Consent Adjudication

Consent Orders and Agreements

EY 2001

 

Introduction:

The Harrisburg Field Office conducted a review of the Pennsylvania Department of Environmental Protection=s (PADEP) use of settlement agreements for third-party reclamation of bond forfeited permits with long-term water pollution. The purpose of this study was to assess how CO&As for third-party reclamation on forfeited permits address existing pollutional discharges. In addition, the study looked at how these agreements dealt with long-term success of reclamation performed by third parties.

Summary Findings:

• PADEP used CO&As with the sureties and/or third parties to successfully complete land reclamation on forfeited permits. Reclamation was successfully accomplished on 22 of the 23 third-party reclamation sites reviewed. The remaining site was due to be reclaimed in the near future.

• PADEP is addressing discharges in CO&As. Seven of the CO&As reviewed had passive treatment systems installed to improve pollutional discharges. All of the untreated discharges in the study were either not discharging at the time of inspection or exhibited minimal flow.

Data Presentation and Discussion:

This CO&A study of third-party reclamation on forfeited permits with long-term pollutional discharges (AMD) began in Evaluation Year 2000, and was completed early in Evaluation Year 2001. For the study, OSM reviewed eleven CO&As covering twenty-three bond forfeited permits. Of the 23 permits reviewed, 22 had at least one pollutional discharge at the time of forfeiture. The discharge on the remaining permit met effluent limits at the time of the field inspection.

PADEP had successfully accomplished land reclamation on 22 of the 23 third-party reclamation sites reviewed. This includes returning the site to the approximately original contour, elimination of all highwalls, and successful revegetation. On the remaining permit, PADEP had scheduled land reclamation to begin in the near future.

PADEP effectively addressed serious long-term water pollution issues on the permits reviewed. One of the permits reviewed met effluent limits; two others had ceased to flow; seven were receiving some form of passive treatment; and the remaining 13 permits, which had no treatment occurring, were characterized as having low-flow discharges with no or minimal offsite impacts. On the 7 discharges with passive treatment, no provision had been made with the third-party for long-term monitoring or maintenance of the treatment systems. However, PADEP plans to address any long-term programmatic responsibility for discharges on primacy forfeitures by several means. These include; excess funds from the alternative bonding system, Title IV 10% set-aside funding approved for qualified hydrologic units, Title IV funding in cases involving insolvent sureties, remining by qualified operators, and reclamation-in-lieu of civil penalties.

In addition, for the CO&As reviewed where surety companies were performing the reclamation, the responsibility for long-term success of revegetation was assumed by PADEP. PADEP has received $5.5 million from the legislature to address revegetation failure and to insure long-term success of reclamation on forfeited sites.

Background:

One of the means employed by PADEP to achieve successful reclamation of bond-forfeited sites is settlement agreements with third parties. The objective of these settlement agreements, which are frequently negotiated with surety companies, is to accomplish reclamation of the forfeited site at a cost savings to the state’s alternative bonding system. In these agreements, PADEP completes the forfeiture action, but forgoes collection of part or all of the bond in exchange for the third party performing full reclamation of the site. In such cases, the third party essentially acts as a contractor performing the reclamation after forfeiture. In the past, OSM has observed that PADEP’s use of these settlement agreements has consistently achieved an equal amount of, and in many cases more, land reclamation than would have been possible using just the forfeited bond monies. The reclamation plan is accomplished for land reclamation, but long-term water pollution issues were not always addressed because of inadequate bond. As a result, receiving streams and associated watersheds may be impacted when a bond is forfeited. (Insufficient bond to address long-term treatment of pollutional discharges is an issue shared by most coal producing states.) PADEP is planning to address long-term treatment of forfeiture discharges through several program mechanisms described in the following section of this report. Where applicable, the alternative bonding system fund (bond pool) provides funding for any additional reseeding and planting needed to insure long-term revegetation success.

Third-party settlement agreements take two forms: Consent Adjudications (CA) and Consent Order and Agreements (CO&A). CA’s are agreements approved by the Environmental Hearing Board (EHB) and published in the Pennsylvania Bulletin with a 30-day comment period. EHB approval means that the agreement is not contrary to law, and that all comments were considered. CO&As, on the other hand, are not submitted to the EHB for approval; they are generally used to address matters that have not been appealed. CO&As are also used to establish agreements for reclamation in-lieu-of cash payments for civil penalty debt. For simplification, this report will refer to both types of agreements as CO&As.

Methodology:

The sample population for this study was all CO&As with long-term pollutional discharges identified during a separate study of CO&As related to post bond forfeiture third-party reclamation of primacy permits. The Field Office's findings for each CO&A and the underlying sample permits are based on review of the agreement, as well as, file reviews and onsite inspections of the permits. OSM and PADEP personnel jointly conducted the majority of the inspections.