Gaston's back-up comes through

In March, this blog described a "bureaucratic version of the Alphonse and Gaston routine" — "After you, Alphonse." "No, you first, my dear Gaston." — in which two units of Pennsylvania's Department of Environmental Protection (DEP) pointed to each other as being responsible for regulating a parcel of land in Fayette County known as the Curry site while unchecked erosion on the site was causing discharges of sediment that polluted the Youghiogheny River. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP's Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP's Mining Program.


In an update posted in July — "Alphonse Makes a Play" — we applauded W&W for taking enforcement actions against the owner of the Curry site and a timbering company for violation of DEP's erosion and sedimentation control regulations.


Gaston, in contrast, has been a stick-in-the-sediment.


Gaston — the DEP Mining Program — initially issued a compliance order to the company that holds the surface mining permit for the Curry site, Amerikohl Mining, Inc. It then abruptly reversed course, deciding that the clear-cutting of trees on portions of the site closely corresponding to those permitted for mining activities was not related to the proposed mining operation. The DEP Mining Program reasoned that because the timbering and mining operations were independent, any ongoing soil erosion and sediment pollution resulting from the timbering was not Amerikohl's responsibility and was not within the Mining Program's regulatory jurisdiction.


In short, Gaston's position was "don't call me, call Alphonse."


Fortunately, Gaston has a back-up, in the form of the federal Office of Surface Mining Reclamation and Enforcement (OSMRE), which oversees the DEP Mining Program's regulation of coal mining in Pennsylvania. Digging deeper into the situation than Gaston had, OSMRE stepped up and took action.


The full story is spelled out in a September 8, 2014 Decision of Supervisory Administrative Law Judge Harvey C. Sweitzer of the U.S. Department of the Interior's Office of Hearings and Appeals (OHA).


Here's the short version. In response to citizen complaints about sediment pollution entering the Youghiogheny River, OSMRE gave the DEP Mining Program an opportunity to take action to correct the violations. After initially issuing a compliance order to Amerikohl, the DEP Mining Program reversed course, withdrew its order, and took the position that it had no authority over the Curry site. OSMRE received the same response when it gave the DEP Mining Program a second chance to take action. OSMRE then issued a notice of violation and later a cessation order to Amerikohl for erosion and sedimentation violations at the permitted Curry surface mine. Amerikohl appealed OSMRE's actions to OHA.


On review, Judge Sweitzer upheld OSMRE's issuance of the notice of violation and cessation order to Amerikohl. Rejecting absolute, "bright line" rules suggested by both parties, Judge Sweitzer held that the critical issue of whether the timbering was independent of the proposed coal mining activities required a case-by-case analysis of the factual situation presented. On that central issue, a welter of evidence showed extensive cooperation and coordination between the landowner and Amerikohl. Among other things, the landowner asked Amerikohl which logging contractor to use, had Amerikohl delineate the area to be timbered, removed more trees than would be prudent from a forest management perspective, and geared the logging operation to Amerikohl's timetable and a date restriction in the mining permit. (OHA Decision, p. 12.) Judge Sweitzer concluded that the landowner "did virtually everything he could to facilitate mining through his logging practices." (Id.) As a result, the judge ruled, the logging is classified as a surface mining activity under Pennsylvania's OSMRE-approved coal mining regulations. (Id., p. 15.)


Judge Sweitzer noted that when the DEP Mining Program decided it lacked jurisdiction, it was unaware of the full extent of Amerikohl's involvement in the timbering operations at the Curry site. He also found, however, that the DEP Mining Program had enough evidence — including the congruity between the area timbered and the area covered by the mining permit — to warrant further investigation, and he concluded that its failure to request additional time from OSMRE to conduct an investigation "was an arbitrary and capricious decision." (Id., p. 16.)


For the sake of the High Quality waters of the Youghiogheny, it is welcome news that Gaston has an able back-up that is willing to step into the void and make the play.


Better yet, of course, would be for Gaston to follow Alphonse's lead by getting in the game and making the play himself.

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Alphonse makes a play

In March, this blog described a “bureaucratic version of the Alphonse and Gaston routine” – “After you, Alphonse.” “No, you first, my dear Gaston.” – in which two units of Pennsylvania’s Department of Environmental Protection (DEP) were pointing to each other as the responsible regulator while failing to prevent polluting discharges of eroded sediment from a parcel of land in Fayette County known as the Curry site. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP’s Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP’s Mining Program.

As noted in the earlier post, baseball broadcasters describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

An update is required: Alphonse has stepped up and made a play!

PennFuture learned last week that on June 19, the W&W Program issued Compliance Orders to Appalachian Timber Company (available here) and Curry Lumber Company (available here) for failure to implement or maintain effective erosion and sediment control best management practices at the Curry parcel, in violation of DEP’s regulations.

The orders state that the cited violations have resulted in sediment pollution entering Morgan Run, a stream running along part of the western boundary of the Curry site that is entitled to special protection as a “High Quality Cold Water Fishery.” The remedial actions required by the orders include submitting a revised erosion and sediment control plan to the Fayette County Conservation District by June 27 and implementing specified best management practices by July 1.

Recent seeding operations and other activities at the Curry site suggest that W&W’s orders have had a beneficial impact, but the permanent stabilization of disturbed areas required by W&W’s compliance orders takes time, so there may be more tell about this part of the story.

There is another part of the story, however, that does not appear to be covered by W&W’s compliance orders. The biggest erosion and sedimentation problems observed at the Curry Site during the last several months have been outside the Morgan Run watershed. Citizens and the federal Office of Surface Mining Reclamation and Enforcement have documented problems on eastern portions of the Curry site that drain directly into the High Quality waters of the Youghiogheny River through several eastward-flowing unnamed tributaries. This photo, taken from the Great Allegheny Passage bike trail last November, shows a distinct, milky plume of sediment pollution carried into the Yough by one of those tributaries. Photos taken on New Year’s Eve show the muddy waters of one of the Curry site tributaries, which contributed to a similar plume of sediment pollution in the Yough. (All photos are used with the permission of the Youghiogheny Riverkeeper®.)

When performing follow-up inspections to assess the companies’ compliance with its June 19 orders, W&W should make sure that the conditions on the eastern side of the Curry site are not causing or contributing to sediment pollution in the Yough through the eastward-flowing tributaries.

Having called out W&W for inaction in March, we now give a shout out to W&W for the actions it has taken – a tip of the (Pirates) cap to you, Alphonse.

But our commendation comes with a qualification: The game is not over, and there are more plays to make. Keep stepping up and catching the ball, Alphonse!

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Lawsuit seeks to clean up stretch of Youghiogheny River

Many residents of Pennsylvania, particularly southwestern Pennsylvania, are familiar with the beautiful Ohiopyle State Park, through which the Youghiogheny River flows. People flock to the area every year for superb white water rafting, fishing, camping, hiking and biking opportunities. Just upstream of Ohiopyle lies the Borough of Confluence, situated along the Great Allegheny Passage where Laurel Hill Creek and the Casselman River empty into the Yough. Between Confluence and Ohiopyle State Park runs one of the nicest eleven miles of trout river in all of Pennsylvania. It is at the beginning of this stretch where the Borough of Confluence discharges wastewater from its sewage treatment plant.

The Borough's sewage treatment plant is hydraulically overloaded. Two main sewer extensions that collect sewage from the town are constructed of old tile lines that allow large quantities of water from the Yough and Casselman Rivers to infiltrate into the collection system. This condition results in raw sewage bypassing treatment at the plant. The Pennsylvania Department of Environmental Protection (PADEP) estimates that the Borough's plant settles out only 30 percent of the solids that it should be collecting, meaning that the rest ends up in the river. Though this condition has existed for many years, neither the Authority nor the PADEP has taken action to solve the problem.

Ironically, the hydraulically overloaded treatment plant threatens the very natural resource that the Borough now seeks to use to attract economic development to the area. As suspended solids increase, a water body begins to lose its ability to support a diversity of aquatic life. Suspended solids absorb heat from sunlight, which increases water temperature and subsequently decreases levels of dissolved oxygen. Some cold water species, such as trout and stoneflies, are especially sensitive to changes in dissolved oxygen. Suspended solids can also destroy fish habitat because suspended solids settle to the bottom and can eventually blanket the river bed, smother the eggs of fish and aquatic insects, and suffocate newly-hatched insect larvae.

The Borough discharges sewage to the Yough under authority of a National Pollutant Discharge Elimination System (NPDES) Permit issued by the PADEP. A file reviewed performed by PennFuture revealed that for the past four and one-half years, the Borough has reported more than sixty (60) violations of its NPDES Permit, equating to over five hundred (500) days of violation of the Clean Water Act and Clean Streams Law. As a result, PennFuture filed a citizen suit in Federal District Court to cease the violations. The suit seeks to require that the Authority develop and implement a plan that will correct the hydraulic overload at the plant and eventually stop untreated sewage from being dumped into this valuable natural resource. 

You can read the full Complaint that PennFuture filed in the District Court for the Western District of Pennsylvania here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

DEP's Alphonse and Gaston routine

Alphonse and Gaston were characters in an eponymous early 20th century cartoon strip whose excessive politeness and repeated deference prevented them from so much as getting though a doorway. Inspired by their routine – “After you, Alphonse.” “No, you first, my dear Gaston.” – baseball broadcasters still describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

As baseball season approaches, two units of Pennsylvania’s Department of Environmental Protection (DEP) are pulling their own, bureaucratic version of the Alphonse and Gaston routine. DEP’s version, however, is not funny.

Citizens and regulators from several government agencies have repeatedly observed excessive amounts of sediment being carried into a High Quality segment of the Youghiogheny River adjacent to the Great Allegheny Passage in Fayette County. The sediment is generated by erosion occurring on a parcel of land known as the Curry site, where timbering activities have exposed and disturbed the soil.

Enter Alphonse.

Most erosion and sedimentation problems in Pennsylvania are handled by DEP’s Waterways and Wetlands (W&W) Program, which delegates some regulatory responsibilities to county conservation districts. If you call W&W or the Fayette County Conservation District, however, you are told that they lack jurisdiction (authority) over the Curry site because it is a permitted surface coal mine. W&W suggests that you call DEP’s Greensburg District Mining Office.

Enter Gaston.

DEP’s Mining Program takes exactly the opposite view on the jurisdiction issue: The mining company has not yet activated its mining permit and is not performing the timbering, so the Mining Program has no regulatory authority over the erosion and sedimentation problems. They suggest – as you might have guessed – that you call W&W or the Conservation District.

While DEP performs this regulatory Alphonse and Gaston routine and watches the ball drop, the sediment continues to flow into the High Quality waters of the Youghiogheny.

As in baseball, giving up a “hit” this way is both embarrassing and avoidable. Ultimately, DEP’s W&W and Mining Programs answer to the same Secretary. Like a pitcher who takes charge by calling out which of two infielders should handle a pop-up, DEP Secretary Abruzzo should direct W&W or Mining to step up and make the play. If each unit of DEP has jurisdiction over different responsible parties, the Secretary should direct both units to take action to protect the Yough.

One way or another, somebody should catch the ball.

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.