 2014 opinion issued by Administrative Law Judge Harvey C. Sweitzer, “The factor in this case that most strongly supports Amerikohl’s position is that Amerikohl did not receive direct economic benefit from the logging conducted at the Curry Mine. Curry removed some timber but left behind stumps, smaller trees, and other vegetation that Amerikohl will still need to remove before commencing any mining operation.”

The statute that governs mining activity does not require that the activities benefit surface mining operations financially, however, Sweitzer noted.

He went on to outline evidence that the logging and mining activities were directly connected.

“Mr. (Charles) Curry did virtually everything he could to facilitate mining through his logging practices including: asking Mr. Maxwell which contractor he should select to conduct the logging operation; making sure that logging operations did not interfere with any staging area for mining operations; asking Mr. Maxwell or his staff to delineate the specific area Amerikohl wanted to cut; removing more trees than is prudent from a forest management perspective; cutting logs at the locations designated for Amerikohl’s sediment ponds first so Amerikohl could begin work on those ponds as soon as possible; harvesting trees consistent with restrictions in Amerikohl’s mining permit to assure that Amerikohl would not come under scrutiny for violating its permit; and harvesting trees under a timetable requested by Amerikohl.”

While the Curry mine site was eventually stabilized and runoff is no longer being detected in the Yough, Kasserman said it’s important for the DEP to concretely establish which of its bureaus will address similar issues if they come up again.

“This is one site,” she said. “We see erosion and sedimentation issues up and down the river.”

The stream has an ecosystem of its own, Kasserman said, noting that the section where the pollution has been detected is designated for high quality cold water fishes. The insects in the stream are a critical food source for fish and birds, Kasserman said, and those insects are smothered by the sedimentation.

“As OSM’s tests results revealed, (the run off) was extremely high in total suspended solids and iron. The water flowed to such a great extent that it created a plume a third of a mile long in the Yough,” the MWA stated in its brief. That section is also upstream from 2 drinking water intakes that serve 28 percent of Westmoreland and 24 percent of Fayette County residents, the MWA stated.

“When the Curry permit was originally submitted for review, the DEP returned the permit because they didn’t believe the erosion and sedimentation plan was sufficient,” Kasserman said, which illustrates that such controls are important to the department. “Amerikohl was forced to revise their application.”

The approved permit expired after three years because it was never activated.

To date, no coal has been extracted from the Curry site.

According to the MWA, “The law clearly mandates that (erosion and sedimentation) controls must be installed onsite and that discharge from a disturbed area needs to meet effluent standards. Amerikohl can point to no exception or provision in the law that qualifies those requirements.”

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