The purpose of this report is to provide an update on the progress of this two-year study of the Pennsylvania Department of Environmental Protection’s (PADEP) use of settlement agreements to achieve third-party reclamation of bond forfeited permits with acid mine drainage (AMD). The study is to determine whether this third-party reclamation meets the requirements of the approved state program; and the reclamation plan, including land reclamation and long-term treatment of pollutional discharges. A final report will be completed by April 30, 2001.

Settlement agreements with third-parties for reclamation of permit areas where the performance bonds have been forfeited or the bonds are currently in the bond forfeiture process take the form of either Consent Adjudications (CA) or Consent Order and Agreements (CO&A). CAs require the approval of the Pennsylvania Environmental Hearing Board (EHB) and are published in the Pennsylvania Bulletin with a 30-day comment period prior to approval. EHB approval indicates that the CA contains no provisions that are contrary to law or constitute overreaching or bad faith, and that all comments were considered. CO&As, on the other hand, cover matters that have not been submitted to the EHB for approval, matters that have not been appealed, and agreements for reclamation in-lieu-of payment of civil penalties. For simplification, this report will refer to both types of settlement agreements as CO&As.

OSM conducted four previous oversight reviews of the PADEP’s use of CO&As. The first review was completed in the 1991 oversight report period. The second review began in 1997 and was completed in the 1998 report period. The third review was completed in early 1999 and the fourth review was completed in September of 1999.

The sample population consists of all of the permits identified during the ongoing bond forfeiture study of third-party reclamation of primacy permits to identify forfeited permits with AMD and to update the AMD database. For each CO&A evaluated, the permit file was reviewed, onsite inspection conducted and appropriate reports completed.

Sample Selection

CO&A samples were selected from the bond forfeiture study survey that identified AMD on forfeited permits with third-party reclamation. The Field Office's findings for each CO&A and the underlying sample permits are based on review of the agreements, as well as file reviews and onsite inspections of the permits. PADEP personnel are usually involved in the review during the onsite inspection or file review. This study will continue into the next evaluation year.

As of the end of EY 2000 the Field Office had completed review of 9 CO&As covering 18 bond forfeited permits with AMD. On all of the permits, but one, land reclamation had been successfully completed by the third-party in accordance with the reclamation plan. On that remaining one case, land reclamation was scheduled to begin. As for abatement of long-term AMD, 5 of the discharges were treated, to some degree, with passive treatment systems; 2 of the discharges had ceased to flow; and the remaining 11 permits, which were characterized as having only low-flow discharges with minimal offsite impacts, had no treatment occurring. Additionally, on the 5 discharges with some form of passive treatment, no provision had been made for long-term monitoring or maintenance of the treatment systems. It should be noted that these findings are consistent with findings from review of bond forfeiture reclamation on sites where no settlement agreement is involved. That is to say, the reclamation plan is accomplished for land reclamation, but treatment of long-term AMD is seldom accomplished.